3.4. SR 08-06-2007
REQUEST FOR ACTION
To
Ci Council
Agenda Section
Consent
Item Description
Consider Agreement Between the City of Elk River and
Independent School District No. 728 for use of Election
Equipment
Meeting Date
Au ust 6, 2007
Item Number
3.4.
Prepared by
Tina Allard, Ci Clerk
Reviewed by
Lori ohnson, Ci Administrator
Reviewed by
Action Requested
Council motion to approve the Agreement Between the City of Elk River and Independent School
District No. 728.
Back~round/Discussion
The school district is requesting use of city election equipment and staff time for a special election to be
held on Tuesday, November 6, 2007. Staff may need to assist with testing and training on the election
equipment. The Agreement holds the district responsible for the equipment while it is in their possession.
This Agreement is similar to the one used in March 2004 when the district held a previous special
election.
Financial Impact
· City staff time which the district will reimburse for up to $2,000.
Attachments
· Agreement
Action
Motion by _
Second by _
Vote
Follow Up
S:\Council\City Clerk\Elections\Agreement Equip Use.doc
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 municipal
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 November 6, 2007 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:
1. The District may utilize the Election Equipment for the Election in accordance with the
terms and conditions stated herein. The Election Equipment to be used by District is
identified as: one (1) Model 100 Optical Scan Precinct Counter Unit (including two (2)
PCMIA memory cards); one (1) Model 100 metal ballot box; and one (1) Model 100
cover carrying case; one (1) Automark; for each of the seven polling places contained
within the School District. The District may utilize as many voting booths as they need.
2. 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 against City by
ES&S or others arising from or related to the District's use of the Election Equipment
for the Election.
3. 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 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 this contract is in effect, consistent with the District's obligations contained in
Sections 8 and 9 herein.
4. The District agrees that the City is furnishing the Election Equipment without any
express or implied warranties including, but not in any manner limited to, fitness for
particular purpose, merchantability or the accuracy and completeness of the Election
Equipment.
S :\Clerk\Elections\School District\2007\Agreement.doc
The City's sole liability and the District's exclusive remedy for any defect which impairs
the use of the Election Equipment for the purpose stated herein shall be the right to
terminate this agreement.
The City does not warrant that the Election Equipment will be error free.
5. The City will provide the following services with respect to use of the Election
Equipment for the Election:
a) assist with all tests of the Election Equipment as required by Minnesota Statutes;
b) train election judges on the use of the Election Equipment;
c) 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.
6. 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) post and publish all legal notices for the District Election, including equipment
testing notices:
b) approve the layout of the ballot prior to printing;
c) contract with ES&S for the printing of the ballots and programming of the
memory cards;
d) handle and distribute absentee ballots for the District Election;
e) provide all supplies related to and necessary for proper use of the Election
Equipment;
f) 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;
g) tabulate and canvass returns.
7. The District shall be responsible for transporting the Election Equipment from and
returning the Election Equipment to the City. The District shall return the Election
Equipment to the City, or its designees, complete and in good order and working
condition on November 7, 2007.
8. 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 perform under this Agreement. The cost will be only for the
S: \Clerk\Elections\School District\2007\Agreement. doc
City's staff time for items Sa, Sb, and Sc and not to exceed the amount of
$2,000.00;
b) reimburse the City, within thirty (30) days of demand made by the City, for any
additional costs to the City to assist District in connection with any recount;
c) reimburse the City, within thirty (30) days of demand made by the City, for any
costs incurred by the 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.
9. Any and all claims that arise or may arise against the District, its agents, servants, or
employees while engaged in the performance of this Agreement and/or the use of the
Election Equipment, shall in no way be the obligation of the City. Furthermore, the
District, its agents, servants, employees, or assigns shall indemnify, hold harmless, and
defend the City, its officers and employees against any and all liability, loss, costs,
damages, expenses, claims, actions, or judgments, including attorney's 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.
10. This agreement, any attached exhibits and any addenda or amendments signed by the
parties, shall constitute the entire agreement between the parties, and supersedes any
other written or oral agreements between the parties. The Agreement can only be
modified in writing signed by the parties.
11. This Agreement shall terminate when the Election Equipment and any related
equipment has been returned to the City and District has met all of its obligations under
this Agreement.
12. In case anyone or more of the provisions contained in this Agreement 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.
13. This Agreement has been made under the laws of the State of Minnesota and such laws
will control its interpretation.
14. This Agreement maybe 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 maybe 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 Agreement thereto.
S:\Clerk\Elections\School District\2007\Agreement.doc
IN WITNESS WHEREOF, the City and the District have caused this Agreement to be
entered into and effective as of this day of 2007.
By:
By:
CITY OF ELK RIVER
Stephanie Klinzing
Its: Mayor
Tina Allard
Its: City Clerk
INDEPENDENT SCHOOL DISTRICT 728
By:
Its:
S: \Clerk\Elections\School District\2007\Agreement.doc