HomeMy WebLinkAboutPD Photo Red Light Enforcement ProgramkGREEIVIENT BETWEEN THE CITY OF SAN RAFAEL
AND REDFLEX TRAFFIC SYSTEMS, INC. FOR
PHOTO RED LIGHT ENFORCEMENT PROGRAM
Agreement ("Agreement") is made as of this3Ra day of K -4 9c f+ , 2009 by and
oetween Redflex Traffic Systems, Inc. with offices at 23751 N. 23`d Avenue, Phoenix,
Arizona, 85027 ("Redflex"), and the City of San Rafael, a charter city, with offices at
1400 Fifth Avenue, San Rafael, CA 94901 (the "Customer").
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 Customer desires to engage the services of Redflex to provide certain
equipment, processes and back office services so that Authorized Employees of the
Customer are able to monitor, identify and enforce red light running violations; 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:
1.1. "Authorized Emnlovee" means the Customer's Project Manager or such
other individual(s) as the Customer shall designate to review Potential Violations
and to authorize the issuance of Citations in respect thereto,
1.2. "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 Confirmed Violation.
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:
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,
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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, or (v) was required by
applicable state law to be described.
1.4. "Confirmed Violation" means each Potential Violation in the Violation
Data for which authorization to issue a citation (or warning notice) in the form of
an Electronic Signature is given by the Authorized Employee by using the
Redflex System.
1.5. "Customer's Proiect Manager" means the project manager appointed by
the Customer in accordance with this Agreement, which shall be an Authorized
Employee 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
documents of the Customer or by the City Council or other governing body of
the Customer.
1.6. "Designated Intersection Anoroaches" means the Intersection Approaches
as Redflex and the Customer shall mutually agree from time to time. See Exhibit
A for the number of approaches.
1.7. "Electronic Signature" means the method through which the Authorized
Employee indicates his or her approval of the issuance of a Citation for a
Confirmed Violation using the Redflex System.
1.8. "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 Customer, a numbering sequence for use on all citation
notices (in accordance with applicable court rules), instructions to accompany
each issued Citation (including but not limited to in such instructions a
description of basic court procedures, payment options and information regarding
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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 applicable vehicle registry), and
technical support documentation for applicable court and judicial officers.
1.9. "Equipment" means any and all approach cameras, sensors, equipment,
photo enforcement signage, components, products, software and other tangible
and intangible property relating to the Redflex System(s).
1.10. "`Fine" means a monetary sum assessed for Citation, including but not
limited to bail forfeitures, but excluding suspended fines.
1.11. "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.
1.12. "Installation Date" means the date on which Redflex completes the
construction and installation of the Redflex System at a Designated Intersection
Approach in accordance with the terms of this Agreement so that such
Designated Intersection Approach is operational for the purposes of functioning
with the Photo Red Light Enforcement Program.
1.13. "Intellectual Provertv" 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.
1.14. "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) Redflex System has been installed by
Redflex for the purposes of facilitating Red Light Photo Enforcement by the
Customer.
1.15. "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 issuance of Citations
using the Redflex System.
1.16. "Person" means an individual, company, Governmental Agency,
partnership, firm, corporation, or other legal entity.
1.17. "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 sensor arrays which, collectively, are capable of
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measuring Violations and recording such Violation data in the form of
photographic images of motor vehicles.
1.18. "Photo Red Licht Violation Criteria" means the standards and criteria by
which Potential Violations will be evaluated by Authorized Employees 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.
1.19. "Potential Violation" means, with respect to any motor vehicle passing
through a Designated 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 Employee to review
such data and determine whether a Red Light Violation has occurred.
1.20. "Pronrietary Pronertv" 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.
1.21. "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 Programs 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.
1.22. "Redflex's Proiect Manaeer" means the project manager appointed by
Redflex in accordance with this Agreement, 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. The Redflex Project Manager shall
initially be Jack Weaver, who may be replaced by Redflex upon ten (10) business
days written notice to Customer.
1.23. "Redflex Svstem" means, collectively, the SalusTM and/or SMARTcamTM
System, the SMARTsceneTM System, and all of the other equipment,
applications, cameras, sensors, components, motor vehicles and other tangible
and intangible property relating thereto, to enable Redflex to enforce a minimum
of one lane of travel at a designated location, together with the SMARTopsTM
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System, the Photo Red Light Enforcement Program, and all of the other
equipment, applications, back office processes, servers, off-site backup systems,
software and other tangible and intangible property relating thereto.
1.24. "Records Retention" means the period of time that Redflex will retain
confidential information to include photographic evidence and data associated
with the photo enforcement program.
1.25. "SMARTcamTM Svstem" means the proprietary software system that
controls the photo enforcement system of Redflex relating to the Photo Red Light
Enforcement Program.
1.26. "SalusTM Svstem" means the proprietary software system that controls the
photo enforcement system of Redflex relating to the Photo Red Light
Enforcement Program.
1.27. "REDFLEXredTM System" means the proprietary digital redlight photo
enforcement system of Redflex relating to the Photo Red Light Enforcement
Program.
1.28. "SMARTovSTM Svstem" means the proprietary back-office processes of
Redflex relating to the Photo Red Light Enforcement Program.
1.29. "SMARTsceneTM Svstem" means the proprietary digital video camera
unit, hardware and software required for providing supplemental violation data.
1.30. "Traffic Sienal Controller Boxes" means the signal controller interface
and vehicle detection owned and operated by the Customer. This includes, but is
not limited to, the Customer's traffic controller, Customer's vehicle detection
equipment, Customer's communication equipment, and Customer's controller
cabinet, .
1.31. "Violation" means any traffic violation subject to photo enforcement as
prohibited by 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.
1.32. "Violations Data" means the images and other Violations data gathered by
the Redflex System at the Designated Intersection Approaches.
1.33. "Warnine Period" means a period of thirty (30) days after the Installation
Date during which only warning notices shall be issued by Redflex for a
Violation.
2. TERM. The term of this Agreement shall commence as of the date first written
hereinabove and shall continue for a period of five (5) year(s) thereafter, which initial
term may be extended at Customer's election for two (2) additional two (2) year
terms, by Customer's City Manager giving written notice to Redflex at least sixty
(60) days prior to the last day of the previous term.
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
Agreement.
3.1. INSTALLATION. With respect to the construction and installation of the
Redflex System at the Designated Intersection Approaches, the Customer and
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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
Customer or the Authorized Employee via the Redflex System;
3.3.3. The Redflex System will be accessible by Authorized Staff through a
secure and encrypted connection by use of a confidential user account on
any computer equipped with a high-speed Internet connection and
Microsoft's Internet Explorer version 6.1 SPlor another web browser
agreed upon by Redflex and Customer's IT Director.
3.3.4. Redflex shall provide the Customer's Authorized Employee with access to
the Redflex System for the purposes of reviewing the pre-processed
Violations Data within seven (7) calendar days of the gathering of the
Violation Data from the applicable Designated Intersection Approaches.
3.3.5. The Customer shall cause the Authorized Employee to review the
Violations Data and to determine whether a citation (or warning notice
during the Warning Period) shall be issued with respect to each Potential
Violation captured within such Violation Data within three (3) calendar
days, and shall transmit each such determination of a Confirmed Violation 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. REDFLEX HEREBY ACKNOWLEDGES AND AGREES
THAT THE DECISION TO ISSUE A CITATION (OR WARNING
NOTICE DURING THE WARNING PERIOD) SHALL BE THE SOLE,
UNILATERAL AND EXCLUSIVE DECISION OF THE AUTHORIZED
EMPLOYEE AND SHALL BE MADE IN SUCH AUTHORIZED
EMPLOYEE'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 Confirmed Violation, Redflex shall print and mail, a
Citation (or warning notice during the Warning Period) within five (5)
calendar days after Redflex's receipt of an Electronic Signature for such
Confirmed Violation. The Certificate of Mailing shall be completed on each
Citation and accompanied by a declaration under penalty of perjury that the
mailing was conducted in compliance with the laws of the State of
California.
3.3.7. Redflex shall provide a toll-free telephone number for the purposes of
answering citizen inquiries, and shall include such number on each Citation
(and Warning Notice).
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3.3.8. Redflex shall permit the Authorized Employee to generate reports using
the Redflex Standard Report System.
3.3.9. 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 Citations, 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.
3.3.10. During the six (6) month period following the Installation Date and/or
upon Redflex's receipt of a written request from the Customer at least
fourteen (14) calendar days in advance of court proceeding, Redflex. shall
provide expert witnesses for use by the Customer in prosecuting Violations;
movided, however, the Customer shall use reasonable best efforts to seek
judicial notice in lieu of requiring Redflex to provide such expert witnesses.
During the initial 6 month period such expert witnesses shall be provided by
Redflex at no cost to Customer, but following the initial 6 month period such
expert witnesses shall be provided by Redflex to Customer on a cost
reimbursement basis as specified in Exhibit "D" attached hereto.
3.3.11. During the six (6) month period following the Installation Date, Redflex
shall provide such training to Customer 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 Photo Enforcement
Program.
3.4. RECORDS RETENTION. Redflex will retain the Violations Data for a period of
time that is compliant with California Vehicle Code (CVC) requirements.
Equipment maintenance records will be retained for five (5) years.
3.5. COMPENSATION. Redflex shall have the right to receive, and the Customer
shall be obligated to pay, the compensation set forth on Exhibit "D" attached
hereto.
3.6. 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.
3.7. 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 cost, if any (the "Change
Order Proposal"). The 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 fee 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, but in no event shall any additional Customer's
payments for such Change Orders exceed $50,000 over the Term of this
Agreement, without the approval of the Customer's City Council. 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, a non-exclusive, non -transferable
license during the Term of this Agreement to: (a) access and use the Redflex
System for the sole purpose of reviewing Potential Violations and authorizing the
issuance of Citations (and warning notices during the Warning Period) 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 San Rafael) 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, which
approval shall not be unreasonably withheld. The Customer shall have access to
the Redflex System to review Potential Violations and to print copies of any
content posted on the Redflex System related thereto for the Term of this
Agreement and for a period of six (6) months following its expiration.
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
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
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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 by third parties, 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. 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
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 Customer the right to keep using the
allegedly infringing items, modify them to avoid the alleged infringement or
replace them with non -infringing items.
S. REPRESENTATIONAND WARRANTIES.
5.1. REDFLEX REPRESENTATIONS AND WARRANTIES.
5.1.1. Authoritv. 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. Maintenance and Sunnort. Redflex hereby warrants and represents that for
the Term of this Agreement, Redflex will provide ongoing maintenance and
support at the same or greater level than the previous year on all components
of the Reflex System and the Photo Red Light Enforcement Program. In
addition, it is mutually agreed that if there are any available upgrades or
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enhancements that will materially improve the effectiveness of the Redflex
System or Photo Red Light Enforcement Program, Redflex will perform any
necessary modifications, upgrades or replacements and install any necessary
components at no additional cost to the Customer.
5.1.4. Media Defects. Software Operation, and Malicious Code. Redflex hereby
warrants and represents that (a) any media on which software is provided to
Customer will be free from defects in materials or workmanship, (b) any
Redflex software provided to or accessed by Customer will operate
substantially in accordance with documentation provided to Customer, and
(c) any Redflex software will be free of potentially malicious code, including
by not limited to viruses, worms, spyware, and key -loggers.
5.1.5. Intellectual Proverty. Redflex warrants that it owns the intellectual
property rights to and may legally license the use of the Redflex System and
the Photo Red Light Enforcement Program by Customer, and that no part of
such Redflex. System and Photo Red Light Enforcement Program violates
any intellectual property rights owned by any third parties.
5.1.6. Malfunction Free Operation. Redflex warrants that the Redflex System
and the Photo Red Light Enforcement Program will operate free of any
malfunctions twenty-eight (28) or more days during any thirty (30) day
period during the Term of this Agreement.
5.2. CUSTOMER REPRESENTATIONS AND WARRANTIES.,
5.2.1. Authoritv. 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. 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 CUSTOMER'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 CUSTOMER SELECTS FOR
USE, OR THAT THE OPERATION OR USE THEREOF WILL BE
UNINTERRUPTED. 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.
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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 or providing
controlling precedent for the Customer, making a ruling, or any 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, including any
warranties in Paragraph 5. In the event of a termination due to Section 6.1(i) or
6.1(ii) above, Customer shall be relieved of any further obligations for payment
to Redflex other than as specified in Exhibit "D". 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 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. The right 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.
6.2. TERMINATION WITHOUT CAUSE:
6.2.1. The Customer may terminate this Agreement without cause at any time by
giving thirty (30) calendar days advance written notice of termination to
Redflex. If the Customer so terminates this Agreement, the Customer shall
be obligated to pay Redflex for all services satisfactorily performed in
accordance with this Agreement, through and including the termination date
in accordance with the fees specified in Exhibit "D". In addition, the
Customer shall pay Redflex the cost recovery reimbursement as specified in
Exhibit "D".
6.2.2. Redflex may terminate this Agreement without cause by giving ninety (90)
days written notice of Customer signed by Redflex's Project Manager. If
Redflex so terminates this Agreement, the Customer shall be obligated to
pay Redflex for all services satisfactorily performed in accordance with this
Agreement, through and including the termination date in accordance with
the fees specified in Exhibit "D").
6.3. PROCEDURES UPON TERMINATION. The termination of this Agreement
shall not relieve either party of any liability that accrued prior to such
termination. Except as set forth in Section 6.3, upon the termination of this
Agreement, all of the provisions of this Agreement shall terminate and:
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 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 Citations 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 Citations 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
Citations issued prior to the termination of this Agreement. Immediately
upon termination Redflex is no longer bound to the Data Retention
Requirements for any data and if the customer wishes to obtain the data it
must be conveyed at the time of termination. Redflex will transfer the data
and relevant information to the Customer by a mutually agreed upon
method. The Customer will assume the burden for all costs associated with
this task including but not limited to administrative, storage media, storage
media authoring devices, and internet bandwidth used for transferring data.
Redflex will provide no tools for accessing this data or other guarantees.
6.3.2. 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 Citations
issued by Redflex prior to the termination. If Customer terminates the
Agreement without cause under Section 6.2.1, Redflex shall invoice
Customer for the cost recovery reimbursement due under the provisions of
Exhibit "D", and Customer shall be obligated to pay such amount no more
than six (6) months after the Termination date, provided that no late fee or
other penalty shall accrue for any cost recovery reimbursement not paid by
Customer by such date.
6.3.3. 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 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: (x) Sections 4.2
(Reservation of Rights), 5.1 (Redflex Representations and Warranties), 5.2
(Customer Representations and Warranties), 5.3 (Limited Warranties), 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 (y) 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
12
provisions survive the expiration or termination of the Agreement, or must
survive to give effect to the provisions of this Agreement.
7. CONFIDENTIALITY. Except as provided in this Section 7, 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 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) to the extent required by law,
whether in response to an administrative or judicial subpoena or to a request under the
California Public Records Act or similar law, provided that prior reasonable advance
notice has been given to the other party to allow that party to seek relief against such
disclosure.
8. INDEMNIFICATION AND LIABILITY.
8.1. INDEMNIFICATION BY REDLEX. 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) the negligent
(passive or active) acts 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 negligent or
willful misconduct of any Customer Party, or (c) any claim that the Redflex
System infringes the patents, trademarks, copyrights or any other intellectual
property proprietary property rights of third parties, or (d) any claim that
Redflex's employees or agents are entitled to be considered Customer's
13
employees or entitled to receive employee benefits from Customer including but
not limited to retirement benefits.
8.2. INDEMNIFICATION PROCEDURES. In the event any claim, action or
demand (a "Claim") for which the Customer seeks indemnification from Redflex,
the Customer shall give Redflex written notice of such Claim promptly after the
Customer first becomes aware thereof.. Redflex shall have the right to choose
counsel to defend such Claim, subject to the approval of such counsel by the
Customer, which approval shall not be unreasonably withheld. Customer shall
have the right to participate in the defense at its sole expense; provided, however,
the Customer shall have the right to take over the control of the defense of such
Claim at any time if the Customer irrevocably waives all rights to
indemnification from and by Redflex. The Customer shall cooperate with
Redflex in the defense or settlement of any Claim. In no event shall Redflex enter
into any settlement agreement without the Customer's prior written consent,
which consent will not be unreasonably withheld.
8.3. LIMI'T'ED 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: PROGRAM MANAGEMENT
Facsimile: (480) 607-5552
9.2. Notices to the Customer:
City of San Rafael
1400 Fifth Avenue
San Rafael, CA 94901
Attention: Police Chief
Facsimile: 415-458-5344
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, or either party may unilaterally
initiate litigation or pursue other available remedies. The rights and obligations under
this Section 10 shall not limit in any way the right of either party to terminate this
Agreement as provided in Section 6.
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 Customer 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 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
15
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 Partv") 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 ten (10)
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
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.
V
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
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.
17
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
California, 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 Marin, CA and both parties
specifically agree to be bound by the jurisdiction and venue thereof.
11.19. SHUT DOWN FOR SAFETY. The Customer reserves the right to shut
down power to all or part of the Redflex System for such period of time as may
be required to protect the public health or safety as determined by the sole
judgment of the Customer.
(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"
"Redflex"
CITY OF SAN
nRAFAE,L(� REDFLE/X TRAFFIC SYSTEMS, INC.,
By: 1'' lg` By:
Name: Name: A >Qca.,
Title: Title: L q p
APPROVED AS TO FORM
4
ROBERT F. EPSTEIN, CI� ATTORNEY
ATTEST:
f ZS i Gir 4e,
ESTHER C. BEIRNE, CITY CLERK
z
EXHIBIT "A"
Desianated Intersection Annroaches
The contract is for the implementation of up to ten (10) intersection approaches.
Identification of enforced intersection approaches will be based on mutual agreement
between Redflex and the Customer as warranted by community safety and traffic needs.
The Customer will make all reasonable efforts to provide Redflex's Project Manager
with a list of Customer's initial proposed intersection approaches within ten (10) calendar
days after execution of this Agreement..
If there is no mutual agreement on any intersection approaches within one hundred and
twenty (120) calendar days after execution of this Agreement, then either party may give
notice to the other party terminating this Agreement at no cost to either party, as defined
in Paragraph 6.
20
EXHIBIT "B„
Construction and Installation Obligations
Timeframe for Installation: Fixed Photo Red Light Svstem
Redflex shall have each Designated Intersection Approach installed and activated with
the Redflex System in phases in accordance with an implementation plan, including a
Traffic Control Plan, to be mutually agreed to by Redflex and the Customer. Whenever
any installation, maintenance, repair or removal of the Redflex System will be undertaken
by Redflex or its contractor, an encroachment permit shall be obtained by Redflex or its
contractor from the Customer unless such requirement is waived by Customer, provided
that no fees shall be required for any such permit.
Redflex will use reasonable commercial efforts to install the Redflex 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 designated
intersection approach within sixty (60) days subsequent to the issuance of all required
permits and receipt of the required Customer approved program business rules. The
Customer agrees that the estimated timeframe for installation and activation are subject to
conditions beyond the control of Redflex and are not guaranteed. However, after issuance
of all permits required by the Customer and other Governmental Authority, if Redflex
fails to install and activate the Redflex System at the first designated intersection
approach, the Customer shall have the right to give notice to Redflex terminating this
Agreement at no cost to the Customer.
In order to provide the Customer with timely completion of the Red Light Photo
Enforcement Program, Redflex requires that the Customer assist with obtaining timely
approval of permit requests. The Customer acknowledges the importance of the safety
program and undertakes that in order to keep the project on schedule the Customer will
provide engineering review(s) of Redflex permit requests and all documentation in 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;
1.2. Organize a pre -design meeting at the Customer's Project Manager's offices
and/or in the field with pertinent Customer staff to discuss the design prior to
plan submittal;
1.3. Request available "as -built" electronic or hard copy engineering drawings for the
Designated Intersection Approaches (the "Drawings") from the Customer's
Traffic Engineer;
1.4. Develop and submit to Customer construction and installation specifications in
detail satisfactory to the Customer's Traffic Engineer for the Designated
Intersection Approaches, including but not limited to specifications for all radar
21
sensors, camera detection systems, pavement loops, electrical connections and
traffic controller connections, as required;
1.5. Obtain approvals from the relevant Governmental Authorities having authority or
jurisdiction over the construction and installation specifications for the Redflex
System in the Designated Intersection Approaches (collectively, the
"Approvals");
1.6. Submit to the Customer a public awareness strategy (the "Awareness Strategy"),
which strategy shall include media and educational materials ("Materials"),
including radio and television public service announcements in English and
Spanish, outdoor and print advertisements and web page ready animation video
of the entire Photo Red Light Enforcement Program from the operation of the
Redflex System through the payment of the citation, for the Customer's use and
amendment;
1.7. Develop the Photo 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, including the
adjustment, modification or alteration of existing traffic safety equipment
necessary to accommodate the Redflex System, in conformance with the plans
and specifications approved by the Customer's Traffic Engineer;
1.10. Cause a licensed 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, and in conformance with the plans and specifications approved by
the Customer's Traffic Engineer, provided that no Customer conduit or pull
boxes may be used except as agreed upon by Customer;
1.11. Provide and install circuit breakers in Customer's supplied power pedestals. In
the event that there is not sufficient capacity within the existing source of power
at a specific intersection, Redflex will supply a new power pedestal;
1.12. 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;
1.13. Implement the use of the Redflex System at each of the Designated Intersection
Approaches;
1.14. Provide and install required Photo Red Light Enforcement Program signage in
compliance with Caltrans specifications at each intersection where a Redflex
System is installed. In addition, provide two signs per Redflex System installed
that will be stored and installed by Customer as required for replacement of the
initial signs provided by Redflex.
1.15. Deliver the Materials to the Customer; and
1.16. Provide warning notices during the Warning Period, and Citation processing
and citation issuance/re-issuance for Confirmed Violations;
22
1. 17. Provide training (i) for up to fifteen (15) personnel of the Customer, including
but not limited to the persons whom Customer shall appoint as Authorized
Employees and other persons involved in the administration of the Photo Red
Light Enforcement Program, (ii) for up to twenty-four (24) hours in the
aggregate, (iii) regarding the operation of the Redflex System and the Photo Red
Light 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; (iv) training to be conducted at Customer's site; (v) Redflex
will provide additional training in their offices in Phoenix for a maximum of two
(2) personnel designated by Customer for up to two days (Redflex will cover
airfare and hotel costs only with a cap on this expenditure of seven hundred fifty
dollars ($750.00)).
1.18. 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 Customer and
juvenile court personnel;
1.19. Install camera equipment at the Designated Intersection Approaches that shall
produce at least 12.1 pixel quality pictures;
1.20. Provide electronically to Customer for import into the Customer's Record's
Management System (RIMS-Sunridge Systems, Inc.) the data from any Warning
Notice or Citation issued to the violator, in a format specified in Exhibit "G",
within seventy-two (72) hours of Redflex's mailing of the Warning Notice or
Citation to the violator;
1.21. In addition to providing the Marin County Superior Court a paper copy of any
citation issued/re-issued for a Confirmed Violation, Redflex shall provide
electronically to the Marin County Superior Court for import into the Court's
Record's Management System the data from any Citation issued to the violator in
a format to be provided by the court, within seventy-two (72) hours of Redflex's
mailing of the Citation to the violator;
1.22. Provide to Customer, at least thirty (30) days prior to the start of the Warning
Period for the first Designated Intersection Approach at which the Redflex
System is installed, the following computer equipment for the Customer's use:
(a) Two (2) Dell U1traSharp 3008WFP flat panel widescreen monitors with 30
inch display and adjustable stand, and with an extended warranty of at least 5
years.
(b) One (1) Dell Optiplex 755 minitower computers with Energy Smart rating,
Intel Core 2 Duo processor E6550 running at 2.33 GHz with 1.33 GHz FSB, 2 GB
DDR2 SDRAM running at 800 MGz, XFX PVT84JYDF3 8600GT 512 MB dual
video card with dual monitor output, 160 GB SATA hard drive running at IOK
RPM and 3.0 Gb/s, 16X DVD+/ -RW SATA optical drive, with an extended
warranty of at least 5 years.
23
(c) One (1) Dell Latitude D830 laptop computer with Energy Smart rating.
Intel Core 2 Duo processor running at 2.4GHz, 2 GB DDR2-667 SDRAM, 256
NVIDIA Quadro NVS 140M video card, 15.4 inch WUXGA widescreen LCD
panel, 120 GB hard drive running at 5400 RPM, 8X DVD +/- RW optical drive,
and with an extended warranty of at least 5 years.
(d) One (1) Xerox Phaser 6360DN network ready color laser printer, with
memory upgrade to 1 GB, and with an extended warranty of at least 5 years.
(e) One (1) Primera Bravo Xr CD/DVD Publisher Systems with an extended
warranty of at least 5 years.
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 Customer's 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
Photo Red Light 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 Customer;
2.1.5. Assist Redflex in seeking the Approvals;
2.1.6. 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 Photo Red Light Enforcement Program;
2.1.7. 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;
2.1.8. Seek approval or amendment of Awareness Strategy and provide written
notice to Redflex with respect to the quantity of 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 four (4) months after the
Installation Date for the last Designated Intersection Approach completed;
2.1.9. Provide on-going adequate electrical power in order to operate the
systems.
2.1.10. Assist Redflex in developing the Photo Red Light Violation Criteria;
2.1.11. Seek approval of the Enforcement Documentation;
2.1.12. The Customer shall provide on an agreed upon frequency, without cost to
Redflex, reports regarding available collision data, and will assist Redflex in
obtaining from the Marin County Superior Court reports on the prosecution
of Citations, the collection of fines, fees and other monies, in such format
and for such periods as Redflex may reasonably request;
24
2.1.13. Yellow Light Timing Review: The Customer is responsible to ensure that
the yellow or amber light phase timing at all photo enforced intersections
meets minimum standards according to Federal, State, and local laws,
guidelines, and/or rules;
2.1.14. The Customer shall be responsible to provide and install LED traffic
signal lights (yellow and red) at all enforced locations;
2.1.15. The Customer shall be responsible for the maintenance, repair and
replacement of all Photo Enforcement signage installed at each intersection
where the Redflex System is operational.
2.1.16. Customer is responsible for the web browsers and high speed Internet
access necessary to access the Redflex system;
25
EXHIBIT "C"
Maintenance
1. All repair and maintenance of the Redflex 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 do any Redflex System maintenance work within the Traffic Signal
Controller Boxes or Traffic Signal Control System except after giving reasonable
advance notice to the Customer's Traffic Engineer and any such maintenance work
shall be done under the supervision of the Customer's Traffic Engineer or designee.
3. The provision and maintenance of all necessary communication, broadband and
telephone services to the Designated Intersection Approaches will be the sole
responsibility of Redflex.
4. In the event that images of a quality suitable for the Authorized Employee to identify
Violations cannot be reasonably obtained without the use of flash units, Redflex shall
provide, install and maintain such flash units.
5. Redflex shall assign specific personnel to provide follow up assistance to the
Customer in the form of the HELPDESK, a designated Customer Service
Representative and a Director of Accounts.
6. Redflex will inspect the Equipment and the functionality of the Redflex System at
each Designated Intersection Approach at least monthly, conduct remote inspection
of the System at least weekly, and make automated camera checks each business day.
Redflex shall respond to any material malfunction of any Redflex System within
twenty-four (24) hours of its receipt of a notice of malfunction from the Customer or
its own discovery of such malfunction. In the event of any Redflex System
malfunction at a Designated Intersection Approach, Redflex shall use its best efforts
to cause the malfunction to be repaired within forty-eight (48) hours of its receipt of a
malfunction notice from the Customer or discovery of the malfunction itself If the
malfunction has not been satisfactorily repaired so that functionality has been restored
within such forty-eight (48) hour period, Redflex shall notify the Customer's Project
Manager and Redflex's compensation shall be reduced according to Exhibit "D",
Credit for Malfunctioning or Non -Operating Designated Intersection Approached.
7. Redflex will provide copies of any maintenance reports on the Redflex System at the
request of the Customer's Traffic Engineer upon two (2) business days notice.
26
EXHIB rT "D"
Comvensation and Pricine
1. Fixed Fee
Commencing on the expiration of the Warning Period for each Designated Intersection
Approach, Customer shall be obligated to pay Redflex a fixed fee of $5,900 per month
for each Designated Intersection Approach ("Fixed Fee") as full remuneration for
performing all of the services contemplated in this Agreement. Such fixed fee shall be
pro -rated for any month in which the Redflex System at a Designated Intersection
Approach is not operational for the entire month.
1. Cost Recovery Reimbursement for Termination Without Cause.
In the event the Customer terminates this Agreement without cause under Section 6.2,
Redflex shall be entitled to a cost recovery reimbursement for the Redflex System
installed at each Designated Intersection Approach prior to the termination notice, which
reflects reimbursement for the direct labor costs and direct material costs (not including
Equipment costs and salvageable material costs). Redflex shall provide the Customer
with an itemization of the reimbursable costs for each Designated Intersection Approach,
with supporting invoices and labor expense documentation, within thirty (30) days of the
completion of the Redflex System at each Designated Intersection Approach. Said
reimbursable costs shall not exceed $70,000 per Designated Intersection Approach. The
cost recovery reimbursement shall be calculated by the following formula for each
Designated Intersection Approach:
Cost Recovery Reimbursement per Designated Intersection Approach = (X/ -Y) x Z,
Where the foregoing terms have the following meaning:
X = the number of months remaining in the Agreement;
Y = the number of months in the Agreement;
X/Y = the percentage of remaining Agreement;
Z = the reimbursable costs for the installed Designated Intersection Approach.
2. Credit for Malfunctioning Redflex System
The Customer shall not be obligated to pay, and will not be invoiced, for each calendar
day that the Redflex System at a particular Designated Intersection Approach is not
functioning for a period of more than two days in any thirty day period due to Equipment
related malfunction. This credit will not apply to a situation where the Customer requests
to shut down power to address public health and safety as described in Section 11.19.
The invoice for the relevant period will show a credit of 1/30'' of the Fixed Fee for each
day that the Redflex System was not functioning in that month. In any month where the
Redflex System is not functioning for twenty-four (24) or more days at a particular
Designated Intersection Approach, the Customer shall not be obligated to pay and will
not be invoiced for the Fixed Fee for that Designated Intersection Approach.
27
3. Business Assumption for all Pricing Options
a. Redflex may utilize Customer's existing conduit for installation of the Redflex System
only where specified in the plans and specifications approved by Customer in connection
with the Encroachment Permit issued to Redflex. Redflex will place Redflex tags on any
of its wiring or other Equipment placed within the Customer's conduit. Redflex will
promptly reimburse Customer for the cost of repairing any damages caused to Customers
conduit or equipment as a result of Redflex's use of such conduit, provided Customer has
provided Redflex with an invoice describing the damaged conduit or equipment and
detailing the cost of such repair. Redflex will assume the cost of installation of new
conduit where the use of Customer's existing conduit is not approved by the Customer,
and the placement of such conduit shall be in compliance with the Encroachment Permit
issued by the Customer.
b. Each year, on the anniversary date of the contract, the pricing will increase or decrease
by the previous one year change in the CPI. CPI will be derived from the publication of
the U.S. Department of Labor Consumer Price Index for All Urban Consumers -San
T_ -Oakland-San Jose, CA.
ovision of all necessary communication, broadband and telephone services to the
Designated Intersection Approaches will be the sole responsibility of Redflex
d. Redflex shall be solely responsible for installing required signage. Redflex shall be
solely responsible for the fabrication of any signage, notices or other postings required by
the customer in Exhibit `B", or pursuant to any law, rule or regulation of any
cental Authority ("Signage'), including but not limited to Caltrans specifications
Vehicle Code, and Customer shall assist in determining the placement of such
Signage. Redflex shall submit signage design drawings to the appropriate local authority
for approval.
e. Required Credit Card fees will not be considered to be revenue received and are the
respoi- sibility of the violator.
f. If a Redflex System is deactivated at a Designated Intersection Approach at the
Customer's request due to roadway construction work, including work on utilities, the
monthly fee will be pro -rated for the period of such deactivation.
28
roMIVil: UIlii
Additional Rights and Obligations
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 fielding media inquiries, the development of artwork for
print and outdoor public service announcements and a web page ready animation
video of the entire Photo Red Light Enforcement Program. Also radio and television
advertisements, in English and Spanish, will be provided as well as utility bill inserts,
press releases templates and planning for any public launch of the Photo Red Light
Enforcement Program (actual media placement and ad buys are the sole responsibility
of the Customer).
2. The Customer shall not access the Redflex System or use the Photo Red Light
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 Photo Red Light
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 Photo Red Light 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.
3. The Customer shall maintain the confidentiality of any username, password or other
process or device for accessing the Redflex System or using the Photo Red Light
Enforcement Program.
4. 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, Redflex and the Customer shall obey any and all such rules and regulations
to the extent permitted by law.
5. 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, provided that Redflex has provided Customer with an invoice describing
the damaged property or equipment and detailing the costs required to repair or
replace such property or equipment.
6. Redflex shall keep the Violations Data in its computers secure from being
appropriated by any of its employees or other persons for purposes other than as
provided under this Agreement.
29
Insurance
1. During the Term, Redflex shall procure and maintain at 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:
- Commercial General Liability Insurance. Commercial General Liability
Insurance with coverage of not less than One Million Dollars ($1,000,000)
per occurrence for bodily injury and property damage;
- Commercial Automobile Liability Insurance. Commercial Automobile
Liability Insurance with coverage of not less than One Million Dollars
($1,000,000) combined single limit per accident for bodily injury or
property damage, including but not limited to coverage for all automobiles
owned by Redflex and hired by Redflex;
- 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 claim and in the aggregate;
- Workers' Compensation and Employer's Liability Insurance. Workers'
Compensation Insurance with coverage of not less than that required by
the Labor Code of the State of California, and Employer's Liability
Insurance with coverage of not less than One Million Dollars ($1,000,000)
each accident.
2. With respect to the insurance described in the foregoing Section of this Exhibit E,
any deductibles or self-insured retentions in excess of $100,000 must be approved
in advance in writing by the Customer.
3. With respect to the Commercial General Liability Insurance the following
additional provisions shall apply:
- The Customer Parties shall be named as additional insureds with respect
to the Commercial General Liability insurance, and such coverage shall
contain no special limitations on the scope of protection afforded to such
additional insureds;
- 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 Customer Parties shall be in excess, and not in contribution to,
such insurance;
- Any failure to comply with the reporting provisions of the various
insurance policies described above shall not affect the coverage provided
to the Customer 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.
4. With respect to the insurance described in the foregoing Section of this Exhibit
"E", if any of the Redflex Parties are notified by any insurer that any insurance
coverage will be cancelled, Redflex shall immediately provide written notice
30
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.
5. Redflex shall provide certificates of insurance and policy endorsements
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.
31
EXHIBIT "F,
FORM OF ACKNOWLEDGMENT AND CONSENT
This Acknowledgement and Consent, dated as of , 2009, is entered into by and
between the City of San Rafael (the "City") and Redflex Traffic Systems, Inc.,
("Redflex"), with reference to the Agreement between the City of
and Redflex Traffic Systems, Inc., for Photo Red Light Enforcement Program and
Violation Processing Program, dated as of , by and between the City
and Redflex (the "Agreement").
1. Redflex has entered into a Multicurrency Credit Agreement, dated as of
June 2, 2008 (the "Multicurrency Credit Agreement"), by and among Redflex, as
Borrower, the guarantors from time to time party thereto, as Guarantors, the lenders from
time to time party thereto, as Lenders (the "Lenders"), and Bank of Montreal, as
Administrative Agent (the "Administrative Agent"), pursuant to which the Lenders have
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 Multicurrency Credit Agreement, Redflex has granted the
Administrative Agent, for the benefit of the secured creditors, a security interest in all of
Redflex's personal property as collateral for the payment and performance of Redflex's
obligations to the Administrative Agent and the Lenders under the Multicurrency 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 Multicurrency Credit Agreement, be
relieved of any liability or obligation under the Agreement, and the Administrative Agent
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 Administrative Agent, for the benefit of the
secured creditors, in all of Redflex's rights and interests under the Agreement pursuant to
the Multicurrency 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 Administrative Agent, and to any replacement lenders which refinance
Redflex's obligations to the Administrative Agent and the Lenders under the
Multicurrency Credit Agreement.
[SIGNATURE PAGE TO FOLLOW]
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.
32
The City:
SAN RAFAEL, a Charter City
By:
Name:KEN NORDHOFF
Title: \ CITY MANAGER
Redflex:
REDFLEX TRAFFIC SYSTEMS, INC.,
a Delaware Corporation
By: 1`
Name:
Title: Lei? r
33
EXHIBIT "G"
Format for Electronic Data
TRAFFIC VIOLATION (NON -PARKING)
This format is one citation for one line in the file.
Name
Start Pos
Length
Special Info
"S"
1
1
S indicates Traffic Violation
Cite #
6
8
Cite Date
14
10
NEWDD/YYYY
Issued Time
24
5
00:00
Beat
29
11
Officer ID
55
7
Court Date
62
10
MIAMD/YYYY
DL #
103
9
DL State
112
2
DL Class
114
5
Date of Birth
119
8
MM/DD/YY
Last Name
127
15
First Name
142
12
Middle Name
154
15
House #
169
24
Street
193
24
Apt
218
6
Zip Code
224
9
City
233
15
State
248
2
Sex
250
1
Race
251
1
Hair
252
3
Eyes
255
3
HtFt
258
1
HtInches
260
2
Weight
262
3
Phone Number
265
12
Vehicle License
277
20
Vehicle License St
297
2
Vehicle Year
299
4
Make
303
4
Model
307
10
Color 1
324
3
Color 2
327
3
Reg Owner Last
330
15
34
Reg Owner First
345
12
Reg Owner Mid
357
15
Reg House No
372
24
Reg Street
396
24
Reg State
442
2
Reg Zip
444
9
Vio 1
453
16
Vio 1 Desc
469
50
Vio 1 Type
519
1
Vio 2
520
16
Vio 2 Desc
536
50
Vio 2 Type
586
1
Vio 3
587
16
Vio 3 Desc
603
50
Vio 3 Type
653
1
Vio Street #
654
8
Vio Street Name
686
24
Vio City
710
15
Remarksl
725
71
Remarks2
796
71
Remarks3
867
80
Remarks4
947
80
Remarks5
1027
80
Remarks6
1107
80
Remarks7
1187
80
35
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