HomeMy WebLinkAboutAgreement A-16-476 with ESS.pdfAgreement No. 16-476
1 SIGNATURE CAPTURE AND COMPARISON EQUIPMENT AGREEMENT
2 THIS AGREEMENT (hereinafter "Agreement") is made and entered into this ..2..t.h day of August,
3 2016, by and between the COUNTY OF FRESNO, a Political Subdivision of the State of California,
4 hereinafter referred to as "COUNTY", and Elections Systems & Software, LLC whose address is 11208
5 John Galt Boulevard, Omaha, NE 68137, hereinafter referred to as "CONTRACTOR". COUNTY AND
6 CONTRACTOR may herein be referred to individually as "party" or collectively as "parties" or "Parties".
7 WITNESSETH:
8 WHEREAS, the Fresno County Clerk/Elections Department desires to engage the
9 CONTRACTOR for the purpose of providing Signature Capture and Comparison Scanning Hardware
10 and Software; and
11 WHEREAS, the Fresno County Clerk/Elections Department processes approximately 200,000
12 Vote by Mail ballot envelopes for each major election, dependent on the number of participating voters;
13 and
14 WHEREAS, CONTRACTOR has the equipment, expertise, and resources to provide signature
15 capture and comparison services; and
16 WHEREAS, CONTRACTOR shall provide ongoing maintenance and support services for the
17 processing of absentee ballots during elections.
18 NOW THEREFORE, in consideration of their mutual covenants and conditions, the parties
19 hereto agree as follows:
1. SERVICES 20
21 A. CONTRACTOR shall provide one (1) MBV 1000 Mail Ballot Verifier and one
22 (1) MBV 2000 Mail Ballot Verifier with six (6) outsort bins to COUNTY.
23 B. CONTRACTOR shall perform all services and fulfill all responsibilities (1) as
24 set forth in this Agreement including Exhibits A and B attached hereto and incorporated herein by
25 reference and (2) as identified in COUNTY's Request for Proposal (RFP) No. 578-5389 dated October
26 20, 2015 and Addendum No. One (1) dated November 9, 2015, hereinafter collectively referred to as
27 COUNTY's Revised RFP and CONTRACTOR's response to said Revised RFP, dated November 19,
28 2015, all incorporated herein by reference and made part of this Agreement.
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1 C. In the event of any inconsistency among these documents, the inconsistency shall
2 be resolved by giving precedence in the following order of priority: 1) to this Agreement, including
3 Exhibits A, B, C but not including COUNTY's Revised RFP and CONTRACTOR's Response to the
4 Revised RFP, 2) to COUNTY's Revised RFP, 3) to the CONTRACTOR'S Response to the Revised
5 RFP. A copy of COUNTY's Revised RFP No. 578-5389, and CONTRACTOR's response, shall be
6 retained and made available during the term of this Agreement by COUNTY.
7 D. CONTRACTOR shall ensure that all services are in strict compliance with the
8 California Code of Elections and the Federal Help America Vote Act (HAVA) requirements.
9 2 . TERM
10 This Agreement shall become effective on the 1Oth day of August, 2016 and shall
11 terminate on the 30th day of June , 2019 ("Initial Agreement Period"), and may be renewed for two
12 additional one (1) year periods through June 30, 2021 (each an "Optional Agreement Renewal Period"),
13 upon COUNTY providing written notice of renewal to CONTRACTOR. Such written notice must be
14 delivered a minimum of thirty (30) days prior to the next expiration date of this Agreement.
15 3. TERMINATION
16 A. Non-Allocation ofFunds-The terms ofthis Agreement, and the services to be
17 provided thereunder, are contingent on the approval of funds by the appropriating government agency.
18 Should sufficient funds not be allocated, the services provided may be modified, or this Agreement
19 terminated, at any time by giving the CONTRACTOR thirty (30) days advance written notice.
20 B. Breach of Contract -This Agreement may be terminated, in writing, at any time by
21 either party if the other party breaches any material provision hereof, including, but not limited to , (i)
22 failing to comply with any term of this Agreement, or (ii) improperly performing any service and such
23 breaching party does not cure any such breach hereunder within thirty (30) days after it receives written
24 notification thereof from the non-breaching party. Notwithstanding the foregoing, the COUNTY may
25 immediately suspend or terminate this Agreement in whole or in part, where in the determination of the
26 COUNTY there is an illegal or improper use of funds.
27 In no event shall any payment by the COUNTY constitute a waiver by the COUNTY
28 of any breach of this Agreement or any default which may then exist on the part of the CONTRACTOR.
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1 Neither shall such payment impair or prejudice any remedy available to the COUNTY with respect to the
2 breach or default. The COUNTY shall have the right to demand of the CONTRACTOR the repayment to
3 the COUNTY of any funds disbursed to the CONTRACTOR under this Agreement, which in the
4 judgment of the COUNTY were not expended in accordance with the terms of this Agreement. The
5 CONTRACTOR shall promptly refund any such funds upon demand.
6 C. Without Cause -Under circumstances other than those set forth above, this
7 Agreement may be terminated on behalfofthe COUNTY by the Fresno County Clerk-Registrar ofVoters
8 upon the giving of thirty (30) days advance written notice of an intention to terminate to CONTRACTOR.
9 Notwithstanding the foregoing, COUNTY shall pay CONTRACTOR for all services provided up through
10 the effective date of such termination.
11 4. COMPENSATION/INVOICING:
12 COUNTY agrees to pay CONTRACTOR and CONTRACTOR agrees to receive
13 compensation as outlined in the Budget, attached hereto as Exhibit B, incorporated herein by reference and
14 made part of this Agreement. CONTRACTOR shall submit invoices upon completion of services, in
15 triplicate, to: County of Fresno, Department of County Clerk/Elections, 4525 E. Hamilton Ave., Fresno,
16 CA 93702.
17 Unless otherwise agreed to by the parties and as set forth in Exhibit B, in no event shall
18 services performed under this Agreement be in excess of Two Hundred Sixty Four Thousand Nine
19 Hundred Fifty Six and No/1 00 Dollars ($264,956.00) for the period of August 10, 2016 through June 30,
20 2019. In no event shall services performed under this Agreement be in excess of Twenty Two Thousand
21 Six Hundred Thirty and No/100 Dollars ($22,630.00) for the period of July 1, 2019 through June 30, 2020.
22 In no event shall services performed under this Agreement be in excess of Twenty Two Thousand Six
23 Hundred Thirty and No/100 Dollars ($22,630.00) for the period of July 1, 2020 through June 30,2021.
24 The maximum total compensation for services included in this Agreement from the period of August
25 10, 2016 through June 30, 2021, shall be Three Hundred Ten Thousand Two Hundred Sixteen and
26 No/100 Dollars ($310,216.00). It is understood that all expenses incidental to CONTRACTOR'S
27 performance of services under this Agreement shall be borne by CONTRACTOR.
28 Payments shall be made by COUNTY to CONTRACTOR in arrears, for services
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1 provided during the preceding month(s), within forty-five (45) days after the date of receipt by
2 COUNTYofCONTRACTOR's invoice.
3 5. INDEPENDENT CONTRACTOR:
4 In performance of the work, duties and obligations assumed by CONTRACTOR under this
5 Agreement, it is mutually understood and agreed that CONTRACTOR, including any and all of the
6 CONTRACTOR'S officers, agents, and employees will at all times be acting and performing as an
7 independent contractor, and shall act in an independent capacity and not as an officer, agent, servant,
8 employee, joint venturer, partner, or associate ofthe COUNTY. Furthermore, COUNTY shall have no
9 right to control or supervise or direct the manner or method by which CONTRACTOR shall perform its
10 work and function. However, COUNTY shall retain the right to administer this Agreement so as to verify
11 that CONTRACTOR is performing its obligations in accordance with the terms and conditions thereof
12 CONTRACTOR and COUNTY shall comply with all applicable provisions oflaw and
13 the rules and regulations, if any , of governmental authorities having jurisdiction over matters the
14 subject thereof.
15 Because of its status as an independent contractor, CONTRACTOR shall have
16 absolutely no right to employment rights and benefits available to COUNTY employees.
17 CONTRACTOR shall be solely liable and responsible for providing to, or on behalf of, its employees
18 all legally-required employee benefits. In addition, CONTRACTOR shall be solely responsible and
19 save COUNTY harmless from all matters relating to payment of CONTRACTOR'S employees,
20 including compliance with Social Security withholding and all other regulations governing such
21 matters . It is acknowledged that during the term of this Agreement, CONTRACTOR may be providing
22 services to others unrelated to the COUNTY or to this Agreement.
23 6. MODIFICATION:
24 Any matters of this Agreement may be modified from time to time by the written consent
25 of all the parties without, in any way , affecting the remainder.
26 7. NON-ASSIGNMENT:
27 Neither party shall assign, transfer or sub-contract this Agreement nor their rights or duties
28 under this Agreement without the prior written consent of the other party.
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1 8. HOLD HARMLESS:
2 CONTRACTOR agrees to indemnify, save , hold hannless, and at COUNTY'S request,
3 defend the COUNTY, its officers, agents, and employees from any and all costs and expenses, damages,
4 liabilities, claims, and losses occurring or resulting to COUNTY in connection with the performance, or
5 failure to perform, by CONTRACTOR, its officers, agents, or employees under this Agreement, and from
6 any and all costs and expenses, damages, liabilities , claims, and losses occurring or resulting to any person,
7 firm, or corporation who may be injured or damaged by the performance, or failure to perform, of
8 CONTRACTOR, its officers, agents, or employees under this Agreement.
9 9. UNS~CE
10 Without limiting the COUNTY's right to obtain indemnification from CONTRACTOR
11 or any third parties, CONTRACTOR, at its sole expense, shall maintain in full force and effect the
12 following insurance policies throughout the term of this Agreement:
13 A. Commercial General Liability
14 Commercial General Liability Insurance with limits of not less than One Million
15 Dollars ($1,000 ,000) per occurrence and an annual aggregate of Two Million Dollars ($2,000,000). This
16 policy shall be issued on a per occurrence basis. COUNTY may require specific coverages including
17 completed operations, products liability, contractual liability, Explosion-Collapse-Underground, fire legal
18 liability or any other liability insurance deemed necessary because of the nature of this Agreement.
19 B. Automobile Liability
20 Comprehensive Automobile Liability Insurance with limits for bodily injury of not
21 less than Two Hundred Fifty Thousand Dollars ($250 ,000.00) per person, Five Hundred Thousand Dollars
22 ($500,000.00) per accident and for property damages of not less than Fifty Thousand Dollars ($50 ,000.00),
23 or such coverage with a combined single limit of Five Hundred Thousand Dollars ($500,000.00).
24 Coverage should include owned and non-owned vehicles used in connection with this Agreement.
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C. Professional Liability
If CONTRACTOR employs licensed professional staff, (e.g., Ph.D., R.N., L.C.S.W .,
27 M.F. C. C.) in providing services, Professional Liability Insurance with limits of not less than One Million
28 Dollars ($1 ,000,000.00) per occurrence, Three Million Dollars ($3 ,000,000.00) annual aggregate.
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1 D. Worker's Compensation
2 A policy of Worker's Compensation insurance as may be required by the
3 California Labor Code.
4 CONTRACTOR shall obtain endorsements to the Commercial General Liability
5 insurance naming the County of Fresno, its officers, agents, and employees, individually and
6 collectively, as additional insured, but only insofar as the operations under this Agreement are
7 concerned. Such coverage for additional insured shall apply as primary insurance and any other
8 insurance, or self-insurance, maintained by COUNTY, its officers, agents and employees shall be
9 excess only and not contributing with insurance provided under CONTRACTOR's policies herein.
10 This insurance shall not be cancelled or changed without a minimum of thirty (30) days advance
11 written notice given to COUNTY.
12 Within Thirty (30) days from the date CONTRACTOR executes this Agreement,
13 CONTRACTOR shall provide certificates of insurance and endorsement as stated above for all of the
14 foregoing policies, as required herein, to the County of Fresno, County Clerk/Elections Department,
15 Attention: Business Office, 4525 E. Hamilton Ave., Fresno, CA 93702, stating that such insurance
16 coverage has been obtained and are in full force; that the County of Fresno, its officers, agents and
17 employees will not be responsible for any premiums on the policies; that such Commercial General
18 Liability insurance names the County of Fresno, its officers, agents and employees, individually and
19 collectively, as additional insured, but only insofar as the operations under this Agreement are
20 concerned; that such coverage for additional insured shall apply as primary insurance and any other
21 insurance, or self-insurance, maintained by COUNTY, its officers, agents and employees, shall be
22 excess only and not contributing with insurance provided under CONTRACTOR's policies herein; and
23 that this insurance shall not be cancelled or changed without a minimum of thirty (30) days advance,
24 written notice given to COUNTY.
25 In the event CONTRACTOR fails to keep in effect at all times insurance coverage
26 as herein provided, the COUNTY may, in addition to other remedies it may have, suspend or terminate
27 this Agreement upon the occurrence of such event.
28 All policies shall be with admitted insurers licensed to do business in the State of
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1 California. Insurance purchased shall be purchased from companies possessing a current A.M. Best,
2 Inc. rating of A FSC VII or better.
3 10. AUDITS AND INSPECTIONS:
4 The CONTRACTOR shall at any time during business hours, and as often as the
5 COUNTY may deem necessary, make available to the COUNTY for examination all of its records and
6 data with respect to the matters covered by this Agreement. The CONTRACTOR shall, upon request by
7 the COUNTY and in no event more than once per each twelve (12) month period during the Term of this
8 Agreement, permit the COUNTY to audit and inspect all of such records and data necessary to ensure
9 CONTRACTOR'S compliance with the terms of this Agreement.
10 Ifthis Agreement exceeds ten thousand dollars ($10,000.00), CONTRACTOR shall be
11 subject to the examination and audit of the Auditor General for a period of three (3) years after fmal
12 payment under Agreement (Government Code Section 8546.7).
13 11. NOTICES:
14 The persons and their addresses having authority to give and receive notices under this
15 Agreement include the following:
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COUNTY
Brandi L. Orth, County Clerk
County Clerk/Elections Department
2221 Kern Street
Fresno, CA 93721
CONTRACTOR
Election Systems & Software, LLC
Attention: Office of General Counsel
11208 John Galt Boulevard
Omaha, NE 68137
20 Any and all notices between the COUNTY and the CONTRACTOR provided for or
21 permitted under this Agreement or by law shall be in writing and shall be deemed duly served when
22 personally delivered to one of the parties, or in lieu of such personal services, when deposited in the
23 United States Mail, postage prepaid, addressed to such party.
24 12. GOVERNING LAW
25 The parties agree that for the purposes of venue, performance under this Agreement is to be
26 in Fresno County, California. The rights and obligations of the parties and all interpretation and
27 performance of this Agreement shall be governed in all respects by the laws of the State of California.
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1 13. DISCLOSURE OF SELF DEALING TRANSACTIONS
2 1bis provision is only applicable if the CONTRACTOR is operating as a corporation (a
3 for-profit or non-profit corporation) or if during the term of the agreement, the CONTRACTOR changes
4 its status to operate as a corporation.
5 Members of the CONTRACTOR's Board ofDirectors shall disclose any self-dealing
6 transactions that they are a party to while CONTRACTOR is providing goods or performing services
7 under this agreement. A self-dealing transaction shall mean a transaction to which the CONTRACTOR is
8 a party and in which one or more of its directors has a material financial interest. Members of the Board of
9 Directors shall disclose any self-dealing transactions that they are a party to by completing and signing a
10 Self-Dealing Transaction Disclosure Form, attached hereto as Exhibit C, and incorporated herein by
11 reference, and submitting it to the COUNTY prior to commencing with the self-dealing transaction or
12 immediately thereafter.
13 14. ENTIRE AGREEMENT
14 1bis Agreement including all Exhibits, COUNTY's Revised RFP No. 578-5389, and
15 CONTRACTOR's response thereto, constitutes the entire agreement between CONTRACTOR and
16 COUNTY with respect to the subject matter hereof and supersedes all previous agreement negotiations,
17 proposals, commitments, writings , advertisements , publications and understandings of any nature
18 whatsoever unless expressly included in this Agreement.
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1 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first
2 hereinabove written.
3
4 ATTEST:
5 CONTRACTOR: COUNTY OF FRESNO
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By __!L_~~~~~~-~ By ~~~~ Chairman~perv1sors
Print Name: =--.J.....LLL.o<!(L,[_}_~~~..L.J.~l • '
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Title: {i?r;r:r;tiM!£.
Chairman of the Board, or
President, or any Vice President
Date:~ -c::J?-/(o
Title: @A:;
Secretary (of Corporation), or
any Assistant Secretary, or
ChiefFinancial Officer, or
any Assistant Treasurer
Date:~-;)9'-;c;
Mailing Address:
Election Systems & Software, LLC
11208 John Galt Blvd.
Omaha, NE 68137
(877) 3 77-8683
Contact: Chief Operating Officer
BERNICE E. SEIDEL, Clerk
Board of Supervisors
PLEASE SEE ADDITIONAL
SIGNATURE PAGE ATTACHED
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COUNTY OF FRESNO
Fresno, CA
1 APPROVED AS TO LEGAL FORM:
2 DANIEL C. CEDERBORG, COUNTY COUNSEL
3 1 ()__ _,£-=?.-
4 By ________ ~~--~-~--=~~'--------
5 APPROVED AS TO ACCOUNTING FORM:
6 VICKI CROW, C.P.A., AUDITOR-CONTROLLER/
TREASURER-TAX COLLECTOR
7
8
9 By -----\{1_.&;-d-?JZt~~~---t=~Z..-o($-tt-~ae~~k::,-~-[--
1o
11 COUNTY CLERK/ELECTIONS DEPARTMENT
12 REVIEWED AND RECOMMENDED FOR APPROVAL:
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14 By ~ofcO;;;{;(
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Brandi L. Orth, County Clerk/Registrar
of Voters
17 FOR ACCOUNTING USE ONLY:
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19 Fund/Subclass: 0001/10000
Organization No.: 28500500
20 Account/Program: 8300/91262
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23 BLO:dr
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Exhibit A Page 1 ofll
SUMMARY OF SERVICES
ORGANIZATION: Election Systems & Software, LLC
ADDRESS: 11208 John Galt Boulevard , Omaha, NE 68137
MANAGERS: Val Guyett, Vice President, Business Development
CONTACT: Phone : (360) 481-5490
PRODUCT & SERVICES: Signature Capture and Comparison Equipment, Maintenance
and Support
INITIAL AGREEMENT August 10,2016-June 30 ,2019
PERIOD:
OPTIONAL AGREEMENT July 1, 2019-June 30 ,2020
RENEWAL PERIODS: July 1, 2020-June 30, 2021
AGREEMENT AMOUNTS: $264,956 .00 for the period of August 10,2016-June 30,2019
$22,630.00 for the period of July 1, 2019-June 30, 2020
$22 ,630.00 for the period of July 1, 2020-June 30, 2021
TOTAL AGREEMENT $310,216.00 (August 10,2016-June 30, 2021)
AMOUNT:
I. Summary of Services
Election Systems & Software, LLC (ES&S) will provide the following equipment to meet the
requirements as outlined in the Fresno County CA 578-5389 Signature Capture and Comparison
RFP and vendor's response to the RFP :
1. (1) Mail Ballot Verifier (MBV) 2000 System
a. Friction Feeder
b. Transport
i. Thickness detector
ii. Image Camera
c. MBV Computer
1. Image Capture Software
n. Barcode Scanning Software
111. No Signature Detect Software
tv. Sort Scheme Software
v. Label Printer
d. (6) Wide Divert Bins
e. Cover for MBV 2000
Exhibit A
f. Extended Envelope Stacker
2. (1) Mail Ballot Verifier (MBV) 1000 System
a. Friction Feeder
b. Transport
1. Thickness detector
ii. Image Camera
iii. Integrated Divert Bin
c. MBV Computer
1. Image Capture Software
11. Barcode Scanning Software
111. No Signature Detect Software
IV. Label Printer
d. Extended Envelope Stacker
Page 2 ofll
e. (1) Mobile Cart for MBV 1000 to hold laser printer and supplies, and organize cables
and cords
f. Cover for MBV 1000
3. (1) Centralized MBV Server
a. Automated Signature Recognition Software
b. Side by Side Comparison Client
c. Report Printer
The equipment configurations provided will meet the following stated functional requirements in
the Fresno County CA 578-5389 Signature Capture and Comparison RFP:
Includes scanning hardware with the capability to scan Vote by Mail ballot envelopes and
perform the following functions:
Scan and capture voter ID barcode Scan and capture envelope and signature images
Log envelope as received
Endorse ( customizable) & date/time stamp envelope
Separate envelopes that may need manual intervention
Be capable of generating an output file, with voter ID and voter's envelope signature, to be
matched with voter registration data in ElMS® and used in the Automated Signature Capture
and Comparison process.
Be capable of updating the Vote by Mail ballot envelope output file with status values so that
the system can use the output file to update voter registration records. The system will
successfully interface with DFM Associates' ElMS®.
Be configurable for various ballot envelope sizes and designs, including multiple signature
locations in one pass .
Be configurable for thickness detection .
Exhibit A Page 3 ofll
Have an option for sort/pass with the ability to customize sorting definition (e.g. signature
discrepancy and no signature).
Note: Please explain the sort options available in your system.
Provide configurable reports for batch id and piece status.
Provide tested/proven Automated Signature Capture and Comparison software, which can
automatically compare a voter's ballot envelope signature with the voter registration
signature.
Be configurable to meet or exceed a state established acceptance threshold for signature
acceptance.
Provide user activity log records that include full description of all human intervention
during the Automated Signature Capture and Comparison process.
Provide an audit function to verify the accuracy of machine accepted and rejected signatures.
Identify returned ballot envelopes for manual review when the signature does not meet the
acceptance threshold level, is unreadable, or is missing.
Create a record when the signature does not meet the acceptance threshold level.
Provide sufficient report capability for the election officials to ascertain the status of any and
all Vote by Mail ballot envelopes in each stage of the Vote by Mail ballot process tracked by
the system.
Store sufficient data in an unalterable system audit log file to allow the auditing of all
operations.
Use a real time clock that will continue to run during a power loss.
Provide an environment whereby all databases and data are maintained with provisions for
operational security, access control and auditability.
ESS further agrees to provide the following levels of service and support:
Include availability of vendor support personnel to assist in scanning hardware and software
installation and setup onsite or from a remote help desk.
Include availability of vendor supported onsite training personnel to train County users.
Include availability of self-study user training via internet or other media.
Exhibit A Page 4 ofll
Provide 24-hour available technical support for all system components beginning E-29 and
continuing until E + 1 0.
Make equipment parts and supplies available through at least June 30, 2021.
No fee or limitation shall be placed on any electronic file , report or representation of the vote
produced by vendor devices or software .
Include documented instructions for troubleshooting .
Include user and technical documentation.
4. General Terms
ES&S is the owner of certain mail ballot verifier equipment and software as set forth herein and
County has agreed to purchase and license the mail ballot verifier equipment and related
software and services from ES&S for use in Fresno , CA.
Definitions. "Documentation" means the operating instructions , user manuals or trammg
materials for the ES&S Equipment and ES&S Software. "ES&S Equipment" means ES&S '
hardware or other ES&S proprietary equipment. "ES&S Software" means ES&S ' proprietary
mail ballot verifier software and all Updates delivered to County under this Agreement, unless
licensed pursuant to a separate written agreement.
Purchase Terms; Use. Subject to the terms and conditions of this Agreement, ES&S agrees to
sell , and County agrees to purchase , the ES&S Equipment herein. Title to the Equipment shall
pass to County when County has paid ES&S the total amount set forth in Exhibit B for the Initial
Agreement Period (August 10, 2016 -June 30 , 2017). The warranty , license and phone support
shall be provided to County throughout the Initial Agreement Period and Optional Agreement
Renewal Periods (August 10 , 2016-June 30 , 2021) at costs detailed in Exhibit B.
Grant of Licenses. Subject to the terms and conditions of this Agreement, ES&S hereby
grants to County nonexclusive , nontransferable licenses to use the ES&S Software on page 1
of 1 of this Exhibit A and any Documentation for the Mail Ballot Verifiers (MBV 1 000 and
MBV2000). The licenses allow County to use (but not copy) the ES&S Software and the
Documentation in the course of operating the ES&S Equipment and solely for the purposes of
managing the vote by mail process in Fresno County. The licenses granted in this section do not
permit County to use the source code for the ES&S Software.
Prohibited Uses. County shall not take any of the following actions with respect to the ES&S
Software or the Documentation:
a) Reverse engineer, decompile , disassemble , re-engineer or otherwise create , attempt to
create, or permit, allow or assist others to create , the source code or the structural framework
for part or all of the ES&S Software ;
Exhibit A Page 5 ofll
b) Cause or permit any use, display, loan, publication, transfer of possession, sublicensing
or other dissemination of the ES&S Software or Documentation, in whole or in part, to or by
any third party, including, but not limited to , any transfer of possession to, or use of the
ES&S Software or Documentation by any third party to perform any services for County
(including, but not limited to, any ballot printing, coding, programming or ballot layout
services) without ES&S' s prior written consent; or
c) Cause or permit any change to be made to the ES&S Software without ES&S ' pnor
written consent; or
d) Allow a third party to cause or permit any copying, reproduction or printing of any output
generated by the Software in which ES&S owns or claims any proprietary intellectual
property rights (e.g., copyright, trademark , patent pending or patent), including, but not limited
to, any ballot shells or ballot code stock.
Term of Licenses. The licenses granted to County shall commence upon the delivery of the
ES&S Software and shall continue for the Initial Term of the Agreement (the "Initial
License Term). Upon expiration of the Initial License Term, the licenses shall automatically
renew for an unlimited number of successive one-year periods (each a "License Renewal
Term") upon the payment by County of the annual software license and software
maintenance and support fee as set forth on Exhibit B . ES&S may terminate the license if
County fails to pay the consideration due for , or breaches the Agreement with respect to ,
such license. Upon the termination of either of the licenses granted to County for ES&S
Software or upon County 's discontinuance of the use of any ES&S Software, County shall
immediately return such ES&S Software and the related Documentation (including any and all
copies thereof) to ES&S , or (if requested by ES&S) destroy such ES&S Software and
Documentation and certify in writing to ES&S that such destruction has occurred.
Updates. During the Initial License Term or any License Renewal Term, ES&S may provide
new releases, upgrades or maintenance patches to the ES&S Software, together with appropriate
Documentation ("Updates"), on a schedule defined by ES&S. County is responsible for
obtaining any upgrades or purchases of Third Party Items required to operate the Updates.
Standard Updates and minor updates (i.e. bug fixes) are included in the Agreement. All
Updates shall be deemed to be ES&S Software for purposes of this Agreement upon delivery.
County may install the Updates in accordance with ES&S ' recommended instructions or may
request that ES&S install the Updates. ES&S may charge County at its then-current rates to (i)
deliver major Updates (i.e. platform changes , new software system , etc.) to the County, train
County on major Updates , if such training is requested by County; (iii) install the major
Updates or (iv) provide maintenance and support on the ES&S Software that is required as a
result of County 's failure to timel y or properly install an Update . County shall be
responsible for any claim, damage , loss , judgment, penalty , cost, amount paid in settlement or
fee which is caused by County 's failure to install and use the most recent Update provided to it
by ES&S. If County proposes changes in the ES&S Software to ES&S , such proposals will
become ES&S' property. ES&S may , in its sole discretion, electto make or not to make such
changes without reference or compensation to County or any third party. ES&S represents to
County that the Updates will comply with all applicable state law requirements at the time of
delivery. County shall be responsible to ensure that it has installed and is using only
Exhibit A Page 6 ofll
certified versions of ES&S Software in accordance with applicable law. County shall pay ES&S
for any Update which is required due to a change in local law.
Delivery; Risk of Loss ; Insurance. ES&S anticipates shipping the ES&S Equipment and
ES&S Software to County in a timel y manner according to the Implementation Target Dates
identified in this Exhibit A. The Delivery Dates are merely estimates and may be revised by
ES&S because of delays in executing this Agreement , changes requested by County , and
other events outside of ES&S ' s control. ES&S will notify County of revisions to the Delivery
Dates as soon as ES&S becomes aware of such revisions . Risk of loss for the ES&S Equipment
and ES&S Software shall pass to County when such items are delivered to County 's
designated location . Upon transfer of risk of loss to County, County shall be responsible for
obtaining and maintaining sufficient casualty insurance on the ES&S Equipment and ES&S
Software. Shipping and installation costs are included in the purchase price.
Installation of ES&S Equipment and ES&S Software. County acknowledges and agrees that the
ES&S Equipment and ES&S Software provided by ES&S hereunder shall only be used by the
County to perform the services contemplated under this Agreement and not for any other
purpose. County will provide , at its own expense , a site adequate in space and design for
installation, operation and storage of the ES&S Equipment , ES&S Software and consumable
items. County shall be responsible for pro viding a site that has all necessary electric current
outlets, circuits , and wiring for the ES&S Equipment. ES&S may , but shall not be required
to, inspect the site and advise on its acceptability before any ES&S Equipment or ES&S
Software is installed. ES&S shall have no liability for actual site preparation or for any
costs, damages or claims arising out of the installation of any ES&S Equipment or ES&S
Software at a site not meeting ES&S ' specifications.
Maintenance &Support
a. ES&S Equipment and ES&S Software. ES&S agrees that during the Term of the
Agreement, ES&S shall maintain the ES&S Equipment and ES&S Software in good working
condition in order allow the County to use the ES&S Equipment and ES&S Software in
accordance with its Documentation, wear and tear excepted ("Normal Working Condition"). If
a defect or malfunction occurs in any ES&S Equipment and/or ES&S Software while it is
under normal use and service , County shall promptly notify ES&S, and ES&S shall use
reasonable efforts to restore the item to Normal Working Condition as soon as practicable.
ES&S shall repair or replace any item of ES&S Equipment and ES&S Software at ES&S' or
the County 's designated location as determined by ES&S in its sole discretion. If a defect
or malfunction occurs in an y ES&S Equipment and ES&S Software as a result of (1) repairs ,
changes , modifications or alterations not authorized or approved by ES&S, (2) accident, theft,
vandalism, neglect, abuse or use that is not in accordance with instructions or specifications
furnished by ES&S or (3) causes beyond the reasonable control of ES&S or County, including
acts of God , fire , riots , acts of war, terrorism or insurrection, labor disputes,
transportation delays , governmental regulations , rodent infestation, and utility or
communication interruptions, County shall pay ES&S for any maintenance services at ES&S'
then-current rates, as well as for the cost of all parts used in connection with the performance of
such maintenance services.
b. Technical Support. In addition to pro viding those services set forth in this Exhibit A ,
Exhibit A Page 7 ofll
ES&S shall provide the County with technical help desk support.
Disclaimer of Warranties. Except as otherwise set forth herein, E S &S expressly disclaims
all warranties, whether express or implied, which are not specifically set forth in this
agreement, including but not limited to, any implied warranties of merchantability or fitness for
a particular purpose.
Limitation of Liability. Neither party shall be liable for any indirect, incidental, purut1ve,
exemplary, special or consequential damages of any kind whatsoever arising out of or
relating to this Agreement. Neither party shall be liable for the other party's negligent or willful
misconduct. ES&S' total liability to County arising out of or relating to this Agreement shall
not exceed the aggregate amount to be paid to ES&S hereunder. Any action by County against
ES&S must be commenced within one (1) year after the cause of action has accrued. By
entering into this Agreement, County agrees to accept responsibility for (a) the selection of
the ES&S Equipment and ES&S Software to achieve County's intended results; (b) the use
of the ES&S Equipment and ES&S Software; (c) the results obtained from the use of the
ES&S Equipment and ES&S Software; (d) the selection of, use of and results obtained from
any equipment, software or services not provided by ES&S and used with the ES&S
Equipment or ES&S Software; (e) errors that arise from mechanical or electronic
component failures that are not covered under warranty or not subject to maintenance efforts
or cure under this Agreement; or (f) user errors, voter errors or problems encountered by any
individual in voting that are not otherwise a result of the failure of ES&S to perform its
obligations under this Agreement.
Proprietary Rights. County acknowledges and agrees as follows:
a. ES&S owns the ES&S Software, all Documentation and training materials provided by
ES&S, the design and configuration of the ES&S Equipment and the format, layout,
measurements, design and all other technical information associated with the ballots to be used
with the ES&S Equipment. County has the right to use the aforementioned items to the extent
specified in this Agreement. ES&S also owns all patents, trademarks, copyrights, trade names
and other proprietary or intellectual property in, or used in connection with, the
aforementioned items. The aforementioned items also contain confidential and proprietary trade
secrets of ES&S that are protected by law and are of substantial value to ES&S.
b. County shall not cause or permit the adaptation , conversion, reverse engineering,
disassembly or decompilation of any of the ES&S Equipment or ES&S Software.
c. County shall keep the ES&S Software and related Documentation free and clear of all
claims, liens and encumbrances and shall maintain all copyright, trademark, patent or other
intellectual or proprietary rights notices that are set forth on the ES&S Equipment, the ES&S
Software, the Documentation, training materials and ballots that are provided, and all
permitted copies of the foregoing.
Indemnification. To the fullest extent permitted under applicable law, County shall
indemnify and hold harmless ES&S from and against any and all claims, damages,
amounts paid in settlement and reasonable fees and costs (including reasonable attorneys'
fees) (collectively "Adverse Consequences") arising out of or relating to the following: Any
claim that any of the ES&S Equipment or ES&S Software infringes upon any third party's
Exhibit A Page 8 ofll
copyright, trademark or patent existing as of the date hereof (a "Third Party Infringement
Claim") resulting from (i) County's failure to timely or properly install and use any Update
provided to it by ES&S; (ii) the use of any ES&S Equipment or ES&S Software in
combination with other equipment, hardware or software not meeting ES&S ' specifications for
use with such ES&S Equipment or ES&S Software; or (iii) County's modification or alteration
of any item of ES&S Equipment or ES&S Software without the prior written consent ofES&S;
Any claims by Third Parties arising out of or relating to the use or misuse by County, its
employees and any other persons under its authority or control ("County's Representatives") of
any Third Party Items; and Personal injury (including death) or property damage that is caused
by any negligent or willful act , error or omission of one or more of County's Representatives.
ES&S shall notify County immediately if it becomes aware of any claim for which it may be
entitled to indemnification under this Section , and hereby gives County full and complete
authority, and shall provide such information and assistance as is necessary (at County's
expense with respect to reasonable out-of-pocket costs), to enable County to defend,
compromise or settle any such claim.
Taxes; Interest. County shall provide ES&S with proof of its tax-exempt status. If County does
not provide such proof, it shall pay, or shall reimburse ES&S for, all sales and use, excise or
other similar taxes imposed on the transactions contemplated by this Agreement; provided,
however, County shall in no event be liable for taxes imposed on or measured by ES&S'
income. If County disputes the applicability of any tax to be paid pursuant to this Section, it
shall pay the tax and may thereafter seek a refund. Any undisputed payment not paid by County
to ES&S when due shall be subject to the California Prompt Payment Act.
Excusable Nonperformance. Except for obligations to make payments hereunder, if either party
is delayed or prevented from performing its obligations under this Agreement as a result of any
cause beyond its reasonable control, including acts of God , fire , riots, acts of war, terrorism or
insurrection, labor disputes , transportation delays, governmental regulations and utility or
communication interruptions , 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
allow performance after the cause of delay has been removed. ES&S agrees to work with
County, at County's request , to develop mutually agreeable alternatives in order to minimize
the negative impact of any such delay.
Current Vote Remote System. ES&S shall maintain the AVES Scanners currently used by the
County as a back-up system during the implementation of the new MBV1000 and MBV2000
models for the November 2016 election. ES&S shall ensure that software integration with
ElMS® is operational during the November 2016 election for the current AVES Scanners and
the new MBV1000 and MBV2000 models.
Support Services. The support services to be provided by ES&S during the Initial Term, a
description of such services and total fees are described in Table 1 -Support and Installation
Services. County acknowledges that ES&S' s fees for support services are based on the
descriptions listed in the table on the following page , and that a change in the descriptions may
require ES&S to change the fees charged to County. For purposes of ES&S' s provision of
Support Services under this Agreement , a "Service Day" shall mean the performance of any
Exhibit A Page 9 ofll
agreed upon Support Services on or off of County 's facilities , as applicable, by one (1) ES&S
employee, contractor or agent on an y one (1) calendar day or four hour portion thereof. By
way of example, "ten Service Days " could be used by County through the provision of Support
Services by one (1) ES&S employee, contractor or agent on each often different calendar days,
two (2) ES&S employees , contractors or agents on each of five (5) different calendar days, or
ten (10) ES&S employees , contractors or agents on one (1) calendar day.
Exhibit A Page 10 ofll
Table 1 -Support and Installation Services
Support Services Area of Work or Description Primary Fee
Role/Function Responsibility
Training Training will be provided on a pre-ES&S Included
scheduled basis. Number and length
of training sessions will be mutually
agreed upon in advanced. County
agrees to provide a facility to hold
training sessions. Levels of training
include:
1st level (operator) training
-Provides sufficient skills to
operate the system, replace
consumables, clear jams.
2nd level (lead) training
-Involves more in depth
troubleshooting knowledge
including aligning feeder ,
understanding communication
issues with VR systems , and
production of reports.
Technical training to IT or
operations staff
-Involves a complete
understanding of system
architecture and operations.
Refresher training can be provided in
advance of each election on a
mutually agreeable timeframe at the
then current rate per day. The rate for
refresher training is currently
$1 ,575 .00 per day (FY 2016-17).
Hardware and Software Maintenance ES&S
Software . Technical software support hotline On-site support
Maintenance . Installation of any new Updates ·s billed . Testing and validation of all Updates separately on a
!fee-for-service
Hardware Maintenance !basis at a rate of . Technical support and repair $8,000 per 100
!hours. Time is of all hardware components !calculated portal . Break/Fix maintenance on the o portal.
Mail Ballot Verifier sy stem . All labor
Total Support Service Fees Included
Exhibit A Page 11 ofll
Support Services/ Area of Work or Description Primary Responsibility
Installation
Role/Function
Installation -ES&S will inspect and install the Mail ES&S
Mail Ballot Verifier Systems at County's designated
Verifier location to ensure it is operating properly
System and within specifications. Installation
shall be completed in a timely manner.
Total Installation Fees: Included
Implementation Target Dates
Date Task Days Owner
9-Jun Site survey-Kick off meeting 1 ES&S/County
30-Jun Finalize Agreement terms 1 ES&S/County
5-Jul Begin manufacturing 70 ES&S/County
19-Jul Receive test ElMS Data file 1 County/DFM
19-Jul Receive printed test envelopes 1 County
26-Jul Insert test envelopes 2 ES&S/County
9-Aug Board reviews and approves Agreement 1 County
The parties acknowledge and agree that the following tasks and implementation target dates are
subject to the Board approving the Agreement on August 9, 2016. In the event the Board does not
approve the Agreement on August 9, 2016, the following tasks and implementation target dates
are subject to change by ES&S which may affect the County's ability to use the system for the
November 8, 2016 election.
15-Aug Test system using sample material 15 ES&S
19-Aug Provide export data/images to DFM 1 ES&S
6-Sep Complete system testing 2 ES&S
7-Sep System package and crated 1 ES&S
14-Sep Equipment shipped to County 4 ES&S
19-Sep Equipment delivered to County 1 ES&S
19-Sep Equipment assembled 1 ES&S
20-Sep Hardware/material process testing 2 ES&S
21-Sep Establish/test network communications 1 ES&S
22-Sep End to end system testing 2 ES&S
29-Sep Operator training 1 ES&S/County
30-Sep Mock election 1 ES&S/County
30-Sep Ready for live operations 1 ES&S/County
11-0ct On-site support for UOCA VA 2 ES&S
17-0ct On-site support for perm mailing 3 ES&S
8-Nov On-site support -Election Day 2 ES&S
Exhibit B Page 1 of3
Pricing and Payment Terms
Equipment Costs
Equipment as Configured (MBV 1000 and MBV 2000) $191 ,796
Installation and training $9 ,900
Subtotal $201,696
Discount ($5,000)
Total Equipment Cost $196,696
Annual Support Costs
Year 1 {August 10 2 2016 through June 30 2 2017)
Parts Warranty $0
Software Warranty/ License $0
Phone Support $0
Onsite support (100 hour block of time, fee for service)/Additional Services* $8,000
Automatic Signature Recognition (ASR) Overage Fee (fee for service). Includes $15,000 an additional 150,000 ballots at $.10 per ballot**
$23,000
Year 2 (July 1. 2017 throu2h June 30. 2018)
Parts Warranty $6 ,2 50
Software Warranty/ License $16,380
Phone Support $0
Annual cost post warranty $22,630
Year 3 (Julv 1. 2018 throu2h June 30. 2019)
Parts Warranty $6,250
Software Warranty/ License $16,3 80
Phone Support $0
Annual cost post warranty $22,630
Total Years 1-3 (August 10,2016 through June 30, 2019) $264,956
O[!tional Year 4 {July 12 2019 through June 30 2 2020)
Parts Warranty $6 ,2 50
Software Warranty/ License $16,380
Phone Support $0
Annual cost post warranty $22,630
O[!tional Year 5 {July 12 2020 through June 30 2 2021)
Parts Warranty $6,250
Software Warranty/ License $16,380
Phone Support $0
Annual cost post warranty $22,630
Total Years 1-5 (August 10,2016-June 30, 2021) $310,216
Exhibit B Page 2 of3
The costs include the following:
1. One (1) MBV 1000 Transport with Feeder, Image Camera, Printer, Divert and Output
Conveyor
2. One (1) MBV 2000 Transport with Feeder, Image Camera, Printer, 2 Divert and Output
Conveyor
3. One (1) Mobile Cart for MBV 1000 to hold laser printer and supplies, and organize
cables and cords
4. Covers for MBV 1000 and MBV 2000
5. Four (4) additional MBV 2000 Sort bins
6. Two (2) thickness detectors
7. One (1) MBV Network Computer (required for multiple machines or side by side
comparison module)
8. Printer and Software training
9. Installation and Acceptance Testing
10. Software License and Support
11. No Signature detection
12. MBV Image Capture Software
13. MBV Side-Side Comparison Module
14. Automated Signature Recognition Module
15. VR System Integration
16. Shipping and Handling
17. Post warranty maintenance and support
18. Post warranty Parts Coverage
19. Usage of the equipment for up to 200 ,000 unique voter envelopes per year. There is a
cost of $.10 per piece for each unique voter envelope processed in excess of this amount.
The costs also include 1 00 hours of on-site service support time, to be used solely at the
discretion ofthe county at any time during years 1-5. Hours will be billed on a fee-for-service
basis and County will be credited for any unused hours. Unused hours may also rollover to the
following years as needed by County . On-site service support time is calculated portal to portal
with a minimum 4 hours per call. Additional service support time can be acquired in increments
of 100 hours. County may use the Onsite support/ Additional Services account ($8,000) to
purchase supplemental services from ES&S as needed by County (i.e. labor or professional
services such as support, training, refresher training , report customization, etc.). Such additional
services requested by the County other than service calls shall be billed at ES&S' then current
rates for the applicable service requested. Refresher training can be provided in advance of each
election on a mutually agreeable timeframe at the then current rate per day (currently $1,575.00
per day in FY 2016-17).
Exhibit B Page 3 of3
Payment Schedule
Year 1: $219,696.00 due within forty-five (45) Calendar Days after delivery of one (1) MBV
1000 Mail Ballot Verifier and one (1) MBV 2000 Mail Ballot Verifier with six (6) outsort bins to
County. This amount includes 1st year Software License, parts warranty, 100 hours of on-call
support and a fee-for-service account for ASR overage fees. County shall receive a certified
hard copy of the title to the equipment within 21 business days of payment for Year 1 in the
amount of$219,696.00.
Year 2: $22,630 for annual software license and parts warranty is due July 1, 2017
Year 3: $22,630 for annual software license and parts warranty is due July 1, 2018.
Year 4: $22,630 for annual software license and parts warranty is due July 1, 2019, if Renewal
Option is exercised.
Year 5: $22,630 for annual software license and parts warranty is due July 1, 2020, if Renewal
Option is exercised.
Processing Fees are due within forty-five (45) days of receipt of ES&S invoice. Invoicing shall
follow the applicable election. Processing fees include 200,000 ballots processed per each
twelve (12) month period during the Initial Agreement Period and any Optional Agreement
Renewal Period. In the event the County exceeds 200,000 ballots per fiscal year (July 1st -June
30th) processed during any twelve month period during the Initial Agreement Period and any
Optional Agreement Renewal Period, each ballot processed in excess of 200,000 ballots shall be
charged to the County at the rate of $0.10 per ballot and shall be due and payable by the County
on a fee-for-service basis. The maximum overage fee shall be $15,000 per fiscal year.
*Onsite Support/Additional Services (fee for service) -County shall pay $8,000 for Onsite
Support/ Additional Services in the Agreement. This amount shall be paid by County in
accordance with the payment terms set forth above. Any unused amount will carry over to the
following Agreement years (Years 2-5) until the remaining balance is zero or until the
completion of the Agreement. The County shall be provided a refund of any unused amount
within ten (1 0) days of the completion of the Agreement. The County shall replenish this
account if needed and no later than sixty (60) days of receipt of notice by ES&S. An amendment
to the Agreement may be required to replenish this account.
**ASR Overage Fee (fee for service)-County shall pay $15,000 for ASR overage fees in the
Agreement. This amount shall be paid by County in accordance with the payment terms set forth
above. Any unused amount will carry over to the following Agreement years (Years 2-5) until
the remaining balance is zero or until the completion of the Agreement. The County shall be
provided a refund of any unused amount within ten (1 0) days of the completion of the
Agreement. The County shall replenish this account if needed and no later than sixty (60) days
of receipt of notice by ES&S. An amendment to the Agreement may be required to replenish
this account.
SELF-DEAUNG lRANSAcnON DISCLOSURE FORM
Exhibit C
Page 1 of2
In order to conduct business with the County of Fresno (hereinafter referred to as "County"),
members of a contractor's board of directors (hereinafter referred to as "County Contractor"), must
disclose any self-dealing transact ions that they are a party to while providing goods, performing
services, or both for the County . A self-dealing transaction is defined below:
"A self-dealing transaction means a transaction to which the corporation is a party and in which one
or more of its directors has a material financ ial interest"
The definition above will be utilized for purposes of completing this disclosure form.
INSTRUCTIONS
(1) Enter board member's name, job title (if applicable), and date this disclosure is being made.
(2) Enter the board member's company/agency name and address .
(3) Describe in detail the nature of the self-dealing transaction that is being disclosed to the
County. At a minimum, include a description of the following :
a. The name of the agency/company with which the corporation has the transaction; and
b. The nature of the material financial interest in the Corporation's transaction that the
board member has.
(4) Describe in detail why the self-dealing transaction is appropriate based on applicable
provisions of the Corporations Code .
(5) Form must be signed by the board member that is involved in the self-dealing transaction
described in Sections (3) and (4).
(1) Company Board Member Information:
Name: Date :
Job Title:
(2) Company/Agency Name and Address:
(3) Disclosure (Please describe the nature of the self-dealing transaction you are a party to):
Exhibit C
Page 2 of2
(4) Explain why this self-dealing transaction is consistent with the requirements of Corporations Code 5233 (a):
(5) Authorized Signature
Signature: I Date:
I