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ITEM 3.8 Election equipment lease06egoF MINNESOTA DEPARTMENT INFORMATION Request for City Council Action ORIGINATING DEPARTMENT REQUESTOR: MEETING DATE: Administration City Clerk Loff May 29, 2018 PRESENTER(s) REVIEWED BY: ITEM #: Consent Agenda City Administrator/Finance Director Flaherty City Attorney MacArthur 3.8 STRATEGIC VISION MEETS: THE CITY OF OTSEGO: Is a strong organization that is committed to leading the community through innovative communication. Has proactively expanded infrastructure to responsibly provide core services. Is committed to delivery of quality emergency service responsive to community needs and expectations in a cost-effective manner. X Is a social community with diverse housing, service options, and employment opportunities. Is a distinctive, connected community known for its beauty and natural surroundings. AGENDA ITEM DETAILS RECOMMENDATION: Approve Wright County and City of Otsego Election Equipment Lease Agreement. ARE YOU SEEKING APPROVAL OF A CONTRACT? IS A PUBLIC HEARING REQUIRED? Yes No BACKGROUND/JUSTIFICATION: The city had budgeted $40,200 in 2018 for replacement of the existing election optical scanners for the precincts within Otsego; City Clerk Loff held off with the purchase after Wright County was in talks of taking over the purchase and maintenance of all Wright County precincts election equipment. Starting with the 2018 Primary Election all precincts in Wright County will be using electronic poll pads to register and check- in voters. By the 2020 Primary Election, all precincts will be using the new DS200 optical scanner. Wright County will be providing the funding for this equipment. They are asking each municipality to enter into the enclosed Election Equipment Lease Agreement. The only costs to the City will be a $200.00 annual maintenance fee for each DS200 optical scanner and each AutoMark. All other expenses, including the maintenance of poll pads, are being covered by the county. The City will be responsible for the transfer of machines from County to the precincts and vice versa. The City Attorney has reviewed the agreement and recommends approval. Starting in 2019 the total amount for Otsego would be: P1A; two optical scanners and one AutoMark $600 P2A and P3; three optical scanners and one AutoMark 800 Total $1,400 SUPPORTING DOCUMENTS ATTACHED: • Letter from Robert Hilvala, Wright County Auditor/Treasurer • Wright County/City of Otsego Election Equipment Lease Agreement POSSIBLE MOTION PLEASE WORD MOTION AS YOU WOULD LIKE IT TO APPEAR IN THE MINUTES: Motion to approve the Wright County and City of Otsego Election Equipment Lease Agreement. BUDGET INFORMATION FUNDING: BUDGETED: 101-41410-210; Election Operating Supplies Jo'r Y QR l'_I T FITMAY212018 z 0 May 17, 2018 Ott - — `dy 7866 Adam Flaherty 13400 90th Street NE Robert J. Hilvala, Otsego, MN 55330 Auditor/Treasurer 10 2nd St. NW, Room 230 Buffalo, MN 55313 RE: Standardization of Election Equipment Ph: (763) 682-7578 Fax: (763) 682-7873 www.co.wright.mmus Mr. Adam Flaherty, There is nothing more fundamental about the work we do as civil servants than to provide for and administer a fair and efficient election for our constituents. To that end, my office, along with the Wright County Board of Commissioners, recently adopted resolution 18-23 which provides for the acquisition and standardization of election equipment over the next two election cycles. Wright County is prepared to expend a significant amount of resources in updating and maintaining our election systems in Wright County, Starting with the 2018 State Primary Election all precincts in Wright County will be using electronic poll pads to register and check -in voters, By the 2020 State Primary election, all precincts will be using the new DS200 optical scanner. Wright County is providing and securing the funding for all this equipment. As part of this effort we are asking each municipality and township enter into the enclosed Election Equipment Lease Agreement. The only cost to the municipality by entering into this agreement with the County is a $200.00 annual maintenance fee for each DS200 and Assisted Voting Machine (e.g. AutoMark). All other expenses, including the maintenance fees for the poll pads, are being covered by Wright County. Wright County is hopeful that, with legislative approval, we can deploy new technology in the future to replace our aging AutoMark systems. When that happens Wright County will again be providing the funds to replace this equipment, Resolution 18-23 also provides a method for Wright County to purchase additional election equipment for your municipality in the event you decide to create a new precinct. This resolution provides a timeline for notification to our office and a timeline to finalize the creation of new precincts, This timeline allows Wright County to budget for any additional equipment while also following the deadlines mandated under Minn. Stat. § 204B.14 Subd, 4, Please note that if your municipality would like Wright County to purchase new election An Equal Opportunity Employer equipment, the newly created precinct needs to meet the population guidelines established by the Minnesota Secretary of State and as stated in the enclosed resolution, Please review the enclosed agreement. If this meets your municipalities' approval please execute the same and return it to our office. We are hoping to have this process completed by July 1". As always if you have any questions or concerns please feel free to email or call. Sincerely, Robert J. Hiivala Wright County Auditor/Treasurer RJH/js Enclosures: Resolution 18-23 d Date March 20, 2018 Motion by Commissioner Borrell BOARD OF COUNTY COMMISSIONERS WRIGHT COUNTY, MINNESOTA Resolution No. 18-23 Seconded by Commissioner RESOLUTION Vetsch RESOLUTION CREATING A PROCESS FOR THE ACQUISITION AND STANDARDIZATION OF ELECTION VOTING EQUIPMENT IN THE COUNTY OF WRIGHT (See Attached) YES HUSOM X HUSOM VETSCH X VETSCH DALEIDEN X DALEIDEN POTTER X POTTER BORRELL X BORRELL STATE OF MINNESOTA) ss, County of Wright ) NO I, Lee Kelly, duly appointed and qualified County Coordinator of the County of Wright, State of Minnesota, do hereby certify that I have compared the foregoing copy of this resolution with the original minutes of the proceedings of the Board of County Commissioners, Wright County, Minnesota, at their session held on the 20th day of March, 2018, now on file in my office, and, have found the same to be a true and correct copy thereof. Witness my hand and oWicial'seai at Buffalo, Minnesota, this 2011 day of March 2018. Lee Kelly, County Coordin or 1 RESOLUTION CREATING A PROCESS FOR THE ACQUISITION AND STANDARDIZATION OF ELECTION VOTING EQUIPMENT IN THE COUNTY OF WRIGHT WHEREAS, the Wright County Board of Commissioners desires to create a program to provide funds to replace older voting equipment, to assist in the efficient administration of elections, and to provide all municipalities in Wright County with up to date and modern voting equipment; WHEREAS, the County of Wright historically has left it to individual municipalities to acquire and maintain all election equipment; WHEREAS, the County of Wright now desires to establish a program in which the County of Wright assumes the financial burden of acquiring and updating all election equipment, to provide for uniformity in all elections, and to improve efficiencies in the voting experience; WHEREAS, voting in a fundamental right and all citizens residing in the County of Wright are entitled to have access to the modern voting equipment regardless of the jurisdiction in which they reside; WHEREAS, the Minnesota Secretary of State recommends that voting precincts contain no more than 2,000 to 3,000 registered voters; WHEREAS, the Wright County Auditor/Treasurer and the Wright County Board of Commissioners desire for all precincts in the County of Wright to be efficient, to quickly move voters though the polling place with minimal delay, to reduce wait times at the polling place and to have less than 2,000 registered voters; NOW THEREFORE BE IT RESOLVED, the County of Wright, in phases and after entering in agreements with each municipality, will provide election voting equipment for all existing precincts starting with the 2018 State of Minnesota primary election; BE IT FURTHER RESOLVED, the County of Wright affirms the declaration of the Wright County Auditor/Treasurer acting in his capacity as the Election Administrator, that all precincts in the County of Wright starting with the 2018 State of Minnesota primary election shall utilize electronic poll pads and that all precincts in the County of Wright starting with the 2020 State of Minnesota primary election shall utilize the DS200 tabulator; BE IT FURTHER RESOLVED, the County of Wright in 2018 will provide all existing precincts in the County of Wright with a sufficient number of electronic poll pads to effectively and efficiently administer elections; BE IT FURTHER RESOLVED, the County of Wright prior to the 2020 State of Minnesota primary election will provide a DS200 to all existing precincts; BE IT FURTHER RESOLVED, the County of Wright, after entering into an agreement with the municipality, will acquire at its own expense a DS200, Assisted Voting Technology equipment, and a sufficient number of electronic poll pads to be used in any newly created precinct which, at its inception, has less than 2,000 registered voters; 2 BE IT FURTHER RESOLVED, any municipality which desires to have the County of Wright supply its voting equipment for newly created precinct, must notify the Wright County Auditor/Treasurer of its intent to create a new precinct by June 1st of every odd year and finalize the process for creating a new precinct by October 311t of every odd year, BE IT FURTHER RESOLVED, the County of Wright will not supply the voting equipment for a newly created precinct that is located in the same building as an existing precinct unless the new precinct is being created due to restrictions caused by redistricting after the decennial census, or the municipality certifies it has exhausted all other options for the designation of polling place at another location meeting the requirements of Minn. Stat. § 204B.16. BE IT FURTHER RESOLVED, any municipality which desires to have the County of Wright supply its voting equipment shall agree to create a new precinct in the event the number of registered voters in the newly created precinct exceeds 3,000. WRIGHT COUNTY/OTSEGO CITY ELECTION EQUIPMENT LEASE AGREEMENT THIS AGREEMENT, made by and between the COUNTY OF WRIGHT and the OTSEGO CITY both political subdivisions of the State of Minnesota, hereinafter referred to as the County and the Municipality respectively. For purposes of this Agreement, the address of the County is 10 2"d Street N.W., Suite 230, Buffalo, Minnesota 55313 and the address of the Municipality is 13400 90th Street NE, Otsego, MN 55330. WITNESSETH WHEREAS, the Wright County Board of Commissioners in Resolution Number 18-23 authorized the purchase of election equipment (hereinafter "Election Equipment") for a countywide digital scan voting system, election hardware and services; and WHEREAS, the Wright County Board of Commissioners in Resolution Number 18-23 authorized the purchase of Assisted Voting Technology equipment (hereinafter "AVT Equipment") for a countywide optical scan voting system, election hardware and services; and WHEREAS, the County pursuant to Minn. Stat. § 471.85 may transfer property to the Municipality for its use; and WHEREAS, the County desires to lease Election Equipment to Otsego City for use in all elections. NOW THEREFORE, in consideration of the mutual undertakings and agreements hereinafter set forth, the County and the Municipality agree as follows: Section 1 SCOPE OF AGREEMENT 1.1 Starting with the 2020 State Primary Election, the County hereby leases to the Municipality at the cost identified below and subject to the terms and conditions of this Agreement, and the Municipality hereby agrees to lease from the County Election Equipment identified as: 5 DS200 Digital Scan Precinct Count Unit(s), and 5 DS200 Plastic Ballot Box(es) for polling places contained within the Municipality. 1.2 During the term of this Agreement and subject to the terms herein, County hereby provides to Municipality and grants Municipality a limited, revocable, non- exclusive, royalty -free license to use 12 KNOWiNK Poll Pad Hardware and Software units, a sufficient number of Verizon Hotspot(s) Solutions and wireless access point(s) (the "KNOWiNK Poll Pad") exclusively for official election use. Unless County otherwise agrees in writing, said license is restricted to access OTSEGO CITY Page 1 of 8 and use of the Election Equipment by Municipality's employees, contracted personnel and duly authorized election officials performing election duties and responsibilities on behalf of Municipality. 1.3 The County hereby leases to the Municipality at the cost identified below and subject to the terms and conditions of this Agreement, and the Municipality hereby agrees to lease from the County Election Equipment identified as: 12 KNOWiNK Poll Pad Systems (including a !Pad WiFi 32 gb, Charger, Printer, Transport Case, Stand, Stylus, and Wireless Hotspot solution) for polling places contained within the Municipality. 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 Equipment included within the scope of this agreement. Wright County hereby delegates authority to execute such an addendum to the County Auditor/Treasurer. The Municipality hereby delegates authority to execute such an addendum to its City Administrator/Clerk. Section 2 OWNERSHIP 2.1 The Municipality acknowledges that the County owns the Election Equipment and that the Municipality 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 Auditor/Treasurer. 2.2 The Municipality acknowledges and agrees that the Election Equipment may contain proprietary and trade secret information that is owned by Election Systems and Software (ES&S) or KNOWINK, LLC and is protected under federal copyright law or other laws, rules, regulations and decisions. The Municipality shall protect and maintain the proprietary and trade secret status of the Election and AVT Equipment. Section 3 HANDLING OF EQUIPMENT AND INDEMNIFICATION 3.1 The Municipality shall be responsible for the Election Equipment while it is in the Municipality's custody. The Municipality, 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 it's in the Municipality's custody and this contract is in effect, consistent with the Municipality's defense and indemnity obligations contained in Section 7.6 herein. OTSEGO CITY Page 2 of 8 3.2 The Municipality shall be responsible for the transporting of the Election Equipment from and to the County. Upon termination of this Agreement, the Municipality shall forthwith deliver the Election Equipment to the County or its designee, complete and in good order and working condition. The Municipality 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. 3.3 Municipality shall secure, safeguard and control the Election Equipment, including but not limited to system authentication and passwords, in the same manner that Municipality secures, safeguards and controls its own critical or confidential equipment, systems, software, data, passwords or other information. While the Election Equipment is in Municipality's possession, custody and/or control, Municipality shall exercise best efforts to (i) use and handle the Election Equipment in a manner that avoids damage or harm to the Election Equipment; (ii) use and handle the Election Equipment in accordance with County direction and any third -party specification; and (Ili) safeguard and secure the Election Equipment from theft, loss or other damage. Section 4 TERM, TERMINATION 4.1 The Municipality and the County agree that this Agreement is in effect commencing upon signature by the County. The Municipality and County agree that this Agreement will terminate when the Municipality and County mutually agree that the equipment will no longer be used for the Municipality'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 (DS200 and AutoMark) The County has entered into a Maintenance Agreement with Election Systems & Software for the maintenance of the DS200 and AutoMark. Starting in 2019, the Municipality agrees that it will reimburse the County two hundred dollars ($200.00) for maintenance and license fees associated with the each DS200 and each AutoMark leased to, or owned by the Municipality. The Municipality agrees to reimburse the County within 60 days of invoice. The Municipality and the County agree to renegotiate this reimbursement fee in the event the maintenance and license fees increase by more than 25%. 5.2 The Municipality agrees not to make any repairs, changes, modifications or alterations to the Election Equipment that are not authorized by Wright County and said vendors. OTSEGO CITY Page 3 of 8 5.3 After reasonable notice, 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, except that on an election day the County is not required to provide any reasonable notice. On an annual basis, during the term of this Agreement, the Municipality shall comply with the County's request for verification of Election Equipment inventory. 5.4 The Municipality agrees to provide notice to Election Systems & Software of any defects or malfunctions with the DS200 Election Equipment within twenty-four (24) hours. The Municipality also agrees to provide notice to KNOWINK, LLC of any defects or malfunctions with the KNOWiNK Poll Pad within twenty-four (24) hours. The Municipality also agrees to provide the County with notice of such malfunctions or defects and Election Systems & Software's/KNOWINK'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 DS200 Digital Scan Election Equipment and the KNOWINK Poll Pads at no charge to jurisdictions for all races in all elections. 6.2 Voter Registration Updates. The County has invested a significant amount of resources in equipment that allows the KNOWINK Poll Pads to electronically transmit and receive live voter registration updates via wireless technology from each polling place to a central location and for those updates to be linked to the Statewide Voter Registration System. There is also a significant operational cost associated with this transmission and update process. The Municipality agrees to assist the County and the County's vendor in setting up and maintaining this transmission and update system. The parties agree Wright County is assuming all costs for this service and the licensing and maintenance of the KNOWiNK poll pads. 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 OTSEGO CITY Page 4 of 8 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 that the 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 DISCLAIMER, LIABILITY AND LIMITATION OF LIABILITY COUNTY, BY AND THROUGH ITS DULY AUTHORIZED VENDOR, IS PROVIDING THE ELECTION EQUIPMENT ON AN AS -IS BASIS WITH NO SUPPORT WHATSOEVER. OTHER THAN AS STATED IN THIS AGREEMENT, THERE IS NO WARRANTY OF MERCHANTABILITY, NO WARRANTY OF FITNESS FOR PARTICULAR USE, NO WARRANTY OF NON - INFRINGEMENT, NO WARRANTY REGARDING THE USE OF THE INFORMATION OR THE RESULTS THEREOF AND NO OTHER WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. THE MUNICIPALITY ACKNOWLEDGES AND AGREES THAT COUNTY DOES NOT OWN OR CONTROL THE DATA SOURCE/SYSTEM NECESSARY FOR OPERATION OF THE ELECTION EQUIPMENT. WITHOUT LIMITING THE FOREGOING, COUNTY DOES NOT WARRANT THE PERFORMANCE OF THE ELECTION EQUIPMENT OR RELATED COMMUNICATIONS OR CONNECTIONS TO ANY DATA SOURCE/SYSTEM, THAT THE DATA SOURCE/SYSTEM WILL BE UNINTERRUPTED OR ERROR FREE, THAT THE DATA IS ACCURATE, COMPLETE AND CURRENT OR THAT DATA DEFECTS WILL BE CORRECTED, OR THAT THE DATA SOURCE/SYSTEM IS FREE OF HARMFUL CODE. IN NO EVENT SHALL COUNTY BE LIABLE FOR ACTUAL, DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL DAMAGES OR LOSS OF PROFIT, LOSS OF BUSINESS OR ANY OTHER FINANCIAL LOSS OR ANY OTHER DAMAGES EVEN IF COUNTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. COUNTY'S SOLE LIABILITY AND THE MUNICIPALITY'S SOLE AND EXCLUSIVE REMEDY FOR ANY DAMAGES RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO OTSEGO CITY Page 5 of 8 LIABILITY FOR ELECTION EQUIPMENT NONPERFORMANCE, ERRORS OR OMISSIONS, SHALL BE LIMITED TO RESTORING OR CORRECTING THE ELECTION EQUIPMENT TO THE EXTENT AND DEGREE COUNTY IS CAPABLE OF PERFORMING THE SAME AND AS IS REASONABLY POSSIBLE UNDER THE PERTINENT CIRCUMSTANCES. 7.6 The County and the Municipality 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 Municipality or County of any statutory or common law defenses, immunities, or limits on liability. The statutory limits of liability for the parties may not be added together or stacked to increase the maximum amount of liability for either or both parties. 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 Municipality: Otsego City 13400 90th Street NE Otsego, MN 55330 To the County: Robert Hiivala Wright County Auditor/Treasurer 10 2"d Street N.W., Suite 230 Buffalo, MN 55313 7.8 Audit Provision. Both parties agree that either party, the State Auditor, the Minnesota Secretary of State, 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 and effect during the period of the contract and for six (6) years after its termination or cancellation. 7.9 Data Practices. The parties, their officers, agents, owners, partners, employees, volunteers and subcontractors shall abide by the provisions of the Minnesota Government Data Practices Act, Minnesota Statutes, chapter 13 (MGDPA) and OTSEGO CITY Page 6 of 8 all other applicable state and federal laws, rules, regulations and orders relating to data privacy or confidentiality, which may include the Health Insurance Portability and Accountability Act of 1996 (HIPAA). 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 Municipality 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 Municipality and County represent that they are duly authorized to execute this Lease Agreement on behalf of the Municipality 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. THE REMAINDER OF THIS PAGE IS BLANK. OTSEGO CITY Page 7 of 8 APPROVAL COUNTY OF WRIGHT STATE OF MINNESOTA Bv: County Coordinator Date: CONTRACTOR CONTRACTOR warrants that the person who executed this Agreement is authorized to do so on behalf of CONTRACTOR as required by applicable articles, bylaws, resolutions or ordinances*. OTSEGO CITY By: Printed Name: Printed Title: Date: OTSEGO CITY Page 8 of 8