HomeMy WebLinkAboutC2007-044 - 1/30/2007 - ApprovedAGREEMENT BETWEEN THE CITY OF CORPUS CHRISTI
AND REDFLEX TRAFFIC SYSTEMS, INC. FOR
PHOTO RED LIGHT ENFORCEMENT PROGR~A~ 1M~
This Agreement (this "A~reement") is made as of thisay of (inse~ mont , 2007 by
and between Redflex Traffic Systems, Inc. with offices at 15020 N. 74th Street Scottsdale,
Arizona 85260 ("Redflex"), and,The City of Corpus Christi, a municipal corporation,
with offices at 1201 Leopard Street, Corpus Christi, Texas 78401 (the "Customer").
RECITALS
WHEREAS, Redflex has exclusive knowledge, possession and ownership of certain
equipment, licenses, applications, and processes related to digital photo red light
enforcement systems; and
-- WHEREAS, the Customer desires to engage the services of Redflex to provide certain
equipment, processes and back office services so that sworn police officers of the
Customer are able to monitor, identify and enforce red light running violations as
prescribed under Ordinance No. ~a'1 13 L ;and
WHEREAS, it is a mutual objective of both Redflex and the Customer to reduce the
incidence of vehicle collisions at the traffic intersections and city streets that will be
monitored pursuant to the terms of this Agreement.
NOW THEREFORE, in consideration of the mutual covenants contained herein, and for
other valuable consideration received, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
AGREEMENT
1. DEFINITIONS. In this Agreement, the words and phrases below shall have the
following meanings:
l.l. "Authorized Officer" means the Police Project Manager or such other
individual(s) as the Customer shall designate to review Potential Violations and
to authorize the Issuance of Notice of Violations in respect thereto, and in any
event, a sworn police officer.
1.2. "Authorized Violation" means each Potential Violation in the Violation Data for
which authorization to issue a Notice of Violation in the form of an Electronic
Signature is given by the Authorized Officer by using the Redflex System.
1.3. "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,
customers 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:
2007-044
01/30/07
M2007-035
Red#lex Traffic Systems
1~DEXEp
1.3.1. 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 customers, or at
which such Person sells or has sold its services; and
1.3.2. 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.
1.3.3. Notwithstanding the foregoing, Confidential Information will not include
information that: (i) was generally available to the public or otherwise part
of the public domain at the time of its disclosure, (ii) 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, (iii) was subsequently lawfully disclosed to the
disclosing party by a person other than a party hereto, (iv) was required by a
court of competent jurisdiction to be described, (v) was required by
applicable state law to be described; or (vi) was required to be disclosed
pursuant to ruling of Texas Office of the Attorney General in response to
request received by the Customer for disclosure of information under Texas
Public Information Act, Chapter 552 Texas Government Code.
1.4. "Designated Intersection Approaches" means the Intersection Approaches set
forth on Exhibit A attached hereto, and such additional Intersection Approaches
as Redflex and the Customer shall mutually agree upon from time to time.
1.5. "Electronic Si ng ature" means the method through which the Authorized Officer
indicates his or her approval of the issuance of a Notice of Violation in respect of
a Potential Violation using the Redflex System.
1.6. "Enforcement Documentation" means the necessary and appropriate
documentation related to the Photo Red Light Enforcement Program, including
but not limited to warning letters, violation notices (using City specifications), a
numbering sequence for use on all Notice of Violation, instructions to
accompany each issued Notice of Violation (including in such instructions a
description of basic adjudication procedures, payment options and information
regarding the viewing of images and data collected by the Redflex System),
chain of custody records, criteria regarding operational policies for processing
Notices of Violation (including with respect to coordinating with the Department
of Motor Vehicles), and technical support documentation for adjudication
personnel .
1.7. "Equipment" means any and all cameras, sensors, equipment, components,
products, software and other tangible and intangible property relating to the
Redflex Photo Red Light System(s), including but not limited to all camera
systems, housings, radar units, severs and poles.
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1.8. "`Fine" means a monetary sum in the form of a civil penalty assessed for each
Notice of Violation.
1.9. "Governmental Authority" means any Federal, State or Local governmental
authority, court, tribunal, agency or other regulatory, administrative or judicial
agency, commission or organization, and any subdivision, branch or department
of any of the foregoing.
1.10. "Installation Date of the Photo Red Li hg t Program" means the date on
which Redflex completes the construction and installation of at least one (1)
Intersection Approach in accordance with the terms of this Agreement so that
such Intersection Approach is operational for the purposes of functioning with
the Red light Photo Enforcement Program.
1.11. "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 throughout the universe and however
designated), 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.
1.12. "Intersection Approach" means a conduit of travel with up to four (4)
contiguous lanes from the curb (e.g., northbound, southbound, eastbound or
westbound) on which at least one (1) system has been installed by Redflex for
the purposes of facilitating Red Light Photo Enforcement by the Customer.
1.13. "Notice of Violation" means the written notice of a Violation, which is
mailed or otherwise delivered by Redflex to the violator on the appropriate
Enforcement Documentation in respect of each Authorized Violation.
1.14. "Operational Period" means the period of time during the Term,
commencing on the Installation Date, during which the Photo Red Light
Enforcement Program is functional in order to permit the identification and
prosecution of Violations at the Designated Intersection Approaches by a sworn
police officer of the Customer and the issuance of Notices of Violation for such
approved Violations using the Redflex System.
1.15. "Person" means a natural individual, company, Governmental Authority,
partnership, firm, corporation, legal entity or other business association.
1.16. "Police Project Manager" means the project manager appointed by the
Customer in accordance with this Agreement, which shall be a sworn police
officer and shall be responsible for overseeing the installation of the Intersection
Approaches and the implementation of the Red Light Photo Enforcement
Program, and which manager shall have the power and authority to make
management decisions relating to the Customer's obligations pursuant to this
Agreement, including but not limited to change order authorizations, subject to
any limitations set forth in the Customer's charter or other organizational
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documents of the Customer or by the City Council or other governing body of
the Customer.
1.17. "Potential Violation" means, with respect to any motor vehicle passing
through a Designated City Street and/or Intersection Approach, the data collected
by the Redflex System with respect to such motor vehicle, which data shall be
processed by the Redflex System for the purposes of allowing the Authorized
Officer to review such data and determine whether a Red Light Violation has
occurred.
1.18. "Proprietar.~pertX" 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 print outs, 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.
1.19. "Redflex Marks" means all trademarks registered in the name of Redflex
or any of its affiliates, such other trademarks as are used by Redflex or any of its
affiliates on or in relation to Photo Red Light Enforcement at any time during the
Term this Agreement, service marks, trade names, logos, brands and other marks
owned by Redflex, and all modifications or adaptations of any of the foregoing.
1.20. "Redflex Project Manager" means the project manager appointed by
Redflex in accordance with this Agreement, which project manager shall initially
be (insert name, or such person as Redflex shall designate by providing written
notice thereof to the Customer from time to time, who shall be responsible for
overseeing the construction and installation of the Designated Intersection
Approaches and the implementation of the Photo Red Light Enforcement
Program, and who shall have the power and authority to make management
decisions relating to Redflex's obligations pursuant to this Agreement, including
but not limited to change-order authorizations.
1.21. "Redflex Photo Red Li h~ystem" or "Redflex System" means,
collectively, the SmartCamTM System, the SmartOpsTM System, the Red Light
Photo Enforcement Program, 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.
1.22. "Photo Red Light Enforcement Program" means the process by which the
monitoring, identification and enforcement of Violations is facilitated by the use
of certain equipment, applications and back office processes of Redflex,
including but not limited to cameras, flashes, central processing units, signal
controller interfaces and detectors (whether loop, radar or video loop) which,
collectively, are capable of measuring Violations and recording such Violation
data in the form of photographic images of motor vehicles.
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1.23. "Photo Red Light Violation Criteria" means the standards and criteria by
which Potential Violations will be evaluated by sworn police officers of the
Customer, which standards and criteria shall include, but are not limited to, the
duration of time that a traffic light must remain red prior to a Violation 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 Violation, all of which shall be in compliance with all applicable
laws, rules and regulations of Governmental Authorities.
1.24. "SmartCamTM System" means the proprietary digital red light photo
enforcement system of Redflex relating to the Photo Red Light Enforcement
Program.
1.25. "SmartOpsTM S.. sue" means the proprietary back-office processes of
Redflex relating to the Photo Red Light Enforcement Program.
1.26. "SmartSceneTM System" means the proprietary digital video camera unit,
hardware and software required for providing supplemental violation data.
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. "Violation" means any traffic violation contrary to any applicable rule,
regulation or law of any Governmental Authority, including but not limited to
operating a motor vehicle contrary to traffic signals, and operating a motor
vehicle without displaying a valid license plate or registration.
1.29. "Violations Data" means the images and other Violations data gathered by
the Redflex System at the Designated Intersection Approaches.
1.30. "Warning Period" means the period that only warning notices and not
Notices of Violations shall be sent during the 30 day period commencing with
the date of the installation of the first traffic-control signal monitoring device.
1.31. _"Total Revenue" means the aggregate revenue received from all Notice of
Violations.
1.32. "Total Invoiced" means the total amount invoiced by Redflex for the
Fixed Fee.
1.33. "Deficit Amount" means any excess of the Total Invoiced over the Total
Revenue.
2. TERM. The term of this Agreement shall commence as of the date hereof and shall
continue for a period of five (5) years after the Installation Date (the "Initial Term").
The Customer shall have the right, but not the obligation, to extend the term of this
Agreement for up to two (2) additional consecutive and automatic one (1) year
periods following the expiration of the Initial Term (each, a "Renewal Term" and
collectively with the Initial Term, the "Term"). The Customer may exercise the right
to extend the term of this Agreement for a Renewal Term by providing written notice
to Redflex not less than thirty (30) days prior to the last day of the Initial Term or the
Renewal Term, as the case may be.
3. SERVICES. Redflex shall provide the Photo Red Light Enforcement Program to the
Customer, in each case in accordance with the terms and provisions set forth in this
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Agreement. This Agreement consists not only of the terms and conditions set forth in
this document but also the City of Corpus Christi's Proposal Number BI-0013-07
RFP For Automated Traffic Signal Enforcement System incorporated herein in its
entirety (Exhibit "G"). and Redflex Traffic System Inc. Proposal to Provide Digital
Red Light Photo Enforcement Program RFP #BI-0013-07 incorporated herein in its
entirety (Exhibit "H") and In the event there exists a conflict in interpretation, the
documents shall control in the order listed above. These documents shall be referred
to collectively as "Contract Documents."
3.1. INSTALLATION. With respect to the construction and installation of (1) the
Designated Intersection Approaches and the installation of the Redflex System at
such Designated Intersection Approaches, the Customer and Redflex shall have
the respective rights and obligations set forth on Exhibit B attached hereto.
3.2. MAINTENANCE. With respect to the maintenance of the Redflex System at the
Designated Intersection Approaches the Customer and Redflex shall have the
respective rights and obligations set forth on Exhibit C attached hereto.
3.3. VIOLATION PROCESSING. During the Operational Period, Violations shall
be processed as follows:
3.3.1. All Violations Data shall be stored on the Redflex System;
3.3.2. The Redflex System shall process Violations Data gathered from the
Designated Intersection Approaches into a format capable of review by the
Authorized Officer via the Redflex System;
3.3.3. The Redflex System shall be accessible by the Authorized Officer through
a virtual private network in encrypted format by use of a confidential
password on any computer equipped with ahigh-speed Internet connection
and a web browser;
3.3.4. Redflex shall provide the Authorized Officer with access to the Redflex
System for the purposes of reviewing the pre-processed Violations Data
within 4 days for Texas records and an average of four (4) days for records
outside of Texas the gathering of the Violation Data from the applicable
Designated Intersection Approaches;
3.3.5. The Customer shall cause the Authorized Officer to review the Violations
Data and to determine whether a Notice of Violation shall be issued with
respect to each Potential Violation captured within such Violation Data, and
transmit each such determination in the form of an Electronic Signature to
Redflex using the software or other applications or procedures provided by
Redflex on the Redflex System for such purpose, and REDFLEX HEREBY
ACKNOWLEDGES AND AGREES THAT THE DECISION TO ISSUE A
NOTICE OF VIOLATION SHALL BE THE SOLE, UNILATERAL AND
EXCLUSIVE DECISION OF THE AUTHORIZED OFFICER AND
SHALL BE MADE IN SUCH AUTHORIZED OFFICER'S SOLE
DISCRETION (A "NOTICE OF VIOLATION DECISION"), AND IN NO
EVENT SHALL REDFLEX HAVE THE ABILITY OR
AUTHORIZATION TO MAKE A NOTICE OF VIOLATION DECISION;
3.3.6. With respect to each Authorized Violation, Redflex shall print and mail a
Notice of Violation within two (2) days after Redflex's receipt of such
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authorization; provided, however, during the Warning Period, warning
violation notices shall be issued in replace of all Authorized Violations;
3.3.7. Redflex shall provide atoll-free telephone number for the purposes of
answering citizen enquiries;
3.3.8. Redflex shall permit the Authorized Officer to generate reports as needed
using the Redflex Standard Report System;
3.3.9. Prior to the installation date of the Photo Red Light Enforcement Program,
Redflex shall open and maintain a local customer office for the walk-in
payment of fines and a local mailing address in Corpus Christi to accept
payment by mail;
3.3.10. Upon Redflex's receipt of a written request from the Customer and in
addition to the Standard Reports, Redflex shall provide, without cost to the
Customer, reports regarding the processing and issuance of Notices of
Violation, the maintenance and downtime records of the Designated
Intersection Approaches and the functionality of the Redflex System with
respect thereto to the Customer in such format and for such periods as the
Customer may reasonably request; provided, however, Redflex shall not be
obligated to provide in excess of six (6) such reports in any given twelve
(12) month period without cost to the Customer;
3.3.11. Upon the Customer's receipt of a written request from Redflex, the
Customer shall provide, without cost to Redflex, reports regarding the
prosecution of Notices of Violation and the collection of fines, fees and
other monies in respect thereof in such format and for such periods as
Redflex may reasonably request; provided, however, the Customer shall not
be obligated to provide in excess of six (6) such reports in any given twelve
(12) month period without cost to Redflex;
3.3.12. Upon Redflex's receipt of a written request from the Customer at least
fourteen (14) calendar days in advance of the adjudication proceeding, at no
cost to Customer, Redflex shall provide expert witnesses for use by the
Customer in prosecuting Violations; provided, however, the Customer shall
use reasonable best efforts to seek judicial notice in lieu of requiring Redflex
to provide such expert witnesses; and
3.3.13. During the three (3) month period following the Installation Date, Redflex
shall provide such training to police personnel as shall be reasonably
necessary in order to allow such personnel to act as expert witnesses on
behalf of the Customer with respect to the Red Light Enforcement Program.
3.4. PROSECUTION AND COLLECTION; COMPENSATION. The Customer shall
diligently prosecute Notices of Violation and the collection of all Fines in respect
thereof, and Redflex shall have the right to receive, and the Customer shall be
obligated to pay, the compensation set forth on Exhibit D attached hereto. All
payments will be collected and deposited into a Customer specified account and
will be in direct accordance with the Customer's guidelines.
3.5. OTHER RIGHTS AND OBLIGATIONS. During the Term, in addition to all of
the other rights and obligations set forth in this Agreement, Redflex and the
Customer shall have the respective rights and obligations set forth on Exhibit E
attached hereto.
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3.6. CHANGE ORDERS. The Customer 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 Redflex, setting forth in reasonable detail the proposed changes (a
"Change Order Notice"). Upon Redflex's receipt of a Change Order Notice,
Redflex shall deliver a written statement describing the effect, if any, the
proposed changes would have on the pricing terms set forth in Exhibit D (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
Customer. Following the Customer'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; provided, however, in the event that
any proposed change involves only the addition of equipment or services to the
existing Designated Intersection Approaches, or the addition of Intersection
Approaches to be covered by the terms of this Agreement, to the maximum
extent applicable, the pricing terms set forth in Exhibit D shall govern. 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
10.
4. License; Reservation of Rights.
4.1. License. Subject to the terms and conditions of this Agreement, Redflex hereby
grants the Customer, and the Customer hereby accepts from Redflex upon the
terms and conditions herein specified, anon-exclusive, non-transferable license
during the Term of this Agreement to: (a) solely within the City of Corpus
Christi access and use the Redflex System for the sole purpose of reviewing
Potential Violations and authorizing the issuance of Notice of Violations pursuant
to the terms of this Agreement, and to print copies of any content posted on the
Redflex System in connection therewith, (b) disclose to the public (including
outside of the City of Corpus Christi) that Redflex is providing services to the
Customer in connection with Photo Red Light Enforcement Program pursuant to
the terms of this Agreement, and (c) use and display the Redflex Marks on or in
marketing, public awareness or education, or other publications or materials
relating to the Photo Red Light Enforcement Program, so long as any and all
such publications or materials are approved in advance by Redflex.
4.2. RESERVATION OF RIGHTS. The Customer hereby acknowledges and agrees
that: (a) Redflex is the sole and exclusive owner of the Redflex System, the
Redflex Marks, all Intellectual Property arising from or relating to the Redflex
System, and any and all related Equipment, (b) the Customer 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
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exercise of any such rights or interests of Customer pursuant to this Agreement,
the Customer shall gain no additional right, title or interest therein.
4.3. RESTRICTED USE. The Customer hereby covenants and agrees that it shall not
(a) make any modifications to the Redflex System, including but not limited to
any Equipment, (b) alter, remove or tamper with any Redflex Marks, (c) use any
of the Redflex Marks in any way which might prejudice their distinctiveness,
validity or the goodwill of Redflex therein, (d) use any trademarks or other marks
other than the Redflex Marks in connection with the Customer's use of the
Redflex System pursuant to the terms of this Agreement without first obtaining
the prior consent of Redflex, or (e) disassemble, de-compile or otherwise perform
any type of reverse engineering to the Redflex System, the Redflex System,
including but not limited to any Equipment, or to any, Intellectual Property or
Proprietary Property of Redflex, or cause any other Person to do any of the
foregoing.
4.4. PROTECTION OF RIGHTS. Redflex shall have the right to take whatever
action it deems necessary or desirable to remedy or prevent the infringement of
any Intellectual Property of Redflex, including without limitation the filing of
applications to register as trademarks in any jurisdiction any of the Redflex
Marks, the filing of patent application for any of the Intellectual Property of
Redflex, and making any other applications or filings with appropriate
Governmental Authorities. The Customer shall not take any action to remedy or
prevent such infringing activities, and shall not in its own name make any
registrations or filings with respect to any of the Redflex Marks or the
Intellectual Property of Redflex without the prior written consent of Redflex.
4.5. INFRINGEMENT. The Customer shall use its reasonable best efforts to give
Redflex prompt notice of any activities or threatened activities of any Person of
which it becomes aware that infringes or violates the Redflex Marks or any of
Redflex'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 Redflex Marks or any other Intellectual Property of Redflex. Redflex shall
have the exclusive right, but not the obligation, to take action to enforce such
rights and to make settlements with respect thereto. In the event that Redflex
commences any enforcement action under this Section 4.5, then the Customer
shall render to Redflex such reasonable cooperation and assistance as is
reasonably requested by Redflex, and Redflex shall be entitled to any damages or
other monetary amount that might be awarded after deduction of actual costs;
provided, that Redflex shall reimburse the Customer for any reasonable costs
incurred in providing such cooperation and assistance.
4.6. INFRINGING USE. The Customer shall give Redflex prompt written notice of
any action or claim action or claim, whether threatened or pending, against the
Customer alleging that the Redflex Marks, or any other Intellectual Property of
Redflex, infringes or violates any patent, trademark, copyright, trade secret or
other Intellectual Property of any other Person, and the Customer shall render to
Redflex such reasonable cooperation and assistance as is reasonably requested by
Redflex in the defense thereof; provided, that Redflex shall reimburse the
Customer for any reasonable costs incurred in providing such cooperation and
9
assistance. If such a claim is made and Redflex determines, in the exercise of its
sole discretion, that an infringement may exist, Redflex shall have the
obligation, to procure for the Customer the right to keep using the allegedly
infringing items, modify them to avoid the alleged infringement or replace them
with non-infringing items.
5. Representations and Warranties.
5.1. Redflex Representations and Warranties.
5.1.1. Authority. Redflex hereby warrants and represents that it has all right,
power and authority to execute and deliver this Agreement and perform its
obligations hereunder.
5.1.2. Professional Services. Redflex hereby warrants and represents that any
and all services provided by Redflex pursuant to this Agreement shall be
performed in a professional and workmanlike manner and, with respect to
the installation of the Redflex System, subject to applicable law, in
compliance with all specifications provided to Redflex by the Customer.
5.1.3. Notice of claims. Redflex hereby warrants that Redflex shall immediately
notify Customer of any law suits filed against Redflex or against any of
Redflex clients regarding the Redflex Photo Red Light System.
5.2. Customer Representations and Warranties.
5.2.1. Authority. The Customer hereby warrants and represents that it has all
right, power and authority to execute and deliver this Agreement and
perform its obligations hereunder.
5.2.2. Professional Services. The Customer hereby warrants and represents that
any and all services provided by the Customer pursuant to this Agreement
shall be performed in a professional and workmanlike manner.
5.3 LIMITED WARRANTIES. REDFLEX WARRANTS THAT THE REDFLEX
SYSTEMS WILL OPERATE IN THE MANNER PRESCRIBED AS A RED LIGHT
PHOTO ENFORCEMENT SYSTEM, INCLUDING THE ABILITY TO
ACCURATELY CAPTURE VIOLATION IMAGES AND OTHERS PROVIDED IN
THIS AGREEMENT. THE CUSTOMER HEREBY ACKNOWLEDGES THAT THE
REDFLEX SYSTEM MAY MALFUNCTION FROM TIME TO TIME, AND SUBJECT
TO THE TERMS OF THIS AGREEMENT, REDFLEX SHALL DILIGENTLY
ENDEAVOR TO CORRECT ANY SUCH MALFUNCTION IN A TIMELY MANNER.
6. 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 enacted or amended to prohibit or substantially change the operation
of photo red light enforcement systems; (ii) any court having jurisdiction over
any Texas municipality or other local government, rules, or state or federal
statute declares, that results from photo red light enforcement are inadmissible in
evidence; (iii) any court having jurisdiction over any Texas municipality or over
any other local government rules that use of photo red light enforcement systems
violates state or federal law, (iv) Texas Legislature enacts any laws regarding
photo red light enforcement systems that negatively impacts the City; (v) the
other party commits any material breach of any of the provisions of this
Agreement. In the event of a termination due to Section 6.1(i) or 6.1(ii) or 6.1
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(iii) or (iv) above, Customer shall be relieved of any further obligations for
payment to Redflex. In case of termination under Section 6.1 (v) above, either
party shall have the right to remedy the cause for termination within forty-five
(45) calendar days (or within such other time period as the Customer and Redflex
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.
6.2. The rights to terminate this Agreement given in this 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.
6.3 TERMINATION FOR CONVENIENCE: The Customer may terminate this
Agreement without cause at any time by giving thirty (30) days' written notice of
termination to Redflex. In the event the Customer terminates this Agreement
without cause the Customer shall reimburse Redflex an amount equal to the
unamortized cost, as hereinafter defined, of the direct labor costs and direct
material costs (but not including equipment cost and salvageable material costs)
solely associated with the installation of Intersection Approaches which have been
installed prior to termination. Redflex shall provide an itemization, with
supporting invoices and labor expense documentation, to the Customer of the
amount of the direct labor costs and direct material costs (but not including
equipment costs and salvageable material costs) solely associated with the
installation of an Intersection Approach within thirty (30) days of the completion
of each Intersection Approach, said amount is expected to be in the range of
$20,000 to $40,000 per Intersection Approach but, in no event, shall said amount
exceed $40,000 per Intersection Approach. For the purpose of this section, the
unamortized cost for each Intersection Approach shall be the amount derived by,
first, multiplying the amount, which shall not exceed $40,000 per Intersection
Approach, of the direct labor costs and direct material costs (but not including
equipment costs and salvageable material costs) solely associated with the
installation of an Intersection Approach by the number of complete months
between the date of termination and February 1st, 2009, and, then, by dividing
said product by the number of complete months between the date of the
completion of installation of the Intersection Approach and February 1st, 2009.
Notwithstanding the foregoing, for each Intersection Approach for which there are
twelve (12) or more complete months between the date of completion of the
installation of the Intersection Approach and the date of termination, the amount
to be paid by the Customer to Redflex pursuant to this section shall not exceed the
amount which the Customer receives from paid Notices of Violation attributable
to the Intersection Approach pursuant to the provisions of this Agreement.
6.4 PROCEDURES UPON TERMINATION. The termination of this Agreement shall
not relieve either party of any liability that accrued prior to such termination. However,
upon contract termination by Customer for cause under Section 6.1 above, or without
cause under Section 6.3 above, or upon Non Appropriation under Section 11.19 below, or
upon expiration, Redflex agrees to forfeit any outstanding Deficit Amounts as defined in
11
Exhibit D. Except as set forth in Section 6.4, upon the termination of this Agreement, all
of the provisions of this Agreement shall terminate and:
6.4.1 Redflex 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 Photo Red Light Enforcement Program, (ii)
promptly deliver to the Customer any and all Proprietary Property of the
Customer provided to Redflex pursuant to this Agreement, (iii) promptly deliver
to the Customer a final report to the Customer regarding the collection of data and
the issuance of Notice of Violations in such format and for such periods as the
Customer may reasonably request, and which final report Redflex shall update or
supplement from time to time when and if additional data or information becomes
available, (iv) promptly deliver to Customer a final invoice stating all fees and
charges properly owed by Customer to Redflex for work performed and Notice of
Violations issued by Redflex prior to the termination, and (v) provide such
assistance as the Customer may reasonably request from time to time in
connection with prosecuting and enforcing Notice of Violations issued prior to the
termination of this Agreement.
6.4.2 The Customer shall (i) immediately cease using the Photo Red Light
Enforcement Program, accessing the Redflex System and using any other
Intellectual Property of Redflex, (ii) promptly deliver to Redflex any and all
Proprietary Property of Redflex provided to the Customer pursuant to this
Agreement, and (iii) promptly pay any and all fees, charges and amounts properly
owed by Customer to Redflex for work performed and Notice of Violations issued
by Redflex prior to the termination.
6.4.3 Unless the Customer and Redflex have agreed to enter into a new agreement
relating to the Photo Red Light Enforcement Program or have agreed to extend
the Term of this Agreement, Redflex shall remove any and all Equipment or other
materials of Redflex installed in connection with Redflex's performance of its
obligations under this Agreement, including but not limited to housings, poles and
camera systems, and Redflex shall restore the and Designated Intersection
Approaches to substantially the same condition such Designated Intersection
Approaches were in immediately prior to this Agreement.
6.5 SURVIVAL. Notwithstanding the foregoing, the definitions and each of the
following shall survive the termination of this Agreement: Sections 4.2 (Reservation
of Rights), 5.1 (Redflex Representations and Warranties), 5.2 (Customer
Representations and Warranties), 5.3 (Limited Warranty), 7 (Confidentiality), 8
(Indemnification and Liability), 9 (Notices), 10 (Dispute Resolution), 11.1
(Assignment), 11.17 (Applicable Law), 11.16 (Injunctive Relief; Specific
Performance) and 11.18 (Jurisdiction and Venue), and those provisions, and the
rights and obligations therein, set forth in this Agreement which either by their terms
state, or evidence the intent of the parties, that the provisions survive the expiration or
termination of the Agreement, or must survive to give effect to the provisions of this
Agreement.
7. CONFIDENTIALITY. During the term of this Agreement and for a period of three
(3) years thereafter, neither party shall disclose to any third person, or use for itself in
12
any way for pecuniary gain, any Confidential Information learned from the other
party during the course of the negotiations for this Agreement or during the Term of
this Agreement. 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.
8. Indemnification and Liability.
8.1. Indemnification by Redflex. Subject to Section 8.3, Redflex hereby agrees to
defend and indemnify the Customer and its affiliates, shareholders or other
interest holders, managers, officers, directors, employees, agents, representatives
and successors, permitted assignees and each of their affiliates, and all persons
acting by, through, under or in concert with them, or any of them (individually a
"Customer Party" and collectively, the "Customer Parties") against, and to
protect, save and keep harmless the Customer Parties from, and to pay on behalf
of or reimburse the Customer Parties as and when incurred for, any and all
liabilities, obligations, losses, damages, penalties, demands, claims, actions, suits,
judgments, settlements, costs, expenses and disbursements (including reasonable
attorneys', accountants' and expert witnesses' fees) of whatever kind and nature
(collectively, "Losses"), which may be imposed on or incurred by any Customer
Party arising out of or related to (a) any material misrepresentation, inaccuracy or
breach of any covenant, warranty or representation of Redflex contained in this
Agreement, or (b) any negligent act, omission, or willful misconduct of Redflex,
its employees or agents which result in death or bodily injury to any natural
person (including third parties) or any damage to any real or tangible personal
property (including the personal property of third parties), except to the extent
caused by the willful misconduct of any Customer Party.
8.2. Indemnification Procedures. In the event any claim, action or demand (a
"Claim") in respect of which any party hereto seeks indemnification from the
other, the party seeking indemnification (the "Indemnified Party") shall give the
party from whom indemnification is sought (the "Indemnifying Party") written
notice of such Claim promptly after the Indemnified Party first becomes aware
thereof; provided, however, that failure so to give such notice shall not preclude
indemnification with respect to such Claim except to the extent of any additional
or increased Losses or other actual prejudice directly caused by such failure. The
Indemnifying Party shall have the right to choose counsel to defend such Claim
(subject to the approval of such counsel by the Indemnified Party, which
approval shall not be unreasonably withheld, conditioned or delayed), and to
control, compromise and settle such Claim, and the Indemnified Party shall have
the right to participate in the defense at its sole expense; provided, however, the
Indemnified Party shall have the right to take over the control of the defense or
13
settlement of such Claim at any time if the Indemnified Party irrevocably waives
all rights to indemnification from and by the Indemnifying Party. The
Indemnifying Party and the Indemnified Party shall cooperate in the defense or
settlement of any Claim, and no party shall have the right enter into any
settlement agreement that materially affects the other party's material rights or
material interests without such party's prior written consent, which consent will
not be unreasonably withheld or delayed.
8.3. LIMITED LIABILITY. Notwithstanding anything to the contrary in this
Agreement, neither party shall be liable to the other, by reason of any
representation or express or implied warranty, condition or other term or any duty
at common or civil law, for any indirect, incidental, special, lost profits or
consequential damages, however caused and on any theory of liability arising out
of or relating to this Agreement.
9. NOTICES. Any notices to be given hereunder shall be in writing, and shall be
deemed to have been given (a) upon delivery, if delivered by hand, (b) three (3) days
after being mailed first class, certified mail, return receipt requested, postage and
registry fees prepaid, or (c) one Business Day after being delivered to a reputable
overnight courier service, excluding the U.S. Postal Service, prepaid, marked for next
day delivery, if the courier service obtains a signature acknowledging receipt, in each
case addressed or sent to such party as follows:
9.1. Notices to Redflex:
Redflex Traffic Systems, Inc.
15020 North 74th Street
Scottsdale, AZ 85260
Attention: Ms. Karen Finley
Facsimile: (480) 607-5552
9.2. Notices to the Customer:
City of Corpus Christi
1201 Leopard Street, Corpus Christi, Texas 78401
Attention: City Manager
10. 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. In connection therewith, upon written notice of
either party, each of the parties will appoint a designated officer whose task it shall be
to meet for the purpose of attempting to resolve such 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 10, 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.
11. Miscellaneous.
14
11.1. ASSIGNMENT. Neither party may assign all or any portion of this
Agreement without the prior written consent of the other. However, the Customer
hereby acknowledges and agrees that the execution, delivery and performance of
Redflex's rights pursuant to this Agreement shall require a significant investment
by Redflex, and that in order to finance such investment, Redflex may be
required to enter into certain agreements or arrangements ("Financing
Transactions") with equipment lessors, banks, financial institutions or other
similar persons or entities (each, a "Financial Institution" and collectively,
"Financial Institutions"). The Customer hereby agrees that Redflex shall have
the right to assign, pledge, hypothecate or otherwise transfer ("Transfer") its
rights, or any of them, under this Agreement to any Financial Institution in
connection with any Financing Transaction between Redflex and any such
Financial Institution, subject to the Customer's prior written approval, which
approval shall not be unreasonably withheld or delayed. The Customer further
acknowledges and agrees that in the event that Redflex provides written notice to
the Customer that it intends to Transfer all or any of Redflex's rights pursuant to
this Agreement, and in the event that the Customer fails to provide such approval
or fails to object to such Transfer within forty-five (45) business days after its
receipt of such notice from Redflex, for the purposes of this Agreement, the
Customer shall be deemed to have consented to and approved such Transfer by
Redflex. Notwithstanding the above, this Agreement shall inure to the benefit of,
and be binding upon, the parties hereto, and their respective successors or
assigns.
11.2. RELATIONSHIP BETWEEN REDFLEX AND THE CUSTOMER.
Nothing in this Agreement shall create, or be deemed to create, a partnership,
joint venture or the relationship of principal and agent or employer and employee
between the parties. The relationship between the parties shall be that of
independent contractors, and nothing contained in this Agreement shall create the
relationship of principal and agent or otherwise permit either party to incur any
debts or liabilities or obligations on behalf of the other party (except as specifically
provided herein).
11.3. AUDIT RIGHTS. Each of parties hereto shall have the right to audit 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 seven calendar
days 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 be 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 twenty five percent (25%) of the amount of 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
15
made pursuant to this Agreement, non-Audited Party shall promptly refund to the
Audited Party the amount of the excess.
11.4. FORCE MAJEURE. Neither party will be liable to the other or be
deemed to be in breach of this Agreement for any failure or delay in rendering
performance arising out of causes beyond its reasonable control and without its
fault or negligence. Such causes may include but are not limited to, acts of God
or the public enemy, terrorism, significant fires, floods, earthquakes, epidemics,
quarantine restrictions, strikes, freight embargoes, or Governmental Authorities
approval delays which are not caused by any act or omission by Redflex, and
unusually severe weather. The party whose performance is affected agrees to
notify the other promptly of the existence and nature of any delay.
11.5. ENTIRE AGREEMENT. This Agreement represents the entire
Agreement between the parties, and there are no other agreements (other than
invoices and purchase orders), whether written or oral, which affect its terms.
This Agreement may be amended only by a subsequent written agreement signed
by both parties.
11.6. SEVERABILITY. If any provision of this Agreement is held by any court
or other competent authority to be void or unenforceable in whole or part, this
Agreement shall continue to be valid as to the other provisions thereof and the
remainder of the affected provision.
11.7. WAIVER. Any waiver by either party of a breach of any provision of this
Agreement shall not be considered as a waiver of any subsequent breach of the
same or any other provision thereof.
11.8. CONSTRUCTION Except as expressly otherwise provided in this
Agreement, this Agreement shall be construed as having been fully and
completely negotiated and neither the Agreement nor any provision thereof shall
be construed more strictly against either party.
11.9. HEADINGS. The headings of the sections contained in this Agreement
are included herein for reference purposes only, solely for the convenience of the
parties hereto, and shall not in any way be deemed to affect the meaning,
interpretation or applicability of this Agreement or any term, condition or
provision hereof.
11.10. EXECUTION AND COUNTERPARTS. This Agreement may be
executed in any number of counterparts, each of which when so executed and
delivered shall be deemed an original, and such counterparts together shall
constitute only one instrument. Any one of such counterparts shall be sufficient
for the purpose of proving the existence and terms of this Agreement, and no
party shall be required to produce an original or all of such counterparts in
making such proof.
11.11. COVENANT OF FURTHER ASSURANCES. All parties to this
Agreement shall, upon request, perform any and all acts and execute and deliver
any and all certificates, instruments and other documents that may be necessary
or appropriate to carry out any of the terms, conditions and provisions hereof or
to carry out the intent of this Agreement.
11.12. REMEDIES CUMULATIVE. Each and all of the several rights and
remedies provided for in this Agreement shall be construed as being cumulative
16
and no one of them shall be deemed to be exclusive of the others or of any right
or remedy allowed by law or equity, and pursuit of any one remedy shall not be
deemed to be an election of such remedy, or a waiver of any other remedy.
11.13. BINDING EFFECT. This Agreement shall inure to the benefit of and be
binding upon all of the parties hereto and their respective executors,
administrators, successors and permitted assigns.
11.14. COMPLIANCE WITH LAWS. Nothing contained in this Agreement
shall be construed to require the commission of any act contrary to law, and
whenever there is a conflict between any term, condition or provision of this
Agreement and any present or future statute, law, ordinance or regulation
contrary to which the parties have no legal right to contract, the latter shall
prevail, but in such event the term, condition or provision of this Agreement
affected shall be curtailed and limited only to the extent necessary to bring it
within the requirement of the law, provided that such construction is consistent
with the intent of the Parties as expressed in this Agreement.
11.15. NO THIRD PARTY BENEFIT. Nothing contained in this Agreement
shall be deemed to confer any right or benefit on any Person who is not a party to
this Agreement.
11.16. INJUNCTIVE RELIEF; SPECIFIC PERFORMANCE. The parties
hereby agree and acknowledge that a breach of Sections 4.1 (License), 4.3
(Restricted Use) or 7 (Confidentiality) of this Agreement would result in severe
and irreparable injury to the other party, which injury could not be adequately
compensated by an award of money damages, and the parties therefore agree and
acknowledge that they shall be entitled to injunctive relief in the event of any
breach of any material term, condition or provision of this Agreement, or to
enjoin or prevent such a breach, including without limitation an action for
specific performance hereof.
11.17. APPLICABLE LAW. This Agreement shall be governed by and
construed in all respects solely in accordance with the laws of the State of Texas
United States.
11.18. JURISDICTION AND VENUE. Any dispute arising out of or in
connection with this Agreement shall be submitted to the exclusive jurisdiction
and venue of the courts located in the County of Nueces, Texas, and both parties
specifically agree to be bound by the jurisdiction and venue thereof.
11.19. NON APPROPRIATION In addition to any other authority to terminate
this Contract, in any fiscal year during the term of this Contract, if the governing
body of Customer does not appropriate funds to continue paying for the
compensation under Exhibit D, Customer may then terminate the Contract as of
the last day for which funds were appropriated. Unless provided otherwise by
law or by this Contract, Customer shall be obligated to pay all charges incurred
before such a termination of the Contract. However, Customer shall not be
required to pay any outstanding Deficit Amounts.
11.20. MOST FAVORED NATION CLAUSE. If Redflex, at any time during this
Contract, routinely enters into agreements with other governmental customers
within the state of Texas and offers the same or substantially the same
products/services offered to the City on a basis that provides terms and
17
conditions (including but not limited to, prices, warranties, indemnification,
terms relating to posting of a bond, etc.), that are, in the aggregate and when
considered as a whole, more favorable than those collective terms and conditions
provided to the City, Redflex shall notify the City in writing within ten (10)
business days thereafter of that offering and this Contract shall be deemed to be
automatically amended effective on the date of such written notice from Redflex,
wherein Redflex shall provide the same terms and conditions to the City unless
the City notifies Redflex in writing within 10 business days of Redflex's written
notice that the City declines to accept such change(s), in which case such
amendment shall be deemed null and void. The determination of whether this
Article 11.20 should apply shall be subject to the reasonable discretion of
Redflex.
(The remainder of this page is left intentionally blank)
18
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day
and year first set forth above.
"Customer"
CITY OF (insert name) REDFLEX~
By: By:
Name: ~~
_....~ ~..~'itle:
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AF'a'1AAt4~0 CHAPA
CtN S€~FiEG4t3Y
"Redflex"
APPROVED AS TO CONTENT: ~' ~ a"I°~
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~9
EXHIBIT "A"
Designated Intersection Approaches
The contract is far the implementation of at least ten {IO) intersections. Selection of
enforced intersection approaches will be determined by the City Manager upon meeting
appropriate benchmarks of violation volume, traffic volume, and crash data to be
provided by the City Manager or his designee, and Redflex.
L,, .~ ~v.~v~-~ Z ~ ~, L.c~.~~
EXHIBIT "B"
Construction and Installation Obli atgL ions
Timeframe for Installation: Fixed Photo Red Light System
Redflex will have each specified intersection installed and activated in phases in
accordance with an implementation plan to be mutually agreed to by Redflex Traffic
Systems and the Municipality.
Redflex 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.
Redflex will use reasonable commercial efforts to install and activate the first four
specified intersection within the first ninety (90) days subsequent to formal project kick-
off. Any additional intersections will be added within thirty (30) days of receipt of a
notice to proceed. The Municipality agrees that the estimated timeframe for installation
and activation are subject to conditions beyond the control of Redflex and are not
guaranteed.
In order to provide the client with timely completion of the photo enforcement project
Redflex Traffic Systems requires that the City assist with providing timely approval of
City permit requests. The City acknowledges the importance of the safety program and
undertakes that in order to keep the project on schedule the customer is to provide city
engineers review of Redflex permit requests and all documentation within a two business
days. Redflex will also review and correct if necessary any redlines with in two business
days. Permits need to be received within five business days of first submittal in order to
implement the program in a timely manner.
1. Redflex Obli ate Redflex shall do or cause to be done each of the following (in
each case, unless otherwise stated below, at Redflex's sole expense):
1.1. Appoint the Redflex Project Manager and a project implementation team
consisting of between one (1) and four (4) people to assist the Redflex Project
Manager;
1.2. Request current "as-built" electronic engineering drawings for the Designated
Intersection Approaches (the "Drawings") from the city traffic engineer, if
available;
1.3. Develop and submit to the Customer for approval construction and installation
specifications in reasonable detail for the Designated Intersection Approaches,
including but not limited to specifications for all radar sensors, pavement loops,
electrical connections and traffic controller connections, as required; and
1.4. Seek approval from the relevant Governmental Authorities having authority or
jurisdiction over the construction and installation specifications for the
Designated Intersection Approaches (collectively, the "Approvals"), which will
include compliance with City permit applications.
1.5. Finalize the acquisition of the Approvals;
21
1.6. Submit to the Customer a public awareness strategy for the Customer's
consideration and approval, which strategy shall include media and educational
materials for the Customer's approval or amendment (the "Awareness Strategy");
1.7. Develop the Red Light Violation Criteria in consultation with the Customer;
1.8. Develop the Enforcement Documentation for approval by the Customer, which
approval shall not be unreasonably withheld;
1.9. Complete the installation and testing of all necessary Equipment, including
hardware and software, at the Designated Intersection Approaches (under the
supervision of the Customer);
1.10. Cause an electrical sub-contractor to complete all reasonably necessary
electrical work at the Designated Intersection Approaches, 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;
1.11. Install and test the functionality of the Designated Intersection Approaches
with the Redflex System and establish fully operational Violation processing
capability with the Redflex System;
1.12. Implement the use of the Redflex System at each of the Designated
Intersection Approaches;
1.13. Deliver the Materials to the Customer; and
1.14. Issue Notice of Violation notices for Authorized Violations;
1.15. Redflex shall provide training (i) for up to fifteen (15) personnel of the
Customer, including but not limited to the persons who Customer shall appoint as
Authorized Officers and other persons involved in the administration of the Red
Light Photo Enforcement Program, (ii) for at least sixteen (16) hours in the
aggregate, (iii) regarding the operation of the Redflex System and the Red Light
Photo Enforcement Program, which training shall include training with respect to
the Redflex System and its operations, strategies for presenting Violations Data
in administrative adjudication hearing proceedings and a review of the
Enforcement Documentation;
1.16. Communicate with administrative adjudication hearing personnel to
address issues regarding the implementation of the Redflex System, the
development of a subpoena processing timeline that will permit the offering of
Violations Data in adjudication proceedings, and coordination between Redflex,
the Customer and adjudication personnel; and
1.17. Redflex will work with the Customer to develop a comprehensive Public
Awareness/Education Campaign that will be based on research and public
polling to ensure tailored messaging for the community. Redflex will organize a
press conference at the project's commencement and coordinate all logistics,
including preparing a media packet which will include: a news release; an
overview of the Customer's photo enforcement program; a project fact sheet; a
project question and answer sheet; a photo enforcement "Facts & Myths"
handout; a map showing photo enforcement intersections and thoroughfares;
background on similar successful projects elsewhere; an explanation of photo
enforcement technology; an explanation of how the program will be
22
administered; and a spokesperson contact list. The Police Department's Public
Information Officer will be their primary point of contact, and will have final
approval on all media materials
1.18. Notice of Violation processing and Notice of Violation re-issuance
1.19 Redflex agrees to update the System to be in accordance with industry
standards.
1.20 Conduct background checks on all employees, subcontractors, and agents
of Redflex, to ensure that individuals with any criminal history or negative job
performance history are not utilized by Redflex to perform work under this
Agreement.
2. CUSTOMER OBLIGATIONS. The Customer shall do or cause to be done each of
the following (in each case, unless otherwise stated below, at Customer's sole
expense):
2.1.1. Appoint the Police Project Manager; Provide an Administrative Hearing
Officer to preside over appeals hearing for the City.
2.1.2. Assist Redflex in obtaining the Drawings from the relevant Governmental
Authorities;
2.1.3. Notify Redflex of any specific requirements relating to the construction
and installation of any Intersection Approaches or the implementation of the
Red Light Photo Enforcement Program;
2.1.4. Provide assistance to Redflex in obtaining access to the records data of the
Texas Department of Transportation in Redflex's capacity as an independent
contractor to the Customer; and
2.1.5. Provide reasonable access to the Customer's properties and facilities in
order to permit Redflex to install and test the functionality of the Designated
Intersection Approaches and the Red Light Photo Enforcement Program;
2.1.6. Provide reasonable access to the personnel of the Customer 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, as described in
Section 1.17 above, and provide written notice to Redflex with respect to the
quantity of media and program materials (the "Materials") that the
Customer will require in order to implement the Awareness Strategy during
the period commencing on the date on which Redflex begins the installation
of any of the Designated Intersection Approaches and ending one (1) month
after the Installation Date;
2.1.8. Develop the Photo Red Light Violation Criteria; and
2.1.9. Develop the Enforcement Documentation.
2.1.10. The provision of all necessary electrical services to the Designated
Intersection Approaches will be the sole responsibility of Customer
23
EXHIBIT "C"
Maintenance
1. All timely repair and maintenance of Photo Red Light Enforcement systems and
related equipment will be the sole responsibility of Redflex, including but not limited
to maintaining the casings of the cameras included in the Redflex System and all
other Equipment in reasonably clean and graffiti-free condition.
2. Redflex shall not open the Traffic Signal Controller Boxes without a representative of
City Traffic Signals present.
3. The provision of all necessary communication, broadband and telephone services to
the Designated Intersection Approaches will be the sole responsibility of the Redflex
4. In the event that images of a quality suitable for the Authorized Officer to identify
Violations cannot be reasonably obtained without the use of flash units, Redflex shall
provide and install such flash units.
5. The Redflex Project Manager (or a reasonable alternate) shall be available to the
Police Project Manager each day, on a reasonable best efforts basis.
24
EXHIBIT "D"
COMPENSATION & PRICING
Commencing on the expiration of the Warning Period, Customer shall be obligated to pay
Redflex a fixed fee of $4,870 per month for each Designated Intersection Approach
("Fixed Fee") as full remuneration for performing all of the services contemplated in this
Agreement.
Cost Neutrality
Cost neutrality is assured to Customer. The maximum compensation that Customer shall
be obligated to pay to Redflex each month is the Fixed Fee. Each month, Customer and
Redflex shall compare the aggregate revenue received from all Notice of Violations
("Total Revenue") to the total amount invoiced by Redflex for the Fixed Fee ("Total
Invoiced"). The Customer shall be obligated to pay the cumulative balance invoiced by
Redflex, in accordance with terms set forth above, only to the extent of gross cash
received by the City from automated red light violations. Any excess of the Total
Invoiced over the Total Revenue (the "Deficit Amount") shall not be payable, but carried
forward to be offset by future surpluses should they occur. Upon contract termination for
cause under section 6.1, for convenience under section 6.3 or expiration of this
Agreement, or for nonappropriation under section 11.19, any such outstanding Deficit
Amounts are forfeited by Redflex, and Customer has no liability for outstanding Deficit
Amounts.
BUSINESS ASSUMPTIONS FOR ALL PRICING OPTIONS:
1. Redflex construction will be able to utilize existing conduit for installation where
space is available.
2. The Customer agrees to pay Redflex within thirty (30) days after the invoice is
received. A monthly late fee of 1.5% is payable for amounts remaining unpaid 60
days from date of invoice.
3. Redflex will not charge the Customer for any time that a Designated
Intersection Approach is not operational (defined as a material malfunction
causing essentially no violations to be captured) in excess of 72 consecutive
hours. The down time will be measured in daily increments and shall be
prorated based on the Fixed Fee set forth in this Agreement.
4. A Designated Intersection Approach can be relocated to an alternative location at the
request and expense of the Customer. Such costs will be supported by actual invoices
from contractors providing the relocation services.
5. NON PRODUCTIVE CAMERAS. If the Customer and Redflex mutually agree that
a camera does not provide public value or has not reached the desired safety goals, a
new location will be mutually selected and the camera will be moved at NO COST to
the Customer. If no further locations are mutually agreed upon the Customer will
inform Redflex in writing and the camera will be removed at NO COST to the
Customer within thirty (30) calendar days after the receipt of the written notice. The
billing for the camera will stop immediately upon receipt of the written notice.
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6. Each year, the pricing will increase by the
publication of the U.S. Department of Labor
average and shall not exceed 3% annually.
CPI. CPI will be derived from the
Consumer Price Index for U.S. City
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Exhibit "E"
Additional Rights and Obli atg ions
Redflex and the Customer shall respectively have the additional rights and obligations set
forth below:
1. Redflex shall assist the Customer 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 Red Light Photo Enforcement
Program (actual print and production costs are the sole responsibility of the
Customer).
2. The Customer shall be solely responsible for the fabrication of any signage, notices or
other postings required pursuant to any law, rule or regulation of any Governmental
Authority ("Si__g_nage"), including but not limited to the Vehicle Code, and shall assist
in determining the placement of such Signage. Redflex shall be solely responsible for
installing such Signage.
3. The Redflex Project Manager and the Police Project Manager shall meet on a weekly
basis during the period commencing as of the date of execution hereof and ending on
the Installation Date, and on a monthly basis for the remainder of the Term, at such
times and places as the Redflex Manager and the Customer Manager shall mutually
agree.
4. The Customer shall not access the Redflex System or use the Red Light Photo
Enforcement Program in any manner other than prescribed by law and which restricts
or inhibits any other Person from using the Redflex System or the Redflex Photo
Enforcement Program with respect to any Intersection Approaches constructed or
maintained by Redflex for such Person, or which could damage, disable, impair or
overburden the Redflex System or the Redflex Photo Enforcement Program, and the
Customer shall not attempt to gain unauthorized access to (i) any account of any other
Person, (ii) any computer systems or networks connected to the Redflex System, or
(iii) any materials or information not intentionally made available by Redflex to the
Customer by means of hacking, password mining or any other method whatsoever,
nor shall the Customer cause any other Person to do any of the foregoing.
5. The Customer shall maintain the confidentiality of any username, password or other
process or device for accessing the Redflex System or using the Red Light Photo
Enforcement Program.
6. Each of Redflex and the Customer 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, each of Redflex and the Customer shall obey any and all such rules
and regulations.
7. The Customer shall promptly reimburse Redflex for the cost of repairing or replacing
any portion of the Redflex System, or any property or equipment related thereto,
damaged directly or indirectly by the Customer, or any of its employees, contractors
or agents.
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Insurance
1. Prior to beginning performance under this Agreement and throughout the Term,
Redflex shall procure and maintain and Redflex's sole cost and expense the
following insurance coverage with respect to claims for injuries to persons or
damages to property which may arise from or in connection with the performance
of work or services pursuant to this Agreement by Redflex, and each of Redflex's
subcontractors, agents, representatives and employees:
2. Commercial General Liability Insurance. Commercial General Liability
Insurance with coverage of not less than One Million Dollars ($1,000,000)
combined single limit per occurrence for bodily injury and property damage;
3. Commercial Automobile Liability Insurance. Commercial Automobile Liability
Insurance with coverage of not less than One Million Dollars ($1,000,000)
combined single limit per occurrence for bodily injury or property damage,
including but not limited to coverage for all automobiles owned by Redflex, hired
by Redflex, and owned by third parties;
4. Professional Liability (Errors and Omissions) Insurance. Professional Liability
(Errors and Omissions) Insurance with coverage of not less than One Million
Dollars ($1,000,000) per occurrence and in the aggregate.
5. Workers' Compensation and Employer's Liability Insurance. Workers'
Compensation Insurance with coverage of not less than the limits required by the
Labor Code of the State of (insert name), Employer's Liability Insurance with
coverage of not less than One Million Dollars ($1,000,000) per occurrence.
6. Crime Policy/Employee Dishonesty coverage with $50,000 per occurrence limit.
7. With respect to the insurance described in the foregoing Section of this Exhibit E,
any deductibles or self-insured retentions must be declared to and approved by the
Customer, and any changes to such deductibles or self-insured retentions during
the Term must be approved in advance in writing by the Customer.
8. With respect to the Commercial General Liability Insurance the following
additional provisions shall apply:
9. The Customer Parties shall be covered as additional insureds with respect to any
liability arising from any act or omission of any Redflex Parties on the premises
upon which any such Redflex Parties may perform services pursuant to this
Agreement, and such coverage shall contain no special limitations on the scope of
protection afforded to such additional insureds.
10. The insurance coverage procured by Redflex and described above shall be the
primary insurance with respect to the Customer Parties in connection with this
Agreement, and any insurance or self-insurance maintained by any of the (insert
name) shall be in excess, and not in contribution to, such insurance.
11. Any failure to comply with the reporting provisions of the various insurance
policies described above shall not affect the coverage provided to the (insert
names), and such insurance policies shall state the such insurance coverage shall
apply separately with respect to each additional insured against whom any claim
is made or suit is brought, except with respect to the limits set forth in such
insurance policies.
12. With respect to the insurance described in the foregoing Section of this Exhibit E,
each such insurance policy shall be endorsed to state that the coverage provided
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thereby shall not be cancelled except after thirty (30) calendar days' prior written
notice to the Customer. If any of the Redflex Parties are notified by any insurer
that any insurance coverage will be cancelled, Redflex shall immediately provide
written notice thereof to the Customer and shall take all necessary actions to
correct such cancellation in coverage limits, and shall provide written notice to
the Customer of the date and nature of such correction. If Redflex, for any
reason, fails to maintain the insurance coverage required pursuant to this
Agreement, such failure shall be deemed a material breach of this Agreement, and
the Customer shall have the right, but not the obligation and exercisable in its sole
discretion, to either (i) terminate this Agreement and seek damages from Redflex
for such breach, or (ii) purchase such required insurance, and without further
notice to Redflex, deduct from any amounts due to Redflex pursuant to this
Agreement, any premium costs advance by the Customer for such insurance. If
the premium costs advanced by the Customer for such insurance exceed any
amounts due to Redflex pursuant to this Agreement, Redflex shall promptly remit
such excess amount to the Customer upon receipt of written notice thereof.
13. Redflex shall provide certificates of insurance evidencing the insurance required
pursuant to the terms of this Agreement, which certificates shall be executed by
an authorized representative of the applicable insurer, and which certificates shall
be delivered to the Customer prior to Redflex commencing any work pursuant to
the terms of this Agreement.
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Exhibit "G"
City of Corpus Christi's Proposal Number BI-0013-07 RFP For Automated Traffic
Signal Enforcement System
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Exhibit "H"
Redflex Traffic Systems, Inc Proposal for Automated Traffic Signal Enforcement System
RFP #BI-0013-07
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