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3.10 2022 Wright County Election Equipment Agreement Request for City Council Action DEPARTMENT INFORMATION ORIGINATING DEPARTMENT REQUESTOR: MEETING DATE: Administration City Clerk Etzel June 13, 2022 PRESENTER(s) REVIEWED BY: ITEM #: Consent City Administrator/Finance Director Flaherty City Attorney Dave Kendall 3.10 - Election Equipment Lease Agreement STRATEGIC VISION MEETS: THE CITY OF OTSEGO: X 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. 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: City staff recommends City Council approval an Election Equipment Lease Agreement with Wright County. ARE YOU SEEKING APPROVAL OF A CONTRACT? IS A PUBLIC HEARING REQUIRED? Yes No BACKGROUND/JUSTIFICATION: Wright County is asking each municipality to enter into the enclosed Election Equipment Lease Agreement. The agreement has been updated for the replacement of the AutoMark with the OmniBallot assistive voting technology unit, the quantity of units, and verbiage changes from the 2018 agreement. The City will be billed an annual maintenance fee of $200 for each DS200 Digital Scan Ballot Tabulator and each OmniBallot. All other expenses including the maintenance of poll pads are being covered by the County. The City is responsible for the transfer of machines from Wright County to the precincts and vice versa. Provided no additional equipment is needed, the cost starting in 2022 for the City Otsego will be $2,200 for seven (7) DS200’s and four (4) OmniBallot units. The Administrative Subcommittee was presented this information at their June 8 meeting, with recommendation for City Council approval. City Attorney Kendall has reviewed the agreement and recommends approval and that the City get insurance to cover the equipment while in the possession of the City. 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 the City of Otsego and Wright County and to authorize the Mayor to sign the agreement. BUDGET INFORMATION FUNDING: BUDGETED: General Fund – Elections Department 101-41410-410 Yes 1 WRIGHT COUNTY/CITY OF OTSEGO ELECTION EQUIPMENT LEASE AGREEMENT THIS AGREEMENT, made by and between the COUNTY OF WRIGHT and the CITY OF OTSEGO 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 3650 Braddock Ave NE, Buffalo, Minnesota 55313 and the address of the Municipality is 13400 90th St 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 City of Otsego 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 During the term of this Agreement and subject to the terms herein, 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: 7 DS200 Digital Scan Ballot Tabulator(s), and 7 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 16 KNOWiNK Poll Pad Hardware and Software units, and a sufficient number of routers, exclusively for official election use. Unless County otherwise agrees in writing, said license is restricted to access 2 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 Starting with the 2022 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: 4 OmniBallot assistive voting technology units, 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 Finance Director. 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 Finance Director. 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), KNOWiNK, LLC or Democracy Live 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 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. 3 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 & OmniBallot) The County has entered into a Maintenance Agreement with election equipment vendors for the maintenance of the DS200 Ballot Tabulators and OmniBallot assistive voting technology. Starting in 2022, the Municipality agrees that it will reimburse the County two hundred dollars ($200.00) for maintenance and license fees associated with each DS200 and OmniBallot leased to 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 10%. 4 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. 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 county election staff of any defects or malfunctions with the Election Equipment within twenty-four (24) hours. 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 Ballot Tabulators, the KNOWiNK Poll Pad electronic rosters and the OmniBallot assistive voting technology at no charge to jurisdictions for all state 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 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 5 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 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 6 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: City of Otsego 13400 90th St NE Otsego, MN,55330 To the County: Lindsey Meyer Wright County Finance Director 3650 Braddock Ave NE 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 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 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. 8 APPROVAL COUNTY OF WRIGHT STATE OF MINNESOTA By: County Finance Director 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*. City of Otsego By: Printed Name: Printed Title: Date: Jessica L. Stockamp Mayor June 13, 2022