HomeMy Public PortalAbout09-7435 American Traffic Solutions Sponsored by: City Manager
Resolution No. 0 9-74 3 5
A RESOLUTION OF THE CITY COMMISSION OF THE
CITY OF OPA-LOCKA, FLORIDA PIGGYBACKING THE
AGREEMENT BETWEEN AMERICAN TRAFFIC
SOLUTIONS, INC., AND THE CITY OF HIALEAH,
FLORIDA,HERETO ATTACHED AS EXHIBIT"A", FOR A
TRAFFIC SAFETY CAMERA PROGRAM AND FURTHER
AUTHORIZING THE CITY MANAGER TO ENTER INTO AN
AGREEMENT WITH AMERICAN TRAFFIC SOLUTIONS,
INC., IN A CONTRACT FORM ACCEPTABLE TO THE
CITY ATTORNEY
WHEREAS, the City Commission of the City of Opa-locka passed Ordinance 08-07 which
amended the City's Code of Ordinances to allow for recorded image monitoring and establish
procedures for red light infractions to be heard by the City's Special Magistrate; and
WHEREAS, City of Opa-locka desires to piggyback the Request for Proposals and
subsequent Agreement between American Traffic Solutions,Inc.,a Kansas corporation,and the City
of Hialeah, Florida; and
WHEREAS, The City of Hialeah advertised Request for Proposals No. 2007/08-0230-36-
007 for a traffic safety camera program and received four responses, with American Traffic
Solutions, Inc. being the most responsive and responsible bidder; and
WHEREAS, American Traffic Solutions, Inc. has exclusive knowledge, possession and
ownership of certain equipment, licenses, applications and Notice of Violation processes related to
digital photo red light enforcement systems provided by vendor pursuant to the RFP and anticipated
Agreement; and
WHEREAS, it is in the best interest of the health, safety and welfare of the City of Opa-
Locka, Florida to establish a red light safety program.
Resolution No. 0 9—7 4 3 5
NOW,THEREFORE,BE IT DULY RESOLVED BY THE CITY COMMISSION OF
THE CITY OF OPA-LOCKA, FLORIDA:
Section 1. The recitals to the preamble herein are incorporated by reference.
Section 2. The City Commission hereby piggybacks the Request for Proposals and
subsequent Agreement between American Traffic Solutions,Inc.and the City of Hialeah,Florida for
the Traffic Safety Camera Program and further authorizes the City Manager to execute an Agreement
with American Traffic Solutions, Inc. in a contract form acceptable to the City Attorney.
Section 3. This resolution shall take effect immediately upon adoption.
PASSED AND ADOPTED this 25 day of FFRRIIaRY , 2009.
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0 . "! . • LLEY
AYOR
Attest: Approved as to form and legal su iciency:
Deb rah S. Irby Burna• to Norri eeks
City Ci Attorney
Moved by: JOHNSON
Seconded by: TAYLOR
Commission Vote: 4-0
Commissioner Tydus: YES
Commissioner Holmes: OUT OF ROOM
Commissioner Johnson: YES
Vice-Mayor Taylor: YES
Mayor Kelley: YES
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Memorandum
TO: Mayor Joseph Kelley
Vice-Mayor Myra L. Taylor
Commissioner Dorothy Johnson
Commissioner Timo y Holmes
Commissioner Ro: ydus
FROM: Bryan K. Finni I rim City Manager
1/
DATE: February 25,E 19
RE: RFP Piggyback for Red Light Program
As per your instructions, I have reviewed and compared contracts between American Traffic
Solutions, LLC (ATS) and the Cities of Hialeah and Aventura. Attached is a brief comparison
within each section pointing out specific differences between the two respective contracts. It should
be noted that Aventura's contract was signed before Hialeah's (February 8, 2008 and December 30,
2008 respectively), which explains many of the differences. Overall, Hialeah has a more favorable
agreement with ATS and it is recommended that the City of Opa-Locka piggyback on their RFP and
negotiated agreement. Key advantages include:
• An increased warning period from 90 to 120 days.
• A shorter term of three years with consecutive two year extensions compared to five years
with a three year out clause and two additional extensions of five year periods.
• No convenience fee charged for processing electronic payments for violators. Aventura
allows ATS to charge $4.00 per payment.
• An increase in potential revenue with Tier 2 Payments ranging from 61-120 paid per month.
Aventura's agreement sets Tier 2 payments with a range of 61-149 paid per month.
• Hialeah's agreement contains a most favorable customer clause.
• Hialeah's agreement also states that billings shall be averaged across all operational cameras
for each billing month.
It should also be noted that Aventura has a section within their agreement that the vendor shall
provide adequate security prior to the close of the warning period, which would be desired by Opa-
Locka. As in both agreements, there will be no financial cost to the City. There will be an internal
cost of having a police Officer review each infraction (average of 30 seconds each).
Attached to this memorandum is an Agreement Comparison and copy of Hialeah's RFP.
END OF MEMORANDUM
AGREEMENT BETWEEN THE . ITY OF HIALEAH AND AMERICAN T: • FIC
SOLUTIONS FOR TRA IC SAF., . • • ' '. • s " • ►�
n
This Agreement(this"Agreement") is made as of this 30 day of Oeceiaef 2008 by •
and between American Traffic Solutions, Inc., a Kansas corporation with offices at.7681 East Gray
Road, Scottsdale, Arizona 85260 ("Vendor"), and the City of Hialeah, a Florida municipal
corporation organized and existing under and by virtue of the laws of the State of Florida, 501 Palm
Avenue,Hialeah,Florida 33010("City").
RECITALS
WFIEREAS, on July 15, 2008, the City, upon duly advertised Request for Proposals No.
2007/08-0230-36-007 for a traffic safety camera program, received four responses and thereupon
on August 27, 2008 the Selection Committee and the Mayor recommended American Traffic
Solutions, Inc. as the firm to be selected; and
WHEREAS, on September 9, 2008, the City Council selected American Traffic Solutions,
inc.pursuant to RFP 2007/08-0230-36-007; and
WHEREAS, Vendor has exclusive knowledge, possession and ownership of certain
equipment, licenses, applications, and Notice of Violation processes related to the digital photo red
light enforcement systems provided by Vendor pursuant to this Agreement; and
NOW TI-IEREFORE, in consideration of the mutual covenants contained herein, and for
other valuable consideration received, the receipt ancL sufficiency of which are hereby
acknowledged,the parties agree as follows:
AGREEMENT
1.0 Definitions. All definitions set forth in the Ordinance are incorporated herein. In addition,
the following words and phrases shall have the following meanings in this Agreement:
1.1. "Authorized Employee" means the Traffic Control Infraction Review Officer, whose duties
and qualifications are set forth in the City Ordinance.
1.2. "Authorized Infraction" means each Potential Infraction in the Infraction Data for which
authorization to issue a Notice of Violation in the form of an Electronic Signature is given
by the Authorized Employee by using the Vendor System.
1.3. "City Ordinance" means the City Ordinance regarding traffic safety enforcement,as may he
amended from time to time.
1.4. "Civil Fee" means the fee assessed for violations of the City Ordinance, as set forth in the
Ordinance.
1.5. "Confidential or Private Information" means, with respect to any Person, any information,
matter or thing of a secret,confidential or private nature,whether or not so labeled,which is
connected with such Person's business or methods of operation or concerning any of such
Person's suppliers, licensors, licensees, City's or others with whom such Person has a
business relationship, and which has current or potential value to such Person or the
unauthorized disclosure of which could be detrimental to such Person, including but not
limited to:
1.5.1. Matters of a business nature, including, but not limited to, information relating to
development plans, costs, finances, marketing plans, data, procedures, business
opportunities, marketing methods, plans and strategies, the costs of construction,
installation, materials or components, the prices such Person obtains or has
obtained from its clients or City's, or at which such Person sells or has sold its
services; and
1.5.2. Matters of a technical nature, including, but not limited to, product information,
trade secrets, know-how, formulae,innovations, inventions, devices, discoveries,
techniques, formats, processes, methods, specifications, designs, patterns,
schematics, data, access or security codes, compilations of information, test
results and research and development projects. For purposes of this Agreement,
the term "trade secrets" shall mean the broadest and most inclusive interpretation
of trade secrets.
1.5.3. Notwithstanding the foregoing, Confidential Information will not include
information that: (i) is a public record, and not otherwise exempt, pursuant to
Florida law, (ii) was generally available to the public or otherwise part of the
public domain at the time of its disclosure, (iii)became generally available to the
public or otherwise part of the public domain after its disclosure and other than
through any act or omission by any party hereto in breach of this Agreement, (iv)
was subsequently lawfully disclosed to the disclosing party by a person other
than a party hereto, (v) was required by a court of competent jurisdiction to be
described, or(vi)was required by applicable state law to be described.
1.6. "Designated Intersection" means the Intersections, as that term is defined in the City
Ordinance, set forth on Exhibit "A" attached hereto, and such additional Intersections, as
Vendor and the City shall mutually agree from time to time through the parties' Project
- Managers.
1.7. "Electronic Signature"means the method through which the Authorized Employee indicates
his or her approval of the issuance of a Notice of Violation in respect of a potential
Infraction using the Vendor System. -
1.8. "Enforcement Documentation" means the necessary and appropriate documentation related
to the enforcement of Red Zone Infractions, as defined in the City Ordinance, including but
not limited to warning letters, Notices of Violation (using the specifications of the hearing
officer also known as the code enforcement Special Master and the City) a numbering
sequence for use on all notices (in accordance with applicable state statutes and the City's
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Ordinance), instructions to accompany each issued Notice of Violation (including in such
instructions a description of basic enforcement procedures, payment options and
information regarding the viewing of images and data collected by the Vendor System),
chain of custody records, criteria regarding operational policies for processing Notices of
Violation (including with respect to coordinating with the applicable vehicle registry), and
technical support documentation for applicable hearing officers.
1.9. "Equipment" means any and all cameras, sensors, equipment, components, products,
software and other tangible and intangible property relating to the Vendor Photo Red Light
System(s), including, but not limited to, all camera systems, housings, sensor arrays, severs
and poles.
1.10. "Governmental Authority" means any domestic or foreign government, governmental
authority, court, tribunal, agency or other regulatory, administrative or judicial agency,
commission, council or organization, and any subdivision, branch or department of any of
the foregoing.
1.11. "Infraction" means any Infraction of the City's Ordinance.
1.12. "Infractions Data" means the images and other infractions data gathered by the Vendor
System at the Designated Intersection. -
1.13. "Installation Date of the TSCP" means the date on which Vendor completes the construction
and installation of at least one Intersection in accordance with the terms of this Agreement
so that such intersection is operational for the purposes of functioning with the TSCP.
1.14. "intellectual Property" means, with respect to any Person, any and all now known or
hereafter known tangible and intangible (a) rights associated with works of authorship
throughout the world, including but not limited to copyrights, moral rights and mask works,
(b) trademark and trade name rights and similar rights, (c) trade secrets rights, (d) patents,
designs, algorithms and other industrial property rights, (e) all other intellectual and
industrial property rights (of every kind and nature), whether arising by operation of law,
contract, license, or otherwise, and (f) all registrations, initial applications, renewals,
extensions, continuations, divisions or reissues hereof now or hereafter in force (including
any rights in any of the foregoing), of such Person, consistent with the definition of such
terms in Florida Statutes.
1.15. "Notice of Violation" shall mean the Notice of an Infraction, which is mailed or otherwise
delivered by Vendor to the alleged violator on the appropriate Enforcement Documentation
in respect of each Authorized Infraction pursuant to the requirements of the City Ordinance.
1.16. "Operational Period" means the period of time during the Term, commencing on the
Installation Date, during which the TSCP is functional in order to permit the identification
and the issuance of Notices of Violation for approved infractions using the Vendor System.
1.17. "Ordinance" shall mean City of Hialeah Ordinance regarding traffic safety enforcement, as
may be amended from time to time.
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1.18. "Person" means a natural individual, company, Governmental Authority, partnership, firm,
corporation,legal entity or other business association.
1.19. "Project Manager" means the project manager appointed by the City in accordance with this
Agreement, which shall be the Mayor, or his designee and shall be responsible, on behalf of
City, for overseeing the installation at the Designated Intersections and the implementation
of the TSCP, and which Mayor shall have the power and authority to make management
decisions relating to the City's obligations pursuant to this Agreement, including, but not
limited to, change order authorizations, subject to any limitations set forth in the City's
Charter or Ordinance or by the City Council.
1.20. "Potential Infraction" means, with respect to any motor vehicle passing through a
Designated Intersection,the data collected by the Vendor System with respect to such motor
vehicle, which data shall be processed by the Vendor System for the purposes of allowing
the Authorized Employee to review such data and determine whether a Red Zone Infraction
has occurred.
1.21. "Proprietary Property" means, with respect to any Person, any written or tangible property
owned or used by such Person in connection with such Person's business, whether or not
such property is copyrightable or also qualifies as Confidential Information, including
without limitation products, samples, equipment, files, lists, books, notebooks, records,
documents, memoranda, reports, patterns, schematics, compilations, designs, drawings,
data, test results, contracts, agreements, literature, correspondence, spread sheets, computer
programs and software, computer printouts, other written and graphic records and the like,
• whether originals, copies, duplicates or summaries thereof, affecting or relating to the
business of such Person, financial statements,budgets, projections and invoices.
1.22. "Vendor Marks" means all trademarks registered in the name of Vendor or any of its
affiliates, such other trademarks as are used by Vendor or any of its affiliates on or in
relation to TSCP at any time during the Term of this Agreement, service marks, trade
names, logos, brands and other marks owned by Vendor, and all modifications or
adaptations of any of the foregoing.
1.23. "Vendor Project Manager" means the project manager appointed by Vendor in accordance
with this Agreement, which project manager shall initially be named by the Vendor within
14 days of the execution of this Agreement or such person as Vendor shall designate by
providing written notice thereof to the City from time to time, who shall be responsible for
overseeing the construction and installation of the Designated Intersections and the
implementation the TSCP, and who shall have the power and authority to make
management decisions relating to Vendor's obligations pursuant to this Agreement,
including, but not limited to, change-order authorizations.
1.24. "Traffic Safety Camera Program" means, collectively, the TSCP provided by Vendor and
all of the other equipment, applications, back office processes and digital red light traffic
enforcement cameras, sensors, components, products, software and other tangible and
intangible property relating thereto.
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identification and enforcement of Infractions of the Red Zone Infractions is facilitated by
the use of certain equipment, applications and back office processes of Vendor, including,
but not limited to, cameras, flashes, central processing units, signal controller interfaces
and sensor arrays which, collectively, are capable of identifying infractions and recording
such Infraction data in the form of photographic images of motor vehicles.
1.26. "Photo Red Light Infraction Criteria" means the'standards and criteria by which Potential
Infractions will be evaluated by Authorized Employees of the City, which standards and
criteria shall include, but are not limited to, the definition of a Red Zone Infraction set
forth in the City Ordinance, relying upon the duration of time that a traffic light must
remain red prior to a Infraction being deemed to have occurred, and the location(s) in an
intersection which a motor vehicle must pass during a red light signal prior to being
deemed to have committed a Infraction, all of which shall be in compliance with all
applicable laws, rules and regulations of Governmental Authorities.
1.27. "Traffic Signal Controller Boxes" means the signal controller interface and detector,
including, but not limited, to the radar or video loop, as the case may be.
1.28. "Warning Period" means the period of 120 days after the Installation Date of the first
intersection approach, as set by the Ordinance.
2.0 Term. The term of this Agreement shall commence as of the date hereof and shall
continue for a period of three years after the date of the first paid notice from the first
installed System (the "Initial Term"). The City shall have the right, but not the obligation,
to extend the term of this Agreement for consecutive two—year periods following the
expiration of the Initial Term (a "Renewal Term" and collectively with the Initial Term, the
"Term"). The City may exercise the right to extend the term of this Agreement for a
Renewal Term by providing written notice to Vendor not less 60 days prior to the last day
of the Initial Term or Renewal Term.
3.0 Services. Vendor shall provide the TSCP to the City, in each case in accordance with the
terms and provisions of the Ordinance.
3.1. Installation. With respect to the construction and installation of the Designated
Intersection and the installation of the Vendor System at such Designated Intersection, the
City and Vendor shall have the respective rights and obligations set forth on Exhibit "B"
attached hereto.
3.2. Maintenance. With respect to the maintenance of the Vendor System at the Designated
Intersections, the City and Vendor shall have the respective rights and obligations set forth
on Exhibit"C "attached hereto.
3.3. Infraction Processing. During the Operational Period, Infractions shall be processed as set
forth on Exhibit "D", attached hereto.
3.4. Prosecution. The City shall prosecute Ordinance violations in respect thereof pursuant to the
terms,procedures and requirements of the City Ordinance.
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3.5. Other Rights and Obligations. During the Term, in addition to all of the other rights and
obligations set forth in this Agreement, Vendor and the City shall have the respective rights
and obligations set forth on Exhibit "E" attached hereto.
3.6. Change Orders. The City may from time to time request changes to the work required to be
performed or the addition of products or services to those required pursuant to the terms of
this Agreement by providing written notice thereof to Vendor, setting forth in reasonable
detail the proposed changes (a "Change Order Notice"). Upon Vendor's receipt of a Change
Order Notice, Vendor shall deliver a written statement describing the-effect, if any, the
proposed changes would have on the terms set forth in Exhibit " E " (the "Change Order
Proposal"), which Change Order Proposal shall include (i) a detailed breakdown of the
charge and schedule effects, (ii) a description of any resulting changes to the specifications
and obligations of the parties, (iii) a schedule for the delivery and other performance
obligations, and (iv) any other information relating to the proposed changes reasonably
requested by the City. Following the City's receipt of the Change Order Proposal, the parties
shall negotiate in good faith and agree to a plan and schedule for implementation of the
proposed changes, the time, manner and amount of payment or price increases or decreases,
as the case may be, and any other matters relating to the proposed changes. Any failure of
the parties to reach agreement with respect to any of the foregoing as a result of any
proposed changes shall not be deemed to be a breach of this Agreement, and any
disagreement shall be resolved in accordance with Section 16.0.
The City may from time to time consider it in its best interest to change, modify or extend
term, conditions or covenants of this Agreement or require changes in the scope of the
Services to be performed by Vendor, or request Vendor to perform additional services
regardless of and without invalidating the process that was used to procure the services
enumerated under this Agreement. Such Change Orders shall not invalidate, the
procurement process or this Agreement nor relieve or release Vendor or the Customer of
any of its obligations under this Agreement unless stated therein
4.0 License;Reservation of Rights.
4.1. License. Subject to the terms and conditions of this Agreement, Vendor hereby grants the
City, and the City hereby accepts from Vendor upon the terms and conditions herein
specified, a non-exclusive, non-transferable license during the Term of this Agreement to:
(a) solely within the City, access and use the Vendor System for the sole purpose of
reviewing Potential Infractions and authorizing the issuance of Notices of Infraction
pursuant to the terms of this Agreement, and to print copies of any content posted on the
Vendor System in connection therewith, (b) disclose to the public (including outside of the
City) that Vendor is providing services to the City in connection with TSCP pursuant to the
teens of this Agreement, and (c) use and display the Vendor Marks on or in marketing,
public awareness or education, or other publications or materials relating to the TSCP, so
long as any and all such publications or materials are approved in advance by Vendor.
4.2. Reservation of Rights. The City hereby acknowledges and agrees that: (a)Vendor is the sole
and exclusive owner of the Vendor System, the Vendor Marks, all Intellectual Property -
arising from or relating to the Vendor System, and any and all related Equipment provided
6
under this Agreement, (b) the City neither has nor makes any claim to any right, title or
interest in any of the foregoing, except as specifically granted or authorized under this
Agreement, and (c) by reason of the exercise of any such rights or interests of City pursuant
to this Agreement, the City shall gain no additional right,title or interest therein.
4.3. Restricted Use, The City hereby covenants and agrees that it shall not (a) make any
modifications to the Vendor System, including, but not limited to, any Equipment, (b) alter,
remove or tamper with any Vendor Marks, (c) use any of the Vendor Marks in any way
which might prejudice their distinctiveness, validity or the goodwill of Vendor therein, (d)
use any trademarks or other marks other than the Vendor Marks in connection with the
City's use of the Vendor System pursuant to the terms of this Agreement without first
obtaining the prior consent of Vendor, or (e) disassemble, de-compile or otherwise perform
any type of reverse engineering to the Vendor System, the Vendor System, including, but
not limited to, any Equipment, or to any, Intellectual Property or Proprietary Property of
Vendor,or cause any other Person to do any of the foregoing.
4.4. Protection of Rights. Vendor shall have the right to take whatever action it deems necessary
or desirable to remedy or prevent the infringement of any Intellectual Property of Vendor,
including, without limitation, the filing of applications to register as trademarks in any
jurisdiction any of the Vendor Marks, the filing of patent application for any of the
Intellectual Property of Vendor, and making any other applications or filings with
appropriate Governmental Authorities. The City shall not take any action to remedy or
prevent such protective activities, and shall not in its own name make any registrations or
filings with respect to any of the Vendor Marks or the Intellectual Property of Vendor
without the prior written consent of Vendor.
4.5. Infringement. The City shall use its reasonable best efforts to give Vendor prompt notice of
any activities or threatened activities of any Person of which it becomes aware that infringes
or violates the Vendor Marks or any of Vendor's Intellectual Property or that constitute a
misappropriation of trade secrets or act of unfair competition that might dilute, damage or
destroy any of the Vendor Marks or any other Intellectual Property of Vendor. Vendor shall
have the exclusive right, but not the obligation, to take action to enforce such rights and to
make settlements with respect thereto.
4.6. Infringing Use. The City shall give Vendor prompt written notice of any action or claim
action or claim, whether threatened or pending, against the City alleging that the Vendor
Marks, or any other Intellectual Property of Vendor, infringes or violates any patent,
trademark, copyright, trade secret or other Intellectual Property of any other Person, and the
City shall render to Vendor such reasonable cooperation and assistance as is reasonably
requested by Vendor in the defense thereof; provided, that Vendor shall reimburse the City
for any reasonable costs, including, without limitation, attorneys fees and court costs, as
well as City staff costs, incurred in providing such cooperation and assistance. If such a
claim is made and Vendor determines in the exercise of its sole discretion, or a court or
administrative proceeding of competent jurisdiction determines, that an infringement may
exist, Vendor shall have the right, but not the obligation, to procure for the City the right to
keep using the allegedly infringing items, modify them to avoid the alleged infringement or
replace them with non-infringing items, all at no cost to the City. In addition, in such event,
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the City has the right, but not the obligation, to terminate this Agreement pursuant to
paragraph 6.1.
5.0 Representations and Warranties.
5.1. Vendor Representations and Warranties.
5.1.1. Authority.Vendor hereby warrants and represents that:
5.1.1.1. it has all right, power and authority to execute and deliver this
Agreement and perform its obligations hereunder; and,
5.1.1.2. to the extent legally required, Vendor has all ownership rights,
licenses, or other required authority to use the software and hardware
it installs to perform the services under this Agreement.
5.1.2. Professional Services. Vendor hereby warrants and represents that any and
all services provided by Vendor pursuant to this Agreement shall be
performed in a professional and workmanlike manner and, with respect to the
installation of the Vendor System, subject to applicable law, in compliance
with all specifications provided to Vendor by the City.
5.2. City Representations and Warranties.
5.2.1. Authority. The City hereby warrants and represents that it has all right,
power and authority to execute and deliver this Agreement and perform its
obligations hereunder; provided that Vendor acknowledges that the initial
program is premised on being consistent with the requirements and authority
of state law, applicable attorney general opinions, and the City's Ordinance,
and City cannot and does not warrant the outcome of any judicial or
legislative action that may be taken affecting these authorities subsequent to
the execution of this Agreement.
5.3. Professional Services. The City hereby warrants and represents that any and all services
provided by the City pursuant to this Agreement shall be performed in a professional and
workmanlike manner.
6.0 Termination.
6.1. Termination for Cause: Either party shall have the right to terminate this Agreement
immediately by written notice to the other if (i) state or federal statutes are amended, or
regulations or policies are adopted by agencies with jurisdiction, to prohibit or materially
change the operation of TSCP so as to make it reasonably impractical to operate the red
light enforcement program, including, without limitation, changes that would prohibit the
red light enforcement program, or which would impose restrictions on revenues and uses
that are contrary to the terms of this Agreement, (ii) any court having jurisdiction over City
rules,or declares, that the City's red light enforcement program is invalid or results from the
Vendor System of photo red light enforcement are inadmissible in evidence, or otherwise
8
renders a decision that makes it reasonably impractical to operate the red light enforcement
program, (iii) a determination by a court of competent jurisdiction or other applicable
dispute resolution forum that Vendor has infringed upon a third party's patent, trademark,
copyright, trade secret or other intellectual property, (iv) the other party commits any
material breach of any of the provisions of this Agreement, (v) Vendor's non-payment of
revenues to City as required by this Agreement. In the event of a termination due to this
Section, City shall be relieved of any further obligations to Vendor other.than as specified
herein. Either party shall have the right to remedy the cause for termination within 45
calendar days(or within such other time period as the City and Vendor shall mutually agree,
which agreement shall not be unreasonably withheld or delayed) after written notice from
the non-causing party setting forth in reasonable detail the events of the cause for
termination.
The rights to terminate this Agreement given in Section 6.1 shall be without prejudice to
any other right or remedy of either party in respect of the breach concerned (if any) or any
other breach of this Agreement.
6.2. Warning Period. The Ordinance provides for a Warning Period, during which time courtesy
notices of infractions, with no civil fees, are used. The parties hereto acknowledge that this
Warning Period will be used to verify the reliability of the program and the detection of
infractions, as well as to monitor anticipated changes in state law on the subject of camera
enforcement of red light infractions. The Warning Period shall commence on the date the
initial camera and the Infraction Processing procedures become operational, with the exact .
date to be confirmed in writing by the parties' Project Managers. At any time up to the
conclusion of the initial Warning Period, the City, through a motion adopted by the City
Council, may terminate the TSCP, for any or no cause. The City shall not be liable for any
costs or expenses incurred by Vendor during this Warning Period. If the City Council
determines to terminate the program pursuant to this paragraph, this Agreement shall he
deemed terminated and the parties shall proceed pursuant to Section 6.3 below. In addition
to the City's right to terminate during the Warning Period, for a period of 90 calendar days
after the expiration of the Warning Period, either party shall have the right to terminate the
Agreement.
6.3. Procedures Upon Termination. The termination of this Agreement shall not relieve either
party of any liability that accrued prior to such termination. Except as set .tort.h in this
Section 6.3,upon the termination of this Agreement, all of the provisions of this Agreement
shall terminate, and:
6.3.1. Vendor shall (i) immediately cease to provide services, including, but not limited to, work in
connection with the construction or installation activities and services in connection with the
TSCP, (ii)promptly deliver to the City any and all Proprietary Property of the City provided
to Vendor pursuant to this Agreement, (iii) promptly deliver to the City a final report to the
City regarding the collection of data and the issuance of Notices of Infraction in such format
and for such periods as the City may reasonably request, and which final report Vendor
shall update or supplement from time to time when and if additional data or information
becomes available, (iv) provide City all data pertaining to outstanding Civil Fee payments
due and owing to City and potential payments due to Vendor, (v) provide City with its
9
proposed schedule for the removal of the Vendor's equipment, at no cost to the City, from
the City and once such schedule is approved by City Vendor shall remove such pursuant to
the schedule; and (vi) provide such assistance as the City may reasonably request from time
to time in connection with prosecuting and enforcing Notices of Infraction issued prior to
the termination of this Agreement;
6.3.2. The City shall (i), except for pending enforcement cases, immediately cease using the
TSCP, accessing the Vendor System and using any other Intellectual Property of Vendor,
and (ii) promptly deliver to Vendor any and all Proprietary Property of Vendor provided to
the City pursuant to this Agreement, other than such equipment installed by Vendor along
the roadways for the enforcement program;and6.3.3. Unless the City and Vendor
have agreed to enter into a new agreement relating to the'I'SCP or have agreed to extend the
Term of this Agreement, Vendor shall remove any and all Equipment or other materials of
Vendor installed in connection with Vendor's performance of its obligations under this
Agreement, at no cost to City, including, but not limited to, housings, poles and camera
systems, and Vendor shall restore the Designated Intersections to substantially the same
condition such Designated Intersections were in immediately prior to this Agreement,
except for foundation removal, which shall be left approximately flush with grade and no
exposed rebar, steel or other hazards, at no cost to City pursuant to the schedule agreed upon
by the parties in section 6.3.1.
7.0 Fees to be Paid to Vendor and Payment Processing.
7.1. Vendor shall have the right to receive the compensation set forth on, and pursuant to,
Exhibit F attached hereto.
7.2. Vendor shall be responsible for processing payments of the Civil Fees. The Vendor
shall provide payment means through mail, telephone and on-line processes. Vendor
shall track all payments and handle all applied payments, u.napplied payments,
overpayments, refunds, adjustments, dismissals and reversals.
7.3. Vendor shall pay City all payments received during a calendar month, no later than the
7th day of the next following month.
7.4. Vendor shall invoice the City fbr all applicable fees according to the fee schedule
delineated on Exhibit "F". Along with the invoice, Vendor shall provide information to
the City, in a format acceptable to the City, supporting the invoice amounts forwarded
by Vendor to the City. In addition, City shall have access to the financial reporting
functions of Vendor's system upon City's request.
8.0 Survival. Notwithstanding the foregoing, the parties' obligations shall survive the
termination of the Agreement to the extent necessary to fulfill the parties' accrued monetary
obligations under this Agreement.
9.0 Confidentiality. During the term of this Agreement and for a period of 3 years thereafter,
neither party shall disclose to any third person, or use firr itself in any way for pecuniary
gain, any Confidential Information learned from the other party during the course of the
10
negotiations for this Agreement or during the Term of this Agreement, subject to the
obligations and requirements of Florida's public records laws and public meetings law.
Upon termination of this Agreement, each party shall return to the other all tangible
Confidential Information of such party. Each party shall retain in confidence and not
disclose to any third party any Confidential Information without the other party's express
written consent, except (a) to its employees who are reasonably required to have the
Confidential Information, (b) to its agents, representatives, attorneys and other professional
advisors that have a need to know such Confidential Information, provided that such parties
undertake in writing (or are otherwise bound by rules of professional conduct) to keep such
information strictly confidential, and (c) pursuant to, and to the extent of a request or order
by any Governmental Authority, including laws relating to public records.
10.0 indemni lication and Liability.
10.1. Indemnification - Negligence. The Vendor agrees to defend, indemnify and hold harmless
the City, its trustees, elected and appointed officers, agents, servants and employees, from
and against any and all claims, demands, or causes of action of whatsoever kind or nature,
and the resulting losses, costs, expenses, reasonable attorneys' fees, liabilities, damages,
orders,judgments, or decrees ("Losses"), sustained by the City or any third party arising out
of, or by reason of, or resulting from the Vendor's negligent acts, errors, or omissions,
except to the extent such Losses arise from the negligence of the City or City's employees,
officers or agents.
10.2. Indemnification - Infringements. The Vendor shall indemnify City for all loss, damage,
expense or liability including, without limitation; court costs and attorneys' fees that may
result by reason of any infringement or claim of infringement of any patent, trademark,
copyright, trade secret or other proprietary right relating to services furnished pursuant to
this Agreement. The Vendor will defend and/or settle at its own expense, with legal counsel
reasonably acceptable to the City, any action brought against the City to the extent that it is
based on a claim that products or services furnished to City by the Vendor pursuant to this
Agreement, or if any portion of the services or goods related to the performance of the
service becomes unusable as a result of any such infringement or claim. Any infringement
or claim that renders any portion of the services to he performed by this agreement to be
unusable, or materially affects the Vendor's Red Light System as functionally described
herein, shall be grounds for a default of this Agreement.
10.3. The parties recognize that various provisions of this Agreement, including but not
necessarily limited to this Section, provide for indemnification to be provided by the Vendor
and agree that in the event that the law is construed to require a specific consideration to he
given therefore, the parties therefore agree that the sum of$10.00, receipt of which is hereby
acknowledged, is the specific consideration for such indemnities, and the providing of such
indemnities is deemed to be part of the specifications with respect to the services to be
provided by Vendor. Furthermore, the parties understand and agree that the covenants and
representations relating to this indemnification provision shall survive the term of this
• Agreement and continue in full force and effect as to the Vendor's responsibility to
indemnify for events occurring during the term of this Agreement for a period of not less than
5 years after expiration or termination of the Agreement.
11
10.4. Legal Challenges. The parties recognize and acknowledge that the TSCP contemplated
herein may be subject to legal challenge and/or judicial review as a new or innovative
program. It is understood and acknowledged that various aspects of the program may he
challenged. In the event of a legal challenge to the Program,Vendor and City shall share the
cost of the defense on a pro-rata basis.
10.5. In the event that a court of competent jurisdiction or the State of Florida, including any of its
agencies, orders or requires the City to return any payments made for infractions of the City
Ordinance, Vendor shall, at no additional charge, assist City to perform all relevant portions
of any such order, decree, judgment, etc., required to be performed by the City including,
but not limited to, assisting the City to locate each violator so that any ordered
reimbursement may be made. •
10.6. Change in State Law. If State Uniform Traffic Laws are enacted to establish statewide
standards for Red Light Camera usage, sections 10.4 and 10.5 shall automatically become
void.
10.7. Notice of Claims. If the City or Vendor receives notice of any claim or circumstances which
may give rise to an indemnified loss under this Section 10, the receiving party shall give
written notice to the other party within 10 working days of receipt. The notice must include
the following:
(a) a description of the indemnification event in reasonable detail,
(b) the basis on which indemnification may be due, and
(c) the anticipated amount of the indemnified loss.
This notice does not estop or prevent the City from later asserting a different basis for
indemnification or a different amount of indemnified loss than that indicated in the initial
notice. If the City does not provide this notice within the 10 day period, it does not waive
any right to indemnification except to the extent that Vendor is directly prejudiced, suffers
loss, or incurs expense because of the delay.
11.0 independent Contractor. This Agreement does not create an employee/employer relationship
between the parties. It is the intent of the parties that the Vendor is an independent
contractor under this Agreement and not the City's employee for all purposes, including, but
not limited to, the application of the Fair Labor Standards Act minimum wage and overtime
payments, Federal insurance Contribution Act, the Social Security Act, the Federal
Unemployment Tax Act, the provisions of the Internal Revenue Code, the State Workers
Compensation Act, and the State unemployment insurance law. The Vendor shall retain sole
and absolute discretion in the judgment of the manner and means of carrying out Vendor's
activities and responsibilities hereunder provided, further that administrative procedures
applicable to services rendered under this Agreement shall be those of Vendor, which
policies of Vendor shall not conflict with City, or United States policies, rules or regulations
relating to the use of Vendor's funds provided for herein. The Vendor agrees that it is a
separate and independent enterprise from the City, that it has full opportunity to find other
•
12
business, that it has made its own investment in its business, and that it will utilize a high
level of skill necessary to perform the work. This Agreement shall not he construed as
creating any joint employment relationship between the Vendor and the City and the City
will not be liable for any obligation incurred by Vendor, including, but not limited to,
unpaid minimum wages and/or overtime premiums.
12.0 Assignments; Amendments. This Agreement, or any interest herein, shall not be assigned,
transferred or otherwise encumbered, under any circumstances, by either party, including,
without limitation, purchases of controlling interest in Vendor or merger, without the prior
written consent of the other party.
It is further agreed that no modification, amendment or alteration in the terms or conditions
contained herein shall be effective unless contained in a written document executed with the
same formality and of equal dignity herewith.
13.0 No Contingent Fees. Vendor warrants that it has not employed or retained any company or
person, other than a bona fide employee working solely for the Vendor to solicit or secure
this Agreement, and that it has not paid or agreed to pay any person, company, corporation,
individual or firm, other than a bona fide employee working solely for Vendor any fee,
commission, percentage, gift, or other consideration contingent upon or resulting from the
award or making of this Agreement. For the breach or Infraction of this provision, the City
shall have the right to terminate the Agreement without liability at its discretion, to deduct
from the contract price, or otherwise recover the full amount of such fee, commission,
percentage, gift or consideration.
. 14.0 Notices. Whenever any party desires to give notice unto any other party, it must be given by
written notice, sent by certified United States mail, with return receipt requested, addressed
to the party for whom it is intended, at the places last specified, and the places for giving of
notice shall remain such until they shall have been changed by written notice in compliance
with the provisions of this section. For the present, the VENDOR and the CITY designate the
following as the respective places for giving of notice:
City: Mayor Julio Robaina
City of Hialeah
501 Palm Avenue,4th Floor
Hialeah, Florida 33010
Tele: (305) 883-5800
Fax: (305) 883-5992
Copies To: William M. Grodnick, City Attorney
City of Hialeah Law Department
501 Palm Avenue,4th Floor
Hialeah, Florida 33010
Tele: (305) 883-5854
Fax: (305) 883-5896
13
Chief Mark N. Overton
City of Hialeah Police Department
5555 East 8 Avenue
Hialeah, Florida 33013
Tele: (305) 953-5300
Fax: (305) 953-5330
Vendor: American Traffic Solutions,inc.
7681 E Gray Road
Scottsdale, AZ 85260
Attention: General Counsel
Tele: (480) 596-4704
Fax: (480) 596-4501
15.0 Audit Rights. Each of parties hereto shall have the right to audit the books and records of
the other party hereto (the "Audited Party") solely for the purpose of verifying the
payments, if any, payable pursuant to this Agreement. Any such audit shall be conducted
upon not less than 48 hours prior notice to the Audited Party, at mutually convenient times
and during the Audited Party's normal business hours. Except as otherwise provided in this
Agreement, the cost of any such audit shall he borne by the non-Audited Party. In the event
any such audit establishes any underpayment of any payment payable by the Audited Party
to the non-Audited Party pursuant to this Agreement, the Audited Party shall promptly pay
the amount of the shortfall, and in the event that any such audit establishes that the Audited
Party has underpaid any payment by more than ten percent (10%) of the amount actually
owing, the cost of such audit shall be borne by the Audited Party. In the event any such
audit establishes any overpayment by the Audited Party of any payment made pursuant to
this Agreement, non-Audited Party shall promptly refund to the Audited Party the amount
of the excess.
16.0 Dispute Resolution. Upon the occurrence of any dispute or disagreement between the parties
hereto arising out of or in connection with any term or provision of this Agreement, the
subject matter hereof, or the interpretation or enforcement hereof(the "Dispute"), the parties
shall engage in informal, good faith discussions and attempt to resolve the Dispute. The
designated officers shall meet as often as the parties shall deem to be reasonably necessary.
Such officers will discuss the Dispute. If the parties are unable to resolve the Dispute in
accordance with this Section 16.0, and in the event that either of the parties concludes in
good faith that amicable resolution through continued negotiation with respect to the
Dispute is not reasonably likely, then the parties may mutually agree to submit to binding or
nonbinding arbitration or mediation.
17.0 Binding Authority. Each person signing this Agreement on behalf of either party
individually warrants that he or she has full legal power to execute this Agreement on behalf
of the party for whom he or she is signing, and to bind and obligate such party with respect to
all provisions contained in this Agreement.
18.0 Headings. Headings herein are for the convenience of reference only and shall not be
considered on any interpretation of this Agreement..
14
19.0 Exhibits. Each Exhibit referred to in this Agreement forms an essential part of this
Agreement. The exhibits shall be treated as part of this Agreement and are incorporated
herein by reference.
20.0 Waiver. Failure of either party to insist upon strict performance of any covenant or
condition of this Agreement, or to execute any right herein contained, shall not be construed
as a waiver or relinquishment for the future of any such covenant, condition or right, but the
same shall remain in full force and effect.
2I.0 Legal Representation. It is acknowledged that each party to this Agreement had the
opportunity to be represented by counsel in the preparation of this Agreement and,
accordingly, the rule that a contract shall be interpreted strictly against the party preparing
same shall not.apply herein due to the joint contributions of both parties.
22.0 Severability. if any provision of this Agreement or application thereof to any person or
situation shall to any extent, be held invalid or unenforceable, the remainder of this
Agreement, and the application of such provisions to persons or situations other than those
as to which it shall have been held invalid or unenforceable shall not be affected thereby,
and shall continue in full force and effect, and be enforced to the fullest extent permitted by
law, except that this provision shall not be deemed to deprive any party of any legal remedy,
including termination.
23.0 Insurance.
23.1. Throughout the term of this Agreement,the Vendor agrees to maintain in force at their own
expense insurance as follows:
23.1.1. Comprehensive General Liability insurance to cover liability for bodily injury and
property damage. Exposures to be covered are premises, operations,
products\completed operations, and contractual liability. Coverage must be written
on an occurrence basis, with the following limits of liability.
A.Bodily Injury/Property Damage
1. Each Occurrence $1,000,000.00
2. Annual Aggregate $1,000,000.00
B. Personal Injury
1. Annual Aggregate $1,000,000.00
23.1.2.Worker's Compensation Insurance shall be maintained during the life of this contract
to comply with Florida statutory limits for all employees. The following limits must
be maintained:
A. Worker's Compensation Statutory
B. Employer's Liability $100,000.00 each accident
15
$500,000.00 Disease-policy limit
$100,000.00 Disease-employee
If Vendor claims to be exempt from this requirement, Vendor shall provide City
proof of such exemption along with a written request for City to exempt Vendor,
written on Vendor letterhead.
23.1.3. Comprehensive Auto Liability - coverage shall include owned, hired and non-owned
vehicles
A. Bodily Injury and Property Damage combined single limit
1. Each Occurrence $1,000,000.00
2. Annual Aggregate • $1,000,000.00
23.1.4. Professional Liability- $1,000,000.00.
23.1.5. Vendor shall name the City as an additional insured on each of the policies required herein,
with the exception of the Vendor's Worker's Compensation policy and Professional
Liability, and shall hold the City harmless on account of claims for damages to persons,
property or premises arising out of the services provided hereunder, except to the extent
such damages are incurred as a result of the City's negligence or willful misconduct.
23.1.6. Certificates of Insurance, reflecting evidence of the required insurance, shall be filed with
the City's Risk Manager prior to the commencement of this Agreement. These Certificates
shall contain a provision that coverage's afforded under these policies will not be canceled
or impaired until at least 45 days prior written notice has been given to the City. Policies
shall be issued by companies authorized to do business under the laws of the State of
Florida.. Financial Ratings must not be less than "A-VI." Insurance shall be in force until the
obligations required to be fulfilled under the terms of the Contract are satisfied. In the event
the insurance certificate provided indicates that the insurance shall terminate and lapse
during the period of this contract, than in that event, the Vendor shall furnish, at least 30
days prior to the expiration of the date of such insurance, a renewed certificate of insurance
as proof that equal and like coverage for the balance of the period of the contract and
extension thereunder is in effect.
23.1.7. Any insurance required of Vendor pursuant to this Agreement must also be required by any
sub-contractor of Vendor in the same limits and with all requirements as provided herein,
including naming the City as an additional insured, if any work is subcontracted unless such
subcontractor is covered by the protection afforded by the Vendor and provided proof of
such coverage is provided to City. The Vendor and any sub-contractor of Vendor shall
maintain such policies during the term of this Agreement.
24.0 Governing Law. This Agreement shall be governed by the laws of the State of Florida with
venue lying in Miami-Dade County, Florida.
16
25.0 Extent of Agreement. This Agreement represents the entire and integrated agreement
between the City and the Vendor and supersedes all prior negotiations, representations or
agreements, either written or oral.
26.0 Waiver of Jury Trial. In the event of any litigation between the parties which in any way
arises out of this Agreement, the parties hereby agree to waive any right to trial by jury.
27.0 RFP. Vendor agrees to comply with any provisions of the RIP which are not in conflict
with this Agreement, and to comply with and honor any written representations,
clarifications and exceptions made by Vendor during the REP process.
28.0 Compliance with Law. Vendor shall comply with all applicable laws in the performance of
its services hereunder, and represents that it possesses all required licenses and certifications
to perform the services.
(THE REST OF THIS PAGE IS INTENTIONALLY LEFT BLANK)
17
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed
by the respective officials thereunto duly authorized,this the day and year first above written.
City of I-Iialeah,Florida
501 Palm Avenue
Hialeah, Florida 33010-0040
Attest: Authori signature on behalf of
;i1Y: eah
Rafael E. Lado ayo, J io R 'tut )ate
City Clerk
(SEAL)
Approved as to legal sufficiency and as to form:
JP
/�/ .
•William M. faro.. ick
City Attorney
American Traffic Solutions, Inc.
7681 E. Gray Road
Scottsdale, Arizona 85260
Authorized signature of the firm
Attes •
e.....-10
z 41/WorAil--- ri#7/4
Adam E. Tuton Date
G eneral Couns! EVP/COO
S-\Ris\Assignrnenis\A-2004-026-Agreement cou&Traffic Safcty.Camcras\final signed agrcement.docx
18
EXHIBIT "A"
Designated intersection
The parties shall mutually agree on the designated intersections. Installation of any approach is
subject to engineering and video analysis results.
Additional approaches will he selected based on collision history, input and recommendations
from the City's Police Department, and an engineering feasibility assessment. Vendor shall make
best efforts to apply for a permit within 60 days of the approval of this Agreement by the City
Council.
Vendor will provide the City with video evaluation of candidate sites using the Axsis ViMS
system to assist the City's Police Department in its recommendations.
The program may be implemented at additional intersections after the conclusion of the Warning
Period. The intersections will be designated by the Police Department, which designation will be
based upon Police Department staff review and an engineering analysis.
I9
EXHIBIT "B"
Construction and installation Obligations
Timeframe for Installation: Traffic Safety Camera Program
Vendor will have each specified intersection installed and activated in phases in accordance with
an implementation plan to be mutually agreed to by Vendor Traffic Systems and the City.
Vendor will use reasonable commercial efforts to install the system in accordance with the
schedule set forth in the implementation plan that will be formalized upon project
commencement.
Vendor will use reasonable commercial efforts to install and activate all specified intersection
within 45 days subsequent to receipt of all permits required by section 1.4 of this Exhibit B.
1. Vendor Obligations. Vendor shall do or cause to be done each of the following (in each case,
unless otherwise stated below, at Vendor's sole expense):
1.1. Appoint the Vendor Project Manager and a project implementation team
consisting of between one and four people to assist the Vendor Project Manager;
1-.2. Request current "as-built" electronic engineering drawings for the Designated
Intersections (the "Drawings")from the County traffic engineer;
1.3. Develop and submit to the City fbr approval construction and installation
specifications in reasonable detail for the Designated Intersection, including but
not limited to specifications for all radar sensors, pavement loops, electrical
connections and traffic controller connections, as required;
1.4. Seek approval from the relevant Governmental Authorities having authority or
jurisdiction over the construction and installation specifications for the Designated
Intersection (collectively, the "Approvals"), which will include compliance with
City permit applications;
1.5. Seek rights from private property owners, as necessary for the placement of
System Equipment at designated intersections where Governmental Authorities
have jurisdiction over the designated intersection and adjacent rights of right of
way, and such governmental Entity denies authority to Vendor for the installation of
its equipment;
1.6. Finalize the acquisition of the Approvals;
1.7. Submit to the City a public awareness strategy for the City's consideration and
approval, which strategy shall include media and educational materials for the
City's approval or amendment according to the Vendor proposal (the "Awareness
Strategy");
20
1.8. Develop the Red Light Infraction Criteria in consultation with the City;
1.9. Develop the Enforcement Documentation for approval by the City, consistent with
the requirements of the City Ordinance;
1.10. Complete the installation and testing of all necessary Equipment, including
hardware and software, at the Designated Intersections (under the supervision of the
City);
1.11. Cause an electrical sub-contractor to complete all reasonably necessary electrical
work at the Designated intersections, including but not limited to the installation of
all related Equipment and other detection sensors, poles, cabling,
telecommunications equipment and wiring, which work shall be performed in
• compliance with all applicable local, state and federal laws and regulations;
1.12. Install and test the functionality of the Designated Intersections with the Vendor
System and establish fully operational Infraction processing capability with the
Vendor System;
1.13. hnplemeni the use of the Vendor System at each of the Designated intersections;
1.14. Deliver the Materials to the City;
1.15. Issue Notices of Infraction, and if the civil penalty is unpaid or the alleged violator
requests a hearing, issue Notices of Hearing for Authorized infractions pursuant to
City Ordinance;
1.16. Obtain access to the records data of the Department of Motor Vehicles in Vendor's
capacity as needed for the program;
1.17. Vendor shall provide training for personnel of the City, including, but not limited to,
the persons who City shall appoint as Authorized Employees and other persons
involved in the administration of the `1'SCP, regarding the operation of the Vendor
System and the TSCP. This shall include training with respect to the Vendor System
and its operations, strategies for presenting Infractions Data in court and judicial
proceedings and a review of the Enforcement Documentation;
1.18. Interact with court and judicial personnel, including the City's hearing officer to
address issues regarding the implementation of the Vendor System, the development
of a subpoena processing timeline that will permit the offering of Infractions Data in
hearings and judicial proceedings, and coordination between Vendor, the City and
the City's Hearing officer;
I.19. Provide reasonable public relations resources and media materials to the City in the
event that the City elects to conduct a public launch of the TSCP; and
1.20. Notice of Violation processing and Notice of Violation re-issuance,as well as notice
of hearing.
21
2. CITY OBLIGATIONS. The City shall do or cause to be done each of the following
(in each case,unless otherwise stated below,at City's sole expense):
2.1.1. Appoint the Project Manager;
2.1.2. Assist Vendor in obtaining the Drawings from the relevant Governmental
Authorities;
2.1.3. Notify Vendor of any specific requirements relating to the construction and
installation of any Intersection or the implementation of the TSCP;
2.1.4. Assist Vendor in seeking the Approvals;
2.1.5. Provide reasonable access to the City's properties and facilities in order to
permit Vendor to install and test the functionality of the Designated
Intersections and the TSCP;
•
2.1.6. Provide reasonable access to the personnel of the City and reasonable
information about the specific operational requirements of such personnel
for the purposes of performing training;
2.1.7. Seek approval or amendment of Awareness Strategy.and provide written
notice to Vendor with respect to the quantity of media and program materials
(the "Materials") that the City will require in order to implement the
Awareness Strategy during the period commencing on the date on which
Vendor begins the installation of any of the Designated Intersection and
ending 6 months after the Installation Date;
2.1.8. Assist Vendor in developing the Red Light Infraction Criteria; and,
2.1.9. Seek approval of the Enforcement Documentation.
2.1.10. The City shall, on a form (attached as Exhibit G) provided by Vendor,
provide verification to the State Department of Motor Vehicles, National
Law Enforcement Telecommunications System, or appropriate authority
indicating that Vendor is acting as an Agent of the Customer for the
purposes of accessing vehicle ownership data pursuant to the list of
permissible uses delineated in the Drivers Privacy Protection Act 18 U.S.C.
§ 2721, Section (b)(1.) and as may otherwise be provided or required by any
provision of applicable state law.
2.1.11. If feasible, and only after all necessary approvals have been obtained from
utilities and other governmental entities with jurisdiction, City shall allow
Vendor to access power from existing power sources at no cost to City and
shall allow or facilitate access to traffic signal phase connections to a pull
box, pole base, or controller cabinet nearest to each Camera System within
the City's jurisdiction.
22
2.1.12. The Police Department shall process each potential violation in accordance
with State Laws and/or City Ordinances within 7 business days of its
appearance in the Police Review Queue, using Axsis to determine which
violations will be issued as Citations or Notices of Violation or as soon as
reasonably practical in the event of technical difficulties, power outages, or
other circumstances beyond the City's control, or with the consent or
approval of Vendor for extension.
2.1.13.City shall provide access to the Internet for the purpose of processing
violations and adjudications.
2.1.14. Vendor shall, at no additional cost to the City, provide Police Department
/ Adjudication workstation computer monitors for citation review and
approval which should provide a resolution of 1280 x 1024,which shall be
returned to Vendor in the event the Agreement is terminated.
2.1.15.For optimal data throughput, Police Department I Adjudication
workstations should be connected to a high-speed Internet connection with
bandwidth of T-1 or greater. Vendor will coordinate directly with the
City's Information Technology (IT) Department on installation and
implementation of the computerized aspects of the program.
2.1.16. Police Department shall provide signatures of all authorized police users
who will review events and approve citations on forms provided by
Vendor.
2.1.17. in the event that remote access to the ATS Axsis VPS System is blocked
by City's network security infrastructure, the City's IT Department and the
counterparts at ATS shall coordinate to facilitate appropriate
communications access while maintaining required security measures.
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EXHIBIT "C"
Maintenance
1. All repair and maintenance of Traffic Safety Camera Program systems and related equipment
will be the sole responsibility of Vendor, including but not limited to maintaining the casings of
the cameras included in the Vendor System and all other Equipment in reasonably clean and
graffiti-free condition_
2. Vendor shall not open the Traffic Signal Controller Boxes without a representative of Miami-
Dade County Traffic Engineering present.
3. The provision of all necessary communication, broadband and telephone services to the
Designated Intersections will be the sole responsibility of the Vendor.
4. The provision of all necessary electrical services to the Designated Intersections will be the
sole responsibility of the Vendor.
5. In the event that images of a quality suitable for the Authorized Employee to identify
infractions cannot be reasonably obtained without the use of flash units, Vendor shall provide
and install such flash units.
6. The Vendor Project Manager(or a reasonable alternate) shall be available to the City's Project
Manager each day.
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EXHIBIT "D"
Infraction Processing
1. All Infractions Data shall be stored on the Vendor System.
2. The Vendor System shall process Infractions Data gathered from the Designated Intersection
into a format capable of review by the Authorized Employee via the Vendor System.
3. The Vendor shall make the initial determination that the image meets the requirements of the
Ordinance and this Agreement, and is otherwise sufficient to enable the City to meets its
burden of demonstrating a violation of the Ordinance. If the Vendor determines that the
standards are not met, the image shall not be processed any further.
4. The Vendor System shall be accessible by the Authorized Employee through a virtual private
network in encrypted format by use of a confidential password on any computer equipped with
a high-speed Internet connection and a web browser.
5. Vendor shall provide storage capabilities for the City to store infractions identified for
prosecution for a period of time of not less than 4 years after final disposition of a case.
6. Vendor shall provide the Authorized Employee with access to the Vendor System for the
purposes of reviewing the pre-processed infractions Data within 7 days of the gathering of the
Infraction Data from the applicable Designated .Intersections.
7. The City shall cause the Authorized Employee to review the Infractions Data and to determine
whether a Notice of Violation shall be issued with respect to each Potential Infraction captured
within such Infraction Data, and transmit each such determination to Vendor using the software
or other applications or procedures provided by Vendor on the Vendor System for such
purpose. VENDOR HEREBY ACKNOWLEDGES AND AGREES THAT THE DECISION
TO ISSUE A NOTICE OF VIOLATION SHALL BE THE SOLE, UNILATERAL AND
EXCLUSIVE DECISION OF THE AUTHORIZED EMPLOYEE AND SHALL BE MADE IN
SUCH AUTHORIZED EMPLOYEE'S SOLE DISCRETION (A "NOTICE OF VIOLATION
DECISION"), AND IN NO EVENT SHALL VENDOR HAVE THE ABILITY OR
AUTI-IORIZATiON TO MAKE A NOTICE OF VIOLATION DECISION.
8. With respect to each Authorized Infraction, Vendor shall print and mail a Notice of Violation
within 7 days after Vendor's receipt of such authorization from the City's Authorized
Employee; provided, however, during the Warning Period, warning Infraction notices shall be
issued in respect of all Authorized infractions.
9. Vendor shall provide a toll-free telephone number, at its sole expense, for the purposes of
answering citizen inquiries.
10. Vendor shall permit the Authorized Employee to generate monthly reports using the Vendor
Standard Report System.
11. Upon Vendor's receipt of a. written request from the City and in addition to the Standard
Reports, Vendor shall provide, without cost to the City, reports regarding the processing and
25
issuance of Notices of Infraction, the maintenance and downtime records of the Designated
Intersections and the functionality of the Vendor System with respect thereto to the City in
such format and for such periods as the City may reasonably request, without cost to the City.
1 2. Upon Vendor's receipt of a written request from the City at least 14 calendar days in advance
of a hearing, Vendor shall provide expert witnesses for use by the City in prosecuting
infractions, before the City's hearing officer, at no cost to the City.
13. Vendor shall provide such training to City personnel as shall be reasonably necessary in order
to allow such personnel to act as expert witnesses on behalf of the City with respect to the iZed
• Light Enforcement Program. However, if a specific case requires testimony on the technical
aspects of the equipment, upon City's request Vendor shall provide the City with an expert in
the hearing in that case at no cost to the City.
14. During the Warning Period, Vendor shall implement a public relations program, in
coordination with the City and upon City's approval, at no cost to the City in accordance with
the elements included in Vendor's proposal.
15.Notice of Violation Form. Vendor shall prepare and provide to City a Notice of Violation
Form that provides, at a minimum, the following information:
a. name and address of the owner of the vehicle involved in the infraction;
b. the registration number of the vehicle involved in the infraction;
c. a citation to the City's Ordinance violated;
d. the location of the intersection where the infraction occurred;
e. the date and time of the infraction;
f. a copy of the recorded image of the infraction;
g. the amount of fcc and charges imposed and the date by which the fee and charges
must be paid or appealed;
h. instructions on all methods of payment for the fee;
i. a clear statement of the time limit to file an appeal and describing the procedure for
appealing the infraction;
j. a statement that the City's traffic infraction officer has reviewed and observed the
recorded images evidencing the violation of the Ordinance and has found reasonable
and probable grounds to believe that an infraction has occurred and can identify the
license tag number of the violating vehicle; and.
26
k. a conspicuous statement, printed on larger font than the remaining statements on the
Notice of Violation, and bolded, stating that if the owner of the vehicle fails to pay the
civil fee within the time allotted, or fails to timely appeal the infraction, the owner shall
be deemed to have waived his or her right to contest the infraction, and has admitted to
the infraction reflected in the Notice of Violation.
16.Vendor agrees that the City shall have the right to review and approve the form Notice of
Violation prior to its use, and that in the event City determines additional information should be
included in the Notice of Violation, Vendor shall modify the Notice of Violation form, at its
sole expense, to comply with those requirements.
17. For any city using ATS lockbox or e-payment services,Vendor will establish a demand deposit
account bearing the title, "American. Traffic Solutions, Inc. as agent for Customer" at U.S.
Bank. All funds collected on behalf of the Customer will be deposited in this account and
transferred by wire the first business day of each week to the Customer's primary deposit bank.
The Customer will identify the account to receive funds wired from U.S. Bank. If desired,
Customer will sign a W-9 and blocked account agreement, to be completed by the Customer, to
ensure the Customer's financial interest in said U.S. Bank account is preserved.
27
EXHIBIT "F"
Additional Rights and Obligations
Vendor and the City shall respectively have the additional rights and obligations set forth
below:
1. Vendor shall assist the City in public information and education efforts, including but not
limited to the development of artwork for utility bill inserts, press releases and schedules
for any public launch of the TSCP, as offered in the Vendor's proposal.
2. Vendor shall be solely responsible for installing such Signage as required by City
Ordinance. The Vendor shall be solely responsible for the fabrication of any signage,
notices, or other postings required pursuant to any law, rule, or regulation of any
Governm.enta.l Authority ("Signage"), including, but not limited to, the City and County
Ordinances, State Statutes, and Florida Department of Transportation (FDOT) Regulations
and shall assist in determining the placement of such Signagc. Vendor shall he responsible
for obtaining all necessary approvals from Governmental Authorities.
3. The Vendor Project Manager and the Project Manager shall meet on a weekly basis during
the period commencing as of the date of execution hereof and ending on the termination of -
the Warning Period Date, and on a monthly basis for the remainder of the Term, at such
times and places as the Vendor Project Manager and the City Project Manager shall
mutually agree.
4. The City shall not access the Vendor System or use the TSCP Program in any manner other
than prescribed by law and which restricts or inhibits any other Person from using the
Vendor System or the Vendor Photo Enforcement Program with respect to any Intersection
constructed or maintained by Vendor for such Person, or which could damage, disable,
impair or overburden the Vendor System or the Vendor Photo Enforcement Program, and
the City shall not attempt to gain unauthorized access to (i) any account of any other
Person, (ii) any computer systems or networks connected to the Vendor System, or(iii)any
materials or information not intentionally made available by Vendor to the City by means
of hacking, password mining or any other method whatsoever, nor shall the City cause any
other Person to do any of the foregoing.
5. The City shall maintain the confidentiality of any username,password or other process or
device for accessing the Vendor System or using the'l'SCP.
6. The Vendor and the City shall advise each other in writing with respect to any applicable
rules or regulations governing the conduct of the other on or with respect to the property of
such other party, including but not limited to rules and regulations relating to the
safeguarding of confidential or proprietary information, and when so advised, the Vendor
and the City shall reasonably follow any and all such rules and regulations.
7. The City shall promptly reimburse Vendor for the cost of repairing or replacing any portion
of the Vendor System, or any property or equipment related thereto, damaged solely and
28
EXHIBIT "F"
Compensation&Pricing
Per Paid Fee
There will be no charge to City during the Warning Period, and Vendor shall not receive any
compensation for any notices sent during the Warning Period.
At the conclusion of the Warning Period, and once Notices of Infractions are issued, Vendor shall he
compensated as follows:
Per Camera Paid Notices
1st Tier Fee: First 2 paid notices per day in a month, per camera(i.e. first 60 paid per month)
$47.50
2nd Tier Fee:Next 2 paid notices per day in a month,per camera(i.e. 61-120 paid per month)
$27.50
3rd Tier Fee All other paid notices in a month, per camera(i.e. 121+paid per month)
$17.50
If the average number of paid notices is 2 or fewer per day in a month, per camera, the Vendor shall
receive all revenues collected for the billing period.
Most Favored Customer The Vendor represents that the fees, charges, and/or costs paid to Vendor under
this Agreement do not exceed the current fees, charges or costs paid to Vendor by other Florida cities,
counties and/or municipalities for the same (or substantially similar) services described in this
Agreement. In the event the stated fees, charges and/or costs charged to the City under this Agreement
are determined to be higher, then said fees, charges and/or costs shall be reduced accordingly. In such an
event, the Vendor agrees to offer the same (or lower) fees, charges and/or costs to the City as those
charged to other similarly sized Florida cities, counties and/or municipalities for the same(or substantially
similar)scope of services described in this Agreement
Billings will be averaged across all operational cameras for each billing period.
30
EXHIBIT "G"
DMV Subscriber Agreement
„AO* tVfkrtkai.ft
DMV SerGas Subscriber Agreement
ATS requires that your agency certify the intended use of the information made:available to your
agency through our services and that such uses are in compliance with the Federal Driver's
Privacy Protection Act The XXXI and other applicable laws governing dissemination of public
records. Based on your agency's intended use of such information. ATS will either grant
permission to use the service or deny the application Please specify any of the following
permissible uses under§2721 that apply:
X (1). For use by any government agency, including any court of law enforcement
agency, in carrying out its functions, or any private person or entity acting on
X behalf of a Federal, State or local agency in carrying out its functions.
(4) For use in connection with any civil, criminal. administrative, or aMitral
proceeding in any Federal. State„ or local court or agency or before any self-
regulatory body; including the service of process, investigation in anticipation of
litigation, and the execution or enforcement of judgments and orders; or pursuant
to an order of a Federal. State,or local court,
E] (7) For use in providing notice to the owners of towed or:impounded vehicles.
0 (10) For use in connection with the operation of private toll transportation facilities.
in consideration of .A.TS making its Services available. Subscriber agrees to (i) utilize ATS
provided data only for the purpose(s)specified above: and iii)request such information only for
the Subscriber's exclusive use in the ordinary course of Subscriber's business and not for
resale.
I certify that I am authorized to execute the Subscriber Use Certification on behalf of the
Subscriber listed below. On behalf of such Subscriber, I certify that the above statements are
true and correct. Subscriber acknowledges and agrees that ATS may from time to time audit
Subscribers use of ATS's SerVices to ensure that such use is consistent with the intended uses
set forth above and with all applicable laws.
This agreement shall be for AkOfetlye.ar(s) commencing on the date below and shall
automatically renew annually. This agreement may be terminated within 30 days notice of the
anniversary date, annually.
- --
SUBSCRIBER INFORMATION
2 .•t
Subscriber Agency/Name c*SK kVictra Vivin L9‘. •
•,,,f1LETSAgency ORI_____,,,,_,,,,,,,______,„ _,,,„ .„
; liable of Authorized' epresentadye _,. ,.,--f....""77; A
a 0 - .-Ica--;,----&------------ 1
Maiing Address' _,, 12A TilAkry‘..
city i co, State. , , ,iF Code •"" .31:,
„. , , , , . . 1
......_..„„,,,_.,:,..
Telephone . , , i . i , • • i . .
!....-rtn)L...1.,L05L13MP), 9--...,,!..0(207)F01”32L -n'at mtrartqut!,,4!.,,,. 41141.- o•je v
4, )
Signature of Authorized Representatvw .
. 1 ;1,/:'
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Date&gned ' 12 - 30 - 2002 1 1
Page 31 of 10-Ordinance No. 2007-35