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HomeMy WebLinkAboutResolution No. 2012-150 RESOLUTION 2012-150 BEING A RESOLUTION OF JOINT POWERS AGREEMENT BETWEEN ANOKA COUNTY, CITY OF COLUMBIA HEIGHTS AND SCHOOL DISTRICT 13 IN ANOKA COUNTY TO ALLOCATE COSTS FOR ELECTION EXPENSES AND AUTHORIZING THE MANAGEMENT COMMITTEE CHAIRT AND COUNTY BOARD CHAIR TO APPORVE MINOR NON-SUBTANTIVE CONTRACT CNAGES THROUGH THE APPROVAL PROCESS OF THE OTHER GOVERNMENTAL ENTITIES. WHEREAS: This is a joint Powers Agreement ("JPA") between the County of Anoka ("County") and THE CITY OF COLUMBIA HEIGHTS AND SCHOOL DISTRICT 13 IN ANOKA COUNTY.("Governmental Entities"); WHEREAS: Entered into pursuant to Minn. Stat. § 471.59, for the purchase, maintenance and use of election equipment, including conducting elections, by the County on behalf of the County and the Governmental Entities. Anoka County Contract No. 2012-0362 JOINT POWERS AGREEMENT BETWEEN ANOKA COUNTY AND THE MUNICIPALITIES,TOWNSHIPS AND SCHOOL DISTRICTS IN ANOKA COUNTY TO ALLOCATE COSTS FOR ELECTION EXPENSES This is a joint Powers Agreement("JPA")between the County of Anoka("County")and THE MUNICIPALITIES, TOWNSHIPS AND SCHOOL DISTRICTS IN ANOKA COUNTY ("Governmental Entities")entered into pursuant to Minn. Stat. § 471.59, for the purchase, maintenance and use of election equipment, including conducting elections, by the County on behalf of the County and the Governmental Entities. Section 1 Term 1. This JPA shall be in effect for a four year term,beginning January 1,2013 until December 31,2016, subject to automatic renewal on January 1 of each subsequent calendar year beginning January 1, 2017. Section 2 Contract Termination 2. During the initial four year term,this JPA may only be terminated by written agreement of the County with the effected Governmental Entity. Beginning January 1, 2017, a Governmental Entity's participation in this agreement may be terminated by that Governmental Entity providing written notice to the remaining parties no later than June 1 of any year, effective on January 1 of the following year. Upon termination of the agreement, all right title and interest in any election equipment purchased by the County under the terms of this agreement for use by the Governmental Entity shall remain with the County. Any Governmental Entity withdrawing from this agreement assumes all costs,responsibilities and liabilities related to the purchase, maintenance and use of voting equipment in the conduct of elections in that jurisdiction. Any amounts of the Governmental Entity's share of the of the initial cost of procurement of the Voting Equipment System and their proportional share of any other costs incurred by the County on their behalf that remain unpaid as of the date of termination shall become immediately due and payable by the Governmental Entity to the County. Section 3 Voting Equipment System Definition 3. For purposes of this agreement,the Anoka County Voting Equipment System means a system in which the voter records votes by means of marking a ballot, so that votes may be counted by automatic tabulating equipment in the polling place where the ballot is cast or at a counting center.An electronic voting system includes automatic tabulating equipment; non-electronic ballot markers; electronic ballot markers, including electronic ballot display, audio ballot reader,and devices by which the voter will register the voter's voting intent; software used to program automatic tabulators and layout ballots; computer programs used to accumulate precinct results;ballots; system documentation; and system testing as well as software used to manage the assignment, deployment, chain of custody, and associated logistical operations of said equipment in Anoka County. Section 4 Applicability 4. This agreement, and the use of the Voting Equipment System defined herein,between the County and the Governmental Entities is applicable for any election at which offices or questions for the following categories are voted on: Category A: Federal Offices State Offices or Constitutional Amendments Judicial Offices County Offices or Ballot Questions Soil and Water District Offices or Ballot Questions Category B: Municipal(Township) Offices or Ballot Questions Category C: School District Offices or Ballot Questions Category D: Hospital District Offices or Ballot Questions Section 5 County Responsibilities 5. Except as otherwise provided in this contract or required by statute or state or federal rule, the County shall be responsible for preparing the specifications for the purchase and maintenance of the Voting Equipment System as defined herein and for the purchase and maintenance of the system, including making all payments and expenditures for capital and on-going operating costs related to the voting equipment system. In addition, for all Category A,B, C and D Elections,Anoka County shall: 5.1. Perform voting equipment system programming including ballots,ballot counters,ballot markers, and other components of the voting equipment system used to mark,count, record or report election returns and statistics. 5.2. Perform programming and testing of the State Election Reporting System interface, Subject to policies of the State. 5.3. Program and develop a voting equipment testing plan for each election according to statutory requirements. 5.4. Provide ballot design and layout services, and arrange for the printing of ballots to be used in the elections. Section 6 Governmental Entities' Responsibilities 6. Except as otherwise provided in this contract,each individual Governmental Entity shall be responsible for and shall perform all duties and assume all costs associated with the production of test decks, and conduct of pre-election and post-election tests and audits of precinct voting equipment for each election and shall utilize county provided software, as determined necessary by the County,to track the testing,assignment, deployment,chain of custody, and associated logistical operations of said equipment in Anoka County, as follows: 6.1. When Category A and/or B or D offices or questions appear on the ballot: 6.1.1. The municipality shall be responsible for and assume all costs associated with the production of test decks, and conduct of pre-election and post-election tests and audits of precinct voting equipment for all elections which include a Category A and/or B or D office or question. 6.1.2. The municipality shall assume all costs required to arrange for the use of polling places in the manner required by the Minnesota election law, for ensuring the physical set up of rooms and furnishings are conducive to the voting process, and for ensuring that all necessary equipment and supplies are delivered to the polling place for use on Election Day. 6.1.3. The municipality shall assume all costs related to picking up ballots, supplies and equipment from the Anoka County Elections and Voter Registration Office in Anoka and other storage locations that may be arranged from time to time,and transporting them to and from the polling place. 6.1.4. The municipality shall assume all costs related to issuing,receiving and processing absentee ballots cast by in-person absentee voters in that municipality including procurement and preparation of physical spaces, equipment,and staff needed to administer the process, and costs for delivery of voted ballots to the Anoka County Central Count Absentee Precinct. 6.1.5. The municipality shall assume all costs related to recruiting,hiring, and paying Election Judges for all hours served including, training,testing, election day assignments, and any other work assignments associated with the election. 6.2. When only Category C offices or questions appear on the ballot: 6.2.1. The School District shall be responsible and shall assume all costs associated with the production of test decks, and conduct of pre-election and post-election tests and audits of precinct voting equipment for all elections which include only Category C offices or questions. 6.2.2. The school district shall assume all costs required to arrange for the use of polling places in the manner required by law, for ensuring the physical set up of rooms and furnishings are conducive to the voting process, and for ensuring that all necessary equipment and supplies are delivered to the polling place for use on Election Day. 6.2.3. The school district shall assume all costs related to picking up ballots, supplies and equipment from the Anoka County Elections and Voter Registration Office in Anoka and other storage locations that may be arranged from time to time, and transporting them to and from the polling place. 6.2.4. The school district shall assume all costs related to issuing,receiving and processing absentee ballots cast by in-person absentee voters in the school district including procurement and preparation of physical spaces, equipment, and staff needed to administer the process, and costs for delivery of voted ballots to the Anoka County Central Count Absentee Precinct. 6.2.5. The school district shall assume all costs related to recruiting,hiring, and paying Election Judges for all hours served including, training,testing, election day assignments, and any other work assignments associated with the election. Section 7 Allocation of Election Expenses 7. Except as already specifically provided for herein,the Voting Equipment System procurement,maintenance and support cost shall be divided between the county, its municipalities, and school districts as follows: 7.1. The County shall incur 55%of the actual cost of procurement, operation and maintenance of the system over the duration of this contract. 7.2. Municipalities located wholly or in part in Anoka County shall, collectively, incur 30%of the actual cost of procurement, operation and maintenance of the system over the duration of this contract. 7.3. School Districts located wholly or in part in Anoka County shall incur 15%of the actual cost of procurement, operation and maintenance of the system over the duration of this contract. 7.4. Anoka County shall make all payments and expenditures for capital and ongoing operating and maintenance costs related to the system throughout the duration of this contract. 7.5. The annual fee for each jurisdiction shall be established as follows: 7.5.1. Each individual municipality shall pay a fee equal to that percentage of the total Anoka County population residing in that municipality at the time of the 2010 census multiplied by the municipal share(30%) of the actual cost of procurement(prorated over ten annual installments),plus the actual cost of operation and maintenance of the system,as solely determined by the County, calculated annually throughout the duration of the contract. 7.5.2. Each individual school district shall pay a fee equal to that percentage of the total Anoka County population residing in that school district at the time of the 2010 census multiplied by the school district share(15%)of the actual cost of procurement(prorated over ten annual installments), plus the actual cost of operation and maintenance of the system, as solely determined by the County, calculated annually throughout the duration of the contract. 7.5.3. Each Governmental Entity shall be invoiced annually on June 1 for each calendar year of the agreement for the above referenced fees. Said fees shall be due and payable within thirty(30)calendar days of invoicing. 7.5.4. The Governmental Entities hereby agree that they will not reallocate any of the costs incurred herein. 7.6. For each governmental entity,the County shall determine that proportion of the ballot devoted to offices and questions for that entity as a percentage of the total number of column inches on the ballot, and provide an invoice to the governmental entity for that share of the cost of ballot printing,paper and normal delivery charges. 7.7. The County shall pay the cost of postage for all domestic mailed absentee ballots cast in the county and absentee ballots cast under the Uniformed Overseas Citizens Absentee Voting Act(UOCAVA) except those absentee postage costs incurred by Municipalities designated to administer absentee voting laws under M.S. 20313.05. Section 8 Documentation of Election Expenses 8. Documentation of actual expenditures as required by the County is required for the allocation of election expenses pursuant to this agreement. Invoices or billing statements are acceptable documentation for goods or services purchased for vendors. Section 9 Ownership 9. The Governmental Entities acknowledge that the County owns the Voting Equipment System and that the Governmental Entities are authorized to use said Voting Equipment System for official election related purposes. Use of the Voting Equipment System by the Governmental Entities for any other purpose is strictly prohibited absent express written consent of the County. The Governmental Entities hereby acknowledge and agree that the Voting Equipment System may contain proprietary and trade secret information that is owned by a third party and is protected under federal copyright law or other laws,rules, regulations and decisions. The Governmental Entities shall protect and maintain the proprietary and trade secret status of the Voting Equipment System in their possession. Section 10 Handling Of Equipment and Insurance 10. Each municipality shall be responsible for storage of elections equipment assigned by the county to that municipality. Municipalities shall make all necessary elections equipment in its possession available to other entities as directed by the county. Each Governmental Entity acknowledges that it shall be responsible for the Voting Equipment System while it is in the Governmental Entity's custody. Each Governmental Entity, 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 Voting Equipment System while it's in the Governmental Entity's custody and this contract is in effect unless such costs, fees, damages and expenses are then currently covered under a manufacturer warranty covering said equipment.The Governmental Entities shall be responsible for,provide coverage for and shall provide proof of general liability and worker's compensating insurance(Hold Harmless Agreement) for all individuals providing services required by this contract. In addition to the foregoing,the Governmental Entities shall, during the term of this contract, maintain,through commercially available insurance or on a self-insured basis,property insurance coverage on all of the voting systems used or intended for use in this agreement to cover all repairs or replacement of the voting equipment if damaged or stolen.The Governmental Entities are responsible for any deductible under their policy. Section 11 Independent Contractor 11. It is agreed that nothing in this contract is intended or should be construed as creating the relationship of agents,partners,joint ventures, or associates between the parties hereto or as constituting the County or the Governmental Entities as the employee of the other entity for any purpose or in any manner whatsoever. The County is an independent contractor and neither it, its employees, agents,nor its representatives are employees of the Governmental Entities. From any amounts due the County,there shall be no deductions for federal income tax or FICA payments,nor for any state income tax,nor for any other purposes which are associated with an employer-employee relationship unless required by law. Section 12 Data Practices 12. All data created, collected,received,maintained, or disseminated for any purpose in the course of this contract is governed by the Minnesota Government Data Practices Act, any other applicable statute, or any rules adopted to implement the Act or statute, as well as federal statutes and regulations on data privacy. Section 13 No Waiver 13. 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. Section 14 Governing Law 14. This Agreement shall be governed by and construed in accordance with the laws of the State of Minnesota. Section 15 Entire Agreement 15. 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 and hereby rescinds and replaces all prior Agreements with the respective Governmental Entities with this Agreement. 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. Section 16 No Assignment 16. 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. Section 17 No Warranty 17. The Governmental Entities agree that the County is furnishing the Voting Equipment System on an "as is"basis,without representation or any express or implied warranties, other than those provided by any maintenance agreement entered into by the County for the maintenance of the Voting Equipment System, including but not limited to, fitness for particular purpose, merchantability or the accuracy and completeness of the Voting Equipment System. The Governmental Entity's exclusive remedy and the County's sole liability for any substantial defect which impairs the use of the Voting Equipment System for the purposes stated herein shall be the right to terminate this agreement. The County does not warrant that the Election Voting Equipment System will be error free.The County disclaims any other warranties, express or implied, respecting this agreement or the Voting Equipment System. In no event shall the County be liable for actual, direct, indirect, special, incidental, consequential damages (even if the County has been advised of the possibility of such damage) or loss of profit, loss of business or any other financial loss or any other damage arising out of performance or failure of performance of this Agreement by the County. Except as otherwise specifically provided for in this agreement, County and the Governmental Entities 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 any 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 Governmental Entities or County of any statutory or common law defenses, immunities, or limits on liability. Section 18 Notice 18. 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 Governmental Entity: To the person and address designated by each Governmental Entity in writing. To the County: Anoka County Administrator ADDRESS Copy to: Anoka County Elections Manager ADDRESS Section 19 Audit Provision 19. Both parties agree that either party,the State Auditor,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. Section 20 Survival of Provisions 20. It is expressly understood and agreed that the obligations and warranties of the Governmental Entity and County hereof shall survive the completion of performance and termination or cancellation of this Agreement. Section 21 Authority 21. The person or persons executing this Joint Powers Agreement on behalf of the Governmental Entity and County represent that they are duly authorized to execute this Joint Powers Agreement on behalf of the Governmental Entity and the County and represent and warrant that this Joint Powers Agreement is a legal,valid and binding obligation and is enforceable in accordance with its terms. (Rest of page left intentionally blank) NOW,THEREFORE,BE IT RESOLVED, that the City Council of the City of Columbia Heights does agree to enter into a joint Powers Agreement("JPA")between the County of Anoka("County")and SCHOOL DISTRICT 13 IN ANOKA COUNTY("Governmental Entities")entered into pursuant to Minn. Stat. § 471.59, for the purchase,maintenance and use of election equipment,including conducting elections, by the County on behalf of the County and the Governmental Entities. Passed this 10th day of December 2012. Offered by: Diehm Seconded by: Schmitt Roll call: All Ayes Gary L. Peterson, ayor Attest: Tori Leonhardt City Clerk/Council Secretary