HomeMy WebLinkAbout 15-51 Approving Rental, License and Service Agreement with ES&SRESOLUTION NO.15 . I
A RESOLUTION APPROVING A RENTAL, LICENSE AND SERVICE AGREEMENT
WITH ELECTION SYSTEMS & SOFTWARE, LLC
WHEREAS, the Town of Firestone desires to rent, license and receive certain election
equipment and related software and services for the purpose of conducting its regular municipal
election to be held on April 5, 2016; and
WHEREAS, a rental, license and service agreement for such equipment, software, and
related services has been proposed between the Town and Election Systems & Software, LLC;
and
WHEREAS, the Board of Trustees has determined that the proposed agreement is in the
best interests of the Town and its citizens and desires to enter into such agreement;
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF TRUSTEES OF THE
TOWN OF FIRESTONE, COLORADO,
Section 1. The proposed Rental, License, and Service Agreement between the Town
of Firestone and Election Systems & Software, LLC ("Agreement") is hereby approved in
essentially the same form as the copy of such Agreement accompanying this resolution.
Section 2. The Mayor is hereby authorized to execute the Agreement, except that the
Mayor is hereby further granted the authority to negotiate and approve such revisions to said
Agreement as the Mayor determines are necessary or desirable for the protection of the Town, so
long as the essential terms and conditions of the Agreement are not altered.
INTRODUCED, READ AND ADOPTED this `' {tpk day of (U�� Iltl
Medina, Town Clerk
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TOWN OF FIRESTONE, COLORADO
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Paul Sorensen, Mayor
ELECTION SYSTEMS & SOFTWARE, LLC
ONE-TIME RENTAL OF EQUIPMENT, SALE OF SERVICES AND LICENSE OF SOFTWARE
This Agreement is made as of the date it is executed by the last of the parties named below on the signature page
the "Effective Date"),
BETWEEN: ELECTION SYSTEMS &SOFTWARE, LLC, a Delaware Limited Liability Company
AND: TOWN OF FIRESTONE, COLORADO, a Colorado municipal corporation ("Customer ).
RECITALS:
A, Customer has agreed to rent, license and purchase, as applicable, voter tabulation equipment and related software
and services from ES&S for use in the Town of Firestone (the "Jurisdiction"), The terms and conditions under
which the equipment, software and services shall be provided are set forth in the GENERAL. TERMS attached hereto
and incorporated herein by reference.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged,
each of the parties hereto:
® Agrees to the GENERAL TERMS and the terms and conditions set forth in the Agreement and
Amendments,
Agrees that at all times, this Agreement shall be governed by and construed in accordance with the laws of the
State of Colorado,
® Represents and warrants to the other party that as of the date of its signature below it has ful! power and
authority to enter into and perform this Agreement, and that the person signing below on its behalf has been
properly authorized to execute this Agreement
• Acknowledges that it has read this Agreement, understands it and intends to be bound by it.
ELECTION SYSTEMS &SOFTWARE, LLC
11208 John Galt Blvd.
Omaha, NE 68137
Fax No.: (402) 970-1291
Name (rrmtea or i ypea)
Titie
Date
TOWN OF FIRESTONE, COLORADO
P.O. Box 100 —151 Grant Ave.
Firestone, CO 80521
Fax No.: NIA
Signature
Name (Printed or Typed}
Title
Date
RENTAL OF EQUIPMENT, SALE OF SERVICES AND LICENSE OP SOFTWARE
GENERALTERMS
Description of Rental Equipment, Software and Services. The following constitutes all Rental Equipment, Software and
Services to be provided by ES&S to Customer under this Agreement.
QUANTITY
RENTAL EQUIPMENT DESCRIPTION
UNIT PRICE
PRICE
Covered Election:
April 5, 2016
ES&S Equipment:
3
Model 100 Precinct Scanner with Steel Ballot Box, with Diverter,
11025800
$3,075400
PCMCIA Card, and Roundtrip Shipping and Handling
1
Omni Drive
$80.00
$80.00
3
PCMCIA Card (Additional)
$10.00
$30.00
4
Paper Roll
$1.75
$7.00
ES&S Services:
1
Project Management Day
$1,675,00
$1,575400
1
Election Day On -Site Support Event
$4,125,00
$4,125.00
3
Model 100 Installation/Acceptance Testing
$115.00
$345400
Estimated Ballot Layout and Coding Includes;
English and Spanish Languages
Programming Base Charge
Election Day Definition Burned to Media
Coding Elements Up To The Following Quantities:
1
$790.00
1 — Ballot Type
1 � Precincts
3 — Contests and/or Issues
6 � Candidates and/or Responses
1 — Ballot Faces
Total Tabulation Rental Equipment and Services:
$10,027,00
Vote Remote Printing and Scanning Services:
Composition:
1
Initial Envelope Composition
$150000
$150,00
Outgoing Envelopes:
10,000
Outgoing, STD, White, Wdw
$0.11
$11100.00
Reply Envelopes:
10,000
Reply Standard Floodcoat
$0.15
$1,500.00
Security Envelope and Sleeves:
10,000
Secrecy Envelope
$0.20
$21000.00
Election Set -Up:
1
Election Set -Up and Project Management
$725.00
$726.00
Data and Packet Processing Fee:
10,000
Data and Packet Processing (Per Record)
$0.35
$3,500600
Inkjet Printing on Envelopes
Included
Address Standardization, CASS Report
Included
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2.
Automated inserting of packet contents
Included
Mail Sort, Preparation, and Mailing (Does not Include Postage)
Included
Ballot Printing:
10,000
11" &14
$0.23
$2,300.00
1
Ballot Set -Up Fee
$350.00
$350.00
Shipping:
10,000
Mail Ballot Packet (Under 2 oz)
$400.00
Total Vote Remote Printing and Scanning Services:
$12,025.00
Total Estimated Rental Fees: $221052.00
Invoicing wilt occur as Follows;_
Total Estimated Rental Fees of $22,052. due Thirty (30) Calendar Days after the later of (a) Equipment Delivery, or (b)
Receipt of Corresponding ES&S Invoice.
Payments of invoices are due no later than 30 days after Customer's receipt of corresponding invoice.
Mays in payment due to no fault of ES&S will be subject to interest charges in the maximum amount permitted by
applicable law.
Equipment Rental Pricing includes roundtrip shipping and Al;
In no event shall Customer's payment obligations hereunder, or the due dates for such payments, be contingent or
conditional upon Customer's receipt of federal and/or state funds.
Any applicable state and local taxes are not included, and are the responsibility of Customer.
Notes;
1. Postage will be invoiced to the City as a separate line items as part of the final invoice.
2. Additional Ballots ordered will be shipped no later than 5 business days following the receipt of the order.
(each ballot style or type to be ordered in minimums of 25 ballots)
3. Additional Envelopes ordered will be shipped no later than 15 business days following the receipt of the
order.
4. Excess materials leftover after production will be shipped to the customer based on their shipping preference
Description of Services.
a. Installation. Section 1 specifies the items of Rental Equipment or Software, if any, which ES&S' employees,
agents or authorized representatives ("Representatives") will install at Customer's designated site. Customer
shall pay ES&S a fee for such installation services, as set forth in Section 1. Customer will provide, at its own
expense, a site adequate in space and design for installation and operation of the Rental Equipment and
Software. Customer shall be responsible for providing a site that is temperature and humidity controlled, has all
necessary electric current outlets, circuits, and wiring for the Rental Equipment and Software, and has electric
current of sufficient quality and quantity to operate the Rental Equipment and Software, all as specified in the
Rental Equipment Documentation or the Software Documentation (as each is defined below) (collectively the
"Documentation"). ES&S may, but shall not be required to, inspect the site and advise on its acceptability before
any Rental Equipment or Software is installed. Customer shall be responsible for installing all items of Rental
Equipment or Software not installed by ES&S, in accordance with the instructions furnished in the
Documentation. ES&S shall have no liability for actual site preparation or for any costs, damages or claims
arising out of the installation of any Rental Equipment or Software by Customer except to the extent said costs,
damages or claims are caused in whole or in part by ES&S, its employees, agents or subcontractors.
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b. Additional Professional Services. If requested in writing by Customer, ES&S will provide additional
Professional Services support to Customer at ES&S's then -applicable rates for such services.
TERMS AND CONDITIONS RELATING TO RENTAL EQUIPMENT
3. Items Included in Rental Equipment. In addition to the Rental Equipment, ES&S will also provide Customer with copies
of operating instructions, user manuals and training materials for the Rental Equipment ("Rental Equipment
Documentation"). Certain items included in the Rental Equipment may have been manufactured by parties other than
ES&S; any such items are separately identified in Section 1 and are collectively known as "Non-ES&S Rental
Equipment". Customer acknowledges and agrees that, except for the payment to ES&S of the amount dues under
Section 1 which is attributable to the Non-ES&S Rental Equipment, all of its rights and obligations with respect to the
Non-ES&S Rental Equipment flow from and to the manufacturers, lessors or other vendors of the Non-ES&S Rental
Equipment (collectively the "Third Party Rental Equipment Vendors"). Customer further acknowledges that it has
received copies of all applicable Third Party Rental Equipment Vendor Documentation, warranties and other applicable
information regarding its rights and obligations with respect to the Non-ES&S Rental Equipment.
4. Warran ES&S warrants that any ES&S-manufactured scanning equipment included in the Rental Equipment
("Scanning Equipment") will perform in accordance with the specifications set forth in the Rental Equipment
Documentation and will be free from defects in material and workmanship under normal use and service for the Rental
Term (the "Warranty Period"). ES&S' sole obligation under this Section 4 shall be to repair or replace the Scanning
Equipment or the applicable parts thereof, at its sole expense, at Customer's location or at ES&S's facilities, as
determined by ES&S in its sole discretion. Any repaired or replaced Scanning Equipment or parts thereof shall be
warranted for the unexpired term of the original Warranty Period. All replaced Scanning Equipment or parts thereof will
become the property of ES&S on an exchange basis. The warranty provided by ES&S under this Section 4 does not
apply to and shall not require ES&S to repair or replace any item (1) which requires repair or replacement due to normal
wear and tear caused solely by Customer use, (ii) which has been repaired, altered or transported by persons otherthan
ES&S authorized Representatives, (iii) from which any serial number has been removed, defaced or changed, (iv) which
is damaged due to accident, disaster, theft, vandalism, neglect, abuse, use for a purpose other than the purpose for
which such item is designed or use which is not in accordance with instructions furnished by ES&S by persons otherthan
ES&S employees, agents, or subcontractors, (v) which has been subjected to physical, mechanical or electrical design
alterations or any conversion by persons other than ES&S personnel, (vi) which has been used by any person other than
Customer's employees or persons under Customer's direct supervision; (vii) which has been used in a site not meeting
the specifications set forth in Section 2(a) above; (vili) has been used with ballots otherthan ES&S copyrighted ballots; or
(ix) have been used with ballot code stock other than ballot code stock supplied or approved by ES&S.
5. Rental Payments. The rental payment for each item included in the Rental Equipment for the Rental Term (defined
below) {s set forth in Section 1 above,.and the total amount thereof shall be paid in accordance with the terms of Section
1. Customer shall notify ES&S if it desires to rent additional items of Rental Equipment. If ES&S agrees to rent such
items to Customer, the parties shall amend Section 1 of this Agreement to include such items within the definition of
"Rental Equipment" and Customer shall pay to ES&S rental payments for each such item at ES&S's then -current rental
rates.
6. Rental Term. The period during which Customer shall rent the Rental Equipment from ES&S shall be in effect from
March 9, 2016 through April 30, 2016, unless earlier terminated pursuant to this Agreement (the "Renta{Term"). The
Rental Term shall terminate upon the first to occur of (i) a breach of any provision herein applicable to the Rental
Equipment which has not been cured by the breaching party within thirty (30) days after it receives written notice of the
breach from the non -breaching party (except a breach as provided in (iii) below which will require no notice); (ii) either
party's providing thirty (30) days' prior written notice to the other party hereto of its desire to terminate the Rental Term; or
(iii) Customer's failure to make any rental payment due hereunder within sixty (60) days after it is due; or ({v) Customer
cancels its April 5, 2016 election prior to ES&S's delivery of the Rental Equipment and the printing of ballots. Further, in
the event of a termination by the Customer in accordance with Section 6(ii) above, Customer hereby agrees to promptly
pay ES&S for all costs incurred and deliverables provided by ES&S through the effective date of such termination,
including, but not limited to, any equipment and software delivered, shipping costs incurred, and services performed. No
later than ten (10) calendar days following the termination of the Rental Term, Customer shall release the Rental
Equipment to ES&S at its own expense and in the same operation, order, repair, condition and appearance as when
received, subject to normal wear and tear. In the event Customer fails to release the Rental Equipment to ES&S no later
than ten (10) calendar days following the termination of the Rental Term, Customer shall pay to ES&S a late return
charge in the amount of $500.00 per calendar day until the Rental Equipment is returned to ES&S in accordance
herewith.
TERMS AND CONDITIONS RELATING TO SOFTWARE
7, Grant of License,
a. In General. ES&S hereby grants to Customer a nonexclusive and nontransferable license during the Ren#al
Term for its bona fide full-time employees to Use (defined below) the Software designated in Section 1.
b. Third Party Saftware. Customer acknowledges that ES&S does not own fhe Software designated in Section 1
as "Third Party Software" or the accompanying operating instructions, user manuals and training materials
relating thereto (the "Third Party Software Documentation") (the ES&S Software Documentation and the Third
Party Software Documentation sometimes collectively the "Software Documentation"), Customer further
acknowledges that, except for the payment of license fees attributable to the Third Party Software and the Third
Party Software Documentation (collectively the "Non-ES&S Software Items"), which shall be paid directly to
ES&S pursuant to Section 1 above, all of its rights and obligations with respect to the Non-ES&S Software Items
flow from and to the vendors of the Non-ES&S Software Items (the "Third Party Vendors"), Customer further
acknowledges that it has received copies of all applicable license agreements for the Non ES&S Software Items
from the Third Party Vendors. None of the Non-ES&S Software Items has been independently authenticated in
whole or in part by ES&S, and none of ES&S' representations, warranties, covenants or agreements set forth
herein apply with respect to the Non-ES&S Software Items unless otherwise specifically stated herein.
c. Definifion of Use. For purposes of this Agreement, the term "Use" shall mean the right to copy or utilize all or
any portion of the instructions or data of the ES&S Software from tangible media supplied by ES&S ("Tangible
Media"). The ES&S Software maybe used only for internal purposes and shall not be used by, for, or on behalf
of, third parties. "Use" shall also mean the right to retain and consult the ES&S Software Documentation.
Customer's right to Use the ES&S Software and the ES&S Software Documentation shall not include the right to
do any of the following:
i. Copy, in whole or in part, any ES&S Software (except for backup and archive purposes and provided
that no more than one copy may be in existence at any one time for such purposes), any Tangible
Media or any ES&S Software Documentation;
ii. Reverse engineer, decompile, disassemble, re -engineer or otherwise create or attempt to create or
permit, allow or assist others to create the source code of the ES&S Software or the structural
framework of the ES&S Software;
iii. Cause or permit any use, display, loan, publication, transfer of possession, sublicensing or other
dissemination of the ES&S Software or the ES&S Software Documentation, in whole or in part, to or by
any third party without Licensor's prior written consent,
iv. Modify, enhance or otherwise change the ES&S Software;
v. Use the ES&S Software except as specified in the ES&S Software Documentation or as otherwise
authorized by ES&S in writing; or
vi. Use the ES&S Software on more items of Designated Equipment unless authorized in writing by ES&S.
8. Fees. The license fees for the ES&S Software, the ES&S Software Documentation, the Third Party Software and the
Third Party Documentation (collectively the "Licensed Items") far the Rental Term are set forth in Section 1 above and
shall be paid in accordance with the terms of Section 1.
9. Term; Termination. The license granted herein shall become effective on the date the ES&S Software is installed by
Customer (the "Start Date")and shall remain in force during the Rental Term. Upon termination of the license, Customer
shall immediately return the ES&S Software and any other Confidential Information in its possession or under its control
(including any and all copies) to ES&S. Termination of the license pursuant to this provision is in addition to any other
remedies available to ES&S at law or in equity.
10. Title: Copyright Notice. Customer acknowledges and agrees that: (a) all right, title and interest in and to the ES&S
Software, the ES&S Software Documentation and the Tangible Media is owned by ES&S, and Customer has only a
limited License to Use such items during the Software License Term. Customer agrees not to challengeright,
title and interest in and to the ES&S Software, the ES&S Software Documentation or the Tangible Media and to notify
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ES&S immediately if it becomes aware of any such challenge. Customer shall include the copyright and proprietary
rights notices which are set forth on each item of Tangible Media on any copies of the Software which are made from
such item of Tangible Media, Likewise, Customer shall include the copyright and proprietary rights notices which are set
forth on each item of Documentation on any copies thereof. If notified in writing of any action brought against Customer
based on a claim that the ES&S Software infringes on a United States patent, copyright or trademark right of a third
party, ES&S will defend such action at its expense and will pay any and all fees, costs or damages that may be finally
awarded in such action or any settlement resulting from such action.
11. EXpOrt. Customer acknowledges that the laws and regulations of the United States may restrict the export of certain
commodities and technical data of United States origin, including the Software, in any medium. Customer agrees that it
shall not export the Software or the Documentation in any form without the appropriate United States and foreign
government licenses. Licensee further agrees that its obligations pursuant to this Section 11 shall survive and continue
after the termination of this Agreement.
TERMS AND CONDITIONS RELATING TO RENTAL EQUIPMENT AND SOFTWARE
12. Limitation on Liability. ES&S' total liability to Customer for any losses, damages, costs or expenses of any nature,
whether direct or indirect, arising from or relating to ES&S' performance of this Agreement or the products or services
provided by ES&S hereunder, shall be limited to the aggregate amount paid by Customer to ES&S for the product(s) or
services(s) that caused the losses or damages or are the subject matter of the claim or cause of action. By entering into
this Agreement, Customer agrees to accept responsibility for (1) the selection of the Rental Equipment and Software to
achieve Customer's intended results; (H) the use (Use) of the Rental Equipment and Software; (c) the results obtained
from the use of the Rental Equipment and Software; and (d) the selection of, use of and results obtained from any
equipment, software or services not provided by ES&S and used with the Rental Equipment or Software.
Notwithstanding the foregoing, this limitation of liability does not apply to claims or actions involving patent, copyright, or
trademark rights as described in Section 10
13. Shipment; Title and Risk of Loss. ES&Swill ship the Rental Equipment and Software by common carrierto Customeron
a date mutually agreed upon by ES&S and Customer, and risk of loss with respect to the Rental Equipment and Software
shall pass to Customer when such items are delivered to Customer's place of business. Title to the Rental Equipment
shall remain in ES&S. ES&S shall also bear the risk of loss with respect to the Rental Equipment (except that Customer
shall bear the risk of loss with respect to, or damage to, the Rental Equipment which is caused by fire, the elements,
theft, vandalism, negligent or intentional acts of Customers employees or other events which are within the control of
Customer). During the period in which this Agreement is in effect, Customer shall, at its sole expense, maintain the
Rental Equipment in good operating condition and repairand protect the Rental Equipment from deterioration other than
normal wear and tear and shall procure and maintain insurance on the Rental Equipment to adequately insure the risks
of loss for which Customer is responsible hereunder. Upon request, Customer shall provide ES&S with copies of any
and all policies procured and maintained by Customer insuring Customer's risks of loss hereunder. Customer shall not
use the Rental Equipment for any purpose other than those for which it was designed and shall not, without the prior
written consent of ES&S, alter the Rental Equipment or affix to or install on the Rental Equipment any accessory,
equipment or device which was not supplied to it by ES&S. Customer shall not move the Rental Equipment from the
place where it was originally installed without ES&S' prior written consent and shall make the Rental Equipment and any
records pertaining thereto available to ES&S during regular business hours for inspection. Customer will not, without the
prior written consent of ES&S and subject to such conditions as ES&S may impose for its protection, affix any item of
Rental Equipment to any real property if, as a result thereof, such item of Rental Equipment will become a fixture under
applicable state law.
14. Time is of the Essence. ES&S shall provide the equipment, software, and services set forth in Section 1 in a timely and
accurate manner so as not to impede Customer from conducting the April 5, 2016 election according to Colorado law.
ES&S shall perform its services in an expeditious manner in accordance with a mutually agreed upon schedule
developed by the Town Clerk and ES&S, which schedule shall be executed by the Town Clerk and ES&S and upon said
execution, shall be fully incorporated herein.
15. No Third Party Beneficiaries. It is expressly understood and agreed that enforcement of the terms and conditions of this
Agreement, and all rights of action relating ko such enforcement, shall be strictly reserved to ES&Sand Customer, and
nothing contained in this Agreement shall give or allow any such claim or right of action by any other third party on such
Agreement. It is the express intention of the parties that any person other than ES&S or Customer receiving services or
benefits under this Agreement shall be deemed to be an incidental beneficiary only.
16. Prohibition Against Employing Illegal Aliens. ES&S shall not knowingly employ or contract with an illegal alien to perform
work under this contract. ES&S shall not enter into a contract with a subcontractor that fails to certify to the ES&S that
the subcontractor shall not knowingly employ or contract with an illegal alien to perform work under this contract.
ES&S will participate in either the E-verify program or the Department program, as defined in C.R.S. § § 8-17.5-101(3.3)
and 8-1 T5-101(3.7), respectively, in order to confirm the employment eligibility of all employees who are newly hired for
employment to perform work under the public contract for services. ES&S is prohibited from using the E-verify program
or the Department program procedures to undertake pre -employment screening of job applicants while this contract is
being performed,
If ES&S obtains actual knowledge that a subcontractor performing work under this contract for services knowingly
employs or contracts with an illegal alien, ES&S shall:
a. Notify the subcontractor and the Customer within three days that ES&S has actual knowledge that the
subcontractor is employing or contracting with an illegal alien; and
b. Terminate the subcontract with the subcontractor if within three days of receiving the notice required pursuant to
this paragraph the subcontractor does not stop employing or contracting with the illegal alien; except that ES&S
shall not terminate the contract with the subcontractor if during such three days the subcontractor provides
information to establish that the subcontractor has not knowingly employed or contracted with an illegal alien.
ES&S shall comply with any reasonable request by the Department of Labor and Employment made in the course of an
investigation that the Department is undertaking pursuant to the authority established in C.R.S. § 8-17.5-102(5).
If ES&S violates a provision of this Contract required pursuant to C.R.S. § 8-17.5-102, Customer may terminate the
contract for breach of contract. If the contract is so terminated, ES&S shall be liable for actual and consequential
damages to Customer.
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