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Home My WebLink AboutResolutions - 2008.07.31 - 9476MISCELLANEOUS RESOLUTION #08 . 134 BY: General Government Committee, Christine A. Long, Chairperson IN RE: DEPARTMENT OF INFORMATION TECHNOLOGY — E-COMMERCE AGREEMENT WITH INTERESTED LOCAL CITIES, VILLAGES AND TOWNSHIPS To the Oakland County Board of Commissioners Chairperson, Ladies and Gertlernen: • WHEREAS, as provided by Public Act 462 of 1996. the Enhanced Access to Public Records Act, the Board of Commissioners in Miscellaneous Resolution #97165 dated August 14, 1997, 'adopted the Oakland County Enhanced Access to Public Records Policy; and WHEREAS, the Oakland County Board of Commissioners approved a revised @ccess Oakland Master Fee Structure in Miscellaneous Resolution #03279 dated Octooer 16, 2003, which included a pricing schedule for all Oakland County enhanced access products and services as part of the strategic rollout of a comprehensive eGovernment program: and WHEREAS, the Oakland County Board of Commissioners approved a revised Access Oakland Master Fee Structure in Miscellaneous Resolution #07121 dated May 10, 2007, which expanded the Master Fee Structure to include an electronic check fee; and WHEREAS, the Oakland County Department of Information Technology has implemented an "E- Commerce" system that offers constituents who wish to purchase products and services from Oakland County the convenience of using a credit card or electronic check for the payment of such products and services via an Internet website or Interactive Voice Response Unit(IVR); ana WHEREAS, the Department of Information Technology can make the "E-Commerce" system available to all County Municipalities to offer constituents the convenience of using a credit card or electronic check for the payment of Municipal products and services via an Internet website or Interactive Voice Response Unit (IVR); and WHEREAS, the state law allows the County to provide such services in conjunction with a Municipality pursuant to an agreement between the County and the Municipality; and WHEREAS, an agreement has been drafted (as attached) by the County's Corporation Counsel; and WHEREAS, Municipalities have expressed an interest in entering into such an agreement with the County to use the County's "E-Commerce' system, and WHEREAS, this agreement will allow nineteen Municipalities to continue use of the County's PayLocalTaxes.com website and expand the use of the County's "E-Commerce" system to other Municipal services. NOW THEiiteemEbh IT RESOLVED that the Oakland County Board of Commissioners hereby approves entering into the attached E-COMMERCE SERVICES AGREEMENT with interested Oakland County Municipalities. BE IT FURTHER RESOLVED that upon receipt of an executed E-COMMERCE SERVICES AGREEMENT and all other required assurances and documentation from any Oakland County Municipality, the Board of Commissioner's Chairperson is authorized to sign and finalize this Agreement with the Municipality on behalf of the County. BE IT FURTHER RESOLVED that upon receipt of an executed Agreement from any Oakland County Municipality, along with the appropriate certified resolution from the Municipality's governing body, and any other Municipality assurances and documentation required in the Agreement, the Oakland County Clerk shall obtain the Board of Commissioners Chairperson signature on the Agreement. shall file a copy of this fully executed Agreement in the official Oakland County Board of Commissioner records maintained in his Office, and shall also forward a copy of this fully executed Agreement to the Secretary of State as required by law. Chairperson, on behalf of the General Government Committee, I move adoption of the foregoing resolution. GENERAL GOVERNMENT COMMITTEE einAit rkk2_ GENERAL GOVERNMENT COMMITTEE VOTE: Motion carried unanimously on a roll call vote with Suarez and Greimel absent. July 17, 2008 E-COMMERCE SERVICES AGREEMENT This E-COMMERCE SERVICES AGREEMENT, (hereafter, this ''Contract") is made and entered into between the COUNTY OF OAKLAND, a Michigan Constitutional and Municipal Corporation, whose address is 1200 North Telegraph Road, Pontiac, Michigan 48341 . (hereafter, the "County"), and the ( Municipality Name) a Michigan Constitutional and Municipal Corporation, whose address is: (Municipality Address) ,M ichigan (Municipality Zip) (hereafter, the" Municipality"). In this Contract, either the County and/or the Municipality may also be referred to individually as a "Party" or jointly as "Parties." INTRODUCTORY STATEMENTS A. The County has developed an "E-Commerce" System that permits the use of credit cards and electronic checks, via the Internet, for payment of the charges for products and services. B. The Municipality has requested the County's Information Technology Department assistance in performing the "Information Technology Department Assistance Services" (hereafter "Services")(as described and defined in this Contract) and has agreed in return to reimburse the County as provided for in this Contract. C. The County has determined that it has sufficient "Information Technology Department Personnel," as defined herein, possessing the requisite knowledge and expertise and is agreeable to assisting the Municipality by providing the requested "Information Technology Department Assistance Services" under the terms and conditions of this Contract. D. The purpose of this Contract is to enable the Municipality to utilize the "E-Commerce" System, that the County has developed, to assist the Municipality in the collection of fees for products and services via credit card and/or electronic check. NOW. THEREFORE, in consideration of these premises and the mutual promises, representations, and agreem ents set forth in this Contract, and for other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the County and the Municipality mutually agree as follows: §1. DEFINED TERMS In addition to the above defined terms (i.e., "Contract", "County", "Municipality", "Party" and 'Parties", and "State"), the Parties agree that the following words and expressions when printed with the first letter capitalized as shown herein, whether used in the singular or plural, possessive or nonpossessive, and/or either within or without quotation marks, shall, be defined and interpreted as follows: ''County Agent" or "County Agents" shall be defined as any and all Oakland County elected officials, appointed officials, directors, board members, council' members, commissioners, authorities, other boards, committees, commissions, employees. managers, departments, divisions, volunteers, agents, representatives, and/or any such persons' successors or predecessors, agents, employees, attorneys, or auditors (whether such persons act or acted in their personal representative or official capacities), and/or any persons acting by, through, under, or in concert with any of them, excluding the Municipality and/or any Municipality Agents, as defined herein, "County Agent" and/or "County -COM MERGE SERVICES ACFQ.LLW:NT BETWEEN -TE COUNT" OF OAKLAND AND Pav 1 cif 1.4 1.1. • Agents" shall also include any person who was a County Agent anytime during the term of this Contract but, for any reason, is no longer employed, appointed, or elected and serving as a County Agent. 1.2. "Information Technology Department Personnel' as used in this Contract shall be defined as a specific subset of, and included as part of the larger group of County Agents as defined above, and shall be further defined as any and all County Agents specifically employed and assigned by the County to work in the Information Technology Department as shown in the current County budget and/or personnel records of the County. For any and all purposes in this Contract, any reference to County Agents shall also include within that term any and all Information Technology Department Personnel, but any reference in this contract to Information Technology Department Personnel shall not include any County Agent employed by the County in any other function, capacity or organizational unit of the County other than the information Technology Department. 1.3. ''Municipality Agent" or "Municipality Agents", shall be defined to include any and all Municipality officers, elected officials, appointed officials, directors, board members, council members, authorities, boards, committees, commissions, employees, managers, departments, divisions, volunteers, agents, representatives, and/or any such persons' successors or predecessors, agents, employees, attorneys, or auditors (whether such persons act or acted in their personal, representative, or official capacities), and/or any and all persons acting by, through, under, or in concert with any of them, except that no County Agent shall be deemed a Municipality Agent and conversely, no Municipality Agent shall be deemed a County Agent. "Municipality Agent" shall also include any person who was a Municipality Agent at any time during this Contract but for any reason is no longer employed, appointed, or elected in that capacity. 1.4. "Claim(s)" shall be defined to include any and all al leged losses, claims, complaints, demands for relief or damages, suits, causes of action, proceedings, judgments, deficiencies, liability, penalties, litigation costs and expenses, including, but not limited to, any reimbursement for reasonable attorney fees, witness fees, court costs, investigation and/or litigation expenses, any amounts paid in settlement, and/or any other amounts, liabilities or Claim(s) of any kind whatsoever which are imposed on, incurred by, or asserted against either the County and/or any County Agent, as defined herein, or any Claim(s) for which the County and/or any County Agent may become legally and/or contractually obligated to pay or defend against, or any other liabilities of any kind whatsoever, whether direct, indirect or consequential, whether based upon any alleged violation of the constitution (federal or State), any statute, rule, regulation or the common law, whether in law or equity, tort, contract, or otherwise, and/or whether commenced or threatened and arising out of any alleged breach of any duty by the County and/or any County Agent to any third-person, the Municipality, including any Municipality Agent or any E-Commerce Customer • under or in connection with this Contract or are based on or result in any way from the County's and/or any County Agent's participation in this Contract, 1.5. "E-Commerce Customer" shall be defined as any and all persons or entities, who pay or attempt to pay by credit card or electronic check via the Internet or the County's Interactive Voice Response Unit for products or services, offered by the Municipality. (-1)MMERCE SERVICES AGREEMENT BETWEEN THE ery,..;h1TY (1.F. OAKLAND AND Page 2 of 14 §2. COUNTY INFORMATION TECHNOLOGY DEPARTMENT SERVICES The Parties agree that the full and complete scope of any and all County Information Technology Department Assistance Services shall be as described and limited in the following subsections (hereinafter defined and referred to as either 'Information Technology Department Assistance Services" or "Services"). 2.1. ,.I&FO)PIVIATInN T1HNOI OGY DFPARTMENT ASSISTANCE SERVICES". OR "SERVICES" TO BE PROVIDED "Information Technology Department Assistance Services" or "Services", to be performed by County for the Municipality as those terms are defined in this Contract, shall only include and shall be limited to the following activities: 2.1.1. The County will provide, host and maintain a "E-Commerce" System and its connection to the Internet where "E-Commerce" Customers can pay for taxes, licenses, permits and fees by means of a credit card or electronic check, utilizing the Internet. For purposes of illustration, these include, but are not limited to, property taxes, building permits, water bills and class registrations. This includes ensuring that any data stored or transmitted is accurate, complete and securely collected. 2.1.2. The County will provide, host and maintain an Interactive Voice Response Unit and its connection to the "E-Commerce" System where E-Commerce Customers can pay for products and services as identified in this Contract by means of a credit card or electronic check utilizing a telephone. This includes ensuring that any data stored or transmitted is accurate, complete and securely collected. 2.1.3. When tax payments are made to the Municipality that utilizes the County's “E-Commerce" Service and the County's tax receivable system, the County will post the payment without the need for the M unicipality to enter the data separately. 2.1.4. When payments are made to the Municipality that utilizes the County's 'E-Commerce" Service for products or services that require updates to computerized systems maintained by the County, the County will post the payment without the need for the Municipality to enter the data separately 2.1.5. The County shall perform all maintenance and/or troubleshooting necessary to maintain the "E-Commerce" System. 2.1.6. The County shall maintain and support at no cost to the Municipality all transmission services and Internet service provider services necessary to maintain the System and allow the processing of fees for products and services as identified and itemized in this Contract. 2.1.7. The County shall provide all technical support with respect to "E- Commerce' Customer questions regarding the payment procedure. However, the County shall not be responsible for answering any questions regarding the amount of payment due or owing, but shall refer all such questions directly to the Municipality. 2.1.8. The County will provide the Municipality with access to a Website, password protected, where the Municipality can issue "E-Commerce Customer credits as may be required and view daily, weekly, and E.7 COF,,1MER.CE SERVICES ACREEM F r3ETVIIE EN (:',CLJN7Y C.": OAKLAND AN Page3 of 14 monthly transaction activity of payments processed through the County's "h-Commerce' System, Note: The customer Website shall also be a secure Website with all customer data coilected, stored and transmitted in a secure manner. 2.1.9. The County shall provide all reasonabie and necessary technology to ensure that customer data is protected and secured in accord with its contractual obligations and reasonable business standards and practices. The County shall be responsible for the cost of the various . software licenses required to carry out the terms of this contract. 2.2. PURPOSE OF COUNTY "SERVICES" The Parties agree that the purpose of any and all "Information Technology Department Services' or "Services' to be performed under this Contract shall be to assist (e.g., to help, aid, lend support, and/or participate in as an auxiliary, to contribute effort toward completion of a goal, etc.) the Municipality in the performance of that Municipality's official functions, obligations, and Municipality's legal responsibilities pursuant to any applicable Federal or State Laws and Local Ordinances. 2.3. MANNER COUNTY TO PROVIDE SERVICL1 The Parties agree that any and all" Information Technology Department Services" or "Services" to be provided by the County for the Municipality under this Contract shall be performed solely and exclusively by the County's "information Technology Department Personnel" as defined herein. 2.3.1. Information Technology Department Personnel shall be employed and assigned by the County in such numbers and based on such appropriate qualifications and other factors as decided solely by the County. 2.3.2. The Parties agree that the County shall be solely and exclusively responsible for furnishing all Information Technology Department Personnel with all job instructions, job descriptions and job specifications and shall in all circumstances control, supervise, train or direct all Information Technology Department Personnel in the performance of any and all Services under this Contract. 2.3.3. Except as otherwise expressly provided for herein, the Parties agree and warrant that, at all times and for all purposes relevant to this Contract, the County shall remain the sole and exclusive employer of all County. Agents and Information Technology Department Personnel and that the County shall remain solely and completely liable for any and all County Agents' past, present, or future wages, compensation, overtime wages, expenses, fringe benefits, pension Of retirement benefits, travel expenses, mileage allowances, training expenses, transportation costs. and/or other allowances or reimbursements of any kind, including, but not limited to, workers' disability compensation benefits, unemployment compensation. Social Security Act protection(s) and benefits, any employment taxes, and/or any other statutory or contractual right or benefit based on or in any way related to any County Agent's employment status. 2.3.4. This Contract is neither intended, nor shall it be interpreted, to create, change, grant, modify, supplement, supersede, aller, or otherwise affect or control, in any manner, form, or at any time, any right, privilege, E•COMMERCE SERVICES AGREEMENT BETWEEN ThE COUNTy QE OAKLAND AND Page 4 of 14 I benefit, or any other term or condition of employment, of any kind or nature whatsoever, in, upon, or for any County Agent Information Technology Department Personnel with the County, any applicable County employment and/or union contract, and/or any County rule(s), regulation(s), hours of work, shift assignment. order(s), policy(ies), procedure(s); directive(s), ethical guideline(s), etc., which shall, solely and exclusively, govern and control the employment relationship between the County and any County Agent or Information Technology Department Personnel and/or the conduct and actions of any County Agent or any Information Technology Department Personnel. To illustrate, but not otherwise limit, this Contract does not and shall not be interpreted to limit, modify, control, or otherwise affect, in any manner: 2.3.4.1. The County's sole and exclusive right, obligation, responsibility, and discretion to employ, cornpensate, assign, reassign, transfer, promote. reclassify, discipline, demote, layoff, furlough, discharge any Information Technology Department Personnel and/or pay any and Information Technology Department Personnel's wages, salaries, allowances, reimbursements, compensation, fringe benefits, or otherwise decide any and al I such terms and conditions of. employment and make any and all employment decisions that affect. in any way, the employment of any Information Technology Department Personnel with the County, subject only to its applicable collective bargaining Contracts. 2,3.4.2. The County's sole and exclusive right, obligation, and responsibility to determine, establish, modify, or implement any and all operational policies, procedures, orders, rules, regulations, ethical guidelines, and/or any other judgment, policy or directive which, in any way, governs or controls any activity of any County Agent or Information Technology Department Personnel, any necessary County Agent or Information Technology Department Personnel's training standards or proficiency(ies), any level or amount of required supervision, any and all standards of performance, any sequence or manner of performance, and any level(s) of experience, training, or education required for any Information Technology Department Personnel performing any County duty or obligation under the terms of this Contract, 2.3,5. The Municipality agrees that except as expressly provided for under the terms of this Contract and/or laws of this State, no County Agent or Information Technology Department Personnel, while such person is currently and/or actively employed or otherwise remains on the payroll of the County as a County Agent shall be empioyed, utilized, or perform any other services, of any kind, directly or indirectly, in any manner or capacity, or otherwise be available to perform any other work or assignments by or for the Municipality during the term of this Contract. This section shall not prohibit the Municipality from employing any person who was a former County Agent but is no longer employed in that capacity by the County. -C PC E SERVICES AGREEkENT BETWEEN TI COUN T-Y OF OAKLAND AND Page 5 of 14 2.3.6. Except as otherwise expressly provided by the Contract and/or applicable State law, the Parties agree and warrant that neither the County, nor any County Agent, nor any Information Technology Department Personnel, by virtue of this Contract or otherwise, shall be deemed, considered or claimed to be an employee of the Municipality and/or a Municipality Agent. 2.3.7. The Municipality shall not otherwise provide, furnish or assign any Information Technology Department Personnel with any job instructions, job descriptions, job specifications, or job duties, or in any manner attempt to control, supervise, train, or direct any Personnel in the performance of ai iy County's Information Technology Department Services duty or obligation under the terms of this Contract. 2.4, LIMITS AND EXCLUSIONS ON COUNTY "SERVICES" The services provided by the County under this Contract are limited to those services expressly provided for within this Contract, under this Contract neither the County nor any County Agents shall be responsible for assisting or providing any other "Services "or assistance to the Municipality or assume any additional responsibility for assisting the Municipality in any other way or manner with any Municipality obligations under any and all State Laws or Local Ordinances. The Municipality shall, at all times and under all circumstances, remain solely liable for any and all costs, legal obligations, and/or civil liabilities associated with or in any way related to any Municipality legal obligation under any applicable Federal or State Laws or Local Ordinances. §3. TERM OF CONTRACT The Parties agree that the term of this Contract shall begin on the effective date of this Contract, as otherwise provided herein, and shall continue until terminated or cancelled as provided in Section §12 of this Contract. Any and all County Services otherwise provided to the Municipality prior to the effective date of this Contract, shall be subject to the terms and conditions provided for herein. §4. NO TRANSFER OF MUNICIPALITY LEGAL OBLIGATIONS TO COUNTY The Municipality agrees that this Contract does not, and is not intended to, transfer, delegate, or assign to the County, and/or any County Agent or Information Technology Department Personnel any civil or legal responsibility, duty, obligation, duty of care, cost, legal obligation, or liability associated with any governmental function delegated and/or entrusted to the Municipality under any applicable Federal or State Law or Local Ordinance. 4.1, The Municipality shail, at all times and under all circumstances, remain solely liable for any and all costs, legal obligations, and/or civil liabilities associated with or in any way related to any Municipality receipt or collection of payments or any other Municipality legal obligation. The Municipality agrees that under no circumstances shall the County be responsible for any costs, obligations, and/or civil liabilities associated with its Municipality function or any responsibility under any Federal or State Law or Local Ordinance. 4,2. The Municipality shall not incur or create any debts, I lens, liabilities or obligations for the County and shall take all necessary steps to ensure that any debts, liens, liabilities or obligations that the Municipality may incur shall not become a debt, liability, obligation or Claim(s) against the County. E.-COMMERCE SERVICES ACREEM:NT BETWEEN tHE COLiNi-y CF OAKLAND AND Fge. e 1.4 4.3. The Parties agree that the Municipality shall at all times remain responsible for the ultimate completion of any and all M unicipality duties or obligations under,any and all applicable Federal or State Laws or Local Ordinances. Nothing in this Contract shall relieve the Municipality of any Municipality duty or obligation under any applicable Federal or State Law or Local Ordinance. 4.4. The Municipality and Municipality Agents shall be and remain responsible for compliance with all Federal, State, and Local laws, ordinances, regulations, and agency requirements in any manner affecting any work or performance of this Contract or with any Municipality duty or obligation under any applicable Federal or State Law or Local Ordinance. §5. NO DELEGATION OR WAIVER OF GOVERNMENTAL AUTHORITY OR IMMUNITY The Parties reserve to themselves any rights and obligations related to the provision of any and all of each Party's respective governmental services, authority, responsibilities, and obligations. Except as expressly provided otherwise herein, this Contract does not, and is not intended to, create, diminish, delegate, transfer, assign, divest, impair, or contravene any constitutional, statutory, and/or other legal right, privilege, power, civil or legal responsibility, obligation, duty of care, liability, capacity, immunity, authority or • character of office of either Party to any other person or Party. Notwithstanding any other term or condition in this Contract, that no provision in this Contract is intended, nor shall it be construed, as a waiver of any governmental immunity, as provided by statute or applicable court decisions, by either Party, either for that Party and/or any County Agents or Municipality Agents. §6. FINANCIAL ARRANGEMENTSJO REIMBURSE THF COUNTY FOR THP COMMERCE" SERVICES 6.1. The Parties understand and agree that the in order to avail themselves of the convenience of the "E-Commerce" Service, the "E-Commerce" Customer shall be required to agree to pay in addition to their credit card or electronic check payment for the products and/or services specified in this Contract an additional "Convenience Fee." This "Convenience Fee" shall be added to the amount the "E-Commerce" Customer is remitting to the Municipality for payment for the products and/or services specified in this Contract and shall be deposited along with any payment for said products and/or services into the designated Municipality bank account. 6.2. The Parties understand and agree that the "Convenience Fee" for payment by credit card or electronic check to be charged to any E-Commerce Customer utilizing the E-Commerce" Services shall be in such an amount as either now established, by the Oakland County Board of Commissioners (MISCELLANEOUS RESOLUTION #07121, Oakland County Board of Commissioner Minutes, May 24, 2007, p. 246) or as may be hereafter revised by the Oakland County Board of Commissioners. For purposes of illustration, only the current "Convenience Fee" for the payment by credit card for a product or service in the amount of $200.00 is an add itional $8.25. There is currently a flat "Convenience Fee" of $2.50 for each payment by electronic check. 6.3. The Parties understand and agree that except as provided below, the Municipality shall remit and repay to the County any and all m oneys and amounts that have been received, deposited, or transferred into any Municipality bank account as a "Convenience Fee" as charged to or paid by any "E-Commerce" Customer in conjunction with the use of the " E-Commerce" Service. E-COM MERGE SERVICES AGREEVE NT BETWEEN THE COUN7Y Oi OAKLAND AND Page 7 of 14 6.3.1. From each and every "Convenience Fee" amount received by the Municipality in conjunction with the use of the " E-Commerce" Service, and otherwise herein due and payable to the C ounty, the County will deduct the actual amount, which in no event shall exceed the amount of the "Convenience Fee," the Municipality was charged as a "Merchant Service Fee' (currently approximately 1.8% of the total of a credit card transaction amount charged by the "E-Commerce" Customer) by the Municipality's third party 'payment processing company" and will generate and mail an invoice for the amount so calculated to the Municipality within 15 days of the end of every quarter. Under this Contract the end of a quarter shell be the last day of March, June, September, and December. 6.3.2. "Merchant Service Fees" are only those expenses actually incurred and paid by the Municipality for the basic cyst and expense of transferring "E- Commerce" Customers' funds into the Municipality bank account and do not include any such other costs or expenses that may be incurred by the Municipality in conjunction with "E-Commerce" Services including but not limited to any fines, penalties, interest, credit card ''chargebacks" and/or any such other possible-costs or expenses incurred by the Municipality under its contract to the Municipality's third party "payment processing company". 6.4. The Municipality will pay by check, payable to the County, or Electronic Fund Transfer to the County each quarter for all amounts due and owing the County as described herein, within thirty (30) calendar days following the actual receipt of every quarterly invoice. 6.5. Should the Municipality fail, for any reason, to timely pay the County the amounts required under this Contract, the MUNICIPALITY agrees that upon notice from the Oakland County Treasurer to the Treasurer of the State of Michigan (or any other State of Michigan official authorized to disburse funds to the Municipality), the State of Michigan is authorized to withhold any funds due the M unicipality from the State, and assign those funds to partially or completely offset any deficiency by the Municipality to the County. Such funds shall be paid directly to - the County. Further, the MUNICIPALITY waives any claims against the State or County, or their respective officials, for any such amounts paid to the County. 6.6. Should the M unicipality fail for any reason to timely pay the County the amounts required under this Contract, the Municipality agrees that the County Treasurer shall be entitled to set-off and retain any amounts due the Municipality from any source of funds due the Municipality in the possession of the County, to partially or completely offset any deficiency by the Municipality, unless expressly prohibited by law. Such a transfer shall be considered an assignment by the Municipality to the County. Further, the Municipality waives any claims against the County, or its officials, for any such amounts paid to the County. • 6.7. Notwithstanding any other term or condition in this Contract, should the Municipality fail for any reason to timely pay the County the amounts required under this Contract, the Municipality agrees that the County may discontinue, upon thirty (30) days written notice to the Municipality, without any penalty or liability whatsoever, any County services or performance obligations under this Contract. E. -COMMERCE SERViCES ACREiEMENT BETWEEN 71iE COL NITY 0; CAKLAND AND Page a of 14 6.8. None of these provisions shall operate to limit in any way the County's right to pursue any other legal remedies against the Municipality for the reimbursement of amounts due the County under this Agreement. The remedies in this paragraph are available to the County on an ongoing and successive basi s, as the Municipality becomes delinquent in its payments. §7. LIABILITY The Municipality further agrees that the County shall not be Ii able to the . Municipality and/or "E-Commerce'' Customer for any and all Claim(s), except as otherwise expressly provided for in this Contract. 7.1. The Parties agree that this Contract does not and is not intended to create or include any County warranty, promise, covenant or guaranty, either express or implied, of any kind o7 nature whatsoever in favor of the Municipality, and/or any Municipality Agents, or any "E-Commerce" Customer or any other person or entity, or that the County's efforts in the performance of any obligation under this Contract will result in any specific monetary benefit or efficiency, or increase in any tax revenue for the Municipality, 7.2. In the event of any alleged breach, wrongful termination, and/or any default of any term or condition of this Contract by either the County or any County Agent, the County and/or any County Agent shall not be liable to the Municipality for any indirect, incidental, special or consequential damages, including, but not limited to any replacement costs for County Services, any loss of income or revenue, and/or any failure by the Municipality to meet any Municipality obligation under any applicable State Laws, Local Ordinances or any other economic benefit or harm that the Municipality may have realized, but for any alleged breach, wrongful termination, default and/or cancellation of this Contract, or damages beyond or in excess of the amount(s) of any amount paid to, received or retained by the County at the time of the alleged breach or default in connection with or under the terms of this Contract, whether such alleged breach or default is • alleged in an action in contract or tort and/or whether or not the Municipality has been advised of the possi bility of such damages. This provision and this Contract is intended by the Parties to allocate the risks between the Parties, and the Parties agree that the allocation of each Party's efforts, costs, and obligations under this Contract reflect this allocation of each Party's risk and the limitations of liability as specified herein. 7,3. Notwithstanding any other provision in this Contract, with regard to any and all alleged losses, claims, complaints, demands for relief or damages, suits, causes of action, proceedings, judgments, deficiencies, liability, penalties, litigation costs and expenses, including, but not limited to, any reimbursement for reasonable . attorney fees, witness fees, court costs, investigation and/or litigation expenses, any amounts paid in settiem ent, and/or any other amounts, liabilities of any kind whatsoever which are imposed on, incurred by, or asserted against the Municipality or any Municipality Agent by any third person. including but not limited to any Municipality Agent or E-Cornmerce Customer, arising out of any activities or Services to be carried out by any County Agent in the performance of this Contract, the Municipality hereby agrees that it shall have no rights pursuant to or under this Contract against the County and/or any County Agents to or for any indemnification (i.e., contractually, legally, equitably, or by implication) contribution, subrogation, or other right to be reimbursed by the County and/or any of County Agents based upon an y and all legal theories or alleged rights of E-commERCE SERVICES AGRuiv;EN BETWEEN COL.NTY Or OAKLAND AND Page 9 of 14 any kind, whether known or unknown, for any and all alleged losses, claims, complaints, demands for relief or damages, judgments, deficiencies, liability, penalties, litigation costs and expenses of any kind whatsoever which are imposed on, incurred by, or asserted against the Municipality and which are alleged to have arisen under or are in any way based or predicated upon this Contract. §8. MUNICIPALITY AGENTS AND COOPERATION WITH THE COUNTY The Municipality agrees that it shall be solely and exclusively responsible, during the term of this Contract, for guaranteeing that all Municipality Agents fully cooperate with Information Technology Department Personnel in the performance of all County S ervices under this Contract. 8.1. Municipality Agents shall be employed and assigned based on appropriate , qualifications and other factors as decided by the Municipality. The Municipality agrees that it shall be solely responsible for furnishing all Municipality Agents with all job instructions, job descriptions and job specifications and shall solely control, direct, and supervise all Municipality Agents and shall be solely responsible for the means and manner in which Municipality's duties or obligations under any applicable Federal or State Laws or Local Ordinances are satisfied. 8.2. The Municipality agrees that it shall be solely and completely liable for any and all Municipality Agents' past, present, or future wages, compensation, overtime wages, expenses, fringe benefits, pension or retirement benefits, travel expenses, mileage allowances, training expenses, transportation costs, and/or other allowances or reimbursements of any kind, including, but not limited to, workers' disability compensation benefits, unemployment compensation, Social Security Act protection(s) and benefits, any ern ployment taxes, and/or any other statutory or contractual right or benefit based on or in any way related to any Municipality Agent's employment status or any alleged violation of any Municipality Agent's statutory, contractual (e.g., union, employment, or labor contract), constitutional, common law employment right, and/or civil rights by the Municipality. The Municipality agrees to indemnify and hold harmless the County from and against any and all Claim(s) which are imposed upon, incurred by, or asserted against the County or any County Agent by any Municipality Agent and/or which are based upon, result from, or arise from, or are in any way related to any Municipality Agent's wages, compensation, benefits, or other employment- related or based rights, including, but not limited to, those described in this section. 8.3. The Municipality agrees that no Municipality Agent shall, by virtue of this Contract or otherwise, be considered or claimed to be an employee of the County and/or a County Agent. This Contract does not grant or confer, and shall not be interpreted to grant or confer, upon any Municipality Agents or any other individual any status, privilege, right, or benefit of County employment or that of a County Agent. 8.4. The Municipality understands that the current credit card processing services for the "E-Commerce" System are being handled through P ayPal Inc. and Elavon, Inc. The Municipality agrees that as a condition precedent to County performance of credit card payment Services under this Contract that the Municipality shall establish and maintain an agreement for credit card processing services with the entities currently providing credit card processing services for EQMMEPCE SERVICE.; ACRE:cm:EN] BET1,PEE.N THE OF OAKL4N1J AND Page 10 of 14 the "E-Commerce" System. Additionally, the Municipality shall maintain a corresponding depository bank account, with a depository financial institution acceptable to the County, for the receipt of Municipality payments. . 8,5. • The Municipality understands that the current electronic check processing services for the "E-Commerce" System are being handled through ACH Direct Inc. The Municipality agrees that as a condition precedent to County performance of electronic check payment Services under this Contract that the Municipality shall establish and maintain an agreement for electronic check processing services with the entities currently providing electronic check processing services for the "E-Commerce" System. Additionally, the Municipality shall maintain a corresponding depository bank account, with a depository financial institution acceptable to the County, for the receipt of Municipality payments. • 8,6, The Municipality understands and agrees that the County's Services under this Contract are possible, in part, because of services provided by PayPal Inc., Elavon Inc. and ACH Direct, Inc. The Municipality agrees that neither it nor any Municipality Agent shall act or fail to act, either directly or indirectly, in such a manner so as to cause any purported breach in any term or condition in any agreement between the County and any third party provider of any goods or services underlying the County's ability to provide services under this Contract. 8,7. In the event the County enters into an agreement for credit card or electronic check payment processing services with entities other than those providing these services at the time of the execution of this Contract, the Municipality agrees that as a condition precedent to continued County pe rformance of Services under this Contract that the Municipality shall establish and maintain an agreement for payment processing services with the entities providing those services for the ``E- Commerce" System at that time. The Municipality further agrees to provide the County with affnecessary bank account and routing numbers to give effect to this Contract. §9. INDEPENDENT CONTRACTOR The Parties agree that at all times and for all purposes under the terms of this Contract, the County's and/or any and all County Agents' legal status and relationship to the Municipality shall be that of an Independent Contractor. Except as expressly provided herein, each Party will be solely responsible for the acts of its own employees, Agents, and servants during the term of this Contract. No right or benefits arising out of an employer/employee relationship, either express or implied, shall arise or accrue to either Party as a result of this Contract. §10. PRIORITIZATION OF COUNTY RESOURCES COUNTY The Municipality acknowledges and agrees that this Contract does not, and is not i ntended to, create either any absolute right in favor of the Municipality, or any correspondent absolute duty or obligation upon the County, to guar antee that any specific number(s) or classification of County Agents will be present on any given day to provide County services to the Municipality. §11. INDEMNIFICATION The Municipality shall not be obligated to pay any portion of any court ordered judgment or award to a third party for which a court has determined that the County and/or any County Agent was solely negligent or at fault. However, the Municipality agrees to, indemnify and hold the County and/or any County Agent harmless from and against any and all Claim(s) which are imposed upon, incurred by, or asserted against the County and/or any County Agent by any Municipality Agent under any E-COMMERCE SERVICES ACREENIENT BETWEEN THE COUNT` OF OAKLAND AND Pay 11 of 14 circumstances or by any person which are based upon, result from, or arise from, or are in any way related to any alleged error, mistake, negligence or intentional act(s) or omission(s) by the Municipality and/or any Municipality Agent, including, but not limited to: (a) any alleged breach of legal duty to any person by the Municipality and/or any Municipality Agent; (b) any alleged failure by the Municipality or any Municipality Agent to comply with any Municipality duty or obligation in this Contract; and/or (e) any other Claim(s) based in any way upon any Municipality or Municipality Agent's services, buildings, equipment, or any other event, occurrence, duty, or obligation related or attendant thereto, §12 CANCELLATION OR TERMINATION OF THIS CONTRACT Except as follows, and notwithstanding any other term or provision in any other section of this Contract, either Party, upon a minimum of sixty (60) calendar days written notice to the other Party, may cancel and/or completely terminate this Contract for any reason, including convenience, without incurring any penalty, expense, or liability to the other Party. The effective date for any such termination is to be clearly stated in the notice. 12.1. At 5:00 p.m. on the effective date of the eancell a:ion of this Contract all Municipality and/or County obligations under this Contract, except those rights and obligations expressly surviving cancellation as provided for in this Contract, shall end. 12.2. The Municipality understands and agrees that the County's ability to provide the Services contemplated in this Contract depend upon current contractual relationships between the C minty and third party software and credit card and electronic check processing companies, and that if for any reason any such underlying third party contractual relationships should terminate, that the County's obligation to provide any Services under this Contract shall also end, immediately, and notwithstanding any minimum notice requirement contained in this Contract. 12.3. The Municipality agrees that any and all Municipality obligations, including, but not limited to, any and all indemnification and hold harmless promises, waives of liability, record-keeping requirements, any Municipality payment obligations to the County, and/or any other related obligations provided for in this Contract with regard to any acts. occurrences, events, transactions, or Claim(s) either occurring or having their basis in any events or transactions that occurred before the cancellation or completion of this Contract, shall survive the cancellation or completion of this Contract. §13. EFFECTIVE DATE, CONTRACT APPROVAL, AND AMENDMENT The Parties agree that this Contract, and/or any subsequent amendments thereto, shall not become effective prior to the approval by resolution of the Oakland County Board of Commissioners and the Municipality Governing Body. The approval and terms of this Contract, and/or any possible subsequent amendments thereto. shall be entered in the official minutes and proceedings of both the Oakland County Board of Commissioners and the Municipality Governing Body and shall also be filed with the office of the Clerk of the County and the Clerk of tne Municipality. §14. CONTRACT AMENDMENTS The Parties agree that this Contract, and/or any possible subsequent amendments, shall be filed with the Michigan Secretary of State and this Contract, and/or any possible subsequent amendments, shall not become effective prior to this required filing with the Secretary of State. The C-CO•IMERCE SERVICES .f.,CPMEN1 BETWEEN THE COUN7Y CT OAKLAND AND •=.•age 12 of 14 Parties agree that except as expressly provided herein, this Contract shall not be changed, supplemented, or amended, in any manner, except as provided for herein, and no other act, verbal representation, document, usage or custom Shall be deemed to amend or modify this Contract in any manner. Any modifications, amendments, recessions, waivers or releases to this Contract must be in writing and agreed to by both Parties. The modification, amendment, recession waiver or release shall be signed by an expressly authorized Municipality Agent and by a County Agent authorized by the Oakland County Board of Commissioners. §15. NO THIRD-PARTY BENEFICIARIES Except as expressly provided herein for the benefit of the Parties (i.e., County or Municipality), this Contract does not, and is not intended to, create, by implication or otherwise, any direct or indirect obligation, duty, promise, benefit, right to be indemnified (Le., contractually, legally, equitably, or by implication) and/or any right to be subrogated to any Party's rights in this Contract, and/or any other right of any kind, in favor of any person, including, but not limited to, any County Agent or Municipality Agent or any "E-Commerce" Customer, any "E-Commerce Customer's legal representative, any organization, any alleged unnamed benefle iary or assignee, and/or any other person. §16. CONSTRUED AS A WHOLE The language of all parts of this Contract is intended to and, in all cases, shall be construed as a whole according to its fair meaning, and not construed strictly for or against any party. As used in this Contract, the singular or plural number, possessive or nonpossessive shall be deemed to include the other whenever the context so suggests or requires, §17. CAPTIONS The section headings or titles and/or all section numbers contained in this Contract are intended for the convenience of the reader and not i ntended to have any • substantive meaning and are not to be interpreted as part of this Contract. §18. NOTICES Except as otherwise expressly provided for herein, any and all correspondence, invoices, and/or any other written notices required, permitted or provided for under this Contract to be delivered to either Party shall be sent to that Patty by first class mail. All such written notices, including any notice canceling or terminating this Contract as provided for herein, shall be sent to the other Party's signatory to this Contract, or that signatory's successor in office, at the addresses shown in this Contract. All correspondence or written notices shall be considered delivered to a Party as of the date that such notice is deposited with sufficient postage with the U.S. Postal Service. §19, WAIVER OF BREACH The waiver of a breach of any provision of this Contract shall not operate or be construed as a waiver of any subsequent breach. Each and every right, remedy and power granted to either party or allowed it by law shall be cumulative and not exclusive of any other. §20. FORCE iV1AJEURE (Events Beyond The Parties' Control) Notwithstanding any other term or provision of this Contract, neither Party shall be liable to the other for any failure of performance hereunder if such failure is due to any cause beyond the reasonable control of that Party and that Party cannot reasonably accommodate or mitigate the effects of any such cause. Such cause shall include, without limitation, acts of God, fire, explosion, vandalism, any law, order, regulation, direction, action, or request of the United States government or of any other government, national emergencies, insurrections, riots, wars, strikes, lockouts, work stoppages, or other labor difficulties, or the failure of any underlying contractual arrangement with any anticipated third -party provider of goods, services, software, including any condition precedent necessary to E-COMMERCE SERVICES ACREEMENT BETWEEN THE COUNTY OF i;AKLAND AND 1:';w 13 Of 1 4 implement this Contract. Reasonable notice shall be given to the affected Party of any such event. The Municipality is expected, through alternative temporary or emergency service arrangements, to continue any Municipality obligations imposed by any applicable Federal or State Law or Local Ordinance. §21. ENTIRE CONTRACT This Contract, consisting of a total of fourteen (14) pages, sets forth the entire agreement between the County and the M unicipality and fully supersedes any and all prior agreements or understandings between them in any way related to the subject matter hereof. It is further understood and agreed that the terms and conditions herein are contractual and are not a mere recital and that there are no other agreements. understandings, contracts, or representations between the County and the Muni cipality in any way related to the subject matter hereof, except as expressly stated herein. This Contract shall not be changed or s upplemented orally and may be amended only as otherwise provided herein. For and in consideration of the mutual assurances, promises, acknowledgments, • warrants, representations, and agreements set forth in this Contract, and for other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the undersigned hereby execute this Contract on behaif of the Parties, and by doing to legally obligate and bind the Parties to the terms and conditions of this C ontract. IN WITNESS WHEREOF, (The Chief Executive Officer of the Municipality) hereby acknowledges that is authorized to execute this Contract on behalf of the • Municipality and hereby accepts and binds the M unicipality to the terms and conditions of this Contract. EXECUTED: DATE: Municipality Chief Executive WITNESSED: DATE: Municipality Clerk IN WITNESS WHEREOF, Bill Bullard, Jr., Chairperson, Oakland County Board of Commissioners, hereby acknowledges that he has been authorized by a resolution of the Oakland County Board of Commissioners, a certified copy of which is attached, to execute this Contract on behalf of Oakland County, and hereby accepts and binds Oakland County to the terms and conditions of this Contract. EXECUTED: DATE: Bill Bullard, Jr., Chairperson Oakland County Board of Commissioners WITNESSED: DATE: Ruth Johnson, Clerk/ Register of Deeds County of Oakland E-COVIMER.CE SERVICES ACREEMENT BETWEEN THE co 1,17--r OF OAKLAND AND Page 14 of 14 Resolution #08134 July 17, 2008 The Chairperson referred the resolution to the Finance Committee. There were no objections. FISCAL NOTE (MISC. #08134) July 31, 2008 BY: FINANCE COMMITTEE, MIKE ROGERS, CHAIRPERSON IN RE: DEPARTMENT OF INFORMATION TECHNOLOGY - E-COMMERCE AGREEMENT WITH INTERESTED LOCAL CITIES, VILLAGES AND TOWNSHIPS TO THE OAKLAND COUNTY BOARD OF COMMISSIONERS Pursuant to Rule xi:-C of this Board, the Finance Committee has reviewed the above referenced resolution and finds: 1. The Department of Information Technology is requesting approval of an E-Commerce Services agreement between Oakland County and interested County municipalities. 2. The E-Commerce system will offer constituents the convenience of using credit card or electronic check for the payment of Municipal products and services via the Internet website or Interactive Voice Response unit. 3. Nineteen Municipalities continue use of the County's PayLocalTaxes.com website and have expressed interest in entering into such an agreement to expand the use of the County's E-Commerce system to other Mun:.cipal services. 4. The additional revenue generated from agreements is unknown at this time; however, the County Executive Recommended Budget for Information Technology Fund FY 2009 & FY 2010 includes an increase in Access Oakland revenue due to anticipated growth in the overall volume of on-line transactions. 5. No budget amendment is recommended at this time. FINANCE COMMITTEE FINANCE COMMITTEE Motion carried unanimously on a roll call vote with Rogers, Potter and Woodward absent. FA/0 F Resolution #08134 July 31, 2008 Moved by Rogers supported by Nash the resolutions (with fiscal notes attached) on the Consent Agenda be adopted (with accompanying reports being accepted). AYES: Burns, Coleman, Coulter, Crawford, Douglas, Gershenson, Gingell, Gosselin, Gregory, Greimel, Hatchett, Jacobsen, Kowall, Long, Middleton. Nash, Potter, Potts, Rogers, Scott, Spector, Woodward, Zack, Bullard. (24) NAYS: None. (0) A sufficient majority having voted in favor, the resolutions (with Viso notes attached) on the Consent Agenda were adopted (with accompanying reports being accepted). - I HERBY APPROVE TIIE FOREGOING RESOLUTION STATE OF MICHIGAN) COUNTY OF OAKLAND) I. Ruth Johnson, Clerk of the County of Oakland, do hereby certify that the foregoing resolution is a true and accurate copy of a resolution adopted by tne Oakland County Board of Commissioners on July 31, 2008, with the original record thereof now remaining in my office. In Testimony Whereof, I have hereunto set my hand and affixed the seal of the County of Oakland at Pontiac, Michigan this 31st day of July, 2008. Gal t Ruth Johnson, County Clerk