5.5. SR 01-26-2004City
TO:
FROM:
DATE:
SUBJECT:
MEMORANDUM
Mayor and City Council
Joan Schmidt, City Clerk
January 26, 2004
School District No. 728 Special Election
Use of the City's Election Equipment
Item # 5.5
On Friday, January 16, 2004, Londa Chambers contacted me in regards to School District
No. 728 holding a Special Election on March 30, 2004 and inquiring if the School District
could use the City of Elk River's Election Equipment. The School District would need to
use seven Optical Scan Precinct Counter Units for their combined precincts within the Cities
of Elk River (4 precincts), Rogers (1 precinct), Otsego (1 precinct), and Zimmerman (1
precinct). Since Ms. Chambers is not familiar with this equipment, staff from Elk River
would need to test the election equipment, train election judges on the use of the equipment,
provide technical assistance if needed on election day, and provide any other services in
con}unction with the District's use of the equipment which may be required.
I have put together an agreement contract between the two entities and City Attorney Peter
Beck is reviewing this contract. The contract serves to hold the District responsible for the
equipment while in their possession and that the City cannot warrant the equipment as error
free. The contract also lists the services to be provided by the City and the ftmctions related
to proper conduct of school district elections that the District would need to handle. The
contract also holds the District responsible for the transporting of the equipment from and
to the City as well as the District's defense and indemnity obligations.
After approval is received from Council to enter into an agreement, I will forward the
contract to the School District for their review and authorization.
ACTION REQUESTED
A motion from Council to approve the attached resolution authorizing staff to enter into a
contract between the City of Elk River and Independent School District No. 728 to allow
the District's use of the city's election equipment with assistance from city staff for the
Special Election on March 30, 2004.
RESOLUTION 04-
A RESOLUTION OF THE CITY OF ELK RIVER
A RESOLUTION AUTHORIZING STAFF
TO ENTER INTO A CONTRACT BETWEEN
THE CITY OF ELK RIVER AND
INDEPENDENT SCHOOL DISTRICT NO. 728
WHEREAS,
School District No 728 will conduct a Special Election on March 30, 2004,
and wishes to use the Optical Scan Precinct Counter Units which the City of
Elk River owns; and
WHEREAS,
this equipment would be used in the cities of Rogers, Otsego, Zimmerman
and Elk River, and would require staff from the City of Elk River to provide
assistance in the technical use, testing, training, and any other services in
conjunction with the Dismct's use of the equipment, and
WHEREAS, an agreement needs to be reached between these two entities as to
responsibility, services provided, and cost factor.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Elk
River authorizes staff to enter into a contract with Independent School District No. 728,
allowing School District No. 728 the use of the City's election equipment for the seven
combined precincts where the special election will be held on March 30, 2004, and that city
staff may assist the District with this election.
Passed and adopted this __ day of
2004.
ATTEST:
Stephanie ICdinzing, Mayor
Joan Schmidt, City Clerk
AGREEMENT BETWEEN THE CITY OF ELK RIVER AND
INDEPENDENT SCHOOL DISTRICT NO. 728
THIS AGREEMENT is entered into between the City of Elk River, a nqunicipal
corporation under the laws of Minnesota ("City"), and Independent School District No.
728, a public corporation organized under the laws of the State of Minnesota ("District").
WITNESSETH
WHEREAS, the District desires to use the City's Election Equipment ("Election
Equipment") for a March 30, 2004 District special election (~'the Election"); and
WHEREAS, the City is willing to make the Election Equipment available to the
District for the Election, in accordance with the terms and conditions stated herein.
NOW, THEREFORE, it is mutually agreed that:
The District may utilize the Election Equipment for the Election in accordance
with the ten'ns and conditions stated herein. The Election Equipment to be used
by District is identified as: one (1) Model 100 Optical Scan Precinct Counter
Unit, one (1) Model 100 metal ballot box; and one (1) Model 100 cover cmwying
case for each of the seven polling places contained within the School District.
The District acknowledges and agrees that the Election 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 District shall protect and maintain the
proprietary and trade secret status of the Election Equipment, and shall indemnify
City for any claims made agains~ City by ES&S or others arising from or related
to the District's use of the Election Equipment for the Election.
The District shall be responsible for the Election Equipment while it is in the
possession of the District. The District, either through insurance or a self-
insurance pro,am, shall be responsible for all costs, fees, damages and expenses
including but not limited to personal injury, storage, damage, repair and/or
replacement of the Election Equipment while this contract is in effect, consistent
with the District's obligations contained in Sections 8 and 9 herein.
The District agq'ees that the City is furnishing the Election Equipment without any
express or irnplied warranties including, but not in any manner limited to, fitness
for particular purpose, merchantability or the accuracy and completeness of the
Election Equipment.
The City's sole liability and the District's exclusive remedy for any defect which
impairs the use of the Election Equipment for the purposes stated herein shall be
the right to ten'ainate this agreement.
The City does not warrant that the Election Equipment will be error free.
The City will provide the following services with respect to use of the Election
Equipment for the Election:
a)
b)
c)
assist with all tests of the Election Equipment as required by Minnesota
Statutes;
train election judges on the use of the Election Equipment;
provide technical assistance with use of the Election Equipment if needed
on the Election day;
The City will not be responsible for providing any other services related to the
conduct of the Election.
The District will perform all functions related to proper conduct of school district
elections pursuant to Minnesota Statutes, Chapter 205A and related statutes,
including the following:
a)
b)
c)
d)
e)
post and publish all legal notices for the District Election, including
equipment testing notices;
approve the layout of the ballot prior to printing;
contract with ES&S for the printing of the ballots and programming of the
memory cards;
handle and distribute absentee ballots for the District Election;
provide all supplies related to and necessary for proper use of the Election
Equipment;
deliver the Election Equipment to the precincts the day before the Election
and pick up and return the Election Equipment to the City the day
following the Election;
tabulate and canvass returns.
The District shall be responsible for transporting the Election Equipment fi-om
and returning the Election Equipment to the City. The District shall retm-n the
Election Equipment to the City, or its designee, complete and in good order and
working condition on March 31,2004.
In consideration for the City making the Election Equipment available to the
District, the District shall:
a)
reimburse the City, within thirty (30) days of demand made by the City,
for the City's costs to perfornq under this A~eement, in the amount of
$1,500.00;
10.
11.
2.
13.
14.
b)
c)
reimburse the City, within thirty (30) days of denqand made by the City,
for any additional costs to the City to assist District in connection with any
recount;
reimburse the City, within thirty (30) days of demand made by the City,
for any costs ;noun-cd by thc City due to damage or loss of any of the
Election Equipment, including all costs to repair or replace lost, stolen,
destroyed or damaged Election Equipment, including shipping and any
other related costs.
Any and all claims that arise or may arise against the District, its agents, servants, or
employees while engaged in the perfonnance of this Agreement and/or the use of the
Election Equipment, shall in no way be the obligation of the Cib,. Furthermore, the
District, its agents, servants, employees, or assigns shall indemni~, hold harmless,
and defend the City, its officers and employees against any and all liability, loss,
costs, dmnages, expenses, claims, actions, or judgq-nents, including attorneys' fees,
which the City, its officers or employees may hereafter sustain, incur, or be required
to pay, arising out of or by reason of any act or failure to act by the District, its
agents, servants or employees in connection with this Agreement and/or the
District's use of the Election Equipment.
This Agn-eement, any attached exhibits and any addenda or amendments signed by
the parties, shall constitute the entire agn-eement between the parties, and supersedes
any other written or oral a~eements between the pm-ties. This Agq'eement can only
be modified in writing si=oned by the parties.
This A~eement shall tem~inate when the Election Equipment and any related
equipment has been returned to the City and District has met all of its obligations
under this Ag-reement.
In case any one or more of the provisions contained in this A~eement shall be found
to be invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein and any other
application thereof shall not in any way be affected or impaired thereby.
This A~eement has been made under the laws of the State of Minnesota and such
laws will control its interpretation.
This Agreement may be executed in any number of counterparts, each of which
shall be deemed an original but all of which when taken together shall constitute
one and the same instrument. The signature page of any counterpart may be
detached therefrom without impairing the legal effect of the signature(s) thereon,
provided such signature page is attached to any other counterpart identical thereto
except having additional signature pages executed by other parties to this
Agn'eement thereto.
IN WITNESS ~q-iEREOF. the City and the District have caused this A=m-eement to be
entered into and effective as o£this day of' ,2004.
CITY OF ELK RIVER
By:
Stephanie Klinzing
Its: Mayor
By:
Joan Schmidt
Its: City Clerk
INDEPENDENT SCHOOL DISTRICT 728
By:
Its:
By:
Its:
G :\EIection~AGREEM ENT ElkRiver&S D.doc
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