CR 06-015 Election Equip Lease Agree with Henn County
January 30, 2006
Council Report 2006-015
ELECTION EQUIPMENT LEASE AGREEMENT
WITH HENNEPIN COUNTY
Proposed Action
Staff recommends adoption of the following motion: Move to authorize the Mayor and
City Mana~er to enter into an a~reement to lease HA V A election equipment from
Hennepin County.
This action will allow the City of Hopkins to obtain new election equipment 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 2002, the Federal Government passed the Help America Vote Act (HA V A). The
provisions of HA VA are required to be in effect in 2006.
One of the major provisions of HA V A is that people with handicaps would be able to
mark ballots without help and enjoy the same privacy that people without handicaps
enjoy. Assistive voting technology equipment (A VT) is being purchased by Hennepin
County for all the precincts in the County. This is similar to the purchase of the optical
scan voting systems that we currently use. The A VTs will help a voter mark the ballot,
which will then be placed into the optical scan tabulator.
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?
Supporting Information
. Copy of the Lease Agreement
. Copy of Addendum A
. Copy of Attorney's and Hennepin County e-mails
Terry Obermaier, City Clerk
Financial Impact: $_none_Budgeted:
Related Documents (CIP, ERP, etc.):
Notes:
Y/N N
Source:
Council Report 2006-015
Page 2
. What will we get?
Hennepin County will have Election System and Software deliver nine AVT machines.
At this time, we have seven precincts and two back-up machines.
. What will it cost us?
There is no cost to the City for the equipment.
. 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. The table for maintenance that the
City will pay is as follows:
Year 2006 2007 2008 2009 2010 2011 2012
$ 0 $275 $175 $275 $182 $304 $197
. 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.
. Has the City Attorney reviewed the contract?
The City Attorney has reviewed the contract and has two concerns. The first concern is
that the lease has an indefinite term and the City may only terminate for cause. The
second is that the lease requires the City to retain all records related to the lease for a
period ending 6 years after termination of the lease and to make those records available
to the County and State Auditor for inspection.
The equipment will be used for Federal, State, and County elections in the even years. It
may also be used for the City Elections in the odd years. The machines will be used
through out the entire county for the elections in the even years. The City is not
required to use the equipment in the odd years, however, if the City chooses not to use
the equipment in for the City Elections, the City would be required to purchase the
equipment for that election. The HAVA requirement would still be in place.
The record retention requirement is not a problem.
Alternatives
1. Authorize the Mayor and City Manager to enter into an agreement with Hennepin
County to lease the election equipment.
2. Continue the item for more information.
Council Report 2006-015
Page 3
3. 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. A052252
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, MN 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 Hennepin County Board of Commissioners in Resolution
Number 05-564 authorized the purchase of Assisted Voting Technology equipment
(hereinafter "AVT 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 383B.145, Subd. 9 may
transfer property to the City for its use;. and
WHEREAS, the County and the City of Hopkins are parties to an agreement
dated August 3, 1999, and numbered A08070 relating to the lease of Election
Equipment and the County and City desire to terminate that lease agreement and
replace it with this agreement.
WHEREAS, the County desires to lease Election Equipment and AVT Equipment
to the City of Hopkins 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 1
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: nine (9) Model 1 00 Optical
Scan Precinct Count Units (including eighteen (18) PCMCIA memory cards, nine
(9) Model 1 00 metal ballot boxes, nine (9) Model 1 00 hard cover carrying cases,
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and nine (9) Model 100 soft cover carry cases) for polling places contained within
the City..
1.2 The County hereby leases to the City subject to the terms and conditions of this
Agreement, and the City hereby agrees to lease from the County AVT Equipment
identified as: nine (9) AutoMARK Voter Assist Terminals, eighteen (18) 256mb
Flashcard and nine (9) ES&S AutoMARK Tables with adjustable legs for polling
places contained within the City.
1.3 The County and the City hereby rescind Agreement A08070, dated August 3,
1999, and replace that Agreement with this Agreement.
1.4 Subject to the terms and conditions of this Agreement, the parties may agree by
written addendum executed by all the parties to increase or decrease the County
Election and AVT Equipment included within the scope of this agreement.
Hennepin County hereby delegates authority to execute such an addendum to
the County Auditor. The City hereby delegates authority to execute such an
addendum to its City Administrator/Manager.
Section 2
OWNERSHIP
2.1 The City acknowledges that the County owns the Election and AVT Equipment
and that the City is authorized to use said Election Equipment and AVT
Equipment for official election related purposes. Use of the Election and A VT
Equipment for any other purpose is strictly prohibited absent express written
consent of the County Auditor.
2.2 The City acknowledges and agrees that the Election and AVT Equipment may
contain proprietary and trade secret information that is owned by Election
Systems and Software (ES&S) 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 and A VT Equipment.
Section 3
HANDLING OF EQUIPMENT AND INDEMNIFICATION
3.1 The City shall be responsible for the Election and A VT 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 and A VT Equipment while it's in the City's custody
and this contract is in effect, consistent with the City's defense and indemnity
obligations contained in Section 7.6 herein.
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3.2 The City shall be responsible for the transporting of the Election and A VT
Equipment from and to the County. Upon termination of this Agreement, the City
shall forthwith deliver the Election and A VT 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 and AVT
Equipment.
Section 4
TERM, TERMINATION
4.1 The City and the County agree that this Agreement is in effect during the period
commencing upon signature by the County. The City and County agree that this
Agreement will terminate 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
MAINTENANCE
5.1 Maintenance Agreement (M1 00). The County has entered into a Maintenance
Agreement with Election Systems & Software for the maintenance of the Election
Equipment ("Election Equipment Maintenance Agreement"). The City will obtain
the services furnished by the Election Equipment Maintenance Agreement
(Addendum A), which clearly outlines the said coverage of the equipment,
directly from Election Systems & Software, Inc. The annual maintenance fee paid
by the City to the County for said Election Equipment Maintenance Agreement
shall be One Hundred and Twenty-eight dollars ($128) per unit, and any increase
in the fee shall not exceed three percent (3%) of the prior two (2) year Election
Equipment Maintenance Agreement with the County.
5.2 Maintenance Agreement (AVT Equipment). The County will enter into a .
Maintenance Agreement with Election Systems & Software for the maintenance
of the A VT Equipment ("A VT Maintenance Agreement") at the end of the
warranty period, determined to be December 31,2006. The City will obtain the
services furnished by the AVT Maintenance Agreement, which will clearly outline
the said coverage of the equipment, directly from Election Systems & Software,
Inc., the terms of which will be comparable to Addendum A. The annual
maintenance fee paid by the City to the County for said AVT Maintenance
Agreement shall be an amount not to exceed Three Hundred and Ten dollars
($310) 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 County
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will forward a copy of the A VT Maintenance Agreement upon execution with
Election Systems & Software, prior to the expiration of the warranty period.
5.3 The City agrees not to make any repairs, changes, modifications or alterations to
the Election Equipment or AVT Equipment that are not authorized by Hennepin
County and said vendors.
5.4 After reasonable notice, the County shall have the right to enter into and upon
the premises where the Election and AVT 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 and AVT Equipment inventory.
5.5 The City agrees to provide notice to Election Systems & Software of any defects
or malfunctions with the Election and/or AVT Equipment within twenty-four (24)
hours. The City also agrees to provide the County with notice of such
. malfunctions or defects and Election Systems & Software's response within a
reasonable time. The county agrees to track via a log all such equipment
malfunctions.
Section 6
PROGRAMMING AND ACCUMULATION
6.1 Programming. The County will be responsible for programming the M1 00
Optical Scan Election Equipment at no charge to jurisdictions for all races in all
elections.
6.2 Programming Costs. The City is responsible for paying to the County the
programming costs of the A VT Equipment described in paragraph 1.2 at an
amount prorated upon the number of columns devoted to the City's races on the
ballot.
6.3 Results Transmission and Accumulation. The County has invested a
significant amount of resources in equipment that allows the M1 00 Optical Scan
tabulators to electronically transmit election results via wireless technology from
each polling place to a central location and for those results to be accumulated
and posted on the County's website. There is also a significant operational cost
associated with each use of this transmission and accumulation process.
6.4 For Cities with a primary and/or a general election, as described in Minn. Stat. SS
205.065 and 205.07, in the even-numbered years, the County will provide results
transmission and accumulation of results of City races in the primary and general
election at no cost to the City.
6.5 For Cities with a primary and/or a general election, as described in Minn. Stat. SS
205.065 and 205.07, in the odd-numbered years, upon written request by the
city, the County will perform the electronic transmission and accumulation of
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results of City races in the primary and general election, at a cost of $100 per
polling place for the primary, and $100 per polling place for the general election.
The County will not perform the electronic transmission and accumulation of
votes cast in any other City elections.
Section 7
OTHER TERMS AND CONDITIONS
7.1 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 waiver thereof unless the same is consented to in writing.
A waiver by either of the parties hereto of any of the covenants, 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.
7.2 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Minnesota.
7.3 Entire Agreement. It is understood and agreed thafthe entire Agreement
between the parties is contained herein and that this Agreement supersedes all
oral agreements and negotiations between the parties relating to the subject
matter hereof. All items referred to in this Agreement are incorporated or
attached and are deemed to be part of this Agreement. Any alterations,
variations, modifications, or waivers of provisions of this Agreement shall only be
valid when they have been reduced to writing as an amendment to this
Agreement signed by the parties hereto.
7.4 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.
7.5 No Warranty. The City agrees that the County is furnishing the Election and
AVT Equipment on an "as is" basis, without representation or any express or
implied warranties, other than those provided by ES&S, including but not limited
to, fitness for particular purpose, merchantability or the accuracy and
completeness of the Election and AVT Equipment.
The City's exclusive remedy and the County's sole liability for any substantial
defect which impairs the use of the Election and/or A VT Equipment for the
purposes stated herein shall be the right to terminate this agreement
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The County does not warrant that the Election and/or AVT Equipment will be
error free.
The County disclaims any other warranties, express or implied, respecting this
agreement or the Election or A VT Equipment.
7.6 In no event shall the County be liable 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 and shall to the extent authorized by law defend,
indemnify and hold harmless the other party for such acts. Each party shall not
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. Nothing in this Agreement constitutes a
waiver by the City or County of any statutory or common law defenses,
immunities, or limits on liability.
7.7 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:
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. O'Connor
Director, Taxpayer Services Department
A-600 Government Center (060)
Minneapolis, MN 55487-0060
7.8 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 to this Agreement.
Such materials shall be maintained and such access and rights shall be in force
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Agreement No. 1\:052252
COUNTY BOARD APPROVAL
CITY OF HOPKINS, having signed this contract, and the Hennepin County
Board of Commissioners having duly approved this contract on the _ day of
, 2006, 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.
Reviewed by the County
Attorney's Office:
COUNTY OF HENNEPIN:
STATE OF MINNESOTA
Assistant County Attorney
Date:
By:
Chair of Its County Board
And:
Assistant/County Administrator
ATTEST:
Deputy/Clerk of County Board
THE CITY OF HOPKINS
Reviewed by the City Attorney:
By:
Mayor
City Attorney
Date:
and effect during the period of the contract and for six (6) years after its
termination or cancellation.
7.9 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.
7.10 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.
7.11 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.
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ELECTION SYSTEMS & SOFTWARE, INC.
POST WARRANTY
HARDWARE MAINTENANCE SERVICE AGREEMENT
THIS HARDWARE MAINTENANCE SERVICE AGREEMENT ("Agreement") is made effective as
of the date set forth below, by and between Election Systems & Software, Inc., a Delaware corporation
("ES&S") and Hennepin Countv. MN ("Customer").
RECITALS:
A. ES&S has sold to Customer the proprietary voter tabulation equipment described on Attachment 1
(the "Hardware"), and Customer now desires to obtain preventative and remedial maintenance
services for the Hardware.
B. ES&S has agreed to provide such services, subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals (which are specifically
incorporated herein by this reference) and the mutual representations, warranties, covenants and
agreements set forth below, the parties hereby agree as follows:
1. Term: Termination. This Agreement shall be in effect for a one-year period beginning
on Julv 1. 2005 (the "Hardware Maintenance Term"). The Hardware Maintenance Term shall
automatically renew for an unlimited number of successive one year periods until this Agreement is
terminated by the first to occur of (a) Customer's election to terminate it at any time without cause, which
shall be given at least sixty (60) days prior to the termination date, (b) the date which is thirty (30) days
after either party notifies the other that it has materially breached this Agreement, if the breaching party
fails to cure such breach (except for a breach pursuant to subsection (c), which will require no notice), or
(c) the date which is thirty (30) days after Customer fails to pay any amount due to ES&S under this
Agreement. The termination of this Agreement shall not relieve Customer of its liability to pay any
amounts due to ES&S hereunder and shall not entitle Customer to a refund of any fees already paid to
ES&S.
2. Services. Subject to the terms and conditions of this Agreement, ES&S shall provide to
Customer the Routine Maintenance Services and Remedial Maintenance Services described in Section 3
with respect to the Hardware (collectively the "Hardware Maintenance Services").
3. Maintenance Services. Hardware Maintenance Services shall be subject to the
following terms and conditions:
a. Inspection. If Customer has not received maintenance services from ES&S for
any item of Hardware during the 12 months immediately preceding the effective date of this
Agreement, ES&S may require Customer to allow it to inspect such Hardware before it provides
any Hardware Maintenance Services therefor. The purpose of such inspection shall be to
determine whether or not the item of Hardware is fit for the ordinary purpose for which it is to be
used, normal wear and tear excepted ("Normal Working Condition"). The cost of such inspection
will be at the current published ES&S rate and shall be due from Customer within 30 days of its
receipt of ES&S' invoice therefor. If such item is not in Normal Working Condition, ES&S, at the
option of Customer, (i) shall provide such repairs and replacements as it deems reasonable and
necessary to restore such item to Normal Working Condition, at Customers expense with respect
to the cost of any parts used in such repairs or replacements and with respect to ES&S' Out-Of-
Pocket Expenses, or (ii) shall not provide any Hardware Maintenance Services with respect to
such item of Hardware. For purposes of this Agreement, "Out-Of-Pocket Expenses" shall mean
all travel, meal and lodging expenses incurred by ES&S empioyees or authorized representatives
("ES&S Representatives") who are required to travel to Customer's Designated Location to
provide services. .
b. Routine Maintenance Services. An ES&S Representative shall provide such
services as may be necessary to keep the Hardware in Normal Working Condition ('Routine
Maintenance Services") once each 12 months during the Hardware Maintenance Term or any
renewal thereof. Customer may request that Routine Maintenance Services be performed more
than once during any such 12-month period. Any such request shall be made at least 60 days
before the Routine Maintenance Services are desired. The per-unit fee for such additional
Routine Maintenance Services is set forth on Attachment 1 and shall be due within 30 days after
invoice date. Routine Maintenance Services shall include cleaning, lubrication and calibration
services. At the request of Customer, ES&S shall provide a reasonably detailed record of all
Routine Maintenance Services performed with respect to the Hardware. ES&S will schedule the
Routine Maintenance Services with Customer. The Routine Maintenance Services will be
provided either at Customer's Designated Location or at an ES&S-designated depot facility
("Depot"), as elected by Customer on Attachment 1. Customer shall pay all costs associated with
shipping Hardware to a Depot, including insurance.
c. Remedial Maintenance Services.
i. Defects Under Normal Use and Service. If a defect or malfunction
occurs in any item of Hardware while it is under normal use and service, Customer shall
promptly notify ES&S, and ES&S shall use reasonable efforts to restore the item to
Normal Working Condition as soon as practicable. The services provided by ES&S
pursuant to this Subsection 3(c)(i) are referred to herein as "Remedial Maintenance
Services". ES&S shall provide the Remedial Maintenance Services at the designated
locations on Exhibit 1. Customer is not responsible for costs associated with Remedial
Services provided by ES&S pursuant to subsection 3(c)(i) unless they constitute
Emergency Remedial Services pursuant to 3(c)(iii). its ge~ot; ~rovises, Rswovsr, 1Rot if
Remes;al MaiAteAaAse SSF'lieos afe req~ire8 fer 1Q er more items sf Har8'11am at aAY
~iveA time, C~sto"'or may olost to Ravo IRe", ~rovi8es at its ges;~Aate8 Lesatien;
~fe'Ji8es. f~rtRor, IRat all Romosial MaiAlenanse Servisos ~revises fer senlral ss~nt
eq~i~meAt sRall so ~r-o"ised at C~stomer's gosi~nales LSGatisn. Customer
acknowledges that the Hardware identified on Attachment 1 as "depot repair only" may
only be repaired at a Depot.
ii. Defects Due to Customer Actions or Omissions. If a defect or
malfunction occurs in any item of Hardware due to (1) repairs, changes, modifications or
alterations to such Hardware which are not authorized or approved by ES&S, (2)
accident, theft, vandalism, neglect, abuse or use which is not in accordance with
instructions or specifications furnished by ES&S or (3) causes beyond the reasonable
control of ES&S or Customer, including natural disaster, fire, flood, unusually severe
weather or Acts of God, or if Customer does not notify ES&S within 24 hours after it
knows of the defect or malfunction or is otherwise not in compliance with its obligations
hereunder, Customer shall pay ES&S for the Remedial Maintenance Services at ES&S'
then-current rates, as well as for the cost of all parts used in connection with such
Remedial Maintenance Services.
III. Timinll. The date(s) on which any Remedial Maintenance Services shall
be provided shall be mutually agreed upon by ES&S and Customer. If Customer requires
ES&S to provide "emergency" Remedial Maintenance Services (which shall be defined
as Remedial Maintenance Services which are provided within 48 hours after Customer
notifies ES&S of the need therefor), and such emergency Remedial Maintenance
Services are not needed as a result of an action, error or omission by ES&S, Customer
shall pay a surcharge, as set forth on Attachment 1.
iv. Loaner Unit. At Customer's request, ES&S shall use reasonable efforts
to promptly make Hardware available to Customer which is the same as, or substantially
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2
similar to, the item of Hardware for which Remedial Maintenance Services are being
performed (a "Loaner Unit"). If the Remedial Maintenance Services are being performed
pursuant to Subsection 3(c)(ii) above, Customer shall pay ES&S for the use of the Loaner
Unit at ES&S' then-current rates including the cost of shipping. if the Remediai
Maintenance Services are being performed pursuant to subsection 3(c)(I). customer is
not responsible for the costs for the use of the loaner uM.
d. Exclusions. ES&S has no obligation under this Agreement to (i) repair or
replace Hardware components which are consumed in the normal course of operating the
Hardware, including printer ribbons, paper rolls, batteries, removabie memory packs, cancellation
stamps, ink pads or red stripe pens, or (ii) repair any item of Hardware from which the serial
number has been removed or aitered. In addition, ES&S may, at any time in its discretion,
determine that any item of Hardware is no longer fit for Hardware Maintenance Services because
it is in such poor condition that it cannot practically be restored to Normal Working Condition, or
cannot be restored to Normal Working Condition at an expense which is less than the then-
current value of such item. If such a determination is made, ES&S shall no longer be required to
provide Hardware Maintenance Services for such item of Hardware. ES&S shall also refund to
Customer an amount equal to (1) that portion of the most recent fee paid for Hardware
Maintenance Services which is attributable to such item of Hardware, multiplied by (2) a fraction,
the numerator of which is the remaining number of days in the Hardware Maintenance Term or
renewal period for which such fee was paid and the denominator of which is the total number of
days in such Hardware Maintenance Term.
e. Sole Provider: Access. Customer shall not permit any individual other than an
ES&S Representative to provide maintenance or repairs with respect to the Hardware for so iong
as a Hardware Maintenance Term is in effect. Customer shall provide ES&S Representatives
with all information necessary to enable them to provide Hardware Maintenance Services.
Customer shall likewise provide full access to the Hardware and adequate working space for all
Hardware Maintenance Services performed at its Desi9nated Location, including sufficient heat,
lights, ventilation, electric current and outlets.
f. StoraQe. Customer shall properiy store the Hardware when it is not in use.
4. ~. In consideration for ES&S' agreement to provide Hardware Maintenance Services
under this Agreement, Customer shall pay to ES&S a fee for the initial Hardware Maintenance Term and
each renewal period. Such fee shall be in addition to any fees or charges separately referred to in any
Section of this Agreement. The fee for the initial Hardware Maintenance Term is set forth on Attachment
1 and is due on the effective date of this Agreement. ES&S may increase the fee for a renewal period by
not more than 3% &% of the amount of the most recent fee paid by Customer. The fee for any renewal
period shall be due and payable no later than thirty (30) days prior to the beginning of such renewal
period.
5. Taxes: Interest. Customer will provide ES&S with proof of its tax-exempt status. If
Customer does not provide such proof, it shall pay, or shall reimburse ES&S for, all sales and use, excise
or other similar taxes imposed on the transactions contemplated by this Agreement, but shall in no event
be liable for taxes imposed on or measured by ES&S' income. If Customer disputes the applicability of
any tax to be paid pursuant to this Section 5, it shall pay the tax and may thereafter seek a refund. Any
disputed or undisputed payment which is past due to ES&S will bear interest at the rate of one and one-
half percent per month (or such lesser amount as may be permitted by applicable law) for each month or
portion thereof during which it remains unpaid.
6. Limitation of Liabilitv. Neither party will be liable for any indirect, incidental, punitive,
exemplary, special or consequential damages of any kind whatsoever arising out of or relating to this
Agreement. Any action by Customer against ES&S shall be commenced within 1 year after the cause of
action has accrued. ES&S will not be liable under this Agreement for any claim, damage, loss, judgment,
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3
penalty, cost, amount paid in settlement or fee which is caused by Customer's election not to receive, or
to terminate, the Hardware Maintenance Services.
7. Excusable Nonperformance. If ES&S is delayed or prevented from performing its
obligations under this Agreement due to any cause beyond its reasonable control, including, but not
limited to, natural disaster, fire, fiood, unusuaIiy severe weather, terrorism, insurrection, war,
communications or transportation disruptions. Acts of God, labor disputes and governmental regulations,
the delay shaIi be excused during the continuance of, and to the extent of, such cause, and the period of
performance shaIi be extended to the extent necessary to aIiow performance after the cause of delay has
been removed. ES&S agrees to work with Customer, at Custome~s request, to develop mutuaIiy
agreeable alternatives in order to minimize the negative impact of any such delay.
8. Notice. Any notice or other communication required or permitted hereunder shaIi be in
writing, and will be deemed given when delivered personaIiy, sent by confirmed facsimile transmission,
sent by commercial overnight courier (with written verification of receipt) or sent by registered or certified
mail, return receipt requested, postage prepaid, when the return receipt is received. AIi communications
shaIi be sent to the attention of the persons listed on the signature page to this Agreement and at the
addresses or facsimile numbers set forth on such signature page unless other names, addresses or fax
numbers are provided by either or both parties in accordance herewith.
9. Entire AClreement. This Agreement, including Attachment 1 (which is specificaIiy
incorporated herein by this reference), contains the entire agreement of the parties with respect to the
subject matter hereof and supersedes and replaces any and aIi other prior or contemporaneous
discussions, negotiations, agreements or understandings between the parties, whether written or oral,
regarding the subject matter hereof. Any provision of any purchase order, form or other agreement which
conflicts with or is in addition to the provisions of this Agreement shaIi be of no force or effect. This
Agreement shaIi be governed by and construed in accordance with the laws of the State of Minnesota
without regard to its conflicts of laws principles. Except in the case of a sale, transfer or assignment of all
or substantiaIiy aIi of the assets of ES&S to a successor who has asserted its intent to continue the
business of ES&S, neither party may assign or transfer this Agreement without the prior written consent
of the other party hereto, such consent not to be unreasonably withheld or conditioned, nor unduly
delayed. ES&S may engage duly qualified subcontractors to perform certain of the Hardware
Maintenance Services, but shaIi remain fuIiy responsible for such performance.
10. Counterparts: Execution Bv Facsimile. This Agreement may be executed in two or
more counterparts, each of which shaIi be deemed an original, but which together shall constitute one
and the same instrument. The parties may execute this Agreement and exchange counterparts of the
signature pages by means of facsimile transmission, and the receipt of such executed counterparts by
facsimile transmission shaIi be binding on the parties. FoIiowing such exchange, the parties shaIi
promptly exchange original versions of such signature pages.
IN WITNESS WHEREOF, this Agreement has been executed effective as of the date it is signed
by the last of the parties hereto.
ELECTION SYSTEMS & SOFTWARE, INC.
11208 John Galt Boulevard
Omaha, NE 68137
Fax No.: (402) 970-1276
HENNEPIN COUNTY, MINNESOTA
Elections - A600
300 South 6th St
Minneapolis, MN 55487
Signature
Signature
Name (Printed or Typed)
Name (Printed or Typed)
Page 4 015
4
Title Title
D~ D~
Page 5 of 5 5
Attachment 1
DESCRIPTION OF HARDWARE
Quantity
Description
550
M100
Total Fees Due For Term
Maintenance Fee Per
Unit
$128.00
Maintenance
Fee In Total
$70,400.00
$70,400.00
Per-Unit Fees if Customer requests more than one Routine Maintenance visit in a year.
Description
M100
Fee Per Unit
$70.40
Surcharge for Emergency Remedial Maintenance Services:
Description
M100
Location of Services:
_X_Customer's Designated Location
_Depot
Fee Per Unit
$110.00
Page 6 of 5
6
Terry Obermaier
.rom:
ent:
To:
Subject:
Jeremy Steiner [jsteiner@steinercurtiss.com]
Friday, January 06, 2006 10: 14 AM
Terry Obermaier
Voting Machine Lease
Attachments:
LeaseAgt. HenCoBL.doc
~
LeaseAgt.HenCoBL.
doc (54 KB)
Terry, attached is a red lined revision of the proposed voting machine Lease with
Hennepin County showing the changes I am recommennding on behalf of the City. Please review
the changes to the Lease & call me to discuss any comments you have. In addition to the
revisions I have incorporated in the Lease, you should confirm the following items are
acceptable to the City:
1.Under Section 4.1, the Lease has an indefinite term, & the City may only terminate for cause.
The effect of this provision is that the City could not unilaterally terminate the Lease even if the
voting machines no longer met the City's needs. When we discussed this issue, you indicated
this provision is acceptable because the voting machines are the standard machines used in
Hennepin County for general elections & it is unlikely the City would use other machines for
those elections.
.You should let me know if you do want to revise section 4.1 to add termination without cause
language so I can add that language to the Lease before it is submitted to the County.
2. Section 7.8 requires the City to retain all records related to the Lease for a period ending 6
years after termination of the Lease & to make those records available to the County & State
Auditor for inspection. This requirement applies to all records from the inception of the Lease
through its termination, & could obligate the City to retain records for a very long period of time.
Should it be modified to limit the retention period for all records to 6 years from the date of the
document in question? Please let me know if you would like to have this Section modified to
limit the document retention period.
Call me with questions or if you want me to forward the revised Lease to the County.
Jerry
1
Terry Obermaier
From:
Sent:
To:
Cc:
Michelle. DesJardin@co.hennepin.mn.us
Friday, January 20, 2006 2:04 PM
Terry Obermaier
Daniel. Rogan@co.hennepin.mn.us; dougs@synergy-graphics.com;
David.Maeda@co.hennepin.mn.us
RE: IMPORTANT - County/City Lease Agreement REMINDER
EquipmentLeaseAgt HenCoBL-Draft (2).doc
I
\
Subject:
Attachments:
~
EquipmentLeaseAgt
HenCoBL-Draf...
Terry -
Thank you for sending this to me. I apologize for the delay in getting back to you. I was out of
the office ill a few days and have fallen behind on some things. After reviewing the changes
your attorney has outlined it appears that most of them are cosmetic. The change requested in
the maintenance section would make it optional for the city to take and pay the county for the
maintenance agreement we have with the vendor. This is not an option - the maintenance has
to be done as specified.
I hope that once you have also had the chance to look over the requested changes you will
agree, that based on the timing of receiving these and their nature, that the county would
request your city sign the original version sent to you. Please let Doug know if you need a clean
copy of the original version.
Feel free to contact me to discuss this further!.
Thank you,
Michelle
Michelle D. DesJardin, CERA
Hennepin County Elections Manager
300 South 6th Street
Minneapolis, MN 55487
m ichelle. desjardin@co.hennepin.mn.us
612-348-5103
FAX: 612-348-9677
"The chains of causation stretch out infinitely. Choose to impress change, or be part of the
cause. II
Terry Obermaier <TerryO@HOPKINSmn.com>
1