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HomeMy WebLinkAbout2007-429 AGREEMENT BETWEEN INDIAN RIVER COUNTY BOARD OF COUNTY COMMISSIONERS AND INDIAN RIVER COUNTY SUPERVISOR OF ELECTIONS AND SEQUOIA VOTING SYSTEMS, INC. TABLE OF CONTENTS SECTION 1 . AGREEMENT A. General B . Term 2. SALE AND PURCHASE OF PRODUCT A. Product B . Services C. Purchase Price D. Delivery E. Payment F. Risk of Loss and Transfer of Title G. Testing and Acceptance of Product H. Option to Purchase Additional Product I . Trade-In Option 3 . FIRMWARE LICENSE 4 . PATENT AND COPYRIGHT PROTECTION A. Indemnity B . Conditions C . Infringement Claim 5 . DOCUMENTATION 6. TAXATION 7. LIMITED PARTS WARRANTY A. Terms of Limited Parts Warranty B . General C. Limitations D. Warranty Disclaimer 8 . INDEMNIFICATION 9. INSURANCE A. Insurance Required 1 . Worker' s Compensation 2 . Commercial General Liability 3 . Business Automobile liability B . Additional Insured C . Waiver of Subrogation D. Certificate(s) of Insurance 10 . ASSIGNMENT 11 . SUBCONTRACTING 12 . SEVERABILITY 13 . NONDISCRIMINATION 14 . EXCUSABLE DELAYS 15 . HEADINGS NOT CONTROLLING 16. LIMITATION OF SEQUOIA'S LIABILITY 17. INTELLECTUAL PROPERTY RIGHTS 18 . EMPLOYEES 19. TRUTH-IN-NEGOTIATION CERTIFICATE 20. DUE AUTHORIZATION 21 . TERMINATION 22. CONFIDENTIALITY 23 . ENTIRE AGREEMENT 24. NOTICES 25 . PROJECT MANAGERS — COORDINATION OF PROJECT 26. LAW 27. DISPUTE RESOLUTION 28 . RELATIONSHIP OF THE PARTIES 29. NO THIRD PARTY BENEFICIARIES 30. COMPLIANCE WITH LAW 31 . NO TRANSFER 32 . PUBLIC ENTITY CRIMES 33 . REGULATIONS ; LICENSING REQUIREMENTS 34 . CONFLICT OF INTEREST 35 . ARREARS 36. INDEPENDENT CONTRACTOR RELATIONSHIP 37. CONTINGENT FEE 38 . 2012 COMPLIANCE GUARANTEE ATTACHMENT 1 : DESCRIPTION OF PRODUCT AND PRICING ATTACHMENT 2: ADDITIONAL SERVICES ATTACHMENT 3 : DISCLOSURE OF OWNERSHIP INTERESTS ATTACHMENT 4: CERTIFICATION OF SEQUOIA BY STATE OF FLORIDA ii THIS AGREEMENT is made and entered into this 29th day of January 2008, (the 'Effective Date") by and between the Indian River County Board of County Commissioners ("County"), located at 180127"' Street, Vero Beach, FL 32960, the Indian River County Supervisor of Elections ("SOE"), located at 4375 43rd Avenue, Vero Beach, FL 32967 (collectively referred to as 'Customer") and Sequoia Voting Systems, Inc. ("Sequoia"), located at 717 — 17th Street, Suite 310, Denver, CO 80202. RECITALS WHEREAS, Sequoia is in the business of providing voting and election equipment; and WHEREAS, in 2007, the Florida Legislature passed a law prohibiting touch screen voting equipment and mandating the use of optical scan based voting systems effective July 1 , 2008; and WHEREAS, the County, pursuant to Section 101 .294(1 ), F.S ., is mandated to purchase voting equipment that has been certified for use by the State of Florida; and WHEREAS, the County currently owns and the SOE currently uses a voting system, inclusive of tabulation equipment, components, etc., that was manufactured by and procured from Sequoia; and WHEREAS, the SOE has recommended that the County purchase optical scan based voting equipment from Sequoia due to Sequoia having the only optical scanners certified by the State of Florida that are compatible with the County' s existing voting system; and WHEREAS, the Customer and Sequoia desire to enter into this Agreement. NOW, THEREFORE, in consideration of the mutual benefits and promises set forth in this Agreement, the parties agree as follows. AGREEMENT 1 . AGREEMENT A. General This Agreement shall consist of the terms and conditions set forth herein together with Attachments 1 , 2, 3 and 4, which are specifically incorporated herein and made a part of this Agreement. In the event of any conflicts or differences between a term or condition in the body of this Agreement and a term or condition contained in any Attachment to this Agreement, or if such term and condition in the body of this Agreement cannot be mutually complied with or performed simultaneously with an obligation or term or condition of an Attachment, the term and condition in such Attachment, to the extent inconsistent, shall control. B. Term This Agreement shall commence upon the Effective Date set forth hereinabove and shall remain in full force and effect for a period of two (2) years, or as extended by the parties hereto. 2. SALE AND PURCHASE OF PRODUCT A. Product In accordance with the terns and conditions set forth in this Agreement, County agrees to purchase the equipment listed on Attachment 1 to this Agreement and SOE agrees to operate 1 same in accordance with the Documentation as provided by Sequoia to Customer for the operation of the equipment (collectively referred to as "Product"). B. Services The services as set forth on Attachment 2 of this Agreement shall be provided by Sequoia at no cost to Customer. C. Purchase Price The total purchase price for the Product, as described in Attachment 1 of this Agreement, is Three Hundred Fifty-Six Thousand, Two Hundred and Ten and 00/ 100 ($356,210. 00) Dollars. Said purchase price includes the County' s purchase of Fifty-Nine (59) Optech Insight Plus Tabulators with Modems and Ballot Box. D. Delivery On or before January 31 , 2007, Sequoia shall deliver the Product in its entirety, inclusive of the Fifty-Nine (59) Optech Insight Plus Tabulators with Modems and Ballot Box as set forth hereinabove and the Six (6) Optech Insight Plus Tabulators with Modems and Ballot Box as set forth hereinbelow, to the location(s) designated by the SOE . Said delivery date(s) and time(s) shall be mutually agreed upon by the SOE and Sequoia. E. Payment Upon each delivery, Sequoia shall submit an itemized invoice listing the Product that was delivered and for which payment is sought. The SOE shall review the invoice(s) submitted by Sequoia. Once approved, the SOE shall forward the approved invoice(s) to the Indian River County Clerk and Comptroller' s Office ("Clerk and Comptroller") for payment. The Customer and the Clerk and Comptroller shall make every attempt to pay Sequoia within fifteen ( 15 ) business days of approval of said invoice by the SOE. In consideration for the expedient payment process by the Customer and the Clerk and Controller, Sequoia agrees to provide and deliver Six (6) Optech Insight Plus Tabulators with Modems and Ballot Box to Customer. Sequoia shall submit all invoices to the SOE at 4375 43rd Avenue, Vero Beach, FL 32967, or to such other entity or address that the Customer may specify in writing. F. Risk of Loss and Title Transfer All shipping, insurance and risk of loss shall be the sole responsibility of Sequoia. The FOB point shall be the delivery location(s) designated by the SOL Risk of loss shall pass to Customer upon delivery of the Product to the SOE. Title to the Product shal I pass to the County upon acceptance of the Product in accordance with Section 2.G. below. G. Testing and Acceptance of Product Notwithstanding the payment provisions as set forth in Paragraph E. above, the County shall retain Ten Percent ( 10%) of the total Contract Price until the SOE has tested and accepted the Product in its entirety. The SOE shall complete testing of the Product in its entirety within sixty (60) days of Sequoia making its final delivery to the SOE. Upon testing the Product and determining that it functions in accordance with the manuals and documentation as provided by Sequoia, the SOE shall accept the Product. The Customer and the Clerk and Comptroller shall endeavor to pay Sequoia the remaining ten percent ( 10%) of the total purchase price within fifteen ( 15) days of acceptance of the Product in its entirety by the SOE. H. Option to Purchase Additional Product Subsequent to the expiration of this Agreement, County shall have the option to purchase additional items of the Product listed on Attachment 1 of this Agreement at the price set forth therein. The purchase price for the Product shall not increase by more than Ten Percent ( 10%) annually. 2 I. Trade-in Option County shall have the option to trade-in Optech Insight Plus Tabulators, Additional Cartridges, and Memory Pack Readers purchased under this Agreement in exchange for a credit towards the purchase of new products from Sequoia (whether currently existing or developed in the fixture by Sequoia). The credit to County for such trade-in shall be calculated as follows: i. For the period from December 30, 2007 through December 30, 2009, the credit will equal Fifty Percent (50%) of the Purchase Price of the traded items under this Agreement. ii. For the period from December 31 , 2009 through December 31 , 2010, the credit will equal Thirty-Three Percent (33%) of the Purchase Price of the traded items under this Agreement. 3. FIRMWARE LICENSE The Product incorporates software and logic which constitutes an Intellectual Property Right, previously or currently owned by Sequoia, as defined in and pursuant to Paragraph 17 below. Sequoia hereby grants to the Customer a personal, non-exclusive, non-transferable limited license to use the Firmware solely with and exclusively for the operation of the Product for the conduct of elections by the Customer, as contemplated by this Agreement. The Customer shall not, and shall not permit any third party to, reverse engineer, disassemble, decompile, decipher, analyze, or modify the Firmware or any software or upgrades in whole and in part without the prior written authorization of Sequoia. Unless expressly required to do so in a written amendment to this Agreement signed by Sequoia, Sequoia has no obligation to modify or update the Firmware to meet any future requirements, legal or otherwise. 4. PATENT AND COPYRIGHT PROTECTION A. Indemnity Subject to Paragraph 4 .13 . below, Sequoia shall, at its own expense, defend Customer against any claim asserted by any third parry that the Product, software or Firmware ("collectively referred to as "Equipment") infringes a registered United States patent or copyright of that third party (an "Infringement Claim") . Customer agrees to promptly provide written notice to Sequoia upon Customer becoming aware of an actual or possible Infringement Claim B. Conditions Sequoia shall have no liability for any Infringement Claim or alleged Infringement Claim based on: (i) use of a superseded or modified release of the software or portion thereof, if such infringement would have been avoided by the use of a current unmodified release of the software; (ii) use of the Product in a manner not authorized by Sequoia or for a purpose other than Customer' s use in accordance with this Agreement; (iii ) use of software that has been altered by Customer or any person other than Sequoia; or (iv) the combination, operation, or use of the Equipment with other equipment project or software not furnished by Sequoia, if such infringement would have been avoided by use of Sequoia' s Equipment or alone . C. Infringement In the event Customer' s use of all or any portion of the Equipment (i) becomes, or in Sequoia's reasonable opinion is likely to become, the subject of an Infringement Claim (the "Infringing Component") ; or (ii) Sequoia is unable to successfully defend against an Infringement Claim, Sequoia may within a reasonable time and at its option and expense: (a) obtain for Customer the continuing right to use the Infringing Component; (b) alter the Infringing Component or replace it with a functional equivalent so long as it no longer infringes; or, (c) if neither (a) nor (b) is commercially reasonable, on not less than ninety (90) 3 days' prior written notice to County, repurchase the infringing component and refund to County an amount equal to the purchase price for the infringing component. 5. DOCUMENTATION Sequoia shall provide complete documentation for the utilization of all Equipment as referenced hereinabove, inclusive of upgrades to said Equipment, at the time of delivery. The Documentation is subject to the confidentiality requirements as set forth hereinbelow and in conjunction with Florida law, and shall not be copied or reproduced, in whole or in part, without the prior written consent of Sequoia. Notwithstanding the above, sequoia grants to the SOE the right to copy or otherwise reproduce, for training or other internal purposes only, portions of the documentation at no additional cost, provided that Sequoia' s statement of copyright be included in each copy. 6. TAXATION County is exempt from payment of Florida State Sales and Use Taxes. Upon request, County shall provide a copy of its certificate establishing its exemption. Sequoia shall not be exempted from paying sales tax to its suppliers for materials used to fulfill contractual obligations with the County, and is not authorized to use the County' s Tax Exemption Number in securing such materials. Sequoia shall be responsible for payment of taxes on Sequoia' s income and withholding of payroll taxes on Sequoia' s employees as required by law. 7. LIMITED PARTS WARRANTY A. Terms of Limited Parts Warranty 1 . For a period of two years from the Effective Date of this Agreement ("Warranty Period"), Sequoia warrants that the Product shall function in accordance with the Documentation. In the event that the Product fails to function in accordance with the Documentation, Sequoia shall provide replacement parts to Customer as may be necessary to cause the Product to function accordingly. Replacement parts shall be provided at Sequoia' s expense during the Warranty Period. 2 . In the event of a warranty claim, the SOE shall return any defective components of the Product to Sequoia during the Warranty Period. Defective components shall not be returned to Sequoia until the SOE has received from Sequoia a Return Material Authorization Number ("RMA") and shipping instructions. Sequoia shall send RMA and shipping instructions to the SOE within three (3 ) business days after receiving notice of said defect. Defective components shall be shipped by the SOE to Sequoia at Sequoia' s expense pursuant to the RMA and Sequoia' s shipping instructions. Replacement parts shall be sent to the SOE by Sequoia (i) within thirty (30) days of receipt by Sequoia or, (ii) where feasible, within fourteen ( 14) days prior to an election. The SOE shall be solely responsible for removal and reinstallation of any replaced components. F. General During the Warranty Period, Sequoia shall provide telephone support to answer questions concerning the use or repair of the Product from Monday through and including Friday between the hours of 8:00 a.m. and 5 :00 p.m. ET. C. Limitations Notwithstanding any other terms or provisions of this Agreement, Sequoia is not obligated to repair or replace, and Sequoia' s warranty obligations under this Paragraph 7 shall not be applicable to, any of the following: 4 1 . paper, seals, batteries, or other consumable parts or supplies, 2. products which have been repaired or altered by persons other than those expressly approved in writing by Sequoia, 3 . products from which the serial numbers have been removed, defaced or changed, 4 . products damaged as a result of accident, disaster, theft, vandalism, neglect, abuse, use of any product for a purpose other than the purpose for which it is designed or use not in accordance with Documentation furnished by Sequoia, 5 . products which have been subjected to physical, mechanical or electrical stress or alteration or any conversion by persons other than those expressly approved in writing by Sequoia, 6. products used by any person other than Customer' s employees or persons under Customer' s direct supervision, 7. products that in Sequoia's reasonable opinion cannot be repaired to a maintainable condition will be replaced . D. Warranty Disclaimer Sequoia disclaims all other warranties, either express or implied, not expressly and specifically set forth herein including, without limitation, the implied warranties of fitness for a particular purpose and merchantability. 8. INDEMNIFICATION A. By Sequoia Sequoia hereby agrees to defend, indemnify, protect, and hold Customer harmless from and against any and all third party claims for damages (including, without limitation, court costs and reasonable attorneys' fees), incurred as a result of injury to any person or damage to property, including, without limitation, injury to Sequoia's employees, agents or officers to the extent caused by the negligent or intentional misconduct of Sequoia or its employees in performing under this Agreement. 9. INSURANCE A. Insurance Required During the performance of and throughout the term of this Agreement, Sequoia shall maintain in full force and effect the following insurance coverage: 1 . Worker's Compensation Sequoia shall maintain during the term of this Agreement, Workers' Compensation Insurance, including Employers' Liability Coverage, in accordance with Florida Stature Chapter 440. Coverage shall be provided on a primary basis. 2. Commercial General Liability Sequoia agrees to maintain Commercial General Liability at a limit of liability not less than $ 1 ,000,000 Each Occurrence . Coverage shall not contain any endorsement(s) excluding nor limiting Premises/Operations, Personal Injury, 5 Product/Completed Operations, Contractual Liability, Severability of Interests or Cross Liability. Coverage shall be provided on a primary basis. 3. Business Automobile Liability Sequoia agrees to maintain Business Automobile Liability at a limit of liability not less than $ 1 ,000,000 Each Occurrence. Coverage shall include liability for Owned, Non- Owned & Hired automobiles. In the event Sequoia does not own automobiles, Sequoia agrees to maintain coverage for Hired & Non-Owned Auto Liability, which may be satisfied by way of endorsement to the Commercial General Liability policy or separate Business Auto Liability policy. Coverage shall be provided on a primary basis. B. Additional Insured Sequoia agrees to endorse County as an Additional insured with a CG026 Additional insured — Designated Person or Organization endorsement to the Commercial General Liability policy. The additional insured shall read "Indian River County Board of County Commissioners, a Political Subdivision of the State of Florida, its Officers, Employees and Agents" . Coverage shall be provided on a primary basis. C. Waiver of Subrogation Sequoia agrees by entering into this Agreement to a Waiver of Subrogation for each required policy herein. When required by the insurer, or should a policy condition not permit Sequoia to enter into a pre-loss agreement to waive subrogation without an endorsement, then Sequoia agrees to notify the insurer and request the policy be endorsed with a Waiver of Transfer of Rights of Recovery Against Others, or its equivalent. This Waiver of Subrogation requirement shall not apply to any policy which includes a condition specifically prohibiting such an endorsement, or voids coverage should Sequoia enter into such an agreement on a pre-loss basis, D. Certificate(s) of Insurance Sequoia agrees to provide County with a Certificate(s) of Insurance evidencing that all coverages, limits and endorsements required herein are maintained and in full force and effect. Said Certificate(s) of Insurance shall include a minimum thirty (30) day notice to notify County of cancellation ( 10 days for nonpayment of premium) or non-renewal of coverage. The Certificate Holder address shall read : Kay Clem, Supervisor of Elections, Indian River County c/o 4375 43rd Avenue, Vero Beach, FL 32967, 10, ASSIGNMENT Sequoia shall not assign, convey or transfer any right or interest under this Agreement without the prior written consent of the Customer. Notwithstanding the foregoing, Sequoia may assign this Agreement to any entity owned or controlled by, or under common control with Sequoia. In no case shall such consent relieve Sequoia from it obligations or change the terms of this Agreement. 11 . SUBCONTRACTING Notwithstanding Section 10 above, Sequoia may, at Sequoia' s option, subcontract or otherwise delegate Sequoia' s duties under this Agreement; however, Sequoia shall at all times remain responsible for compliance with the terms and conditions under this Agreement. 12. SEVERABILITY If any term or provision of this Agreement, or the application thereof, to any person or circumstances shall, to any extent, be held invalid or unenforceable, the remainder of this Agreement, or the application of such terms and provisions, to persons or circumstances other than those as to which it is 6 held invalid or unenforceable, shall not be affected, and every other term and provision of this Agreement shall be deemed valid and enforceable to the extent permitted by law. 13. NONDISCRIMINATION Sequoia warrants and represents that it is an equal opportunity employer which does not discriminate on the basis of race, color, religion, disability, sex, age, national origin, ancestry, marital status, or sexual orientation. 14. EXCUSABLE DELAYS A. Sequoia shall not be considered in default by reason of any failure in performance if such failure arises out of causes reasonably beyond the control of Sequoia or its subcontractors and without their fault or negligence . Such causes include, but are not limited to, acts of God, force majeure, natural or public health emergencies, labor disputes, freight embargoes, and abnormally severe and unusual weather conditions. B . Upon Sequoia' s request, the Customer shall consider the facts and extent of any failure to perform the work and, if Sequoia' s failure to perform was without it or its subcontractors fault or negligence, the affected terms or conditions of this Agreement may be revised accordingly. 15. HEADINGS NOT CONTROLLING Headings and titles used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. 16. LIMITATION OF SEQUOIA'S LIABILITY Sequoia's total aggregate liability for any loss, damage, costs or expenses under or in connection with this Agreement, howsoever arising, including without limitation, loss, damage, costs or expenses caused by breach of contract, negligence, strict liability, or breach of statutory or any other duty shall in no circumstances exceed the Purchase Price as set forth in Paragraph 2 .0 of this Agreement. Sequoia shall not be liable for any loss of profits, loss of business, loss of data, loss of use or any other indirect, incidental, special or consequential loss or damage whatsoever, howsoever arising, incurred by County or any Third Party, whether in an action in contract, negligence or other tort, even if the parties or their representatives have been advised of the possibility of such damages. 17. INTELLECTUAL PROPERTY RIGHTS Each party shall retain its rights in any Intellectual Property Rights owned by or licensed to it prior to the Effective Date. As permitted by Florida Law, all Development Intellectual Property Rights , whether or not developed by Sequoia , will be owned exclusively by Sequoia; provided, however that Customer, provided it has not breached this Agreement, shall have a personal non-exclusive , non-transferable license to the use of such Development Intellectual Property Rights in accordance with this Agreement and the License Agreement solely as necessary for Customer to use the Equipment in the manner contemplated by this Agreement. For purposes of this Agreement, " Intellectual Property Rights " shall mean rights in inventions , know-how, patents, registered designs , design rights, trade names , trademarks, service marks , trade secrets , copyrights, semiconductor design rights, mask works and topography rights whether or not registered and including any application to register any of the same , and all rights or forms of protection of a similar nature or having equivalent effect which may subsist anywhere in the world. "Development Intellectual Property Rights " shall mean any Intellectual Property Rights created or coming into being as a result of Sequoia' s performance under this Agreement. 7 18. EMPLOYEES During the term of this Agreement and for a period of two (2) years following expiration or termination of this Agreement, Customer shall not directly or indirectly, solicit for employment, employ, engage or contract with any person who is employed or contracted by Sequoia at any time during the term of this Agreement. if a person who is employed or contracted by Sequoia seeks to be employed or contracted by Customer prior to the expiration or termination of this Agreement Customer shall promptly advise Sequoia in writing. Customer agrees that the restrictions set forth in this Paragraph are fair and reasonable and are in addition to and not in substitution for any similar restrictions in any other agreements between the parties. 19. TRUTH-IN-NEGOTIATION CERTIFICATE Signature of this Agreement by Sequoia shall also act as the execution of a truth-in-negotiation certificate certifying that the rates, charges and costs used to determine the pricing provided for in this Agreement are accurate , complete and current as of the Effective Date of the Agreement and no higher than those charged to Sequoia's most favored customer for the same or substantially similar service . 20. DUE AUTHORIZATION Customer and Sequoia each represent to the other that this Agreement has been duly authorized and executed on behalf of each parry, and is a legally binding obligation of each party. County represents that all funds necessary for it to satisfy its payment obligations hereunder have been duly appropriated and authorized . 21 . TERMINATION This Agreement may be terminated by any non-breaching party upon thirty (30) days written notice to the party breaching the terms or conditions of this Agreement who fails to cure such breach within thirty (30) days of receipt of written notice from a non-breaching party, or within a reasonable shorter or longer period of time as determined by a non-breaching party . In the event this Agreement is terminated for any reason, all amounts owing to Sequoia accrued prior to such termination shall be due and payable . Such termination shall not affect the rights of the parties accrued prior to the date of termination nor the accrual of interest on, and Sequoia 's rights to collect, any amounts due Sequoia. The termination rights under this Agreement are in addition to and not in lieu of all other remedies available to any party by law, equity or otherwise , all of which remedies are reserved and each of which may be exercised simultaneously or in the alternative . 22. CONFIDENTIALITY Customer acknowledges that during the course of Sequoia's performance under this Agreement, information concerning Sequoia's pricing, products, software, Firmware, trade secrets, finances, financial data, technical data, physical objects, samples and other information which is competitively sensitive and proprietary, may be disclosed to Customer orally or in writing, in tangible or intangible form (collectively, the "Information") . It is Sequoia' s position that such Information (including, without limitation, all software, Firmware and Documentation provided by Sequoia) (i) constitutes confidential and proprietary trade secrets, disclosure of which would materially injure Sequoia' s business and competitive position, and (ii) contains security features and protocols which, if disclosed, could jeopardize the security of the voting system and facilitate election tampering, and (iii) is exempt from disclosure under, the terms of any applicable freedom of information, open public records act or similar statute ("FOIA Statute") . Customer therefore agrees, to the maximum 8 extent permitted by law, to keep confidential and not to disclose any of the Information to any other person or entity, or use such Information for any purpose other than as expressly permitted by this Agreement. The SOE shall limit disclosure to employees of the SOE having a need to know to perform their duties to the SOE who have agreed in writing to be bound by the restrictions of this Paragraph. In the event Customer receives a request for Customer shall endeavor to inform Sequoia of such request within ten ( 10) days of Customer' s knowledge or such shorter period as deemed necessary in order for Sequoia to determine it' s opposition to such disclosure. In the event Customer is nonetheless required by law to disclose any of the Information, Customer shall give written notice to Sequoia at the earlier of (i) ten ( 10) business days prior to disclosure or ( ii) such longer or shorter period as may be required by applicable law. 23. ENTIRE AGREEMENT This Agreement, inclusive of Attachments 1 , 2, 3 and 4, is the entire agreement between the parties and supersedes any other agreements between the parties hereto. This Agreement may be amended only by written agreement executed by all parties. 24. NOTICES Any notice given under the provisions of this Agreement shall be in writing and shall be sent by via overnight courier and by either certified or registered mail, to : FOR COUNTY: Director Office of Financial Management and Budget Indian River County 1801 27`h Street Vero Beach, FL 32960 FOR SOE : Supervisor of Elections Indian River County 4375 43rd Avenue Vero Beach, FL 32967 FOR SEQUOIA: President Sequoia Voting Systems, Inc. 717 — 17th Street, Suite 310, Denver, CO 80202 . 25, PROJECT MANAGERS - COORDINATION OF PROJECT Each party shall appoint a project manager for all administrative activities associated with this Agreement. Each project manager shall ensure that copies of all written communications relating to this Agreement are copied to the other project managers . 26. LAW This Agreement shall be governed by and construed in accordance with the laws of the State of Florida. Any and all legal action necessary to enforce the Agreement will be held in Indian River County. 9 27. DISPUTE RESOLUTION Upon the written request of a party, the project managers will meet, in person or by teleconference, to discuss the problem and negotiate in good faith in an effort to resolve the dispute . If the project managers cannot resolve the dispute within ten ( 10) business days, the dispute shall be escalated to the Vice President of Operations of Sequoia, the Supervisor of Elections of Indian River County, and the Indian River County Assistant County Administrator for review and resolution. Except where clearly prevented by the area in dispute, the parties agree to continue performing their respective obligations under this Agreement while the dispute is being resolved unless and until such obligations are suspended, terminated or expire in accordance with the provisions hereof. 28. RELATIONSHIP OF THE PARTIES Customer and Sequoia agree that under this Agreement: A . Both parties are independent of each other; B . Neither party is a legal representative, agent, employee, or partner of the other; C . Neither party will represent or act on behalf of the other, unless previously mutually agreed to in writing; and D. Sequoia remains free to enter into similar agreements with others and to market its products and services to others. 29. NO THIRD PARTY BENEFICIARIES Sequoia and Customer agree that this Agreement is not intended to confer any rights or benefits on any third party, and that there are no third party beneficiaries of this Agreement or any part or specific provision of this Agreement, and no third party shall have any right to enforce this Agreement or any provision hereof. Anything herein to the contrary notwithstanding, Customer may loan Equipment within the County of Indian River, Florida to municipalities, special districts, home owner associations, or other entities that currently utilize the voting machine and equipment as approved by the SOE. 30. COMPLIANCE WITH LAW Sequoia warrants that the Product complies with all applicable laws and governmental regulations ("Laws") existing and in effect on the date of this Agreement ("Current Laws") . If in the future Current Laws are changed or interpreted or enforced in a manner not in effect on the date of this Agreement, or if new applicable laws should be enacted (all of the foregoing being collectively referred to as "Future Laws"), Sequoia shall not be obligated to cause the Equipment to comply with Future Laws. Notwithstanding the foregoing, Sequoia will cause the Equipment to comply with Future Laws, but only if (i) Sequoia deems changes to the Equipment are necessary to comply with Future Laws to be technically and commercially feasible and (ii) Sequoia receives as compensation for such changes in an amount acceptable to Sequoia. All modifications of the Equipment shall constitute Development Intellectual Property Rights owned by Sequoia pursuant to Paragraph 17 hereinabove. 31 . NO TRANSFER A. The Customer agrees that (i) the Equipment consists of and contains trade secrets and other proprietary and confidential Intellectual Property Rights (as defined in this Agreement) that are the sole and exclusive property of Sequoia, and (ii) the Customer is prohibited by this Agreement from in any way transferring, assigning, or otherwise conveying to any third party 10 the Firmware or Documentation or any license rights granted to the Customer therein, and (iii) transfer of the Equipment or any component thereof to any third party may compromise Sequoia' s Intellectual Property Rights in such Equipment, through the potential of reverse engineering or otherwise. In light of the foregoing, the Customer agrees that the Customer shall not, and shall not agree to or permit, transfer or conveyance in any manner whatsoever of any of the Equipment. However, the Customer may sell or transfer the Product only upon full compliance with Sequoia's right of first refusal as set forth hereinbelow. Furthermore, in the event that Sequoia does not exercise Sequoia' s right to purchase the Equipment pursuant to right of first refusal, the Customer will transfer or convey the Equipment, or any part thereof, only to a state of the United States or to an agency or political subdivision of such state having jurisdiction over the conduct of elections (a "Government Entity") . B. The Customer hereby grants Sequoia a right of first refusal (hereinafter referred to as the "First Refusal Right") to purchase all of the Customer' s right, title and interest in and to the Product, or such portion of it as the County intends to sell. In the event the Customer receives a bona fide written offer (as defined below) from any Government Entity to purchase the Product, or any portion thereof, which the Customer desires to accept, Sequoia may elect to purchase the Product, or the portion thereof which the County intends to sell, on the terms and conditions contained in the written offer (except for the time within which to close the transaction). The Customer shall provide to Sequoia notice and an exact copy of the written offer, and allow Sequoia sixty (60) calendar days subsequent to Sequoia' s receipt of same to determine whether or not to purchase the Product from the Customer. In the event Sequoia elects to purchase the Product, Customer shall sell the Product to Sequoia, who shall close the transaction within ninety (90) calendar following the expiration of the aforesaid sixty (60) day period. C. "A bona fide written offer" shall be deemed to include (but is not limited to) the following: (i) a gift or gratuitous transfer of the Product, or any portion thereof, by the Customer, (ii) transfer to any entity controlled by or under common control with the Customer or transfers of co-ownership interests in the Product, (iii) grants of licenses, (iv) sale and leaseback financings, synthetic leases, or any other off balance sheet financing, (v) other financing transactions of any nature no matter the structure, including financing arrangements which include lender acquisition rights. D. The County acknowledges and will so advise any Government Entity purchasing the Product that such Government Entity would need to obtain a license from Sequoia with respect to the Firmware and Documentation in order to use the Product. 32. PUBLIC ENTITY CRIMES As provided in Section 287. 132- 133 , F . S., by entering into this Agreement or performing any work in furtherance hereof, Sequoia certifies that it, its affiliates, suppliers, subcontractors, and consultants who will perform hereunder, have not been placed on the convicted vendor list maintained by the State of Florida Department of Management Services within the thirty-six (36) months immediately preceding the date hereof. This notice is required by Section 287 . 133 (3)(a). 33, REGULATIONS; LICENSING REQUIREMENTS Sequoia shall comply with all laws, ordinances and regulations applicable to the services contemplated herein, to include those applicable to conflict of interest and collusion. Sequoia is presumed to be familiar with all federal, state and local laws, ordinances, codes and regulations that may in any way affect the services offered. 11 34. CONFLICT OF INTEREST Sequoia shall fully complete and execute Attachment 3 "Disclosure of Ownership Interests" attached hereto. Sequoia represents that it presently has no interest and shall acquire no interest, either directly or indirectly, which would conflict in any manner with the performance or services required hereunder, as provided for in Chapter 112, Part III, Florida statutes. Sequoia further represents that no person having any conflict of interest shall be employed for said performance or services . Sequoia shall promptly notify the Customer' s representative, in writing, by certified mail, of all potential conflicts of interest for any prospective business association, interest or other circumstance which may influence, or appear to influence, Sequoia' s judgment or quality of services being provided hereunder. Such written notification shall identify the prospective business association, interest or circumstance, the nature of work that Sequoia may undertake and request an opinion of the Customer as to whether the association, interest or circumstance would, in the opinion of the Customer, constitute a conflict of interest if entered into by Sequoia. The Customer agrees to notify Sequoia of its opinion by certified mail within thirty (30) days of receipt of notification by Sequoia. If, in the opinion of the Customer, the prospective business association, interest or circumstance would not constitute a conflict of interest by Sequoia, the Customer shall so state in the notification and Sequoia shall , at its option, enter into said association, interest or circumstance and it shall be deemed not in conflict of interest with respect to services provided to the Customer by Sequoia under the terms of this Agreement. 35. ARREARS Sequoia shall not pledge the County' s credit or make it a guarantor of payment or surety for any contract, debt, obligation, judgment, lien, or any form of indebtedness. Sequoia further warrants and represents that it has no obligation or indebtedness that would impair its ability to fulfill the terms of this Agreement. 36, INDEPENDENT CONTRACTOR RELATIONSHIP Sequoia is, and shall be, in the performance of all work, services, and activities under this Agreement, an Independent Contractor and not an employee, agent or servant of the Customer. All persons engaged in any of the work or services performed pursuant to this Agreement shall at all times, and in all places, be subject to Sequoia' s sole direction, supervision, and control . Sequoia shall exercise control over the means and manner in which it and its employees perform the work, and in all respects Sequoia' s relationship, and the relationship of its employees to the Customer shall be that of an Independent Contractor and not as employees or agents of the Customer. 37. CONTINGENT FEE Sequoia warrants that it has not employed or retained any company or person, other than a bona fide employee working solely for Sequoia, to solicit or secure this Agreement and that it has not paid or agreed to pay any person, company, corporation, individual, or firm, other than a bona fide employee working solely for Sequoia, any fee, commission, percentage, gift, or any other consideration contingent upon or resulting from the award or making of this Agreement. 38, 2012 COMPLIANCE GUARANTEE In order to meet the 2012 requirement for "paper ballot only voting" as mandated by the Florida Legislature, Sequoia shall have at least one ( 1 ) option certified by the State of Florida available for purchase by Indian River County. Said option(s) shall be presented to County on or before May 1 , 2011 for review. If Sequoia does not meet this deadline, then Sequoia must reimburse to County One Hundred Percent ( 100%) of the Contract Purchase Price for the Optech Insight Plus Vote Tabulators. (THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK) 12 IN WITNESS WHEREOF, the Board of County Commissioners of Indian River County, Florida has made and executed this Agreement on behalf of the County and has hereunto set its hand the day and year above written. �� . A` � INDIAN RIVER�EQUNTYq kQRIDA BY ITS CLERK AND COMPTROLLER BOARD OF CdlIjNTY COMMISSIONERS By: i - v B ' r t Deputy Clerk 4ana Bo*04 , Chair WITNESSES: INDIAN RIVER COUNTY SUPERVISOR OF ELECTIONS Signatu By: Name ype or Pr Kay Clem Q:�� Supervisor of Elections Si nature ar C . Uz ba n �P,, %me (T a or Print) WITNESSES : SEQUOIA VOTING SYSTEMS, INC. Signature Signature pct : nWl$�o Name (Type or Print) Name (Type or Print) Signature Title Name (Type or Print) APPROVED AS TO FORM AND LEGAL SUFFICIENCY County Attorney 13 ATTACHMENT 1 : DESCRIPTION PRODUCT AN1 PRICING Optech Insight Plus with Selling Modems Quantity Price Per Total Sales OPtech Insight Plus Tabulators with Modems 59 $5,750 $3399250 Additional Memory Packs 10 $250 $2j5OO Battery Packs 2 Optical Scan Vote Tabulators Unit Price 1 11 Additional 1 • 61 WinEDS Central System Hardware Memory , d 11 11 Freight Inside Delivery Included Total 1 ATTACHMENT 2: ADDITIONAL SERVICES Project Implementation Services and Support Primary and General Election 2008 Project Management & Technical Support: Sequoia shall provide full service implementation for the Primary and General 2008 Elections beginning at inception of this contract to include : a. Assignment of Project/Account Manager b. Acceptance Testing Support for Optech Insight (one day). c. Logic and Accuracy (Pre-LAT) Support: 1 Technician (2 days). d. Election Day Technical Support (Insight/) : 1 technician (2 days) e. Election Day Technical Support (Winds) : 1 technician (2 days) . f. Unlimited Phone Support: 8 :00 a.m. — 5 : 00 p.m. g. Unlimited Top-Tier Election Day/Night Phone Support h. Election Day Services and Support: See Attached Training: Sequoia shall provide training to the SOE based upon the following schedule at no cost to the Customer. The dates and locations of the training are subject to agreement between the SOE and Sequoia. Number Site - Product Course of Das Location Insight Acceptance Test Training I Count Precinct Based 2 Count WinEDS Upgrade Training WinEDS I - Tally and Pre-LAT 2 Sequoia WinEDS 11 - Ballot & Election Setup 3 Sequoia BPS II General Operating Procedures 2 County Follow u (right before election 2 County Poll worker Train the Trainer & Observation 3 CounWV 15 ATTACHMENT 3: DISCLOSURE OF OWNERSHIP INTERESTS AFFIDAVIT STATE OF COLORADO COUNTY OF DENVER Sequoia Voting Systems, Inc . hereby discloses the following relationships between Sequoia Voting Systems and Indian River County Commissioners or Employees of Indian River County : Name Relationship Or NONE FURTHER AFFIANT SAYETHNAUGHT. Affiant Signature The foregoing instrument was acknowledged before me this 2j_day of 2008, by SG�C,`f_ p • 'USG �te� , X who is personally known ( J who has produced as identification and who did take an oath. . , _.., Notary Public ggCr ,._ . , 1 NO i"CRY PU & IC f tf C1kra� l(i McL+°� 1yLs�Z_ ST,�.TE OF C��t ORAD (Print Notary Name) 16 ATTACHMENT 4 : CERTIFICATION OF SEOUOIA BY STATE OF FLORIDA Certification Sequoia Voting Systems, Inc. Sequoia Voting Systems, Release 3. 1 .077, Version I On this date, the Department of State certifies "Sequoia Voting Systems, Release 3. 1.077, Version I ', submitted by Sequoia Voting Systems, Inc. , for purchase or use by County and Municipal Governments of the State of Florida. Tnis voting system consists of: Election Management System: • WinEDS application, version 3.1.077 • WmEDS Database Semp, version 3. 1.077 • Election Reporting, version 1 . 1 .28 • Ballot Printing System Il (BPS), version 3, release 40L • BPS/WinEDS Bridge, version 3.1 .19D • AVC EDGE Cartridge Reader / Programmer (Part No. 460-40070-00) • w/ COTS device driver as indicated on product label • Optional Sycard PCCextend 70A (replacement for the EDGE Cartridge Reader / Programmer) • Memory Pack Reader (MPR) • w/firmware version 2. 15 • Optional SPR Host 1.0. 10 • COTS software • Windows Server 2003 and/or • Windows XP • Microsoft Visio 2002 (Standard Edition) with SR-I or later • Microsoft Office 2002 (Standard Edition) or later • Microsoft SQL Server 2000 with Service Pack 4 or later • Optional Adobe Acrobat 5.0 or later Precinct Count: • Optech Insight and/or Insight Plus • w/ firmware versions HPX 1.44, APX 2.12 • Optional modem • w/ firmware version CPX 1.14 • Insight Plastic Ballot Box • ADA polling equipment: • AVC EDGE I and/or EDGE Il • w/ firmware version 5. 1.12 • Auxiliary equipmentfor EDGE I or 11: • AVC EDGE Card Activator, version D • w/ firmware version 5.1.09 • AVC EDGE Audio Component, Revision D • w/ firmware version 7.5 • Optional AVC EDGE Auxiliary Power Unit Central / Absentee Count: • Optech 400-C Ballot Counter, Model 3 .00P • w/ WinETP firmware version 1 .14.3 This certification is granted pursuant to Section 101 .5605, Florida Statutes, Rule IS-5.001 , Florida Admlvistrative Cade, and DS-DE 101 , effective 1 - 12-05. Ccrtllication # 070907-SEQUOIA-01 Given under my hand, and the Great Sea] of the State of Florida at 'ral(llaabaassee, the Capitol, this Seventh day of September. A.D. 2007. Amy to Tuck, Esq. Director Division of Elections. Department of Siete State of Florida 18 MARSH CERTIFICATE OF INSURANCE CERTIFICATE NUMBER ATL-001352771 -02 PRODUCER THIS CERTIFICATE IS ISSUED AS:AMATTER OF INFORMATION ONLY ANp CONFERS Marsh USA InC. NO RIGHTS UPON THE CERTIFICALDER OTHER THAN THOSE PROVIDED IN THE P O Box 459010 POLICY. THIS CERTIFICATE DOESAMEND, EXTEND OR ALTER THE COVERAGE Sunrise , FL 33345-901D AFFORDED BY THE POLICI ES DE SD HEREIN. _ COMPANIES AFFORDING COVERAGE COMPANY 39951 —ALL-07-08 A ST. PAUL FIRE & MARINE INSURED COMPANY SEQUOIA VOTING SYSTEMS T B TRAVELERS CASUALTY & SURETY CO 7677 OAKPORT STREET SUITE #800 COMPANY -- OAKLAND, CA 94621 C COMPANY - - - D COVERAGES This certificate supersedes and replaces any previously issued certificate for the policy period noted below . 3 THIS IS TO CERTIFY THAT POLICIES OF INSURANCE DESCRIBED HEREIN HAVE BEEN ISSUED TO THE INSURED NAMED HEREIN FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECTTO WHICH THE CERTIFICATE MAYBE ISSUED OR MAY PERTAIN.. THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, CONDITIONS AND EXCLUSIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. TFTYPE OF INSURANCE POLICY NUMBER DATEIMMFDDIYPOLICYEEFFFECTIVIEDATE IOLICY EXPIRATIONI LIMITS A GENERAL LIABILITY TE06804212 04/15/07 04/15/08 GENERAL AGGREGATE $ 2 ,000,000 X COMMERCIAL GENERAL LIABILITY BILITV I I ~PRODUCTS - COMPoOPAGG � $ 2.000, 000 _ CLAMS MADE �I OCCUR �PERSONAL & ADV INJURY $ _ 1 , 000 ,000 OWNERS & CONTRACTOR'S PROT EACH OCCURRENCE S 1 ,000 ,000 FIRE DAMAGE (Any ora f re) $ 500. 000 AUTOMOBILE LIABILITY MED EXP (Anyone person) 'I $ 10. 000 A TE06804212 04!15/07 04115/08 COMBINED SINGLE LIMIT S 1 , 000 ,000 X I ANV AUTC ALI CANEC AUTCS - _ BODILY INJURY $ I SCHEDULED AUTOS (Per person) I HIRED AUTOS BODILY INJURY NON-0WNED AUTOS (Per accident) S — - - Imo- -- - - ' - PROPERTY DAMAGE $ GARAGE LIABILITY -- AUTO ONLYEAACCIDENT $ r,NYAUTO OTHER THAN AUTO ONLY: F - - --- - -- _ EACH ACCIDENT S EXCESS LIABILITY AGGREGATE $ EACH OCCURRENCE Is UMBRELLA FORM AGGREGATE I $ I OTHER THAN UMBRELLA FORM $ B WORKEREMPLOYS COMPENSATION ION ANO HACR-UB-20061-61 -3-07 WC STATU OTH- EMPLOYERs' LIABILITY O4/1 $/D7 O4/15/O6 X TORY LIMITS ER TIIE 'ROPRIETORI X EL EACH ACCIO ENT $ 1 000 , 000 - - — - PARTN -RS/EXECUTIVE INCL EL DISEASE-POLICYLIMIT $ 1 , 000 ,000 OFFICERS ARE EXCLI EL DISEASE EACH EMPLOYEE $ 1 ,0OO,000 '. OTHER DESCRIPTION OF OPERATION SILOCATION SIVEIHICLESISPECIA L ITEMS INDIAN RIVER COUNTY IS NAMED AS AN ADDITIONAL INSURED WITH RESPECTS TO THE LIABILITIES OF THIS POLICY. CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE POLICIES DESCRECD HEREIN BE CANCELLED BEFORE THE EXPIRATION CATE -FEREOF. THE INSURER AFFORDING COVERAGE WILL ENDEAVOR TO MAIL In OA`S WRITTEN NPL4E TO -LE INDIAN RIVER COUNTY CERTFICATE HOLDER NAMED HEREIN. BUT FAILIURE T.^. MAL SUCH NOTICE sFALL IMPOSE NO Oe_cATION OR KAY CLEM . SUPERVISOR OF ELECTIONS c/o 4375 43rd AVENUE LABILITY OF ANY KIND UPON THEE INSURER AF=GRDwG COVERAGE, ITS AGENTS OR REORESENTATIVES OR TIE VERO BEACH , FL 32967 ISSUE R OF THIS CERTIFICATE. AUTHOR12LD AEP RES ENTATIYE Marsh USA Inc. BY: Carel On COT MM1 (3102) VALID AS OF : 01 /28/08