HomeMy WebLinkAboutContracts & Agreements_11-2008_CCv0001.pdf AGREEMENT BETWEEN THE CITY OF REDLANDS
AND REDFLEX TRAFFIC SYSTEMS, INC. FOR
PHOTO RED LIGHT ENFORCEMENT PROGRAM
This Agreement (this "Agreement") is made as of this 15th day of January, 2008, by and
between Redflex Traffic Systems, Inc. with offices at 6076 Bristol Parkway, Suite
105/106, Culver City, California 90230 ("Redflex"), and the City of Redlands, a
municipal corporation, with offices at 35 Cajon Street, Redlands, California 92373. (the
"City"). Redflex and the City are sometimes individually referred to herein as a "Party"
and, together, as the "Parties."
RECITALS
WHEREAS, Redflex has exclusive knowledge, possession and ownership of certain
equipment, licenses, applications, and citation processes related to digital photo red light
enforcement systems; and
WHEREAS, the City desires to engage the services of Redflex to provide certain
equipment, processes and back office services so that sworn peace officers of the City are
able to monitor, identify and enforce red light running violations; and
WHEREAS, it is a mutual objective of both Redflex and the City 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:
1.1. "Authorized Officer" means an officer of the City's Police Department or such
other individual(s) as the City shall designate to review Potential Violations and
to authorize the Issuance of Citations in respect thereto, and in any event, a
sworn peace officer or a qualified employee of the City's Police Department.
1.2. "Authorized Violation" means each Potential Violation in the Violations Data for
which authorization to issue a citation in the form of an Electronic Signature is
given by the Authorized Officer by using the Redflex System.
1.3. "Citation" means the 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.
1.4. "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
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1,4 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:
1.4.1. 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
1.4.2. 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.
1.4.3. Notwithstanding the foregoing, Confidential Information shall 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 disclosed, or (v) was
required by applicable state law to be disclosed.
1.5. "Designated Intersection Approaches" means the Intersection Approaches set
forth on Exhibit -A" attached hereto, and such additional Intersection
Approaches as Redflex and the City shall mutually agree from time to time.
1.6. "Electronic Signature" means the method through which the Authorized Officer
indicates his or her approval of the issuance of a Citation in respect of a Potential
Violation using the Redflex System.
1.7. "Enforcement Documentation" means the necessary and appropriate
documentation related to the Photo Red Light Enforcement Program, including
but not limited to warning letters, citation notices (using the specifications of the
Judicial Council and the City, a numbering sequence for use on all citation
notices (in accordance with applicable court rules), instructions to accompany
each issued Citation (including in such instructions a description of basic court
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 Citations (including with respect to
coordinating with the Department of Motor Vehicles), and technical support
documentation for applicable court and judicial officers .
1.8. "Equipment" means any and all cameras, sensors, equipment, components,
products, software and other tangible and intangible property relating to the
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Redflex Photo Red Light System(s), including but not limited to all camera
systems, housings, radar units, servers and poles.
1.9. -Fine" means a monetary sum assessed for Citation, including but not limited to
bail forfeitures, but excluding suspended fines.
1.10. "Governmental Authority" means any domestic or foreign government,
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.
1.11. "Installation Date of the Photo Red Light 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 Redlight Photo Enforcement Program.
1.12. "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.
1.13. "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 Redlight Photo Enforcement by the City.
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 City Streets and Intersection Approaches by a
sworn peace officer of the City and the issuance of Citations 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 City in
accordance with this Agreement, which shall be a sworn peace officer and shall
be responsible for overseeing the installation of the Intersection Approaches and
the implementation of the Redlight Photo Enforcement Program, and which
manager 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 organizational documents or by the City Council of the City.
1.17. "Potential Violation" means, with respect to any motor vehicle passing through
a Designated City Street andlor Intersection Approach, the data collected by the
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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. "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 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 Jim
Newsom or such person as Redflex 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 Intersection Approaches and
the implementation 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 Light System" means, collectively, the SrnartCamTM
System, the SmartOpsTM System, the Redlight 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.
1.23. "Photo Redlight Violation Criteria" means the standards and criteria by which
Potential Violations will be evaluated by sworn peace officers of the City,
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
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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 redlight photo enforcement
system of Redflex relating to the Photo Red Light Enforcement Program.
1.25. "SmartOpsTM System" 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 the terms of the Vehicle
Code or any applicable rule, regulation or law of any other 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 City Streets and/or Intersection Approaches.
1.30. "Warning Period" means the period that only warning notices and not citations
for violations shall be sent during the 30 day period commencing with the
installation of the first traffic-control signal monitoring device.
2. TERM. The term of this Agreement shall commence on the Effective Date of this
Agreement and shall continue for a period of five (5) years after the Installation Date
(the "Initial Term"). The City shall have the right, but not the obligation, to extend
the Initial Term of this Agreement for up to two (2) additional consecutive and
automatic two (2) year periods following the expiration of the Initial Term (each. 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 Tenn 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
City, in each case in accordance with the terms and provisions set forth in this
Agreement.
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 City 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 City 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;
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3.3.2. The Redflex System shall process Violations Data gathered from the
Designated City Streets and/or 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 a high-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 seven (7) days of the gathering of the Violations Data from the
applicable Designated City Streets and/or Intersection Approaches
3.3.5. The City shall cause the Authorized Officer to review the Violations Data
and to determine whether a citation shall be issued with respect to each
Potential Violation captured within such Violations 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
CITATION SHALL BE THE SOLE, UNILATERAL AND EXCLUSIVE
DECISION OF THE AUTHORIZED OFFICER AND SHALL BE MADE
IN SUCH AUTHORIZED OFFICER'S SOLE DISCRETION (A
-CITATION DECISION"), AND IN NO EVENT SHALL REDFLEX
HAVE THE ABILITY OR AUTHORIZATION TO MAKE A CITATION
DECISION;
3.3.6. With respect to each Authorized Violation, Redflex shall print and mail a
Citation within six (6) days after Redflex's receipt of such authorization;
provided, however, during the Warning Period, warning violation notices
shall be issued in respect of all Authorized Violations:
3.3.7. Redflex shall provide a toll-free telephone number for the purposes of
answering citizen inquiries
3.3.8. Redflex shall permit the Authorized Officer to generate monthly reports
using the Redflex Standard Report System.
3.3.9. Upon Redflex's receipt of a written request from the City and in addition
to the Standard Reports, Redflex shall provide, without cost to the City,
reports regarding the processing and issuance of Citations, the maintenance
and downtime records of the Designated Intersection Approaches and the
functionality of the Redflex System with respect thereto to the City in such
format and for such periods as the City 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 City;
3.3.10. Standard Reports
3.3.10.1. City Management Report: Standard statistical data by intersection
approach.
3.3.10.2. Incident Look-up Report: This report will give you a listing of all
incidents captured for a specified period of time. For example, if the
police want to know if a particular vehicle ran a red light from 6:00am
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to 8:00 am this morning; they can use this report to get a listings of all
the incidents captured during the two hour timeframe and enter the
incident number into police authorization to view the incidents to see if
the vehicle ran a red light.
3.3.10.3. Dismissal Report—lists the citation numbers recommended for
dismissal (nominations and bad addresses)
3.3.10.4. Red Light Offenders Report—graphical representation of the
statistical data from each incident captured
3.3.11. Upon the City's receipt of a written request from Redflex, the City shall
provide, without cost to Redflex, reports regarding the prosecution of
Citations 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 City 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. During the six (6) month period following the Installation Date and/or
upon Redflex's receipt of a written request from the City at least fourteen
(14) calendar days in advance of court proceeding, Redflex shall provide
expert witnesses for use by the City in prosecuting Violations; provided,
however, the City 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 Sheriff 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 Redlight Enforcement Program.
3.4. PROSECUTION AND COLLECTION; COMPENSATION. The City shall
diligently prosecute Citations and the collection of all Fines in respect thereof,
and Redflex shall have the right to receive, and the City shall be obligated to pay.
the compensation set forth on Exhibit "D" attached hereto.
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 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 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 City.
Following the City's receipt of the Change Order Proposal. the Parties shall
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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, Designated City Vehicles, 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 City, and the City hereby accepts from Redflex 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 of Redlands access and use
the Redflex System for the sole purpose of reviewing Potential Violations and
authorizing the issuance of Citations 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 Redlands
that Redflex is providing services to the City 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
Progran-i, so long as any and all such publications or materials are approved in
advance by Redflex.
4.2. RESERVATION OF RIGHTS. The City 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 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 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 City'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.
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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 City 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 City 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 City 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 City for any reasonable costs incurred in providing such
cooperation and assistance.
4.6. INFRINGING USE. The City shall give Redflex prompt written notice of any
action or claim action or claim, whether threatened or pending, against the City
alleging that the Redflex Marks, or any other Intellectual Property of Redtlex,
infringes or violates any patent, trademark, copyright, trade secret or other
Intellectual Property of any other Person, and the City 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 City for any
reasonable costs incurred in providing such cooperation and 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 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.
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
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the installation of the Redflex System, subject to applicable law. in
compliance with all specifications provided to Redflex 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.
5.2.2. 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.
5.3. LIMITED WARRANTIES. EXCEPT AS OTHERWISE PROVIDED IN THIS
AGREEMENT, REDFLEX MAKES NO WARRANTIES OF ANY KIND,
EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE, WITH RESPECT TO THE REDFLEX SYSTEM OR
ANY RELATED EQUIPMENT OR WITH RESPECT TO THE RESULTS OF
THE CITY'S USE OF ANY OF THE FOREGOING. NOTWITHSTANDING
ANYTHING TO THE CONTRARY SET FORTH HEREIN, REDFLEX DOES
NOT WARRANT THAT ANY OF THE DESIGNATED INTERSECTION
APPROACHES OR THE REDFLEX SYSTEM WILL OPERATE IN THE WAY
THE CITY SELECTS FOR USE, OR THAT THE OPERATION OR USE
THEREOF WILL BE UNINTERRUPTED. THE CITY 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 statutes are
amended to prohibit or substantially change the operation of photo red light
enforcement systems: (ii) any court having jurisdiction over City rules, or state or
federal statute declares, that results from the Redflex System of photo red light
enforcement are inadmissible in evidence; or (iii) the other Party commits any
material breach of any of the provisions of this Agreement. Either Party shall
have the right to remedy the cause for termination (Sec 6.1) within forty-five (45)
calendar days (or within such other time period as the City 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. PROCEDURES UPON TERMINATION. The termination of this Agreement
shall not relive either Party of any liability that accrued prior to such termination.
Except as set forth in Section 6.3, upon the termination of this Agreement. all of
the provisions of this Agreement shall terminate and:
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6.3.1. 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 City any and all Proprietary Property of the City
provided to Redflex 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 Citations in such format and for such periods as the City 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 City a final invoice stating all
fees and charges properly owed by City to Redflex for work performed and
Citations issued by Redflex prior to the termination, and (v) provide such
assistance as the City may reasonably request from time to time in
connection with prosecuting and enforcing Citations issued prior to the
termination of this Agreement.
6.3.2. The City 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 City pursuant to this
Agreement, and (iii) promptly pay any and all fees. charges and amounts
properly owed by City to Redflex for work performed and Citations issued
by Redflex prior to the termination.
6.3.3. Unless the City 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 Designated City Vehicles and Designated Intersection Approaches to
substantially the same condition such Designated Intersection Approaches
were in immediately prior to this Agreement.
6.4. 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 (City
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
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
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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 shall defend and
indemnify the City and its affiliates, elected officials, 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 "City Party" and collectively, the "City
Parties") against, and to protect, save and keep harmless the City Parties from.
and to pay on behalf of or reimburse the City 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' (including fees for use of in-house counsel by
the City), accountants' and expert witnesses' fees) of whatever kind and nature
(collectively, "Losses"), which may be imposed on or incurred by any City 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, (b) the 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 City Party, or (c) To the full extent permitted by law, Redflex shall
indemnify, defend and hold harmless City. and any and all of its elected officials,
officers, directors, employees and agents from and against any liability (including
liability for claims, suits, actions, arbitration proceedings, administrative
proceedings,regulatory proceedings, losses, expenses or costs of any kind, whether
actual, alleged or threatened, including attorney's fees and costs, court costs,
interest, defense costs, and expert witness fees), where the same arise out of, are a
consequence of, or are in any way attributable to, in whole or in part, the negligent
performance of this Agreement by Redflex or by any individual or entity for
which Redflex is legally liable, including but not limited to officers, agents,
employees or subconsultants of Redflex. (d)Any claim that Redflex, or Redflex's
employees or agents, are considered to be employees of the City or are entitled to
any employee benefits from City, including but not limited to those available under
Public Employees Retirement Law.
8.2. Indemnification by City. Subject to Section 8.3, the City hereby agrees to defend
and indemnify Redflex and its affiliates, shareholders or other interest holders,
managers, officers, directors, employees, agents. representatives and successors,
DJN1sAgree\Redtle\Agreement
10'17,07 3 40 pm 12
permitted assignees and all persons acting by, through, under or in concert with
them, or any of them (individually a "Redflex Party" and collectively, the
-Redflex Parties") against, and to protect, save and keep harmless the Redflex
Parties from, and to pay on behalf of or reimburse the Redflex Parties as and
when incurred for, any and all Losses which may be imposed on or incurred by
any Redflex Party arising out of or in any way related to (a) any material
misrepresentation, inaccuracy or breach of any covenant, warranty or
representation of the City contained in this Agreement, (b)the willful misconduct
of the City, its employees, contractors 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 Redflex Party, (c)
any claim, action or demand not caused by Redflex's failure to perform its
obligations under this Agreement, or(d) any claim, action or demand challenging
the City's use of the Redflex System or any portion thereof. the validity of the
results of the City's use of the Redflex System or any portion thereof, or the
validity of the Citations issued, prosecuted and collected as a result of the City's
use of the Redflex System or any portion thereof.
8.3. 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
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.
8.4. 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.
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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 City:
City of Redlands
35 Cajon
Redlands, CA. 92373
Attention: Chief of Police
(909) 335-4744
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10/17/07 3.40 pm 14
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; provided, however, that
nothing within this Section 10 shall preclude the Parties from seeking any other legal
or equitable remedies available to them.
11. Miscellaneous.
11.1. Assignment. Neither Party may assign all or any portion of this
Agreement without the prior written consent of the other, which consent shall not
be unreasonably withheld or delayed; provided, however, the City hereby
acknowledges and agrees that the execution (as outlined in Exhibit "F"), 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 City 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 City's prior written approval, which approval
shall not be unreasonably withheld or delayed. The City further acknowledges
and agrees that in the event that Redflex provides written notice to the City that it
intends to Transfer all or any of Redflex's rights pursuant to this Agreement, and
in the event that the City 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 City 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.
1 1.2. RELATIONSHIP BETWEEN REDFLEX AND THE CITY. 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
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10/17/07 3:40 pm 15
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).
1 1.3. 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 forty-eight
(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 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
made pursuant to this Agreement, non-Audited Party shall promptly refund to the
Audited Party the amount of the excess.
11.4. -SPEED ENFORCEMENT- The City and Redflex agree that should
legislation or local ordinance be enacted to enable the photo enforcement of
speed within the City, and the City requires this capability for public safety, then
the City shall have the option to extend this contract to include additional terms
for photo enforcement of speed within the City.
11.5. 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.
11.6. ENTIRE AGREEMENT. This Agreement represents the entire
Agreement between the Parties with respect to the matter contained herein, 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.
11.7. 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.
1 1.8. 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.
11.9. CONSTRUCTION Except as expressly otherwise provided in this
Agreement. this Agreement shall be construed as having been fully and
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10/17/07 3 40 pm 16
completely negotiated and neither the Agreement nor any provision thereof shall
be construed more strictly against either Party.
11.10. 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.
11.11. 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
11.12. 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.
11.13. REMEDIES CUMULATIVE. Each and all of the several rights and
remedies provided for in this Agreement shall be construed as being cumulative
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.
11.14. 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.
11.15. 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.
11.16. 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.
11.17. 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
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10/17/07 3 40 pm 17
enjoin or prevent such a breach, including without limitation an action for
specific performance hereof.
11.18. APPLICABLE LAW. This Agreement shall be governed by and
construed in all respects solely in accordance with the laws of the State of
California,United States.
11.19. 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 San Bernardino and both Parties
specifically agree to be bound by the jurisdiction and venue thereof.
11.20. ATTORNEYS' FEES. In the event any action is commenced to enforce
or interpret any of the terms or conditions of this Agreement the prevailing Party
shall, in addition to any costs and other relief, be entitled to the recovery of its
reasonable attorneys' fees, including fees for the use of in-house counsel by a
Party.
11.21. FINANCIAL FEASIBILITY. Twelve months after the first citation
issuance and annually thereafter, both parties will meet to and evaluate financial
feasibility of the program. Based on general accepted accounting principles, the
Customer and Redflex determine that the program is not financially feasible to
maintain, the Customer will have the right to terminate the contract and Redflex
shall have the right to remedy the cause for termination within forty-five calendar
days (or within such other time period as the Customer and Redflex shall
mutually agree) after written notice from the Customer.
(The remainder of this page is left intentionally blank)
DARAgree\Redtlex Agreement
IN WITNESS WHEREOF,. the Parties hereto have executed this Agreement as of the day
and year first set forth above.
"City" "Redflex"
CITY OF ' DLANDS,, REDFLEX TRAFFIC SYSTEMS, INC.,
By: de,
By:
J.n. Harr n, Mayor Name: okhopcso tatisssi,,
Title: v
Attest:
)
City Clerk /
DATAgree Redtlex Agreement
101707 3 40 pm 19
EXHIBIT-A"
Designated Intersection Approaches
The contract is for the implementation of up to 10 intersections. Identification of enforced
intersection will be based on mutual agreement between Redflex and the City as
warranted by community safety and traffic needs.
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10/17;07 3:40 pm 20
EXHIBIT
Construction and Installation Obligations
Timeframe for Installation: Fixed Photo Red Light System
Redflex shall 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 shall 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 shall use reasonable commercial efforts to install and activate the first specified
intersection within forty-five (45) to sixty (60) days subsequent to formal project kick-
off. 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 City is to provide city
engineers review of Redflex permit requests and all documentation within a timely
manner.
1. Redflex Obligations. 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;
1.3. Develop and submit to the City 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;
1.6. 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 (the "Awareness Strategy");
1.7. Develop the Redlight Violation Criteria in consultation with the City;
1.8. Develop the Enforcement Documentation for approval by the City, which
approval shall not be unreasonably withheld;
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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 City);
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, including California prevailing wage and public bidding laws as
required by the City;
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 City; and
1.14. Issue citation notices for Authorized Violations;
1.15. Redflex shall provide training (i) for up to fifteen (15) personnel of the City,
including but not limited to the persons who City shall appoint as Authorized
Officers and other persons involved in the administration of the Redlight Photo
Enforcement Program, (ii) for at least sixteen (16) hours in the aggregate, (iii)
regarding the operation of the Redflex System and the Redlight Photo
Enforcement Program, which training shall include training with respect to the
Redflex System and its operations, strategies for presenting Violations Data in
court and judicial proceedings and a review of the Enforcement Documentation;
1.16. Interact with court and judicial 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 court and
judicial proceedings, and coordination between Redflex, the City and juvenile
court personnel; and
1.17. Provide assistance at public hearings andreasonable public relations resources
and media materials to the City in the event that the City elects to conduct a
public launch of the Redlight Photo Enforcement Program.
1.18. Citation processing and citation re-issuance
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 Redlands Police Department Project Manager;
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 Redlight Photo Enforcement Program;
2.1.4. Provide assistance to Redflex in obtaining access to the records data of the
Department of Motor Vehicles in Redflex"s capacity as an independent
contractor to the City; and
2.1.5. Assist Redflex in seeking the Approvals
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2.1.6. Provide reasonable access to the City's properties and facilities in order to
permit Redflex to install and test the functionality of the Designated
Intersection Approaches and the Redlight Photo Enforcement Program;
2.1.7. 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;
2.1.8. Seek approval or amendment of Awareness Strategy and provide written
notice to Redflex 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 Redflex begins the installation of any of the Designated Intersection
Approaches and ending one (1) month after the Installation Date;
2.1.9. Assist Redflex in developing the Redlight Violation Criteria; and
2.1.10. Seek approval of the Enforcement Documentation.
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EXHIBIT -C"
Maintenance
1. All 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 Engineering 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. The provision of all necessary electrical services to the Designated Intersection
Approaches will be the sole responsibility of the City
5. 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.
6. The Redflex Project Manager (or a reasonable alternate) shall be available to the
Redlands Police Department Project Manager each day, on a reasonable best efforts
basis.
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EXHIBIT "D"
COMPENSATION & PRICING
Commencing on the expiration of the Warning Period for each Designated Intersection
Approach, City shall be obligated to pay Redflex a fixed fee of$6,000 per month for each
Designated Intersection Approach ("Fixed Fee") as full remuneration for performing all
of the services contemplated in this Agreement.
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10 17 07 3:40 pm 25
BUSINESS ASSUMPTIONS FOR ALL PRICING OPTIONS:
1. Redflex construction will be able to utilize existing conduit for installation where
space is available.
2. City 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.
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10 17/07 3:40 pm 26
Exhibit
Additional Rights and Obligations
Redflex and the City shall respectively have the additional rights and obligations set forth
below:
1. Redflex 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 Redlight Photo Enforcement Program (actual
print and production costs are the sole responsibility of the City).
2. Redflex shall be solely responsible for installing such Signage. The Redflex 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
("Signage"), including but not limited to the Vehicle Code, and shall assist in
determining the placement of such Signage.
3. The Redflex Project Manager and the Redlands Police Department 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 City
Manager shall mutually agree.
4. The City shall not access the Redflex System or use the Redlight Photo Enforcement
Program in any manner other than prescribe 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 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 Redflex System, or (iii) any materials
or information not intentionally made available by Redflex 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 Redflex System or using the Redlight Photo
Enforcement Program.
6. Each of Redflex 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, each of Redflex and the City shall obey any and all such rules and
regulations.
7. The City 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 City, or any of its employees, contractors or agents.
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Insurance
1. During 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 Three Million Dollars ($3,000,000)
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. Redflex will use its
commercial best efforts to procure and maintain 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 California, Employer's Liability Insurance with
coverage of not less than One Million Dollars ($1,000,000) per occurrence.
6. 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 City, and any changes to such deductibles or self-insured retentions during
the Term must be approved in advance in writing by the City.
7. With respect to the Commercial General Liability Insurance the following
additional provisions shall apply:
8. The City 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.
9. The insurance coverage procured by Redflex and described above shall be the
primary insurance with respect to the City Parties in connection with this
Agreement, and any insurance or self-insurance maintained by any of the City
Parties shall be in excess, and not in contribution to, such insurance.
10. Any failure to comply with the reporting provisions of the various insurance
policies described above shall not affect the coverage provided to the City Parties,
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.
11. 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 thereby shall not be cancelled except after thirty (30) calendar days'
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prior written notice to the City. 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 City and shall take all necessary actions to
correct such cancellation in coverage limits, and shall provide written notice to
the City 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 City 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 City for such insurance. If the premium costs
advanced by the City for such insurance exceed any amounts due to Redflex
pursuant to this Agreement, Redflex shall promptly remit such excess amount to
the City upon receipt of written notice thereof.
12. 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 City prior to Redflex commencing any work pursuant to the
terms of this Agreement.
13. All insurance required by express provision of this Agreement shall be carried only
in responsible insurance companies licensed to do business in the State of
California and policies required under Paragraph 2 shall name, as additional
insureds, City, its elected officials, officers, employees, and agents. All policies
shall contain language, to the extent obtainable, to the effect that (1) the insurer,
insured and all subcontractors waive the right of subrogation against City and
City's elected officials, officers, employees, and agents; (2) the policies are primary
and noncontributing with any insurance that may be carried by City; and (3) they
cannot be canceled or materially changed except after thirty (30) days' written
notice by the insurer to City by certified mail. Redflex shall furnish City with
copies of all such policies promptly upon receipt of them, or certificate evidencing
the insurance. Redflex may effect for its own account insurance not required under
this Agreement.
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Exhibit F
FORM OF ACKNOWLEDGMENT AND CONSENT
This Acknowledgement and Consent. dated as of November 6, 2007. is entered into by
and between the City of Redlands (the "City")and Redflex Traffic Systems, Inc.,
("Redflex"), with reference to the Agreement between the City of Redlands
and Redflex Traffic Systems, inc. for Photo red light enforcement program, dated as of
November 6, 2007, by and between the City and Redflex (the "Agreement").
1. Redflex has entered into a Credit Agreement, dated as of August 3, 2003
(the "Harris-Redflex Credit Agreement"), with Harris Trust and Savings Bank(the
"Bank"), pursuant to which the Bank has provided certain working capital credit facilities
to Redflex. Such credit facilities will provide Redflex the working capital that it needs to
perform its obligations to the City under the Agreement.
2. Pursuant to the Harris-Redflex Credit Agreement, Redflex has granted
Harris a security interest in all of Redflex's personal property as collateral for the
payment and performance of Redflex's obligations to the Bank under the Harris-Redflex
Credit Agreement. Such security interest applies to and covers all of Redflex's contract
rights, including, without limitation, all of Redflex's rights and interests under the
Agreement.
3. Redflex will not, by virtue of the Harris-Redflex Credit Agreement, be
relieved of any liability or obligation under the Agreement, and the Bank has not
assumed any liability or obligation of Redflex under the Agreement.
4. The City hereby acknowledges notice of, and consents to, Redflex's grant
of such security interest in favor of the Bank in all of Redflex's rights and interests under
the Agreement pursuant to the Harris-Redflex Credit Agreement.
5. The City further acknowledges and agrees that this Acknowledgement and
Consent shall be binding upon the City and shall inure to the benefit of the successors and
assigns of the Bank and to any replacement lender which refinances Redflex's obligations
to the Bank under the Harris-Redflex Credit Agreement.
IN WITNESS WHEREOF, the City and Redflex have caused this
Acknowledgement and Consent to be executed by their respective duly authorized and
elected officers as of the date first above written.
The City: Redflex:
CITY OF REDLANDS REDFLEX TRAFFIC SYSTEMS, INC.,
a Delaware Corporation
By: Arrii i trAPif ,•,,e7 By: IW
Namo. Jon Harrison Name: AA-adv., VAse-4.38
Tit e: Mayor Title: •V•
ATTEST: Th )
Lor"rie Poyz0-, \City Clerk
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