HomeMy WebLinkAboutResolution 2006-105
RESOLUTION NO. 2006-105
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF NORTH
RICHLAND HILLS, TEXAS, THAT:
1.
The City Manager be, and is hereby authorized to execute the attached
agreement between the City of North Richland Hills and Red-Flex Traffic Systems, Inc.
for the Red Light Automated Signal Enforcement System.
PASSED AND APPROVED this 11 th day of December 2
George A. Staple ,City Attorney
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AGREEMENT BETWEEN THE CITY OF NORTH RICHLAND HILLS
AND REDFLEX TRAFFIC SYSTEMS, INC. FOR
PHOTO RED LIGHT ENFORCEMENT PROGRAM
This Agreement is made as of this 11 th day of December, 2006 by and between
Redflex Traffic Systems, Inc. with offices at 6047 Bristol Parkway 1st Floor, Culver City,
California 90230 ("Redflex"), and The City of North Richland Hills, a municipal
corporation, with offices at 7301 N.E. Loop 820, North Richland Hills, TX. 76180 (the
"Customer").
RECITALS
WHEREAS, Redflex has exclusive knowledge, possession and ownership of certain
equipment, licenses, applications, and Notice of Violation processes related to digital
photo red light enforcement systems; and
WHEREAS, the Customer desires to engage the services of Redflex to provide certain
equipment, processes and back office services so that sworn police officers of the
Customer are able to monitor, identify and enforce red light running violations as
prescribed under Ordinance No. Chapter 54 Article X; 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 Officer" means the Police Project Manager or such other
individual(s) as the Customer shall designate to review Potential Violations and
to authorize the Issuance of Notice of Violations in respect thereto, and in any
event, a sworn police officer.
1.2. "Authorized Violation" means each Potential Violation in the Violation Data for
which authorization to issue a Notice of Violation in the form of an Electronic
Signature is given by the Authorized Officer by using the Redflex System.
1.3. "Notice of Violation" 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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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 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.
1.5. "Desiqnated Intersection Approaches" means the Intersection Approaches set
forth on Exhibit A attached hereto, and such additional Intersection Approaches
as Redflex and the Customer shall mutually agree from time to time.
1.6. "Electronic Siqnature" means the method through which the Authorized Officer
indicates his or her approval of the issuance of a Notice of Violation in respect of
a Potential Violation using the Redflex System.
1.7. "Enforcement Documentation" means the necessary and appropriate
documentation related to the Photo Red Light Enforcement Program, including
but not limited to warning letters, violation notices (using City specifications), a
numbering sequence for use on all Notice of Violation, instructions to
accompany each issued Notice of Violation (including in such instructions a
description of basic adjudication procedures, payment options and information
regarding the viewing of images and data collected by the Redflex System),
chain of custody records, criteria regarding operational policies for processing
Notices of Violation (including with respect to coordinating with the Department
of Motor Vehicles), and technical support documentation for adjudication
personnel.
1.8. "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, severs and poles.
1.9. "'Fine" means a monetary sum in the form of a civil penalty assessed for each
Notice of Violation.
1.10. "Governmental Authoritv" 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 Liqht Proqram" 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 Propertv" 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 Customer.
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 police officer of the Customer and the issuance of
Notices of Violation for such approved Violations using the Redflex System.
1.15. "Person" means a natural individual, company, Governmental Authority,
partnership, firm, corporation, legal entity or other business association.
1.16. "Police Project Manaqer" means the project manager appointed by the
Customer in accordance with this Agreement, which shall be a sworn police
officer and shall be responsible for overseeing the installation of the Intersection
Approaches and the implementation of the Redlight 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 counselor other governing body of the
Customer.
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1.17. "Potential Violation" means, with respect to any motor vehicle passing
through a Designated City Street and/or Intersection Approach, the data
collected by the Redflex System with respect to such motor vehicle, which data
shall be processed by the Redflex System for the purposes of allowing the
Authorized Officer to review such data and determine whether a Red Light
Violation has occurred.
1.18. "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 Manaqer" means the project manager appointed by
Redflex in accordance with this Agreement, which project manager shall initially
be Lane Flapper, or such person as Redflex shall designate by providing written
notice thereof to the Customer from time to time, who shall be responsible for
overseeing the construction and installation of the Designated Intersection
Approaches and the implementation 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 Liqht System" means, collectively, the SmartCam™
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 Liqht Enforcement Proqram" 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 Redliqht Violation Criteria" means the standards and criteria by
which Potential Violations will be evaluated by sworn police officers of the
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Customer, which standards and criteria shall include, but are not limited to, the
duration of time that a traffic light must remain red prior to a Violation being
deemed to have occurred, and the location(s) in an intersection which a motor
vehicle must pass during a red light signal prior to being deemed to have
committed a Violation, all of which shall be in compliance with all applicable
laws, rules and regulations of Governmental Authorities.
1.24. "SmartCam TM System" means the proprietary digital redlight photo
enforcement system of Redflex relating to the Photo Red Light Enforcement
Program.
1.25. "SmartOps TM System" means the proprietary back-office processes of
Redflex relating to the Photo Red Light Enforcement Program.
1.26. "SmartScene TM System" means the proprietary digital video camera unit,
hardware and software required for providing supplemental violation data.
1.27. "Traffic Siqnal 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. "Warninq Period" means the period that only warning notices and not
Notices of Violation shall be sent during the 30 day period commencing with the
installation of a traffic-control signal monitoring device.
2. TERM. The term of this Agreement shall commence as of the date hereof and shall
continue for a period of three (3) years after the Installation Date (the "Initial Term").
The Customer shall have the right, but not the obligation, to extend the term of this
Agreement for up to three (3) additional consecutive and automatic one (1) year
periods following the expiration of the Initial Term (each, a "Renewal Term" and
collectively with the Initial Term, the "Term"). The Customer may exercise the right
to extend the term of this Agreement for a Renewal Term by providing written notice
to Redflex not less than thirty (30) days prior to the last day of the Initial Term or the
Renewal Term, as the case may be.
3. SERVICES. Redflex shall provide the Photo Red Light Enforcement Program to the
Customer, in each case in accordance with the terms and provisions set forth in this
Agreement. This Agreement shall consists not only of the terms and conditions set
forth in this document but also the Redflex Traffic Systems USA Bid Proposal for
Automated Traffic Signal Enforcement System RFP #C015-05 incorporated herein in
its entirety (Exhibit "G") and the City of Piano's Proposal Number C015-05 RFP For
Automated Traffic Signal Enforcement System incorporated herein in its entirety
(Exhibit "H"). In the event there exists a conflict in interpretation, the documents
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shall control in the order listed above. These documents shall be referred to
collectively as "Contract Documents."
3.1. INSTALLATION. With respect to the construction and installation of (1) the
Designated Intersection Approaches and the installation of the Redflex System
at such Designated Intersection Approaches, the Customer and Redflex shall
have the respective rights and obligations set forth on Exhibit B attached hereto.
3.2. MAINTENANCE. With respect to the maintenance of the Redflex System at the
Designated Intersection Approaches the Customer and Redflex shall have the
respective rights and obligations set forth on Exhibit C attached hereto.
3.3. VIOLATION PROCESSING. During the Operational Period, Violations shall be
processed as follows:
3.3.1. All Violations Data shall be stored on the Redflex System;
3.3.2. The Redflex System shall process Violations Data gathered from the
Designated 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 an average of four (4) days of the gathering of the Violation Data from
the applicable Designated City Streets and/or Intersection Approaches
3.3.5. The Customer shall cause the Authorized Officer to review the Violations
Data and to determine whether a Notice of Violation shall be issued with
respect to each Potential Violation captured within such Violation Data, and
transmit each such determination in the form of an Electronic Signature to
Redflex using the software or other applications or procedures provided by
Redflex on the Redflex System for such purpose, and REDFLEX HEREBY
ACKNOWLEDGES AND AGREES THAT THE DECISION TO ISSUE A
NOTICE OF VIOLATION SHALL BE THE SOLE, UNILATERAL AND
EXCLUSIVE DECISION OF THE AUTHORIZED OFFICER AND SHALL BE
MADE IN SUCH AUTHORIZED OFFICER'S SOLE DISCRETION (A
"NOTICE OF VIOLATION DECISION"), AND IN NO EVENT SHALL
REDFLEX HAVE THE ABILITY OR AUTHORIZATION TO MAKE A NOTICE
OF VIOLATION DECISION;
3.3.6. With respect to each Authorized Violation, Redflex shall print and mail a
Notice of Violation within two (2) days after Redflex's receipt of such
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 enquiries.
3.3.8. Redflex shall permit the Authorized Officer to generate reports as needed
using the Redflex Standard Report System.
3.3.9. Prior to the installation date of the Photo Red Light Program, Redflex shall
open and maintain a local customer office for the walk-in payment of fines
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and a local mailing address in the Dallas metropolitan area to accept
payment by mail.
3.3.10. Upon Redflex's receipt of a written request from the Customer and
in addition to the Standard Reports, Redflex shall provide, without cost to
the Customer, reports regarding the processing and issuance of Notices of
Violation, the maintenance and downtime records of the Designated
Intersection Approaches and the functionality of the Redflex System with
respect thereto to the Customer in such format and for such periods as the
Customer may reasonably request; provided, however, Redflex shall not be
obligated to provide in excess of six (6) such reports in any given twelve (12)
month period without cost to the Customer;
3.3.11. Upon the Customer's receipt of a written request from Redflex, the
Customer shall provide, without cost to Redflex, reports regarding the
prosecution of Notices of Violation and the collection of fines, fees and other
monies in respect thereof in such format and for such periods as Redflex
may reasonably request; provided, however, the Customer shall not be
obligated to provide in excess of six (6) such reports in any given twelve (12)
month period without cost to Redflex;
3.3.12. Upon Redflex's receipt of a written request from the Customer at
least fourteen (14) calendar days in advance of the adjudication proceeding,
Redflex shall provide expert witnesses for use by the Customer in
prosecuting Violations; provided, however, the Customer shall use
reasonable best efforts to seek judicial notice in lieu of requiring Redflex to
provide such expert witnesses; and
3.3.13. During the three (3) month period following the Installation Date,
Redflex shall provide such training to police personnel as shall be
reasonably necessary in order to allow such personnel to act as expert
witnesses on behalf of the Customer with respect to the Redlight
Enforcement Program.
3.4. PROSECUTION AND COLLECTION; COMPENSATION. The Customer shall
diligently prosecute all contested Notices of Violation before the hearing officer
and any appeal to Customer's municipal court. Redflex shall diligently prosecute
the collection of all Fines, contested or uncontested. All payments will be
collected and deposited into a Customer specified account and will be in direct
accordance with the Customer's guidelines. Redflex will employ a collection
service to collect delinquent payments with a goal of achieving a 70-80%
collection rate. Redflex shall have the right to receive, and the Customer shall be
obligated to pay, the compensation set forth on Exhibit D attached hereto.
3.5. OTHER RIGHTS AND OBLIGATIONS. During the Term, in addition to all of the
other rights and obligations set forth in this Agreement, Redflex and the
Customer shall have the respective rights and obligations set forth on Exhibit E
attached hereto.
3.6. CHANGE ORDERS. The Customer may from time to time request changes to
the work required to be performed or the addition of products or services to
those required pursuant to the terms of this Agreement by providing written
notice thereof to Redflex, setting forth in reasonable detail the proposed
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changes (a "Chanqe 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
"Chanqe Order Proposal"), which Change Order Proposal shall include (i) a
detailed breakdown of the charge and schedule effects, (ii) a description of any
resulting changes to the specifications and obligations of the parties, (iii) a
schedule for the delivery and other performance obligations, and (iv) any other
information relating to the proposed changes reasonably requested by the
Customer. Following the Customer's receipt of the Change Order Proposal, the
parties shall negotiate in good faith and agree to a plan and schedule for
implementation of the proposed changes, the time, manner and amount of
payment or price increases or decreases, as the case may be, and any other
matters relating to the proposed changes; provided, however, in the event that
any proposed change involves only the addition of equipment or services to the
existing Designated Intersection Approaches, 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 Riahts.
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) solely within the City of North Richland
Hills, access and use the Redflex System for the sole purpose of reviewing
Potential Violations and authorizing the issuance of Notice of Violations pursuant
to the terms of this Agreement, and to print copies of any content posted on the
Redflex System in connection therewith, (b) disclose to the public (including
outside of the City of North Richland Hills that Redflex is providing services to
the Customer in connection with Photo Red Light Enforcement Program
pursuant to the terms of this Agreement, and (c) use and display the Redflex
Marks on or in marketing, public awareness or education, or other publications
or materials relating to the Photo Red Light Enforcement Program, so long as
any and all such publications or materials are approved in advance by Redflex.
4.2. RESERVATION OF RIGHTS. The Customer hereby acknowledges and agrees
that: (a) Redflex is the sole and exclusive owner of the Redflex System, the
Redflex Marks, all Intellectual Property arising from or relating to the Redflex
System, and any and all related Equipment, (b) the Customer neither has nor
makes any claim to any right, title or interest in any of the foregoing, except as
specifically granted or authorized under this Agreement, and (c) by reason of the
exercise of any such rights or interests of Customer pursuant to this Agreement,
the Customer shall gain no additional right, title or interest therein.
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4.3. RESTRICTED USE. The Customer hereby covenants and agrees that it shall
not (a) make any modifications to the Redflex System, including but not limited
to any Equipment, (b) alter, remove or tamper with any Redflex Marks, (c) use
any of the Redflex Marks in any way which might prejudice their distinctiveness,
validity or the goodwill of Redflex therein, (d) use any trademarks or other marks
other than the Redflex Marks in connection with the Customer's use of the
Redflex System pursuant to the terms of this Agreement without first obtaining
the prior consent of Redflex, or (e) disassemble, de-compile or otherwise
perform any type of reverse engineering to the Redflex System, the Redflex
System, including but not limited to any Equipment, or to any, Intellectual
Property or Proprietary Property of Redflex, or cause any other Person to do any
of the foregoing.
4.4. PROTECTION OF RIGHTS. Redflex shall have the right to take whatever
action it deems necessary or desirable to remedy or prevent the infringement of
any Intellectual Property of Redflex, including without limitation the filing of
applications to register as trademarks in any jurisdiction any of the Redflex
Marks, the filing of patent application for any of the Intellectual Property of
Redflex, and making any other applications or filings with appropriate
Governmental Authorities. The Customer shall not take any action to remedy or
prevent such infringing activities, and shall not in its own name make any
registrations or filings with respect to any of the Redflex Marks or the Intellectual
Property of Redflex without the prior written consent of Redflex.
4.5. INFRINGEMENT. The Customer shall use its reasonable best efforts to give
Redflex prompt notice of any activities or threatened activities of any Person of
which it becomes aware that infringes or violates the Redflex Marks or any of
Redflex's Intellectual Property or that constitute a misappropriation of trade
secrets or act of unfair competition that might dilute, damage or destroy any of
the Redflex Marks or any other Intellectual Property of Redflex. Redflex shall
have the exclusive right, but not the obligation, to take action to enforce such
rights and to make settlements with respect thereto. In the event that Redflex
commences any enforcement action under this Section 4.5, then the Customer
shall render to Redflex such reasonable cooperation and assistance as is
reasonably requested by Redflex, and Redflex shall be entitled to any damages
or other monetary amount that might be awarded after deduction of actual costs;
provided, that Redflex shall reimburse the Customer for any reasonable costs
incurred in providing such cooperation and assistance.
4.6. INFRINGING USE. The Customer shall give Redflex prompt written notice of
any action or claim action or claim, whether threatened or pending, against the
Customer alleging that the Redflex Marks, or any other Intellectual Property of
Redflex, infringes or violates any patent, trademark, copyright, trade secret or
other Intellectual Property of any other Person, and the Customer shall render to
Redflex such reasonable cooperation and assistance as is reasonably requested
by Redflex in the defense thereof; provided, that Redflex shall reimburse the
Customer for any reasonable costs incurred in providing such cooperation and
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,
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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.
5. Representations and Warranties.
5.1. Redflex Representations and Warranties.
5.1.1. Authority. Redflex hereby warrants and represents that it has all right,
power and authority to execute and deliver this Agreement and perform its
obligations hereunder.
5.1.2. Professional Services. Redflex hereby warrants and represents that any
and all services provided by Redflex pursuant to this Agreement shall be
performed in a professional and workmanlike manner and, with respect to
the installation of the Redflex System, subject to applicable law, in
compliance with all specifications provided to Redflex by the Customer.
5.2. Customer Representations and Warranties.
5.2.1. Authority. The Customer hereby warrants and represents that it has all
right, power and authority to execute and deliver this Agreement and
perform its obligations hereunder.
5.2.2. Professional Services. The Customer hereby warrants and represents
that any and all services provided by the Customer pursuant to this
Agreement shall be performed in a professional and workmanlike manner.
5.3. LIMITED WARRANTIES. 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
RED FLEX SYSTEM MAY MALFUNCTION FROM TIME TO TIME, AND
SUBJECT TO THE TERMS OF THIS AGREEMENT, RED FLEX 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. In the event of a
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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.
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:
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 Notice of Violations in such format and
for such periods as the Customer may reasonably request, and which final
report Redflex shall update or s4Pplement from time to time when and if
additional data or information becomes available, (iv) promptly deliver to
Customer a final invoice stating all fees and charges properly owed by
Customer to Redflex for work performed and Notice of Violations issued by
Redflex prior to the termination, and (v) provide such assistance as the
Customer may reasonably request from time to time in connection with
prosecuting and enforcing Notice of Violations issued prior to the termination
of this Agreement.
6.3.2. 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 Notice of
Violations issued by Redflex prior to the termination.
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 City Vehicles and Designated Intersection
Approaches to substantially the same condition such Designated
Intersection Approaches were in immediately prior to this Agreement.
Resolution No. 2006-105
Page 12 of 30
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 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 (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
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
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 Liabilitv.
8.1. Indemnification by Redflex. Subject to Section 8.3, Redflex hereby agrees to
defend and indemnify the Customer and its affiliates, shareholders or other
interest holders, managers, officers, directors, employees, agents,
representatives and successors, permitted assignees and each of their affiliates,
and all persons acting by, through, under or in concert with them, or any of them
(individually a "Customer Party" and collectively, the "Customer Parties")
against, and to protect, save and keep harmless the Customer Parties from, and
to pay on behalf of or reimburse the Customer Parties as and when incurred for,
any and all liabilities, obligations, losses, damages, penalties, demands, claims,
actions, suits, judgments, settlements, costs, expenses and disbursements
(including reasonable attorneys', accountants' and expert witnesses' fees) of
whatever kind and nature (collectively, "Losses"), which may be imposed on or
incurred by any Customer Party arising out of or related to (a) any material
misrepresentation, inaccuracy or breach of any covenant, warranty or
representation of Redflex contained in this Agreement, or (b) 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
Resolution No. 2006-105
Page 13 of 30
tangible personal property (including the personal property of third parties),
except to the extent caused by the willful misconduct of any Customer Party.
8.2. Indemnification by Customer. Subject to Section 8.3, the Customer, to the extent
allowed by law and without waiving any rights, defenses or immunities provided
to it by the Texas Tort Claims Act, hereby agrees to defend and indemnify
Redflex and its affiliates, shareholders or other interest holders, managers,
officers, directors, employees, agents, representatives and successors,
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 Customer contained in this Agreement, or (b) the willful
misconduct of the Customer, 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 tothe extent caused by the willful misconduct of
any Redflex Party.
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
Resolution No. 2006-105
Page 14 of 30
consequential damages, however caused and on any theory of liability arising
out of or relating to this Agreement.
9. NOTICES. Any notices to be given hereunder shall be in writing, and shall be
deemed to have been given (a) upon delivery, if delivered by hand, (b) three (3)
days after being mailed first class, certified mail, return receipt requested, postage
and registry fees prepaid, or (c) one Business Day after being delivered to a
reputable overnight courier service, excluding the U.S. Postal Service, prepaid,
marked for next day delivery, if the courier service obtains a signature
acknowledging receipt, in each case addressed or sent to such party as follows:
9.1. Notices to Redflex:
Redflex Traffic Systems, Inc.
15020 North 74th Street
Scottsdale, AZ 85260
Attention: Ms. Karen Finley
Facsimile: (480) 607-5552
9.2. Notices to the Customer:
City of North Richland Hills
7301 N. E. Loop 820, North Richland Hills, TX 76180
Attention: Larry Cunningham, City Manager
Office (817)427-6003
10. DISPUTE RESOLUTION. Upon the occurrence of any dispute or disagreement
between the parties hereto arising out of or in connection with any term or provision
of this Agreement, the subject matter hereof, or the interpretation or enforcement
hereof (the "Dispute"), the parties shall engage in informal, good faith discussions
and attempt to resolve the Dispute. In connection therewith, upon written notice of
either party, each of the parties will appoint a designated officer whose task it shall
be to meet for the purpose of attempting to resolve such Dispute. The designated
officers shall meet as often as the parties shall deem to be reasonably necessary.
Such officers will discuss the Dispute. If the parties are unable to resolve the
Dispute in accordance with this Section 10, and in the event that either of the parties
concludes in good faith that amicable resolution through continued negotiation with
respect to the Dispute is not reasonably likely, then the parties may mutually agree
to submit to binding or nonbinding arbitration or mediation.
11. Miscellaneous.
11.1. ASSIGNMENT. Neither party may assign all or any portion of this
Agreement without the prior written consent of the other. However, the Customer
hereby acknowledges and agrees that the execution (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
Resolution No. 2006-105
Page 15 of 30
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. "SPEED ENFORCEMENT" The Customer 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 will have the option to extend this contract to include
additional terms for photo enforcement of speed within the city.
11.3. RELATIONSHIP BETWEEN REDFLEX AND THE CUSTOMER. Nothing
in this Agreement shall create, or be deemed to create, a partnership, joint
venture or the relationship of principal and agent or employer and employee
between the parties. The relationship between the parties shall be that of
independent contractors, and nothing contained in this Agreement shall create the
relationship of principal and agent or otherwise permit either party to incur any
debts or liabilities or obligations on behalf of the other party (except as specifically
provided herein).
11.4. 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.
11.5. 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
Resolution No. 2006-105
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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, 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.
11.8. 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
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. Anyone 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 anyone remedy shall not be
deemed to be an election of such remedy, or a waiver of any other remedy.
Resolution No. 2006-105
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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
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 Texas 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 Tarrant, Texas, and both parties specifically
agree to be bound by the jurisdiction and venue thereof.
11.20. MOST FAVORED NATION CLAUSE. If during the term of this contract
Redflex should enter into any agreement with another municipality within the
greater Dallas metropolitan area for photo red light enforcement upon terms and
conditions more favorable than those granted to Customer, Reflex agrees to
modify this contract to include such favorable terms if so requested by
Customer.
(The remainder of this page is left intentionally blank)
Resolution No. 2006-105
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first set forth above.
"Customer"
"Redflex"
CITY OF NORTH RICHLAND HILLS
By:
REDFLEX TRAFFIC SYSTEMS, INC.,
By:
Name:
Title:
APPROVED AS TO CONTENT:
By:
Resolution No. 2006-105
Page 19 of 30
EXHIBIT "A"
Designated Intersection Approaches
The contract is for the implementation of up to 20 intersections. Identification of
enforced intersection will be based on mutual agreement between Redflex and the City
as warranted by community safety and traffic needs.
Resolution No. 2006-105
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EXHIBIT "B"
Construction and Installation Obligations
Timeframe for Installation: Fixed Photo Red Light System
Redflex will have each specified intersection installed and activated in phases in
accordance with an implementation plan to be mutually agreed to by Redflex Traffic
Systems and the Municipality.
Redflex will use reasonable commercial efforts to install the system in accordance with
the schedule set forth in the implementation plan that will be formalized upon project
commencement.
Redflex will use reasonable commercial efforts to install and activate the first four
specified intersection within the first ninety (90) days subsequent to formal project kick-
off. Any additional intersections will be added within thirty (30) days of receipt of a
notice to proceed. The Municipality agrees that the estimated timeframe for installation
and activation are subject to conditions beyond the control of Redflex and are not
guaranteed.
In order to provide the client with timely completion of the photo enforcement project
Redflex Traffic Systems requires that the City assist with providing timely approval of
City permit requests. The City acknowledges the importance of the safety program and
undertakes that in order to keep the project on schedule the customer is to provide city
engineers review of Redflex permit requests and all documentation within a two
business days. Redflex will also review and correct if necessary any redlines with in
two business days. Permits need to be received within five business days of first
submittal in order to implement the program in a timely manner.
1. Redflex Obliqations. Redflex shall do or cause to be done each of the following (in
each case, unless otherwise stated below, at Redflex's sole expense):
1.1. Appoint the Redflex Project Manager and a project implementation team
consisting of between one (1) and four (4) people to assist the Redflex Project
Manager;
1.2. Request current "as-built" electronic engineering drawings for the Designated
Intersection Approaches (the "Drawings") from the city traffic engineer, if
available;
1.3. Develop and submit to the Customer for approval construction and installation
specifications in reasonable detail for the Designated Intersection Approaches,
including but not limited to specifications for all radar sensors, pavement loops,
electrical connections and traffic controller connections, as required; and
1.4. Seek approval from the relevant Governmental Authorities having authority or
jurisdiction over the construction and installation specifications for the
Designated Intersection Approaches (collectively, the "Approvals"), which will
include compliance with City permit applications.
1.5. Finalize the acquisition of the Approvals;
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1.6. Submit to the Customer a public awareness strategy for the Customer's
consideration and approval, which strategy shall include media and educational
materials for the Customer's approval or amendment (the "Awareness
Strategy");
1.7. Develop the Redlight Violation Criteria in consultation with the Customer;
1.8. Develop the Enforcement Documentation for approval by the Customer, which
approval shall not be unreasonably withheld;
1.9. Complete the installation and testing of all necessary Equipment, including
hardware and software, at the Designated Intersection Approaches (under the
supervision of the Customer);
1.10. Cause an electrical sub-contractor to complete all reasonably necessary
electrical work at the Designated Intersection Approaches, including but not
limited to the installation of all related Equipment and other detection sensors,
poles, cabling, telecommunications equipment and wiring, which work shall be
performed in compliance with all applicable local, state and federal laws and
regulations;
1.11. Install and test the functionality of the Designated Intersection Approaches
with the Redflex System and establish fully operational Violation processing
capability with the Redflex System;
1.12. Implement the use of the Redflex System at each of the Designated
Intersection Approaches;
1.13. Deliver the Materials to the Customer; and
1.14. Issue Notice of Violation notices for Authorized Violations;
1.15. Redflex shall provide training (i) for up to fifteen (15) personnel of the
Customer, including but not limited to the persons who Customer shall appoint
as Authorized Officers and other persons involved in the administration of the
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 administrative adjudication hearing proceedings and a review of the
Enforcement Documentation;
1.16. Interact with administrative adjudication hearing personnel to address
issues regarding the implementation of the Redflex System, the development of
a subpoena processing timeline that will permit the offering of Violations Data in
adjudication proceedings, and coordination between Redflex, the Customer and
adjudication personnel; and
1.17. Redflex will work with the Customer to develop a comprehensive Public
Awareness/Education Campaign that will be based on research and public
polling to ensure tailored messaging for the community. Redflex will organize a
press conference at the project's commencement and coordinate all logistics,
including preparing a media packet which will include: a news release; an
overview of the Customer's photo enforcement program; a project fact sheet; a
project question and answer sheet; a photo enforcement "Facts & Myths"
handout; a map showing photo enforcement intersections and thoroughfares;
background on similar successful projects elsewhere; an explanation of photo
Resolution No. 2006-105
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enforcement technology; an explanation of how the program will be
administered; and a spokesperson contact list. The Police Department's Public
Information Officer will be their primary point of contact, and will have final
approval on all media materials
1.18. Notice of Violation processing and Notice of Violation re-issuance
1.19. Employ a collection agency to collect delinquent accounts. To offset the
cost of collecting each delinquent account, Redflex will receive reimbursement
for the cost of delinquent collection up to the amount of the late fee penalty of
$25 associated with that account, for each account and associated late fee
successfully collected.
2. CUSTOMER OBLIGATIONS. The Customer shall do or cause to be done each of
the following (in each case, unless otherwise stated below, at Customer's sole
expense ):
2.1.1. Appoint the Police Project Manager; Provide an Administrative Hearing
Officer to preside over Appeals Hearing for the City.
2.1.2. Assist Redflex in obtaining the Drawings from the relevant Governmental
Authorities;
2.1.3. Notify Redflex of any specific requirements relating to the construction and
installation of any Intersection Approaches or the implementation of the
Redlight Photo Enforcement Program;
2.1.4. Provide assistance to Redflex in obtaining access to the records data of
the Texas Department of Transportation in Redflex's capacity as an
independent contractor to the Customer; and
2.1.5. 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 Redlight Photo 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, as described in
Section 1.17 above, and provide written notice to Redflex with respect to the
quantity of media and program materials (the "Materials") that the Customer
will require in order to implement the Awareness Strategy during the period
commencing on the date on which Redflex begins the installation of any of
the Designated Intersection Approaches and ending one (1) month after the
Installation Date;
2.1.9. 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 Redflex.
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
Police 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, Customer shall be obligated to pay Redflex a fixed fee of $4,870 per month
for each Designated Intersection Approach ("Fixed Fee") as full remuneration for
performing all of the services contemplated in this Agreement.
As a beta-testing and feasibility study, Redflex will provide a mobile photo red light
system unit for a period of 90 days at no charge to the Customer; upon completion of
feasibility study; Redflex and the Customer will have the option to extend this contract
and negotiate terms for mobile photo enforcement.
Cost Neutralitv
Cost neutrality is assured to Customer. The maximum compensation that Customer
shall be obligated to pay to Redflex each month is the Fixed Fee. Each month,
Customer and Redflex shall compare the aggregate revenue received from all Notice of
Violations ("Revenue") to the total amount invoiced by Redflex for the Fixed Fee
("Amount Invoiced") during the previous month ("Cost Neutrality Review"). If the
Amount Invoiced exceeds the Revenue, then City shall only be obligated to pay the
Revenue to Redflex and the difference between the Revenue and the Amount Invoiced
for that month will carry over to the next month as a deficit ("Deficit Amount"). If, in the
next following month, the Revenue exceeds the Amount Invoiced, Customer shall pay
the Amount Invoiced plus all or any portion of the accumulated Deficit Amount to the
extent that there is sufficient Revenue to pay all or any portion of the Deficit Amount.
Upon contract expiration any such outstanding deficits will be forfeited by Redflex.
BUSINESS ASSUMPTIONS FOR ALL PRICING OPTIONS:
1. Redflex construction will be able to utilize existing conduit for installation where
space is available.
2. The Customer agrees to pay Redflex within thirty (30) days after the invoice is
received. A monthly late fee of 1.5% is payable for amounts remaining unpaid 60
days from date of invoice.
3. Each year, beginning with the second year of the Initial Term, the pricing will be
adjusted by the Consumer Price Index (CPI) for the Dallas Metroplex as published
by the U.S. Department of Labor.
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Exhibit "E"
Additional Riqhts and Obliqations
Redflex and the Customer shall respectively have the additional rights and obligations
set forth below:
1. Redflex shall assist the Customer in public information and education efforts,
including but not limited to the development of artwork for utility bill inserts, press
releases and schedules for any public launch of the Redlight Photo Enforcement
Program (actual print and production costs are the sole responsibility of the
Customer).
2. Redflex shall be solely responsible for installing such Signage. The Customer shall
be solely responsible for the fabrication of any signage, notices or other postings
required pursuant to any law, rule or regulation of any Governmental Authority
("Siqnaqe"), 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 Police Project Manager shall meet on a
weekly basis during the period commencing as of the date of execution hereof and
ending on the Installation Date, and on a monthly basis for the remainder of the
Term, at such times and places as the Redflex Manager and the Customer Manager
shall mutually agree.
4. The Customer shall not access the Redflex System or use the 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
Customer shall not attempt to gain unauthorized access to (i) any account of any
other Person, (ii) any computer systems or networks connected to the Redflex
System, or (iii) any materials or information not intentionally made available by
Redflex to the Customer by means of hacking, password mining or any other
method whatsoever, nor shall the Customer cause any other Person to do any of the
foregoing.
5. The Customer shall maintain the confidentiality of any username, password or other
process or device for accessing the Redflex System or using the Redlight Photo
Enforcement Program.
6. Each of Redflex and the Customer shall advise each other in writing with respect to
any applicable rules or regulations governing the conduct of the other on or with
respect to the property of such other party, including but not limited to rules and
regulations relating to the safeguarding of confidential or proprietary information, and
when so advised, each of Redflex and the Customer shall obey any and all such
rules and regulations.
7. The Customer shall promptly reimburse Redflex for the cost of repairing or replacing
any portion of the Redflex System, or any property or equipment related thereto,
damaged directly or indirectly by the Customer, or any of its employees, contractors
or agents.
Resolution No. 2006-105
Page 26 of 30
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 One Million Dollars ($1,000,000) combined single
limit per occurrence for bodily injury and property damage;
3. Commercial Automobile Liability Insurance. Commercial Automobile Liability
Insurance with coverage of not less than One Million Dollars ($1,000,000)
combined single limit per occurrence for bodily injury or property damage,
including but not limited to coverage for all automobiles owned by Redflex, hired
by Redflex, and owned by third parties;
4. Professional Liability (Errors and Omissions) Insurance. 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 Texas, 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 Customer, and any changes to such deductibles or self-insured retentions
during the Term must be approved in advance in writing by the Customer.
7. With respect to the Commercial General Liability Insurance the following
additional provisions shall apply:
8. The Customer Parties shall be covered as additional insureds with respect to any
liability arising from any act or omission of any Redflex Parties on the premises
upon which any such Redflex Parties may perform services pursuant to this
Agreement, and such coverage shall contain no special limitations on the scope
of protection afforded to such additional insureds.
9. 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 the customer
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 customer,
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' prior written
Resolution No. 2006-105
Page 27 of 30
notice to the Customer. If any of the Redflex Parties are notified by any insurer
that any insurance coverage will be cancelled, Redflex shall immediately provide
written notice thereof to the Customer and shall take all necessary actions to
correct such cancellation in coverage limits, and shall provide written notice to
the Customer of the date and nature of such correction. If Redflex, for any
reason, fails to maintain the insurance coverage required pursuant to this
Agreement, such failure shall be deemed a material breach of this Agreement,
and the Customer shall have the right, but not the obligation and exercisable in
its sole discretion, to either (i) terminate this Agreement and seek damages from
Redflex for such breach, or (ii) purchase such required insurance, and without
further notice to Redflex, deduct from any amounts due to Redflex pursuant to
this Agreement, any premium costs advance by the Customer for such
insurance. If the premium costs advanced by the Customer for such insurance
exceed any amounts due to Redflex pursuant to this Agreement, Redflex shall
promptly remit such excess amount to the Customer upon receipt of written
notice thereof.
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 Customer prior to Redflex commencing any work
pursuant to the terms of this Agreement.
Resolution No. 2006-105
Page 28 of 30
Exhibit F
FORM OF ACKNOWLEDGMENT AND CONSENT
This Acknowledgement and Consent, dated as of , 2006, is
entered into by and between the City of North Richland Hills (the "City") and Redflex
Traffic Systems, Inc., ("Redflex"), with reference to the [Agreement for Automated Red
Light Photo Enforcement Cameras], dated as of , by and between
the City and Redflex (the "Agreement").
1. Redflex has entered into a Credit Agreement, dated as of August 3, 2004
(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:
CITY OF NORTH RICHLAND HILLS
Redflex:
REDFLEX TRAFFIC SYSTEMS, INC.
By:
Name:
Title:
By:
Name:
Title:
Resolution No. 2006-105
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Exhibit "G"
Redflex Traffic Systems USA Bid Proposal for Automated Traffic Signal Enforcement
System RFP #C015-05
Resolution No. 2006-105
Page 30 of 30