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CR 2000-60 Lease Agreement With Hennepin County For Election Equipment . March 27,2000 Council Report 2000-60 LEASE AGREEMENT WITH HENNEPIN COUNTY FOR ELECTION EQUIPMENT Proposed Action Staff recommends adoption of the following motion: Move to authorize the Mavor and City Manaqer to enter into an aqreement to lease election equipment from Hennepin County. This action will allow the City of Hopkins to obtain new election at no cost to the City with a maintenance agreement that will be at a much lower cost than we are now paying Overview In October and November of 1997, Council received updates from staff concerning the replacement of election equipment. At that time, Hennepin County issued bonds to cover the cost of furnishing new election equipment to all precincts in Hennepin County. In the spring of 1998, Council authorized the City Manager to accept the general concept of Hennepin County's purchase of new election equipment for cities, using city- owned equipment as trade in on the new equipment. Primary Issues to Consider . What will we get? · What will it cost us? . Who pays for maintenance? . What are the benefits · Has the City Attorney reviewed the contract? SupportinQ Information . Copy of the Lease Agreement Financial Impact: $ _none_Budgeted: Related Documents (CIP, ERP, etc.): Notes: Y/N N Source: - Council Report 2000-60 Page 2 . What will we get? Hennepin County will have Election System and Software deliver eleven new voting machines with new ballot boxes, a hard cover carrying case and a soft cover carrying case. At this time, we have eight precincts and three back-up machines. . What will it cost us? The Lease Agreement requires the City of Hopkins to convey the equipment that we now own to Hennepin County. If we want to retain any of the machines that we now own, we can pay Hennepin County $100 in lieu of the machine. . Who pays for maintenance? Hennepin County will negotiate the maintenance agreement and pay the vendor. We in turn will pay Hennepin County for the maintenance. For the first two years, we will pay an annual fee of $125 per machine. That is a total annual payment of $1,375. The agreement is renewed by Hennepin County every two years. A 3% cap has been set on the renewal. The contract cannot increase more than 3% every two years. . What are the benefits There are several benefits. Because the County is purchasing so many machines, the initial price is much lower than we could purchase them for. The same is true of the maintenance agreement. We were paying around $3,000 for maintenance in 97, 98 and 99. Because of the renewal cap set in the original agreement, we will be paying approximately $1600 for the maintenance in 2010, a little more than one half of what we are paying now. We were budgeting for the replacement of the equipment in 2000 in our equipment replacement fund. That expenditure will no longer be necessary. . Has the City Attorney reviewed the contract? The City Attorney has reviewed the contract and has approved of it. Alternatives 1. Authorize the Mayor and City Manager to enter into an agreement with Hennepin County to lease the election equipment. 2. Do not authorize the Mayor and City Manager to enter into an agreement with Hennepin County to lease the election equipment. Staff recommends alternative one. . Agreement No. . A08070 HENNEPIN COUNTY/CITY OF HOPKINS LEASE AGREEMENT THIS AGREEMENT, made by and between the COUNTY OF HENNEPIN and the CITY OF HOPKINS, both political subdivisions of the State of Minnesota, hereinafter referred to as the "County" and the "City" respectively. For purposes of this Agreement, the address of the County is A2300 Government Center, Minneapolis, Minnesota 55487 and the address of the City is 1010 First Street South, Hopkins, Minnesota 55343. ' WITNESSETH WHEREAS, the Hennepin County Board of Commissioners in Resolution Number 99-6- 426 authorized the purchase of election equipment (hereinafter "Election Equipment") for a countywide optical scan voting system, election hardware and services through the State of Minnesota Cooperative Purchasing Agreement; and WHEREAS, the County pursuant to Minn. Stat. S 3838.145, Subd. 9 may transfer property to the City for its use; and . WHEREAS, the County desires to lease new Election Equipment to the City for use in all City elections. NOW THEREFORE, in consideration of the mutual undertakings and agreements hereinafter set forth, the County and the City agree as follows: Section I SCOPE OF AGREEMENT 1.1 The County hereby leases to the City at the cost identified below and subject to the terms and conditions of this Agreement, and the City hereby agrees to lease from the County Election Equipment identified as: one (1) Modell 00 Optical Scan Precinct Count Unit (including two (2) PCMIA memory cards, one (1) Model 100 metal ballot box, one (1) Model 100 hard cover carrying case, and one (1) Model 100 soft cover carry case) for each precinct contained within the City. The County may additionally lease to the City and the City may lease from the County one (1) Model 100 Optical Scan Precinct Count Unit and related items identified above for each backup Optech HIP Precinct Count Unit transferred to the County by the City for trade-in value. . . . - Section 2 OWNERSHIP 2.1 The City acknowledges that the County owns the Election Equipment and that the City is authorized to use said Election Equipment for official election related purposes. Use of the Election Equipment for any other purpose is strictly prohibited absent express written consent of the County. 2.2 The City acknowledges and agrees that the Election Equipment may contain proprietary and trade secret information that is owned by Election Systems and Software (ESS) and is protected under federal copyright law or other laws, rules, regulations and decisions. The City shall protect and maintain the proprietary and trade secret status of the Election Equipment. Section 3 HANDLING OF EQUIPMENT AND INDEMNIFICATION 3.1 The City shall be responsible for the Election Equipment while it is in the City's custody. The City either through insurance or a self-insurance program shall be responsible for all costs, fees, damages and expenses including but not limited to personal injury, storage, damage, repair and/or replacement of the Election Equipment while this contract is in effect, consistent with the City's defense and indemnity obligations contained in Section 5.6 herein. Section 4 TERM, TERMINA nON 4.1 The City and the COlmty agree that this Agreement is in effect during the period commencing upon signature by the County and terminating when the City and County mutually agree that the equipment will no longer be used for the City's elections, unless terminated sooner by either party with cause upon seven (7) calendar days' written notice to the other. Section 5 OTHER TERMS AND CONDITIONS 5.1 No Waiver. No delay or omission by either party hereto to exercise any right or power occurring upon any noncompliance or default by the other party with respect to any of the terms of this Agreement shall impair any such right or power or be construed to be a 2 waiver thereof unless the same is consented to in writing. A waiver by either of the parties hereto of any of the coveriants, conditions, or agreements to be observed by the other shall not be construed to be a waiver of any succeeding breach thereof or of any covenant, condition, or agreement herein contained. All remedies provided for in this Agreement shall be cumulative and in addition to, and not in lieu of, any other remedies available to either party at law, in equity, or otherwise.. 5.2 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Minnesota. 5.3 Entire Agreement. This Agreement constitutes the entire agreement between the parties, and there are no understandings or agreements relative hereto other than those that are expressed herein. No change, waiver, or discharge hereof shall be valid unless in writing and executed by both parties. 5.4 No Assignment. Neither party shall assign, sublet or transfer this Agreement, either in whole or in part, without the prior written consent of the other party, and any attempt to do so shall be void and of no force and effect. 5.5 THE CITY AGREES THAT THE COUNTY IS FURNISHING THE ELECTION EQUIPMENT ON AN "AS IS" BASIS, WITHOUT ANY SUPPORT WHATSOEVER, AND WITHOUT REPRESENTATION OR ANY EXPRESS OR IMPLIED WARRANTIES, OTHER THAN THOSE PROVIDED BY ESS, INCLUDING BUT NOT IN ANY MANNER LIMITED TO, FITNESS FOR PARTICULAR PURPOSE, MERCHANT ABILITY OR THE ACCURACY AND COMPLETENESS OF THE ELECTION EQUIPMENT. . THE COUNTY'S SOLE LIABILITY AND THE CITY'S EXCLUSIVE REMEDY FOR ANY SUBSTANTIAL DEFECT WHICH IMP AIRS THE USE OF THE ELECTION EQUIPMENT FOR THE PURPOSE STATED HEREIN SHALL BE THE RIGHT TO TERMINATE THIS AGREEMENT. THE COUNTY DOES NOT WARRANT THAT THE ELECTION EQUIPMENT WILL BE ERROR FREE. THE COUNTY DISCLAIMS ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, RESPECTING THIS AGREEMENT OR THE ELECTION EQUIPMENT. 5.6 In no event shall the County be.1iable for actual, direct, indirect, special, incidental, consequential damages (even if the County has been advised of the possibility of such damage) or loss of profit, loss of business or any other financial loss or any other damage arising out of performance or failure of performance of this Agreement by the County. The County and the City agree each will be responsible for their own acts and omissions under this Agreement and the results thereof to the extent authorized by law and shall defend, indemnify and hold harmless the other party for such acts. Each party shall not 3 . . . be responsible for the acts, errors or omissions of the other party under the Agreement and the results thereof. The parties' respective liabilities shall be governed by the provisions of the Municipal Tort Claims Act, Minnesota Statutes Chapter 466, and other applicable law. This paragraph shall not be construed to bar legal remedies one party may have for the other party's failure to fulfill its obligations under this Agreement. 5.7 Notice. Any notice or demand shall be in writing and shall be sent registered or certified mail to the other party addressed as follows: To the City: (Name) City of Hopkins 1010 First Street South Hopkins, MN 55343 To the County: Hennepin County Administrator A-2300 Government Center (233) Minneapolis, MN 55487-0233 Copy to: Patrick H. 0' Connor Director, Taxpayer Services Department A-600 Government Center (060) Minneapolis, MN 55487-0060 5.8 Audit Provision. Both parties agree that either party, the State Auditor, or any of their duly authorized representatives at any time during normal business hours, and as often as they may reasonably deem necessary, shall have access to and the right to examine, audit, excerpt, and transcribe any books, documents, papers, records, etc., which are pertinent to the accounting practices and procedures of the other party and involve transactions relating too this Agreement. Such materials shall be maintained and such access and rights shall be in force and effect during the period of the contract and for six (6) years after its termination or cancellation. 5.9 Whereas Clauses. The matters set forth in the "Whereas" clauses on page one of this Agreement are incorporated into and made a part hereof by this reference. 5.10 Survival of Provisions. It is expressly understood and agreed that the obligations and warranties of the City and County hereof shall survive the completion of performance and termination or cancellation of this Agreement. 5.11 Authority. The person or persons executing this Lease Agreement on behalf of the City and County represent that they are duly authorized to execute this Lease Agreement on behalf of the City and the County and represent and warrant that this Lease Agreement is a legal, valid and binding obligation and is enforceable in accordance with its terms. 4 5.12 For use of the Model 100 Optical Scan Precinct County Units, the City shall: a. Pay the County the amount of One Hundred dollars ($100) per Model 100 Optical Scan Precinct Count Unit upon delivery to the City of said equipment; OR b. Convey to the County Optech HIP Precinct Count Units equal in number to the number of Model 100 Precinct Count Units delivered to the City. The City makes no implied or express warranties concerning the equipment, and the County will accept the Optech HIP Precinct Count Units if each is in reasonable working' condition. 5.13 Maintenance Agreement. The County will enter into a Maintenance Agreement with Election Systems & Software, Inc., for maintenance of the City equipment at the expiration of the Warranty Period, determined to be December 31, 2001. The City shall obtain the services furnished by the Maintenance Agreement directly from Election Systems & Software, Inc.. The annual fee for said Maintenance Agreement shall be One Hundred Twenty-five dollars ($125) per unit, and any increase in the fee shall not exceed three percent (3%) of the prior two (2) year Maintenance Agreement with the County. The City shall reimburse the County for the County's out-of-pocket costs in securing the Maintenance Agreement at the time of renewal of said agreement by the County. Payment by the City shall be made within thirty-five (35) days of receipt of invoice. . 5.14 Program Service. The County shall, without charge, provide programming services prior to each time the City uses the Election Equipment. Service for the accumulation of election results may be made available at the discretion of the County. 5.15 Inspection and Return of Equipment. The County shall have the right to enter into and upon the premises where the Election Equipment is located for the purposes of inspecting the same or observing its use. On an annual basis, during the term of this Agreement, the City shall comply with the County's request for verification of Election Equipment inventory. Upon termination of this Agreement, the city shall forthwith deliver the Election Equipment to the County or its designee, complete and in good order and working condition. The City shall be responsible for all costs, including but not limited to shipping, related to the repair or replacement of lost, stolen, destroyed or damaged Election Equipment. THIS PORTION OF PAGE INTENTIONALLY LEFT BLANK . 5 ". . . COUNTY BOARD APPROVAL CITY, having signed this contract, and the Hennepin County Board of Commissioners having duly approved this contract on the 3rd day of August, 1999, and pursuant to such approval, the proper County officials having signed this contract, the parties hereto agree to be bound by the provisions herein set forth. Approved as to form COUNTY OF HENNEPIN STATE OF MINNESOTA By: Chair ofIts County Board Assistant County Attorney Date: And: Assistant/County Administrator Approved as to execution ATTEST: Deputy/Clerk of County Board Assistant County Attorney Date: CITY OF HOPKINS Approved as to form By: Mayor By: City Clerk/City Manager City Attorney Date: 6