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HomeMy WebLinkAboutResolutions - 2013.12.12 - 21142MISCELLANEOUS RESOLUTION //13322 December 12, 2013 BY: General Government Committee, Christine Long, Chairperson IN RE: COUNTY CLERK/REGISTER OF DEEDS - ELECTIONS DIVISION - AGREEMENT FOR BALLOT LAYOUT AND PROGRAMMING SERVICES BETWEEN OAKLAND COUNTY AND LOCAL MUNICIPALITIES To the Oakland County Board of Commissioners Chairperson, Ladies and Gentlemen: WHEREAS the Urban Cooperation Act of 1967 permits local governments to enter into interlocal agreements to provide services; and WHEREAS Oakland County Corporation Counsel has drafted an agreement for the cities and townships in Oakland County to utilize the services of the Oakland County Elections Division for Ballot Layout and Programming Services at a cost of $300 per election; and WHEREAS the proposed cooperative agreement between Oakland County and local municipalities will result in an estimated $60,000 biennial savings to local municipalities and $144,000 biennial savings to Oakland County; and NOW THEREFORE BE IT RESOLVED that the Oakland County Board of Commissioners hereby approves and authorizes the attached Agreement to govern the relationship and responsibilities between the County and the following local municipalities for ballot layout and programming services: City of Auburn Hills Township of Addison City of Berkley Charter Township of Bloomfield City of Birmingham Charter Township of Brandon City of Bloomfield Hills Charter Township of Commerce City of the Village of Clarkston Township of Groveland City of Clawson Charter Township of Highland City of Farmington Township of Holly City of Farmington Hills Charter Township of Independence City of Fenton Charter Township of Lyon City of Ferndale Charter Township of Milford City of Hazel Park Township of Novi City of Huntington Woods Charter Township of Oakland City of Keego Harbor Charter Township of Orion City of Lake Angelus Charter Township of Oxford City of Lathrup Village Township of Rose City of Madison Heights Charter Township of Royal Oak City of Northville Township of Southfield City of Novi Charter Township of Springfield City of Oak Park Charter Township of Waterford City of Orchard Lake Village Charter Township of West Bloomfield City of Pleasant Ridge Charter Township of White Lake City of Pontiac City of Rochester City of Rochester Hills City of Royal Oak City of South Lyon City of Southfield City of Sylvan Lake City of Troy City of Walled Lake City of Wixom GENERAL GOVERNMENT COMMITTEE Motion carried unanimously on a roll call vote. BE IT FURTHER RESOLVED that the Oakland County Board of Commissioners hereby directs its Chairperson or his designee to execute the attached Agreement and all other related documents between the County and the municipalities listed above. Chairperson, on behalf of the General Government Committee, I move the adoption of the foregoing resolution. GENERAL GOVERNMENT COMMITTEE AGREEMENT FOR ELECTION SERVICES BETWEEN OAKLAND COUNTYAND [INSERT NAME OF MUNICIPALITY] This Election Services Agreement (the "Agreement") is made between Oakland County, a Constitutional and Municipal Corporation, 1200 North Telegraph Road, Pontiac, Michigan 48341 ("County"), and [INSERT NAME AND ADDRESS OF MUNICIPALITY] ("Municipality"). In this Agreement the County shall be represented by the Oakland County Clerk, in her official capacity as a Michigan Constitutional Officer. The County and the Municipality may also be referred to jointly as "Parties". PURPOSE OF AGREEMENT. County and Municipality enter into this Agreement for the purpose of providing the Election Services pursuant to Michigan law. In consideration of the mutual promises, obligations, representations, and assurances in this Agreement, the Parties agree to the following: 1. DEFINITIONS. The following words and expressions used throughout this Agreement, whether used in the singular or plural, within or without quotation marks, or possessive or nonpossessive, shall be defined, read, and interpreted as follows. 1.1. Agreement means the terms and conditions of this Agreement and any other mutually agreed to written and executed modification, amendment, or addendum. 1.2. Claim means any and all losses, complaints, demands for relief, damages, lawsuits, causes of action, proceedings, judgments, deficiencies, penalties, costs and expenses, including, but not limited to, reimbursement for reasonable attorney fees, witness fees, court costs, investigation, litigation expenses, amounts paid in settlement, and/or any other amount for which either Party becomes legally and/or contractually obligated to pay, whether direct, indirect, or consequential, whether based upon any alleged violation of the constitution (federal or state), any statute, rule, regulation, or the common law, whether in law or equity, tort, contract, or otherwise, and/or whether commenced or threatened. 1.3. County means Oakland County, a Municipal and Constitutional Corporation including, but not limited to, all of its departments, divisions, the County Board of Commissioners, elected and appointed officials, directors, board members, council members, commissioners, authorities, committees, employees, agents, volunteers, and/or any such persons' successors. 1.4. Day means any calendar day beginning at 12:00 a.m. and ending at 11:59 p.m. 1.5. Election Services means the following individual Election Services provided by County Clerk's Elections Division, if applicable. 1.5.1. Ballot Layout and Programming means preparing ballots and related programming so they may be read by electronic voting machines. ELECTION SERVICES - INTERLOCAL AGREEMENT Page 1 1.6. Exhibits mean the following descriptions of Election Services which are governed by this Agreement only if they are attached to this Agreement and incorporated in Section 2 or added at a later date by a formal amendment to this Agreement. 1.6.1. Exhibit I: Ballot Layout and Programming. 1.7. Flash Card means a device that when inserted into the Voter Assist Terminal will enable the machine to properly mark a voter's ballot. 1.8. Local Clerk means the local elected or appointed Clerk for Municipality or their designee. 1.9. Local Election Definition File means a computer program that reads the results from the tabulators in each voting machine and produces a report showing the totals for each precinct and the overall totals for each office, proposal or item voted on. 1.10. Municipality or Municipal means the [INSERT NAME OF MUNICIPALITY], a Municipal Corporation including, but not limited to, its Council, Board, any and all of its departments, its divisions, elected and appointed officials, directors, board members, council members, commissioners, authorities, committees, employees, agents, subcontractors, attorneys, volunteers, and/or any such persons' successors. 1.11- Programming File means a computer program that when placed on a card, will enable the tabulator to read and tabulate votes. 1.12. Tabulator Cards means a device that when inserted into a voting machine will enable the voting machine to properly read the markings made by voters on a ballot and then store these vote results. 1.13. Voter Assist Terminal means an optical scan ballot-marking device that provides voter privacy and accessibility to voters who are visually-impaired, or have physical impairments. 1.14. Voter Assist Terminal Programming File means a computer program that, when placed on a Flash Card, will enable the Voter Assist Terminal to function and properly mark a voter's ballot. 2. COUNTY RESPONSIBILITIES. Through its County Clerk Elections Division County shall provide the Election Services described in Exhibit I which is attached and incorporated in to this Agreement. 3. MUNICIPALITY RESPONSIBILITIES. Shall perform the responsibilities described in Exhibit 1. 4. DURATION OF INTERLOCAL AGREEMENT. 4.1. The Agreement and any amendments hereto shall be effective when executed by both Parties with concurrent resolutions passed by the governing bodies of each Party. The approval and terms of this Agreement and any amendments hereto, except as specified below, shall be entered in the official minutes of the governing bodies of each Party. An executed copy of this Agreement and any amendments shall be filed by the County Clerk with the Secretary of State. ELECTION SERVICES - INTERLOCAL AGREEMENT Page 2 4.2. The Chairperson of the Oakland County Board of Commissioners is authorized to sign amendments to Agreements for the purpose of adding Service(s) Exhibit(s) that were previously approved by the Oakland County Board of Commissioners and defined in the executed Agreement but are requested by Municipality after they approved the Agreement. The amendment signed by the Board Chairperson under this Section must be sent to the Elections Division in the Clerk's Office to be filed with the Agreement once it has been signed by both Parties. 4.3. Unless extended by mutual, written agreement by both Parties, this Agreement shall remain in effect for five (5) years fi-om the date the Agreement is completely executed by all Parties or xintil cancelled or terminated by any of the Parties pursuant to the termination or cancellation of the Agreement Section herein. PAYMENTS. Municipality hereby agrees to pay to the County the following amounts: 5.1. Election Services shall be provided to Municipality at the rates specified in the Exhibit(s). 5.2. County, through its Department of Management and Budget, and upon such frequency as deemed appropriate by County, shall prepare and forward to the Municipality an itemized invoice for Election Services provided to the Municipality pursuant to this Agreement. Municipality agrees to pay the full amount shown on any such invoice within thirty (30) calendar days after the date shown on any such invoice. Payment shall be sent to the Oakland County Treasurer, 1200 N. Telegraph Road, Pontiac, Michigan 48341, along with a copy of the invoice. 5.3. The Parties agree that Municipality's obligation to pay County any and all amounts due and owing under this Agreement shall be absolute and unconditional and shall not be affected, in any way, by the occurrence of either Party's default or any term or condition of this Agreement nor shall any other occurrence or event relieve, limit, or impair the obligation of Municipality to pay County as provided for herein. County shall seek payment from the governmental corporation and not fi*om the personal assets of any individual included in the definition of Municipality. 5.4. If Municipality fails, for any reason, to pay the County any monies when and as due under this Agreement, Municipality agrees that unless expressly prohibited by law, County or the County Treasurer, at their sole option, shall be entitled to setoff from any other Municipality funds that are in the County's possession for any reason. Funds include but are not limited to the Delinquent Tax Revolving Fund ("DTRF"). Any setoff or retention of funds by the County shall be deemed a voluntary assignment of the amount by the Municipality to the County. Municipality waives any Claims against the County or its Officials for any acts related specifically to the County's offsetting or retaining such amounts. This paragraph shall not limit Municipality's legal right to dispute whether the underlying amount retained by County was actually due and owing under this Agreement. 5.5. If County chooses not to exercise its right to setoff or if any setoff is insufficient to fully pay County any amounts due and owing the County under this Agreement, County shall have the right to charge up to the then-maximum legal interest on any unpaid amount. Interest charges shall be in addition to any other amounts due to ELECTION SERVICES - INTERLOCAL AGREEMENT Page 3 County under this Agreement. Interest charges shall be calculated using the daily unpaid balance method and accumulate until all outstanding amounts and accumulated interest are fully paid. 5.6. Nothing in this Section shall operate to limit County's right to pursue or exercise any other legal rights or remedies under this Agreement against Municipality to secure reimbursement of amounts due the County under this Agreement. The remedies in this Section shall be available to the County on an ongoing and successive basis if Municipality at any time becomes delinquent in its payment. Notwithstanding any other term and condition in this Agreement, if County pursues any legal action in any court to secure its payment under this Agreement, Municipality agrees to pay all costs and expenses, including attorney's fees and court costs, incurred by County in the collection of any amount owed by Municipality. 6. ASSURANCES. 6.1. Each Party shall be responsible for any Claims made against that Party and for the acts of its officers or employees. 6.2. Except as provided for in Section 5.6, in any Claim that may arise from the performance of this Agreement, each Party shall seek its own legal representation and bear the costs associated with such representation including any judgments and attorney fees. 6.3. Except as otherwise provided in this Agreement, neither Party shall have any right under any legal principle to be indemnified by the other Party or any of its officers or employees in connection with any Claim. 6.4. This Agreement does not, and is not intended to, impair, divest, delegate or contravene any constitutional, statutory, and/or other legal right, privilege, power, obligation, duty or immunity of the Parties. Nothing in this Agreement shall be construed as a waiver of governmental immunity for either Party. 6.5. The Parties have taken all actions and secured all approvals necessary to authorize and complete this Agreement. The persons signing this Agreement on behalf of each Party have legal authority to sign this Agreement and bind the Parties to the terms and conditions contained herein. 6.6. Each Party shall comply with all federal, state, and local ordinances, regulations, administrative rules, and requirements applicable to its activities performed under this Agreement. 7. LIMITATION OF LIABILITY. In no event shall either Party be liable to the other Party or any other person, for any consequential, incidental, direct, indirect, special, and punitive or other damages arising out of this Agreement. 8. TERMINATION OR CANCELLATION OF AGREEMENT. Either Party may terminate or cancel this Agreement upon ninety (90) days written notice, if: (i) the other Party defaults in any obligation contained in this Agreement and within the ninety (90) day notice period the Party failed to cure such defauh or failed to take a course of action to cure such default or (ii) for any reason, including convenience. Any notification concerning defauh must be in writing and clearly state the specific default(s). The effective date of ELECTION SERVICES - INTERLOCAL AGREEMENT Page 4 termination and/or cancellation shall be clearly stated in the written notice. Either the County Clerk or the Board of Commissioners is authorized to terminate this Agreement for the County. 9. DELEGATION OR ASSIGNMENT. Neither Party shall delegate or assign any obligations or rights under the Agreement without the prior written consent of the other Party. 10. PRECEDENCE OF DOCUMENTS. In the event of a conflict between the terms and conditions of any of the documents that comprise this Agreement, the terms in the Agreement shall prevail and take precedence over any allegedly conflicting terms in the Exhibits or other documents that comprise this Agreement. 11. FORCE MAJEURE. Notwithstanding any other term or provision of this Agreement, neither Party shall be liable to the other for any failure of performance hereunder if such failure is due to any cause beyond the reasonable control of that Party and that Party cannot reasonably accommodate or mitigate the effects of any such cause. Such cause shall include, without limitation, acts of God, fire, explosion, vandalism, any law, order, regulation, direction, action, or request of the United States government or of any other government, national emergencies, insurrections, riots, wars, strikes, lockouts, work stoppages, or other labor difficuhies. Reasonable notice shall be given to the affected Party of any such event. 12. NOTICES. Notices given under this Agreement shall be in writing and shall be personally delivered, sent by express delivery service, certified mail, or first class U.S. mail postage prepaid, and addressed to the person listed below. Notice will be deemed given on the date when one of the following first occur: (1) the date of actual receipt; (2) the next business day when notice is sent express delivery service or personal delivery; or (3) three days after mailing first class or certified U.S. mail. 12.1. If Notice is sent to the County, it shall be addressed and sent to: Oakland County Clerk, 1200 North Telegraph Road, Pontiac, Michigan, 48341 and the Chairperson of the Oakland County Board of Commissioners, 1200 North Telegraph Road, Pontiac, Michigan 48341. 12.2. If Notice is sent to the Municipality, it shall be addressed to: [INSERT NAME OF CLERK], Clerk, [INSERT NAME AND ADDRESS OF MUNICIPALITY]. 12.3. Either Party may change the address and/or individual to which Notice is sent by notifying the other Party in writing of the change. 13. GOVERNING LAW/CONSENT TO JURISDICTION AND VENUE. This Agreement shall be governed, interpreted, and enforced by the laws of the State of Michigan. Except as otherwise required by law or court rule, any action brought to enforce, interpret, or decide any Claim arising under or related to this Agreement shall be brought in the 6th Judicial Circuit Court of the State of Michigan, the 50th District Court of the State of Michigan, or the United States District Court for the Eastern District of Michigan, Southern Division, as dictated by the applicable jurisdiction of the court. Except as otherwise required by law or court rule, venue is proper in the courts set forth above. ELECTION SERVICES - INTERLOCAL AGREEMENT Page 5 14. ENTIRE AGREEMENT. This Agreement represents the entire agreement and understanding between the Parties. This Agreement supersedes all other oral or written agreements between the Parties. The language of this Agreement shall be construed as a whole according to its fair meaning, and not construed strictly for or against any Party. IN WITNESS WHEREOF, hereby acknowledges that he/she has been authorized by a resolution of the [INSERT NAME OF MUNICIPALITY], a certified copy of which is attached, to execute this Agreement on behalf of the Municipality and hereby accepts and binds the Municipality to the terms and conditions of this Agreement. EXECUTED: DATE: WITNESSED: DATE: IN WITNESS WHEREOF, Michael J. Gingell, Chairperson, Oakland County Board of Commissioners, hereby acknowledges that he has been authorized by a resolution of the Oakland County Board of Commissioners, a certified copy of which is attached, to execute this Agreement on behalf of Oakland County, and hereby accepts and binds Oakland County to the terms and conditions of this Agreement. EXECUTED: DATE: Michael J. Gingell, Chairperson Oakland County Board of Commissioners WITNESSED: DATE: IN WITNESS WHEREOF, Lisa Brown, in her official capacity as the Oakland County Clerk, a Michigan Constitutional Office, hereby concurs and accepts the terms and conditions of this Agreement. EXECUTED: DATE: Lisa Brown, Clerk/Register of Deeds County of Oakland WITNESSED: DATE; 2013-0563 ELECTIONS INTERLOCAL AGREEMENT100313.docx ELECTION SERVICES - INTERLOCAL AGREEMENT Page 6 EXHIBIT I BALLOT LAYOUT AND PROGRAMMING 1. COUNTY RESPONSIBILITIES. 1.1. The County shall provide an electronic version of the ballot for each precinct, as approved by the Local Clerk, to the ballot printing vendor selected by County for elections pertaining to statewide and/or County elections. For elections that solely pertain to Municipal offices or issues, the County will provide an electronic version to the ballot printing vendor it has selected unless the Municipality indicates in writing to County that it has selected a different vendor approved by the voting equipment manufacturer. 1.2. The County shall provide the Municipality with a Local Election Definition File, Voter Assist Terminal Programming File and Programming File. 1.3. The County shall program the Tabulator Cards for each voting machine and, if requested by the Mxmicipality, Flash Cards for each Voter Assist Terminal. 1.4. County shall mail a Phonetic Verification Form to every local candidate (excluding precinct delegates) prior to each election requesting a phonetic spelling of each candidate's name as it will be used on the ballot used with the Voter Assist Terminal unless the Local Clerk has the candidate complete the Phonetic Verification Form and provides a copy of the Form to County. 2 MUNICIPALITY RESPONSIBILITIES. 2.1. No later than eighty (80) days prior to each election in which there are County, Statewide or Municipal issues to be voted upon, the Local Clerk shall complete and return to the County: 2.1.1. The Pre-Election Questionnaire prepared by County. 2.1.2. A listing or verification of a listing, per precinct of each office to be elected on the form provided by County. 2.1.3. Notification of any boundary changes made by Municipality since the previous election. 2.2. Within three (3) business days of receipt from the County of an electronic version of the ballots for each Municipal precinct, advise the County of any corrections that are needed for any of the precinct ballots. This process will continue until a final version of the ballot is approved by the Local Clerk. 2.3. Once a final version of the ballots are approved by the Local Clerk, the Local Clerk shall immediately complete and return to County the Ballot Layout Sign-Off Form provided by County. 2.4. Municipality shall pay to the County an amount equal to THREE HUNDRED ($300.00) DOLLARS for each election. ELECTION SERVICES - INTERLOCAL AGREEMENT Page 7 Resolution #13322 December 12, 2013 The Vice-Chairperson referred the resolution to the Finance Committee. There were no objections.