ITEM 3.4 Election Equipment Lease with Wright CountyOtSTeF fro
MINNESOTA 4V
DEPARTMENT INFORMATION
Request for
City Council Action
ORIGINATING DEPARTMENT
REQUESTOR:
MEETING DATE:
Administration
City Clerk Loff
July 8, 2019
PRESENTER(s)
REVIEWED BY:
ITEM #:
Consent
City Administrator/Finance Director Flaherty
3.4
STRATEGIC VISION
MEETS:
THE CITY OF OTSEGO:
X
Is a strong organization that is committed to leading the community through innovative
communication.
Yes
Has proactively expanded infrastructure to responsibly provide core services.
BACKGROUND/JUSTIFICATION:
Is committed to delivery of quality emergency service responsive to community needs and
expectations in a cost-effective manner.
time the agreement was for two optical scanners and one AutoMark at Precinct 1A and three optical
Is a social community with diverse housing, service options, and employment opportunities.
Wright County contacted City staff that when they placed the new DS200 optical scanner order they
Is a distinctive, connected community known for its beauty and natural surroundings.
AGENDA ITEM DETAILS
RECOMMENDATION:
Approve Election Equipment Lease Agreement between Wright County and the City of Otsego.
ARE YOU SEEKING APPROVAL OF A CONTRACT?
IS A PUBLIC HEARING REQUIRED?
Yes
No
BACKGROUND/JUSTIFICATION:
The City approved an agreement with Wright County to lease election equipment in May of 2018. At that
time the agreement was for two optical scanners and one AutoMark at Precinct 1A and three optical
scanners and one AutoMark at Precinct 2A & 3 for a total of $1,400 per year.
Wright County contacted City staff that when they placed the new DS200 optical scanner order they
actually ended up ordering three optional scanners for Precinct 1A per recommendation by the state
statute of the number of registered voters at that location.
This agreement is an amendment to the original agreement approved in 2018 which now includes a total of
8 machines at $200.00 each for maintenance fees for a total of $1,600. The addition of this scanner will be
a benefit on election day as it will help get voters through faster.
SUPPORTING DOCUMENTS ATTACHED:
* Election Equipment Lease Agreement
POSSIBLE MOTION
PLEASE WORD MOTION AS YOU WOULD LIKE IT TO APPEAR IN THE MINUTES:
Motion to approve the Election Equipment Lease Agreement between Wright County and the City of
Otsego.
BUDGET INFORMATION
FUNDING:
BUDGETED:
General Fund — Elections Department
101-41410-410
Yes
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 2nd Street N.W., Suite 230, Buffalo, Minnesota 55313
and the address of the Municipality is 13400 90TH Street NE, Otsego, Minnesota 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 Buffalo 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: 6 DS200 Digital Scan Precinct Count Unit(s),
and 6 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 15 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
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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: 9
KNOWiNK Poll Pad Systems (including a iPad 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.
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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 (iii) 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.
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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
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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
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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 St NE
Otsego, MN 55330
To the County: Robert Hiivala
Wright County Auditor/Treasurer
10 2nd 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
all other applicable state and federal laws, rules, regulations and orders relating
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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.
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COUNTY OF WRIGHT
STATE OF MINNESOTA
Bv:
County Administrator
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:
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