HomeMy WebLinkAboutPR 14734: PREMIER ELECTION SOLUTIONS - RENTAL/LICENSE/SERVICES AGREEMENTinteroffice
MEMORANDUM
To: Mayor, City Council, and City Manager (\+~'
From: Val Tizeno, First Assistant City Attorney VV
Date: May 16, 2008
Subject: P. R. No. 14734
Attached is P. R. No. 14734 as it pertains to entering into
a Rental, License, and Services Agreement with Premier Election
Solutions for the June 21, 2008 Runoff Election Polling
Locations.
VRT:gt
Attachment
cc: City Secretary
Director of Finance
Drew Stewart
Sales Representative
PREMIER ELECTION SOLUTIONS
P. O. Box 1019
Allen, TX 75003
z.pr14549 memo
P. R. No. 14734
05/15/08 gt
RESOLUTION NO.
A RESOLUTION AS IT PERTAINS TO ENTERING INTO A
RENTAL, LICENSE, AND SERVICES AGREEMENT WITH
PREMIER ELECTION SOLUTIONS FOR THE JUNE 21,
7008 RUNOFF ELECTION POLLING LOCATIONS
WHEREAS, on May 10, 2008, the City of Port Arthur conducted a
General Election; and
WHEREAS, the City of Port Arthur will conduct a June 21, 2008
Runoff Election; and
WHEREAS, it is necessary to obtain the electronic voting
machines, equipment and supplies; and
WHEREAS, Premier Election Solutions has submitted a proposal,
attached hereto as Exhibit "A", for providing election services for
the June 21, 2008 Runoff Election; and
WHEREAS, the proposal includes equipment leasing, programming
of electronic voting machines, paper ballots, election official
training, equipment support, and tabulation services at the early
voting sites and the election day polling sites (a listing of ail
of the voting locations is attached hereto as Exhibit "B").
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF PORT ARTHUR, TEXAS:
z.pr19549
Section 1. That the facts and opinions in the preamble are
true and correct.
Section 2. That the City Secretary's office is herein
authorized to enter into a Rental, License, and Services
Agreement with Premier Election Solutions for the June 21, 2008
Runoff Election, in substantially the same form attached hereto
as Exhibit ~~A".
Section 3. That a copy of the caption of this Resolution
be spread upon the Minutes of the City Council.
READ, ADOPTED AND APPROVED on this day of
A.D., 2008, at a Meeting of the City Council of
the City of Port Arthur, Texas, by the following vote: AYES:
Mayor
Councilmembers
NOES:
MAYOR
ATTEST:
ACTING CITY SECRETARY
z.pi14599
APPROVED AS TO FORM:
~` ~
CITY ATTORNEY ~c8~~1F~Q~N'~~i~
APPROVED FOR ADMINISTRATION:
CITY MANAGER
ROVED AS TO THE AVAILABILITY OF FUNDS:
DIRECTOR OF FINAN'~ ~~
~~~~~ itc~~ ~'~~
z.pr19549
EXHIBFT
P.O. 6oz 1079
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ELECTION SOLUTIONS Fax (274)383-1596
RENTAL, LICENSE, AND
SERVICES AGREEMENT
CUSTOMER: .City of Port Arthur PREMIER ELECTION SOLUTIONS, INC.
Addresses PO Box 1089 P.O. Box 1019 Ovemlght Deliveries:
For Notices and Port Arthur, TX 77641 Allen, TX 75013 1253 Allen Station Pkwy.
BIIIIng: Attn: Contracts Department Allen, TX 75002.
Attn: Contracts Department
For Sfiipping 444 4th Street
(if different): Port Arthur, TX 77641
Contacts: Terri Hanks Therese Covington, Paralegal
Drew Stewart, Sales Representative
Phone: 409.983.8117 46975-8990, ext. 1136 ll 46975-8990, ext 1116
Fax; 21483.1596 ll 214J83.1596
Email: thanks~portarthur.net Marie.CovingtonRpremlerelections.com
Andrew.Stewart~ premierelections.com
County: Jefferson County Effective Date: Date of the last signature set forth below
State: TX Term Date: December 31, 2008
Premier Election Solutions„ Inc. ("Premier') andthe Customer (as listed above) hereby enter into this Rental, License and Services
Agreement ("Agreement") as of the date of the last signature set forth below (the "Effective Date") and expires on the shown above
unless earlier terminated under Section 12 or extended under Section 2.1 below (the "Term"). The Customer and Premier are
sometimes hereinafter referred to collectively as the "Parties" and each individually as a "Party". This Agreement consists of this
"Signature Page,' the below standard terms and conditions, and the following exhibit, attached hereto and incorporated herein by
this reference:
• Exhibit A-Pricing and Paymeni Schedule
The parties have executed this Agreement by their duly authorized representatives as of the Effective Date.
City of Port Arthur PREMIER ELECTION SOLUTIONS, INC.
Authodzed Signature Date Authorized Signature Date
Pdnted Name, Title Printed Name, Title
APPROVED AS TO LEGAL FORM
Authodzed Signature Date Authorized Signature Date
Therese Covln on, Parole al
Printed Name, Title Printed Name, Title
Should the Customer have any questions or concerns regarding the applicable terms and
conditions, please contact the Premier Contracts Departmenf at 469=675-8990; ext: 1136 or
via email at PremierContracts@premierelections.com. For any questions regarding the
attached quote/pricing, please contactthe Sales Representative listed above.
Premier Election Solutions, Inc. Rental, Dcense, and ServicesAgreemeM
May i6, 2006 Page 1 of 7 Version2007-03
Definitions
1.1. `Premier Software" means Premier's proprietary software and firmware as delivered to Customer on digital
or magnetic media or loaded on the Hardware delivered hereunder, together with any user manuals or other
associated documentation.
1.2. "Hardware" means Premier's voting system machines as specified in Exhibit A.
1.3. "Licensed Software" means the. Premier Software and Third-Party Software, collectively, together with any
user manuals or other associated documentation.
1.4. "Specifications" means descriptions and data regarding the features, functions and performance of the
Hardware and/or Premier Software, as set forth in associated user manuals or other applicable documentation.
1.5. "System" means the Hardware and Licensed Software, collectively.
1.6. "Third-Party Software" means software owned by a third party that is provided by Premier hereunder,
together with any user manuals or other associated documentation.
2. Term.
2.1. The Parties may extend the Term of this Agreement by agreeing in writing, before the expiration date set
forth above, on a later expiration date;
2.2. Section 7 (to extent of any payments still due) and Section 10 will survive any expiration or termination of
this Agreement in accordance with their respective terms; and
2.3. Terms of this Agreement that do not survive expiration or termination will nonetheless be effective in
determining the Parties' rights and obligations as to acts, omissions or events taking place before such expiration
or termination.
3. Premier's Responsibilities.
3.1. Commencing on the Effective Date and continuing during the Term, Premier will provide the services
described in the scope of work attached. hereto as Exhibit A.
3.2. Premier shall rent the Hardware to Customer pursuant to Section 5 of this Agreement.
3.3. Premier shall license the Licensed Software to Customer pursuant to Section 6 of this Agreement.
3.4. Premier shall provide the services described in Exhibit A with respect to System delivery,. installation and
training. and support.
3.5. • Premier shall appoint a customer support representative, who will serve as a first point of contact with
Customer, will be authorized to make day-to-day decisions relating to this Agreement and will have access to
Premier's management for other decisions.
3.6. Premier shall have conducted criminal background checks on all on-site Premier personnel as a regular
course of doing business.
3.7. Premier shall notify the Customer in writing, via a-mail or phone call no less than one (1) hour prior to the
on-site visit of any Premier personnel to the Customer's Jurisdiction.
4. Customer Responsibilities
4.1, Customer shall provide Premier with physical accommodations reasonably required for Premier to perform
its obligations, including premises access, electrical power; data connectivity, heat, ventilation and air
conditioning.
4.2. Customer shall provide access to information and personnel reasonably required for Premier to perform its
obligations.
4.3. Customer shall appoint a project manager, who will serve as a first point of contact with Premier, will be
authorized to make day-today decisions relating to this Agreement and will have access to Customer's
authorized officials forother decisions.
4.4. CUSTOMER. SHALL RETAIN ALL ORIGINAL. RENTAL EOUIPMENT PACKAGING, INCLUSIVE OF
INNER PLASTIC BAGS AND TIES, TO ELIMINATE OR REDUCE THE EXPENSES OF REPACKAGING
SUPPLIES REQUIRED TO RETURN THE EQUIPMENT UPON COMPLETION OF RENTAL.
Premier Election Solutions, Inc. - - Rental, License, and Services Agreement
May i6, 2008 Page 2 of 7 Version 2007-03
4.5. Upon expiration or termination of this Agreement for any reason, Customer will cease all use of the System
and promptly make all components of the System available for pickup by Premier.
5. Hardware
5.1. Premier agrees to rent the Hardware to Customer during the Term.
5.2. Customer acknowledges that, unless and until Customer exercises its purchase option, as between
Premier and Customer, Premier owns the Hardware and retains title thereto. Customer shall avoid damage or
loss to the Hardware, normal wear and tear excepted. Customer shall not permit any Hardware to be moved
outside the geographic area of Customer's jurisdiction ("Jurisdiction"), or that of their legal representative„ or
surrender control of or sell any Hardware, and shall keep the Hardware free from security interests and other
encumbrances.
6. Licensed Software
6.1. Subject to the terms of this Agreement, Premier grants Customer anon-exclusive license, without the right
to transfer or sublicense, to use the Premier Software only in object code form, only during the Term and only in
preparing for and conducting federal, state or local elections, run-offs, referenda and other similar voting events
that take place within the geographic area of the Customer's "Jurisdiction". The foregoing license may be
exercised on Customer's behalf by any of its officials, employees or volunteers authorized to conduct Elections..
6.2. Subject to the terms of this Agreement, Premier agrees to sublicense the Third-Party Software to Customer
only in object code form, only for use during the Term as part of the System and only for the purposes described
in Section 6.1 above. This sublicense is conditioned on Customer's continued compliance with the terms and
conditions of the end-user licenses contained on or in the media on which Third-Party Software is provided.
6.3. Other than as expressly set forth in Sections 6.1 and 6.2 above, Premier does not, expressly or by
implication, assign or license any intellectual property rights to Customer or to any third party.
6.4. Upon expiration or termination of this Agreement for any reason, the licenses granted in this Agreement will
terminate without further action by either Party, and Customer will cease all use of the Licensed Software.
7. Payment
7.1. In consideration of the products, licenses and services provided under this Agreement, Customer shall pay
Premier the amounts specified in Exhibit A at the times specified therein.
7.2. Customer is responsible for all sales, excise, personal property or other taxes or duties on the amounts
paid or products, licenses or services provided under this Agreement. If Customer is exempt from such taxes or
duties, Customer shall provide Premier with a tax exemption certificate.
8. Limited Warranties
8.1. Premier warrants that, during the Term, the Premier Software will perform free of defects that would prevent
the System from operating in conformity in all material respects with its Specifications, so long as such Premier
Software is operated with hardware and software approved by Premier for use with such Premier Software.
8.2. Premier warrants that, during the Term, the Hardware will perform free of defects that would prevent the
System from operating in conformity in all material respects with its Specifications, so long as such Hardware is
operated with hardware and software approved by Premier for use with such Hardware.
8.3. The warranties in Sections 8.1 and 8.2 do not apply to the Third-Party Software or to any other third-party
products. Notwithstanding the foregoing:
8.3.1. To the extent permitted by the manufacturers of Third-Party Software, Premier shall, during the Term,
pass through to Customer all warranties such manufacturers make to Premier regarding the operation of
such Third-Party Software.
8.3.2. Premier warrants that, during the Term, all components of the Hardware and Premier Software will
interface and function properly with the Third-Party Software, so long as.the Third-Party Software operates
in compliance with all applicable manufacturers' warranties.
8.4. Premier will promptly undertake repair or replacement of any Hardware or Premier Software that fails
during the Term to operate in accordance with any warranty under this Agreement. During the election cycle (one
Premier Election Solutions, Inc. Rental, License, and Services Agreement
May 16, 2008 Page 3 01 T Version 2007-03
month prior to and after each election date), repair or replacement will be made within 48 hours after request for
service. Such repair or replacement is Customer's exclusive remedy for such a failure.
8.5. PREMIER DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER WRITTEN,
ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY BASED ON A COURSE OF DEALING,
COURSE OF PERFORMANCE OR USAGE OF TRADE.
9. Limitation of Liability. Neither Party will be liable to the other Party under this Agreement for (1) consequential,
special, punitive or incidental damages or (2) compensatory damages in excess of the total of all amounts payable
under this Agreement during the six-month period preceding the event or events giving rise to liability,
10. Confidential Information. Neither Party will use or disclose the other Parts Confidential Information without the
other Party's prior written consent. "Confidential Information" means, as to Premier, the Premier Software and all user
manuals and other documentation provided hereunder and, as to either Party, any information labeled confidential by the
Party when it is disclosed. This paragraph does not apply to information (a) after it becomes publicly known through no
fault of the receiving Party, (b) already rightfully in the receiving Party's possession when received as shown by the Party's
records maintained in the ordinary course, (c) developed by the receiving Party without the use of the other Party's
Confidential Information as shown by the Party's records maintained in the ordinary course or (d) required to be disclosed
by law so long as the other Party is given immediate notice of the disclosure order or request (including requests under
open records acts or other similar laws) that the information be disclosed and the fullest opportunity permitted by law to
prevent or limit the disclosure. Each Party acknowledges that its breach of this Section 10 may cause the other Party
substantial and irreparable harm for which the other Party would be entitled to equitable relief in addition to any
available legal remedies. Each Party hereby waives any requirement to post bond or provide other security as a
condition to receiving such equitable relief.
11. Force Majeure. Premier's obligations hereunder will be suspended. so long as its performance is impeded or
prevented by causes beyond Premier's reasonable control, including acts of God, embargoes, acts of war (including
terrorist attacks), labor disturbances and acts or regulations of governmental entities.
12. Termination
12.1 Termihation for Cause. If either Party materially breaches this Agreement and does not cure the breach
within 30 days after receiving written notice of the breach from the non-breaching Party, the non-breaching Party
may terminate this Agreement as of a termination date specified in that notice or in a subsequent notice delivered
within the 30-day period. If the breach is of such a nature that it cannot be completely cured within the 30-day
period, no default will occur if the Party receiving the notice begins curative action within the 30-day period and
thereafter proceeds with reasonable diligence and in good faith to cure the breach as soon as practicable.
12.2 Termination For Convenience.
12.2.1 Premier shall have the right to terminate this Agreement for any reason upon sixty (60) days' prior
written notice to the other party. During the notice period, Premier shall continue to provide. the agreed.
upon services, unless Customer shall direct that Premier cease all work, in which case the Agreement shall
be deemed terminated consistent with the preceding during such notice period.
12.2.2 Customer shall have the right to terminate this Agreement for any reason with Premier retention of
the rental price to the extent as prescribed:
12.2.2.1 Written notice received by Premier 30 days or more from Customer's election, Premier
shall retain 10% of the rental price.
12.2.2.2 Written notice received by Premier 29 days or less from Customer's election, Premier
shall retain 50% of the rental price.
13. Indemnification. To the extent permitted by law, and notwithstanding any other provision in this. Agreement to
the contrary, each party to this Agreement shall indemnify, defend, and hold harmless the other party and its officers,
directors, agents, employees, and owners from and against any and all demands, claims, damages to persons or
property, losses, and liabilities, including reasonable attorneys' fees (collectively, "Claims"), arising solely out of or
solely caused_by the indemnifying party's gross negligence or willful misconduct in connection with the services
contemplated by this Agreement.
14. Risk of Loss Insurance. Customer shall bear the entire risk of loss or damage to the Hardware and Licensed
Software. The occurrence of any such loss or damage shalt not permit Customer to delay or reduce the payment of
Premier Election Solirtions, Inc. ~ Rental, License, and ServicesAgreemenf
May 76, 2006 Page 4 of 7 Version 2007-03
any fees prescribed under this Agreement. Customer shall, at its own expense, obtain and maintain property and
casualty insurance for the Hardware and Licensed Software against all risks of loss or damage. The amount of such
insurance shall not be less than the replacement cost of the Hardware and Licensed Software. All policies for such
insurance shall (i) designate Premier as a named insured and Premier and Customer as loss payees, as their interests
may appear and (ii) contain a provision that entitles Premier to at least fifteen (15) days' written notice prior to
cancellation or modification of such insurance policy. Customer shall provide Premier with a certificate of insurance
with respect to such policy on or before the time of delivery of the System.. For purposes of calculating insured loss,
Premier shall provide replacement copies of lostor damaged Premier Software for the cost of materials, provided that
Premier provides Customer with proof of loss or damage.
15. Miscellaneous
15.1 Neither Party may assign any rights or delegate any obligations under this Agreement without the prior
written consent of the other Party; provided that Premier may, upon 30 days' prior written notice to Customer,
assign its rights and delegates its obligations under this Agreement to another entity controlled, directly or
indirectly, by Diebold, Incorporated, and may, upon prior notice to Customer, subcontract obligations under this
Agreement to third-party providers. Any attempted assignment in violation of this Section will be null and void.
15.2 If any term of this Agreement is held to be unenforceable, the other terms of this Agreement will be
enforced to the fullest extent permitted by law.
15.3 This Agreement may be executed in counterparts, each of which will be deemed an original but all of which
together will constitute one and the same instrument.
15.4 This Agreement will be governed by and construed. under the laws of the State as identified on page 1 of
this Agreement, and the state and federal courts within said State have non-exclusive jurisdiction for all actions to
enforce this Agreement.
15.5 No waiver or failure by a Party to assert any right under this Agreement on any one occasion will operate as
a waiver of any other right on that occasion or any right on any other occasion.
15.6 All notices under this Agreement will be delivered personally, sent by confirmed facsimile transmission, sent
by nationally recognized express courier or sent by certified or registered U.S. mail, return receipt requested, to
the address shown below or such other address as may be specified by either Party to the other Party in
compliance with this Section. Notices will be deemed effective on personal receipt, receipt of such electronic
facsimile confirmatioh, two days after such delivery by courier and four days aftersuch mailing by U.S. mail.
15.7 This Agreement, including the Exhibit attached hereto as of the Effective Date (which are incorporated
herein by this reference), is the complete and final expression of the Parties' agreement regarding its subject
matter and supersedes all prior or contemporaneous communications or agreements, written or oral, by the
Parties regarding that subject matter. In the event of any conflict or ambiguity between the terms set forth in the
body of this Agreement (i.e., Section 1.1 through this Section 15.7) and those set forth in the attached Exhibit, the
terms set forth in the body of this Agreement will prevail. No amendment or supplement to this Agreement is
effective unless in writing and signed by both Parties' authorized representatives. In this Agreement, the word
"include" (or any of its derivatives) is deemed to be followed ih all contexts by the words "without limitation."
Headings are included for convenience and will be ignored in interpreting this Agreement.
Premier Election Solutions, Inc. - Rental, License, and Services Agreement
May76, 2006 Page 5 of 7 Version 2007-03
EXHIBIT A
SEE ATTACHED QUOTATION FORM FOR
DETAIL RENTAL DESCRIPTION AND PRICING
Anv auote(s}attached to this Agreement shall be incorporated therein for all purposes.,.
Payment Terms
Customer shall pay the amounts indicated within 30 days from delivery of the equipment or receipt of
Premier's invoice, whichever first occurs.
Premier Election Solutions, Inc. ~ Rental;. License, and Services Agreement.
May 16; 2008 Page 6 of 7 Version 2007-03
PREMIER-
~tF.C'rION SOLO?IONS
Jurisdiction
CoMad
Phone
Email
Address
Date of Election
,.,
of Pon AMUr
7emi Hanks
403983.6117
thank a h r.n
PO Box 1089 /444 4th Street
Port Arthur, 7X77641
June 21, 2008
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Premier Election Solutions, Inc. Rental, license; and Services AgreemenT
May 16, 2008 Page 7 017 Version 2007-03'
EXHIBIT ~~B"
ELECTRONIC VOTING EQUIPMENT REQUEST
JUNE 21, 2008 RUNOFF ELECTION
EARLY VOTING LOCATIONS ADDRESS ELECTRONIC VOTING UNITS"
Ci Hall 444 Fourth SVeet 3
Port Arthur Public Libra 4615 Ninth Avenue 4
Fire Station No. 1 1215 Woodworth 1
H.O. P.E. Buildin . 701 Rev. Dr. Ransom Howard Street 1
Fire Station No. 3 2232 Canal Port Acres 1
Fire StationNo. 4 5030 South Gulfwa Drive Sabine Pass 1
Queen of Viet NamChurch Recto 800 Ninth Avenue 1
TOTAL EARLY VOTING UNIT
ELECTION DAY LOCATIONS ADDRESS 12
ELECTRONIC VOTING UNITS `
Ci Hall 444 Fourth Street 3
Fire Station No. 4 5030 South Gulfwa Drive Sabine Pass 1
Ste hen F. Austin School 2441 61st Street 3
T well Elements School 4401 Ferndale ~ 3
Stillwell Technical Center 4801 Ninth Avenue 5
Lee Elements School 3939 Delaware 2
Thomas Edison Middle School 3501 12thStreet 2
DeQueen Elements 740 DeQueen Boulevard 2
Memorial 9th Grade Cam us 1023 Abe Lincoln 3
Taft Elements 2500 Taft Avenue 1
TOTAL ELECTION DAY UNIT ~ ~ 25
TOTAL RUNOFF ELECTION UNITS 3Z
'Includes One ADA Electronic Voting Unit