Loading...
HomeMy WebLinkAboutResolutions - 2009.06.11 - 9807MISCELLANEOUS RESOLUTION ; #091 25 June 11, 2009 BY: General Government Committee, Christine Long. Chairperson IN RE: DEPARTMENT OF HEALTH AND HUMAN SERVICES/HEALTH DIVISION — INTERLOCAL AGREEMENT FOR USE OF E-HEALTH FOODS SOFTWARE BETWEEN OAKLAND COUNTY AND THE STATE OF MICHIGAN To the Oakland County Board of Commissioners Chairperson, Ladies and Gentlemen: WHEREAS the Oakland County Department of Health and Human Services/Health Division (OCHD) and the Oakland County Department of Information Technology (OCIT) have developed the E-Health Foods Software for the purpose of enhancing the management of OCHD's food service establishment licensing and inspection responsibilities; and WHEREAS the E-Health Foods Software has been recognized nationally as state of the art system for its intended purpose: and WHEREAS State-wide utilization of the E-Health System will provide shared data availability that will allow increased consistency and coordination between State and Local agencies for records, reports, and inspection and enforcement activities: and WHEREAS Oakland County and the State of Michigan have had discussions regarding allowing the E- Health Foods Software to be modified for use by any Local Public Health Department in the State to allow better sharing of Food Data with the County and with all of the Local Health Departments; and WHEREAS the parties have reached an agreement regarding sharing and modification of the E-Health Foods Software: and WHEREAS the County shall not be charged to utilize a State Developed Health System; and WHEREAS pursuant to the Urban Cooperation Act of 1967, 1967 PA 7, MCL 124.601 et seq., and the Intergovernmental Contracts between Municipal Corporations Act, 1951 PA 35, MCL 1241, et seq., the County and the State desire to enter into an Agreement for the purpose of licensing the E-Health Foods Software system developed and owned by the County to the State, and WHEREAS the legal representation from both the State and Oakland County Corporation Counsel have developed and approved the attached Intergovernmental Agreement which facilitates this transaction. NOW THEREFORE BE IT RESOLVED that the Oakland County Board of Commissioners approves the attached Interlace! Agreement for Use of E-Health Food Software between the County of Oakland and the State of Michigan for a period of five years from the date of execution_ BE IT FURTHER RESOLVED that the Board Chairperson is authorized to execute the Agreement on behalf of Oakland County and thereby accept and bind Oakland County to the terms and conditions of the Agreement, following execution from the State of Michigan. Chairperson, on behalf of the General Government Committee, I move the adoption of the foregoing resolution_ GENERAL GOVERNMENT COMMITTEE GENERAL GOVERNMENT COMMITTEE Motion carried unanimous:y on a roll call vote. AGREEMENT FOR USE OF E-HEALTH FOODS SOFTWARE BETWEEN OAKLAND COUNTY AND THE STATE OF MICHIGAN This Agreement (the "Agreement") is made between Oakland County, a Constitutional and Municipal Corporation, 1200 North Telegraph, Pontiac, Michigan 48341 ("County"), and the State of Michigan through its Department of Agriculture, and its Department of Information Technology ("State"). The County and the State may also be referred to jointly as "Parties". PURPOSE OF AGREEMENT. Pursuant to the Urban Cooperation Act of 1967, 1967 PA 7, MCL 124.501, et seq.. the County and the State enter into this Agreement for the purpose of licensing the E-Health Foods Software system developed and owned by the County to the State. The State intends to develop an application that will allow better sharing of Food Data with the County and with all of the Local Health Departments. The Parties intent is that the State Developed Health System will allow the State and Local Health Departments to share Food Data with each other as well as other food safety data collected by the State. The Parties also intend that the State Developed Health System will provide a means to track statewide health trends. It is the intent of the Parties that the County shall not be charged to utilize a State Developed Health System. In consideration of the mutual promises, obligations, representations, and assurances in this Agreement, the Parties agree to the following: 1. DEFINITIONS. The following words and expressions used throughout this Agreement, whether used in the singular or plural, within or without quotation marks, or possessive or nonpossessive, shall be defined, read, and interpreted as follows. 1.1. A2reement means the terms and conditions of this Agreement and any other mutually agreed to written and executed modification, amendment, or addendum. 1.2. Business Support means assistance provided by the County Health Division, primarily, answering questions, via telephone and e-mail, during County business hours, concerning the use of the E-Health Foods Software. Questions from the State shall be responded to by the County within three (3) business days. It also includes attendance at meetings by County Employees regarding the use of E-Health Software. It does not include participation by the County in meetings or discussion concerning a State Developed Health System. 1.3. County means Oakland County, a Municipal and Constitutional Corporation including, but not limited to, all of its departments, divisions, the County Board of Commissioners, elected and appointed officials, directors, board members, council members, commissioners, authorities, committees, employees, agents, volunteers, and/or any such persons' successors. Page 1 1.4. County Program Enhancements means County developed: 1) new versions of or additions to the E-Health Foods Software which add to or alter the function(s) of the E- Health Foods Software and new modules or products adapted to interface with the E- Health Foods Software; 2) minor corrections to remedy deviations found in the E-Health Foods Software and 3) new versions, improvements or additions to the E-Health Foods Software that improve the operating performance but do not add to or alter the basic function(s). L5. M means any calendar day beginning at 12:00 a.m. and ending at 11:59:59 p.m. 1.6. E-Health Foods Software means the actual copy of all or any portion of County's online and offline foods modules which include complaints and licensing for food establishments and food processors, computer software code, components, object models, programs, and related documents, delivered on any media, including any release provided in source, object, or executable code format(s), including backups, updates, service packs, patches, hot fixes, program fixes, program updates, or merged copies permitted hereunder or subsequently supplied under this Agreement. 1.7. Food Data means all licensing and inspection related information collected for food establishments and food processors 1.8. Local Health Department(s) means a local health department as defined in the Public Health Code, Act 368 of 1978. 1.9. State means the State of Michigan. 1.10. State Developed Program Modifications means State developed: 1) new versions of or additions to the E-Ilealth Foods Software which add to or alter the function(s) of the E- Health Foods Software and new modules or products adapted to interface with the E- Health Foods Software; 2) minor corrections to remedy deviations found in the E-Health Foods Software and 3) new versions, improvements or additions to the E-Health Foods Software that improve the operating performance but do not add to or alter the basic function(s). 1.11. State Developed Health System means an automated system developed by the State for storing, tracking, analyzing and sharing Food Data. 1.12. Technical Support means assistance provided by the County Department of Information Technology, during the County's business hours, in the forin_of telephone and e-mail support related to the functionality of the E-Health Foods Software. Questions from the State shall be responded to by the County within three (3) business days. 2. COUNTY RESPONSIBILITIES. 2.1. The County shall provide the State with its current version of the E-Health Foods Software. The version being licensed is identified in Exhibit I. which is attached and incorporated into this Agreement. Page 2 &HEALTH - INTERLOCAL AGREEMENT 2.2. After this Agreement is executed, the County shall provide the State with up to twenty (20) hours of Technical Support relating to installation and implementation of the E- Health Foods Software by the State. No additional Technical Support shall be required beyond what is specified. 2.3. No more than twice a year the County shall provide the State with a list of County Program Enhancements, if any, developed by County since the prior County Program Enhancement list was given to the State. 2.4. If the State chooses to receive any of the County Program Enhancements the County shall provide these at no cost. However, the County shall not be obligated to provide more than ten (10) hours of Technical Support each time a new list of County Program Enhancements is provided to the State and the State elects to receive items from that list. 2.5. If the State requests additional Technical Support from the County beyond what is provided for and the County agrees to provide such additional Technical Support, the State shall pay the County the then current hourly rate, including the cost of benefits, paid by the County to the person(s) capable of providing such Technical Support. 2.6, After the execution of this Agreement, the County Health Division shall provide the State with up to twenty (20) hours of Business Support, at no cost. It will be at the County's discretion if any additional Business Support can be provided. 3. STATE RESPONSIBILITIES. 3.1. The State intends to launch and support a State Developed Health System to track and share Food Data between the State and Local Health Departments similar to the E-Health Foods Software licensed to it by County. 3.2. The State shall provide the County with access to summary data (i.e. violations, foodbome illnesses, etc.) the State collects and throughout Michigan, at no cost, subject to applicable laws. 3.3. The State shall provide the County with the ability to share County Food Data with the State Developed Health System and have access to the State Developed Health System, at no cost, subject to applicable law. 3.4. No more than twice a year, the State shall provide the County with a list of State Developed Program Modifications, if any, developed by State since the prior State Program Enhancement list was given to the County. 3.5. If the County chooses to receive any of the State Developed Program Modification, the State shall provide and irrevocably license these to the County at no cost. However, the State shall not be obligated to provide more than ten (10) hours of support, from its Information Technology Department, each time a new list of State Developed Program Modifications is provided to the County and the County elects to receive items from that list. Page 3 E-HEALTH - INTERLOCAL AGREEMENT 3.6. The State shall provide the County with meaningful opportunities to provide input and direction on the development of a State Health Developed System. To the maximum extent practical, the State shall permit the County to participate in such discussions by either telephone or other remote means of communication. 4. LICENSE. 4.1. The County grants to the State an irrevocable, royalty-free, Statewide, non-exclusive license to use its E-Health Foods Software to create a State Developed Health System that shall be used, performedli displayed, and made available to Local Health Departments. This license includes County Program Enhancements provided to the State. 4.2. The State may modify, add to, or customize the E-Health Foods Software and create State Developed Program Modifications. The State may claim copyright ownership in all such State Developed Program Modifications. The State grants to the County an irrevocable, royalty-free, non-exclusive license to use and make changes to any of the State Program Modifications without any cost to County. 4.3. The County owns the E-Health Foods Software which is protected by United States laws and applicable international laws, treaties, and conventions regarding intellectual property. All rights not specifically granted in this Agreement are reserved to County. 4.4. The County reserves the right to improve andior make changes in its offerings of its E- Health Foods Software, at any time. 4.5. The State shall retain all County copyright notices on the E-Health Foods Software and any County Enhancements it receives. 4.6. The State may modify the E-Health Foods Software and may combine such with other programs or materials to form a derivative work. The State will own and hold all copyright, trademark, patent and other intellectual property rights in any derivative work, excluding any rights or interest in the E-Health Foods Software other than those granted in this Agreement. Where the State creates derivative works of the E-Health Foods Software the State shall provide the following copyright attribution notice acknowledging the propriety rights of County "Portions of this include intellectual property of Oakland County Michigan and are used under license. Copyright 2009 Oakland County. All rights reserved." For purposes of this section, "derivative works" means a work based upon the E-Health Foods Software. 4.7, The State may provide access to the E-Health Foods Software to any consultant or contractor of the State, provided that the consultant or contractor is using the E-Health Foods Software exclusively for the benefit of State and so long as the consultant agrees to be bound by the terms and conditions of this Agreement. 4.8. The State may install and store copies of the E-Health Foods Software onto electronic storage devices to use in accordance with the terms of this Agreement. Page 4 E-HEALTH - INTERLOCAL AGREEMENT 4.9. The State may make three (3) copies of the E-Health Foods Software for archival purposes or to replace a worn or defective copy during the term of this Agreement. Additionally, the State may make routine computer backups of the E-Health Foods Software and activate a redundant E-Health Foods Software installation for failover operations during the period the primary site is not operational and for use during disaster recovery testing. The redundant E-Health Foods Software installation shall remain dormant except for system updates and support, disaster recovery testing, and updating of databases while the primary site is operational. 4.10. Uses Not Permitted. 4.10.1. Except as otherwise provided in this Agreement, the State shall not sell, rent, lease, sublicense, lend, assign, time-share, or act as a service bureau or act as an application service provider to allow third party access to the E-Health Foods Software or transfer, in whole or in part, access to prior or present versions of the E-Health Foods Software or any County Program Enhancements provided under this Agreement. 4.10.2. The State may not use the E-Health Foods Software, or any derivative works for third party commercial purpose or gain unless the County agrees to such use by signing an amendment to this Agreement. Third party as used in this section means any other entity other than the State or County. 4,10.3. The State shall not use the E-Health Foods Software to transfer or exchange any material where such transfer or exchange is prohibited by copyright or any other law. 4.11. The State understands that the functionality of County's E-Health Foods Software is dependant upon the use of third party software, specifically: Oracle database, Editlet, Topaz and County's credit card module for accepting online payments. The State will obtain its own licenses or develop its own applications to make E-Health Foods Software fully functional. 5. DURATION OF INTERLOCAL AGREEMENT. 5.1. The approval and terms of this Agreement and any amendments will be entered in the official minutes of the County Board of Commissioners. An executed copy of this Agreement and any amendments will be filed with the County Clerk's of Oakland and Ingham County and with the Secretary of State after approval by the Governor. This Agreement will be effective upon the completion of the last such filing. 5.2. Unless extended by mutual, written agreement by both Parties, this Agreement shall remain in effect for five (5) years from the date the Agreement is completely executed by all Parties or until cancelled or terminated by any of the Parties. 5.3. Except as otherwise provided and permitted in this Agreement, if State elects to discontinue use of the License, the State shall advise County in writing and shall de-install or destroy its copies of the E-Health Foods Software kept in any form and execute and deliver evidence of such de-installation or destruction to County. Page 5 E-HEALTH - INTERLOCAL AGREEMENT 6. TERMINATION OR CANCELLATION OF AGREEMENT. 6.1. Either Party may terminate or cancel this Agreement upon thirty (30) days written notice, if: (i) the other Party defaults in any obligation contained in this Agreement and within the thirty (30) day notice period the Party failed to cure such default or failed to take a course of action to cure such default or (ii) for any reason, including convenience. Any notification concerning default must be in writing and clearly state the specific default(s). The effective date of termination and/or cancellation shall be clearly stated in the written notice. Either the Director of the County's Health Division or the Board of Commissioners is authorized to terminate this Agreement for the County. 7. WARRANTIES. 7.1. The County does not warrant that the E-Health Foods Software will meet the State's needs, or that the State's operation of the same will be uninterrupted or error free, or that all nonconformities can or will be corrected. The E-Health Foods Software is provided "as is". THE COUNTY SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF ANY KIND INCLUDING THE WARRANTY OF FITNESS, WARRANTY OF MERCHANTABILITY AND WARRANTY OF NON- INFRINGEMENT. 8. LIMITATION ON LIABLILITY. 8.1. In no event shall either Party be liable to the other for any indirect, special, consequential or incidental damages or lost profits arising out of or related to the Agreement, even if the Party has been advised of the possibility of such damages. The County's sole liability to the State shall be limited to the amount the State is required to pay the County under this Contract or one dollar, whichever amount is less. 8.3. The State shall have no recourse against the County under this Agreement for any damages, costs or losses whatsoever. 9. ASSURANCES. 9.1. Each Party shall be responsible for its own acts and the acts of its employees, and agents, the costs associated with those acts, and the defense of those acts. 9.2. This Agreement does not create any direct or indirect obligation or right to be indemnified (i.e., contractually, legally, equitably or by implication) nor any right to be subrogated to any rights in this Agreement. 9.3. The Parties have taken all actions and secured all approvals necessary to authorize and complete this Agreement. The persons signing this Agreement on behalf of each Party have legal authority to sign this Agreement and bind the Parties. Page 6 E-IIEALTH - INTERLOCAL AGREEMENT 7 1 8 9.4. Each Party shall comply with all federal, state, and local ordinances, regulations, administrative rules, and requirements applicable to its activities performed under this Agreement. 9.5. The County will not be charged a fee to access or share data with the State Developed Health System or any system developed by the State that is based on the E-I-lealth Foods Software unless otherwise required by law. If the Michigan Department of Agriculture requests the Michigan Legislature to access a fee for use of the State Developed Health System, it shall request that the County be exempt from paying the fee. 9.6. The County shall not be required to change its E-Health Foods Software to conform to any software or database or State Developed Health System. 9.7. The County shall be permitted to maintain its own separate E-Health Foods System, even if the State creates a State Developed Health System or other system to track Food Data that is utilized by Local Health Departments, unless otherwise required by law. 9.8. The County agrees to share Food Data with any State Developed Health System utilized by the State. 9.9. Except as provided or permitted in any applicable federal or state statute, code, regulation or rule, order of a court of competent jurisdiction or in this Agreement, the State agrees to use reasonable effort to protect the E.-Health Foods Software, County Program Enhancements and County proprietary information or trade secrets relating to this Agreement from unauthorized access, use, reproduction, distribution or publication. 10. RESERVATION OF RIGHTS, This Agreement does not, and is not intended to waive, impair, divest, delegate, or contravene any constitutional, statutory, and/or other legal right, privilege, power, obligation, duty, or immunity of the Parties. 11. NO EMPLOYEE-EMPLOYER RELATIONSHIP. Nothing in this Agreement shall be construed as creating an employer-employee relationship between County and the State. 12. DELEGATION OR ASSIGNMENT. Neither Party shall delegate or assign any obligations or rights under this Agreement without the prior written consent of the other Party. 13, FORCE MAJEURE. Notwithstanding any other term or provision of this Agreement, 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. Reasonable notice shall be given to the affected Party of any such event. 14. NOTICES. Notices given under this Agreement shall be in writing and shall be personally delivered, sent by express delivery service, certified mail, or first class U.S. mail postage prepaid, and addressed to the person listed below. Notice will be deemed given on the date when one of Page 7 E-HEALTH - INTERLOCAL AGREEMENT the following first occurs: (1) the date of actual receipt; (2) the next business day when notice is sent express delivery service or personal delivery; or (3) three days after mailing first class or certified U.S. mail. 14.1. If Notice is sent to the County, it shall be addressed and sent to: Oakland County Clerk, 1200 North Telegraph Road, Pontiac, Michigan, 48341 and Chairperson of the Oakland County Board of Commissioners, 1200 North Telegraph, Pontiac, Michigan 48341. 14.2. If Notice is sent to the State, it shall be addressed to: State of Michigan Department of Agriculture, Director, Food and Dairy Division, Michigan Department of Agriculture, P.O. Box 30177, Lansing, MI 48909. and Director of Shared Solutions, Department of Information Technology, Romney Bldg, 10 th Floor, 111 S. Capital Ave., Lansing, MI 48913. 14.3. Either Party may change the address and/or individual to which Notice is sent by notifying the other Party in writing of the change. 15. GOVERNING LAW. This Agreement shall be governed, interpreted, and enforced by the laws of the State of Michigan. 16. NO THIRD PARTY BENEFICIARIES. Nothing expressed or implied in this Agreement is intended to confer, nor shall anything herein confer, upon any person other than the Parties and their respective successors or assigns, any rights, remedies, obligations or liabilities whatsoever. 17. ENTIRE AGREEMENT. This Agreement represents the entire agreement and understanding -between the Parties. This Agreement supersedes all other oral or written agreements between the Parties. The language of this Agreement shall be construed as a whole according to its fair meaning, and not construed strictly for or against any Party. Page 8 E-HEALTH - LINTERLOCAL AGREEMENT 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 Agreement on behalf of Oakland County, and hereby accepts and binds Oakland County to the terms and conditions of this Agreement. EXECUTED: DATE: Bill Bullard, Jr., Chairperson Oakland County Board of Commissioners WITNESSED: DATE: The undersigned acknowledges that he/she has read, understood and agrees to the terms and conditions contained in this Agreement. The undersigned represents to have all necessary consents, approvals and full legal right and authority to execute this Agreement. STATE OF MICHIGAN By: Katherine Fedder, Director of Food and Dairy Division Michigan Department of Agriculture State of Michigan, County of The foregoing instrument was acknowledged before me on this day of , 2009, by Katherine Fedder for the Michigan Department of Agriculture on behalf of the State of Michigan. Notary Public in the County of Acting in the County of , State of Michigan. My commission expires: Page 9 E-HEALTIf INTERLOCAL AGREEMENT STATE OF MICHIGAN By: Eric Swanson, Director of Shared Solutions Michigan Department of Information Technology State of Michigan, County of The foregoing instrument was acknowledged before me on this day of , 2009, by Eric Swanson for the Michigan Department of Information Technology on behalf of the State of Michigan. Notary Public in the County of Acting in the County of , State of Michigan. My commission expires: Page 10 E-HEALTH - INTERLOCAL AGREEMENT This Agreement was approved by the Michigan State Administrative Board on: STATE ADMNISTRATWE BOARD: Governor Jennifer M. Granholm, Chairperson State Administrative Board State of Michigan, County of The foregoing instrument was acknowledged before me on this day of , 2009, Governor Jennifer Al Granholm, Chairperson, of the State Administrative Board on behalf of the State of Michigan. Notary Public in the County of Acting in the County of , State of Michigan. My commission expires: Sherry Bond, Secretary State Administrative Board State of Michigan, County of The foregoing instrument was acknowledged before me on this day of ,2009, by Sherry Bond, Secretary, of the State Administrative_Board on behalf of the State of Michigan. Notary Public in the County of Acting in the County of , State of Michigan. My commission expires: 2008-843100000300-83F51B4481-1S0.45-C6CWOEGOOOS045.doc Page 11 E-HEALTH - INTERLOCAL AGREEMENT Resolution #09125 June 11,2009 Moved by Long supported by Zack the resolution be adopted. AYES: Coleman, Coulter, Douglas, Gershenson, Gingell, Gosselin, Greimel, Hatchett, Jackson, Jacobsen, Long, McGillivray, Middleton, Nash, Potter, Potts, Runestad, Schwartz, Scott, Taub, Woodward. Zack, Bullard, Burns, Cabello. (25) NAYS: None. (0) A sufficient majority having voted in favor, the resolution was adopted. I HEREBY APPROVE THE RIM SOLUTION 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 June 11, 2009, 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 11th day of June, 2009. Gat Ruth Johnson, County Clerk