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2007-0502007-50 Resolution to Authorize Entry into Transportation Agreement with Dutchess County for Voting Machines At a regular meeting of the Town Board of the Town of Wappinger, Dutchess County, New York, held at Town Hall, 20 Middlebush Road, Wappingers Falls, New York, on February 12th, 2007. The meeting was called to order by Joseph Ruggiero, Supervisor, and upon roll being called, the following were present: PRESENT: Supervisor Councilmembers ABSENT: Joseph Ruggiero William H. Beale Vincent F. Bettina Joseph P. Paoloni Maureen McCarthy The following Resolution was introduced by Councilwoman McCarthy and seconded by Councilman Paoloni. WHEREAS, the Dutchess County Board of Elections owns certain voting machines and required the services of the Town of Wappinger to transport the voting machines to polling places within the Town of Wappinger during calendar year 2006; and WHEREAS, Dutchess County has agreed to compensate the Town for its services to move the voting machines in the amount of Forty Dollars and 00/100 ($40.00), per machine per trip (i.e. $40.00 per delivery and $40.00 per return) in accordance with the proposed "Transportation Agreement", a copy of which is attached hereto and made a part hereof, marked and designated as Exhibit "1" and WHEREAS, the term of the proposed agreement is from September 1St, 2006 to December 31St, 2006, and has expired by its own terms, however Dutchess County requires the Town to enter into the written contract retroactively in order for the Town to receive payment for services previously rendered in calendar year 2006; and WHEREAS, the Town has been presented with a "Transportation Agreement" by Dutchess County, a copy of which is attached hereto as Exhibit "1"; and NOW, THEREFORE, BE IT RESOLVED, that the Town Board hereby accepts the terms and conditions set forth and contained in the "Transportation Agreement" attached hereto as Exhibit" 1 ", and. BE IT FURTHER RESOLVED, that the Supervisor of the Town is hereby authorized and directed to execute the "Transportation Agreement", a copy of which is attached hereto as Exhibit "1 ", by and on behalf of the Town of Wappinger. The Supervisor is further authorized to forward the original signed contracts to Dutchess County. N The foregoing was put to a vote which resulted as follows: JOSEPH RUGGIERO, SUPERVISOR Voting: Ave WILLIAM H. BEALE, COUNCILMAN Voting: Aye VINCENT F. BETTINA, COUNCILMAN Voting: Ave JOSEPH P. PAOLONI, COUNCILMAN Voting: Aye MAUREEN McCARTHY, COUNCILWOMAN Voting: Aye Dated: Wappingers Falls, New York 2/12/2007 The Resolution is hereby duly declared adopted. OHN C. MASTERSON, TOWN CLERK David J. Gamache Commissioner January 24, 2007 DUTCHESS COUNTY BOARD of ELECTIONS 47 Cannon Street, Poughkeepsie, New York 12601 845-486-2473/845-486-2483 fax Honorable Joseph Ruggiero Supervisor, Town of Wappinger Wappinger Town Hall 20 Middlebush Road Wappingers Falls, New York 12590 Dear Mr. Ruggiero: Frances A. Knapp Commissioner r r i On January 15, 2007, the Board of Elections sent you an updated transportation agreement for your review and signature. We regret to inform you that this agreement once again was not sufficient to meet the County Attorney's approval. As a result, we are attaching an updated agreement for your review and signature. Once again, the terms of the agreement are the same; we have simply removed a series of clauses deemed unnecessary by the County Attorney's office. We apologize in advance for the inconvenience this may cause, and we regret having to send this agreement to you more than once. Thank you in advance for your anticipated cooperation. Please feel free to call our office if you have additional questions or concerns. Please sign and return the attached updated agreements at your earliest convenience. Thank you again for your patience. FranKnapp Commissioner Gamache ;ioner RALD A. VERGILIS* (dNNETH M. STENGER ALBERT P.ROBERTS THOMAS R. DAVIS LOUIS J. VIGLOTTI JOAN F. GARRETT'""' KAREN P. MacNISH KEVIN T. McDERMOTT ANGEL I. FALCON ANTHONY M. DEFAZIO JAMES P. HORAN 'ADMITTED TO PRACTICE IN NY & FLA. a -'ADMITTED TO PRACTICE IN NY & CONN. Vll,''14GILIS, S'FENGER, ROBERT'S & DAMS, LLP ATTORNEYS AND COUNSELORS AT LAW 1 136 ROUTE 9 W.APPINGERS FALLS, NEW YORK 12590 VIA E-MAIL & REGULAR MAIL February 8, 2007 (845) 298-2000 FAX 18451 298-2842 www. SI-P.com C -mail: info('\'srp.Com Town of Wappinger 20 Middlebush Road Wappingers Falls, New York 12590 Attention: Hon. Joseph Ruggiero, Supervisor Re: Resolution for February 12, 2007 Town Board Meeting Dear Joe: LEGAL ASSISTANT: AMY E. DECARLO CLOSING COORDINATOR: SUSAN E. CAFFINE POUGHKEEPSIE OFFICE 276 MAIN MALL POUGHKEEPSIE. NY 12601 (845) 452-1046 NEWBURGH OFFICE 299 N. PLANK ROAD, SUITE 106 NEWBURGH, NY 12550 (845)567-3783 Enclosed herewith please find Resolution to Authorize Entry into Transportation Agreement with Dutchess County for Voting Machines. Should you have any questions, please do not hesitate to call. Thank you. Very truly yours, VERGILIS, STENGER, ROBERTS & DAVIS, LLP r r SANDRA A. OAKLEY S Legal Assistant to Albert P. Roberts Enclosure cc: Hon. John C. Masterson, Town Clerk Town Board File O:\Wappinger\Town Board\Voting Machines\020807 transmittal letter to Ruggiero - Resolution.doc TRANSPORTATION AGREEMENT THIS AGREEMENT, made this 1 st day of September, 2006, by and between. the COUNTY OF DUTCHESS, a municipal corporation with offices at 22 Market Street, Poughkeepsie, New York 12601 (hereinafter referred to as the "COUNTY") and Town of Wappinger, an independent contractor (a municipal corporation), whose address is 20 Middlebush Road, Wappingers Falls, NY 12590 (hereinafter referred to as the "CONTRACTOR"). WITNESSETH: WHEREAS, the County Board of Elections desires the services of contractor to provide the transportation of voting machines to the polling locations listed in. Schedule A, and WHEREAS, the Contractor is qualified and is willing and able to perform such services in a timely manner, and WIMREAS, the funds necessary to pay for such services are appropriated in the 2006 Adopted County Budget at Line Item No. A1450.4623 now, therefore, it is mutually agreed by and between the parties hereto as follows: 1. SCOPE OF SERVICES. The Contractor shall perform, using standards of care acceptable to the County and in strict compliance with all applicable federal, state and local laws, regulations and procedures, the transportation of voting machines to the polling locations listed in Schedule A These services shall be performed as set forth in Exhibit "A" annexed hereto and made a part of this Agreement. If any term of the Scope of Services contradicts or creates an ambiguity with any term of this Agreement, this Agreement shall govern. 2. TERM OF AGREEMENT. This Agreement shall be effective Sep 1, 2006 and shall terminate on, Dec 31, 2006, unless otherwise terminated as set forth herein. 3. PAYMENT. As full and complete consideration for the services so rendered, the County shall pay a total sum not to exceed FORTY ($40.00) DOLLARS, per machine, per trip ($40.00 per delivery and $40.00 per .return, per voting machine). Payment of the above consideration shall be made to the Contractor upon submission of invoice statements in a form satisfactory to th.e County. No payment shall be made prior to audit and approval by the County. 4. INDEPENDENT CONTRACTOR STATUS. The Contractor agrees that he is an independent contractor and that he shall not hold himself out to be an employee or officer of the County, and that therefore, neither federal, state nor local income tax nor payroll tax of any kind shall be withheld or paid by the County on behalf of the Contractor or his employees; that the Contractor shall not be eligible for, and shall not be entitled to participate in, any employee pension, health, retirement or other fringe benefit plan of the County; that the Contractor shall have no workers' compensation or disability coverage through the County for the Contractor or his employees, and that the Contractor shall not be entitled to make any claim against the County for these or any other rights or privileges of an officer or employee of the County. 5. DEFENSE AND INDEMNIFICATION. The Contractor shall defend and hold the County and its employees harmless from any and all losses, claims, liens, demands and causes of action of any kind or character, including but not limited to, judgments, penalties, interest, court costs, and legal fees incurred by the County on behalf of any party, in. connection with or arising directly or indirectly from this Agreement. The Contractor shall. investigate, handle, respond to, and defend any such claims, demands or suits at his sole expense, and shall bear all other related costs and expenses even if such claims, demands or suits are groundless, false or fraudulent. In any case in which such indemnification would violate Section 5-322.1 of the New York General Obligations Law or any other applicable legal prohibition, the foregoing provisions shall not be construed to indemnify the County for damage arising out of bodily injury to persons or to property caused by or resulting from the sole negligence of Dutchess County employees. The terra "employee" shall include all officers, their agents, servants, advisory board members and/or volunteers serving the County. 6. INSURANCE REOUMEMENTS. At all times during the term of this Agreement, the Contractor shall maintain at his own cost the following insurance and shall provide proof, thereof to the County, in the form of a Certificate of Insurance, prior to commencing work under this Agreement: (a) Statutory Worker's Compensation coverage in compliance with the Compensation Law of the State of New York. In the event the statute does not require coverage of contractor, contractor must complete NYS Workers' Compensation Board Form WC/DB- 100 or 101 and provide the County with a properly executed copy thereof. (b) General Liability Insurance coverage in the comprehensive or commercial general liability form including blanket contractual coverage for the operation of the program under this Agreement in the amount of $1,000,000.00 per occurrence. This insurance shall. include coverage for bodily injury and property damage and shall be on an occurrence form with a waiver, of subrogation. The County must be listed as additional insured. (c) Automobile liability insurance coverage for all owned, leased, or non -owned vehicles in the amount of $1,000,000.00 per occurrence. This insurance shall include coverage for bodily injury and property damage. The County must be listed as additional insured. Prior to cancellation or material change in any policy, a thirty (30) day notice shall be given to f the County Attorney at the address Iisted below: Dutchess County Attorney County Office Building 2 22 Market Street Poughkeepsie, New York 12601 On receipt of such notice, the County shall have the option to cancel this Agreement without further expense or liability to the County, or to require the Contractor to replace the cancelled insurance policy, or rectify any material change in the policy, so that the insurance coverage required by this paragraph is maintained continuously throughout the term of this Agreement in form and substance acceptable to the County. Failure of the Contractor to take out or to maintain, or the taking out or the maintenance of any required insurance, shall not relieve the Contractor from any liability under this Agreement nor shall the insurance requirements be construed to conflict with or to limit the obligations of the Contractor concerning indemnification. All losses of County property shall be adjusted with and made payable directly to the County. All Certificates of Insurance shall be approved by the County Director of Risk Management prior to commencement of any work under this Agreement. All policies of insurance referred to above shall be underwritten by companies authorized to do business in the State of New York and acceptable to the County. In addition, every policy required above shall be primary insurance and any insurance carried by the County, its officers, or its employees shall be excess and not contributory insurance to that provided by the Contractor. The additional. insured endorsement for the Comprehensive General. Liability insurance required above shall not contain any exclusion for bodily injury or property damage arising from completed operations. The Contractor shall be solely responsible for any deductible losses under each of the policies required above. Proof of additional insured coverage shall be evidenced through an additional, insured endorsement providedby the insurance carver. In the event that claims in excess of these amounts are filed in connection with this Agreement, the excess amount or any portion thereof may be withheld from payment due or to become due the Contractor until the Contractor furnishes such additional security as is determined necessary by the County. 7. QUALIFICATIONS OF CONTRACTOR. The Contractor specifically represents that he and his members, officers, employees, agents, servants, consultants and subcontractors ,have the experience, )mowledge and character necessary to perform their particular duties ,under this Agreement. 8. DECLARATION BY CONTRACTOR. Contractor declares that he has complied with all federal, state and local laws regarding business permits, certificates and licenses that may be required to carry out the work to be performed under this Agreement. 9. NON-DISCRIMINATION. No services to be rendered pursuant to, or in connection with, this Agreement may be refused to any person because of age, race, color, creed, sex, national origin, disability or marital status. Contractor shall take all affirmative steps necessary to ensure equal employment opportunities without discrimination because of age, race, creed, color, sex, stational origin, disability or marital status and to comply with all federal, state and local civil rights laws including, but not limited to, the Americans with Disabilities Act. 3 10. RETENTION OF RECORDS. The Contractor agrees to maintain and have available for audit such records as may be required by the County, New York State or United States governmental agencies. These records shall be available for inspection by properly identified personnel of the above governmental agencies upon reasonable notice, and shall be maintained for a period of six (G) years after termination of this Agreement. 1., NON -ASSIGNMENT. (a) This Agreement may not be assigned by the Contractor nor his right, title or interest therein assigned, transferred, conveyed, sublet or disposed of without the previous written consent of the County. (b) An assignment of this Agreement shall not relieve the assignor of its obligations hereunder. In the event of assignment, all the provisions hereof shall be binding upon and inure to the benefit of the respective successors and assignees to the same extent as if each such successor or assignee were named as a party to the Agreement. 12. TERMINATION. (a) Without cause. The County may terminate this Agreement upon ten (10) days' prior written notice to the Contractor of its intent to terminate without cause. (b) With cause. The County may terminate this Agreement effective immediately, with subsequent written notice to be given to the Contractor of termination with. cause. In the event of termination with or without cause, the Contractor shall deliver to the County any or all drawings, specifications, reports and other data, records, materials and equipment in his custody or control pertaining to the Agreement and the County shall pay to the Contractor all amounts due to the time of termination in accordance with the terms of this Agreement. Such termination shall not give rise to any cause of action against the County for damages, loss of profits, expenses or other remuneration of any kind. Notwithstanding any other provision of this Agreement, if, in the judgment of the County, termination is made necessary or desirable because of the Contractor's failure to fulfill his obligations under this Agreement, or any other fault of the Contractor, the County may withhold payment of all or any part of moneys which otherwise may be payable to the Contractor under this Agreement and apply such moneys toward any damages or expenses sustained by the County as a result of such failure including, without limitation, any ' excess costs incurred by the County in completing the services under this Agreement by the use or employment of other contractors or otherwise. Notwithstanding the .foregoing, the Contractor shall. be liable to the County for all such damages and expenses without limitation to any such moneys being withheld by the County, and the failure of the County to withhold moneys from the Contractor shall not be construed as an acknowledgement by the County that no such damages or expenses exist and shall not prevent the County from thereafter making any claim against the Contractor therefor. 13. EXECUTORY. The Dutchess County fiscal year begins on January ls` and ends on December 31" of any given year. Notwithstanding anything to the contrary contained herein, it is understood and agreed that this Agreement shall be deemed executory only to the extent of the monies available to the County for the performance of the terms hereof and that, in the event that the Dutchess County Legislature fails to appropriate the necessary funds to affect payment in any calendar year beyond the initial year herein, this Agreement shall automatically cease and terminate on the last day of the year in which funds have been appropriated for said Agreement and no liability on account thereof, shall be incurred by the County beyond the funds available for the performance of the terms of this Agreement. It is further understood and agreed that neither this Agreement nor any representation M of by any public employee or officer creates any legal or moral obligation to request, appropriate or make available monies for the purpose of this Agreement. 14. EXTENSION. This contract may be extended for additional periods of one year each, not exceeding in total five (5) years, upon such, terms and conditions as may be agreed between the parties. 15. NOTICE. Except as otherwise provided in this Agreement, notice required to be given Pursuant to this Agreement shall be made in writing and addressed to the following or such other person as the parties may designate: Commissioners Frances Knapp and David Gamache Dutchess County Board of Elections 47 Cannon Street Poughkeepsie, New York 12601. 1.6, NON -WAIVER. Failure of either party to exercise any rights under this Agreement for a breach thereof shall not be deemed a waiver thereof or a waiver, of any subsequent breach, 17. SEVERABILITY. If any provision of this Agreement shall be held unenforceable, the rest of the Agreement shall nevertheless remain in full force and effect. 18. CHOICE OF LAW, VENUE, Any dispute arising directly or indirectly out of this Agreement shall be determined pursuant to the laws of the State of New York. The parties hereby rr choose the New York State Supreme Court, Dutchess County as the forum for any such dispute. 19. NO ARBITRATION. Disputes involving this contract, including the breach or alleged breach thereof, may not be submitted to binding arbitration but must instead be heard in accordance with the Paragraph above entitled "Choice of Law, Venue". 20. SERVICE OF PROCESS, In addition to the methods of service allowed by the New York State Civil Practice Law & Rules ("CPLR' ), Contractor hereby consents to service of process on it by registered or certified mail, return receipt requested or by facsimile (fax) transmission. Service hereunder shall be complete when deposited in the United States mail, duly addressed and with proper postage or when. the fax has connected. Contractor must promptly notify the -County, in writing, of each and every change of address to which service of process can be made. Service by the County to the last known address shall be sufficient. Contractor will have thirty (30) calendar days after service is complete in which to respond. 21. NOTICE OF INTENT TO SUE, (a) Contractor agrees that at least ninety (90) days prior to commencing suit against the County for any matter arising directly or indirectly out of this agreement, Contractor shall provide to the County a sworn document listing the time, place, and manner of any breach of this agreement, together. with an itemized list of any damages to which Contractor believes itself entitled. (b) County shall have the right to conduct a deposition upon oral questions of an officer, employee or agent of the Contractor, of the County's choice, as to any matter arising under this agreement within the 90 day period described above. (c) Strict compliance with this paragraph shall be a condition precedent to maintenance or institution of any action or proceeding, heth.er legal or administrative. This paragraph shall not be construed to toll any applicable statute of 5 limitation. (d) Any action against the County must be commenced within one year, of the event which wives rise to liability_ u i 22. CAPTIONS. The captions are inserted only as a matter of convenience and reference, and in no way define, ,Limit or describe the scope or intent of this Agreement nor in any way affect the terms hereof. 23. COUNTERPARTS. This Agreement may be executed in any number of counterparts, each of which shall be an original and shall constitute the same Agreement. 24. GENDER. Words of the masculine or feminine gender in this Agreement, unless the meaning of the sentence indicates otherwise, shall be deemed to refer to either male or female persons. 25. RULES OF CONSTRUCTION. This contract shall be deemed to have been mutually prepared by the parties hereto and shall not be construed against any of them solely by reason of authorship. 26. ENTIRE AGREEMENT. The terms of this Agreement, including its attachments and exhibits, represent the final intent of the parties. Any modification, rescission or waiver of the terms of this Agreement must be in writing and executed and acknowledged by the parties with the same formalities accorded this basic Agreement. IN WJTNESS WHEREOF, the parties hereto have executed this Agreement. APPROVED AS TO FORM: ACCEPTED: COUNTY OF DUTCHESS BY: County Attorney's Office William R. Steinhaus County Executive APPROVED AS TO CONTENT: Board of Elections BY: Frances A. Knapp Commissioner VENDOR Print Name Title 6 Dav;Ad J. Ganiache Commissioner January 24, 2007 DUTCHESS COUNTY BOARD of ELECTIONS 47 Cannon Street, Poughkeepsie, New York 12601 845486-2473/845-486-2483 fax www.dutchesselections.com Schedule A ,I%ain.�$ AA. A -t LLIQFF Commissioner Town Name Town_ID number of Mover Name number of machines Machine Storage Contact Person Total Wappinger W1 7 Spring Street pollsites machines moved location 2 East Main Street Machines Garner Engine Com1 Wappinger W 1 moved 3 Wappinger Jr. High School 3 Wappinger W 1 Wappinger, 19 13 Highway dept. 26 Yes Town of Wappinger Town Clerk Chris 48 District Wappmger W2 moves machines 3 Myers Corners Elementary School highway garage Masterson 297-5771 156 Meyers Corners Road D 1 American Legion Hall i Wappinger W1 7 Spring Street I Knights of Columbus Hall I Wa inger W) 2 East Main Street I Garner Engine Com1 Wappinger W 1 25 West Academy Street 3 Wappinger Jr. High School 3 Wappinger W 1 90 South Remsen .Avenue 4 Hughsonville FiTe house 4 Wappinget W1 88 Old Hopewell Road 2 Chelsea Fire Houec 2 Wappmger W2 16 Liberty Street 3 Myers Corners Elementary School 3 Wappinger W3 156 Meyers Corners Road 1 lm al Garden Complex 1 Wa " n er W3 5101 Princess Circle 3 Knights of Columbus Hall, 3 Wappinger W3 All Angels Hill Rd & Rte 82 2 Ketcham High School 2 Wa pinger W3 99 Myers Comers Road I New Hackensack Fire House I Kagpinger W4 217 New Hackensack Road 2 Inunanuel Christian Reformed Church 2 Wappinger W4 253 Myers Corners Road 2 New Hackensack Reformed Church, 2 Wappingct W4,15 80 Route 376, Fellowship Hall D David J. Gamache Canuoissioner DUTCHESS COUNTY BOARD of ELECTIONS 47 Cannon Street, Pougbkeepsie, New York 12601 845-486-2473/845-486-2483 fax www.dutchesselections.com EXHIBIT "A" Scope of Services Agreement 2006 Frances A. Knapp Commissioner This agreement outlines the requirements for the delivery and pick up voting machines, The Dutchess County Board of Elections expects contractors to handle the voting equipment with the care required to preserve the machine's functional integrity. The Board expects moving of voting equipment to include: • Obtaining contact information for county Board staff and local town custodians in case any questions arise during the transport process; • Independently obtaining access to the voting machines storage. This may include calling the storage custodian or contact person, obtaining keys or security codes for opening the storage location or making other arrangements for entry to the storage location; • Ensuring that the vehicle used for transporting the voting machines is suitable for such purposes. This would include keeping the machines clean, stable and undamaged during transit; • Cooperatively obtaining the correct shipping information regarding machine serial number and destination. The Board will supply this information to custodians and town, officials, as requested; • Ensuring that the voting machines are carefully loaded onto the transport veb,icle. • Verifying the destination of each, voting machine by checking the serial number of that machine and comparing this to the destination list; • Independently obtaining access to the destination polling site; • Moving the voting machine as close as possible to the actual polling location spot after unloading the voting machine at the proper destination. This may require guidance from knowledgeable local contacts or custodians; • Cranking the voting machine into the "up" position. This may require the use of a heavy-duty drill; • Ensuring that the voting machines are delivered to the polling place locations no later than the close of business on the Monday preceding the Primary or General Election, and ensuring that the voting machines are removed from the polling place no later than the close of business on the day after the Primary or General Election..