HomeMy Public PortalAbout12) 10A_Election_Staff Report_Resolutions and Service Agreements_v4 CM comments 2021-09-13_w all attachments.ADMINISTRATIVE SERVICES DEPARTMENT
MEMORANDUM
DATE: September 21, 2021
TO: The Honorable City Council
FROM: Peggy Kuo, City Clerk
SUBJECT: ADOPTION OF RESOLUTIONS CALLING FOR THE MARCH 8, 2022
GENERAL MUNICIPAL ELECTION AND REGULATIONS AND
APPROVAL OF ELECTION RELATED SERVICES
RECOMMENDATION:
The City Council is requested to:
1.Adopt Resolution No. 21-5553 (Attachment “A”) calling the Election for March 8,
2022;
2.Adopt Resolution No. 21-5554 (Attachment “B”) requesting election-related services
from Los Angeles County (County);
3.Adopt Resolution No. 21-5555 (Attachment “C”) establishing candidate statement
regulations for candidates pertaining to statement of qualifications submitted to the
voters;
4.Direct staff to conduct a standalone “traditional model” general municipal election and
approve the following Professional Services Agreement to provide election support
services:
A.Los Angeles County Registrar Recorder/County Clerk to provide election related
services for the term October 1, 2020 to May 1, 2022;
B.Hart Interactive for ballot design, tabulation software, equipment, and
associated services in an amount of $55,000.00 for the term October 1, 2021 to
May 1, 2022; and
C.ProVote Solutions for ballot production, print and mail services in an amount of
$70,000.00 for the term October 2021 to October 2022;
5.Appropriate an additional amount of $69,280 to the election budget for a total of
$222,100.
AGENDA
ITEM 10.A.
City Council
September 21, 2021
Page 2 of 7
BACKGROUND:
1.On July 17, 2018, the City Council adopted Resolution No. 18-5347 reciting the result
of the Special Municipal Election held on June 5, 2018, that a majority of the voters
voted in favor of Measure VP to comply with State law (i.e., SB 415), intended to
increase voting participation in local elections, changing the City’s general election
held in March of odd-numbered years to March of even-numbered years. To
effectuate this change from odd-numbered year even-numbered years, the elective
officers holding office as of the effective date had their current terms extended by one
year.
2.In 2019, Martin & Chapman, the election supplier for many cities, including Temple
City went out of business after more than 50 years (as a result of cities consolidating
their elections with Counties after SB 415 passed.)
3.In March, 2020, City of Redondo Beach (a charter city like Temple City) filed a lawsuit
against Secretary of State regarding election dates, challenging the California’s Voter
Participation Rights Act (VPRA) on the ground it improperly infringed the authority
conferred on charter cities by article XI, section 5, of the California Constitution to
schedule their own elections for local offices. California’s Second District Court of
Appeals ruled in favor of the City of Redondo Beach and affirmed the Los Angeles
Superior Court September 2018 ruling that City of Redondo Beach, as a charter city, is
not beholden to the effect of 2015’s California Senate Bill 415.
4.On September 18, 2020, California Governor approved Senate Bill 970, changing the
statewide primary dates to alternating March (in odd-numbered years, when there is a
presidential primary), and June (in even-numbered years when there is not a
presidential primary. This left cities who had moved their elections to March with no
statewide election to consolidate with in even numbered years.
5.On August 5, 2021, staff received a cost estimate from Los Angeles County
Registrar/County Clerk to conduct the City’s General Municipal Election (Attachment
“F”). The cost of $439,000 includes full election services to conduct the City’s March 8,
2022 General Municipal Election.
6.On August 12, 2021, staff received a cost estimate from Hart Interactive for the 2022
General Municipal Election (Attachment “D”). The costs of $45,428.00 includes rental
of equipment and related support services.
7.On August 16, 2021, staff received a cost estimate from ProVote Solutions for the
2022 General Municipal Election (Attachment “E”). The costs of $56,806.34 includes
printing of election material, election related supplies, and mailing of vote-by-mail
ballots.
City Council
September 21, 2021
Page 3 of 7
ANALYSIS :
After amending the City’s Charter in 2018 to comply with SB 415, Temple City’s General
Municipal Election in 2020 was the first city election to coincide with the statewide general
election in March. To avoid voters’ confusion and voter fatigue of dealing with 2 sets of
ballots, voter information pamphlets, and poll locations, the City consolidated its municipal
election with the County’s statewide general election.
Subsequently, the State Legislature passed SB 970 changing the date of the statewide
direct primary for non-Presidential years (existing law requires that the presidential
primary be held on the first Tuesday after the first Monday in March) to the first Tuesday
after the first Monday in June. While this is a return to the traditional date for California
primary elections, it means that the city is unable to consolidate its 2022 General
Municipal Election with the County.
The California Elections Code requires that certain resolutions be adopted in order to hold
the City’s General Municipal Election on March 8, 2022. Under the provision of the City
of Temple City Charter, elective officers of the City are elected to four-year terms by the
registered qualified voters of the City, on an at large basis, at a general or special
municipal election held for that purpose. General municipal elections are conducted on
the first Tuesday after the first Monday in March of even-numbered years.
In preparation for the March 8, 2022 Election, it is necessary for the City Council to adopt
the following resolutions and select a vendor to provide the City with specialty election
services, supplies and equipment to conduct the election.
•Resolution No. 21-5553 (Attachment “A”) calls the election, establishes the
purpose for the election, authorizes the City Clerk to conduct the election,
establishes precinct officer compensation, and sets the voting hours as 7:00 a.m.
to 8:00 p.m.
•Resolution No. 21-5554 (Attachment “B”) is the City’s official written request for
election services to the County Board of Supervisors. The City needs voter
registration records, precinct information, and equipment available from the
County of Los Angeles Registrar Recorder’s Office. State law requires the City to
submit a resolution to the County requesting election services.
•Resolution No. 21-5555 (Attachment “C”) outlines regulations for the candidates’
statements that are included in the sample ballot pamphlets and mailed to all
registered voters of the City. As in the past, it is recommended statements
submitted by candidates not exceed 200 words. Again in 2022, the City Clerk will
print all translations of candidates’ statements in the voter pamphlet in English,
Chinese, and Spanish to comply with California State law.
Temple City has 20,602 registered voters, 14,369 of those are Permanent Vote-by-
Mail voters (as of December, 2020.) To conduct the City’s standalone election in
2022, staff evaluated two options: I) contract with various vendors to provide the
City Council
September 21, 2021
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necessary services to conduct a standalone election since Martin & Chapman, the
City’s long-time election supplier is no longer in business, or II) contract with the Los
Angeles County to provide full election services and conduct the city’s election.
I.City conduct standalone election “Traditional Model” – contract with various
providers
To conduct a standalone election requires the acquisition of specialty materials
and supplies including official ballots; voter information pamphlets; rosters of
voters; vote-by-mail supplies and software; precinct kits with notices; provisional
voting materials, signs, post office mailing services, etc. It is also necessary to
secure a State-approved ballot counting system and election material printer. Per
Election Code Section 13001, the City Clerk does not have to utilize the purchasing
department for election supplies, thus RFPs, contracts or agreements are not
required. However, the City Clerk’s Office has chosen to solicit proposals from
California Secretary of State-approved suppliers.
For certified ballot processing and counting software and equipment, staff
recommends Hart InterCivic (Attachment “D”), a company that provides election
technologies and services to government jurisdictions. Hart InterCivic has an
excellent reputation for producing safe, secure, and transparent election results.
Hart recently helped the City of Redondo Beach conduct its standalone all vote-
by-mail election in March 2021. The City of Long Beach previously owned the Hart
platform for 10 plus years and was pleased with the ballot counting equipment.
Additionally, in 2019, the County of Orange conducted a year-long Request for
Proposal (RFP) evaluation of voting systems, and their RFP panelists found that
Hart platform outranked competing systems. The equipment uses the latest
technology in scanning and data-breach security to meet all State and Federal
standards. The closed-system is not dependent on outside service providers, and
it is not connected to the internet. Since the ballot scanning computer is not
connected to the tabulation computer, and ballot scanning and inspection takes
considerable time, staff is currently planning to start scanning qualified vote-by-
mail ballots on the separate computer on the morning of the election so they will
be ready for tabulation on a separate computer after the close of polls The
estimate for Hart to provide the necessary services and equipment rental is
$45,428.00, this does not include delivery and return cost for the equipment or
taxes; hence we are requesting approval of $55,000 to provide for additional
services that may be needed from this vendor.
For a certified election printer for ballots printing, mailing services and other
election support and products related to the elections process, staff recommends
ProVote Solutions (Attachment “E”). ProVote Solutions provides specialty
elections printing in its two manufacturing facilities in California. They are one of
only five international printers who have achieved NASPO/ANSI security
certification for complying with strict risk mitigation standards. The estimate for
ProVote Solutions to provide the necessary services is $56,806.34, staff is
requesting approval of $70,000 to provide for additional services that may be
City Council
September 21, 2021
Page 5 of 7
needed from this vendor.
For the developed computer software that can be used in the precincts on Election
Day to process voter registration and check in, staff recommends Tenex for the
use of an electronic voter roster. Tenex provides unique software that allows
election inspectors to confirm voters’ registration information and status at any poll
location. The estimate to rent and use Tenex equipment and software is
approximately $16,000.
In addition to the services listed, staff will also work with: a translation service to
translate election material into the required languages in addition to English (i.e.,
Chinese and Spanish); vote by mail ballot tracking service; printing of street index;
Secretary of State for a secure token for the ballot counting device; the L.A. County
for voter signature/registration data and precinct/poll worker recruitment, and city
staff for election night support among other required services.
Vote Centers are mandated to be open Saturday, Sunday and Monday prior to an
election for every 10,000 registered voters, resulting in extraordinary staffing,
training, and facility expenses for the City, therefore staff is not recommending the
Vote Center model be used for a standalone election conducted by the City.
Instead polling locations will be open on Election Day 7 a.m. to 8 p.m., which has
been the tradition for Temple City municipal elections.
The estimate for the City to provide a standalone election using the traditional
voting model is $222,100.
Vendor
Revised Est.
Amount
FY 2021-22
Approved
Budget
1 Gladwell (Consulting, Training) $10,500 $10,300
2 ILAC ROV (est.) $15,000 $2,500
3 Election Services
(Hart – $55,000 -Tabulation and ProVote -
$70,000 -printing and mailing)
$125,000 $122,500
5 USPS (Postage) $9,600 $ 6,500
6 Tenex (Electronic Poll book) $20,000 0
7 Ballot Trak $2,000 0
8 Vote By Mail ballot issue software $10,000 0
9 Misc. (Precinct supplies, poll worker stipend,
legal advertising, translation, etc.) $15,000 $11,020
10 Contingent amount (less than 10% of total est) $15,000 0
Total $222,100 $152,820
II.Los Angeles County – “Vote Center Model” with electronic VSAP voting equipment
As a full election service provider, the LA County Registrar Recorder/County Clerk
would handle all necessary services to conduct the election (i.e., translation of
ballots, printing of Voter Information Guides, ballots and ballot envelopes,; mailing,
City Council
September 21, 2021
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tracking of ballot issued and returned, recruit, staff, train poll workers for vote
centers.. The County developed their own VSAP electronic voting system, and
they would provide vote centers in compliance with law for Los Angeles County:
All voters receive a mailed ballot
2 ballot drop off locations per 1,500 voters
Vote Centers open for at least:
•10 days prior to the election
o Per 60,000 Registered voters
•3 days prior to the election (+ election day)
o Per 10,000 Registered voters
City staff would continue to provide potential candidates with all services during the
nomination period, however, the County would be providing services with assistance
of the City Clerk following the nomination period, including tabulation in Norwalk
using VSAP technology
The estimate for County to provide full election services using the Vote Center model
is $439,000.00.
City Council is requested to adopt the resolutions calling for the 2022 General Municipal
Election and direct staff to conduct a standalone election by approving agreements for
election related support services or direct staff to work with the County to provide full
election services.
Nomination period begins on Monday, November 15, 2021 and ends on Friday,
December 10, 2021 unless an incumbent does not file, then the period is extended to
Wednesday, December 15, 2021. Those interested in pulling nomination papers can
contact the City Clerk’s Office to schedule an appointment during nomination period.
Appointment will take approximately 45 minutes to an hour. There is no fee to pull
nomination papers but qualified candidates are responsible for the translation and printing
cost of their candidate statement if they chose to include one in the voter information
pamphlet.
According to the County Registrar of Voters, as of December 2020, the city has 20,602
registered voters and 14,369 Permanent Vote-by-Mail (PVBM) when the PVBM voter
quantity was still being tracked by the County. PVBM voters will receive their ballot in the
mail automatically while those voters not registered to vote by mail can request a ballot
to be mailed to them through the City Clerk’s office or they can vote at one of the 5 poll
locations (to be determined in 2021). Poll locations will be opened on March 8, 2022 from
7 a.m. to 8 p.m.
Temple City’s charter does not allow an all-mail ballot election, so this option was not
pursued.
COUNCIL STRATEGIC GOALS:
City Council
September 21, 2021
Page 7 of 7
Adoption of the three resolutions, approval of the Election Services Agreement(s), and
the contingency amount would further promote the City Council Strategic Goal of Good
Governance.
FISCAL I MPACT :
City Council is requested to increase the election budget from $152,820 to $222,100
(+$69,280), which includes a contingent amount of $15,000.00 (less than 10% of the total
estimate) to be used as necessary without having to return to Council for staff to secure
additional support services in order to meet time sensitive election deadlines (i.e., precinct
supplies, post office mailing costs, consultant services, translation, legal notice
publishing, ballot mail tracking, courier service, etc.).
ATTACHMENTS:
A.Resolution No. 21-5553 Calling the Election
B.Resolution No. 21-5554 Requesting County Services
C. Resolution No. 21-5555 Establishing Candidate Statement Regulation
D.Professional Services Agreement with Hart InterCivic
E.Professional Services Agreement with ProVote Solution
RESOLUTION NO. 21-5553
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TEMPLE CITY, CALIFORNIA, CALLING FOR THE HOLDING OF A GENERAL MUNICIPAL ELECTION TO BE HELD ON TUESDAY, MARCH 8, 2022, FOR THE ELECTION OF CERTAIN OFFICERS AS REQUIRED BY THE PROVISIONS OF THE CHARTER
WHEREAS, under the provisions of the Charter, a General Municipal Election shall be held on March 8, 2022, for the election of Municipal Officers; and
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF TEMPLE CITY, CALIFORNIA, DOES HEREBY RESOLVE, DECLARE, DETERMINE AND ORDER AS FOLLOWS:
SECTION 1. That pursuant to the requirements of the Charter, there is called and ordered to be held in the City of Temple City, California, on Tuesday, March 8, 2022, a General Municipal Election for the purpose of electing three (3) Members of the City Council for the full term of four years;
SECTION 2. That the ballots to be used at the election shall be in form and content as required by law;
SECTION 3. That the City Clerk is authorized, instructed and directed to procure and furnish any and all official ballots, notices, printed matter and all supplies, equipment and paraphernalia that may be necessary in order to properly and lawfully conduct the election;
SECTION 4. That the polls for the election shall be open at seven o’clock a.m. of the day of the election and shall remain open continuously from that time until eight o’clock p.m. of the same day when the polls shall be closed, pursuant to Election Code § 10242, except as provided in § 14401 of the Elections Code of the State of California;
SECTION 5. That pursuant to Elections Code § 12310, a stipend for services for the persons named as precinct board members is fixed at the sum of $300 for each Inspector (Inspectors must complete all duties as follows to receive the full stipend amount: $250 for serving on Election Day and $50 for picking up polling place supplies and returning supplies to City Hall on Election Night) and $200 for each Clerk for the election (Clerks must complete all duties as follows to receive the full stipend amount: $200 for serving on Election Day). In addition, the sum of $60 will be given to each precinct board member to attend a mandatory training class. The rental for each polling place, where a charge is made, shall be the sum of $150 for the election. When required, the compensation of the Custodian of a building shall be $50 for the election;
SECTION 6. That in all particulars not recited in this resolution, the election shall be held and conducted as provided by law for holding municipal elections;
SECTION 7. That notice of the time and place of holding the election is given and the City Clerk is
authorized, instructed and directed to give further or additional notice of the election, in time, form and manner
as required by law;
SECTION 8. That in the event of a tie vote (if any two or more persons receive an equal and the highest number of votes for an office) as certified by the Election Official, the City Council, in accordance with Election Code § 15651(b) and City’s Ordinance No. 07-4489, shall conduct a special runoff election to resolve the tie vote and such special runoff election is to be held on a Tuesday not less than 40 days nor more than 125 days after the administrative or judicial certification of the election which resulted in a tie vote;
SECTION 9. That the City Clerk shall certify to the passage and adoption of this Resolution and enter it into the book of original Resolutions.
SECTION 10. The City Council authorizes the City Clerk to administer said election and all reasonable
and actual election expenses shall be paid by the City upon presentation of a properly submitted bill.
PASSED, APPROVED AND ADOPTED ON THIS 21ST DAY OF SEPTEMBER, 2021.
MAYOR
ATTACHMENT A
Resolution No. 21-5553
Page 2 of 2
ATTEST:
City Clerk
I, City Clerk of the City of Temple City, hereby certify that the foregoing resolution, Resolution No. 21-
5553 was duly adopted by the City Council of the City of Temple City at a regular meeting held on the 21st
day of September, 2021, by the following vote:
AYES: Councilmember –
NOES: Councilmember –
ABSENT: Councilmember –
ABSTAIN: Councilmember –
City Clerk
RESOLUTION NO. 21-5554
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TEMPLE
CITY, CALIFORNIA, REQUESTING THE BOARD OF SUPERVISORS OF
THE COUNTY OF LOS ANGELES TO RENDER SPECIFIED SERVICES
TO THE CITY RELATING TO THE CONDUCT OF A GENERAL
MUNICIPAL ELECTION TO BE HELD ON TUESDAY, MARCH 8, 2022.
WHEREAS, a General Municipal Election is to be held in the City of Temple City,
California, on March 8, 2022; and
WHEREAS, in the course of conduct of the election it is necessary for the City to
request services of the County; and
WHEREAS, all necessary expenses in performing these services shall be paid by
the City of Temple City;
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF TEMPLE CITY,
CALIFORNIA, DOES HEREBY RESOLVE, DECLARE, DETERMINE AND ORDER AS
FOLLOWS:
SECTION 1. That pursuant to the provisions of § 10002 of the Elections Code of
the State of California, this City Council requests the Board of Supervisors of the County
to permit the County Election Department to prepare and furnish the following for use in
conducting the election:
1.Electronic files of county precincts with number of registered voters in each,
consolidation of precincts into city voting precincts as directed by the City Clerk,
and maps of the voting precincts;
2.Electronic files listed by City’s consolidated precincts, including confidential
voters and foreign language voters clearly indicated, for Military and Overseas
voters mailing, Permanent Vote-by-Mail voter mailing, E-54 voters, E-54
through E-15 newly registered voters (excluding changes to address, parties
and the like), and other electronic files as requested;
3.A list of polling places and poll workers the county uses for their elections;
4.Voter signature verification services as needed;
5.Temporary use of ballot drop-off boxes, within Temple City during the Vote-by-
Mail period, and for one week following the election;
6.Precinct supplies, including precinct supply bins, as requested
7.Make available to the City election equipment and assistance as needed
according to State law.
SECTION 2. That the City shall reimburse the County for services performed
when the work is completed and upon presentation to the City of a properly approved bill.
ATTACHMENT B
Resolution No. 21-5554
Page 2 of 2
SECTION 3. That the City Clerk is directed to forward without delay to the Board
of Supervisors and to the County Election Department, each a certified copy of this
resolution.
SECTION 4. That the City Clerk shall certify to the passage and adoption of this
Resolution and enter it into the book of original Resolutions.
PASSED, APPROVED AND ADOPTED ON 21st DAY OF SEPTEMBER, 2021.
VINCENT YU, MAYOR
ATTEST:
City Clerk
I, City Clerk of the City of Temple City, hereby certify that the foregoing resolution,
Resolution No. 21-5554 was duly adopted by the City Council of the City of Temple City
at a regular meeting held on the 21st day of September, 2021, by the following vote:
AYES: Councilmember –
NOES: Councilmember –
ABSENT: Councilmember –
ABSTAIN: Councilmember –
City Clerk
RESOLUTION NO. 21-5555
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TEMPLE
CITY, CALIFORNIA, ADOPTING REGULATIONS FOR CANDIDATES
FOR ELECTIVE OFFICE PERTAINING TO CANDIDATES STATEMENTS
SUBMITTED TO THE VOTERS AT AN ELECTION TO BE HELD ON
TUESDAY, MARCH 8, 2022.
WHEREAS, §13307 of the Elections Code of the State of California provides that
the governing body of any local agency adopt regulations pertaining to materials prepared
by any candidate for a municipal election, including costs of the candidates statement;
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF TEMPLE CITY,
CALIFORNIA, DOES HEREBY RESOLVE, DECLARE, DETERMINE AND ORDER AS
FOLLOWS:
SECTION 1. GENERAL PROVISIONS. That pursuant to §13307 of the Elections
Code of the State of California, each candidate for elective office to be voted for at an
Election to be held in the City of Temple City on March 8, 2022 may prepare a candidate’s
statement on an appropriate form provided by the City Clerk. The statement may include
the name, age and occupation of the candidate and a brief description of no more than
200 words of the candidate’s education and qualifications expressed by the candidate
himself or herself. The statement shall not include party affiliation of the candidate, nor
membership or activity in partisan political organizations. The statement shall be filed in
typewritten form with the office of the City Clerk at the time the candidate’s nomination
papers are filed. The statement may be withdrawn, but not changed, during the period
for filing nomination papers and until 5:00 p.m. of the next working day after the close of
the nomination period.
SECTION 2. FOREIGN LANGUAGE POLICY.
A.Pursuant to the California State law, the city is required to translate candidate
statements into the following languages: Spanish and Chinese.
B.Pursuant to California State law, the candidate’s statement must be
translated and printed in the voter pamphlet in any language at the
candidates request.
C.The City Clerk shall
1. Translations:
(a)have all candidates statements translated into the languages
specified in 2(A) above.
(b)have translated those statements into the languages as requested by
the candidate in (B) above.
2.Printing:
(a)print all translations of all candidates statements in the main voter
pamphlet.
ATTACHMENT C
Resolution No. 21-5555
Page 2 of 3
The main voter pamphlet will be in English, Spanish and Chinese.
SECTION 3. PAYMENT.
A.Translations:
1.The candidate shall be required to pay for the cost of translating the
candidates statement into any required foreign language as specified in
(A) and/or (B) of Section 2 above pursuant to Federal and\or State law.
2.The candidate shall be required to pay for the cost of translating the
candidate statement into any foreign language that is not required as
specified in (A) and/or (B) of Section 2 above, pursuant to Federal and\or
State law, but is requested as an option by the candidate.
B. Printing:
1.The candidate shall be required to pay for the cost of printing the
candidates statement in a foreign language required in (A) of Section 2
above, in the main voter pamphlet.
2.The candidate shall be required to pay for the cost of printing the
candidate statement in a foreign language requested by the candidate per
(B) of Section 2 above, in the main voter pamphlet.
The City Clerk shall estimate the total cost of printing, handling, translating, and mailing
the candidate’s statements filed pursuant to this section, including costs incurred as a
result of complying with the California State law, and require each candidate filing a
statement to pay in advance to the local agency his or her estimated pro rata share as a
condition of having his or her statement included in the voter’s pamphlet. In the event the
estimated payment is required, the estimate is just an approximation of the actual cost
that varies from one election to another election and may be significantly more or less
than the estimate, depending on the actual number of candidates filing statements.
Accordingly, the clerk is not bound by the estimate and may, on a pro rata basis, bill the
candidate for additional actual expense or refund any excess paid depending on the final
actual cost. In the event of underpayment, the clerk may require the candidate to pay the
balance of the cost incurred. In the event of overpayment, the clerk shall prorate the
excess amount among the candidates and refund the excess amount paid within 30 days
of the election.
SECTION 4. MISCELLANEOUS.
A)All translations shall be provided by professionally-certified translators.
B)The City Clerk shall allow (bold type) (underlining) (capitalization)
(indentations) (bullets) (leading hyphens) to the same extent and manner
as allowed in previous City elections.
C)The City Clerk shall comply with all recommendations and standards set
forth by the California Secretary of State regarding occupational
designations and other matters relating to elections.
SECTION 5. ADDITIONAL MATERIALS. No candidate will be permitted to
include additional materials in the sample ballot package.
Resolution No. 21-5555
Page 3 of 3
SECTION 6. That the City Clerk shall provide each candidate or the candidate’s
representative a copy of this Resolution at the time nominating petitions are issued.
SECTION 7. That all previous resolutions establishing council policy on payment
for candidates statements are repealed.
SECTION 8. That this resolution shall apply only to the election to be held on
March 8, 2022 and shall then be repealed.
SECTION 9. That the City Clerk shall certify to the passage and adoption of this
resolution and enter it into the book of original resolutions.
PASSED, APPROVED AND ADOPTED ON 21st DAY OF SEPTEMBER, 2021.
MAYOR
ATTEST:
City Clerk
I, City Clerk of the City of Temple City, hereby certify that the foregoing resolution,
Resolution No. 21-5555 was duly adopted by the City Council of the City of Temple City
at a regular meeting held on the 9th day of September, 2021, by the following vote:
AYES: Councilmember –
NOES: Councilmember –
ABSENT: Councilmember –
ABSTAIN: Councilmember –
City Clerk
Temple City CA Verity Master Agreement _08202021 1
VERITY
MASTER AGREEMENT
This Master Agreement (“Agreement”), entered into effective as of __________________, 2021 (“the Effective Date”) by and
between Hart InterCivic, Inc., a Texas corporation (“Hart”) and the Customer set forth below (”Customer”, “Client”, or “City”), sets forth
the terms and conditions pursuant to which Customer may lease from Hart certain hardware (“Hardware”) and procure certain related
software (“Software”) licenses and support services (“Software Support Services”), warranty services (“Warranty Services”), and/or
project management, operational training, election event support, and/or other services (“Professional Services”), from time to time.
Hardware and Software may be referred to as “Products” and Warranty Services, Software Support Services and/or Professional
Services may be referred to as “Services.” Products may be “Hart Hardware,” and “Hart Proprietary Software,” (i.e. “Hart Products”)
or “Third Party Hardware” and “Sublicensed Software” (i.e. “Third Party Products”). The foregoing may be referred to together as
the “Verity system.”
Hart agrees to lease, license or provide to Customer Products and Services according to this Agreement, which includes all
Exhibits. Customer agrees to all terms and conditions of this Agreement. Rent and other material terms of Customer’s initial commitment
are as set forth in the Quote attached hereto as Exhibit A. This Agreement comprises the complete and exclusive agreement for the
lease and license of the Products and the provision of the Services. Customer acknowledges it has read and understands this Agreement
(including all Exhibits) and is entering into this Agreement only on the basis of the terms set forth herein.
Agreed and Accepted:
Customer Hart
Jurisdiction: Temple City
Name: Temple City Hart InterCivic, Inc.
Address: 9701 Las Tunas Drive 15500 Wells Port Drive
Temple City, CA 91780 Austin, Texas 78728
Attn: Peggy Kuo Attn.: Julie Mathis, CEO
Phone: 626-285-2171 800-223-4278
Facsimile: __________________ 800-831-1485
E-mail: pkuo@templecity.us jmathis@hartic.com
Executed By:_________________________________________________
Name: ___________________________Julie Mathis
Title: ___________________________President & CEO
This Agreement is not effective until executed by both parties. Each person signing this Agreement represents and warrants that he or
she is duly authorized and has legal capacity to execute and deliver this Agreement.
ATTACHMENT D
Temple City CA Verity Master Agreement _08202021 2
1. ORDERING
Customer may request quotations for Products or Services from time to time. The existence of this Agreement does not obligate
Customer to request a quotation or lease, license or procure any Products or Services from Hart. Any Customer request for
quotation must include the following information: (i) description of requested Product or Services; (ii) unit quantity and/or desired
term; (iii) Hart’s part number and/or vendor part number, if applicable; (iv) current unit price as provided by Hart, if applicable; (v)
correct shipping address, if applicable; and (vi) any other order information required by Hart. Each request for quotation shall
identify the address of the shipping destination, if applicable. Customer may only make a request for quotation via facsimile and
other Hart approved electronic ordering methods, including email. All Hart issued quotations are valid for only thirty (30) days
unless specifically stated on the quotation. If the quotation is signed by Customer within thirty (30) days, Hart will provide notice of
its acceptance via countersignature within fifteen (15) days of the date on which it receives Customer’s signature on the Hart
quotation. Failure to provide such written acceptance shall be deemed Hart’s rejection of the order. Hart reserves the right to accept
or reject any order initiated by Customer in Hart’s sole discretion. Only signed quotations will obligate the parties to the terms of
such quotations and this Agreement with respect to the applicable Products and/or Services. Each accepted quotation shall be
subject to the terms and conditions of this Agreement and shall be attached hereto as Exhibit A (each, a “Quote”).
2. RENT AND PRICING
2.1. Products. Rent for Hardware shall be specified by Hart in the relevant quotation and is subject to change without notice; however,
prices in Quotes signed by both parties are not subject to change. All prices are exclusive of shipping and packing costs and
insurance which shall be borne by Customer. Each Hardware lease is a net lease.
2.2. Other Services. Pricing for Professional Services shall be set forth in the applicable Quote, or if not specified, at Hart’s then-
current hourly rates.
2.3. Additional Charges. Additional charges may apply to Services e.g., travel, communication and other expenses, including but not
limited to a potential runoff election. There will be an additional charge at Hart’s current technician’s daily rate as provided in
Exhibit D Section 5.1, for any technical work required as a result of other than Hart-recommended equipment purchased by the
Customer for use with the Products.
2.4. Taxes. All prices are exclusive of applicable taxes which will be calculated by Hart upon shipment of the corresponding Products.
All taxes shall be payable by Customer, unless Customer presents Hart with a proper certificate of exemption from such tax. If
Customer challenges the applicability of any such tax, Customer shall pay the tax and may thereafter seek a refund. In the event
Hart is required to pay any tax at time of sale or thereafter, Customer shall reimburse Hart therefore.
3. PAYMENT
3.1. Products. Except as otherwise provided in the applicable Quote, amounts due for Products shall be billed upon shipment and
shall be paid in full within sixty (60) days after delivery.
3.2. Other Services. Amounts due for Professional Services shall be billed upon the earlier to occur of: (i) shipment of any portion of
the associated Hardware and/or Software, and (ii) commencement of such Professional Services. All amounts due for Professional
Services shall be paid within sixty (60) days of receipt of invoice.
3.3. Payment Mechanics. Customer will pay all amounts due under this Agreement in U.S. Dollars. All payments are to be made to
Hart at its principal office in Austin, Texas, as set forth on the signature page or to such other location as may be designated by
Hart in a notice to Customer. Customer shall notify Hart in writing of any change to Customer’s name, address, or billing information.
3.4. Late Payment. If Customer fails to timely pay rent, all Software licenses and Software Support Services will automatically
terminate.
3.5. Billing Disputes. If any dispute exists between the parties concerning the amount due or due date of any payment, Customer and
Hart shall resolve the dispute prior to Customer making payment of the disputed portion.
4. HARDWARE SPECIFIC TERMS
4.1. Delivery. Hart will provide estimated shipment dates upon acceptance of Customer’s signed quotation. Shipment dates on Quotes
are approximate only and Hart will not be subject to liability for late or delayed shipment. In the event Customer is unable to receive
delivery of the Hardware following shipment on a mutually agreed upon shipment date, Hart, at its sole option and convenience,
may deliver such Products to storage at any suitable location including Hart’s facilities. All costs incurred by Hart for the
transportation, storage, and insurance of such Hardware shall be borne by Customer.
Temple City CA Verity Master Agreement _08202021 3
4.2. Hardware Acceptance. Customer shall examine all Hardware upon receipt thereof. Within ten (10) business days of such receipt,
Customer shall notify Hart in writing of any manner in which Customer claims that the Hardware fails to conform to their applicable
specifications. If no written notification is received by Hart within such period, the Hardware delivered hereunder shall be deemed
accepted by Customer (“Hardware Acceptance”). Hardware will be deemed conforming if it meets Hart’s published specification
for such Product and any specifications identified on the applicable Quote. Upon Customer’s Hardware Acceptance, any defects
in material or workmanship shall be addressed pursuant to the warranty in Section 9 below.
4.3. Transportation and Risk of Loss. Hardware is shipped Ex Works (Incoterms 2010) from Hart’s designated shipping point. Hart
reserves the right to select the method and routing of transportation and the right to make delivery in installments unless otherwise
specified in the applicable Quote but in no event will the carrier be deemed the agent of Hart. Upon Hart’s delivery of the Hardware,
Customer shall bear the entire risk of loss, damage, theft, or destruction of the Hardware or any part thereof from any and every
cause whatsoever, which shall occur prior to Hart’s receipt thereof following Customer’s return of the same in accordance with
Section 4.7, and no such loss, damage, theft or destruction shall relieve Customer of its obligation to pay rent or to comply with
any other obligation under this Agreement. Notwithstanding the foregoing, in the event any damage, theft, or destruction of the
Hardware is caused by Hart or parties within its control, Customer shall have no liability whatsoever.
4.4. Title and Ownership. All Hardware is and shall remain the property of Hart and Customer’s interest therein is only that set forth
in this Agreement. Customer further agrees that it will not pledge, loan, mortgage, or attempt in any other manner to dispose of
the Hardware or to suffer any liens, encumbrances, or legal process to be incurred or levied on the Hardware. The Hardware is
and shall at all times be and remain personal property and shall not become a fixture or realty. Hart may affix tags, decals or plates
to the Hardware indicating Hart's ownership and Customer shall not permit their removal or concealment. Customer shall keep
the Hardware in good condition and working order, ordinary wear and tear excepted. In the event of malfunction, defect or damage
to the Hardware that is not covered by the Hart Hardware Limited Warranty (defined in Section 9.2), Customer shall notify Hart
and request that Hart repair the same, returning it to its previous condition, at Customer expense. If the Hardware is lost, stolen,
destroyed or irreparably damaged, Customer shall notify Hart and shall pay to Hart the fair market value of such Hardware
immediately prior to such event, as determined by Hart is its reasonable discretion. However, Customer shall have no liability for
any Hardware that is lost, stolen, destroyed or irreparably damaged due to Hart’s actions.
4.5. Inspection. Hart or its agents shall have free access to the Hardware at all reasonable times for the purpose of inspection and
for any other purpose contemplated in this Agreement.
4.6. Return. Customer shall return the Hardware to Hart within 60 days after the election date in the same condition as when delivered
to Customer, ordinary wear and tear excepted. However, in the event there is a runoff election and the parties execute a
subsequent amendment addressing the same, Customer shall return the Hardware to Hart within 60 days after the runoff date
subject to the same condition (ordinary wear and tear excepted). Customer shall be responsible for the de-installation, packing (in
its original packaging) and return of the Hardware and any associated costs. Hart shall have no obligation or liability in respect of
any information or data contained in the Hardware.
4.7. Changes and Cancellation. Hart may not change or cancel a Quote after it has accepted Customer’s signed submission thereof.
Customer may not change or cancel an order after submission to Hart of a signed quotation. Any changes or cancellations
following such times will be at the non-cancelling party’s sole discretion and upon terms dictated by the non-cancelling party. In
the event that Customer requests a rescheduling of any Hardware delivery and such request is accepted by Hart, Customer agrees
to pay Hart’s standard reschedule charge, provided, however, that rescheduling was not due to unforeseen circumstances outside
the Customer’s reasonable control.
5. SOFTWARE SPECIFIC TERMS
5.1. License.
5.1.1. Software That is Part of The Verity System. With respect to Software comprising part of the Verity system, subject to the terms
and conditions of this Agreement, Hart grants to Customer (i) a personal, nonexclusive, nontransferable, and limited license to
use the Hart Proprietary Software (which includes “Firmware,” meaning the Hart Proprietary Software embedded in any Verity
system device that allows execution of the software functions) and (ii) a personal, nonexclusive, nontransferable, and limited
sublicense to use the Sublicensed Software, if applicable, in each case, during the Lease Term and solely to conduct election
activity for the Customer’s March 8, 2022 election (the “Election”) in accordance with the applicable Software’s intended use
and Documentation. With this right to use, Hart will provide Customer, and Customer will be permitted to use, only the run-time
executable code and associated support files of the Software for Customer’s internal data processing requirements as part of
the Verity system. The Software may be used only at the Licensed Location specified as the jurisdiction on the signature page
of this Agreement and only on the Hardware or other computer systems authorized by Hart in writing. Customer’s use of the
Software will be limited to the number of licenses specified in the applicable Quote. Only Customer and its authorized
employees, agents or contractors may use or access the Software. For applicable components, voters are also authorized to
interact with the Software, in a manner consistent with user instructions, for the sole purpose of producing a Cast Vote Record
during the course of an election.
5.1.2. Software Utilities. With respect to Software provided with but not comprising party the Verity system itself, e.g. data converters,
localization programs, and other utilities (“Utilities”), subject to the terms and conditions of this Agreement, Hart grants to
Temple City CA Verity Master Agreement _08202021 4
Customer a personal, nonexclusive, nontransferable (other than as contemplated below), and limited license to use such Utilities
during the Lease Term and solely to conduct election activity for the Election in accordance with their respective intended use
and Documentation. With this right to use, Hart will provide Customer, and Customer will be permitted to use, only the run-time
executable code and associated support files of such Utilities. Customer and its authorized employees, agents or contractors
may use or access such Utilities. In addition, Customer may transfer the Utilities to third party contractors engaged to assist
Customer with the preparation and administration of Customer’s Election (“Third Party Service Providers”) for the sole purpose
of such Third Party Service Provider’s use for the benefit of Customer. Customer shall ensure that any Third Party Service
Provider shall, as a condition to receiving and/or using the Utilities, agree to Hart’s then-current end user license agreement
provided with the Utilities.
5.1.3. Embedded Third Party Software. To the extent Hart Proprietary Software contains embedded third party software (e.g. open
source software), third party licenses may apply. More information concerning embedded third party software can be found in
the application’s “Help->About” and is available upon written request. Such embedded third party software is distinguished from
“Sublicensed Software” which is stand-alone software not part of Hart Proprietary Software that may be included under this
Agreement. See Exhibit C for a non-exclusive listing of Hart Proprietary Software and Sublicensed Software.
5.2. Records and Audit. If Customer accesses the software, Customer shall keep clear, complete and accurate books of account and
records with respect to the usage of Software licensed hereunder, including without limitation with respect to access thereto
(including by any Third Party Service Providers to any Utilities). Licensee shall retain such books and records for a period of five
(5) years from the date of cessation of any such usage, notwithstanding any expiration or termination of this Agreement. Customer
agrees that during the term of this Agreement and such period, Hart, the licensors of any Sublicensed Software, and their
representatives may periodically inspect, conduct, and/or direct an independent accounting firm to conduct an audit, at mutually
agreed-upon times during normal business hours, of the computer site, computer systems, and appropriate records of Customer
to verify Customer’s compliance with the terms of the licenses and sublicenses granted to Customer.
5.3. Restrictions.
5.3.1. The Hart Hardware and Hart Proprietary Software are designed to be used only with each other and/or the agreed-upon
Sublicensed Software (if any) and Third Party Hardware. To protect the integrity and security of the Verity system, Customer
shall comply with the following practices and shall not deviate from them without the express written consent of Hart: (i) Customer
shall use the Software and Hardware only in connection with the Verity system, and Customer may only use Hart branded or
approved peripherals and Consumables (defined below) with the Verity system; (ii) Customer shall not install or use other
software on or with the Hardware or Software or network the Hardware or Software with any other hardware, software,
equipment, or computer systems; and (iii) Customer shall not modify the Hardware or Software. If Customer uses the Software
and Hardware in combination with other software and equipment (other software or equipment being those not provided by Hart
or its designees), and the combination infringes Hart proprietary patent claims outside the scope of the software license granted
to Customer under Section 5.1, Hart reserves its rights to enforce its patents with respect to those claims. Furthermore, using a
Verity system with unauthorized paper may result in inaccurate election tabulations and results. HART DISCLAIMS AND
CUSTOMER RELEASES HART FROM ANY LIABILITY ASSOCIATED WITH THE USE OF UNAUTHORIZED PAPER,
INCLUDING ANY CLAIM, LIABILITY OR RECOURSE ASSOCIATED WITH INACCURATE VOTE TABULATIONS.
5.3.2. Customer shall not, under any circumstances, cause or permit the adaptation, conversion, reverse engineering, disassembly, or
de-compilation of any Software. Customer shall not use any Software for application development, modification, or
customization purposes, except through Hart.
5.3.3. Customer shall not assign, transfer (other than as permitted by Section 5.1.2), sublicense, time-share, or rent the Software or
use it for facility management or as a service bureau serving others outside of the jurisdiction. This restriction does not preclude
or restrict Customer from contracting for election services for other local governments located within Customer’s jurisdictional
boundaries. Customer shall not modify, copy, or duplicate the Software. All use of Software and Hardware on which the
Software resides shall take place and be for activities within Customer’s jurisdictional boundaries, except for in cases of joint
elections conducted cooperatively with neighboring jurisdictions. All copies of the Software, in whole or in part, must contain all
of Hart’s or the third-party licensor’s titles, trademarks, copyright notices, and other restrictive and proprietary notices and
legends (including government-restricted rights) as they appear on the copies of the Software provided to Customer. Customer
shall notify Hart of the following: (i) the location of all Software and all copies thereof and (ii) any circumstances known to
Customer regarding any unauthorized possession or use of the Software.
5.3.4. If Customer does not comply with any provisions of this Section 5.3, then (i) the limited warranties under Section 9 are voided
and the licenses and sublicenses granted under Section 5.1 will automatically terminate; and (ii) Hart may terminate its obligation
to provide Software Support Services under Section 8.
6. DOCUMENTATION
Hart will provide Customer with one (1) electronic copy of the standard user-level documentation and operator’s manuals and
where applicable, environmental specifications (collectively, the “Documentation”) for the Product installed at the Customer’s
location before the Election, following installation.
Temple City CA Verity Master Agreement _08202021 5
7. PROPRIETARY RIGHTS
7.1. Reservation of Rights. Customer acknowledges and agrees that the Verity system, including the Products and Services, and any
and all related patents, copyrights, trademarks, service marks, trade names, documents, logos, software, microcode, firmware,
information, ideas, concepts, know-how, data processing techniques, documentation, diagrams, schematics, equipment
architecture, improvements, code, updates, trade secrets and material are the property of Hart and its licensors. Customer agrees
that the lease of the Hardware, license of the Software and provision of Services does not, other than as expressly set forth herein,
grant to or vest in Customer any right, title, or interest in such proprietary property. All patents, trademarks, copyrights, trade
secrets, and other intellectual property rights, whether now owned or acquired by Hart with respect to the Products and Services,
are the sole and absolute property of Hart and its licensors. Customer shall not, under any circumstances, cause or permit the
adaptation, conversion, reverse engineering, disassembly, or de-compilation of any Product(s), or copy, reproduce, modify, sell,
license, or otherwise transfer any rights in any proprietary property of Hart. Further Customer shall not remove any trademark,
copyright, or other proprietary or restrictive notices contained on any Hart Documentation, and all copies will contain such notices
as are on the original electronic media. All ideas, concepts, know-how, data processing techniques, documentation, diagrams,
schematics, firmware, equipment architecture, software, improvements, code, updates, and trade secrets developed by Hart
personnel (alone or jointly with others, including Customer) in connection with Confidential Information, including the Verity system,
will, as between the parties, be the exclusive property of Hart.
7.2. Customer Suggestions and Recommendations. Customer may propose, suggest, or recommend changes to the Products and
Services at any time. Such proposals, suggestions, or recommendations will become Hart’s property and are hereby assigned to
Hart. Hart may include any such proposals, suggestions, or recommendations, solely at Hart’s option, in subsequent periodic
Product and Services updates, without restriction or obligation. Hart is under no obligation to change, alter, or otherwise revise the
Products or Services according to Customer’s proposals, suggestions, or recommendations.
7.3. License Back. If Customer possesses or comes to possess a licensable or sub-licensable interest in any issued patent with claims
that read upon the Verity system, its method of operation, or any component thereof, Customer hereby grants and promises to
grant a perpetual, irrevocable, royalty-free, paid-up license, with right to sublicense, of such interest to Hart permitting Hart to
make, have made, use, and sell materials or services within the scope of the patent claims.
7.4. No Implied Licenses. There are no implied licenses under this Agreement, and any rights of a party that are not expressly granted
to the other party hereunder are reserved. In furtherance of the foregoing and not in limitation, Verity Duo thermal paper is based
on a patent-pending design, and the mere purchase of a Verity system does not constitute an express or implied license to make
or have such paper made.
8. SOFTWARE SUPPORT SERVICES
8.1. Description of Software Support Services. Subject to the terms and conditions of this Agreement, Hart will provide Customer
the Software Support Services described below. Software Support Services under this Section do not cover any of the exclusions
from warranty and support coverage as described under Section 9. A quote for Professional Services may be provided by Hart in
those situations where Customer requests Software support services in addition to the services described under this Section
8.1.1. Software Support Services. Software Support Services will consist of assisting the Customer in the use of Software for purposes
of Election administration, including functions related to pre-Election and post-Election testing and general operation of the Verity
system. Assistance is available via phone and email through the Hart Customer Support Center. See Exhibit B for Hart
Customer Support contact information and hours.
Software Support Services may consist of periodic updates to Hart Proprietary Software, at Hart’s discretion. Because not all
errors or defects can or need to be corrected, Hart does not warrant that all errors or defects will be corrected. Software errors
or defects must be reported in writing and be accompanied with sufficient detail to enable Hart staff to reproduce the error and
provide a remedy or suitable corrective action. The exclusions from warranty coverage under Section 9 also are exclusions
from Software Support Services under this Section. There may be consumable, shipping and on-site service charges for update
releases of Software and there may be feature charges for update or enhancement releases of Software.
9. WARRANTY AND EXTENDED WARRRANTY
9.1. Certification. Where applicable, Verity system components that require certification will meet the certification requirements in
place on the Effective Date.
9.2. Hart Hardware Limited Warranty. Hart warrants that during the warranty period, the Hart Hardware leased by Customer will be
free from defects in materials and workmanship and will substantially conform to the performance specifications stated in the Verity
Operator’s Manuals for such Hart Hardware provided to Customer by Hart. The warranty period for Hart Hardware (other than
Consumables) is begins ten (10) days after the shipping date and continues for the duration of the Lease Term. Hart Consumables
are warranted only to be free from manufacturing defects for a period of ninety (90) days, beginning ten (10) days after the shipping
date. Hart will, at Hart’s sole discretion, replace or repair any Hart Hardware that does not comply with this warranty. To request
Warranty Service, Customer must contact Hart in writing within the warranty period. Hart may elect to conduct any repairs at
Customer’s site, Hart’s facility, or any other location specified by Hart. Upon request, Customer shall ship, at Customer’s expense,
Temple City CA Verity Master Agreement _08202021 6
the non-conforming Hart Hardware to the location specified by Hart. Any replacement Hart Hardware provided to Customer under
this warranty may be new or reconditioned. Hart may use new and reconditioned parts in performing warranty repairs and building
replacement products. If Hart repairs or replaces Hart Hardware, its warranty period is not extended and will terminate upon the
end of the warranty period of the replaced or repaired Hart Hardware. Hart owns all replaced Hart Hardware and all parts removed
from repaired products. Customer acknowledges and agrees that this warranty is contingent upon and subject to Customer’s
proper use of the Verity system and the exclusions from warranty coverage and Software Support Services set forth in Section
9.5. This warranty does not cover any Hart Hardware that has had the original identification marks and/or numbers removed or
altered in any manner. This warranty does not include any type of routine maintenance service or preventative maintenance
service. The limited warranty provided in this Section 9.2 shall be referred to herein as the “Hart Hardware Limited Warranty”.
The remedies set forth in this Section are the full extent of Customer’s remedies and Hart’s obligations regarding this warranty. If
the Verity system is required to be reconfigured, modified, or otherwise changed after the Effective Date due to the Customer’s or
a local, state, or federal government certification change(s) or due to any statutory changes or new requirements, upon Customer’s
written request, Hart will determine the feasibility and cost of the required changes and advise the Customer of the same. Upon
written approval to move forward with the changes and receipt from the Customer of the stated fees, Hart will complete the required
changes to the Customer’s Verity system. THIS LIMITED WARRANTY DOES NOT APPLY TO ANY THIRD PARTY HARDWARE.
9.3. Hart Proprietary Software Limited Warranty. Hart warrants that beginning ten (10) days after the shipping of the Hart Proprietary
Software and for the duration of the Lease Term, the Hart Proprietary Software will perform substantially according to the functional
specifications described in the Verity Operators’ Manuals for such Hart Proprietary Software provided to Customer by Hart. To
request Warranty Service, Customer must contact Hart in writing within the warranty period. Failure to conform to the warranty
must be reported in writing and be accompanied with sufficient detail to enable Hart to reproduce the error and provide a remedy
or suitable corrective action (a solution that will allow the Software to function appropriately). Hart will make commercially
reasonable efforts to remedy or provide a suitable workaround for defects, errors, or malfunctions covered by this warranty that
have a significant adverse effect upon operation of the Hart Proprietary Software. Because not all errors or defects can or need
to be corrected, Hart does not warrant that all errors or defects will be corrected. Customer acknowledges and agrees that this
warranty is contingent upon and subject to Customer’s proper use of the Verity system and the exclusions from warranty coverage
and Software Support Services set forth in Section 9.5. The remedies set forth in this Section 9.3 are the full extent of Customer’s
remedies and Hart’s obligations regarding this warranty. THIS LIMITED WARRANTY DOES NOT APPLY TO ANY SUBLICENSED
SOFTWARE.
9.4. Professional Services Warranty. Hart represents and warrants that any Professional Services shall be performed in a
professional and workmanlike manner.
9.5. Exclusions from Warranty and Software Support Services. The warranties under this Section and Software Support Services
under Section 8 do not cover defects, errors, or malfunctions that are caused by any external causes, including, but not limited to,
any of the following: (a) Customer’s failure to follow operational, support, or storage instructions as set forth in applicable
documentation; (b) the use of incompatible media, supplies, parts, or components; (c) modification or alteration of the Verity
system, or its components, by Customer or third parties not authorized by Hart; (d) use of equipment or software not supplied or
authorized by Hart; (e) external factors (including, without limitation, power failure, surges or electrical damage, fire or water
damage, air conditioning failure, humidity control failure, or corrosive atmosphere harmful to electronic circuitry); (f) failure to
maintain proper site specifications and environmental conditions; (g) negligence, accidents, abuse, neglect, misuse, or tampering
by Customer; (h) improper or abnormal use or use under abnormal conditions by Customer; (i) use in a manner not authorized by
this Agreement or use inconsistent with Hart’s specifications and instructions by Customer; (j) use of Software on equipment that
is not in good operating condition caused by Customer; (k) acts of Customer, its agents, servants, employees, or any third party;
(l) servicing or support not authorized by Hart; (m) Force Majeure; or (n) Consumables, unless expressly set forth in Section 9.2.
In any case where Hart Proprietary Software interfaces with third party software, including but not limited to, the Customer’s voter
registration system, non-Hart election management system, early voting validation system, non-Hart election systems, absentee
envelope management systems, or other like systems, Hart will not be responsible for proper operation of any Software that
interfaces with the third party software should such third party software be updated, replaced, modified, or altered in any way. Hart
will also not be responsible for the proper operation of any Software running on Customer’s computer equipment, should Customer
install a new computer operating system on said equipment without advising Hart of such changes and receiving Hart’s written
approval. Hart will not be responsible for the proper operation of any Software should it be configured or operated in any manner
contrary to that described herein. A quote for Professional Services may be provided by Hart in those situations where the Customer
requests Hart’s review and approval of any system changes or repair or replacement or support services as a result of exclusions
from warranty coverage and Software Support Services.
9.6. Third Party Hardware and Sublicensed Software Excluded. HART MAKES NO REPRESENTATIONS OR WARRANTIES AS
TO THIRD PARTY HARDWARE AND SUBLICENSED SOFTWARE, IF ANY, PROVIDED BY HART TO CUSTOMER, ALL OF
WHICH IS SOLD, LEASED, LICENSED, OR SUBLICENSED TO CUSTOMER “AS IS,” OTHER THAN AS MAY BE PROVIDED
IN ANY PASS-THROUGH WARRANTY DESCRIBED BELOW. HART HAS NO RESPONSIBILITY OR LIABILITY FOR THIRD
PARTY HARDWARE AND SUBLICENSED SOFTWARE, IF ANY, PROVIDED BY HART’S DISTRIBUTORS OR OTHER THIRD
PARTIES TO CUSTOMER. If Hart sells, leases, licenses, or sublicenses any Third Party Hardware or Sublicensed Software to
Customer, Hart will pass through to Customer, on a nonexclusive basis and without recourse to Hart, any third-party manufacturer’s
warranties covering the Hardware or Software, but only to the extent, if any, permitted by the third-party manufacturer or third-party
licensor. Customer agrees to look solely to the warranties and remedies, if any, provided by the manufacturer or third-party
licensor. For a list of Third Party Hardware, see the applicable Quote. For a list of Sublicensed Software, see Exhibit C or the
Temple City CA Verity Master Agreement _08202021 7
applicable Quote. The disclaimers in this Section 9.6 are not intended to apply to embedded third party software integrated within
the Hart Proprietary Software, contemplated by Section 5.1.
9.7. Limited Remedies. HART’S SOLE RESPONSIBILITY FOR MALFUNCTIONS AND DEFECTS IN PRODUCTS AND SERVICES
IS LIMITED TO REPAIR AND REPLACEMENT AS SET FORTH IN, AND TO THE EXTENT SET FORTH IN, THIS SECTION 9.
10. PROFESSIONAL SERVICES
10.1. Professional Services. Subject to the terms and conditions of this Agreement, Hart will provide Customer (i) operational training
and on-site support at the Election, and (ii) the Professional Services described in each Quote. Professional Services days cannot
be exchanged for rent or fees for other Services. If Professional Services days are not used prior to sixty (60) days after the date
of the Election, Hart’s Professional Services obligations shall expire and unused days will be billed to the Customer without recovery
of amounts paid in advance for Professional Services.
11. REPRESENTATIONS AND WARRANTIES
11.1. Due Organization. Each party represents that it is duly organized, validly existing, and in good standing in the jurisdiction of its
organization, and that it has the requisite power and authority to execute and deliver this Agreement and to carry out the
transactions contemplated by this Agreement.
11.2. Conflicting Agreements. Each party represents and warrants that it has no outstanding agreement or obligation that is in conflict
with any of the provisions of this Agreement, or that would preclude it from complying with the provisions hereof.
12. CUSTOMER RESPONSIBILITIES
12.1. Independent Determination. Customer acknowledges it has independently determined that the Products leased under this
Agreement meet its requirements.
12.2. Cooperation. Customer agrees to cooperate with Hart and promptly perform Customer’s responsibilities hereunder. Customer
will (a) provide adequate working and storage space for use by Hart personnel near the applicable Hardware; (b) provide Hart full
access to the Hardware and Software and sufficient computer time, subject to Customer’s security rules; (c) follow Hart’s
procedures for placing Warranty Service or Software Support Service requests and determining if Warranty Service is required;
(d) follow Hart’s instructions for obtaining Software Support Service and Warranty Services; (e) provide a memory dump and
additional data in machine-readable form if requested; (f) reproduce suspected errors or malfunctions in Software; (g) provide
timely access to key Customer personnel and timely respond to Hart’s questions; and (h) otherwise cooperate with Hart in its
performance under this Agreement.
12.3. Site Preparation. Customer shall prepare and maintain the installation site in accordance with instructions provided by Hart.
Customer is responsible for environmental requirements, electrical interconnections, and modifications to facilities for proper
installation, in accordance with Hart’s specifications. Any delays in preparation of the installation site will correspondingly extend
Hart’s delivery and installation deadlines.
12.4. Site Maintenance; Proper Storage. Customer shall maintain the appropriate operating environment, in accordance with Hart’s
specifications, for the Products and all communications equipment, telephone lines, electric lines, cabling, modems, air
conditioning, and all other equipment and utilities necessary for the Products to operate properly. Customer shall properly store
the Products when not in use.
12.5. Use. Customer is exclusively responsible for supervising, managing, and controlling its use of the Products, including, but not
limited to, establishing operating procedures and audit controls, supervising its employees, making timely data backups, inputting
data, ensuring the accuracy and security of data input and data output, monitoring the accuracy of information obtained, and
managing the use of information and data obtained. Customer will ensure that its personnel are, at all times, educated and trained
in the proper use and operation of the Products and that the Hardware and Software are used in accordance with applicable
manuals, instructions, and specifications. Customer shall comply with all applicable laws, rules, and regulations with respect to its
use of the Products.
12.6. Backups. Customer is solely responsible for timely data backups, and Customer will maintain backup data necessary to replace
critical Customer data in the event of loss or damage to data from any cause. Hart is not liable for data loss.
13. TERM AND TERMINATION
13.1. Term.
13.1.1. Of Agreement. Unless earlier terminated as set forth herein, the term of this Agreement commences on the Effective Date and
continues through the end of the Lease Term.
Temple City CA Verity Master Agreement _08202021 8
13.1.2. Of Hardware Lease. Unless earlier terminated as set forth herein, the term of the lease for Hardware ordered hereunder
commences on the date of shipment of the initial Hardware and continues through the date that is sixty (60) days following the
Election (the “Lease Term”).
13.1.3. Of Hart Hardware Limited Warranty. Unless earlier terminated as set forth herein, the warranty period for new Hart Hardware
begins ten (10) days after the shipping date and continues for the duration of the Lease Term.
13.2. Termination. This Agreement shall automatically terminate or expire as set forth herein and may be terminated by either party if
the other party is in material breach of the terms of this Agreement and fails to cure such breach within thirty (30) days after written
notice of such breach has been given. Additionally, Customer may terminate this Agreement without cause, on no less than thirty
(30) days prior written notice to Hart, provided that such termination shall not relieve Customer of payment obligations incurred
prior to the date of such termination.
13.3. Effect of Expiration and Termination. Upon any expiration or termination of this Agreement, all rights and obligations hereunder
shall be of no further force or effect, provided that Sections 3, 4, 5.2-5.3, 7, 9.5-9.7, 12, 13.3 and 14-18 shall survive.
14. CONFIDENTIALITY
14.1. Definition. “Confidential Information” means any information related to Hart’s business or the Verity system, including but not
limited to technical data, trade secrets, know-how, research, product plans, products, services, customers, customer lists, markets,
software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration
information, marketing, finances, or other business information. Confidential Information includes, without limitation, all Products,
Services, Documentation and support materials, and the terms and conditions of this Agreement. Notwithstanding the foregoing,
in no event shall any agreements, amendments, proposals, quotes, invoices, financial terms, or any other communication disclosed
pursuant to Customer’s contract approval process be defined as Confidential Information.
14.2. Non-Use and Non-Disclosure. Customer will keep in confidence and protect Confidential Information (electronic or hard copy)
from disclosure to third parties and restrict its use to uses expressly permitted under this Agreement. Customer shall take all
reasonable steps to ensure that the trade secrets and proprietary data contained in the Hardware and Software and the other
Confidential Information are not disclosed, copied, duplicated, misappropriated, or used in any manner not expressly permitted by the
terms of this Agreement. Customer shall keep the Software and all tapes, diskettes, CDs, and other physical embodiments of them,
and all copies thereof, at a secure location and limit access to those employees who must have access to enable Customer to use the
Software. Customer acknowledges that unauthorized disclosure of Confidential Information may cause substantial economic loss
to Hart or its suppliers and licensors. Notwithstanding any other provision herein to the contrary, Hart acknowledges Confidential
Information may be subject to disclosure as prescribed by applicable freedom of information or public records law, including
California Government Code section 6250 et seq.
14.3. Return of Confidential Information. Upon termination or expiration of this Agreement or, if earlier, upon termination of
Customer’s permitted access to or possession of Confidential Information, Customer shall return to Hart all copies of the
Confidential Information in Customer’s possession (including Confidential Information incorporated in software or writings,
electronic and hard copies). Upon termination of Customer’s license or sublicense of Software, Customer shall immediately
discontinue all use of the Software and return to Hart or destroy at Hart’s option, the Software, including Firmware, and all related
Documentation (electronic and hard copy) and all archival, backup, and other copies of Software, Firmware and Documentation,
and provide certification to Hart of such return or destruction. Return or destruction may include hard drives and/or component
flash drive devices.
14.4. Customer Employees, Agents and Contractors. Customer will inform its employees and other agents and contractors of their
obligations under this Section 14 and shall be fully responsible for any breach thereof by such personnel.
15. INDEMNIFICATION
15.1. Indemnity. Hart, at its own expense, will defend Customer against any claim that the Hart Hardware or Hart Proprietary Software
infringes an issued United States patent, registered United States copyright, or misappropriates trade secrets protected under
United States law, and shall indemnify Customer against and pay any costs, damages and reasonable attorneys' fees attributable
to such claim that are finally awarded against Customer, provided Customer (a) gives Hart prompt written notice of such claims;
(b) permits Hart to control the defense and settlement of the claims; and (c) provides all reasonable assistance to Hart in defending
or settling the claims.
15.2. Remedies. As to Hart Hardware or Hart Proprietary Software that is subject to a claim of infringement or misappropriation, Hart
may (a) obtain the right of continued use of the Hart Hardware or Hart Proprietary Software for Customer or (b) replace or modify
the Hart Hardware or Hart Proprietary Software to avoid the claim. If neither alternative is available on commercially reasonable
terms, then, at the request of Hart, any applicable Software license and its charges will end, Customer will cease using the
applicable Hart Hardware and Hart Proprietary Software, Customer will return to Hart all applicable Hart Hardware and return or
destroy all copies of the applicable Hart Proprietary Software, and Customer will certify in writing to Hart that such return or
destruction has been completed. Upon return or Hart’s receipt of certification of destruction, Hart will give Customer a credit for the
Temple City CA Verity Master Agreement _08202021 9
price paid to Hart for the returned or destroyed Hart Hardware and Hart Proprietary Software, less a reasonable offset for use and
obsolescence.
15.3. Exclusions. Hart will not defend or indemnify Customer if any claim of infringement or misappropriation (a) is asserted by an
affiliate of Customer; (b) results from Customer’s design or alteration of any Hardware or Software; (c) results from use of any Hart
Hardware or Hart Proprietary Software in combination with any non-Hart product, except to the extent, if any, that such use in
combination is restricted to the Verity system designed by Hart; (d) relates to Sublicensed Software or Third Party Hardware alone;
or (e) arises from Customer-specified customization work undertaken by Hart or its designees in response to changes in Hart
Proprietary Software or Sublicensed Software that are made in response to Customer specifications.
15.4. EXCLUSIVE REMEDIES. THIS SECTION 15 STATES THE ENTIRE LIABILITY OF HART AND CUSTOMER’S SOLE AND
EXCLUSIVE REMEDIES FOR INFRINGEMENT AND TRADE SECRET MISAPPROPRIATION.
16. DISCLAIMERS AND LIMITATIONS OF LIABILITY
16.1. Disclaimer of Warranty. EXCEPT FOR THE EXPRESS LIMITED WARRANTIES APPLICABLE TO THE PRODUCT(S) AND/OR
SERVICES SET FORTH IN SECTION 9, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, (A) THERE ARE NO
WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE UNDER THIS AGREEMENT, AND (B)
HART DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED
WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE AND NONINFRINGEMENT FOR
ALL HARDWARE, SOFTWARE, AND SERVICES. CUSTOMER IS SOLELY RESPONSIBLE FOR ASSURING AND
MAINTAINING THE BACKUP OF ALL CUSTOMER DATA. UNDER NO CIRCUMSTANCES WILL HART BE LIABLE TO
CUSTOMER OR ANY THIRD PARTY FOR THE LOSS OF OR DAMAGE TO CUSTOMER DATA. THE EXPRESS LIMITED
WARRANTIES REFERENCED ABOVE EXTEND SOLELY TO CUSTOMER AND DO NOT INCLUDE ANY TYPE OF ROUTINE
MAINTENANCE SERVICE OR PREVENTATIVE MAINTENANCE SERVICE. SOME STATES (OR JURISDICTIONS) DO NOT
ALLOW LIMITATIONS ON IMPLIED WARRANTIES, SO THE ABOVE LIMITATION MAY NOT APPLY.
16.2. Limitations of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, TO THE MAXIMUM
EXTENT PERMITTED BY APPLICABLE LAW, HART WILL NOT BE LIABLE TO CUSTOMER FOR ANY SPECIAL, INDIRECT,
INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS) OR FOR LOST DATA SUSTAINED
OR INCURRED IN CONNECTION WITH THE HARDWARE, SOFTWARE, SERVICES, OR THIS AGREEMENT, EVEN IF
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, REGARDLESS OF THE FORM OF ACTION AND WHETHER OR NOT
SUCH DAMAGES ARE FORESEEABLE. IN ADDITION, HART’S TOTAL LIABILITY TO CUSTOMER FOR DAMAGES ARISING
OUT OF OR RELATING TO THE HARDWARE, SOFTWARE, SERVICES, AND THIS AGREEMENT WILL IN NO EVENT
EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY CUSTOMER TO HART UNDER THIS AGREEMENT UNDER THE QUOTE
FOR THE HARDWARE, SOFTWARE OR SERVICE GIVING RISE TO THE APPLICABLE CLAIM. HART IS NOT LIABLE FOR
DAMAGES CAUSED IN ANY PART BY CUSTOMER’S NEGLIGENCE OR INTENTIONAL ACTS OR, EXCEPT AS EXPRESSLY
SET FORTH HEREIN, FOR ANY CLAIM AGAINST CUSTOMER OR ANYONE ELSE BY ANY THIRD PARTY. SOME
JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF DAMAGES, SO THE ABOVE EXCLUSIONS AND/OR
LIMITATIONS MAY NOT APPLY TO CUSTOMER. THE PARTIES AGREE THAT THE LIABILITY AND WARRANTY
LIMITATIONS SET FORTH IN THIS AGREEMENT ARE A REASONABLE ALLOCATION OF RISK AND LIABILITY
CONSIDERING THE RESPECTIVE BENEFITS OBTAINED HEREUNDER. THE FOREGOING LIMITATIONS SHALL APPLY
NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY HEREIN.
16.3. Third Party Products, Services and Referrals. Hart may direct Customer to, or Customer might independently locate, third
parties having products or services that may be of interest to Customer for use in conjunction with the Products or Services
(including Third Party Service Providers, defined above). Notwithstanding any Hart recommendation, referral, or introduction,
Customer will independently investigate and test such products and services and will have sole responsibility for determining
suitability of the same. Hart has no liability with respect to claims relating to or arising from use of such products and services,
including, without limitation, claims arising from failure of such products to provide proper time and date functionality, and/or results
flowing from Third Party Service Providers’ utilization of the Utilities.
17. DISPUTE RESOLUTION
17.1. Disputes and Demands. The parties will attempt to resolve any claim or controversy related to or arising out of this Agreement,
whether in contract or in tort (“Dispute”), on a confidential basis according to the following process, which either party may start
by delivering to the other party a written notice describing the dispute and the amount involved (“Demand”).
17.2. Negotiation and Mediation. After receipt of a Demand, authorized representatives of the parties will meet at a mutually agreed-
upon time and place to try to resolve the Dispute by negotiation. If the Dispute remains unresolved after this meeting, either party
may start mandatory nonbinding mediation under the commercial mediation rules of the American Arbitration Association (“AAA”)
or such other mediation process as is mutually acceptable to the parties.
17.3. Injunctive Relief. Notwithstanding the other provisions of this Section 17, if either party seeks injunctive relief, such relief may be
sought in a court of competent jurisdiction without complying with the negotiation and mediation provisions of this Section.
Temple City CA Verity Master Agreement _08202021 10
17.4. Time Limit. Neither mediation under this section nor any legal action, regardless of its form, related to or arising out of this
Agreement may be brought more than two (2) years after the cause of action first accrued.
18. GENERAL PROVISIONS
18.1. Entire Agreement. This Agreement and the Exhibits hereto are the entire agreement between the parties with respect to the
subject matter contemplated herein, and supersede all prior negotiations and agreements with respect thereto. Hart makes no
representations or warranties with respect to this Agreement or its Products or Services that are not included herein. The use of
preprinted Customer forms, such as a request for quote (RFQ), request for proposal (RFP), purchase orders or acknowledgments,
in connection with this Agreement is for convenience only and no terms, provision or conditions thereof will have any effect on the
rights, duties or obligations of the parties under, or otherwise modify, this Agreement, regardless of any failure by Hart to object to
such terms, provisions or conditions. If any conflict exists between the terms and conditions of this Agreement and those set forth
in an Exhibit, the terms and conditions of this Agreement will govern, except to the extent otherwise explicitly stated in such Exhibit
by precise reference to the specific term or condition in the Agreement that the Exhibit is to control and prevail over. This Agreement
may not be amended or waived except in writing signed mutually by an officer of the party to be bound thereby.
18.2. Interpretation. This Agreement will be construed according to its fair meaning and not for or against either party. Headings are
for reference purposes only and are not to be used in construing the Agreement. All words and phrases in this Agreement are to
be construed to include the singular or plural number and the masculine, feminine, or neuter gender as the context requires. The
words “include” and “including” (whether or not followed by “but not limited to” or “without limitation”) shall not be construed as
terms of limitation, but shall mean “including, but not limited to,” unless the context clearly indicates otherwise.
18.3. GOVERNING LAW. THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT
REGARD TO ITS CONFLICT OF LAW PROVISIONS, UNLESS CUSTOMER IS A GOVERNMENTAL SUBDIVISION OF
ANOTHER STATE, IN WHICH CASE THE LAWS OF THE STATE IN WHICH CUSTOMER IS A GOVERNMENTAL SUBDIVISION
WILL CONTROL.
18.4. Severability. Whenever possible, each provision of this Agreement will be interpreted to be effective and valid under applicable
law; but if any provision is found to be invalid, illegal, or unenforceable, then such provision or portion thereof will be modified to
the extent necessary to render it legal, valid, and enforceable and have the intent and economic effect as close as possible to the
invalid, illegal, or unenforceable provision. If it is not possible to modify the provision to render it legal, valid, and enforceable, then
the provision will be severed from the rest of the Agreement and ignored. The invalidity, illegality, or unenforceability of any
provision will not affect the validity, legality, or enforceability of any other provision of this Agreement, which will remain valid and
binding.
18.5. Force Majeure. “Force Majeure” means a delay encountered by a party in the performance of its obligations under this Agreement
that is caused by an event beyond the reasonable control of the party, but does not include any delays in the payment of monies
due by either party. Without limiting the generality of the foregoing, “Force Majeure” will include, but is not restricted to, the following
types of events: acts of God or public enemy; acts of governmental or regulatory authorities (other than, with respect to Customer’s
performance, the Customer and its governing entities); fires, floods, epidemics, or serious accidents; unusually severe weather
conditions; failure of third parties to timely provide software, hardware, materials, or labor contemplated herein including by reason
of strikes or lockouts, or other labor disputes. If any event constituting Force Majeure occurs, the affected party shall notify the
other party in writing, disclosing the estimated length of the delay and the cause of the delay. If a Force Majeure or other such
event occurs, the affected party will not be deemed to have violated its obligations under this Agreement, and time for performance
of any obligations of that party will be extended by a period of time necessary to overcome the effects of the Force Majeure.
18.6. Compliance with Laws. Customer and Hart shall comply with all federal, state, and local laws in the performance of this
Agreement, including those governing use of the Products. Products provided under this Agreement may be subject to U.S. and
other government export control regulations. Customer shall not export or re-export any Products.
18.7. Assignment. Hart may assign this Agreement or its interests herein any including the right to receive payments, without
Customer’s consent. Customer will be notified in writing if Hart makes an assignment of this Agreement. Customer shall not assign
this Agreement or any licenses granted hereunder without the express written consent of Hart, such consent not to be unreasonably
withheld.
18.8. Independent Contractors. The parties to the Agreement are independent contractors and the Agreement will not establish any
relationship of partnership, joint venture, employment, franchise, or agency between the parties. Neither party will have the power
to bind the other or incur obligations on the other’s behalf without the other’s prior written consent. Hart’s employees, agents, and
subcontractors will not be entitled to any privileges or benefits of Customer employment. Customer’s employees, agents, and
contractors will not be entitled to any privileges or benefits of Hart employment.
18.9. Notices. Any notice required or permitted to be given under this Agreement by one party to the other must be in writing and shall
be given and deemed to have been given immediately if delivered in person to the address set forth on the signature page for the
party to whom the notice is given, or on the fifth (5th) business day following mailing if placed in the United States Mail, postage
prepaid, by registered or certified mail with return receipt requested, addressed to the party at the party’s address set forth on the
signature page. Each party may change its address for notice by giving written notice of the change to the other party.
Temple City CA Verity Master Agreement _08202021 11
18.10. Trademarks. Verity™, Hart InterCivic™ and such Product names indicated as trademarked names of Hart are trademarks of
Hart.
18.11. Attorneys’ Fees. In any court action at law or equity which is brought by one of the parties to enforce or interpret the provisions
of this Agreement, the prevailing party will be entitled to reasonable attorneys’ fees, in addition to any other relief to which that
party may be entitled.
18.12. Equitable Relief. The parties agree that a material breach of the confidentiality provisions of this Agreement or restrictions set
forth herein would cause irreparable injury to Hart for which monetary damages alone would not be an adequate remedy, and
therefore Hart shall be entitled to equitable relief for any Intellectual Property breach in addition to any other remedies it may have
hereunder or at law, without the requirement of posting bond or proving actual damages.
18.13. Government Use. The use, duplication, reproduction, release, modification, disclosure, or transfer of the Products, no matter how
received by the United States Government, is restricted in accordance with the terms and conditions contained herein. All other
use is prohibited. Further, the Products were developed at Hart’s private expense and are commercial in nature. By using or
receiving the Products, the Government user agrees to the terms and conditions contained in this Agreement including the terms
and conditions contained in this paragraph.
18.14. Cumulative Remedies. All remedies provided for in this Agreement will be cumulative and in addition to and not in lieu of any
other remedies available to either party at law, in equity or otherwise.
18.15. Insurance. During the Lease Term, Customer shall, at its own expense, insure the Hardware against all risks in an amount equal
to the replacement cost of the Hardware.
18.16. Counterparts. This Agreement may be executed in multiple counterparts, any one of which will be considered an original, but all
of which will constitute one and the same instrument. The parties agree that signatures transmitted and received via electronic
means shall be treated as original signatures and shall be deemed valid, binding and enforceable by and against the parties.
Temple City CA Verity Master Agreement _08202021 12
Exhibit A
Quote for Initial Order (General Municipal Election, March 8, 2022)
Temple City CA Verity Master Agreement _08202021 13
Exhibit A (Continued)
Quote for Initial Order (General Municipal Election, March 8, 2022)
Temple City CA Verity Master Agreement _08202021 14
Exhibit B
Hart Customer Support Contact Information and Hours
The following contact information is to be used by Customer for submitting Software Support Services requests to Hart:
Customer Support Center 1-866-275-4278 (1-866-ASK-HART)
Customer Support Center Fax 1-512-252-6925 or 1-800-831-1485
E-mail Address hartsupport@hartic.com
Hart Switchboard
Hours of Operation
After Hours
1-800-223-HART (4278)
7AM-6PM Central Time, M-F
Leave voicemail with contact information for return call
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Temple City CA Verity Master Agreement _08202021 15
Exhibit C
Hart Proprietary Software and Sublicensed Software
Hart Proprietary Software licensed to Customer via annual subscription may include, without limitation, the following. Actual Hart
Proprietary Software licensed is indicated in the applicable Quote(s) associated with this Agreement:
SOFTWARE NAME VERSION NUMBER
Verity Central 3.1
Verity Count 3.1
Sublicensed Software sublicensed to Customer via annual subscription:
None
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Temple City CA Verity Master Agreement _08202021 16
Exhibit D
Statement of Work – Hart Services
This Statement of Work is agreed to by and between Hart and the Customer.
1. Background
The City will be holding a General Municipal Election on March 8, 2022. After a review of certified voting systems in California,
the City has made the decision they will use Harts’ Verity Voting System. This will be a onetime rental for this March election.
Should the election require a runoff, the equipment shall remain on the City’s premises and the City shall pay for a) professional
services and b) ballot layout and programming arising out of the runoff and c) discounted equipment rental contingent upon
the equipment being on the customer’s premises, in each case subject to and in accordance with a subsequent amendment
executed by the parties in accordance with Section 1 and Section 2.3 of the Agreement. .
The primary contact for this project will be the City Clerk’s Office. In addition to other duties, The City Clerk is responsible for
conducting elections.
2. Scope
2.1. Inclusions
This Statement of Work covers only the items contained in Exhibit A and other deliverables as described directly in this
Statement of Work.
3. Key Project Deliverables
Hart will deliver the one-time rental of software and hardware necessary for a High-Speed Central Scanning election and
Professional Services to support the City with this election.
3.1. Deliverable Overview
Hart will provide the following services:
• Provide Ballot Production services
• Provide Professional Services onsite and offsite as agreed (up to 4 days are included with this rental. Additional days
may be purchased separately)
3.2. Deliverable Detail
• Hart’s Service Bureau will receive data and input from the City and produce ballot proof(s) for review and approval by
the City. Service Bureau pricing includes ballot layout, audio for Touch Writer, proofs, programming and up to 1,000
printed ballots.
• Once ballot layout is approved by the City, Hart will provide a file from our Verity Data/Build software that the City will
provide to their ballot printer for printing ballots.
• Hart Professional Services:
• Includes a total of four (4) days of service. Non-Election Day service/support/training.
• Includes onsite support by one Hart Professional Services individual for Election Day.
• Additional days may be added for an additional daily fee. (See Pricing)
• Tasks will include training, service and support related to the election, assistance with Central scanning and
adjudication, assistance with Election Night results and reporting. Other items as agreed to by both parties.
• At the conclusion of the election, Hart shall provide City with an archived copy of the election setup, all ballot
images, and results reporting.
3.3. Client Requirements
Client will be required to:
• Provide full details for the preparation of the election
• Provide all contests, candidates, contest details to be included on the ballot
• Provide precinct, district, splits and other details to support the identification of ballot styles.
Temple City CA Verity Master Agreement _08202021 17
3.4. Exclusions
Excluded are any software, hardware, support, or documentation except as described directly in this Statement of Work.
Specifically excluded are any hardware, including PCs and monitors required to run the software, any printers used for printing
reports, the PC OS and environment, and any other hardware or software except as specifically provided herein.
4. Management Approach
4.1. Deliverable Acceptance Management
Hart will provide a copy of the Deliverable to the Client for review and acceptance. The Client will have ten (10) business days
to evaluate the Deliverable to ensure that it substantially conforms with the Specifications. If the Client rejects the Deliverable
during such period, Client must provide Hart with a written description of all non-conformities to be corrected in sufficient detail
to enable Hart to replicate the non-conformities (a “Rejection Notice”). Hart will use commercially reasonable efforts to correct
the identified non-conformities within ten (10) business days of receipt of a Rejection Notice. Upon correction of the non-
conformities, Hart will provide the revised Deliverable for Client review and acceptance. The Client will have five (5) business
days to evaluate the revised Deliverable. This process will be repeated until all identified and documented deficiencies have
been corrected. If Hart does not receive a Rejection Notice by the end of the initial 10-day acceptance period, or, if applicable,
by the end of any subsequent submission’s 5-day acceptance period, the Deliverable will be deemed accepted by the Client.
4.2. Deliverable Change Management
Either party may propose changes in the Services or Deliverables provided by this Statement of Work (SOW). A “change” is
any revision or adjustment to the SOW that may or may not impact project schedule or budget. There are two types of
changes that the project will track:
• Design changes – change to scope, deliverables (including those already approved), activities/tasks, staffing, etc.,
resulting in an adjustment to the project budget, schedule or effort.
• Informational changes – changes that do not result in a change in schedule, effort and cost, for example a change in
project ownership.
In either case, the requesting party will provide the other party with a written proposal describing the proposed changes,
estimated charges, time schedules and other anticipated effects (the “Change Proposal”). Each Change Proposal shall
reference the SOW and the Agreement between Hart and Client. The parties will use their best efforts to respond to
requests for changes to a SOW as promptly as is appropriate under the circumstances. This procedure is intended to
provide flexibility for changing the SOW as frequently as is required to develop a quality product. No change to a SOW shall
be binding on either party until both parties execute it via subsequent amendment. Upon execution, the Change Proposal
and the SOW shall be incorporated into the amendment.
4.3. Issues & Problem Management
Client Issues will be handled through the Hart Customer Support center.
5. Professional Services Pricing
5.1. Additional Professional Services
Additional services rendered by Hart at the request of Client (e.g., to expand the scope or functionality of the Deliverable beyond
the product described in the requirement documents) will be billed to Client at the following standard daily rates.
Standard Daily Rates
Work Type (Examples) Std. Daily Rate
Documentation (Remote) $1,200
Project management and software quality assurance activities $2,000
Technical analysis, design and programming $2,500
Senior Consulting – strategy, concepts, usability, architecture, etc. $2,500
Temple City CA Verity Master Agreement _08202021 18
6. Project Communications
6.1. Project Liaisons
Hart Liaison: Name: Drew Maffei
Address: 15500 Wells Port Drive
Austin, Texas 78728
Tel: 509-599-9880
FAX: 800-437-3532
email: dmaffei@hartic.com
Client Liaison: Name: Peggy Kuo
Address: 9701 Las Tunas Drive
Temple City, CA 91780
Tel: 626-285-2171
FAX: _____________________________________
email: pkup@templecity.us
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Temple City CA Verity Master Agreement _08202021 19
Exhibit E
Ballot Layout & Programming
Not included in Exhibit A
Must be purchased separately
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# of Races
6-10
11-20
41-75 $7920.00
76-100 $9405.00 Rush Charges May Apply
Price
1-5 $1,900.00 Service Bureau pricing includes ballot layout, audio, proofs, programming and up
to 1,000 printed ballots.
$3795.00
$4950.00
21-40 $6270.00
Service Bureau
RIV #4838-6958-3880 v3
AGREEMENT FOR SERVICES
By and Between
THE CITY OF TEMPLE CITY,
a municipal corporation
and
ProVote Solutions
ATTACHMENT E
RIV #4838-6958-3880 v3
- 1 -
AGREEMENT FOR SERVICES
BETWEEN
THE CITY OF TEMPLE CITY, CALIFORNIA
AND
PROVOTE SOLUTIONS
This Agreement for Services (“Agreement”) is entered into as of this 21 day of
September, 2021 by and between the City of Temple City, a municipal corporation
(“City”) and ProVote Solutions, a Corporation (“Service Provider”). City and Service
Provider are sometimes hereinafter individually referred to as “Party” and hereinafter
collectively referred to as the “Parties.”
RECITALS
A. City has sought, by request for quotation the performance of the services
defined and described particularly in Section 2 of this Agreement.
B. Service Provider, following submission of an estimate for the performance
of the services defined and described particularly in Section 2 of this Agreement, was
selected by the City to perform those services.
C. Pursuant to the City of Temple City’s Municipal Code, City has authorit y to
enter into this Services Agreement and the City Manager has authority to execute this
Agreement.
D. The Parties desire to formalize the selection of Service Provider for
performance of those services defined and described particularly in Section 2 of this
Agreement and desire that the terms of that performance be as particularly defined and
described herein.
OPERATIVE PROVISIONS
NOW, THEREFORE, in consideration of the mutual promises and covenants
made by the Parties and contained here and other consid eration, the value and
adequacy of which are hereby acknowledged, the Parties agree as follows:
SECTION 1. TERM OF AGREEMENT.
Subject to the provisions of Section 20 "Termination of Agreement" of this
Agreement, the Term of this Agreement is for 1 year commencing on the date first
ascribed above.
SECTION 2. SCOPE OF SERVICES & SCHEDULE OF PERFORMANCE.
(a) Scope of Services. Service Provider agrees to perform the services set
forth in Exhibit “A” “Scope of Services” (hereinafter, the “Services”) and made a part of
this Agreement by this reference.
RIV #4838-6958-3880 v3
- 2 -
(b) Schedule of Performance. The Services shall be completed pursuant to
the schedule specified in Exhibit “A.” Should the Services not be completed pursuant to
that schedule, the Service Provider shall be deemed to be in Default of this Agre ement.
The City, in its sole discretion, may choose not to enforce the Default provisions of this
Agreement and may instead allow Service Provider to continue performing the
Services.
SECTION 3. ADDITIONAL SERVICES.
Service Provider shall not be compensated for any work rendered in connection
with its performance of this Agreement that are in addition to or outside of the Services
unless such additional services are authorized in advance and in writing in accordance
with Section 26 “Administration and Implementation” or Section 28 “Amendment” of this
Agreement. If and when such additional work is authorized, such additional work shall
be deemed to be part of the Services.
SECTION 4. COMPENSATION AND METHOD OF PAYMENT.
(a) Subject to any limitations set forth in this Agreement, City agrees to pay
Service Provider the amounts specified in Exhibit “B” “Compensation” and made a part
of this Agreement by this reference. The total compensation, including reimbursement
for actual expenses, shall not exceed Sixty Six Thousand dollars ($66,000.00), unless
additional compensation is approved in writing in accordance with Section 26
“Administration and Implementation” or Section 28 “Amendment” of this Agreement..
(b) Intentionally omitted.
(c) Except as to any charges for work performed or expenses incur red by
Service Provider which are disputed by City, City will use its best efforts to cause
Service Provider to be paid within forty-five (45) days of receipt of Service Provider’s
correct and undisputed invoice.
(d) Payment to Service Provider for work performed pursuant to this
Agreement shall not be deemed to waive any defects in work performed by Service
Provider.
SECTION 5. INSPECTION AND FINAL ACCEPTANCE.
City may inspect and accept or reject any of Service Provider’s work under this
Agreement, either during performance or when completed. City shall reject or finally
accept Service Provider’s work within sixty (60) days after submitted to City. City shall
reject work by a timely written explanation, otherwise Service Provider’s work shall be
deemed to have been accepted. City’s acceptance shall be conclusive as to such work
except with respect to latent defects, fraud and such gross mistakes as amount to
fraud. Acceptance of any of Service Provider’s work by City shall not constitute a
waiver of any of the provisions of this Agreement including, but not limited to, Section
16 “Indemnification” and Section 17 “Insurance.”
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SECTION 6. OWNERSHIP OF DOCUMENTS.
All original maps, models, designs, drawings, photographs, studies, surveys,
reports, data, notes, computer files, files a nd other documents prepared, developed or
discovered by Service Provider in the course of providing the Services pursuant to this
Agreement shall become the sole property of City and may be used, reused or
otherwise disposed of by City without the permission of the Service Provider. Upon
completion, expiration or termination of this Agreement, Service Provider shall turn over
to City all such original maps, models, designs, drawings, photographs, studies,
surveys, reports, data, notes, computer files, file s and other documents.
If and to the extent that City utilizes for any purpose not related to this
Agreement any maps, models, designs, drawings, photographs, studies, surveys,
reports, data, notes, computer files, files or other documents prepared, develo ped or
discovered by Service Provider in the course of providing the Services pursuant to this
Agreement, Service Provider’s guarantees and warranties in Section 9 “Standard of
Performance” of this Agreement shall not extend to such use of the maps, models ,
designs, drawings, photographs, studies, surveys, reports, data, notes, computer files,
files or other documents.
SECTION 7. SERVICE PROVIDER'S BOOKS AND RECORDS.
(a) Service Provider shall maintain any and all documents and records
demonstrating or relating to Service Provider’s performance of the Services. Service
Provider shall maintain any and all ledgers, books of account, invoices, vouchers,
canceled checks, or other documents or records evidencing or relating to work,
services, expenditures and disbursements charged to City pursuant to this Agreement.
Any and all such documents or records shall be maintained in accordance with
generally accepted accounting principles and shall be sufficiently complete and detailed
so as to permit an accurate evaluation of the se rvices provided by Service Provider
pursuant to this Agreement. Any and all such documents or records shall be
maintained for three (3) years from the date of execution of this Agreement and to the
extent required by laws relating to audits of public agen cies and their expenditures.
(b) Any and all records or documents required to be maintained pursuant to
this section shall be made available for inspection, audit and copying, at any time during
regular business hours, upon request by City or its designated re presentative. Copies
of such documents or records shall be provided directly to the City for inspection, audit
and copying when it is practical to do so; otherwise, unless an alternative is mutually
agreed upon, such documents and records shall be made available at Service
Provider’s address indicated for receipt of notices in this Agreement.
(c) Where City has reason to believe that any of the documents or records
required to be maintained pursuant to this section may be lost or discarded due to
dissolution or termination of Service Provider’s business, City may, by written request,
require that custody of such documents or records be given to the City. Access to such
documents and records shall be granted to City, as well as to its successors -in-interest
and authorized representatives.
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SECTION 8. INDEPENDENT CONTRACTOR.
(a) Service Provider is and shall at all times remain a wholly independent
contractor and not an officer, employee or agent of City. Service Provider shall have no
authority to bind City in any manner, nor to incur any obligation, debt or liability of any
kind on behalf of or against City, whether by contract or otherwise, unless such
authority is expressly conferred under this Agreement or is otherwise expressly
conferred in writing by City.
(b) The personnel performing the Services under this Agreement on behalf of
Service Provider shall at all times be under Service Provider’s exclusive direction and
control. Neither City, nor any elected or appointed boards, officers, officials, employees
or agents of City, shall have control over the conduct of Service Provider or any of
Service Provider’s officers, employees, or agents except as set forth in this Agreement.
Service Provider shall not at any time or in any manner represent that Service Provider
or any of Service Provider’s officers, employees, or agents are in any manner officials,
officers, employees or agents of City.
(c) Neither Service Provider, nor any of Service Provider’s officers,
employees or agents, shall obtain any rights to retirement, health care or any other
benefits which may otherwise accrue to City’s employees. Service Provider expressly
waives any claim Service Provider may have to any such rights.
SECTION 9. STANDARD OF PERFORMANCE.
Service Provider represents and warrants that it has the qualifications,
experience and facilities necessary to properly perform the Services required under this
Agreement in a thorough, competent and professional manner. Service Provider shall
at all times faithfully, competently and to the best of its ability, experience an d talent,
perform all Services. In meeting its obligations under this Agreement, Service Provider
shall employ, at a minimum, generally accepted standards and practices utilized by
persons engaged in providing services similar to the Services required of Service
Provider under this Agreement. In addition to the general standards of performance set
forth this section, additional specific standards of performance and performance criteria
may be set forth in Exhibit “A” “Scope of Work” that shall also be app licable to Service
Provider’s work under this Agreement. Where there is a conflict between a general and
a specific standard of performance or performance criteria, the specific standard or
criteria shall prevail over the general.
SECTION 10. COMPLIANCE WITH APPLICABLE LAWS; PERMITS AND
LICENSES.
Service Provider shall keep itself informed of and comply with all applicable
federal, state and local laws, statutes, codes, ordinances, regulations and rules in effect
during the term of this Agreement. Service Provider shall obtain any and all licenses,
permits and authorizations necessary to perform the Services set forth in this
Agreement. Neither City, nor any elected or appointed boards, officers, officials,
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employees or agents of City, shall be liable, at law or in e quity, as a result of any failure
of Service Provider to comply with this section.
SECTION 11. PREVAILING WAGE LAWS
It is the understanding of City and Service Provider that California prevailing
wage laws do not apply to this Agreement because the Agreement does not involve any
of the following services subject to prevailing wage rates pursuant to the California
Labor Code or regulations promulgated thereunder: Construction, alteration, demolition,
installation, or repair work performed on public buildings, facilities , streets or sewers
done under contract and paid for in whole or in part out of public funds. In this context,
“construction" includes work performed during the design and preconstruction phases
of construction including, but not limited to, inspection and land surveying work.
SECTION 12. NONDISCRIMINATION.
Service Provider shall not discriminate, in any way, against any person on the
basis of race, color, religious creed, national origin, ancestry, sex, age, physical
handicap, medical condition or marital status in connection with or related to the
performance of this Agreement.
SECTION 13. UNAUTHORIZED ALIENS.
Service Provider hereby promises and agrees to comply with all of the provisions
of the Federal Immigration and Nationality Act, 8 U.S.C.A. §§ 1101, et seq., as
amended, and in connection therewith, shall not employ unauthorized aliens as defined
therein. Should Service Provider so employ such unauthorized aliens for the
performance of the Services, and should the any liability or sanctions be imposed
against City for such use of unauthorized aliens, Service Provider hereby agrees to and
shall reimburse City for the cost of all such liabilities or sanctions imposed, together with
any and all costs, including attorneys' fees, incurred by City.
SECTION 14. CONFLICTS OF INTEREST.
(a) Service Provider covenants that neither it, nor any officer or principal of its
firm, has or shall acquire any interest, directly or indirectly, which would conflict in any
manner with the interests of City or which would in any way hinder Service Provider’s
performance of the Services. Service Provider further covenants that in the
performance of this Agreement, no person having any such interest shall be employed
by it as an officer, employee, agent or subcontractor without the express written
consent of the City Manager. Service Provider agrees to at all times avoid conflicts of
interest or the appearance of any conflicts of interest with the interests of City in the
performance of this Agreement.
(b) City understands and acknowledges that Service Provider is, as of the
date of execution of this Agreement, independently involved in the performance of non -
related services for other governmental agencies and private parties. Service Provider
is unaware of any stated position of City relative to such projects. Any fut ure position of
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City on such projects shall not be considered a conflict of interest for purposes of this
section.
(c) City understands and acknowledges that Service Provider will, perform
non-related services for other governmental agencies and private Partie s following the
completion of the Services under this Agreement. Any such future service shall not be
considered a conflict of interest for purposes of this section.
SECTION 15. CONFIDENTIAL INFORMATION; RELEASE OF INFORMATION.
(a) All information gained or work product produced by Service Provider in
performance of this Agreement shall be considered confidential, unless such
information is in the public domain or already known to Service Provider. Service
Provider shall not release or disclose any such information or wo rk product to persons
or entities other than City without prior written authorization from the City Manager,
except as may be required by law.
(b) Service Provider, its officers, employees, agents or subcontractors, shall
not, without prior written authorization from the City Manager or unless requested by the
City Attorney of City, voluntarily provide declarations, letters of support, testimony at
depositions, response to interrogatories or other information concerning the work
performed under this Agreement. Response to a subpoena or court order shall not be
considered "voluntary" provided Service Provider gives City notice of such court order
or subpoena.
(c) If Service Provider, or any officer, employee, agent or subcontractor of
Service Provider, provides any information or work product in violation of this
Agreement, then City shall have the right to reim bursement and indemnity from Service
Provider for any damages, costs and fees, including attorneys fees, caused by or
incurred as a result of Service Provider’s conduct.
(d) Service Provider shall promptly notify City should Service Provider , its
officers, employees, agents or subcontractors be served with any summons, complaint,
subpoena, notice of deposition, request for documents, interrogatories, request for
admissions or other discovery request, court order or subpoena from any party
regarding this Agreement and the work performed thereunder. City retains the right, but
has no obligation, to represent Service Provider or be present at any deposition,
hearing or similar proceeding. Service Provider agrees to cooperate fully with City and
to provide City with the opportunity to review any response to discovery requests
provided by Service Provider. However, this right to review any such response does not
imply or mean the right by City to control, direct, or rewrite said response.
SECTION 16. INDEMNIFICATION.
(a) Indemnification for Professional Liability. Where the law establishes a
professional standard of care for Service Provider’s services, to the fullest extent
permitted by law, Service Provider shall indemnify, protect, defend and hold harmless
City and any and all of its officials, employees and agents (“Indemnified Parties”) from
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and against any and all liability (including liability for claims, suits, actions, arbitration
proceedings, administrative proceedings, regulatory proceedings, losses, expenses or
costs of any kind, whether actual, alleged or threatened, including attorneys fees and
costs, court costs, interest, defense costs, and expert witness fees) a rise out of, are a
consequence of, or are in any way attributable to, in whole or in part, any negligent or
wrongful act, error or omission of Service Provider, or by any individual or entity for
which Service Provider is legally liable, including but not limited to officers, agents,
employees or sub-contractors of Service Provider, in the performance of professional
services under this Agreement.
(b) Indemnification for Other than Professional Liability. Other than in the
performance of professional services and to the full extent permitted by law, Service
Provider shall indemnify, protect, defend and hold harmless City, and any and all of its
employees, officials and agents from and against any liability (including liability for
claims, suits, actions, arbitration proceedings, administrative proceedings, regulatory
proceedings, losses, expenses or costs of any kind, whether actual, alleged or
threatened, including attorneys fees and costs, court costs, interest, defense costs, and
expert witness fees), where the same arise out of, are a consequence of, or are in any
way attributable to, in whole or in part, the performance of this Agreement by Service
Provider or by any individual or entity for which Service Provider is legally liable,
including but not limited to officers, agents, employees or sub-contractors of Service
Provider.
(c) Indemnification from Subcontractors. Service Provider agrees to obtain
executed indemnity agreements with provisions identical to those set forth in this
section from each and every subcontractor or any other person or entity involved by,
for, with or on behalf of Service Provider in the performance of this Agreement naming
the Indemnified Parties as additional indemnitees. In the event Service Provider fails to
obtain such indemnity obligations from others as required herein, Service Provider
agrees to be fully responsible according to the terms of this section. Failure of City to
monitor compliance with these requirements imposes no additional obligations on City
and will in no way act as a waiver of any rights hereunder. This obligation to indemnify
and defend City as set forth herein is binding on the successors, assigns or heirs of
Service Provider and shall survive the termination of this Agreement or this section.
(d) Limitation of Indemnification. Notwithstanding any provision of this
section to the contrary, design professionals are required to defend and indemnify the
City only to the extent permitted by Civil Code Section 2782.8, which limits the liability of
a design professional to claims, suits, actions, arbitration proceedings, administrative
proceedings, regulatory proceedings, losses, expenses or costs that arise out of,
pertain to, or relate to the negligence, recklessness, or willful misconduct of the design
professional. The term “design professional,” as defined in Section 2782.8, is limited to
licensed architects, licensed landscape architects, registered professional engineers,
professional land surveyors, and the business entities that offer such servic es in
accordance with the applicable provisions of the California Business and Professions
Code.
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(e) City’s Negligence. The provisions of this section do not apply to claims
occurring as a result of City’s sole negligence. The provisions of this section s hall not
release City from liability arising from gross negligence or willful acts or omissions of
City or any and all of its officials, employees and agents.
SECTION 17. INSURANCE.
Service Provider agrees to obtain and maintain in full force and effect during the
term of this Agreement the insurance policies set forth in Exhibit “C” “Insurance” and
made a part of this Agreement. All insurance policies shall be subject to approval by
City as to form and content. These requirements are subject to amendment or waiver if
so approved in writing by the City Manager. Service Provider agrees to provide City
with copies of required policies upon request.
SECTION 18. ASSIGNMENT.
The expertise and experience of Service Provider are material considerations for
this Agreement. City has an interest in the qualifications and capability of the persons
and entities who will fulfill the duties and obligations imposed upon Service Provider
under this Agreement. In recognition of that interest, Service Provider shall not assign
or transfer this Agreement or any portion of this Agreement or the performance of any
of Service Provider’s duties or obligations under this Agreement without the prior written
consent of the City. Any attempted assignment shall be ineffective, null and void, and
shall constitute a material breach of this Agreement entitling City to any and all
remedies at law or in equity, including termination of this Agreement pursuant to
Section 20 “Termination of Agreement.” City acknowledges, however, that Service
Provider, in the performance of its duties pursuant to this Agreement, may utilize
subcontractors.
SECTION 19. CONTINUITY OF PERSONNEL.
Service Provider shall make every reasonable effort to maintain the stability and
continuity of Service Provider’s staff and subcontractors, if any, assigned to perform the
Services. Service Provider shall notify City of any changes in Service Provider’s staff
and sub-contractors, if any, assigned to perform the Services prior to and during any
such performance.
SECTION 20. TERMINATION OF AGREEMENT.
(a) City may terminate this Agreement, with or without cause, at any time by
giving thirty (30) days written notice of termination to Service Provider. In the event
such notice is given, Service Provider shall cease immediately all work in progress.
(b) Service Provider may terminate this Agreement for cause at any time
upon thirty (30) days written notice of termination to City.
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(c) If either Service Provider or City fail to perform any material obligation
under this Agreement, then, in addition to any other remedies, either Service Provider,
or City may terminate this Agreement immediately upon written notice.
(d) Upon termination of this Agreement by either Service Provider or City, all
property belonging exclusively to City which is in Service Provider’s possession shall be
returned to City. Service Provider shall furnish to City a final invoice for work performed
and expenses incurred by Service Provider, prepared as set forth in Section 4
“Compensation and Method of Payment” of this Agreement. This final invoice shall be
reviewed and paid in the same manner as set forth in Section 4 “Compensation and
Method of Payment” of this Agreement.
SECTION 21. DEFAULT.
In the event that Service Provider is in default under the terms of this Agreement,
the City shall not have any obligation or duty to c ontinue compensating Service Provider
for any work performed after the date of default. Instead, the City may give notice to
Service Provider of the default and the reasons for the default. The notice shall include
the timeframe in which Service Provider may cure the default. This timeframe is
presumptively thirty (30) days, but may be extended, though not reduced, if
circumstances warrant. During the period of time that Service Provider is in default, the
City shall hold all invoices and shall, when the default is cured, proceed with payment
on the invoices. In the alternative, the City may, in its sole discretion, elect to pay some
or all of the outstanding invoices during the period of default. If Service Provider does
not cure the default, the City may take necessary steps to terminate this Agreement
under Section 20 “Termination of Agreement.” Any failure on the part of the City to give
notice of the Service Provider’s default shall not be deemed to result in a waiver of the
City’s legal rights or any rights arising out of any provision of this Agreement.
SECTION 22. EXCUSABLE DELAYS.
Service Provider shall not be liable for damages, including liquidated damages, if
any, caused by delay in performance or failure to perform due to causes beyond the
control of Service Provider. Such causes include, but are not limited to, acts of God,
acts of the public enemy, acts of federal, state or local governments, acts of City, court
orders, fires, floods, epidemics, strikes, embargoes, and unusually severe weather.
The term and price of this Agreement shall be equitably adjusted for any delays due to
such causes.
SECTION 23. COOPERATION BY CITY.
All public information, data, reports, records, and maps as are existing and
available to City as public records, and which are necessary f or carrying out the
Services shall be furnished to Service Provider in every reasonable way to facilitate,
without undue delay, the Services to be performed under this Agreement.
SECTION 24. NOTICES.
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All notices required or permitted to be given under this Agreement s hall be in
writing and shall be personally delivered, or sent by telecopier or certified mail, postage
prepaid and return receipt requested, addressed as follows:
To City: City of Temple City
Attn: City Manager
9701 Las Tunas Dr.
Temple City, CA 91780
To Service Provider: ProVote Solutions
90 West Poplar Avenue
Porterville, CA 93257
Notice shall be deemed effective on the date personally delivered or transmitted
by facsimile or, if mailed, three (3) days after deposit of the same in the custody of th e
United States Postal Service.
SECTION 25. AUTHORITY TO EXECUTE.
The person or persons executing this Agreement on behalf of Service Provider
represents and warrants that he/she/they has/have the authority to so execute this
Agreement and to bind Service Provider to the performance of its obligations
hereunder.
SECTION 26. ADMINISTRATION AND IMPLEMENTATION.
This Agreement shall be administered and executed by the City Manager or his
or her designated representative. The City Manager shall have the authority to issue
interpretations and to make amendments to this Agreement, including amendments that
commit additional funds, consistent with Section 28 “Amendment” and the City
Manager’s contracting authority under the Temple City Municipal Code .
SECTION 27. BINDING EFFECT.
This Agreement shall be binding upon the heirs, executors, administrators,
successors and assigns of the Parties.
SECTION 28. AMENDMENT.
No amendment to or modification of this Agreement shall be valid unless made
in writing and approved by the Service Provider and by the City. The City Manager
shall have the authority to approve any amendment to this Agreement if the total
compensation under this Agreement, as amended, would not exceed the City
Manager’s contracting authority under the Temple City Municipal Code. All other
amendments shall be approved by the City Council. The Parties agree that the
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requirement for written modifications cannot be waived and that any attempted waiver
shall be void.
SECTION 29. WAIVER.
Waiver by any Party to this Agreement of any term, condition, or covenant of this
Agreement shall not constitute a waiver of any other term, condition, or covenant.
Waiver by any Party of any breach of the provisions of this Agreement shall not
constitute a waiver of any other provision nor a waiver of any subsequent breach or
violation of any provision of this Agreement. Acceptance by City of any work or
services by Service Provider shall not constitute a waiver of any of the provisions of this
Agreement.
SECTION 30. LAW TO GOVERN; VENUE.
This Agreement shall be interpreted, construed and governed according to the
laws of the State of California. In the event of litigation between the Parties, venue in
state trial courts shall lie exclusively in the County of Los Angeles, California. In the
event of litigation in a U.S. District Court, venue shall lie exclusively in the Central
District of California, in Los Angeles.
SECTION 31. ATTORNEYS FEES, COSTS AND EXPENSES.
In the event litigation or other proceeding is required to enforce or interpret any
provision of this Agreement, the prevailing Party in such litigation or other proceeding
shall be entitled to an award of reasonable attorney's fees, costs and expenses, in
addition to any other relief to which it may be entitled.
SECTION 32. ENTIRE AGREEMENT.
This Agreement, including the attached Exhibits "A" through "C", is th e entire,
complete, final and exclusive expression of the Parties with respect to the matters
addressed therein and supersedes all other agreements or understandings, whether
oral or written, or entered into between Service Provider and City prior to the execution
of this Agreement. No statements, representations or other agreements, whether oral
or written, made by any Party which are not embodied herein shall be valid and binding.
SECTION 33. SEVERABILITY.
If any term, condition or covenant of this Agreement is de clared or determined by
any court of competent jurisdiction to be invalid, void or unenforceable, the remaining
provisions of this Agreement shall not be affected thereby and the Agreement shall be
read and construed without the invalid, void or unenforcea ble provision(s).
SECTION 34. CONFLICTING TERMS.
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Except as otherwise stated herein, if the terms of this Agreement conflict with the
terms of any Exhibit hereto, or with the terms of any document incorporated by
reference into this Agreement, the terms of this Agreement shall control.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on
the date and year first-above written.
CITY OF TEMPLE CITY
__________________________
Bryan Cook, City Manager
ATTEST: APPROVED AS TO FORM:
___________________________ ________________________
Peggy Kuo, City Clerk Greg Murphy, City Attorney
CONTRACTOR:
By
(Authorized Officer)
Name:
Title:
(2nd signature required if Corporation, Incorporation or Limited Liability
Corporation)
By
(Authorized Officer)
Name:
Title:
NOTE: SERVICE PROVIDER’S SIGNATURES SHALL BE DULY NOTARIZED,
AND APPROPRIATE ATTESTATIONS SHALL BE INCLUDED AS MAY
BE REQUIRED BY THE BYLAWS, ARTICLES OF INCORPORATION,
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OR OTHER RULES OR REGULATIONS APPLICABLE TO SERVICE
PROVIDER’S BUSINESS ENTITY.
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A notary public or other officer completing this certificate verifies only the identity of the individual who
signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity
of that document.
ALL-PURPOSE ACKNOWLEDGMENT NOTARY FOR CALIFORNIA
STATE OF CALIFORNIA )
COUNTY OF LOS ANGELES )
On ____________________, 20__, before me, , Date Name And Title Of Officer (e.g. “Jane Doe, Notary Public”)
personally appeared ,
Name of Signer(s)
who proved to me on the basis of satisfactory evidence to be the
person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed
the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the
entity upon behalf of which the person(s) acted, executed the
instrument.
I certify under PENALTY OF PERJURY under the laws of the
State of California that the foregoing paragraph is true and
correct.
WITNESS my hand and official seal.
Signature of Notary Public
OPTIONAL
Though this section is optional, completing this information can deter alternation of the document or fraudulent
reattachment of this form to an unintended document.
CAPACIT(IES) CLAIMED BY SIGNER(S) DESCRIPTION OF ATTACHED DOCUMENT
Signer's Name:
¨ Individual
¨ Corporate Officer
Title(s) Title or Type of Document
¨ Partner(s) ¨ Limited
¨ General
¨ Attorney-In-Fact Number Of Pages
¨ Trustee(s)
¨ Guardian/Conservator
¨ Other:
Signer is representing:
Name Of Person(s) Or Entity(ies)
Date Of Document
Signer(s) Other Than Named Above
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A notary public or other officer completing this certificate verifies only the identity of the individual who
signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity
of that document.
ALL-PURPOSE ACKNOWLEDGMENT NOTARY FOR CALIFORNIA
STATE OF CALIFORNIA )
COUNTY OF LOS ANGELES )
On ____________________, 20__, before me, , Date Name And Title Of Officer (e.g. “Jane Doe, Notary Public”)
personally appeared , Name of Signer(s)
who proved to me on the basis of satisfactory evidence to be the
person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed
the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the
entity upon behalf of which the person(s) acted, executed the
instrument.
I certify under PENALTY OF PERJURY under the laws of the
State of California that the foregoing paragraph is true and
correct.
WITNESS my hand and official seal.
Signature of Notary Public
OPTIONAL
Though this section is optional, completing this information can deter alternation of the document or fraudulent
reattachment of this form to an unintended document.
CAPACIT(IES) CLAIMED BY SIGNER(S) DESCRIPTION OF ATTACHED DOCUMENT
Signer's Name:
¨ Individual
¨ Corporate Officer
Title(s) Title or Type of Document
¨ Partner(s) ¨ Limited
¨ General
¨ Attorney-In-Fact Number Of Pages
¨ Trustee(s)
¨ Guardian/Conservator
¨ Other:
Signer is representing:
Name Of Person(s) Or Entity(ies)
Date Of Document
Signer(s) Other Than Named Above
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B-1
EXHIBIT "A"
SCOPE OF SERVICES
See Statement of Work Attached.
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B-2
EXHIBIT "B"
COMPENSATION
See Estimate – Cost Breakdown Attached.
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C-1
EXHIBIT "C"
INSURANCE
A. Insurance Requirements. Service Provider shall provide and maintain
insurance, acceptable to the City, in full force and effect throughout the term of this
Agreement, against claims for injuries to persons or damages to property which may
arise from or in connection with the performance of the Services by Service Provider, its
agents, representatives or employees. Insurance is to be placed with insurers with a
current A.M. Best's rating is an assigned policyholders’ Rating of A (or higher) and
Financial Size Category Class VII (or larger).
Only the following “marked” requirements are applicable and Service Provider shall
provide the following scope and limits of insurance:
1. Minimum Scope of Insurance. Coverage shall be at least as broad
as:
_x__ Commercial General Liability. Insurance Services Office form Commercial
General Liability coverage (Occurrence Form CG 0001).
____ Automobile Liability. Service provider shall maintain automobile insurance at
least as board as Insurance Services Office form CA 00 01 covering bodily injury
and property damage for all activities of the Service Provider arising out of or in
connection with work to be performed under this Agreement, including coverage
for any owned, hired, non-owned or rented vehicles.
_x___ Workers’ Compensation. Workers' Compensation Insurance (Statutory Limits)
and Employer’s Liability Insurance as required by the Labor Code of State of
California covering all persons providing Services on behalf of the Service
Provider and all risks to such persons under this Agreement.
_x__ Professional (Errors and Omissions) Liability. Professional liability insurance
appropriate to the Service Provider’s profession. This coverage may be written
on a “claims made” basis, and must include coverage for contractual liability.
The insurance must be maintained for at least three (3) consecutive years
following the completion of Service Provider’s services or the termination of this
Agreement. During this additional three (3) year period, Service Provider shall
annually and upon request of the City submit written evidence of this continuous
coverage.
Service Provider shall maintain professional liability insurance that covers the
Services to be performed in connection with this Agreement. Any policy
inception date, continuity date, or retroactive date must be before the effective
date of this agreement and Service Provider agrees to maintain continuous
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coverage through a period of no less than three years a fter completion of the
services required by this agreement.
1. Minimum Limits of Insurance. Service Provider shall maintain limits
of insurance no less than:
(1) Commercial General Liability. $1,000,000 per occurrence,
$2,000,000 general aggregate for bodily injury, personal injury and property damage.
(2) Automobile Liability. No less than $1,000,000 combined
single limit for each accident.
(3) Workers' Compensation. Workers' Compensation as
required by the Labor Code of the State of California of not less than $1,000,000 per
occurrence and Employer’s Liability Insurance with limits of at least $1,000,000.
(4) Professional Liability. $1,000,000 per claim and in the
aggregate.
B. Other Provisions. Insurance policies required by this Agreement shall
contain the following provisions:
1. All Policies. Each insurance policy required by this Agreement
shall be endorsed and state the coverage shall not be suspended, voided, cancelled by
the insurer or either Party to this Agreement, reduced in coverage or in limits except
after 30 days' prior written notice by certified mail, return receipt requested, has been
given to City.
2. Commercial General Liability and Automobile Liability Coverages .
(1) City, and its respective elected and appointed officers,
officials, and employees and volunteers are to be covered as additional insureds as
respects: liability arising out of activities Service Provider performs; products and
completed operations of Service Provider; premises owned, occupied or used by
Service Provider; or automobiles owned, leased, hired or borrowed by Service Provider.
The coverage shall contain no special limitations on the scope of protection afforded to
City, and their respective elected and appointed officers, officials, or employees.
(2) Service Provider’s insurance shall apply separately to each
insured against whom claim is made or suit is brought, except with respect to the limits
of the insurer's liability.
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(3) Requirements of specific coverage features or limits
contained in this Section are not intended as a limitation on coverage, limits or other
requirements, or a waiver of any coverage normally provided by any insurance. Specific
reference to a given coverage feature is for purposes of clarification only as it pertains
to a given issue and is not intended by any party or insured to be all inclusive, or to the
exclusion of other coverage, or a waiver of any type. If the Vendor maintains higher
limits than the minimums shown above, the Agency requires and shall be entitled to
coverage for the higher limits maintained by the Vendor. Any available insurance
proceeds in excess of the specified minimum limits of insurance and coverage shall be
available to the Agency.
(4) Coverage provided by the CONTRACTOR shall be primary
and any insurance or self -insurance or maintained by Agency shall not be required to
contribute to it. The limits of insurance required herein may be satisfied by a
combination of primary and umbrella or excess insurance. Any umbrella or excess
insurance shall contain or be endorsed to contain a provision that such coverage shall
also apply on a primary and non -contributory basis for the benefit of Agency before the
Agency’s own insurance or self-insurance shall be called upon to protect is as a named
insured.
(5) Any failure to comply with the reporting or other provisions of
the insurance policies, including breaches of warranties, shall not affect coverage
provided to City, and its respective elected and appointed officers, officials, employees
or volunteers.
3. Workers' Compensation Coverage. Unless the City Manager
otherwise agrees in writing, the insurer shall agree to waive all rights of subrogation
against City, and its respective elected and appointed officers, officials, employees and
agents for losses arising from work performed by Service Provider.
C. Other Requirements. Service Provider agrees to deposit with City, at or
before the effective date of this Agreement, certificates of insurance necessary to
satisfy City that the insurance provisions of this contract have been complied with. The
City may require that Service Provider furnish City with copies of original endorsements
effecting coverage required by this Exhibit “C”. The certificates and endorsements are
to be signed by a person authorized by that insurer to bind coverage on its behalf. City
reserves the right to inspect complete, certified copies of all required insurance policies,
at any time.
1. Service Provider shall furnish certificates and endorsements from
each subcontractor identical to those Service Provider provides.
2. Any deductibles or self -insured retentions must be declared to and
approved by City. At the option of City, either the insurer shall reduce or eliminate such
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deductibles or self-insured retentions as respects City or its respective elected or
appointed officers, officials, employees and volunteers or the Service Provider shall
procure a bond guaranteeing payment of losses and related investigations, claim
administration, defense expenses and claims.
3. The procuring of such required policy or policies of insurance shall
not be construed to limit Service Provider’s liability hereunder nor to fulfill the
indemnification provisions and requirements of this Agreement.
OFFICIAL BALLOTS $13,767.88
1 Machine Setup @ $440.00 /Lot $440.00
5 Digital Print/ Per Precinct @ $88.00 /ea $440.00
16,000 Vote by Mail Ballots -11" Ballot @ $357.50 /M $5,720.00
3,500 Printing Counter/Office Ballots - 11"@ $357.50 /M $1,251.25
15,450 Precinct Ballots - 11"@ $357.50 /M $5,523.38
1,100 Vote by Mail - Supplemental @ $357.50 /M $393.25
1 SET OF PREMARKED TEST DECKS $214.00
5 Setup: Total Precincts @ $17.60 /ea $88.00
300 11" Ballot @ $0.42 /ea $126.00
INKJET ADDRESSING AND MAILING $7,050.30
1
Data Processing and Setup 1st initial
mailing @ $495.00 /per ea $450.00
5 Machine Set up - Per Precinct @ $16.00 /ea $80.00
16,000 Run Charge - @ $308.00 per M $4,928.00
1 Data Processing and Setup Supplemental @ $247.50 /per ea $247.50
5 Machine Setup -per Precinct @ $16.00 /ea $80.00
1,100 Run Charge - Supplemental @ $528.00 /M $580.80
16,000 Ballot Trax serialization @ $40.00 /M $640.00
1,100 Ballot Trax serialization- Supplelmental @ $40.00 /M $44.00
INSTRUCTION SHEETS WITH I VOTED STICKER $2,717.00
26,000
8.5 X 14, Wht paper, blk ink both sides, I
Voted sticker attached @ $104.50 /M $2,717.00
VOTER INFORMATION GUIDES $24,315.50
1 Election Setup-Covers @ $1,045.00 /Lot $1,045.00
1 Ballot Type Changes @ $145.00 /ea $145.00
5 Candidate Statement Page Setup-English @ $145.00 /ea $725.00
5
Candidate Statement Page Setup-
Spanish DOES NOT INCLUDE
TRANSLATIONS @ $145.00 /ea $725.00
5
Candidate Statement Page Setup -
Chinese DOES NOT INCLUDE
TRANSLATIONS @ $145.00 /ea $725.00
AUGUST 2021
ESTIMATE- COST BREAKDOWN
C–027615 JOB NO.BILL TO:ALPINE COUNTY CLERK
Municipal Election
March 8, 2021
C–116608 JOB NO.BILL TO:DEL NORTE COUNTY
BILL TO: CITY OF TEMPLE CITY
90 West Poplar Avenue, Porterville, CA 93257
Phone 559 719-2136
Fax 559 719-2111
1 of 2
EXHIBIT 1
Electronic Copy Input
5 Canidate Statement English @ $71.50 /ea $357.50
5 Canidate Statement Spanish @ $71.50 /ea $357.50
5 Candidate Statemennt Chinese @ $71.50 /ea $357.50
Booklet Run Charges
26,000 24 Page (12 Part) English @ $725.50 /M $18,863.00
Misc. Book Charges
7 Fillers Pages and Misc Pages @ $145.00 /ea $1,015.00
INKJET AND ADDRESSING OF VOTER INFORMATION GUIDES $1,732.50
1 Data Processing and Setup Charge @ $378.00 /Lot $378.00
21,500 Inkjet Address/Mailing @ $63.00 /M $1,354.50
PRECINCT SUPPLIES 311.00$
20 AV-41 Boxes @ $5.50 /ea 110.00$
20 Image Cast Boxes @ $4.05 /ea 81.00$
80 Voted Ballots Seals @ $1.50 /ea 120.00$
SUBTOTAL $50,108.18
DOES NOT INCLUDE POSTAGE,
TRANSLATIONS OR FREIGHT
2 of 2
OUTGOING AND INCOMING ENVELOPES $6,698.16
25,000
Outgoing envelope- w/Indicia, 11 x 6
1/8, cello window, White wove 24#,
Black ink 2 sides @ $137.41 /M $3,435.25
25,000
Return BRM, 10 x 5-7/8, Manila wove
28#, 2 colors @ $110.67 /M $2,766.75
2,000 Outgoing envelope - no indicia @ $137.41 /M $274.82
2,000 Return BRM -for office use @ $110.67 /M $221.34
Total $6,698.16
Does not include tax or shipping
AUGUST 2021
ESTIMATE - COST BREAKDOWN
C–027615 JOB NO.BILL TO:ALPINE COUNTY CLERK
OUTGOING AND INCOMING ENVELOPES
C–116608 JOB NO.BILL TO:DEL NORTE COUNTY
BILL TO: TEMPLE CITY
90 West Poplar Avenue, Porterville, CA 93257
Phone 559 719-2136
Fax 559 719-2111
1 of 1
EXHIBIT 2