Meeting Date: August 9, 2016 COUNCIL COMMUNICATION Agenda Item: Agenda Location: Action Items Work Plan # Legal Review: 1 st Reading 2 nd Reading Subject: A resolution approving vote center facilities use agreements between the Adams County Clerk and Recorder and the City of Thornton which authorizes the use of portions of City-owned facilities as vote center locations. [360-AG] Recommended by: Robb Kolstad Approved by: Jack Ethredge Ordinance previously Presenter(s): Nancy Vincent, City clerk introduced by: SYNOPSIS: This resolution approves two Vote Center Facilities Use Agreements (Use Agreements) with the Adams County Clerk and Recorder to use portions of City Hall and the Margaret W. Carpenter Recreation Center (Recreation Center) as vote center locations for the November 8, 2016 Coordinated General Election. The areas of each facility allowed to be used by Adams County are described as Exclusive Use Areas in Exhibit A attached to each Use Agreement. This resolution also authorizes the City Manager to enter into another two-year successive agreement for each facility. This will be the first Mail Ballot Election for a General Election. While it is anticipated that a majority of the electors will either mail in or drop off their ballots, it is still necessary to have vote centers so that individuals who spoil, lose, never received or who wish to surrender his or her ballot to vote on a direct recording electronic (DRE) voting etc, may do so. RECOMMENDATION: Staff recommends Alternative No. 1, approval of the resolution approving the Vote Center Facilities Use Agreements between the Adams County Clerk and Recorder and the City of Thornton because: Utilizing City-owned facilities as vote center locations will be convenient for Thornton residents as well as Adams County residents; and A voter may now go to any vote center within the County to register to vote on election day, obtain a ballot if they have not already received one, obtain a new ballot, or vote on a DRE should the voter so desire. BUDGET/STAFF IMPLICATIONS: Staff from the Police and Infrastructure Departments may be needed to assist with traffic control from 7:00 a.m. to 7:00 p.m. Staff from the City Manager s Office will be working from approximately 6:00 a.m. to 9:00 p.m. on Election Day while the Election Judges are using City Hall. ALTERNATIVES: 1. Approve the resolution as presented. 2. Do not approve the resolution. Adams County would then have to find alternative voting sites for the November election. BACKGROUND (ANALYSIS/NEXT STEPS/HISTORY): (includes previous City Council action)
COUNCIL COMMUNICATION PAGE 2 Adams County has used portions of City Hall and Margaret W. Carpenter Recreation Center as Vote Centers since 2008 and has utilized these facilities as polling places since 2000. Highlights of the Use Agreement include the following: The previous Vote Center Use Agreement expired in November 2014. The County will have access to the Exclusive Use Areas beginning at 3:00 p.m. (for the Training Room) on the Monday preceding the election; Tuesday, Election Day; and on Wednesday following the day of election from 5:00 a.m. until midnight for any primary, general, and odd-year coordinated elections held (if coordinated elections are held as vote center elections) through November 2017. Adams County will be responsible for hiring staff to ensure that vehicles do not back up onto Thornton Parkway by voters waiting to drop off their ballots and monitoring both ingress and egress at City Hall. Adams County is responsible for cleaning up each Exclusive Use Area to the satisfaction of the City. If the County fails to clean-up the facility in such a manner, the City may do so at the sole cost of the Clerk and Recorder s office. Adams County must obtain and maintain workers compensation insurance and unemployment compensation insurance required under Colorado law as well as liability insurance. The City is responsible for installing security locks on the portions of the facilities prior to use in each election; providing adequate parking for electors; and clearing the parking areas from snow in the event of a snow storm on Election Day. City vehicles and employees will be able to park on the eastern portion of the Sam s Club parking lot as well as parking in the north portion of the High Pointe parking lot. The Adams County Clerk and Recorder will be installing a ballot drop-off box in the parking lot by the tennis courts at the Carpenter Recreation Center. The reason for its installation by the tennis courts rather than by the Recreation Center itself is to separate the traffic for those coming into the facility needing to vote, obtain a ballot or a replacement ballot, or to vote on a DRE device; and those needing to simply drive through to drop off their ballot and help ensure that the ballot drop-off doesn t disrupt regularly scheduled recreation programs. The County is responsible for the installation and maintenance of that structure. It will be a permanent structure and will be similar to the drop-off box located at City Hall but will match the architecture of the Recreation Center. The Clerk and Recorder will also pay for and be responsible for installation of the camera necessary to monitor the ballot drop-off box during mid- October through the November 2016 election.
R E S O L U T I O N A RESOLUTION APPROVING VOTE CENTER FACILITIES USE AGREEMENTS BETWEEN THE ADAMS COUNTY CLERK AND RECORDER AND THE CITY OF THORNTON WHICH AUTHORIZES THE USE OF PORTIONS OF CITY-OWNED FACILITIES AS VOTE CENTER LOCATIONS. WHEREAS, pursuant to the Colorado Constitution, Article XIV, Section 18(2)(a), and Section 29-1-203, C.R.S., as amended, the County and the City may cooperate or contract with each other to provide any function or service lawfully authorized to each, and any such contract may provide for the sharing of costs, the imposition of taxes, and incurring of debt; and WHEREAS, the City of Thornton ( City ), and Adams County, Colorado, are desirous of entering into the Vote Center Facilities Use Agreements ( Use Agreements ) which are attached hereto, incorporated herein by this reference; and WHEREAS, the Adams County Clerk and Recorder and the City have determined that it is in the best interests of the parties to set forth the responsibilities of each party with respect to the use of each vote center facility provided by the City; and WHEREAS, the City Council of the City of Thornton has determined that it is the best interest of and for the convenience of its residents and residents of Adams County to enter into these Use Agreements, which authorizes the Adams County Clerk and Recorder to use portions of City Hall (Attachment 1) and Margaret W. Carpenter Recreation Center (Attachment 2) defined as Exclusive Use Areas in the Exhibits A attached to each Use Agreement. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF THORNTON, COLORADO, AS FOLLOWS: 1. The Thornton City Council hereby approves the Use Agreements, Attachments 1 and 2, both of which are attached hereto and incorporated herein by this reference, and hereby directs the City Manager, on behalf of the City, to execute and the City Clerk to attest said Use Agreements. 2. That the City Manager is hereby authorized to execute on behalf of the City any successive Use Agreements upon substantially the same terms and conditions as contained in these Use Agreements for an additional two-year term. 3. That the Use Agreements shall not be in full force and effect until signed by both parties.
PASSED AND ADOPTED at a regular meeting of the City Council of the City of Thornton, Colorado, on, 2016. CITY OF THORNTON, COLORADO ATTEST: Heidi K. Williams, Mayor Nancy A. Vincent, City Clerk 2
Attachment 1 ADAMS COUNTY, COLORADO VOTE CENTER FACILITIES USE AGREEMENT THIS VOTE CENTER FACILITIES USE AGREEMENT (Agreement) is made by and between the Adams County Clerk and Recorder s Office (Clerk and Recorder s Office), located at 4430 S Adams County Parkway, Brighton, CO 80601, and the City of Thornton (Facilities Provider), located at 9500 Civic Center Drive. The Clerk and Recorder s Office and the Facilities Provider, for the consideration herein set forth, agree as follows: SECTION I: RESPONSIBILITIES OF FACILITIES PROVIDER 1. Location of Vote Center: The Facilities Provider shall allow the Clerk and Recorder s Office to use as a vote center that portion of its facilities as described in Exhibit A, which is attached hereto and fully incorporated herein by this reference. The use of the facilities described in Exhibit A shall be at no cost to the Clerk and Recorder s Office, except as otherwise specified herein. 2. Access to Facilities: The Clerk and Recorder s Office shall have exclusive, twenty-four (24) hour access to the vote center facilities beginning at 3:00 p.m., on the Monday preceding the day of the election, on the Tuesday of the election, and on the Wednesday following the day of the election (Term of Use) for any primary, general, and odd-year coordinated elections held during the term of this Agreement. a. Prior to the Election, the Clerk and Recorder s Office will supply the Facilities Provider with a layout of the vote center. During each Term of Use, the vote center facilities shall be free from all furniture and/or objects that are not needed for the vote center layout and/or would impede the layout. Any furniture and/or objects that will remain in the vote center will be subject to negotiation of the parties and will be stored/placed as negotiated by the parties and will be depicted in the vote center layout. b. On the day of the election, the Facilities Provider will request its employees to use their best efforts to provide voters with the most convenient parking spaces available at the vote center. c. In the event of inclement weather, the vote center facility will provide waiting voters with indoor shelter, where available. 3. Monitoring Vote Center Facility and parking areas. a. The Clerk and Recorder s Office agrees to hire on Election Day appropriate staff to ensure the safety of those dropping off ballots and those entering the building. Clerk and Recorder s staff shall direct voters attempting to complete
his or her ballot while in the drive aisle to the visitor parking to complete their ballot. The Clerk and Recorder s office further agrees to have personnel stations along the drive coming in to the Civic Center to assist with traffic movement to assist in preventing cars from backing up onto Thornton Parkway. These employees will be under the direction and control of Adams County and Adams County agrees to indemnify the City if an injury occurs to an Adams County employee while working on Election Day. b. City of Thornton traffic operations and police department will monitor conditions throughout the day and provide assistance as necessary. 4. Security of Vote Center: The vote center facilities described in Exhibit A shall be secure and not accessible to persons other than the staff of the Clerk and Recorder s Office during the Term of Use. If the vote center facilities are not presently secure to the satisfaction of the Clerk and Recorder s Office, or become unsecured during the term of this Agreement, the Facilities Provider shall allow the Clerk and Recorder s Office to make the vote center facilities secure at the sole cost of the Clerk and Recorder s Office. Upon the request of the Facilities Provider, any security measures or equipment installed by the Clerk and Recorder s Office shall be removed at the end of each Term of Use at the sole cost of the Clerk and Recorder s Office. SECTION II: RESPONSIBILITIES OF CLERK AND RECORDER S OFFICE 1. Use of Facilities: The Clerk and Recorder s Office shall use the vote center facilities described in Exhibit A for the sole purpose of the conduct of elections, pursuant to the Uniform Election Code of 1992, 1-1-101, et seq., C.R.S., as amended. 2. Installation of Secure Electronic Connection(s): If not already available at the vote center facilities described in Exhibit A, the Clerk and Recorder s Office, at its sole cost, shall install and maintain such secure electronic connection(s) as necessary to conduct elections, pursuant to the Uniform Election Code, 1-1-101, et seq., C.R.S., as amended. It is anticipated that the necessary electronic connection(s) will, at a minimum, include a secure T1 telephone line, a secure computer router, and data wiring. The Clerk and Recorder s Office shall be solely responsible for obtaining any permits or other approvals as necessary from local authorities or jurisdictions prior to the installation of any electronic connections or equipment. The installation of any electronic connections by the Clerk and Recorder s Office shall be coordinated with and approved by the Facilities Provider, which approval shall not be unreasonably withheld. 3. ADA Compliance: If the vote center facilities are not already compliant with the Americans with Disabilities Act of 1990 (ADA), the Clerk and Recorder s Office, at its sole cost, shall be permitted to make whatever temporary or permanent improvements are necessary to bring the facilities into compliance. Such improvements may be in the nature of, but not limited to, handicapped parking signs, access ramps, ADA-compliant door handles and/or railings, etc. The Clerk and Recorder s Office shall be solely 2
responsible for obtaining any permits or other approvals as necessary from local authorities or jurisdictions prior to the installation of any ADA-related improvements. The installation of any such improvements by the Clerk and Recorder s Office shall be coordinated with and approved by the Facilities Provider, which approval shall not be unreasonably withheld. Any permanent improvements made by the Clerk and Recorder under this provision shall remain as part of the facilities upon the termination of this Agreement. 4. Facilities Clean Up: At the end of each Term of Use, the Clerk and Recorder s Office shall return the facilities to the Facilities Provider in a tidy condition, which shall include removing all signs and removing all personal property and equipment brought into the facilities by the Clerk and Recorder s Office. If the Clerk and Recorder s Office fails to tidy up the vote center facilities, the Facilities Provider will notify the Elections Department. If the Clerk and Recorder s Office fails to tidy up the vote center facilities within forty-eight (48) hours of such notice, the Facilities Provider may do so at the sole cost of the Clerk and Recorder s Office. 5. Independent Contractor: The scope of this Agreement is limited to the use of facilities. Consequently, the Clerk and Recorder s Office shall be solely and entirely responsible for its acts, and the acts of its employees, agents, servants, and contractors during the term and performance of this Agreement. No employee, agent, servant, or contractor of the Clerk and Recorder s Office or of Adams County shall be deemed to be an employee, agent, servant, or contractor of the Facilities Provider because of the performance of any services under this Agreement. Adams County, at its expense, shall procure and maintain workers compensation insurance and unemployment compensation insurance as required under Colorado law. Pursuant to the Workers Compensation Act, 8-40- 202(2)(b)(IV), C.R.S., as amended, the Clerk and Recorder s Office understands that it and its employees and servants are not entitled to workers compensation benefits from the Facilities Provider. The Clerk and Recorder s Office further understands that it is solely obligated for the payment of federal and state income tax on any moneys earned pursuant to this Agreement. 6. Liability Insurance: The Clerk and Recorder s Office is a public entity within the meaning of the Governmental Immunity Act (GIA), 24-10-101, et seq., C.R.S., as amended. During the term of this Agreement, the Clerk and Recorder s Office shall maintain such liability insurance, by commercial policy or self-insurance, as necessary to meet its liabilities under the GIA. 7. Indemnification: To the extent permissible by law, the Clerk and Recorder s Office shall indemnify, defend, and hold harmless the Facilities Provider for any damages arising during any Term of Use as the result of any willful or wanton misconduct of the Clerk and Recorder s Office. SECTION III: TERM OF AGREEMENT 3
The initial term of this Agreement shall be for two (2) election cycles, (as defined in Section 2 (6) of Article XXVIII of the Colorado State Constitution), beginning in 2016 and terminating in November 2017. Upon the mutual written agreement of the parties, his Agreement may be extended for an additional two (2) year term, up to and including November 2019. SECTION IV: TERMINATION 1. During the term or any extended term of this Agreement, the Clerk and Recorder may terminate the Agreement by providing written notice to the Facilities Provider specifying the effective date of the termination. 2. During the term or any extended term of this Agreement, the Facilities Provider may terminate the Agreement by providing written notice to the Clerk and Recorder s Office specifying the effective date of the termination. 3. However, if the Facilities Provider terminates the Agreement prior to the November election during the first two election cycles of the initial four-year term of this Agreement, the Facilities Provider shall be liable for actual damages in an amount not to exceed $1,000, with such actual damages being based on the cost of improvements made to the vote center facilities, including technological and ADA-related improvements. SECTION V: GENERAL PROVISIONS 1. Jurisdiction and Venue The laws of the State of Colorado shall govern as to the interpretation, validity, and effect of this Agreement. The parties agree that jurisdiction and venue for any disputes arising under this Agreement shall be with the 17 th Judicial District, Colorado. 2. Compliance with Laws During the performance of this Agreement, the parties agree to strictly adhere to all applicable federal, state, and local laws, rules and regulations, including all licensing and permit requirements. The parties hereto acknowledge that they are familiar with 18-8- 301, et seq., C.R.S. (Bribery and Corrupt Influences), as amended, and 18-8-401, et seq., C.R.S. (Abuse of Public Office), as amended, and that no violations of such provisions are present. 3. Assignability Neither this Agreement, nor any rights hereunder, in whole or in part, shall be assignable or otherwise transferable by either party without the prior written consent of the other party. 4. Waiver 4
Waiver of strict performance or the breach of any provision of this Agreement shall not be deemed a waiver, nor shall it prejudice the waiving party s right to require strict performance of the same provision, or any other provision in the future, unless such waiver has rendered future performance commercially impossible. 5. Force Majeure 6. Notice Neither party shall be liable for any delay or failure to perform its obligations hereunder to the extent that such delay or failure is caused by a force or event beyond the control of such party including, without limitation, war, embargoes, strikes, governmental restrictions, riots, fires, floods, earthquakes, or other acts of God. Any notices given under this Agreement are deemed to have been received and to be effective: three (3) days after the same shall have been mailed by certified mail, return receipt requested; immediately upon hand delivery; or immediately upon receipt of confirmation that a facsimile or electronic mail transmission was received. For the purposes of this agreement, any and all notices shall be addressed to the contacts listed below: For the Clerk and Recorder s Office: Adams County Clerk and Recorder s Office Elections Department 4430 S. Adams County Parkway 1 st Floor E3102 Phone (720) 523-4068 Fax: (720) 523-6266 E-mail: ccoburn@adcogov.org and Jennifer D. Stanley, Assistant County Attorney Adams County Attorney s office 4430 S. Adams County Parkway Suite C5000B Brighton, Colorado 80601 Phone No.: (720) 523-6166 Facsimile No.: (720) 523-6114 E-mail: jstanley@co.adams.co.us For Facilities Provider: 5
Nancy A. Vincent City of Thornton 9500 Civic Center Drive Phone No.: 303-538-7223 Facsimile No.: 303-538-7224 E-mail: nancy.vincent@cityofthornton.net 7. Integration of Understanding This Agreement contains the entire understanding of the parties hereto and neither it, nor the rights and obligations hereunder, may be changed, modified, or waived except by an instrument in writing that is signed by the parties. 8. Paragraph Headings Paragraph headings are inserted for the convenience of reference only. 9. Counterparts This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. 10. Parties Interested Herein Nothing expressed or implied in this Agreement is intended or shall be construed to confer upon or to give to, any person other than the parties, any right, remedy, or claim under or by reason of this Agreement or any covenant, terms, conditions, or provisions hereof. All covenants, terms, conditions, and provisions in this Agreement by and on behalf of the Clerk and Recorder s Office and the Facilities Provider, shall be for the sole and exclusive benefit of the Clerk and Recorder s Office and the Facilities Provider. 11. Severability If any provision of this Agreement is determined to be unenforceable or invalid for any reason, the remainder of this agreement shall remain in effect, unless otherwise terminated in accordance with the terms contained herein. 12. Authorization Each party represents and warrants that it has the power and ability to enter into this Agreement, to grant the rights granted herein, and to perform the duties and obligations herein described. 6
IN WITNESS WHEREOF, the parties hereto have caused their names to be affixed. CLERK AND RECORDER ADAMS COUNTY, COLORADO Stan Martin Date Approved as to form: Adams County Attorney s Office FACILITIES PROVIDER Jack Ethredge City Manager Date ATTEST: Nancy Vincent City Clerk Date Approved as to form: Gary G. Jacobson Interim City Attorney 7
EXHIBIT A Thornton Civic Center, Training Room 9500 Civic Center Dr. Exclusive Use Area: The Adams County Vote Center will be located in the room to the right of the lobby, which is approximately 33 x 38 or 1254 square feet. Lockable storage will be provided in the closet to the right of the stage. Non-Exclusive Use Area: General and disabled parking is available for voters. 8
Attachment 2 ADAMS COUNTY, COLORADO VOTE CENTER FACILITIES USE AGREEMENT THIS VOTE CENTER FACILITIES USE AGREEMENT (Agreement) is made by and between the Adams County Clerk and Recorder s Office (Clerk and Recorder s Office), located 4430 S Adams County Pkway, Brighton, CO 80601 and the City of Thornton a home rule municipality ( City ), located at 9500 Civic Center Drive, Thornton, CO 80229. The Clerk and Recorder s Office and the Facilities Provider, for the consideration herein set forth, agree as follows: SECTION I: RESPONSIBILITIES OF FACILITIES PROVIDER 1. Location of Vote Center: The Facilities Provider shall allow the Clerk and Recorder s Office to use as a vote center that portion of its facilities as described in Exhibit A, which is attached hereto and fully incorporated herein by this reference. The use of the facilities described in Exhibit A shall be at no cost to the Clerk and Recorder s Office, except as otherwise specified herein. 2. Access to Facilities: The Clerk and Recorder s Office shall have exclusive, twenty-four (24) hour access to the vote center facilities on the Monday preceding the day of the election, on the Tuesday of the election, and on the Wednesday following the day of the election (Term of Use) for any primary, general, and odd-year coordinated elections held during the term of this Agreement. a. Prior to the Election, the Clerk and Recorder s Office will supply the Facilities Provider with a layout of the vote center. During each Term of Use, the vote center facilities shall be free from all furniture and/or objects that are not needed for the vote center layout and/or would impede the layout. Any furniture and/or objects that will remain in the vote center will be subject to negotiation of the parties and will be stored/placed as negotiated by the parties and will be depicted in the vote center layout. b. On the day of the election, the Facilities Provider will request its employees to use their best efforts to provide voters with the most convenient parking spaces available at the vote center. c. In the event of inclement weather, the vote center facility will provide waiting voters with indoor shelter, where available. 3. Facility Layout and Parking: The Clerk and Recorder s office agrees to use the vote center as required by the Facilities Provider.
Walk-in ballot traffic is to be directed to enter the Recreation Center through the south of the facility and exit through the main access. No vehicular traffic control is proposed for walk-in balloting. However, signs will be posted to direct voters to enter the south end of the facility and exit the main doors once voting has been completed. The City agrees to adjust the traffic signals as necessary to facilitate the movement of traffic to and from the site, e.g., at the south entrance to the Recreation Center on Colorado Boulevard and on 112 th Avenue and Steele Street. 4. Drop-off Box installed at Recreation Center. If, at any time or for any reason, the Dropoff box installed by the Clerk and Recorder s Office is damaged or destroyed, the Clerk and Recorder s Office will be responsible for those repairs. 5. Security of Vote Center: The vote center facilities described in Exhibit A shall be secure and not accessible to persons other than the staff of the Clerk and Recorder s Office during the Term of Use. If the vote center facilities are not presently secure to the satisfaction of the Clerk and Recorder s Office, or become unsecured during the term of this Agreement, the Facilities Provider shall allow the Clerk and Recorder s Office to make the vote center facilities secure at the sole cost of the Clerk and Recorder s Office. Upon the request of the Facilities Provider, any security measures or equipment installed by the Clerk and Recorder s Office shall be removed at the end of each Term of Use at the sole cost of the Clerk and Recorder s Office. SECTION II: RESPONSIBILITIES OF CLERK AND RECORDER S OFFICE 1. Use of Facilities: The Clerk and Recorder s Office shall use the vote center facilities described in Exhibit A for the sole purpose of the conduct of elections, pursuant to the Uniform Election Code of 1992, 1-1-101, et seq., C.R.S., as amended. 2. Installation of Secure Electronic Connection(s): If not already available at the vote center facilities described in Exhibit A, the Clerk and Recorder s Office, at its sole cost, shall install and maintain such secure electronic connection(s) as necessary to conduct elections, pursuant to the Uniform Election Code, 1-1-101, et seq., C.R.S., as amended. It is anticipated that the necessary electronic connection(s) will, at a minimum, include a secure T1 telephone line, a secure computer router, and data wiring. The Clerk and Recorder s Office shall be solely responsible for obtaining any permits or other approvals as necessary from local authorities or jurisdictions prior to the installation of any electronic connections or equipment. The installation of any electronic connections by the Clerk and Recorder s Office shall be coordinated with and approved by the Facilities Provider, which approval shall not be unreasonably withheld. 3. ADA Compliance: If the vote center facilities are not already compliant with the Americans with Disabilities Act of 1990 (ADA), the Clerk and Recorder s Office, at its sole cost, shall be permitted to make whatever temporary or permanent improvements are 2
necessary to bring the facilities into compliance. Such improvements may be in the nature of, but not limited to, handicapped parking signs, access ramps, ADA-compliant door handles and/or railings, etc. The Clerk and Recorder s Office shall be solely responsible for obtaining any permits or other approvals as necessary from local authorities or jurisdictions prior to the installation of any ADA-related improvements. The installation of any such improvements by the Clerk and Recorder s Office shall be coordinated with and approved by the Facilities Provider, which approval shall not be unreasonably withheld. Any permanent improvements made by the Clerk and Recorder under this provision shall remain as part of the facilities upon the termination of this Agreement. 4. Facilities Clean Up: At the end of each Term of Use, the Clerk and Recorder s Office shall return the facilities to the Facilities Provider in a tidy condition, which shall include removing all signs and removing all personal property and equipment brought into the facilities by the Clerk and Recorder s Office. If the Clerk and Recorder s Office fails to tidy up the vote center facilities, the Facilities Provider will notify the Elections Department. If the Clerk and Recorder s Office fails to tidy up the vote center facilities within forty-eight (48) hours of such notice, the Facilities Provider may do so at the sole cost of the Clerk and Recorder s Office. 5. Independent Contractor: The scope of this Agreement is limited to the use of facilities. Consequently, the Clerk and Recorder s Office shall be solely and entirely responsible for its acts, and the acts of its employees, agents, servants, and contractors during the term and performance of this Agreement. No employee, agent, servant, or contractor of the Clerk and Recorder s Office or of Adams County shall be deemed to be an employee, agent, servant, or contractor of the Facilities Provider because of the performance of any services under this Agreement. Adams County, at its expense, shall procure and maintain workers compensation insurance and unemployment compensation insurance as required under Colorado law. Pursuant to the Workers Compensation Act, 8-40- 202(2)(b)(IV), C.R.S., as amended, the Clerk and Recorder s Office understands that it and its employees and servants are not entitled to workers compensation benefits from the Facilities Provider. The Clerk and Recorder s Office further understands that it is solely obligated for the payment of federal and state income tax on any moneys earned pursuant to this Agreement. 6. Liability Insurance: The Clerk and Recorder s Office is a public entity within the meaning of the Governmental Immunity Act (GIA), 24-10-101, et seq., C.R.S., as amended. During the term of this Agreement, the Clerk and Recorder s Office shall maintain such liability insurance, by commercial policy or self-insurance, as necessary to meet its liabilities under the GIA. 7. Indemnification: To the extent permissible by law, the Clerk and Recorder s Office shall indemnify, defend, and hold harmless the Facilities Provider for any damages arising during any Term of Use as the result of any willful or wanton misconduct of the Clerk and Recorder s Office. 3
SECTION III: TERM OF AGREEMENT The initial term of this Agreement shall be for two (2) election cycles, (as defined in Section 2 (6) of Article XXVIII of the Colorado State Constitution), beginning in 2016 and terminating in November 2017. Upon the mutual written agreement of the parties, his Agreement may be extended for an additional two (2) year term, up to and including November 2019. SECTION IV: TERMINATION 1. During the term or any extended term of this Agreement, the Clerk and Recorder may terminate the Agreement by providing written notice to the Facilities Provider specifying the effective date of the termination. 2. During the term or any extended term of this Agreement, the Facilities Provider may terminate the Agreement by providing written notice to the Clerk and Recorder s Office specifying the effective date of the termination. 3. However, if the Facilities Provider terminates the Agreement prior to the November election during the first two election cycles of the initial four-year term of this Agreement, the Facilities Provider shall be liable for actual damages in an amount not to exceed $1,000, with such actual damages being based on the cost of improvements made to the vote center facilities, including technological and ADA-related improvements. SECTION V: GENERAL PROVISIONS 1. Jurisdiction and Venue The laws of the State of Colorado shall govern as to the interpretation, validity, and effect of this Agreement. The parties agree that jurisdiction and venue for any disputes arising under this Agreement shall be with the 17 th Judicial District, Colorado. 2. Compliance with Laws During the performance of this Agreement, the parties agree to strictly adhere to all applicable federal, state, and local laws, rules and regulations, including all licensing and permit requirements. The parties hereto acknowledge that they are familiar with 18-8- 301, et seq., C.R.S. (Bribery and Corrupt Influences), as amended, and 18-8-401, et seq., C.R.S. (Abuse of Public Office), as amended, and that no violations of such provisions are present. 3. Assignability Neither this Agreement, nor any rights hereunder, in whole or in part, shall be assignable or otherwise transferable by either party without the prior written consent of the other party. 4
4. Waiver Waiver of strict performance or the breach of any provision of this Agreement shall not be deemed a waiver, nor shall it prejudice the waiving party s right to require strict performance of the same provision, or any other provision in the future, unless such waiver has rendered future performance commercially impossible. 5. Force Majeure 6. Notice Neither party shall be liable for any delay or failure to perform its obligations hereunder to the extent that such delay or failure is caused by a force or event beyond the control of such party including, without limitation, war, embargoes, strikes, governmental restrictions, riots, fires, floods, earthquakes, or other acts of God. Any notices given under this Agreement are deemed to have been received and to be effective: three (3) days after the same shall have been mailed by certified mail, return receipt requested; immediately upon hand delivery; or immediately upon receipt of confirmation that a facsimile or electronic mail transmission was received. For the purposes of this agreement, any and all notices shall be addressed to the contacts listed below: For the Clerk and Recorder s Office: Adams County Clerk and Recorder s Office Elections Department 4430 S. Adams County Parkway 1 st Floor E3102 Phone (720) 523-4068 Fax: (720) 523-6266 E-mail: ccoburn@adcogov.org and Jennifer D. Stanley, Assistant County Attorney Adams County Attorney s office 4430 S. Adams County Parkway Suite C5000B Brighton, Colorado 80601 Phone No.: (720) 523-6166 Facsimile No.: (720) 523-6114 E-mail: jstanley@co.adams.co.us For Facilities Provider: 5
Nancy A. Vincent City of Thornton 9500 Civic Center Drive Phone No.: 303-538-7223 Facsimile No.: 303-538-7224 E-mail: nancy.vincent@cityofthornton.net 7. Integration of Understanding This Agreement contains the entire understanding of the parties hereto and neither it, nor the rights and obligations hereunder, may be changed, modified, or waived except by an instrument in writing that is signed by the parties. 8. Paragraph Headings Paragraph headings are inserted for the convenience of reference only. 9. Counterparts This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. 10. Parties Interested Herein Nothing expressed or implied in this Agreement is intended or shall be construed to confer upon or to give to, any person other than the parties, any right, remedy, or claim under or by reason of this Agreement or any covenant, terms, conditions, or provisions hereof. All covenants, terms, conditions, and provisions in this Agreement by and on behalf of the Clerk and Recorder s Office and the Facilities Provider, shall be for the sole and exclusive benefit of the Clerk and Recorder s Office and the Facilities Provider. 11. Severability If any provision of this Agreement is determined to be unenforceable or invalid for any reason, the remainder of this agreement shall remain in effect, unless otherwise terminated in accordance with the terms contained herein. 12. Authorization 6
Each party represents and warrants that it has the power and ability to enter into this Agreement, to grant the rights granted herein, and to perform the duties and obligations herein described. 7
IN WITNESS WHEREOF, the parties hereto have caused their names to be affixed. CLERK AND RECORDER ADAMS COUNTY, COLORADO Stan Martin Date Approved as to form: Adams County Attorney s Office FACILITIES PROVIDER Jack Ethredge City Manager Date ATTEST: Nancy Vincent City Clerk Date Approved as to form: Gary G. Jacobson Interim City Attorney 8
EXHIBIT A Margaret W. Carpenter Recreation Center 11151 Colorado Boulevard Exclusive Use Area: The Adams County Vote Center will be located in Meeting Rooms A, B and C, located to the left of the main entrance, which is approximately 33 x 81 or 2,673 square feet. The vote center itself will lock to serve as the lockable storage for equipment. Non-Exclusive Use Area: General and disabled parking is available for voters. 9