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HomeMy WebLinkAboutResolutions - 2008.07.31 - 9477MISCELLANEOUS WSOLUTION #08135 BY: General Govemmait Committee, Christine A. Long, Chairperson 1N RE: DEPARTMENT OF INFORMATION TECHNOLOGY — CLEMIS E-COMMERCE AGREEMENT WITH INTERESTED COURTS To the Oakland County Board of Commissioners Chairperson, Ladies and Gentlemen: 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 each Michigan District Court pursuant to the laws of the State of Michigan (hereafter, the "State"); including, but not limited to, the Revised Judicature Act of 1961 (MCL 600.101, et seq.) is required to receive and collect fines, fees, and costs for civil infractions committed within its jurisdiction, and WHEREAS the Oakland County Board of Commissioners approved a revised Access Oakland Master Fee Structure in Miscellaneous Resolution #03279 dated October 16, 2003 which included a pricing schedule for the payment of tickets, tax receivables and delinquent taxes 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 1 2007 which expanded the Master Fee Structure to include an electronic check fee; and WHEREAS, the Department of Information Technology has developed an "E-Commerce" system which the Department can make available to all District Courts to afford persons the convenience of utilizing an internet based, credit card or electronic check payment option to pay fines, fees and costs for civil infractions, and WHEREAS, the state law allows the County to provide such services in conjunction with a Court pursuant to an agreement between the County and the Court; and WHEREAS, an agreement has been drafted (as attached) by the County's Corporation Counsel; and WHEREAS District Courts have expressed an interest in entering into an agreement with the County to use the County's "E-COMMERCE" services. NOW THEREFORE BE IT RESOLVED that the Oakland County Board of Commissioners hereby approves entering into the attached CLEMIS E-COMMERCE SERVICES AGREEMENT (the "Agreement," copy attached and incorporated herein) with interested Court upon the terms and conditions stated in this Agreement: BE IT FURTHER RESOLVED that upon receipt of an executed CLEMIS E-COMMERCE SERVICES AGREEMENT and all other required assurances and documentation from any Courts, the Board of Commissioner's Chairperson is authorized to sign and finalize this Agreement with the Court on behalf of the County. BE IT FURTHER RESOLVED that upon receipt of an executed Agreement from any interested Court, and any other Court assurances and documentation required in the Agreement, the Oakland County Clerk shall obtain the Board of Commissioner's 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 the Oakland County Clerk's Office. Chairperson, on behalf of the General Government Committee, I move adoption of the foregoing resolution. GENERAL GOVERNMENT COMMITTEE .&&A L L a./ GENERAL GOVERNMENT COMMITTEE VOTE: Motion carried unanimously on a roll call vote with Suarez and Greimel absent. CLEMIS E-COMMERCE SERVICES AGREEMENT This CLEMIS 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"), arid the ( District Court No Name) a division of Michigan's one court of justice whose address is: (Court Address) , Michigan (Court Zip) (hereafter, the Court"). In this Contract, either the County and/or the Court may also be referred to individually as a "Party" or jointly as "Parties." INTRODUCTORY STATEMENTS A. . The Court, pursuant to the laws of the State of Michigan (hereafter, the "State"), including, but not limited to, the Revised Judicature Act of 1961 (MCL 600.101 1 et seq.) is required to collect fines, fees, and costs for civil infractions committed within its jurisdiction. B. The County has developed an E-Commerce program that permits persons to pay fines, fees, and costs for civil infractions by credit cards or electronic checks over the Internet. C. The Court has accepted the County's offer to use the E-Commerce Program and has requested that the County provide "Information Technology Department Assistance Services" (hereafter "Services") described and defined below, and, in return will reimburse the County as provided for in this Contract. NOW, THEREFORE, in consideration of these premises and the mutual promises, 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 County and the Court agree as follows: §1. DEFINED TERMS In addition to the terms defined above, t the following words and expressions when printed with the first letter capitalized as shown herein, whether used in the singular or plural, nominative or possessive, and/or either with 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 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. E-COMMERCE SERVICES AGREEMENT BETWEEN THE COUNTY OF OAKLAND AND Page Iof 8 1.1. 1.2. Information Technology Department Personnel" shall be defined as a specific subset of County Agents 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. 1.3. "Court Agent" or "Court Agents", shall be defined to include any and all Court officers, elected officials, 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. No County Agent shall be deemed a Court Agent and conversely, no Court Agent shall be deemed a County Agent. "Court Agent'' shall also include any person who was a Court 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 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 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, 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 Court, including any Court Agent or any E-Commerce Customer under or in connection with this Contract or that 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 Customers" shall be defined as any and all persons who admit responsibility for a civil infraction and pay or attempt to pay the fine assessed by the Court pursuant to State law or Local Ordinance, via the Internet. §2. COUNTY INFORMATION TECHNOLOGY DEPARTMENT SERVICES The Parties agree that the complete scope of any and all County Information Technology Department Assistance Services shall be as described and limited in the following subsections. 2.1.1. The County will provide, host and maintain an "E-Commerce" System Internet connection where E-Commerce Customers can pay fines due on civil infractions, by credit card or electronic check. 2.1.2. The County shall maintain and support, at no cost to the Court, all transmission services and Internet service provider services necessary E-COMMERCE SERVICES AGREEMEN1 BETWEEN THE COUNTY OF OAKLAND AND Page 2 of to maintain the "E-Commerce" System and allow the processing of current fine payments via the Internet, 2.1.3. The County shall provide all technical support with respect to E- Commerce Customer questions regarding the payment procedures. However, the County but shall refer all questions regarding the amount of fines due or owing directly to the Court. 2,1.4. The County shall provide the Court with a secondary Website, password protected, where the Court can issue E-Commerce Customer credits, including but not limited to refunds, as may be required and view daily, weekly, and monthly transactions processed through the County's 'E- Commerce" system. 2,1.5. The County shall secure and protect customer data according to its contractual obligations and reasonable business standards and practices. 2.1.6. The County shall be responsible for the cost of software licenses required to carry out the terms of this contract. §3. TERM OF CONTRACT The term of this Contract shall begin on the effective date of this Contract, as provided herein, and shall continue until terminated or cancelled as provided in Section §11 of this Contract. Any and all Services otherwise provided to the Court prior to the effective date of this Contract, shall be subject to the terms and conditions provided for herein. §4, NO TRANSFER OF COURT LEGAL OBLIGATIONS TO COUNTY This Contract does not, and is not intended to, transfer, delegate, or assign 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 Court under any applicable Laws, Ordinances or Court Rules to the County. §5, NO WAIVER OF GOVERNMENTAL IMMUNITY Notwithstanding any other term or condition in this Contract, 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 for that Party and/or any of that Party's Agents. §6. FINANCIAL ARRANGEMENTS TO REIMBURSE THE COUNTY FOR THE "E- COMMERCE" SERVICES 6.1. In order to avail themselves of the convenience of the "E-Commerce" Service, E- Commerce Customers shall be required to pay, in addition to their payment of current fines, an additional "Convenience Fee," This "Convenience Fee" shall be added to the amount an E-Commerce Customer remits to the Court for the payment of any current fine and shall be deposited along with any fine payment into the designated Court bank account. 6.2. The "Convenience Fee" for payment by credit card or electronic check charged to any E-Commerce Customer shall be in an amount as either now established, by the Oakland County Board of Commissioners (MISCELLANEOUS RESOLUTION E-cOMERGE SERVICES AGREEMENT BETWEEN THE COUNTY OF OAKLAND AND Page 3 of 8 #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. Currently the "Convenience Fee" for credit card payment of a fine of $200.00 is $8.25 and the "Convenience Fee" for payment by electronic check is $2.50. 6.3. Except as provided below, the Court shall remit and pay to the County any and all moneys and amounts received, deposited, or transferred into any Court depository bank account as a "Convenience Fee" charged to or paid by any E- Commerce Customer for use of the "E-Commerce" Service. 6.3.1. From each and every "Convenience Fee' received by the Court for use of the "E-Commerce" Service, and due and payable to the County, the County will deduct the actual amount, which shall not exceed the amount of the "Convenience Fee," the Court was charged as a "Merchant Service Fee" (currently approximately 1.8% of the total credit card or electronic check transaction amount paid by the E-Commerce Customer) by the Court's third party "payment processing company" and generate and mail an invoice for the amount to the Court within 15 days of the end of every quarter. The end of a quarter shall 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 Court for the basic cost and expense of transferring E- Commerce Customers funds into the Court depository bank account. They do not include any other costs or expenses that may be incurred by the Court in conjunction with "E-Commerce" Services including, but not limited to, any fines, penalties, interest, credit card "chargebacks" and/or any other possible costs or expenses incurred by the Court under its contract to the Court's third party "payment processing company". 6.4, The Court will pay by check, payable to the County, or Electronic Fund Transfer to the County all amounts due and owing the County within thirty (30) calendar days following receipt of every quarterly invoice. §7. LIABILITY The County shall not be liable to the Court and/or E-Commerce Customer for any and all Claim(s), except as otherwise expressly provided for in this Contract. 7.1. 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 or nature whatsoever, in favor of the Court, and/or any Court Agents, or any E- Commerce Customer, or any other person or entity; or that the County's performance under this Contract will result in any specific monetary benefit or efficiency, or increase in any revenue for the Court. 7.2. In the event of any alleged breach, wrongful termination, and/or any default of any term or condition of this Contract neither Party shall be liable to the other 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 to meet any obligation under any applicable State Laws, Local Ordinances or any other economic benefit or harm that the Party E-COMMERCE SERVICES AGREEMENT BETWEEN THE COUNTY OF OAKLAND AND Page 4 tlf may have realized, but for any alleged breach, wrongful termination, default and/or cancellation of this Contract §8. COURT AGENTS AND COOPERATION WITH THE COUNTY The Court shall be solely and exclusively responsible for ensuring that all Court Agents fully cooperate with Information Technology Department Personnel in the performance of all County Services under this Contract. 8.1. The Court agrees that, as a condition precedent to County performance of credit card payment Services under this Contract, the Court shall establish and maintain an agreement for credit card processing services with the entities currently providing credit card processing services for the "E-Commerce" System, PayPal Inc. and EvaIon, Inc. The Court shall maintain a corresponding depository bank account, with a depository financial institution acceptable to the County, for the receipt of Court fines. 8.2. The Court agrees that, as a condition precedent to County performance of electronic check payment Services, the Court shall establish and maintain an agreement for electronic check processing services with the entities currently providing electronic check processing services for the E-Commerce program, ACH Direct, Inc. The Court shall maintain a corresponding depository bank account, with a depository financial institution acceptable to the County, for the receipt of Court fines. 8.3. The County's Services under this Contract are possible, in part, because of services provided by PayPal Inc., EvaIon, Inc., and. ACH Direct Inc. The Court agrees that neither it nor any Court Agent shall act or fail to act, either directly or indirectly, in a manner 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. 8.4. If the County enters into an agreement for credit card or electronic check payment processing services with entities other than those providing these services on the effective date of this Contract, the Court shall, as a condition precedent to continued County performance of Services, establish and maintain an agreement for credit card or electronic check payment processing services with the entities providing such services for the E-Commerce program at that time. The Court shall provide the County with all necessary bank account and routing numbers to give effect to this Contract. §9. INDEPENDENT CONTRACTOR At all times and for all purposes, the County's and/or County Agents' legal status and relationship to the Court 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 liability, 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. INDEMNIFICATION The Court 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 Court agrees to indemnify and hold the County and/or County Agents harmless from and E.COMMERCE SERVICES AGREEMENT BETWEEN THE COUNTY OF OAKLAND AND Page 5 of 8 against any and all Claim(s) imposed upon, incurred by, or ciSSI Led; lthe County dyd.I I and/or County Agents by any Court Agent under any circumstances or by any person based upon, resulting from, or arising from, or in any way related to any alleged error, mistake, negligence or intentional act(s) or omission(s) by the Court and/or any Court Agent. §11. CANCELLATION OR TERMINATION OF THIS CONTRACT Either Party, upon thirty (30) calendar days written notice to the other Party, may cancel and/or 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. At 5:00 p.m. on the effective date of the cancellation, all Court and/or County obligations under this Contract, except those rights and obligations expressly surviving cancellation, shall end. 11.2. The County's ability to provide the Services contemplated in this Contract depends upon current contractual relationships between the County and third party software and credit card and electronic check processing companies. If for any reason one or more underlying third party contractual relationships terminate, the County's obligation to provide any Services under this Contract shall also end, immediately, and without any minimum notice requirement. 11.3. Any and all Court obligations, including, but not limited to, any and all indemnification and hold harmless promises, waivers of liability, record-keeping, requirements, any Court payment obligations to the County, and/or any other related obligations provided for in this Contract that occurred before the cancellation or completion of this Contract, shall survive the cancellation or completion of this Contract. §12. EFFECTIVE DATE, CONTRACT APPROVAL AND AMENDMENT This Contract, and/or any subsequent amendments, shall become effective when signed by the Court and authorized by resolution of the Oakland County Board of Commissioners. The approval and terms of this Contract, and/or any subsequent amendments, shall be entered in the official minutes of the Oakland County Board of Commissioners and shall also be filed with the office of the Clerk of the County. §13. CONTRACT AMENDMENTS 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 Court Agent and by a County Agent authorized by the Oakland County Board of Commissioners. §14, NO THIRD-PARTY BENEFICIARIES 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, 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 Court Agent or any E-Commerce Customer, any E- Commerce Customer's legal representative, any organization, any alleged unnamed beneficiary or assignee, and/or any other person. E-COMMERCE SERVICES AGREEMENT BETWEEN THE COUNTY OF OAKLAND ANU F'age 6 of 8 11.1. §15. CAPTIONS The section headings or titles and/or all section numbers in this Contract are intended for the convenience of the reader and not intended to have any substantive meaning and are not to be interpreted as part of this Contract. §16. NOTICES Any and all correspondence, invoices, or any other written notices required, permitted or provided for under this Contract shall be sent by first class mail. All written , notices, including any notice canceling or terminating this Contract, shall be sent to the other Party's signatory or that Party's successor in office to this Contract, 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. §17. 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. §18. FORCE MAJEURE (Events Beyond The Parties' Control) 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 implement this Contract. Reasonable notice shall be given to the affected Party of any such event, The Court is expected, through alternative temporary or emergency service arrangements, to continue any Court fine collection obligations. §19. ENTIRE CONTRACT This Contract, consisting of a total of pages, sets forth the entire agreement between the County and the Court. It supersedes any and all prior agreements or understandings between them in any way related to the subject matter hereof. The terms and conditions herein are contractual and are not a mere recital. There are no other agreements, understandings, contracts, or representations between the County and the Court in any way related to the subject matter hereof. This Contract shall not be changed or supplemented orally and may be amended only as provided herein. E-COMMERCE SERVICES AGREEMENT BETWEEN THE COUNTY OF OAKLAND AND Page 7 of 8 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 behalf of the Parties, and by doing so legally obligate and bind the Parties to the terms and conditions of this Contract. IN WITNESS WHEREOF, (The Chief Judge of the Court) hereby acknowledges that is authorized to execute this Contract on behalf of the Court and hereby accepts and binds the Court to the terms and conditions of this Contract. EXECUTED: DATE: Chief Judge WITNESSED: DATE: Court Administrator 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-COMMERCE SERVICES AGREEMENT BETWEEN THE COUNTY DE OAKLAND AND Page 8 of 8 ' Resolution #08135 July 17, 2008 The Chairperson referred the resolution to the Finance Committee. There were no objections. FY 2010 FY 2009 i FISCAL NOTE (MISC. #06135) July 31, 2006 BY FINANCE COMMITTEE, MIKE ROGERS, CHAIRPERSON IN RE: DEPARTMENT OF INFORMATION TECHNOLOGY - CLEMIS E-COMMERCE AGREEMENT WITH INTERESTED COURTS TO THE OAKLAND COUNTY BOARD OF COMMISSIONERS Pursuant to Rule XII-C of this Board, the Finance Committee has reviewed the above referenced resolution and finds: 1. The Department of Information Technology requestS approval of a CLEMIS E-Commerce Services Agreement between Oakland County and interested District Courts. 2. The CLEMIS E-Commerce system would allow constituents to utilize an Internet based credit card or electronic check payment option to pay fines, fees, and costs for civil infractions. 3. The approval of CLEMIS E-Commerce agreements would include the implementation of an electronic citation application which allows District Courts the benefit of collecting payments for citations via the Internet through the existing E-Commerce engine. • 4. The minimum fee to be charged for Court/Law Enforcement transactions is $5.50. 5. The fee is intended to cover operating costs and provide a return on investment to the CLEMIS Fund such that the estimated annual revenue is $175,000; which anticipates 25 5t of annual citations being paid through the E-Commerce application. 6. A budget amendment is recommended to be included in the CLEMIS Fund County Executive Recommended Budget for FY 2009 and FY 2010. CLEMIS FUND 53500 Revenue 53500-1080301-116090-635530 Ext Other Rev $175,000 $175,000 53500-1080301-116010-665882 Planned Use Fund Bal($175,000) ($175,000) -0- FINANCE COMMITTEE FINANCE COMMITTEE Motion carried unanimously on a roll cell vote with Rogers, Potter and Woodward absent. I MY APPROVE THE FORMING RESOLUTION ,T/210 Resolution #08135 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, Hatchet( Jacobsen, KowaII. 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 fiscal notes attached) on the Consent Agenda were adopted (with accompanying reports being accepted). 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 the Oakland County Board of Commissioners on July 31,2008, with the original record thereof now remaining ii 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. gat Ruth Johnson, County Clerk