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R-06-02-23-10D3 - 2/23/2006 I T RESOLUTION NO. R-06-02-23-10D3 WHEREAS, the City of Round Rock wishes to enter into a contract with the Travis County Elections Administrator to conduct the May 13, 2006 election, and WHEREAS, the Travis County Elections Administrator has submitted a proposed Election Services Contract ( "Contract") , and WHEREAS, the City Council desires to enter into said Contract, Now Therefore BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK, TEXAS, That the Mayor is hereby authorized and directed to execute on behalf of the City an Election Services Contract with the Travis County Elections Administrator to conduct the May 13, 2006 election, a copy of said Contract being attached hereto as Exhibit "A" and incorporated herein for all purposes . The City Council hereby finds and declares that written notice of the date, hour, place and subject of the meeting at which this Resolution was adopted was posted and that such meeting was open to the public as required by law at all times during which this Resolution and the subject matter hereof were discussed, considered and formally acted upon, all as required by the Open Meetings Act, Chapter 551, Texas Government Code, as amended. RESOLVED this 23rd day of February, 0 NY WEL Mayor City f Round Rock, Texas ST: CHRISTINE R. MARTINEZ, City Secret*y gPFDesktop\::ODMA/WORLDOX/O:/WDOX/RESOLUTI/R60223D3.WPD/SC ELECTION AGREEMENT BETWEEN TRAVIS COUNTY AND CITY OF ROUND ROCK, TEXAS Pursuant to Chapter 31, Subchapter D, Chapter 123, and Chapter 271 of the Texas Election Code ("Code") and Chapter 791 of the Texas Government Code, Travis County and City of Round Rock, Texas ("Participating Entity") enter into this agreement for the Travis County Clerk, as the County's Election Officer, to conduct the Participating Entity's elections, including runoffs, and for the Participating Entity's use of the County's current or future-acquired election equipment for any voting system that the County adopts, as authorized under Title 8 of the Election Code, for all Participating Entity elections. The purpose of this agreement is to maintain consistency and accessibility in voting practices, polling places, and election procedures in order to best assist the voters of the Participating Entity. I. GENERAL PROVISIONS (A) Except as otherwise provided in this agreement, the term "election" refers to any Participating Entity election, occurring on the second Saturday in May and a resulting runoff, if necessary, and the first Tuesday after the first Monday in November and a resulting runoff, if necessary within all Participating Entity territory located.in Travis County. If a runoff is necessary, the Participating Entity shall work with the Election Officer to determine a mutually acceptable run-off date; in the event that the Participating Entity and any other entity for which the County is providing election services or for which the County is conducting a joint election, do not agree on a run-off date, the Participating Entity agrees to whichever run-off date is selected by the Election Officer. (B) If the Participating Entity determines it is necessary to conduct an election during a time other than that specified in I.(A),the Election Officer and a representative designated by the Participating Entity will meet as soon as possible to determine the feasibility of the Election Officer conducting such an election. If both parties agree that the Election Officer will administer this election,the new election will be based on all other applicable provisions of this agreement. (C) Except as otherwise provided in this agreement,the term "Election Officer"refers to the Travis County Clerk. (D) Except as otherwise provided in this agreement,the term"precinct"means all precincts in the territory of the Participating Entity within Travis County. (E) Except as otherwise provided in this agreement, the term"fiscal year"refers to a time period that begins on October 1 and closes on September 30 of each year. (F) Except as otherwise provided in this agreement,the term"election services"refers to services used to perform or supervise any or all of the duties and functions that an election officer determines necessary for the conduct of an election. Except as otherwise provided in this agreement,the term"cost for election services"includes the costs for I34535-1064. EXHIBIT � �� I personnel, supplies, materials, or services needed for providing these services as permitted by the Texas Election Code. The term does not refer to costs relating to the use of the voting equipment. (G) Except as otherwise provided in this agreement, the cost for"use of voting equipment"is the amount the Participating Entity agrees to pay the County for use of the County's DRE equipment. (H) The Participating Entity agrees to commit the funds necessary to pay for election-related expenses for Participating Entity elections. (I) The Election Officer has the right to enter into agreements with other entities at any time, including during the dates listed in I.(A). (J) As a condition for providing election services and equipment usage, the Election Officer may require authorities of political subdivisions holding elections on the same day in all or part of the same territory to enter into a joint election agreement as authorized in Chapter 271 of the Texas Election Code. The Participating Entity agrees to enter into any joint election agreement required by the County, subject to the prior approval of any such Joint Election Agreement by Participating Entity. II. PARTICIPATING ENTITY'S USE OF VOTING EQUIPMENT (A) The County shall make available to the Participating Entity their current and future acquired voting system as authorized under Title 8 of the Election Code, subject to reasonable restrictions and conditions imposed by the Election Officer to ensure availability of the equipment for County-ordered elections, primary elections, and subsequent runoff elections. The Election Officer may impose reasonable restrictions and conditions to protect the equipment from misuse or damage. III. APPOINTMENT OF ELECTION OFFICER (A) The Travis County Election Officer("Election Officer")is appointed to serve as the Participating Entity's Election Officer and Early Voting Clerk to conduct the Participating Entity's elections described in Section I. (B) As the Participating Entity's Election Officer and Early Voting Clerk, the Election Officer shall coordinate, supervise, and conduct all aspects of administering voting in Participating Entity elections in compliance with all applicable law. (C) The Participating Entity shall continue to perform those election duties listed in(1) through(8)below and any other election duties that may not be delegated to another governmental entity: 134535-1064, 2 (1) preparing, adopting, and publishing all required election orders, resolutions, notices and other documents, including bilingual materials, evidencing action by the governing authority of the Participating Entity necessary to the conduct of an election; (2) if requested in writing Participating Entity, preparing federal Voting Rights Act election pre-clearance submissions to the Department of Justice, other than changes in a joint election conducted under this agreement that directly affect the County; (3) preparing the text for the Participating Entity's official ballot in English and Spanish, or other languages as required by law; (4) providing the Election Officer with a list of candidates or propositions showing the order and the exact manner in which the candidates' names and the propositions are to appear on the official ballot; (5) conducting the official canvass of a Participating Entity election; (6) administering the Participating Entity's duties under state and local campaign finance laws; (7) having a Participating Entity representative serve as the custodian of its election records; and (8) filing the Participating Entity's annual voting system report to the Secretary of State as required under Chapter 123 et seq. of the Texas Election Code. (D) The Participating Entity shall also be responsible for proofing and attesting to the accuracy of all ballot language and format information programmed by the County. This includes any information programmed for use with the audio or tactile button features of the equipment. The Participating Entity will also monitor and review all logic and accuracy testing and mandatory recounts held prior to and after the election. The Participating Entity will complete its duties within timeframes as prescribed by the County. If the Participating Entity finds any discrepancies or concerns, it will immediately report them to the Election Officer and work with her to resolve any issues so that final approval can be reached. (E) Christine Martinez, City Secretary will assist the County whenever possible when the conduct of the election requires assistance from Participating Entity departments and staff. Cliff Borofsky, Williamson County Elections Administrator will serve as Regular Early Voting Clerk for the Participating Entity to receive requests for applications for early voting ballots, and forward these applications to the Joint Early Voting Clerk. Christine Martinez, City Secretary will serve as the Custodian of Records for the Participating Entity to complete those tasks in the Election Code that the Election Officer will not perform. 134535-1064. 3 IV. ELECTION WORKERS AND POLLING PLACES (A) The County shall provide a list for presentation to the governing body of the Participating Entity, containing a list of places, times, and dates of early voting suitable for consideration and adoption by the governing body in accordance with Texas Election Code Chapter 85. The Election Officer will designate and confirm all Election Day polling place locations. (B) The Election Officer will assume the responsibility for recruiting election personnel; however, if by the 5th day before the Election, the Election Officer reports vacancies in positions for election judges, alternate judges, election day clerks, early voting ballot board, receiving substation clerks, or any other key election personnel, the Participating Entity shall provide emergency personnel in these positions. (C) The Election Officer shall notify each of the election judges and alternates of their appointment and the eligibility requirements that pertain to them and to the selection of election day clerks. Included in this notification will be the number of clerks that each precinct should have in addition to the election judge and alternate judge. The election judges and/or the alternates are responsible for recruiting and supervising their clerks. (D) All election workers must agree to attend training sessions as determined by the Election Officer. Costs for these training sessions and compensation for attendees will be included as part of the election service costs. (E) During any election and any subsequent runoff election that involve entities in addition to the Participating Entity, the Election Officer will work with all parties to find a plan that can be agreed upon regarding polling places. If agreement cannot be reached, the Election Officer will resolve the differences. In all cases, emergency polling place changes will be made by the Election Officer. V. BUDGET INFORMATION (A) Not later than February 15 of each year, the Participating Entity shall provide to the Election Officer a forecast of Participating Entity elections for the next two fiscal years. (B) Not later than March 15 of each year, Travis County shall provide to the Participating Entity,based on the confirmed forecasts of each jurisdiction for which the County performs election services or with which the County participates in joint elections, a projection of the Participating Entity's election costs per year for each of the next two fiscal years. The forecast shall include: (1) a forecast of elections for all jurisdictions for which the County performs election services or with which the County participates in joint elections. 134535-1064. 4 (2) the precincts to be used for each election and each jurisdiction described in Subsection 1. (3) for each election, the Participating Entity's projected share of election costs determined by this contract and relative to other jurisdictions for which the County performs election services or with which the County participates in joint elections. In the case of a joint election, the Participating Entity's projected share of election costs will be determined on a pro rata basis using the following method. The number of precincts each participating entity has involved in an election will be added together. The proportional percentage of that sum for each entity will be calculated. The proportional cost for each participating entity for election services will be calculated by multiplying the proportional percentage of each participating entity by the total cost of the election. The product of these numbers is the pro rata cost for each entity. For Participating Entities with fewer than 50 precincts, a not-to-exceed flat rate will be determined in accordance with Exhibit A, which is attached hereto and incorporated herein for all purposes. After each election the formula that produces the lowest figure will be used for final billing purposes. (4) If a flat fee is not used in calculating the Participating Entity's projected share of election costs relative to other jurisdictions for which the County performs election services in addition to the projected itemized election costs, Travis County shall include a fee to be charged by the Election Officer equal to 10% of the Participating Entity's projected share of the total costs of each election, as described in Section VI., excluding the costs of voting equipment, which are described in Section VII. VI. PAYMENTS FOR ELECTION SERVICES (A) Payments for the use of voting equipment are addressed separately in Section VII. of this agreement. (B) Not later than the 50th day before an election, the Participating Entity will make a payment equal to 75% of the total of the Participating Entity's projected share of election costs according to the most recent calculation presented by the Election Officer under Section V.(B)(3) of this agreement. In case of a cancellation of an election by the Participating Entity, the Participating Entity will notify the Election Officer on or before 11:59 p.m. on the 60th day before the election whether it expects to be able to cancel its election, and on or before 11:59 p.m. on the 53rd day before the election if that election will or will not be cancelled. Notwithstanding the provisions in IX. (B), the County and the Participating Entity agree that notice under VI.(B) can be provided via e-mail to the County at election@co.travis.tx.us and cc to gail.fisher@co.travis.tx.us. Email notification shall be sent by Christine Martinez, City Secretary. No deposit will be due if the Election Officer receives final written notice on or before 11:59 p.m. of the 53rd day before the election that an election will be cancelled. Within thirty days after receipt of an election cost schedule or bill setting forth the Election Officer's actual contract expenses 134535-1064. 6 and charges incurred in the conduct of the election, the Participating Entity shall pay the Election Officer the remaining 25% of the expenses and charges, or the balance due where the cost schedule or bill has been revised. Payment shall be made from current revenues available to the Participating Entity. If there is a runoff election, the Participating Entity will make a payment equal to 75% of the projected costs for the runoff election immediately after receiving that projected cost from the Election Officer. The projected share of election costs will include the 10% fee for election services as discussed in VI.(C). (C) The Election Officer will charge a fee for election services, as described in Section VI, equal to 10% of the total costs of each election excluding the costs of voting equipment. Costs for use of voting equipment are described in Section VII. In the event of a joint election, this 10% fee will be divided on a pro rata basis among all entities involved in the election in the same method as described in Section V.(B)(3). If the flat fee calculated in accordance with Exhibit A is found to be the lesser of the two amounts, the 10% fee is included in that flat fee charge. (D) For elections that do not have a runoff election, the County will send the Participating Entity a final invoice of election expenses not later than the 45th day after an election. For elections that do have a runoff, the County may send the Participating Entity a final invoice of election expenses not later than the 45th day after the runoff election. This invoice may include expenses for both elections. The total amount due according to these invoices shall be offset by any payments made for "upfront" costs or made in accordance with Subsection(B) of this section. The County shall prepare the invoice to include: (1) an itemized list of each election expense incurred; (2) the corresponding budget estimate for each item listed; (3) for each final invoice item, the Participating Entity's pro rata share of costs will be expressed as a percentage of the total cost of the item for all jurisdictions for which Travis County performs election services; (4) an itemization of any adjustments or credits to the first post-election invoice; and (5) the total payment due from the Participating Entity for any portion of the Participating Entity's costs not included in the Participating Entity's payment under Subsection V.(B) or not included as payment for an"upfront"cost; (E) The Participating Entity shall promptly review an election invoice and supporting documentation when received from the County. The Participating Entity may audit, during normal business hours, relevant County election or accounting records upon reasonable notice to the County. The Participating Entity shall pay the entire final invoice or the undisputed portion of the final invoice not later than the 30th day after receiving the invoice. 134535-1064. 7 VII. PAYMENTS FOR USE OF VOTING EQUIPMENT (A) The Election Officer shall conduct elections using the voting system that the Election Officer administers in the conduct of County elections, as approved by the Secretary of State in accordance with the Texas Election Code unless otherwise agreed upon by both parties. (B) The Participating Entity shall make payments to Travis County as consideration for the use of the County's DRE equipment. The Participating Entity shall pay $5 for each unit of electronic voting system equipment installed at a polling place; and $5 for each unit of other electronic equipment used to conduct the election or provide election services. (C) If the Participating Entity holds an election on a date when the County is holding a general or special November election, the Participating Entity is not charged any cost for equipment usage. However, if a runoff election is necessary after a November election, the Participating Entity will pay for equipment usage. (D) In the event of a joint election not occurring in November, the cost for equipment usage per entity is determined by taking the cost per election and multiplying it by the proportional cost factor for that entity. If the flat fee is charged in accordance with Exhibit A, the participating Entity will pay the lesser of the two amounts. (E) If the Participating Entity holds an election on a date other than as listed in Section I. (A), the Participating Entity will pay $5 for each unit of electronic voting system equipment installed at a polling place; and $5 for each unit of other electronic equipment used to conduct the election or provide election services. (F) Payment by the Participating Entity to the County for DRE equipment is due 30 days after receipt of billing as part of the final payment for election costs as discussed in Section VI.(D). (G) If the County acquires additional equipment, different voting equipment, or upgrades to existing equipment during the term of this contract, the charge for the use of the equipment may be renegotiated. VIII. COMMUNICATIONS (A) The Participating Entity and the Election Officer shall each designate a member of their staff to serve as the primary contact for the respective offices under this agreement and provide the name and contact information for that individual to each entity. (B) Throughout the term of this Agreement, the Participating Entity and the County will engage in ongoing communications issues related to Participating Entity elections, the 134535-1064. 8 use of County's voting equipment, and the delivery of services under this agreement and, when necessary, the County Clerk, elections division staff members, and other election workers shall meet with the Participating Entity to discuss and resolve any problems which might arise under this Agreement. (C) The Election Officer shall be the main point of media contact for election information related to election administration. The Participating Entity shall designate a contact to be the main point of contact for matters related to the content of the Participating Entity's ballot or candidates. IX. MISCELLANEOUS PROVISIONS (A) Amendment/Modification Except as otherwise provided, this Agreement may not be amended, modified, or changed in any respect whatsoever, except by a further Agreement in writing, duly executed by the parties hereto. No official, representative, agent, or employee of the County has any authority to modify this Agreement except pursuant to such expressed authorization as may be granted by the Commissioners Court of Travis County, Texas. No official, representative, agent, or employee of the Participating Entity has any authority to modify this Agreement except pursuant to such expressed authorization as may be granted by the governing body of the Participating Entity. Dana DeBeauvoir, Travis County Clerk, may propose necessary amendments or modifications to this Agreement in writing in order to conduct a Joint Election smoothly and efficiently, except that any such proposals must be approved by the Commissioners Court of the County and the governing body of the Participating Entity. (B) Notice Any notice to be given hereunder by any party to the other shall be in writing and may be effected by personal delivery, by certified mail, or by common carrier. Notice to a party shall be addressed as follows: CITY OF ROUND ROCK, TEXAS Christine R. Martinez, City Secretary 221 E. Main Street Round Rock, Texas 78664 TRAVIS COUNTY Honorable Dana DeBeauvoir, Travis County Clerk 1000 Guadalupe Street, Room 222 Austin, Texas 78701 Cc: Honorable David Escamilla, Travis County Attorney 314 West 11t1,Street, Suite 300 Austin, Texas 78701 134535-1064. 9 Notice by hand-delivery is deemed effective immediately, notice by certified mail is deemed effective three days after deposit with a U.S. Postal Office or in a U.S. Mail Box, and notice by a common carrier, is deemed effective upon receipt. Each party may change the address for notice to it by giving notice of such change in accordance with the provisions of this Section. (C) Force Majeure In the event that the performance by the County of any of its obligations or undertakings hereunder shall be interrupted or delayed by any occurrence not occasioned by its own conduct, whether such occurrence be an act of God or the result of war, riot, civil commotion, sovereign conduct, or the act or condition of any persons not a party or in privity thereof, then it shall be excused from such performance for such period of time as is reasonably necessary after such occurrence to remedy the effects thereof. (D) Venue and Choice of Law The Participating Entity agrees that venue for any dispute arising under this Agreement will lie in the appropriate courts of Austin, Travis County, Texas. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas and the United States of America. (E) Entire Agreement This Agreement contains the entire agreement of the parties relating to the rights herein granted and the obligations herein assumed and supersedes all prior agreements, including prior election services contracts and prior agreements to conduct joint elections. Any prior agreements, promises, negotiations, or representations not expressly contained in this Agreement are of no force and effect. Any oral representations or modifications concerning this Agreement shall be of no force or effect, excepting a subsequent modification in writing as provided herein. (F) Severability If any provision of this Agreement is found to be invalid, illegal or unenforceable by a court of competent jurisdiction, such invalidity, illegality or unenforceability shall not affect the remaining provisions of this Agreement; and, parties to this Agreement shall perform their obligations under this Agreement in accordance with the intent of the parties to this Agreement as expressed in the terms and provisions of this Agreement. (G) Breach In the event that Participating Entity or County breaches any of its obligations under this Agreement, the non-breaching party shall be entitled to pursue any and all rights and remedies allowed by law. 134535-1064. 10 (H) Payments from Current Revenues Payments made by the Participating Entity in meeting its obligations under this Agreement shall be made from current revenue funds available to the governing body of the Participating Entity. Payments made by the County in meeting its obligations under this Agreement shall be made from current revenue funds available to the County. Any payments due under this Agreement by Participating Entity shall be subject to Participating Entity first adopting a budget containing funds appropriated for the payment of such amounts. (I) Other Instruments The County and the Participating Entity agree that they will execute other and further instruments or any documents as may become necessary or convenient to effectuate and carry out the purposes of this Agreement. (J) Third Party Beneficiaries Except as otherwise provided herein, nothing in this Agreement, expressed or implied, is intended to confer upon any person, other than the parties hereto, any benefits, rights or remedies under or by reason of this Agreement. (K) Other Joint Election Agreements The County and the Participating Entity expressly understand and acknowledge that each may enter into other Joint Election Agreements with other jurisdictions, to be held on Election Day and at common polling places covered by this Agreement. (L) Mediation When mediation is acceptable to both parties in resolving a dispute arising under this Agreement, the parties agree to use a mutually agreed upon mediator, or a person appointed by a court of competent jurisdiction, for mediation as described in Section 154.023 of the Texas Civil Practice and Remedies Code. Unless both parties are satisfied with the result of the mediation, the mediation will not constitute a final and binding resolution of the dispute. All communications within the scope of the mediation shall remain confidential as described in Section 154.023 of the Texas Civil Practice and Remedies Code unless both parties agree, in writing, to waive the confidentiality. Notwithstanding the foregoing, the parties intend to fully comply with the Texas Open Meetings Act and the Texas Public Information Act whenever applicable. The term "confidential" as used in this Agreement has the same meanings as defined and construed under the Texas Public Information Act and the Texas Open Meetings Act. 134535-1064. 11 (M) Addresses for Payments Payments made to the County or the Participating Entity under this agreement shall be addressed to following respective addresses: Elections Division Travis County Clerk P.O. Box 149325 Austin, Texas 78751 City of Round Rock City Secretary 221 E. Main Street Round Rock, TX 78664 (N) This agreement is effective upon execution by both parties and expires on(July 1, 2011) and renews automatically for(two) additional(three)-year terms unless one party notifies the other party in writing that it wants to terminate the agreement. (0) Either party may terminate this agreement for any reason upon providing 60 days written notice to the other party. (P) The individuals below have been authorized to sign this Agreement. IN TESTIMONY WHEREOF,the parties hereto have executed this Agreement in multiple copies, each of equal dignity, on this day of , 200—. CITY OF ROUND ROCK BY: Nyle Maxwell Mayor TRAVIS COUNTY BY: Samuel T. Biscoe County Judge BY: Dana DeBeauvoir County Clerk 134535-1064. 12 Exhibit A Pricing Schedule for Entities with fewer than 50 precincts Note: Each Participating Entity is responsible for its Department of Justice submission, publishing its notice of election, submitting ballot language in English an Spanish,proofing of its ballot, and canvassing its returns (Travis County supplies the results of the canvass). Election Day polling location flat rate: $1675 each location ($1500 for operating costs+$150 for 10% admin fee+$25 for equipment usage fee) This rate is a not-to-exceed rate for each polling location. When determining polling locations, the goal is for all Participating Entities to agree on the polling locations for their common areas. In most cases the larger entities determine the sites and precinct combinations for polling locations. If a Participating Entity has precincts that are not shared with another entity, the Participating Entity may choose to combine locations. Each Election Day location has one judge, one alternate judge, and one or two clerks. If the location is shared with other jurisdictions, this cost is divided according to the number of jurisdictions at that location and the percentage of population for that jurisdiction at that location. Cost includes 10%admin fee and equipment usage fee. Election Day polling location proportional rate: Cost depends upon participation If a large number of entities participate in an election, and a proportional rate of the actual costs is the less expensive alternative for the Participating Entity, Travis County will charge the proportional cost instead of the flat rate cost. In other words, Travis County will charge the lesser of the two amounts. Additional Early Voting Options: Operation of an Early Voting location as part of the Travis County regular Mobile Voting program: Per day $275 All of the Participating Entity's voters within Travis County have access to all of the Travis County Early Voting sites in each election at no additional cost. If Travis County does not run a permanent or mobile site in a Participating Entity's area, the Participating Entity may request a mobile unit for one to five days. This would include Travis County staff setting up and breaking down the equipment daily, trained staffing of the location, and Travis County law enforcement securing the equipment in the Travis County Elections Division's safe at 55001 Airport on a daily basis. 134535-1064. 12 DATE: February 16, 2006 SUBJECT: City Council Meeting - February 23, 2006 ITEM: 10.D.3. Consider a resolution authorizing the Mayor to execute an Election Services Contract with the Travis County Election Administrator for the May 13, 2006 City Election. Department: Administration Department Staff Person: Christine Martinez, City Secretary Justification: This contract is for election services from the Travis County Election Administrator to conduct the City's election on May 13, 2006. This agreement outlines the responsibilities of the Election Administrator and the City for the election. The City has two precincts in Travis County, which are T-200, which is located in the Flower Hill area and T-225, which is located west of IH-35, in the 1325 and SH-45 area. The individuals in these two precincts will vote at Wells Branch Elementary. Funding: Cost: $3,400 (approximately) Source of funds: Operating Budget Outside Resources: N/A Background Information: The City will hold a joint election with the Round Rock Independent School District to provide one ballot, which contains all the candidates for the City, candidates for the School Board and any propositions of the City and School District. This will allow allows the voter to register only once at the polling place instead of twice thus simplifying the voting process and reducing costs. Public Comment: None EXECUTED DOCUMENT FOLLOWS ELECTION AGREEMENT BETWEEN TRAVIS COUNTY AND THE CITY OF ROUND ROCK, TEXAS Pursuant to Chapter 31, Subchapter D, Chapter 123, and Chapter 271 of the Texas Election Code ("Code") and Chapter 791 of the Texas Government Code, Travis County and the City of Round Rock, Texas (hereinafter referred to as "Round Rock" or the "Participating Entity") enter into this agreement for the Travis County Clerk, as the County's Election Officer, to conduct the Participating Entity's elections, including runoffs, and for the Participating Entity's use of the County's current or future-acquired election equipment for any voting system that the County adopts, as authorized under Title 8 of the Election Code, for all Participating Entity elections. The purpose of this agreement is to maintain consistency and accessibility in voting practices, polling places, and election procedures in order to best assist the voters of the Participating Entity. I. GENERAL PROVISIONS (A) Except as otherwise provided in this agreement, the term "election" refers to any Participating Entity election occurring on the second Saturday in May and a resulting runoff, if necessary, and the first Tuesday after the first Monday in November and a resulting runoff, if necessary, within all Participating Entity territory located in Travis County. If a runoff is necessary, the Participating Entity shall work with the Election Officer to determine a mutually acceptable runoff date; in the event that the Participating Entity and any other entity for which the County is providing election services or for which the County is conducting a joint election do not agree on a runoff date, the Participating Entity agrees to whichever runoff date is selected by the Election Officer. (B) If the Participating Entity determines it is necessary to conduct an election during a time other than that specified herein in I(A), the Election Officer and a representative designated by the Participating Entity will meet as soon as possible to determine the feasibility of the Election Officer conducting such an election. If both parties agree that the Election Officer will administer this election, the new election will be based on all other applicable provisions of this agreement. (C) Except as otherwise provided in this agreement, the term"Election Officer"refers to the Travis County Clerk. (D) Except as otherwise provided in this agreement, the term"precinct"means all precincts in the territory of the Participating Entity within Travis County. (E) Except as otherwise provided in this agreement, the term"fiscal year"refers to a time period that begins on October 1 and closes on September 30 of each year. (F) Except as otherwise provided in this agreement, the term "election services" refers to services used to perform or supervise any or all of the duties and functions that an election officer determines necessary for the conduct of an election. Except as otherwise provided in this agreement, the term "cost for election services" includes the costs for 0 096294/jkg -06-0-a3-1003 personnel, supplies, materials, or services needed for providing these services as permitted by the Texas Election Code. The term does not refer to costs relating to the use of the voting equipment. (G) Except as otherwise provided in this agreement, the cost for"use of voting equipment"is the amount the Participating Entity agrees to pay the County for use of the County's DRE equipment. (H) The Participating Entity agrees to commit the funds necessary to pay for election-related expenses for Participating Entity elections. (1) The Election Officer has the right to enter into agreements with other entities at any time, including during the dates listed in I(A). (J) As a condition for providing election services and equipment usage, the Election Officer may require authorities of political subdivisions holding elections on the same day in all or part of the same territory to enter into a joint election agreement as authorized in Chapter 271 of the Texas Election Code. The Participating Entity agrees to enter into any joint election agreement required by the County, subject to the prior approval of any such joint election agreement by the Participating Entity. II. PARTICIPATING ENTITY'S USE OF VOTING EQUIPMENT The County shall make available to the Participating Entity its current and future-acquired voting system as authorized under Title 8 of the Election Code, subject to reasonable restrictions and conditions imposed by the Election Officer to ensure availability of the equipment for County- ordered elections, primary elections, and subsequent runoff elections. The Election Officer may impose reasonable restrictions and conditions to protect the equipment from misuse or damage. III. APPOINTMENT OF ELECTION OFFICER (A) The Travis County Election Officer ("Election Officer") is appointed to serve as the Participating Entity's Election Officer and Early Voting Clerk to conduct the Participating Entity's elections described in Section I. (B) As the Participating Entity's Election Officer and Early Voting Clerk, the Election Officer shall coordinate, supervise, and conduct all aspects of administering voting in Participating Entity elections in compliance with all applicable law. (C) The Participating Entity shall continue to perform those election duties listed in (1) through (8) below and any other election duties that may not be delegated to another governmental entity: (1) preparing, adopting, and publishing all required election orders, resolutions, notices and other documents, including bilingual materials, evidencing action by 2 the governing authority of the Participating Entity necessary to the conduct of an election; (2) if requested in writing, preparing federal Voting Rights Act election pre-clearance submissions to the Department of Justice, other than changes in a joint election conducted under this agreement that directly affect the County; (3) preparing the text for the Participating Entity's official ballot in English and Spanish, or other languages as required by law; (4) providing the Election Officer with a list of candidates or propositions showing the order and the exact manner in which the candidates' names and the propositions are to appear on the official ballot; (5) conducting the official canvass of the Participating Entity election; (6) administering the Participating Entity's duties under state and local campaign finance laws; (7) having a Participating Entity representative serve as the custodian of its election records; and (8) filing the Participating Entity's annual voting system report to the Secretary of State as required under Chapter 123 et seq. of the Texas Election Code. (D) The Participating Entity shall also be responsible for proofing and attesting to the accuracy of all ballot language and format information programmed by the County. This includes any information programmed for use with the audio or tactile button features of the equipment. The Participating Entity will also monitor and review all logic and accuracy testing and mandatory recounts held prior to and after the election. The Participating Entity will complete its duties within timeframes as prescribed by the County. If the Participating Entity finds any discrepancies or concerns, it will immediately report them to the Election Officer and work with the Election Officer to resolve any issues so that final approval can be reached. (E) Christine Martinez, Round Rock City Secretary, will assist the County whenever possible when the conduct of the election requires assistance from Participating Entity departments and staff. Cliff Borofsky, Williamson County Elections Administrator, will serve as Regular Early Voting Clerk for the Participating Entity to receive requests for applications for early voting ballots, and forward these applications to the Joint Early Voting Clerk. Christine Martinez, Round Rock City Secretary, will serve as the Custodian of Records for the Participating Entity to complete those tasks in the Election Code that the Election Officer will not perform. 3 IV. ELECTION WORKERS AND POLLING PLACES (A) The County shall provide a list for presentation to the governing body of the Participating Entity containing a list of places, times, and dates of early voting suitable for consideration and adoption by the governing body in accordance with Texas Election Code Chapter 85. The Election Officer will designate and confirm all election day polling place locations. (B) The Election Officer will assume the responsibility for recruiting election personnel; however, if by the fifth (5th) day before the election the Election Officer reports vacancies in positions for election judges, alternate judges, election day clerks, early voting ballot board, receiving substation clerks, or any other key election personnel, the Participating Entity shall provide emergency personnel in these positions. (C) The Election Officer shall notify each of the election judges and alternates of their appointment and the eligibility requirements that pertain to them and to the selection of election day clerks. Included in this notification will be the number of clerks that each precinct should have in addition to the election judge and alternate judge. The election judges and/or the alternates are responsible for recruiting and supervising their clerks. (D) All election workers must agree to attend training sessions as determined by the Election Officer. Costs for these training sessions and compensation for attendees will be included as part of the election service costs. (E) During any election and any subsequent runoff election that involve entities in addition to the Participating Entity, the Election Officer will work with all parties to find a plan that can be agreed upon regarding polling places. If agreement cannot be reached, the Election Officer will resolve the differences. In all.cases,. emergency polling place changes will be made by the Election Officer. V. BUDGET INFORMATION (A) Not later than February 15 of each year, the Participating Entity shall provide to the Election Officer a forecast of Participating Entity elections for the next two fiscal years. (B) Not later than March 15 of each year, Travis County shall provide to the Participating Entity, based on the confirmed forecasts of each jurisdiction for which the County performs election services or with which the County participates in joint elections, a projection of the Participating Entity's election costs per year for each of the next two fiscal years. The forecast shall include: (1) a forecast of elections for all jurisdictions for which the County performs election services or with which the County participates in joint elections. (2) the precincts to be used for each election and each jurisdiction described herein in V(B)(1). 4 (3) for each election, the Participating Entity's projected share of election costs determined by this contract and relative to other jurisdictions for which the County performs election services or with which the County participates in joint elections. In the case of a joint election, the Participating Entity's projected share of election costs will be determined on a pro rata basis using the following method: The number of precincts each participating entity has involved in an election will be added together. The proportional percentage of that sum for each entity will be calculated. The proportional cost for each participating entity for election services will be calculated by multiplying the proportional percentage of each participating entity by the total cost of the election. The product of these numbers is the pro rata cost for each entity. For Participating Entities with fewer than 50 precincts, a not-to-exceed flat rate will be determined in accordance with Exhibit A, which is attached hereto and incorporated herein for all purposes. After each election, the formula that produces the lowest figure will be used for final billing purposes. '(4) If a flat fee is not used in calculating the Participating Entity's projected share of election costs relative to other jurisdictions for which the County performs election services in addition to the projected itemized election costs, Travis County shall include a fee to be charged by the Election Officer equal to ten percent (10%) of the Participating Entity's projected share of the total costs of each election, as described in Section VI, excluding the costs of voting equipment, which are described in Section VII. VI. PAYMENTS FOR ELECTION SERVICES (A) Payments for the use of voting equipment are addressed separately in Section VII of this agreement. (B) Not later than the fiftieth (50th)day before an election, the Participating Entity will make a payment equal to seventy-five percent (75%) of the total of the Participating Entity's projected share of election costs according to the most recent calculation presented by the Election Officer under Section V(B)(3) of this agreement. In case of cancellation of an election by the Participating Entity, the Participating Entity will notify the Election Officer on or before 11:59 p.m. on the sixtieth (60th)day before the election whether it expects to be able to cancel its election, and on or before 11:59 p.m. on the fifty-third (53rd) day before the election if that election will or will not be cancelled. Notwithstanding the provisions in IX(B), the County and the Participating Entity agree that notice under VI(B) can be provided via e-mail to the County at election@co.travis.tx.us with a cc to gail.fisher@co.travis.tx.us. Email notification shall be sent by Christine Martinez, Round Rock City Secretary. No deposit will be due if the Election Officer receives final written notice on or before 11:59 p.m. of the fifty-third (53rd) day before the election that an election will be cancelled. Within thirty (30) days after receipt of an election cost schedule or bill setting forth the Election Officer's actual contract expenses and charges incurred in the conduct of the election, the Participating Entity shall pay the Election Officer the remaining twenty-five percent (25%) of the 5 expenses and charges, or the balance due where the cost schedule or bill has been revised. Payment shall be made from current revenues available to the Participating Entity. If there is a runoff election, the Participating Entity will make a payment equal to seventy- five percent (75%) of the projected costs for the runoff election immediately after receiving that projected cost from the Election Officer. The projected share of election costs will include the ten percent(10%) fee for election services as discussed in VI(C). (C) The Election Officer will charge a fee for election services, as described in Section VI, equal to ten percent (10%) of the total costs of each election excluding the costs of voting equipment. Costs for use of voting equipment are described in Section VII. In the event of a joint election, this ten percent (10%) fee will be divided on a pro rata basis among all entities involved in the election in the same method as described in Section V(13)(3). If the flat fee calculated in accordance with Exhibit A is found to be the lesser of the two amounts, the ten percent(10%) fee is included in that flat fee charge. (D) For elections that do not have a runoff election, the County will send the Participating Entity a final invoice of election expenses not later than the forty-fifth(45th) day after an election. For elections that do have a runoff, the County may send the Participating Entity a final invoice of election expenses not later than the forty-fifth(45th)day after the runoff election. This invoice may include expenses for both elections. The total amount due according to these invoices shall be offset by any payments made for "upfront" costs or made in accordance with VI(B) of this agreement. The County shall prepare the invoice to include: (1) an itemized list of each election expense incurred; (2) the corresponding budget estimate for each item listed; (3) for each final invoice item, the Participating Entity's pro rata share of costs will be expressed as a percentage of the total cost of the item for all jurisdictions for which Travis County performs election services; (4) an itemization of any adjustments or credits to the first post-election invoice; and (5) the total payment due from the Participating Entity for any portion of the Participating Entity's costs not included in the Participating Entity's payment under Subsection V(B)or not included as payment for an"upfront"cost; (E) The Participating Entity shall promptly review an election invoice and supporting documentation when received from the County. The Participating Entity may audit, during normal business hours, relevant County election or accounting records upon reasonable notice to the County. The Participating Entity shall pay the entire final invoice or the undisputed portion of the final invoice not later than the thirtieth (30th) day after receiving the invoice. 6 VII. PAYMENTS FOR USE OF VOTING EQUIPMENT (A) The Election Officer shall conduct elections using the voting system that the Election Officer administers in the conduct of County elections, as approved by the Secretary of State in accordance with the Texas Election Code, unless otherwise agreed upon by both parties. (B) The Participating Entity shall make payments to Travis County as consideration for the use of the County's DRE equipment. The Participating Entity shall pay $5 for each unit of electronic voting system equipment installed at a polling place, and $5 for each unit of other electronic equipment used to conduct the election or provide election services. (C) If the Participating Entity holds an election on a date when the County is holding a general or special November election, the Participating Entity is not charged any cost for equipment usage. However, if a runoff election is necessary after a November election, the Participating Entity will pay for equipment usage. (D) In the event of a joint election not occurring in November, the cost for equipment usage per entity is determined by taking the cost per election and multiplying it by the proportional cost factor for that entity. If the flat fee is charged in accordance with Exhibit A, the participating Entity will pay the lesser of the two amounts. (E) If the Participating Entity holds an election on a date other than as listed in Section I(A), the Participating Entity will pay $5 for each unit of electronic voting system equipment installed at a polling place, and $5 for each unit of other electronic equipment used to conduct the election or provide election services. (F) Payment by the Participating Entity to the County for DRE equipment is due thirty (30) days after receipt of billing as part of the final payment for election costs as discussed in Section VI(D). (G) If the County acquires additional equipment, different voting equipment, or upgrades to existing equipment during the term of this agreement, the charge for the use of the equipment may be renegotiated. VIII. COMMUNICATIONS (A) The Participating Entity and the Election Officer shall each designate a member of their staff to serve as the primary contact for the respective offices under this agreement, and shall provide the name and contact information for that individual to each entity. (B) Throughout the term of this agreement, the Participating Entity and the County will engage in ongoing communications issues related to Participating Entity elections, the use of the County's voting equipment, and the delivery of services under this agreement and, when necessary, the County Clerk, elections division staff members, and other 7 election workers shall meet with the Participating Entity to discuss and resolve any problems which might arise under this agreement. (C) The Election Officer shall be the main point of media contact for election information related to election administration. The Participating Entity shall designate a contact to be the main point of contact for matters related to the content of the Participating Entity's ballot or candidates. IX. MISCELLANEOUS PROVISIONS (A) Amendment/Modification Except as otherwise provided, this agreement may not be amended, modified, or changed in any respect whatsoever, except by a further agreement in writing duly executed by the parties hereto. No official, representative, agent, or employee of the County has any authority to modify this agreement except pursuant to such expressed authorization as may be granted by the Commissioners Court of Travis County, Texas. No official, representative, agent, or employee of the Participating Entity has any authority to modify this agreement except pursuant to such expressed authorization as may be granted by the governing body of the Participating Entity. Dana DeBeauvoir, Travis County Clerk, may propose necessary amendments or modifications to this agreement in writing in order to conduct a joint election smoothly and efficiently, except that any such proposals must be approved by the Commissioners Court of the County and the governing body of the Participating Entity. (B) Notice Any notice to be given hereunder by any party to the other shall be in writing and may be effected by personal delivery, by certified mail, or by common carrier. Notice to a party shall be addressed as follows: CITY OF ROUND ROCK, TEXAS Christine R. Martinez, City Secretary 221 E. Main Street Round Rock, Texas 78664 TRAVIS COUNTY Honorable Dana DeBeauvoir, Travis County Clerk 1000 Guadalupe Street, Room 222 Austin, Texas 78701 cc: Honorable David Escamilla, Travis County Attorney 314 West 11th Street, Suite 300 Austin, Texas 78701 8 Notice by hand-delivery is deemed effective immediately; notice by certified mail is deemed effective three (3) days after deposit with a U.S. Post Office or in a U.S. Mail Box; and notice by a common carrier is deemed effective upon receipt. Each party may change the address for notice to it by giving notice of such change in accordance with the provisions of this section. (C) Force Mai eure In the event that the performance by the County of any of its obligations or undertakings hereunder shall be interrupted or delayed by any occurrence not occasioned by its own conduct, whether such occurrence be an act of God or the result of war, riot, civil commotion, sovereign conduct, or the act or condition of any persons not a party or in privity thereof, then it shall be excused from such performance for such period of time as is reasonably necessary after such occurrence to remedy the effects thereof. (D) Venue and Choice of Law The Participating Entity agrees that venue for any dispute arising under this agreement will lie in the appropriate courts of Austin, Travis County, Texas. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas and the United States of America. (E) Entire Agreement This Agreement contains the entire agreement of the parties relating to the rights herein granted and the obligations herein assumed and supersedes all prior agreements, including prior election services contracts and prior agreements to conduct joint elections. Any prior agreements, promises, negotiations, or representations not expressly contained in this agreement are of no force and effect. Any oral representations or modifications concerning this agreement shall be of no force or effect, excepting a subsequent modification in writing as provided herein. (F) Severability If any provision of this agreement is found to be invalid, illegal or unenforceable by a court of competent jurisdiction, such invalidity, illegality or unenforceability shall not affect the remaining provisions of this agreement; and, parties to this agreement shall perform their obligations under this agreement in accordance with the intent of the parties to this agreement as expressed in the terms and provisions of this agreement. (G) Breach In the event that the Participating Entity or the County breaches any of its obligations under this agreement, the non-breaching party shall be entitled to pursue any and all rights and remedies allowed by law. 9 (H) Pavments from Current Revenues Payments made by the Participating Entity in meeting its obligations under this agreement shall be made from current revenue funds available to the governing body of the Participating Entity. Payments made by the County in meeting its obligations under this agreement shall be made from current revenue funds available to the County. Any payments due under this agreement by the Participating Entity shall be subject to the Participating Entity first adopting a budget containing funds appropriated for the payment of such amounts. (I) Other Instruments The County and the Participating Entity agree that they will execute other and further instruments or any documents as may become necessary or convenient to effectuate and carry out the purposes of this agreement. (J) Third Party Beneficiaries Except as otherwise provided herein, nothing in this agreement, expressed or implied, is intended to confer upon any person, other than the parties hereto, any benefits, rights or remedies under or by reason of this agreement. (K) Other Joint Election Agreements The County and the Participating Entity expressly understand and acknowledge that each may enter into other joint election agreements with other jurisdictions, to be held on election day and at common polling places covered by this agreement. (L) Mediation When mediation is acceptable to both parties in resolving a dispute arising under this agreement, the parties agree to use a mutually agreed-upon mediator, or a person appointed by a court of competent jurisdiction, for mediation as described in Section 154.023 of the Texas Civil Practice and Remedies Code. Unless both parties are satisfied with the result of the mediation, the mediation will not constitute a final and binding resolution of the dispute. All communications within the scope of the mediation shall remain confidential as described in Section 154.023 of the Texas Civil Practice and Remedies Code unless both parties agree, in writing, to waive the confidentiality. Notwithstanding the foregoing, the parties intend to fully comply with the Texas Open Meetings Act and the Texas Public Information Act whenever applicable. The term "confidential"as used in this Agreement has the same meanings as defined and construed under the Texas Public Information Act and the Texas Open Meetings Act. 10 (M) Addresses for Payments Payments made to the County or the Participating Entity under this agreement shall be addressed to following respective addresses: Elections Division Travis County Clerk P.O. Box 149325 Austin, Texas 78751 City of Round Rock City Secretary 221 E. Main Street Round Rock, TX 78664 (1) This agreement is effective upon execution by both parties and expires on July 1, 2011 and renews automatically for two (2) additional three-year terms unless one party notifies the other party in writing that it wants to terminate the agreement. (0) Either party may terminate this agreement for any reason upon providing sixty(60) days' written notice to the other party. (P) The individuals below have been authorized to sign this Agreement. IN TESTIMONY WHEREOF, the parti,% hereto have executed this Agreement in multiple copies, each of equal dignity, on this a8-may of MorGlo\ CITY OF ROUND ROCK BY: iR�ell��� Mayor TRAVIS COUNTY BY: T . Samuel T. Biscoe County Judge BY: *aDeauvoir County Clerk 11 Exhibit A Pricing Schedule for Entities with fewer than 50 precincts Note: Each Participating Entity is responsible for its Department of Justice submission, publishing its notice of election, submitting ballot language in English and Spanish, proofing of its ballot, and canvassing its returns(Travis County supplies the results of the canvass). Election Day polling location flat rate: $1675 each location ($1500 for operating costs+$150 for 10% admin fee+$25 for equipment usage fee) This rate is a not- to-exceed rate for each polling location. When determining polling locations, the goal is for all Participating Entities to agree on the polling locations for their common areas. In most cases the larger entities determine the sites and precinct combinations for polling locations. If a Participating Entity has precincts that are not shared with another entity, the Participating Entity may choose to combine locations. Each Election Day location has one judge, one alternate judge, and one or two clerks. If the location is shared with other jurisdictions, this cost is divided according to the number of jurisdictions at that location and the percentage of population for that jurisdiction at that location. Cost includes 10%admin fee and equipment usage fee. Election Day polling location proportional rate: Cost depends upon participation If a large number of entities participate in an election, and a proportional rate of the actual costs is the less expensive alternative for the Participating Entity, Travis County will charge the proportional cost instead of the flat rate cost. In other words, Travis County will charge the lesser of the two amounts. Additional Early Voting Options: Operation of an Early Voting location as part of the Travis County regular Mobile Voting program: Per day $275 All of the Participating Entity's voters within Travis County have access to all of the Travis County Early Voting sites in each election at no additional cost. If Travis County does not run a permanent or mobile site in a Participating Entity's area, the Participating Entity may request a mobile unit for one to five days. This would include Travis County staff setting up and breaking down the equipment daily, trained staffing of the location, and Travis County law enforcement securing the equipment in the Travis County Elections Division's safe at 55001 Airport on a daily basis. 12