HomeMy WebLinkAboutMINUTES - 08152006 - C.78 TO: BOARD OF SUPERVISORS
s? f: Contra
FROM: STEVE WEIR, County Clerk-Recorder =' -_--:`< Costa I
:w ?>
DATE: August 15, 2006 �- VAN. -
County
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SUBJECT: APPROVE AND AUTHORIZE the Clerk-Recorder or designee to execute a contract
with Election Systems & Software, Inc. (ES&S) to purchase one future year of
licensing, service and maintenance coverage for S452,281.28. (Federal Help America
Vote Act funds)
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S?EC.='C REO!ES-(S)OR RECOM...'.:ENDATION!S}&3ACKGROUND AND uS-'F'CATIO%
RECOMMENDED ACTIONS: I
APPROVE AND AUTHORIZE the Clerk-Recorder or designee to execute a contract with Election
Systems & Software, Inc. (ES&S) to purchase one future year of licensing, service and
maintenance coverage. I
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FINANCIAL IMPACT: i
The cost of the additional year of licensing, service and maintenance is S452,281.28. By
purchasing future licensing, maintenance and support through 2011, we can submit for Federal
grant reimbursement, which will save Contra Costa future maintenance costs that would have
been charged to the General Fund over the next 5 years (Contra Costa has already purchased
four years of future services).
REASONS FOR RECOMMENDATION/BACKGROUND:
The Federal Help America Vote Act (HAVA), requires that we have a way to allow voters with
physical and/or visual disabilities to vote confidentially and unassisted. Our new voting system
meets these requirements, but requires specialized maintenance in order to perform effectively.
CONSEQUENCES OF NEGATIVE ACTION: I
If we do not meet Federal HAVA requirements for accessibility and language issues, the County
will be subject to State and Federal sanctions.
Failure to correctly maintain the equipment could result in Election Day systems that fail during a
power outage or the need to replace the batteries, which could cost more than S150,000.
CONTINUED ON ATTACHFiENT: ✓YES SIGNATURE:
i/ :ZE-0%lMENDAT.ON CF COiNTYAIIMINISTRAT.CR RCCOP.M.E\• 'ION OF'BOAR `.A."IT-EE
✓APPROVE OTrIER
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S:GNATURE(S):
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ACTION OF BCRD N Ar -USS �S �1Y�tp
APPROVED AS ECOMM.ENDED r OTHER r
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VOTE OF SUPERVISORS: HERBY CERTIFY THAT: THIS IS ., TRUE AND
CORRECT COPY OF AN ACTION TACE% ANG
UNANIMCUS (ABSENT "()Cl ) ENTERED ON MINUTES OF 7HE BCARD OF
AYES: NOES: SUPERVISORS ON TRE DATE SHC`r N.
ABSENT: ABSTAiN: I
contact: Candy Lopez. AT'EST=D: DATE) A%AgAAS -L F2 , aQGla
6-4173
..0-1%C..__= CLER:C CF--1E 3CRD OF SD?ER`,hSORS
cc: R.Seithe: AND CO.%7Y Ac` \.S-R. OR i
Bv: Com---" 1/_�Co
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ELECTION SYSTEMS & SOFTWARE, INC.
POST WARRANTY !
HARDWARE AND SOFTWARE MAINTENANCE SERVICE AND SUPPORT AGREEMENT i
THIS HARDWARE MAINTENANCE AND SOFT:'•,'ARE t.1AINTENTANCE SERVICE AND �
SUPPORT AGREEMENT('Agreement') is made effective as of the date set forth below, by and be neer:
Election Systems & Softvare. Inc.. a Dela .are corporation (�ES&S`) and Contra Costa Courtly. CA !
'"Customer"s
RtCITALS: !
A. ES&S has sold to Customer the p.oprietary voter tabulation equipment ("Hardware") and software
described on Attachment 1 ("Software"" (collectively. the "Products". and Customer now desires to i
obtain preventative and remedial maintenance ser✓iceS for the Hardware and support service for the
Software.
B. ES&S has agreed to provide such services: subject to the terms and conditions of this Agreement i
NO!V, THEREFORE. in Consideration of the `oreoo no recitals (which are specifically
incorporated herein by this reference) and the mtual representations, arranties, covenants and i
agreements set forth below,the parties hereby agree as
ARTICLE I
HARDWARE MAINTENANCE
1.1 Services. Subject to the terms and conditions of this Agreement, ES&S shall provide to
Customer the Routine rlaintenance Services and Remedial maintenance Services described in Section
1.2:with respect to the Hardware (co!lectively the "Hardware t'aintenance Services"). i
1.2 Maintenance Services. Hardware Maintenance Services shall be subject to the
following terms and conditions:
a. Inspection. If Customer has not received maintenance services from ES&S for
any item of Hardware during the 12 months immeciately preceding the effective date of this i
Agreement, ES&S may require Customer to alio:w it to inspect such Hardware before it provides
any Hardware Maintenance Ser.'ces therefor. The purpose of Such inspection Shan be iv
determine :whether or not the item of Ha.dare s fit for the crdinany purpose for'which it is to be
used, normal wear and tear excepted (`:Normal working Co,dition"'). The cost of such inspection
will be at the current puclshed ES&S ra_e and shall be due from Customer within 30 days of its
receipt of ES&S' invoice therefor. If such item is not in Normal !':'o,king Condition, ES&S, at:he i
option of Customer, (i) shall mrovide such repairs and rep?aceme^ts as It deems reasonable and
necessary to restore such iI?m to Normal VJorkf❑g Cond.Jon. at CJST.omer S expense:tilt respect �
to the cost of any pars used in such repairs or rep'acemerts and l;,.h respect to ES&S' Out Of- I
Pocket Expenses, or (ii) sha'I not provide any Had°.:are t.aintenance Sar>ices ::th respect to
such item of Hardware. For purposes of this Agreeme 'Out-Cf-Pocket Expenses' shall mean
ail travel, meal and lodging expenses incurred by ES&S emp oyees or authorized representatives i
("ES&S Representatives-) who are required to travel to Customer's Designated Lccatior to
provide services.
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b. Routine Maintenance Services. An ES&S Representative shall provide s-ch j
services as may be necessary to keep the Hardv are in Norval '.^ Irking Cond:-ion "Ro:t-ne i
Maintenance Ser.•ices")once each 12 months curing the !nit a! Maintenance Tern or anv renewal
thereof. Customer ma:' request that Routine mlalntenance Ser✓.ceS De -- crmed . w:e t^.ai
once du [r.c an; s:.ch 12-nor th period. An: Such request Sha] be mace at least cu ca "a before �
ti-e Ro;::ne Nlainter.ance Services are ..eslred. The er-Li. .t fee icr such a3ci:ionial R_-U1:.-_ '
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Maintenance Services is set forth on Attachment 1 and shall be due within 30 days after invoice
dare. Routine Maintenance Services shall include cleaning, lubrication and calibration services.
At the request of Customer, ES&S scall provide a reasonably detailed record of all Routine i
Maintenance Services performed with respect to the Hardware. ES&S will schedu e the Routine
Ftaintenance Services with Customer. The Routine Maintenance Services ::ill be provided either
at Customer's Designated Location of at an CS&S-desig•r.a.ed cepot fact ity ('Depot";, as elected
by Customer on Attachment 1. Customer sha l pay ali costs associated w;th shipping Ha'd.va e
to a Depot, including insurance.
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C. Remedial Maintenance Services.
i. Defects Under Normal Use and Service. If a defect or malfunction
occurs in any item of Hardware while it is under normal use and service, Customer shall
promptly notify ES&S, and ES&S shall use reasonab'e efforts to restore the item to
Normal Working Condition as soon as practicable. The services provided by ES&S
pursuant to this Subsection 3(c)(i) are referred to herein as `Remedial [.lair�tenance I
Services'*. ES&S shall provide the Remedial faaintenance Services at its Depot;
provided, however, that if Remedial M.aintenance Services are required or 10 or more
items of Hardware at any given fine. Customer may elect to have them provided at its
Designated Location; provided. further. that all Remedial I'daintenance Services provided �
for central count equipment shall be provided at Customer's Designated Location.
Customer ackno ledges that the Hardware identified on Attachment 1 as '"depot repair
only' may only be repaired at a Depot.
ii. Defects Due to Customer Actions or Omissions. If a defect or
malft;nction Occurs in any item Of Hardy;are due to (i) repairs, changes, modifications of
alterations to such Hardware which are not authorized or approved by ES&S, (2)
accident, theft, vandalism, neglect, abuse or use which is not in accordance with
instructions or specificatiOns furnished by ES&S or (3) causes beyond the reasonable
control of ES&S or Customer, inclu irg natural disaster. f,re, food, unusualy Severe
weather or Acts of God, or if Customer does not r otify ES&S :within. 24 hours after it
knows of the defect or malfunction or is cther.vise not in compliance with its obitatiors
hereunder, Customer shall pay ES&S for the Remedial Maintenance Services at ES&S'
then-current rates, as well as for the cost of all parts used in connection :with such
Remedial Maintenance Services.
iii. Timing. Tne date(s)on which any Remedial flaintenance Services shall
be provided shall be mutually agreed upon by ES&S and Customer. If Customer requires
ES&S to provide "emergency- Remedial Maintenance Services (which shall be defined
as Remedial Pvtairdenance Services which are provided within 48 hours after Customer
notifies ES&S of the need therefor;, and such emergency Remedial Maintenance
Services are not needed as a result of an action. error or omission by ES&S. Customer �
shall pay a surcharge, as set forth on Attachment 1.
iv. Loaner Unit. At Customers request, ES&S sha(I use reasonable efforts �
to promply make Hard:^rare available to Customer which is the same as, or substantially
similar to, the item of Hardware for :which Remedial Maintenance Services are being
performed (a `Loaner Unit'). If f^e Remedial tv alntenance Services are being performed
pursuant to Subsection 3(c (J)above, Customer shall pay ES&S for the use of the Loaner
Unit at ES&S' then-current.ates including the cost of shipping. i
d. Exclusions. ES&S nus no obligaton under this Agreerr.ent to (i) repair or I
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r dace Hard,-.are components :. IC:i are CGnSE Tcd in t 2 norma. C f52 Gf GrefaU tie
Hard-uare. Including printer ribbons paper m'is_ batteries, rei—novabie memory packs canCellat:.^.n
stamps, ink pads or red stripe pens. --r J)'repair ar.y item of Hardv a.e fro-r: v.h cn the sena; I
'age 2 of 7
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number has been removed or atered. In addition, ES&S may, at any time in its discretion,
determine that any item of Hardviare is no longer.t for H2rdvvare Maintenance Services because
it is in such poor condition that it cannot practically be restored to Normal Working Condition, or
cannot be restored to Normal Working Condition at an expense which is less than the then-
current value of such item. If such a determination is made. ES&S shall no longer be required to
provide Hardware Maintenance Services for such item of Hardware. ES&S shall also refund to
Customer an amount equal to (1) that portion of the most recent fee paid for Hardware I
Maintenance Services which is attributable to such item of Hard:ware, multiplied by (2) a fraction,
the numerator of which is the remaining num-,er of days in the Initial t.taintenance Term or
renewal period for which such fee +::as paid and the denominator of which is the total number of
days in such Initial 1ilaintenance Term or renewal period. I
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e. Sole Provider: Access. Customer shall not permit any individual other than an I
ES&S Representative to provide maintenance or repairs with respect to the Hardware for so long
as the Initial Maintenance Term or any rene:v�al is in ei:ect. Customer shall provide ES&S i
Representatives with all ir;ormation necessary to enable them to provide Hardware F✓tainterance
Services. Customer shall likewise provide furl access to the Hardware and adequate :working
space for all Hardware Maintenance Services performed at its Designated Location, including
sufficient heat, lights, ventilation, electric current and cutlets. i
f. Storage. Customer shall properly store the riarclvare when it is not in use.
ARTICLE 11 I
SOFTWARE MAINTENANCE I
2.1 Services. ES&S shall provide maintenance and support services for the
Software ("Software Maintenance and Support') (a) to enable the Software to perform in all i
material respects in accordance with its documentation, as provided by ES&S, and (b) to cure
any defect in material or workmanship.
2.2 Updates. During the Initial Maintenance Term and any renewal thereof, ES&S may
provide new releases, upgrades or maintenance patches to the Software. along with appropriate
documentation ('Updates';), on a schedule defined by ES&S. Cuistcmer is responsible for obtaining any
upgrades or purchases of third party hardware or sof fare required to operate the Updates. All Updates
shall be deemed to be "Software'. and shall be subject to all the terms and conditions of ES&S' license of
the Software, upon delivery. Customer may install Updates in accordance with ES&S' recommended
instructions or may request that ES&S install the Updates. ES&S may charge Customer at its ;hen-
current rates to (a) train Customer on Updates, if such training is requested by the Customer, (b) install
Updates or (c) provide maintenance and support on the Software v.hich is required as a result of �
Customer's failure to timely instaii an Update. Customer shall be responsible;or any claire, damage, ioss.
judgment, penalty, cost, amount raid in settlement or fee .which is caused by Customers failure to install
and use the most recent Update. or the second rr.est recent. Update: provided to it by ES&S. If Customer
proposes changes in the Sof-L.-;are to ES&S, such proposals w11 become ES&S property. ES&S may, in
its sole discretion, elect to make or not to make such changes v✓i;hout reference or compensation to
Customer or any third party. ES&S represents to Customer that the Updates will comply wiLn all i
applicable state law requirements at the time of delivery. Customer shail pay ES&S for bny Update which
is required due to a change in state law.
2.3 Reinstatement of Software Maintenance and Support. If the Softvare Maintenance
Term or any renewal thereof expires without being renewed, Customer may thereafter resume receiving_
Software Maintenance and Suppoh upon (a) notificaro,n to ES&S. (b) Payment of all fees .:fico vrouic I
have been due to ES&S had the Soft✓✓are Mla ntenance Term not expired, and c)the gran)ng to ESixS of
access to the Sofrr.are, so that ES&S may analyze it and pert-1'm such maintenance as may be
necessary before resuming t%e Sot"vare r ainterance and Support.
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2.4 Conditions. ES&S shall not be obligated to provide Software Maintenance and Support
for any item of Sofhyare if such item requires such services due to (a) repairs. changes, modifications or
alterations not authorized or approved by ES&S, (b) accident, theft, vandalism, neglect, abuse or use
v.-hick is not in accordance with instruc_ions or saecifica:ons furnished by ES&S, ic) causes beyond the
reasonable control of ES&S or Customer, inCILding raturai d:Saster, fire, flood, unusuaiiy severe weather
or Acts of God, or (d) Customer's failure to install and :se the most recent Update, or the second most
recent Update, provided to it by ES&S. ES&S shall likewise not be obigated to provide Software i
Maintenance and Suppon if Customer does no notify ES&S within 24 hours after it knows of the need for
such services or is otherwise not in compliance with its obligations under this Agreement.
ARTICLE III
MISCELLANEOUS
3.1. Term: Termination. This Agreement shall be in effect for a one-year period beginning
on January 1, 2011 (the "Initial Maintenance Term'). The Initial Maintenance Term shall automatically
renew for an unlimited number of successive one year periods until this Agreement is terminated by the
first to occur of (a)either party's election to terminate it upon expiration of the Initial Mlaintenance Term or i
any, renewal thereof, written notice of which shall be given to the o her party at least sixty (00) days prior
to such annual expiration date, (b) the date .which is thirty (30) days after either party notifies the other �
that it has ma erially breached this Agreement. F th_ I ;;,- it g 'arty fails t:; ;;are St:"I' breBCi' @xCept for
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a breach pursuant b subsection (c), which will require no notice), or(c) the date which is thirty (30) days
after Customer fails to pay any amount due to ES&S under this Agreement. The termination of this I
Agreement shall not relieve Customer of its liabii y to pay any amounts due to ES&S hereunder and shall
not entitle Customer to a refund of any fees already paid to ES&S.
3.2. Fees. In consideration for ES&S' agreement to provide Hardware and Software
Maintenance and Support Services under this Agreement, Customer shall pay to ES&S a fee for the initial
Mamtenance Term and each renewal period. The Software Maintenance Fee shall be comprised of i) a
fee for the Software Maintenance and Support provided for the ES&S firmware listed on Attachment 1, if
any, and (ii) a fee for the Software Maintenance and Support provided for all other Softwa.e. If Customer
subsequently elects to receive So ll :'are i ivin_aaonce and Sup og t for additional ES&S software, and
such election is made during the Sofvrare Maintenance Term or any renewal thereof, ES&S will charge
an incremental Software Maintenance Fee for such services. The fees set forth on Attachment-1 shall be
in addition to any fees or charges separately referred to in any Section of this Agreement. The fee for the
Init,al Maintenance Term is set forth on Attachment 1 and is due on the effective date of this Agreement.
ES&S may increase the fee for a renewal period by not more than 5% of the amount of the most recent
fee paid by Customer. The fee for any renewal period shall be due and payable no later than thirty (30)
days prior to the beginning of such renewal period.
3.3. Proprietary Rights. ES&S shall on the entire right, t:tle and interest in and to all
corrections, programs, information and work product conceived, created or developed, alone or with
Customer or others, as a result of or rela:eo to the performance of this Agreement. including all
prop,ietary rights therein or based thereon. Subject to the payme„t of the Maintenance Fee. ES&S
hereby grants to Customer a nen-exclusive license to use that portion of such corrections, programs,
information and work product that ES&S actually delivers to Customer pursuant to this Agreement. All j
icensed items shall be deemed to be "Soft:ware', and shlal be subject to all the terms and conditions of I
ES&S' license of the Software. upon deNvery. Except as, and to the extent, expressly provided herein, �
ES&S does not grant to Customer any right, license, or other proprietary right. express or implied, in or tc
any corrections, programs, i;(formation, or work product covered by this Agreement
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3.4. Taxes: Interest. Cus:cmer ::ill prop:de ES&S w;zh proof of its tax-exernp-t status. l:
Customer;cos not provide such Arco` it shat: pay, or shall reimbJls ES&S for. ca skies :Id use- xcae
or other similar taxes imposed On lie t.'&IsaCtiors contemplated by :his Agreemera, but sha!I I^ no event
be liable for taxes imposed on or measured b, ES&S' inccir.e. If Cjistom-ver disputes trio cl
Dace-,of
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any tax to be paid pursuant to this Section 5, it shall pay the tax and may thereafter seek a refund. Any
disputed or undisputed payment which is past due to ES&S will bear interest at the rate of one and one-
half percent per month (or such lesser amount as may be permitted by applicable law) for each month or
portion thereof during which it remains unpaid.
3.5. Limitation of Liability. Neither party will be liable for any indirect, incidental, punitive,
exemplary, special or consequential damages of any kind whatsoever arising out of or re€ating to this
Agreement. ES&S' total liability arising out of or relating to this Agreement shall not exceed the
aggregate amount to be paid to ES&S hereunder. Any action by Customer against ES&S shall be
commenced within 1 year after the cause of action has accrued. ES&S will not be liable under this
Agreement for any claim, damage, loss, judgment, penalty, cost, amount paid in settlement or fee which I
is caused by Customer's election not to receive, or to terminate, the Maintenance Services. i
3.6. Excusable Nonperformance. If ES&S is delayed or prevented from performing its
obligations under this Agreement due to any cause beyond its reasonable control, including, but not
limited to, natural disaster, fire, flood, unusually severe weather, terrorism, insurrection, war, i
communications or transportation disruptions, Acts of Cod, labor disputes and governmental regulations,
the delay shall be excused during the continuance of, and to the extent of, such cause, and the period of
performance shall be extended to the extent necessary to allo:v performance after the cause of delay has i
been removed. ES&S agrees to work with Customer, at Customer's request, to develop mutually
agreeable alternatives in order to minimize the negative impact of any such delay.
3.7. Notice. Any notice or other communication required or permitted hereunder shall be in
writing, and will be deemed given when delivered personally, sent by confirmed facsimile transmission,
sent by commercial overnight courier (with written verification of receipt) or sent by registered or certified
mail. return receipt requested, postage prepaid, when the return receipt is received. All communications
shall be sent to the attention of the persons listed on the signature page to this Agreement and at the
addresses or facsimile numbers set forth on such signature page unless other names, addresses or fax
numbers are provided by either or both parties in accordance herewith.
3.8. Entire Agreement. This Agreement, including Attachment 1 (which is specifca;Iy
incorporated herein by this reference), contains the entire agreement of the pa-lies .. h respect to the i
subject matter hereof and supersedes and replaces any and all other prior or contemporaneous
discussions, negotiations, agreements or understandings between the parties, whether written or oral,
regarding the subject matter hereof. Any provision of any purchase order, form or other agreement which
conflicts with or is in addition to the pro:�isions of this Agreement shall be of no force or effect. This
Agreement shall be governed by and construed in accordance with the laws of the State of California
without regard to its conflicts of laws principles. Except in the case of a sale, transfer or assignment of all
or substantially all of the assets of ES&S to a successor who has asserted its intent to continue the
business of ES&S, neither party may assign or transfer this Agreement without the prior written consent I
of the other party hereto, such consent not to be unreasorably withhe d or conditioned, nor unduly
delayed. ES&S may engage duly qualified subcontractors to perform certain of the Hardware i
Maintenance Services, but shall remain f=illy responsible for such perform ance.
3.9. Counterparts: Execution By Facsimile. This Agreement may be executed in two or
more counterparts. each of which sha;l be deemed an orig;nal, but which 'together shad constitute one
and the same instrument. The pares may execute this Agreement and exchange counterparts of the
signature pages by means of facsimile transmission, and the receipt of such executed counterparts by
facsimile transmission shall be binding on the parties. Folloy✓ing such exchange, the parties shall
promptly exchange original versions of such signature pages.
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IN WITNESS Vv'HEREOF, this Agreement has been executed effective as of the date it is signed
by the last of the parties hereto.
ELECTION SYSTEMS &SOFTWARE. INC.
11208 John Gat 6ouevard
Omaha, NE 68137
Fax No.: (402) 970-1276 Fax No.:
Signature Signature
Allen tvtoraczewski
Name (Printed or Typed) Name (Printed cr Typed)
Director of Field Ser,ices
Title Title
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7/21/2006
Date Date i
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FORIN2 APPROVED
Bs D5"r`/
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Attachment 1
DESCRIPTION OF HARDWARE
I Quantity Description initial Maintenance I initial
Fee Per Unit i Maintenance i
Fee In Total
768 M100 no Modem 5195.89 S150,441.00 �
4 650 i 53,256.00 $13,024.00
j 763 AutoMARK S321.00 i S246.528.00
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Total Fees Due For Initial Term 5409,993.00 i
Applicable Taxes (See Note 1) $1,472.22
1. CA State Tax-97-015961 S203.06
2. Contra Costa CO Sa'es i
i Tax, CA
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Total Fees Due For I^itial Term _-411,668.28
j including Taxes
Note 1: The taxes set forth herein are applicable for the initial term only. Taxes for subsequent
renewal periods will be separately calculated and invoiced as applicable.
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Per-Unit Fees if Customer requests more than one Routine Maintenance visit in a year, Customer I
shall pay 90% of the then current maintenance fee per unit. i
Surcharge for Emergency Remedial Maintenance Services: 150%of the then current maintenance
fee per unit..
Location of Services:
_x Customer's Designated Location
Depot
Per Unit Surcharge for performance of Routine Maintenance visit at more than one Customer
Designated Location: $25.00 per unit for all units located at second or more locations. i
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ES&S SOFTWARE DESCRIPTION AND SOFTWARE MAINTENANCE FEES
Please check the items of Software for which Softo.are Maintenance and Support wi'll be provided: �
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Unity Election System:
_x_ Data Manager
_x_ Ballot Image Manage,
Ballot on Demand
_ _ Hard-ware Programming f Programming
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_NA_ Data are
taanager i
_x_ Reporting Manager
ES&S Tabulator Firmware Version
650 i 1.2.0.0
M100 5.0
AutoMARK 1.0
Software Maintenance Fees for the initial Software Maintenance Term and renewal terms shall be
as follows:
I I All Other ES&S I
Year ES&S Firmware Software I
1 Note 1 5=10,613,00
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Note 1:The fee for ES&S Firmware Maintenance &Support is included in the Hardware Maintenance
Fee. Upon upgrade of the M150 to the M650, there will be no change in the fees for the ES&S Firmware.
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