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Res No 048-14-14142
RESOLUTION NO. 48-14-14142 A Resolution authorizing the City Manager to enter into a multi-year contract with Redflex Traffic Systems Inc. for providing red light enforcement cameras and support at identified intersections within the City of South Miami. WHEREAS, the City wishes to have red light cameras to aid the police department with enforcement of red light violations, and, WHEREAS, the City of South Miami receives numerous complaints of on-going violations for red light running; and, WHEREAS, the use of red light cameras will provide an investigative tool and aid to the police department since intersections will be recorded and playback options can be utilized to locate video of evidentiary value; and, WHEREAS, the City wishes to piggyback from a City of Clearwater, FI. RFP and contract with Redflex Traffic Systems and enter into a 3 year agreement with a two year renewal provision. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA: Section I: The City Manager is authorized to enter into a 3 year agreement with Redflex Traffic Systems which provides that Redflex Traffic Systems assumes all costs for the installation of cameras and maintenance. The City will provide police officers to review and issue citations for identified violations. A copy of the proposed agreement is attached. Section 2. Severability: If any section, clause, sentence, or phrase of this resolution is for any reason held invalid or unconstitutional by a court of competent jurisdiction, this holding shall not affect the validity of the remaining portions of this resolution. Section 3: This resolution shall take effect immediately upon approval. PASSED AND ADOPTED this 1 8 thday of March ,2014. APPROVED: t1/trtf~ MAY R COMMISSION VOTE: 5-0 Mayor Stoddard: Yea Vice Mayor Harris: Yea Commissioner Edmond: Yea Commissioner Liebman: Yea Commissioner Welsh: Yea To: FROM: DATE: SUBJECT: Background: CITY OF SOUTH MIAMI OFFICE OF THE CITY MANAGER INTER-OFFICE MEMORANDUM\ The Honorable Mayor & Members of the City Commission Steven Alexander, Acting City Manager March 3, 2014 South Miami b1):d "(UP 2001 13 A Resolution authorizing the City Manager to enter into a 3 year agreement with Redflex Traffic Systems to provide red light enforcement cameras to the City of South Miami. Redflex Traffic Systems will provide and install enforcement cameras at intersections identified via a traffic analysis which have the highest occurrence of violations. This agreement will be a piggyback with the current Redflex agreement with the City of Clearwater which has been adopted by the City of Pinecrest as well. In a need to deal with on-going complaints of red light violators at intersections within the City of South Miami, the use 9f red light enforcement cameras provide a simple solution to the Police Department. This agreement will be cost neutral and all expenses for the camera will be absorbed by Redflex Traffic Systems. Redflex will be compensated $4750 per month per approach which will be paid by generated fines on identified violators. The first part of the 3 year agreement calls for a 6 month testing period which will identify intersections with high incidents of violations. It will also allow a period for construction and permitting of required equipment. All identified violations will be reviewed by a City of South Miami Police Officer who will issue violation notices to violators based on a review of video and photographic evidence. The red light enforcement cameras will also provide the police department with possible evidentiary video as a follow-up to reported crimes at no cost to the City. Expense: $0 Accounts: Attachments: Resolution Piggyback Agreement with Redflex Traffic Systems City of Clearwater RFP #22-1 I RFP #22-1 I Evaluation Summary City of Clearwater Award Winner Detail by Entity Name Detail by Entity Name Foreian Profit Corporation REDFLEX TRAFFIC SYSTEMS, INC. Filing Information Document Number FEIIEIN Number Date Filed State Status Last Event Event Date Filed Event Effective Date Principal Address 23751 N 23RD AVE PHOENIX, AZ 85085 Changed: 04/13/2009 Mailina Address 23751 N 23RD AVE PHOENIX, AZ 85085 Changed: 04/13/2009 F07000005271 943292233 10/23/2007 DE ACTIVE REINSTATEMENT 01/24/2011 NONE Reaistered Agent Name & Address NRAI SERVICES, INC. 1200 South Pine Island Road Plantation, FL 33324 Address Changed: 02/11/2011 Officer/Director Detail Name & Address iritle P SAUNDERS, JAMES 23751 N 23RD AVE PHOENIX, AZ 85085 Title S Page 1 of3 http://search.sunbiz. org/Inquiry ICorporationSearch/Searc}u1ZesultDetaillEnti... 3/12/2014 Detail by Entity Name O'MALLEY, VIRGINIA 23751 N 23RD AVE PHOENIX, AZ 85085 ~itle Treasurer HUSON, SCOTT ~3751 N 23RD AVE PHOENIX, AZ 85085 Iritle D MOYER, ALBERT 23751 N 23RD AVE PHOENIX, AZ 85085 [Annual Reoorts Report Year 2013 2013 2013 Filed Date 02/28/2013 03/22/2013 09/24/2013 Document Imaaes 09/24/2013 --AMENDED ANNUAL REPORT View image in PDF for:rnat] 03/22/2013 --AMENDED ANNUAL REPORT View image in PDF format -, 02/28/2013 --ANNUAL REPORT View image in PDF format I 10/05/2012 --ANNUAL REPORT View image in PDF format I 03/14/2012 --ANNUAL REPORT View image in PDF format I 12/05/2011 --ANNUAL REPORT View image in PDF format I 01/24/2011 --Reinstatement View image in PDF format! 04/13/2009 --ANNUAL REPORT CV1e-;;i;n~;g~~~macJ 04/30/2008 --ANNUAL REPORT r View image in PDF format I 10/23/2007 --Foreign Profit I View image in PDF formaO Copyright © and Privacy Policies State of Florida, Department of State Page 2 of3 http:// search.sunbiz. orgllnquiry ICorporationSearch/SearchResultDetai1lEnti... 3/12/2014 2013 FORflGN PROFIT CORPORATION AMENDED ANNUAL REPQRI DOCUMENT# F07000005271 Entity Name: REOFLEX TRAFFIC SYSTEMS, INC Current Principal Place of Business: 237&1 N 23RDAVE PH OENIX, AZ. 8S()sS Current Mailing Address: 23751 N 23RD AVE PHOENIX. Al. 85085 FEI Number: 94·3292233 Name and Address of Currant Registered Agent: " NRAI SERVICES, INC, 1200 SOUTH PINE ISLAND ROAD PLANTATION, FL 33324 US FILED Sep 24, 2013 Secretary of State CC1583017145 Certificate of Status Desired: No The afXIW! namfid enb'(y ~ub",j(~ /hi$ $(iBtemenl (or (hi! PlJ.tpoU! of ClrangJr{/ its regj$tered office or registered &gent, or both, in the StBle of FIorillB, SIGNATURE: Electronic Signllture of Regi$tered Agent Dlite Officer/Director Detail : Title P Trtle 5 Name SAUNDERS, JAMES Name O'MALLEY, VIRGINIA A<!<!res.s 23751 N 23RD AVE Address 23751 N 23ROAVE City-Slale-Zip: PHOENIX AZ 85085 City-State-Zip: PHOENIX AZ 85085 Title TREASURER Trtle 0 Name HUSON, scon Name MOYER, ALBERT Address 23751 N 23RDAVE Address 23751 N 23RDAVE City-State-Zip: PHOENIX AZ 85085 City-Slale-Zip: PHOENIX AZ 85085 I rJ!JlDy CE/tlty!"\.i! N !l\1j.m'A~1'] ~O'~ Cit t,\($ ~~.tt .of Svppibr.EtV .... 1 fffJi'f! t.S1~ a.~' 3oU1I/il!a ~/'{J .t~,'!'!ff{fC!t'O''l1C $~'\S.!Wf $'lal) !is\'!!"Ie ·Si\'te .legiU eD!a;5 If~ I.!-~/:.m. ,-..ar I Sana., .~~-, Gf ll'r~brcJtt1E C4rp'ra!}jt1 at 1M f:.celt'ef Or [n~ ~,:",.p;v~re.o' b E.~tcW~ !I\!,:$ ~f1 ~ UQWre-:i 'Y CltJp'JU CI:l7 ~"'f'}:I') ~SM!5.' 3/'):1 Nt..r:y.ra~ Sp,O!!lfS 3ba1.'i Of 0.') Jl"! ~~IY.';e"k! j.',l!tt all Oll>!r ~ If'fX)'mr'I.tJ, SIGNATURE· VIRGINIA O'MALLEY SECRETARY 09/24/2013 Electronic Signature of Signing OfficeriDirector Detail Dale CITY OF CLEARWATER ENGINEERING DEPARTMENT/TRAFFIC OPERATIONS DIVISION RFP 22-11 RFP for Photo Enforcement Red Light Camera Safety Program 4/14/2011 [This is an RFP to various vendors to install and maintain a Photo Enforcement Program for red light violations. The Vendor is to provide the information within this document in order for the City of Clearwater to enter into a contract for an outsourced program. CITY OF CLEARWATER ENGINEERING DEPARTMENT/TRAFFIC OPERATIONS DIVISION INTRODUCTION The City of Clearwater, Florida (hereinafter "the City") requests proposals from qualified vendors for a multi-year Traffic Safety Camera Program. The City intends to have automated traffic safety cameras (also known as Traffic Infraction Detectors) installed at two arterial intersections with the possibility of additional intersections at a later date where data has shown a high level of violations and/or a frequency of right angle collisions caused by red light running. I. DUE DATE A) All proposals are due no later than May 30th, 2011 or any time prior thereto at the Purchasing Office, Municipal Services Building, 100 S. Myrtle Avenue, 3rd Floor, Clearwater, FI 33756-5520. All proposals received will be publicly read at the date and time specified. All proposals received after that time shall be returned, unopened. B) Original proposal and five copies must be submitted in a sealed envelope clearly marked with the RFP Title. One electronic copy must be sent to the Purchasing Department as well. C) Proposals received after the closing time and date, for any reason Whatsoever, will not be considered. Any disputes regarding timeiy receipt of proposais shaii be decided in the favor of the City of Clearwater. Proposer shall assume full responsibility for timely delivery at the location designated for receipt of proposals. The City of Clearwater cannot be responsible for proposals received after opening time and encourages early submittal. Proposals received by the City after the time specified for receipt will not be considered. D) All information required by the Request for Proposal must be supplied to constitute a regular proposal. E) Proposals should be addressed as follows for mail or hand delivery: RFP # 22-11 George McKibben, Purchasing Manager Municipal Services Building 100 S. Myrtle Avenue 3rd Floor Clearwater, FI 33756 F) Submitted envelopes should be marked RFP # 22-11 Installation of Red Light Cameras. J .. III. PROJECT BACKGROUND & SCOPE OF SERVICES A) Background Overall, the goals of the City's Traffic Safety Camera Program are to reduce the number of fatalities and serious injuries that result from traffic collisions at City intersections, to improve the safety of motorists and pedestrians at locations where cameras are in place, and to improve overall motorist and pedestrian safety and awareness citywide through a coordinated outreach and education effort. To achieve these goals, the City will work with the selected vendor to deploy a turnkey program for automated red light enforcement as specified below. Some of the worst traffic crashes-those involving so-called "T -Bone" or right angle collisions at high rates of speed are the result of red light running. National studies have shown that these crashes involve more serious injury and deaths than other kinds of accidents at signalized intersections. Data collected at signalized intersections in Clearwater show the City has several intersections where the frequency of red light running is high. The strategic placement of automated cameras at intersections to record red light running violations may contribute to a reduction in the frequency of violations and the corresponding injuries. Accordingly the Clearwater City Council has expressed support for moving forward with a program to address the problem of red light running in the city and has adopted an enabling ordinance under Chapter 316 of Florida State Statutes. B) Scope of Services The City of Clearwater intends to contract with a qualified contractor for comprehensive and fully integrated red light safety management services. The contractor will deploy traffic safety camera equipment at designated intersections, covering at least one approach at each intersection. At selected approaches, up to four lanes will require traffic safety camera enforcement, including turn lanes. The contracted services shall include all hardware, software, installation, maintenance, operation, and all administrative processing of violations as specified below. The contract term will be for up to two years with the potential for extensions. The city does reserve the right to terminate the contract upon 90 days written notice with or without cause. The city also insists on the ability to terminate enforcement at any intersection upon ten days notice. The city prefers vendor proposals that guarantee cost neutrality to the City; that is, revenues from the notice of violations will at least match the cost of the vendor's monthly service fees by providing that the fees charged to the City shall not exceed the actual revenues collected for fines assessed by the City for violations governed by the program. The proposal will offer a fee which is based on a flat amount for each camera in operation. Vendor shall pay the City of Clearwater all payments received less applicable, agreed upon fees, on a monthly basis. The City expects to acquire "turnkey services" as outline below. The services from qualified vendors include the following: 1) Site design, installation, maintenance and operation of automated camera systems at all selected intersections. 2) Processing of data prior to providing access to chargeable violations via secure web site to the Police Depaliment for review and authorization of citations by the Poiice Department by electronic signature for those events that meet specified criteria. 3) All mailings of Notice of Violation and, preferably a/l citations, to registered owners for payment shall be accomplished at no cost to the City. 4) Maintenance of on-line Internet viewing capability for use by Police, Traffic Operations personnel and members of the public who receive violations in the mail. 5) Assistance with development of a public information and community outreach program. 6) Provision of regular statistical reports of program operations. 7) Training city staff involved in the implementation of the program. 8) Site Survey. The vendor will work with the City to determine an initial list of two intersections, chosen based on quantitative assessment of the frequency of red light violations and collisions. As part of this process, vendors will develop baseline data, from historical crash reporting, issued warnings, and issued citations, for one to four selected approaches at each intersection. These data will support both intersection and approach selection and will serve as baseline information for project evaluation purposes. 9) Camera Siting and Installation. From the intersections selected the successful vendor will deploy red light enforcement equipment meeting or exceeding the minimum FOOT (Florida Department of Transportation) standards. Working with Clearwater Traffic Operations Division, Clearwater Police Department and FOOT personnel the vendor will be responsible for all permit acquisition, site design, construction, installation and maintenance of the equipment. The City will provide signage for the approaches to FOOT standards. Systems will be required to supply power separately from the traffic signals. There shall be no red light camera equipment in the traffic signal cabinets. Telecommunications and all necessary support equipment will be the vendor'S responsibility. 10) Service and Maintenance. The servicing and maintenance of red light cameras will be the exclusive responsibility of the vendor. Initial response to any equipment malfunctions will normally occur within a 24 hour period; repairs will normally be accomplished within a 72 hour period. Explain how you will insure these response times will be met. 11) Violation Screening and Citation Development. The successful vendor will work with the Police Department to determine in detail the elements that will constitute :L. evidence of a red light violation, and with the Police and City Attorney to determine the contents of the notice of violation that will be mailed to registered vehicle owners. Vendor shall describe its understanding of violation issuance under the City Ordinance as well as state statute. RTOR monitoring shall be coordinated through the Clearwater Police Department. 12) Violation Processing. Initial violations shall be processed within a timely fashion preferably within 72 hours. Vendors will ensure the initial Notice of Violation (NOV) is mailed within seven (7) days of authorization by the violation reviewer 13) Statistical Reporting. In support of the City's project evaluation activities, the vendor will provide monthly a summary program metrics to the City that will include, at a minimum, the following: iil Nurnbe( of events recofded, by intersection approach and in totai by month. i7l Number of events not billable, including a breakout of controllable and not-controllable events lost, by intersection approach and in total by month, by intersection. iZl Number of events forwarded to police by month, by intersection. iZl Number of NOV's authorized and mailed, by month of issuance and by intersection. !ZI Number of NOV's returned as undeliverable by month, by intersection. i7l Will provide, within 15 days of the end of each City of Clearwater fiscal year, a report of all results of camera usage for the preceding year. iZl How many violations are paid at NOV and/or at Citation? 14) Other Services. Other services to be provided by the successful vendor will include: i7l Provision of expert testimony at contested Court hearings as necessary. i7l Assistance with the development of a public information and outreach program. i7l Training city staff involved in implementation of the program. i7J Payment processing. i7J Delinquency collections. i7J Any provided system shall continuously, during the course of the contract term, ensure compliance with Florida State Statute Chapter 316 as it relates to red light cameras. i7J Vendor has to maintain, at vendors expense, adequate bodily injury and property damage insurance during the contract term. i7J Vendor shall provide a mechanism for reimbursement of Police Department employee costs associated with violation review and other investigative costs, if any. C) Minimum Qualifications The following are minimum requirements that the vendor must meet in order to be eligible to have their proposal considered. Responses must clearly show compliance with these minimum qualifications. The City will reject without further consideration those proposals that are not clearly responsive t these minimum qualifications. 1. The vendor must be able to deploy automated Traffic Safety Camera equipment in accordance with the following standards. a. The system must utilize high resolution digital or HD video of the violation to include at least two images of the violation; the first image shall clearly show the scene, including the red signal and a clear view of the vehicle with its front tires in front of the stop bar, prior to committing a violation; and the second image shall clearly show the scene, including the red signal and a clear view of the vehicle inside the intersection while the traffic signal is still red. The license plate number and details must be clearly visible in either one of the two images. It is preferred that the two images be obtained from the HD video. It is preferred close ups or zoomed views also be extracted from the HD video. All photos must be date and time stamped. 2. Deployed equipment must be able to capture a set of two high-resolution color digital still images of the offending vehicle and the license plate. Wet film applications are specifically excluded. Vendors shall submit a minimum of four example sets of violation photos (one before the stop bar, and one after the stop· bar) under the following conditions: (1) daytime-fair conditions, (2) daytime-rain, (3) nighttime-fair conditions, and (4) nighttime-rain. Please place example sets in Appendix A-Sample Violation Image Sets. Vendors must be able to provide a reference for at least one location in a city of similar size where their proposed digital camera system has worked effectively using high-resolution digital photography. 3. From point of data capture, all camera photos and accompanying video sequences must be capable of secure storage and transmission, and capable of maintaining a secure chain of evidence. Vendors shall briefly describe their approach to maintaining security/chain of custody of evidence and compliance with Florida's records retention laws. 4. Violation detection and camera triggering must be able to utilize a range of detection technologies, including stand alone sensors and video "loop" detection technology. Vendor must be able to provide a reference for at least three active cities where its proposed system is currently operational using the non-invasive, video loop detection and triggering and at least two where stand alone sensors are used effectively. 5. The vendor must be able to provide a robust, fully web enabled and fully secure citation processing system that inciudes data processing, initiai screening of data, prompt delivery of data to police for violation review and notice of violation (the "NOV") authorization, NOV mailing, bad address notification, and maintenance of secure Internet-based violation viewing capability. The vendor must insure compatibility of automated citation data transmittal to the Pinellas County Clerk of the Circuit Court. Strong j: .. preference to those vendors that can provide for automated data transmittal to the Police Department's records management system (ACISS). 6. The vendor must be able to provide the City of Clearwater with an online case management and violation adjudication capability. Vendors shall briefly describe their approach to meeting this requirement. 7. The vendor must be able to provide a secure, Internet-based website viewing capability to members of the public who receive mailed citations and in support of Police Operations. Vendors shall certify their ability and experience in meeting this requirement. D) Preferred Qualifications The following preferred qualifications outline "selling points" or features that the City may find desirable in a proposal submission. The intent here is to allow submitting vendors to describe briefly key technical and or operating characteristics of their red light photo enforcement systems. 1. Project timeline. Vendors should address how long after contract signing it will take to have their systems completely operational. 2. Number of approaches. Describe the system's ability to accurately capture violations at approaches with 2, 3, or 4 lanes in one direction, including possible turning lanes on a separate signal phase. 3. Photo Flash. The City prefers low wattage systems that minimize the number of illuminators and extraneous illumination and flash effects. Please specify the number of flash units required by your system for a standard four-lane approach. Also describe the wattage and associated flash characteristics of your system. Floodlights may not be used. 4. Environmental Impacts. The City prefers systems that utilize existing structures or minimally obtrusive new poles to minimize impacts to curbside and streetscapes. Describe the ways in which your system minimizes its overall "intrusion" into the physical environment at and near selected intersections, and where your proposed system makes use of ., .!!l: existing infrastructure. Please provide a list and description of all equipment deployed, together with physical dimensions for a single monitored approach of four traffic lanes. Attach photos of all required equipment from an existing active four-lane intersection approach. Photos must include all poles, cabinets, housings and flash units that make up the entire system. 5. The vendor needs to have access to Division of Motor Vehicle information to find owner information on every license tag captured in violation of running red lights, which includes out of state tags. This has to be done by the vendor, and not by the City's police department. The vendor must disclose the means to which they plan to do this. 6. High Resolution' Camera. The City realizes the benefits of using a high-resolution camera. Please state the camera resolution in mega pixels. 7. The City strongly prefers the red light camera system have the ability to record multiple violations simultaneously. IV. INFORMATION REQUIRED OF PROPOSER In order to insure a uniform review process and to obtain the maximum degree of comparability, it is required that the proposals be organized in the manner specified. A. Title Page: Show the name of the company, address, telephone number, email address, name of contact person, date, and the subject: RFP# 22-11 Installation of Red Light Cameras. B. Table of Contents: Include a clear identification of the material by section and page number. C. Letter of Transmittal: Briefly state the proposer understands of the work to be done and identify the person who will be authorized to make representations for the proposer, their titles, addresses and telephone numbers as well as email addresses. D. General summary of information about the business such as history of the company, business hours, contact information, geographic distribution of the company etc. E. References: The vendor must provide references from three other cities, counties, states or provinces to document successful deployment of vendor's proposed digital red light camera enforcement equipment. The references must be operating an outsourced program using substantially the same equipment and technology proposed herein. The vendor must also provide references from at least three other client cities to document successful systems integration and deployment of vendor's red light camera solution. Vendors shall provide points of contact for each reference, together with the number of red fight photo enforcement approaches deployed with the high-resolution digital camera technology. F. Completion Time: Proposer is to submit the number of days required to complete project. 1. INTRODUCTION SPECIFIC QUALIFICATIONS: Red Light Camera Vendors should have relevant successful experience at cost effectively performing Traffic Infraction services on continuing contracts with public agencies. COMPETITIVE SELECTION: Selection of finalists for interview will be made on the basis of qualifications including: Firm's office location, financial capability, scheduling/cost control, information systems, and firm's relevant project experience. INTERVIEWS: The Selection Committee will conduct interviews with and may require public presentation from three to five firms deemed to be most highly qualified regarding their qualifications to include scheduling of projects; overall approach/ methodology to the project; proposed project staff; references from prior clients relevant on projects received within the last five years; and ability to furnish the required services. Firms must be licensed in the State of Florida at the time of submittal. Further, if a corporation, the firm must be registered by the Florida Department of State, Division of Corporations. The selection will be made in accordance with 255.32 F.S. and the procedures and criteria of the City of Clearwater. The vendor responses to the RFP will be evaluated on the following criteria: 111 Related Florida experience (25%) 111 Financial capability (15%) 111 Scheduling, cost control (20%) 111 Project staff and availability (15%) 111 Knowledge of local conditions (20%) 111 Successful legal defenses (5%) The Review Committee's decision in qualification of prospective firms shall be final. The City reserves the right to, at its sole discretion, accept or reject any and all submittals, request clarifications from any prospective finn, amend or modify the tenus of the RFP, or re-issue the RFP if such action is in the best interest of the City. The overall project schedule is outlined in Section Eight of this document. I f there is any doubt as to the true meaning of any part of this RFP, or if any discrepancies in or omissions from this RFP are discovered, a written request for an interpretation or correction may be submitted to the City for response. The company submitting the request will be responsible for delivery no later than seven calendar days before the submittal due date. Any clarification or correction of this RFP will be made only by written addendum. A copy of all such addenda will be mailed or delivered to each company holding a set of documents. The City will not be responsible for any other explanation or interpretations of the documents. 1. RFP SUBMITTALS: Interested finus should state their interest in this project by SUbmitting six paper copies and one electronic copy of the following: I. A letter of interest detailing the firm's qualifications, related experience, and the firm's abilities to do the work and to meet the above referenced selection criteria. 2. A letter from the firm's Surety stating the firm's bonding capabilities. 3. Resumes of proposed staff and staff organizations. 4. A copy of the firm's current Florida Department of Business and Professiqnal Regulation License. 5. For Corporations only: If the firm offering services is a corporation, it must be properly registered with the Florida Department of State to practice their profession in Florida and must provide a copy of the firm's current Florida Corporate Registration. 2. SELECTION PROCESS: The City Project Review Committee witt consist of representatives from the City of Clearwater Engineering Department; City of Clearwater Police Department; and City of Clearwater Legal D~partment; and will review the RFP submittals and select three to five firms for interviews. Those firms not asked to make oral presentations witt also be notified. The selected firms to be shortlisted will be given advance notice to prepare for a public interview, to be held in Clearwater. The interviews witt be conducted over a one-or two-day schedule. A decision following the interviews will be made within ten working days of the last interview. 3. CONDITIONS: The City reserves the right to accept andlor reject any or all submittals; to waive any irregularity, variance, or informality whether technical or substantial in nature; and to negotiate with all qualified firms in keeping with the best interests ofthe City. An award resulting from this request shall be negotiated with the firm(s) whose proposal and presentation is determined to most advantageous to the City of Clearwater. 4. MAIL OR DELIVER COMPLETED RESPONSES TO: George McKibben City Purchasing Manager Municipal Services Building 100 South Myrtle Avenue (3rd floor) Clearwater, FL 33756 -5520 Mailing address: P. O. Box 4748 Clearwater, FL 33758-4748 All proposals must be received not later than 4:00 p.m. local time May 30th, 2011. The City assumes no responsibility for responses received after the stated time and date, or at any office or location other than that specified herein, whether due to mail delays, courier mistake, mishandling or any other reason. Late responses will be held unopened and not considered for award. 5. INSURANCE REQUIREMENTS: See Exhibit "A" attached. 6. DISTRIBUTION: This RFP is being mailed to firms that have contacted the City and those that are believed to have the experience neede4 for this project. The project is also being advertised per City of Clearwater purchasing policies and being made available online through the City's website and electronic plan room. 7. PROJECT SCHEDULE I) Release date of RFP April 14th, 2011 2) Cut Off Date for Inquiries May 23rd, 20 I I 3) Due date ofRFP May 30th, 2011 4) Short-list Selection June 6th, 20 II 5) Oral Presentations June 20th, 2011 (week of) 6) Selection Committee Recommendation 7) City Council Approval 8. GENERAL CLAUSES OPENNESS OF PROCUREMENT PROCESS June 27th, 2011 July 21st, 201 I Written response, other submissions, correspondence, and all records made thereof, as well as negotiations conducted pursuant to this request, shall be handled in compliance with Chapters I 19 and 286, Florida Statutes. The City gives no assurance as to the confidentiality of any portion of the qualifications once submitted. RETENTION AND DISPOSAL OF RESPONSE The City reserves the right to retain all submitted responses for official record purposes. The City also reserves the right to dispose of any or all copies of responses in whatever manner it deems appropriate. No copies of responses will be returned to the firm. ERRORS AND OMISSIONS Once a response is presented, the City shall not accept any requests by any firm to correct errors or omissions in any calculations submitted. RESERVED RIGHT The City reserves the right to accept or reject any and/or all submissions/proposals, to waive irregularities and technicalities, and to request resubmission. Any sole response received the first submission date mayor may not be rejected by the City depending on available competition and timely needs of the City. The City shall be the sole judge of the submission/proposal and the resulting negotiated agreement that is in its best interest and its decision shall be tinal. Also, the City reserves the right to make such investigation, as it deems necessary to determine the ability of any responder to perform the work or service requested. The responder shall provide information the City deems necessary to make this determination. CONFLICT OF INTEREST Any prospective firm should make an affirmative statement in its proposals to the effect that, to its knowledge, its retention would not result in a conflict of interest with any party. Alternatively, should any potential conflict exist, the prospective firm should specify the party with which there might be a conf1ict, the nature of the potential conflict, and the means proposed to resolve such conflict. RIGHT TO PROTEST Any actual or prospective responder who is aggrieved in connection with the solicitation or award of a contract may seek resolution of its complaints by contacting the Purchasing Manager. NO COLLUSION By offering a submission to the RFP, the responder certifies, and in the case of ajoint submission/proposal each party thereto ceitifies as to its own organization, that in connection with the submission/proposal: a. No attempt has been made or will be made by the responder to induce any other person or firm to submit or not to submit a submission/proposal for the purpose of restricting competition; and b. The only person(s) or principal(s) interested in this submission/proposal are named therein and that no person other than those therein mentioned has/have any interest in this SUbmission/proposal or in the agreement to be entered into; and agreement or understanding for a commission, percentage, brokerage, or contingent fee, accepting bona fide employees or established commercial agencies maintained by the purchaser for the purpose of doing business. APPROPRIATIONS CLAUSE The City, an entity of government, is subject to the appropriation offunds by its legislative body in an amount sufficient to allow continuation of its performance in accordance with the terms and conditions of this contract for each and every fiscal year following the fiscal year in which this contract is executed and entered into and for which this contract shall remain in effect. The City shall, upon receipt of notice that sufficient funds are not available to continue its full and faithful performance of this contract, provide written notice to the Contractor of such event and effective thirty (30) days after giving such notice or upon the expiration of the period of time for vvhich funds were appropriated, whichever occurs first, be thereafter released at all further obligations in any way related to the contract. 9. GENERAL TERMS AND CONDITIONS: ;. !~: ~ , .. a) All responses become property of the City of Clearwater. b) The City will not reimburse the respondent for any costs associated with the preparation, submittal, or presentation of their responses to this request. c) The respondent acknowledges that all information contained within its response is part of the public domain as defined by State of Florida Sunshine and Public Record Laws. The City gives no assurance as to confidentiality of any portion of any proposal once submitted. d) The awards made pursuant to this RFP are subject to the provisions of Chapter I 12, Part III, Florida Statutes. All respondents must disclose with their responses the name of an officer, director, owner, or agent who is also an employee of the City of Clearwater. Respondents, their agents, and associates shall refrain from contacting or soliciting any City officials regarding this RFP during the selection process. Failure to comply with this provision may result in disqualification of the respondent, at the option of the City. Only George McKibben may be contacted. e) There shall be no discrimination as to race, sex, color, creed, handicaps, or national origin in the operations conducted under this engagement. Due care and diligence has been exercised in the preparation of this RFP, and all information contained herein is believed to be substantially correct. However, the responsibility for determining the full extent of the services rests solely with those making responses. Neither the City nor its representatives shall be responsible for any error or omission in this response, nor for the failure on the part of the respondents to determine the full extent of the exposures. a) Preference will be given to those responses in full or substantially full compliance with the requested information in this document. b) Each respondent is responsible for full and complete compliance with all laws, rules, and regulations including those of the Federal Government, the State of Florida, and the City of Clearwater. Failure or inability on the part of the respondent to have complete knowledge and intent to comply with such laws, rules, and regulations shall not relieve any respondent from its obligation to honor its response and to perform completely in accordance with its response. c) Any interpretation, clarification, cotTection, or change to the H .. FP v/ill be tnade bY'vvritten addendum issued by the City's Purchasing Manager. Any oral or other type of communication concerning the RFP shall not be binding unless issued by the City in the form of an addendum. d) Responses must be signed by an individual of the respondent's organization legally authorized to commit the respondent's organization to the performance of the services contemplated by this RFP. e) The successful respondent shall be required to submit proof of licenses, certifications, and proofs of insurance as required by the City. f) The successful respondent shall not be allowed to substitute project team members named in this response without the written permission of the City. Documents cited in this document but not attached are available upon request. EXHIBIT "A" INSURANCE REQUIREMENTS 1 . Liability Insurance. The party submitting an RFP, hereinafter referred to in this document as the Proposer, if selected, shall furnish, pay for, and maintain during the I ife of any contract entered into with the City the following liability coverage: a . Commercial General Liability insurance on an "occurrence" basis in an amount not less than $1,000,000.00 including Products and Completed Operations coverage. Combined single limit Bodily Injury Liability and Property Damage Liability. Worker's compensation for employees, contractors and subcontractors. b. Business Automobile Liability insurance in the amount of at least $1,000,000, providing Bodily Injury Liability and Property Damage Liability. c. Worker's Compensation Insurance applicable to its employees, if any, for statutory coverage limits in compliance with Florida laws, including Employers' Liability that meets all state and federal laws. d. Professional Liability/Malpractice/Errors or Omissions insurance, as appropriate for the type of business engaged in by the Proposer, shall be purchased and maintained by the Proposer with minimum I imits of $1 ,000,000 per occurrence. 2 . Additional Insured. The City is to be specifically included as an additional insured on all liability coverage described above, except the insurance coverage identified in paragraphs c and d. 3 . Notice of Cancellation or Restriction. All policies of insurance must be endorsed to provide the City with thirty 30) day's notice of cancellation or restriction. 4 • Certificates of Insurance/Certified Copies of Policies. The Proposer, if selected, shall provide the City with a certificate or certificates of insurance showing the existence of the coverage required by this RFP, if any. The Proposer will maintain the required coverage with a current certificate or certificates of insurance throughout the term of the contract with the City. When specifically requested by City in writing, the Proposer will provide the City with certified copies of all policies of insurance as required above. New certificates and new certified copies of policies, if certified copies of policies have been requested, shall be provided City whenever any policy is renewed, revised, or obtained from other insurers. 5. The address where such certificates and certified polices shall be sent or delivered is as follows: City of Clearwater Attention: Traffic Operations Manager P.O. Box 4748 Clearwater, FL 33758-4748 6. The Proposer shall defend, indemnify, save and hold the City harmless from any and all claims, suits, judgments and liability for death, personal injury, bodily injury, or property damage arising directly or indirectly from any performance under this RFP, or a subsequent purchase order or contract entered into by City and Proposer, its employees, subcontractors, or assigns, including legal fees, court costs, or other legal expenses. Proposer acknowledges that it is solely responsible for complying with the terms of this RFP or a purchase order or contract arising out of this RFP. [n addition, the Proposer shall, at its expense, secure and provide to City, prior to beginning performance under an RFP, or a subsequent purchase order, or contract, all insurance coverage as required in this RFP. 8) Any party providing services or products to the City will be expected to enter into a written agreement, contract, or purchase order with the City that incorporates, either in writing or by reference, all of the pertinent provisions relating to insurance and insurance requirements as contained herein. A failure to do so may, at the sole option of the City, disqualify any vendor, bidder or Proposer of services and/or products to the City. EXHIBIT B DRAFT CONTRACT This CONTRACT made and entered into this __ day of , 20_ by and between the City of Clearwater, Florida, a municipal corporation, hereinafter designated as the "City", and ________________ , of the City of County of ______________ and State of Florida, hereinafter designated as the "Contractor". WITNESSETH: ""1" That the parties to this contract each in consideration of the undertakings, promises and agreements on the part of the other herein contained, do hereby undertake, promise and agree as follows: The Contractor, and his or its successors, assigns, executors or administrators, in consideration of the sums of money as herein after set forth to be paid by the City and to the Contractor, shall and will at their own cost and expense perform all labor, furnish all materials, tools and equipment for all individual projects assigned as a result of this contract. For each individual project in accordance with such proposal and technical supplemental specifications and such other special provisions and drawings, if any, which will be submitted by the City, together with any advertisement, instructions to bidders, general conditions, proposal and bond, which may be hereto attached, and any drawings if any, which may be herein referred to, are hereby made a part of this contract, and all of said work to be performed and completed by the contractor and its successors and assigns shall be fully completed in a good and workmanlike manner to the satisfaction of the City. If the Contractor should fail to comply with any of the terms, conditions, provisions or stipulations as contained herein within the time specified for completion of the work to be performed by the Contractor, then the City, may at its option, avail itself of any or all remedies provided on its behalf and shall have the right to proceed to complete such work as Contractor is obligated to perform in accordance with the provisions as contained herein. THE CONTRACTOR AND HIS OR ITS SUCCESSORS AND ASSIGNS DOES HEREBY AGREE TO ASSUME THE DEFENSE OF ANY LEGAL ACTION WHICH MAY BE BROUGHT AGAINST THE CITY AS A RESULT OF THE CONTRACTOR'S ACTIVITIES ARISING OUT OF THIS CONTRACT AND FURTHERMORE, IN CONSIDERATION OF THE TERMS, STIPULATIONS AND CONDITIONS AS CONTAINED HEREIN, AGREES TO HOLD THE CITY FREE AND HARl\1LESS FROM ANY AND ALL CLAIMS FOR DAMAGES, COSTS OF SUITS, ,JUDGMENTS OR DECREES RESULTING FROM ANY CLAIMS MADE UNDER THIS CONTRACT AGAINST THE CITY OR THE CONTRACTOR OR THE CONTRACTOR'S SUB-CONTRACTORS, AGENTS, SERVANTS OR EMPLOYEES RESULTING FROM ACTIVITIES BY THE AFOREMENTIONED CONTRACTOR, SUB-CONTRACTOR, AGENT SERVANTS OR EMPLOYEES. In addition to the foregoing provisions, the Contractor agrees to conform to the following requirements: In connection with the performance of work under this contract, the Contractor agrees not to discriminate against any employee or applicant for employment because of race, sex, religion, color, or national origin. The aforesaid provision shall include, but not be limited to, the following: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; lay-off or termination; rates of payor other forms of compensation; and selection for training, including apprenticeship. The Contractor agrees to post hereafter in conspicuous places, available for employees or applicants for employment, notices to be provided by the contracting officer setting forth the provisions of the non-discrimination clause. The Contractor further agrees to insert the foregoing provisions in all contracts hereunder, including contracts or agreements with labor unions and/or worker's representatives, except sub-contractors for standard commercial supplies or raw materials. EXCLUSIVE AGREEMENT BETWEEN THE CITY OF CLEARWATER, FLORIDA AND RED FLEX TRAFFIC SYSTEMS, INC. FOR TRAFFIC CAMERA SAFETY IMPROVEMENT PROGRAM This CONTRACT made and entered into this __ day of , 2011 by and between the City of Clearwater, Florida, a municipal corporation, with offices located at 112 S. Osceola Avenue, Clearwater, FL 33756 hereinafter designated as the "City", and Redflex Traffic Systems, Inc., a DELEW ARE Corporation, with offices located at 23751 23 RD Ave. Phoenix, AZ 85085, hereinafter designated as the "Contractor" or "Redflex." WITNESSETH: That the parties to this contract each in consideration of the undertakings, promises and agreements on the part of the other herein contained, do hereby undertake, promise and agree as follows: The Contractor, and his or its successors, assigns, executors or administrators, in consideration of the sums of money as herein after set forth to be paid by the City and to the Contractor, shall and will at their own cost and expense perform all labor, furnish all materials, tools and equipment for all individual projects assigned as a result of this contract. For each individual project in accordance with such proposal and technical supplemental specifications and such other special provisions and drawings, if any, which will be submitted by the City, together with any advertisement, instructions to bidders, general conditions, proposal and bond, which may be hereto attached, and any drawings if any, which may be herein referred to, are hereby made a part of this contract, and all of said work to be performed and completed by the contractor and its successors and assigns shall be fully completed in a good and workmanlike manner to the satisfaction of the City. If the Contractor should fail to comply with any of the terms, conditions, provisions or stipulations as contained herein within the time specified for completion of the work to be performed by the Contractor, then the City, may at its option, avail itself of any or all remedies provided on its behalf and shall have the right to proceed to complete such work as Contractor is obligated to perform in accordance with the provisions as contained herein. In addition to the foregoing provisions, the Contractor agrees to conform to the following requirements: In connection with the perfOlmance of work under this contract, the Contractor agrees not to discriminate against any employee or applicant for employment because of race, sex, religion, color, or national origin. The aforesaid provision shall include, but not be limited to, the following: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; lay-off or termination; rates of payor other forms of compensation; and selection for training, including apprenticeship. The Contractor agrees to post hereafter in conspicuous places, available for employees or applicants for employment, notices to be provided by the contracting officer setting forth the provisions of the non-discrimination clause. The Contractor further agrees to insert the foregoing prOViSIOns in all contracts hereunder, including contracts or agreements with labor unions and/or worker's representatives, except sub-contractors for standard commercial supplies or raw materials. RECITALS WHEREAS, Redflex has exclusive knowledge, possession and ownership of certain equipment, licenses, applications, and citation processes related to the Traffic Camera Safety Improvement Program (hereinafter "the Program"); 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 identify and enforce traffic 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 along roads and 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 Employee" means a Traffic Infraction Enforcement Officer or other individual authorized by the City, whose duties and qualifications are set forth in Chapter 2010-80, Laws of Florida, as amended or recodified from time to time, 1.2. "Authorized Violation" means each Violation in the Violation Data for which authorization to issue a citation in the form of an Electronic Signature is given by the Authorized Employee through the Redflex System. 1.3. "Confidential or Private Information" means, with respect to any Person, any information, matter or thing of a secret, confidential, exempt, 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, 2 procedures, business opportunities, marketing methods, plans and strategies, the costs of construction, installation, materials or components, the prices such Person obtains or has obtained from its clients or customers, or at which such Person sells or has sold its services; and 1.3.2. Matters of a technical nature, including but not limited to product information, trade secrets, know-how, formulae, innovations, inventions, devices, discoveries, techniques, formats, processes, methods, specifications, designs, patterns, schematics, data, access or security codes, compilations of information, test results and research and development projects. For purposes of this Agreement, the term "trade secrets" shall mean the broadest and most inclusive interpretation of trade secrets. 1.3.3. Notwithstanding the foregoing, Confidential Information will not include information that: (i) was generally available to the public or otherwise part of the public domain at the time of its disclosure, (ii) became generally available to the public or otherwise part of the public domain after its disclosure and other than through any act or omission by any party hereto in breach of this Agreement, (iii) was subsequently lawfully disclosed to the disclosing party by a person other than a party hereto, (iv) was required by a court of competent jurisdiction to be described, or (v) was required by applicable state law to be described. 1.4. "Designated Intersection Approaches" means the Intersection Approaches as Redflex and the Customer shall mutually agree from time to time. See Exhibit A for the number of approaches. 1.5. "Electronic Signature" means the method through which the Authorized Employee indicates his or her approval of the issuance of a Citation in respect of a Potential Violation using the Redflex System. 1.6. "Enforcement Documentation" means the necessary and appropriate documentation related to the issuance and collection of Notices of Violation and Uniform Traffic Citations for the enforcement of identified Infractions. This shall include warning letters, Notices of Violation, instructions for Notices of Violation, form affidavits, instructions for form affidavits, reminder letters, a numbering sequence for notices of violation, chain of custody reports, Uniform Traffic Citations, criteria regarding operational policies for processing Notices of Violation and Uniform Traffic Citations, and technical supporting documentation, to include video and still images, for hearings in accordance with applicable state laws and regulations, and technical support documentation. Video and still images of violations shall additionally be available to City in a common format agreeable to the Pinellas/Pasco Clerk of the Circuit Court. 1.7. "Equipment" means any and all approach cameras, sensors, equipment, components, products, software and other tangible and intangible property relating to the Program. 1.8. "Fine" means a monetary sum assessed for Citation, but excluding suspended fines. 1.9. "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. 3 1.10. "Infraction" means any violation of secs. 316.074(1) or 316.075(l)(c)1, Florida Statutes that may be enforced pursuant to sec 316.0083, Florida Statutes, as may be amended or recodified and as established by defined business rules. However, the failure to come to a complete stop while turning right on red shall not be enforced pursuant to this program. 1 .11. "Infraction Criteria" means the standards and criteria by which Potential Infractions 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 Florida State Statutes and other Governmental Authorities. Should the State of Florida change criteria which requires additional modification to the Program or its detection equipment, any cost incurred is the responsibility of Redflex. 1.12. "Infraction Data" means the images and other Infraction data gathered by the Redflex System at the Designated Intersection Approaches. 1.13. "Installation Date of the Program" means the date on which Redflex completes the construction and installation of at least one (1) Intersection Approach in accordance with the terms of this Agreement so that such Intersection Approach is operational for the purposes of functioning with the Program. 1.14. "Intellectual Property" means, with respect to any Person, any and all now known or hereafter known tangible and intangible (a) rights associated with works of authorship throughout the world, including but not limited to copyrights, moral rights and mask-works, (b) trademark and trade name rights and similar rights, (c) trade secrets rights, (d) patents, designs, algorithms and other industrial property rights, (e) all other intellectual and industrial property rights (of every kind and nature throughout the universe and however designated), whether arising by operation of law, contract, license, or otherwise, and (t) 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. 1.15. "Intersection Approach" means a conduit of travel with up to six (6) 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 the Program by the Customer. 1.16. "Notice of Violation" means the written notice of an infraction, which is delivered by first class mail by Vendor to Owner of a motor vehicle involved in an Infraction based upon the appropriate Enforcement Documentation pursuant to the requirements of Chapter 2010-80, Law of Florida, as may be amended or recodified. 1.17. "Operational Period" means the period during the Term, commencing on the Installation Date, during which the Program is functional in order to permit the issuance of Notices of Violation and Uniform Traffic Citations for authorized Infractions using the Redflex System. 1.18. "Person" means a natural individual, company, Governmental Authority, partnership, firm, corporation, legal entity or other business association. 4 1.19. "Project Manager" means the project manager appointed by the Customer in accordance with this Agreement, which may be an Authorized Employee and shall be responsible for overseeing the installation of the Intersection Approaches and the implementation of the 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 Councilor other governing body of the Customer. 1.20. "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 traffic violation has occurred. 1.21. "Proprietary Property" means, with respect to any Person, any written or tangible property owned or used by such Person in connection with such Person's business, whether or not such property is copyrightable or also qualifies as Confidential Information, including without limitation products, samples, equipment, files, lists, books, notebooks, records, documents, memoranda, reports, patterns, schematics, compilations, designs, drawings, data, test results, contracts, agreements, literature, correspondence, spread sheets, computer programs and software, computer 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. 1.22. "Records Retention" means the period of time that Redflex will retain confidential information to include photographic evidence and data associated with the Program. 1.23. "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 the Program 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. 1.24. "Redflex Project Manager" 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 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. ] .25. "Redflex System" means, collectively, the Salus® and/or SMARTcam® System, the SMARTscene® 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. The SMARTops® System, the 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. 5 1.26. "REDFLEXred® System" means the proprietary digital redlight photo enforcement system of Redflex relating to the Program. 1.27. "Salus® System" means the proprietary software that controls the systems of Redflex relating to the Program. 1.28. "SMARTcam® System" means the proprietary software system that controls the systems of Redflex relating to the Program. 1.29. "SMA~IQPs® System" means the proprietary back-office processes of Redflex relating to the Program. 1.30. "SMARTscene® System" means the proprietary digital video camera unit, hardware and software required for providing supplemental violation data relating to the Program. 1.31. "Traffic Camera Safety Improvement Program" or "the Program" are interchangeable and synonymous and mean 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, arc capable of measuring Violations and recording such Violation data in the form of photographic images of motor vehicles. 1.jL. "Traffic Signal Controiier Boxes" means the signai controlier interface and vehicle detection owned and operated by the Customer. This includes, but not limited to, the Customer's traffic controller, Customer's vehicle detection equipment, Customer's communication equipment, Customer's controller cabinet, etc. 1.33. "Uniform Traffic Citation" means a uniform traffic citation as described in Section 316.650 of the Florida Statutes; 1.34. "Video Survey Analysis (VSA)" means a video evaluation, statistical modeling, and assessment of infraction rates at suspected problematic intersections· and approaches to determine the need for a Redflex System. Video Survey Analysis shall provide for each designated intersection approach, at a minimum of three 8-hour periods on different days, including peak conditions of monitoring in order to provide a data baseline of violation frequency. 1.35. "Warning Period" means a period after the Installation Date of the first intersection approach, wherein only warning notices shall be issued, commencing within 3 days after the system has been installed. After the commencement date, the Warning Period shall continue for a minimum of thirty (30) calendar days, as required by Florida Statutes, prior to the issuance of a Notice of Violation. 2. TERl',4. This agreement shall commence on the date of successful compietion of the Pilot Program (as defined herein); this agreement shall be for a period of three years, consisting of a six-month Pilot Program and a remaining term of two and one half years (the "Start Date") and may be automatically extended for two additional 2-year periods. The Customer may exercise its right not to renew this Agreement for a renewal term by providing advanced written notice to Redflex not less than forty-five (45) calendar days prior to the last day of the initial term. PILOT PROGRAM The City and Contractor shall initially engage in a six (6) month pilot and testing program to evaluate the benefits of the Traffic Camera Safety 6 Improvement Program. The pilot program shall include installation and enforcement at two (2) designated intersections, with the City reserving the right to select the number of intersection approaches implemented at each selected site, not exceeding two (2) enforced approaches at one intersection and three (3) enforced approaches at the other intersection. The City will work with Contractor to identify the designated intersections based on public-safety needs and the physical characteristics of the intersection. To minimize intrusiveness, the City will allow Contractor, to the extent possible, to utilize existing infrastructure including street light poles, mast-arms, and depending on the location, power; if capacity is available. PILOT SUCCESS. This agreement includes a Cost Neutrality guarantee, thereby eliminating all upfront costs and all fiscal risk associated with the Contractor's fees. This Cost Neutrality guarantee is inclusive under the Pilot Program. The goal of the Pilot Program is to quantify the effectiveness of red light enforcement cameras on red light running rates at dangerous intersections as identified by Police and Traffic Engineering. Analyses will compare the rate of red light running before the installation of red light enforcement cameras and the rate of red light running at the same designated intersections and at the same approaches after the implementation of red light enforcement cameras. The VSA (video survey analysis) process will provide the baseline or "before" study period data to provide average rates of red-light violations. After the 6-month operational pilot program, an "after" study will be implemented. The "after" study will use data from the last four weeks of the 6-month pilot program. Each week, during the final four weeks of the pilot program, data will be collected relating to the frequency of red light violations occurring during the day(s) of week/time period(s) that substantially mirror the three distinct eight (8) hour collection periods of the VSA. At the conclusion of the four weeks, the data from each corresponding collection period will be added and then averaged to detelmine the mean number of violations occurring during the "after" period. Using regression analysis (or a similar statistic analysis), the success of the Pilot program will examine the relationship of camera enforcement on red light running frequency. If the mean number of violations occurring during the "after" study is reduced by at least fifteen (15) percent when compared to the corresponding VSA mean (calculated by adding and averaging the number of violations occurring during three, eight (8) hour periods), the pilot will be considered "successful" under the terms of this agreement. Should the Pilot Program achieve success as identified above, the two and one-half year remaining term of the initial contract shall automatically continue; and the program will remain in operation under the terms of this Agreement. The City has the right to tetminate this program without penalty, such as the remaining amOltized costs in 6.4, if the Pilot program is unsuccessful by providing the Contractor thirty (30) days written notice. 7 i I', 'I At any time during the Pilot, based on positive trending regarding the reduction of red- light running rates, at the City's request and based on mutual agreement, the City can request to move beyond the Pilot and implement a wide-scale system installation. Upon notice to Contractor, the City reserves the right to renegotiate the terms and conditions of this agreement should the disbursement of fines and/or fees collected during the administration of a red light camera program be amended by Florida State Statute. If the Florida Legislature reduces the amount of fines disbursed to the City, the City shall have the option of discontinuing the agreement with no penalty, such as the remaining amortized costs in 6.4, upon providing Contractor forty five (45 days) written notice. 3. SERVICES. Redflex shall provide the Program to the Customer, in each case in accordance with the terms and provisions set forth in this Agreement. 3.1. INSTALLAfION. With respect to the construction and installation of (1) the Designated Intersection Approaches and the installation of the Redflex System at such Designated Intersection Approaches, the Customer and Redflex shall have the respective rights and obligations set forth on Exhibit B attached hereto. 3.2. MAINTENANCE. With respect to the maintenance of the Redflex System at the Designated Intersection Approaches the Customer and Redflex shall have the respective rights and obligations set forth on Exhibit C attached hereto. 3.3. VIOLATION PROCESSING. During the Operational Period, Violations shall be processed as follows: 3.3.1. All Violations Data shall be stored on the Redflex System; 3.3.2. The Redflex System shall process Violations Data gathered from the Designated Intersection Approaches into a format capable of review by the Authorized 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 a computer equipped with a high-speed Internet connection and an approved web browser. 3.3.4. Redflex shall provide the Authorized Employee with access to the Redflex System for the purposes of reviewing the pre-processed Violations Data within four (4) 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 shall be issued with respect to each Potential Violation captured within such Violation Data, and transrnit each such determination in the form of an Electronic Signature to Redflex using the software or other applications or procedures provided by Redflex on the Redflex System for such purpose, and REDFLEX HEREBY ACKNOWLEDGES AND AGREES THAT THE DECISION TO ISSUE A CITATION SHALL BE THE SOLE, UNILATERAL AND EXCLUSIVE DECISION OF THE AUTHORIZED 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. 8 if .. 3.3.6. With respect to each Authorized Violation, Redflex shall print and mail a Notice of Violation and/or Uniform Traffic Citation within five (5) 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 continually maintain an ability to transmit authorized Uniform Traffic Citations electronically, at the time of issuance by an Authorized Employee, to the Pinellas/Pasco Clerk of the Circuit Court. This transmittal will be in a format authorized by the Pinellas/Pasco Clerk of the Circuit Court. 3.3.8. Redflex shall maintain an ability to continually transmit, electronically, all data regarding issued Notice of Violations and issued Uniform Traffic Citations to the Customer's Report Beam server or other designated database .. 3.3.9. Redflex shall continually ensure compliance with conditions or restrictions of applicable Florida State Statutes during the terms of this agreement at no cost to the City. 3.3.10. Redflex shall provide a toll-free telephone number for the purposes of answering citizen inquiries 3.3.11. Redflex shall permit the Authorized Employee to generate reports using the Redflex Standard Report System. 3.3.12. Monthly, 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 as mutually agreed upon. 3.3.13. During the six (6) month testing and evaluation period 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; provided, however, the Customer shall use reasonable best efforts to seek judicial notice in lieu of requiring Redflex to provide such expert witnesses; After the initial 6 month period, expert testimony may be provided on a cost reimbursement basis for time and travel, not to exceed $500 per request. 3.3.14. During the three (3) 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 Program. 3.4. Records Retention: Redflex shall retain confidential or exempt information to include photographic evidence and data associated with the Program for a period defined by the guidelines of the State of Florida, County of Pinellas, or the City of Clearwater. 3.5. PROSECUTION AND COLLECTION; COMPENSATION. The Customer shall diligently prosecute authorized violations, through either Notice of Violation or Uniform Traffic Citation, which are deemed prosecutable by the reviewing City employee. 3.6. TAXES. Where required by state statute, ordinance or regulation, Redflex shall pay for and maintain in current status all taxes that are necessary for contract 9 performance. No charge by the City/Customer shall be made for federal excise taxes and City/Customer agrees to fmnish Redf1ex with an exemption certificate where appropriate for any applicable sales and/or use taxes. 3.7. OTHER RIGHTS AND OBLIGATIONS. Dming 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. 3.8. 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 pmsuant 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 price increases or decreases, as the case may be, and any other matters relating to the proposed changes; provided, however, in the event that any proposed change involves only the addition of equipment or services to the existing Designated Intersection Approaches, or the addition of Intersection Approaches to be covered by the terms of this Agreement, to the maximum extent applicable, the pricing terms set forth in Exhibit D shall govern. Any failme 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. 3.9. ROAD REPAIRS AND CONSTRUCTION PROJECTS. The term of an installed camera shall be temporarily suspended as a result of any Customer- authorized road repairs, street improvements or stop work order that interrupts, impedes, obstructs or interferes with the successful performance of the installed camera for a period of fourteen (14) or more calendar days. This section shall not apply to those projects beyond the control of the Customer, such as projects initiated by the Florida Department of Transportation or other controlling entity. 4. LICENSE,' RESERVATION OF RIGHTS. 4.1. License. Subject to the terms and conditions of this Agreement, Redi1ex 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 Clearwater, access and use the Redflex System for the sole purpose of reviewing Potential Violations and authorizing the issuance of Citations pmsuant 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 Clearwater that Redflex is providing services to the Customer in connection with 10 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 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. Customer retains the right to any Intellectual Property, equipment, and/or concepts developed by its employees or subcontractors. 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 Propelty 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 Redf1ex 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; 11 1. provided, that Redf1ex shall reimburse the Customer for any reasonable costs incurred in providing such cooperation and assistance. 4.6. INFRINGING USE. The Customer shall give Redf1ex prompt written notice of any action or claim action or claim, whether threatened or pending, against the Customer alleging that the Redf1ex 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 Redf1ex 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. 4.7. UNAUTHORIZED REFERENCES TO REDFLEX. Customer shall not utilize, make use of and/or make any reference to Redflex, its name or likeness, its affiliated, parent or subsidiary companies or corporations, its logos, insignias, trademarks, trade names, brand, websites, property, assets, products or services, • 1 J-_ 1.J. .L 1· _., 1. .1 1:.c.1""I1I. A' J. T'!o""'" ...... "K r-t • '1'1 tt~" ............ r. .... mClUumg, OUl nOl Umlleu to, lile ;:'lVlAl~lcam .. n ;:,ystem-, --;:'alus'ty' ;:,ystem", ''REDFLEXred™ System", ''REDFLEXspeed™ System", "REDFLEXraiFM System", "REDFLEXstopTM System", ''REDFLEXslimline™ System", "SMARTopsTM System", ''SMARTscene™ System"; "PLATESCANTM System" and/or and any and all combinations, variants and derivatives thereof, in, on or about, Customer marketing, pUblicity, media, public relations, advertising, education or training materials, information, data, papers and/or documents, for any reason or purpose, whatsoever, without the prior written approval of Redflex which may be withheld, denied, delayed, rejected and/or refused, by Redflex in its sole, absolute and unilateral discretion. 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 warTants 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, lil compliance with all specifications provided to Redf1ex 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. 12 j . 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. 6.1. TERMINATION : Either party shall have the right to terminate this Agreement by 90 days written notice to the other with or without cause. 6.2. If Florida State Statutes are amended to prohibit or substantially change the operation of the Clearwater Program, or the Sixth Judicial Circuit, one of the Florida District Courts of Appeal, the Florida Supreme COUlt, one of the Florida federal district courts, the Eleventh Circuit Court of Appeals, or the United States Supreme Court rules the red-light camera statues unlawful or that the Citations from the Clearwater Program or a substantially similar program are inadmissible in evidence, the City may immediately terminate this agreement. For the purposes of this agreement, termination of the agreement under these conditions shall be considered as termination with cause; and the City shall incur no penalty, such as the remaining amortized costs in 6.4, for such termination. 6.3. Should either party commit a material breach of any of the provisions of this agreement a party shall have the right to remedy or cure the cause for termination or breach 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 appropriate party setting forth in reasonable detail the events of the cause for termination or breach. Termination of this Agreement shall not be enforceable or effective unless the terminating party mails written notice of termination to the non- terminating party not less than forty-five (45) calendar days prior to the Agreement termination date and provides to the non-terminating party the opportunity to remedy or cure the cause of the termination or breach within the forty-five (45) calendar day time period provided herein. Termination of the agreement under these conditions shall be considered as termination with cause; and the City shall incur no penalty, such as the remaining amortized costs in 6.4, for such termination. 6.4. TERMINATION FOR CONVENIENCE: This Agreement is terminable at will, and either party may cancel this Agreement, without cause, upon ninety (90) days 13 written notice. If the City terminates without cause, City shall be obliged to reimburse the Contractor for all documented unamortized costs for the non- recoverable expense incurred with construction, installation and development, not to exceed $27,000 per operational approach. Amortized costs will be determined on a 3-year or 36 month schedule starting from the date the operational approach is installed. For example, if the City terminates the contract for convenience 1 year after the installation of an operational approach, Redflex would have the right to be reimbursed a total not to exceed $18,000, since 33% (or 12 months of a 36 months schedule) has already been amortized and depreciated. Additionally, Contractor will work with the City's Department of Public Works and when feasible, utilize the Department of Public Works as a sub-contracting entity on a fee fur service basis, in which the City will invoice Contractor for any agreed upon construction services. 6.5. RIGHTS AND REMEDIES. In connection with any breach and/or termination of this Agreement, Redflex shall have and hereby reserves, in full, all rights and remedies available in law and/or in equity. 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 hreach of this Agreement -.. ------0----------- 6.6. PROCEDURES UPON TERMINATION. The termination of this Agreement without cause 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: 6.6.1. 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 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 tennination 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 infOlmation to the City by a mutually agreed upon method. Redflex will provide no tools for accessing this data or other guarantees. 6.6.2. The Customer shall (i) immediately cease using the 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 14 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. 6.6.3. Unless the Customer and Redflex have agreed to enter into a new agreement relating to the 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. 6.6.4. In addition to any and all other rights and remedies available and/or reserved herein, the Customer shall pay to Redflex a pro rata share of all monies or revenue generated, collected and/or received by Customer after the Agreement termination date that are, in any way, a result of, associated with and/or attributable to, in whole or in part, the products or services rendered to Customer by Redflex. 6.7. SURVIVAL. Notwithstanding the foregoing, the definitions and each of the following shall survive the termination of this Agreement: (i) 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 (Injunctive Relief; Specific Performance), 11.18 (Applicable Law)) and 11.19 (Jurisdiction and Venue), and (ii) 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 ofthis Agreement. 7. CONFIDENTIALITY. RED FLEX ACKKNOWLEDGES THAT THE CUSTOMER WILL OBTAIN AUTHORIZATION FROM THE FLORIDA DEPARTMENT OF LAW ENFORCEMENT (FDLE) FOR RED FLEX TO USE THE CLEARWATER POLLICE DEPARTMENT'S ORIGINATING AGENCY IDENTIFIER (ORl) TO FACILITATE ACCESS TO VEHICLE REGISTRATION INFORMATION PROVIDED VIA FDLE'S INTERNATONAL JUSTICE AND PUBLIC SAFETY NETWORK CONNECTION, THE FLORIDA CRIME INFORMATION CENTER MESSAGE SWITCH, AND THE FLORIDA DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES FOR USE IN ENFORCING THE CUSTOMER'S RED LIGHT CAMERA PROGRAM. REDFLEX AGREES TO ABIDE BY THE TERMS OF THE "RED LIGHT CAMERA OPERATIONS SUPPLEMENT CRIMINAL JUSTICE USER AGREEMENT," WHICH IS MADE A PART HEREOF AS EXHIBIT "H." 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 other 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 patty. Each party shall retain in confidence and not disclose to any third party any 15 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, attomeys and other professional advisors that have a need to know such Confidential Information, provided that such parties undertake in v.,rriting (or are other\vise 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 Govemmental Authority, including laws relating to public records. 8. INDEMNIFICATION AND LIABILTY. 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 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 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, (b) the negligence or 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 to the extent caused by the negligence or willful misconduct of any Redflex Party. Nothing herein, however, shall be construed to waive or modify the provisions of Section 768.28, Florida Statutes or the doctrine of sovereign immunity. 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 16 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 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 special, incidental, indirect, consequential or punitive damages however caused and on any theory of liability arising out of or relating to this Agreement, except and only to the extent expressly authorized pursuant to provision 11.20, entitled "PREVAILING PARTY" of this Agreement. In the event of any breach of this Agreement, however, the non-breaching party is entitled to recover expectation damages from the breaching party, which are defined as the amounts that non-breaching party would have received under the Agreement had the breaching party fully performed pursuant to the terms and conditions of 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. 23751 North 23 rd Avenue Phoenix, AZ 85027 Attention: Program Management Office Facsimile: (623) 207-2050 17 9.2. Notices to the Customer: City of Clearwater Police Depm1ment 645 Pierce Street Clearwater, FL 33756 Attention: Lieutenant D.H. Dalton Facsimile: 727-562-4198 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, 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 Redt1ex. Notwithstanding the above, this Agreement shall inure to the benefit of, and be binding upon, the parties hereto, and their respective successors or aSSIgns. 18 11.2. RELATIONSHIP BETWEEN REDFLEX AND THE CUSTOMER. Nothing in this Agreement shall create, or be deemed to create, a partnership, joint venture or the relationship of principal and agent or employer and employee between the parties. The relationship between the parties shall be that of independent contractors, and nothing contained in this Agreement shall create the relationship of principal and agent or otherwise permit either party to incur any debts or liabilities or obligations on behalf of the other party (except as specifically provided herein). 11.3. AUDIT RIGHTS. Each of parties hereto shall have the right to audit to audit the books and records of the other party hereto (the "Audited Party") solely for the purpose of verifying the payments, if any, payable pursuant to this Agreement. Any such audit shall be conducted upon not less than forty-eight (48) hours' prior notice to the Audited Party, at mutually convenient times and during the Audited Party's normal business hours. Except as otherwise provided in this Agreement, the cost of any such audit shall be borne by the non-Audited Party. In the event any such audit establishes any underpayment of any payment payable by the Audited Party to the non-Audited Party pursuant to this Agreement, the Audited Party shall promptly pay the amount of the shortfall, and in the event that any such audit establishes that the Audited Party has underpaid any payment by more than twenty five percent (25%) of the amount of actually owing, the cost of such audit shall be borne by the Audited Party. In the event any such audit establishes any overpayment by the Audited Party of any payment made pursuant to this Agreement, non-Audited Party shall promptly refund to the Audited Party the amount of the excess. 11.4. 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 ofa 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 19 completely negotiated and neither the Agreement nor any provision thereof shall be construed more strictly against either party. 11.9. HEADINGS. The headings of the sections contained in this Agreement are included herein for reference purposes only, solely for the convenience of the parties hereto, and shall not in any way be deemed to affect the meaning, interpretation or applicability of this Agreement or any term, condition or provision hereof. 11.10. EXECUTION AND COUNTERPARTS. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original, and such counterparts together shall constitute only one instrument. 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. 11.11. 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 anyone 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. COST NEUTRALITY. Under Exhibit D, Business Assumptions for All Pricing Options, subsection 1, this provision allows the City to defer certain payments should insufficient funds be available and if at the end of the each term of the contract sufficient funds have not been collected to pay the balance then due to Contractor; the Contractor waives its right to recovery of any outstanding balance. This provision shall not apply if law enforcement waives more than 10% of valid infractions forwarded to law enforcement for acceptance according to mutually agreed upon business rules. 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. 20 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 only by and copstrued, in all respects, solely in accordance with the laws of the State of Florida. 11.19. JURISDICATION AND VENUE. Any conflict, claim or dispute between Redflex and the Customer affecting, arising out of or relating to the subject matter of this Agreement shall be filed only in and litigated solely in the Sixth Judicial Court in the for Pinellas County, Florida; and both parties specifically agree to be bound by the exclusive jurisdiction and venue thereof. 11.20. PREVAILING PARTY. In the event of any conflict, claim or dispute between Redflex and the Customer affecting, arising out of or relating to the subject matter of this Agreement, the prevailing party shall be entitled to receive from the non-prevailing. party all attorneys' fees, expert fees, and related costs. Attorneys' fees, expert fees, and related costs shall be assessed by a Court and not by a jury and shall be included in any judgment obtained by the prevailing party. (The remainder of this page is left intentionally blank) 21 •. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first set forth above. Countersigned: Frank V. Hibbard Mayor Approved as to fonn: Robert J. Surette Assistant City Attorney CITY OF CLEARWATER, FLORIDA By: William B. Horne II City Manager Attest: Rosemarie Call City Clerk RED FLEX TRAFFIC SYSTEMS, INC. By: ______________________ __ Name: Title: 22 :1, )" EXHIBIT "A" Designated Intersection Approaches The contract is for the implementation of up to 30 intersection approaches. Identification of enforced intersection approaches will be based on mutual agreement between Redflex and the City as warranted by community safety and traffic needs. The City will make all reasonable efforts to provide the list of proposed intersections under consideration prior to formal project kick-off to the designated Redflex project manager. 23 EXHIBIT "8" Construction and Installation Obligations Timeframe for Installation: Fixed Traffic Camera Safety Improvement Program: Redflex will have each specified approach installed and activated in phases in accordance with an implementation plan to be mutually agreed to by Redflex Traffic Systems and the Customer. 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 specified intersection within sixty (60) days subsequent to formal project kick-off 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. In order to provide the Customer with timely completion of the Traffic Camera Safety Improvement 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. Request current "as-built" electronic engineering drawings for the Designated Intersection Approaches (the "Drawings") from the City traffic engineer; 1.3. Develop and submit to the 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 thc acquisition of the Approvals; 1.6. Assist the Customer in developing a public awareness strategy, which may include media and educational materials; 1.7. Develop the 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. 1.10. Cause an electrical sub-contractor to complete all reasonably necessary electrical work at the Designated Intersection Approaches, including but not 24 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. Citation processing and citation issuance/re-issuance 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 Employees and other persons involved in the administration of the Program, (ii) for up to sixteen (16) hours in the aggregate, (iii) regarding the operation of the Redflex System and the Program, which training shall include training with respect to the Redflex System and its operations, strategies for presenting Violations Data in court and judicial proceedings .and a review of the Enforcement Documentation; 1.16. Intersect with 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 where applicable, juvenile court personnel. 1.17. Comply with Section 316.0776, Florida Statutes, which directs that placement and installation of Traffic Infraction Detectors must be in accordance with placement and installation specifications developed by the Florida Department of Transportation (FDOT). 1.18. 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 Project Manager; 2.1.2. Assist Redflex in obtaining the Drawings from the relevant Governmental Authorities; 2.1.3. To improve system aesthetics, reduce intrusiveness and reduce incurred expense, Customer will allow, where permissible, to use existing infrastructure, including but not limited to, poles, mast-arms, conduit and power. 2.1.4. Notify Redflex of any specific requirements relating to the construction and installation of any Intersection Approaches or the implementation of the Traffic Camera Safety Improvement Program; 2.1.5. 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 by completing a form indicating that Redflex is acting an Agent of the Customer for purposes of accessing vehicle 25 ownership data for permissible uses under the Driver Privacy Protection Act 18 U.S.C section 2721; and 2.1.6. Assist Redflex in seeking the Approvals 2.1.7. 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 Traffic Camera Safety Improvement Program; 2.1.8. 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; 2.1.9. Seek approval or amendment of Awareness Strategy and provide written notice to Redflex with respect to the quantity of media and program materials (the "Materials") that the 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 (l) month after the Installation Date; 2.1.10. Assist Redflex in developing the Violation Criteria; and 2.1.11. Seek approval of the Enforcement Documentation. 2.1.12. Provide on-going adequate electrical power in order to operate the systems. 2.1.13. The Customer will allow Redflex to use existing conduit space as available. 2.1.14. The Customer shall maintain LED traffic signal lights (yellow and red) at all enforced locations, 2.1.15. Customer is responsible for maintaining applicable computer hardware, web browsers and high speed Internet access sufficient to access and operate the Redflex system 2.1.16. The Customer will ensure that amber light phase timing at photo enforced intersections meets the minimum standards according to Federal, State and Local laws, guidelines and rules. 26 .1: EXHIBIT "C" Maintenance 1. All repair and maintenance of the Traffic Camera Safety Improvement Program 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. 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 and install such flash units. 4. Redflex may 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. 27 ,. !!t: , .. EXHIBIT "D" COMPENSATION & PRICING Vendor agrees to provide a turnkey solution for a Traffic Camera Safety Improvement Program wherein all reasonably necessary elements required to implement and operate the solutions are the responsibility of Redflex, except for those items identified in this Agreement as the responsibility of the Customer. The turnkey program includes red light camera equipment, installation, maintenance and violation processing services. Including web application hosting, maintenance and remote administration, clerical data entry and quality review steps, DMV record access and data acquisition, notice mailing, lock box payment processing, web payment access, call center for general support, web-site accessibility to citizens for image viewing and payment and the design and support for a city-implemented public awareness campaign. Vendor System Flat Fee per Designated Intersection Approach per Month in Accordance with RFP Specifications and Submission: Number of Designated Intersection. Monthly Service Fee per Designated • • Approaches #1-#5 ... ..". . .... #6 and up . 1. Cost Neutrality Intersc:ction Approacll . . $4270.00 . ......... " ................... .. $4100,00 a. Customer shall have the option to make payments to Redflex in accordance with the Cost Neutrality Payment Option. Under this option, the Customer may defer certain payments to Redflex until the Customer has collected sufficient funds pursuant to the provisions of this Agreement. If, at the end of the initial contract term (36 months) or each authorized extension term, sufficient funds have not been collected by the Customer to pay the balance then due to Redflex, Redflex agrees to waive its right to the recovery of any outstanding balance; and the Customer shall have option of terminating the agreement without incurring the costs specified in section 6.4. b. Redflex shall maintain an accounting of net balance owed to Redflex. If the amount collected during a billing period exceeds the amount of the Redflex invoices during the same billing period, the Customer shall pay Redt1ex the total amount due based upon the service fee per designated intersection approach. c. If the amount collected during a billing period is less than the amount of the Redflex invoices, based upon the service fee per designated intersection approach, during the same billing period, the Customer may defer the payment of deficit between the amount collected and the Redflex invoice. d. Payments shall be reconciled by applying future funds collected first to the accrued balance, and then to the invoice for the current billing period. e. Prior to conducting the Cost Neutrality Payment, the City shall deduct $500 per operational intersection approach from the total amount collected to be applied to operational expenses related to violation processing and court presentation. 28 f In the event the contract ends or is terminated and an outstanding balance is still owed, subsequent receipts from the Redflex program still working though the program will be applied to the Redflex balance, not to exceed the applicable service fee based upon the number of operational designated intersection approaches at the time of termination or expiration of the contract. 2. Business Assumptions a. The fee for certified mail will be billed per unit to the City at the prevailing US Postal Service rate. Certified mailing fees will be covered under cost neutrality provisions. b. Except where a balance remains unpaid resulting from a deficient in gross cash received under "Cost Neutrality", Customer agrees to pay Contractor within thirty (30) days after the invoice is received. A monthly late fee of 1.5% is payable for amounts remaining unpaid 90 days from date of invoice. c. If capacity is available, set-up and on-going provisions for the electrical powers to the Designated Intersection Approaches will be the responsibility of the Customer. If capacity is not available, this expense will be the responsibility of the Contractor. d. Contractor shall be solely responsible for the fabrication and installation of such Signage as required by Florida Law. e. Vendor will seek to charge, collect and retain a maximum convenience fee of $4.00 each for electronic payments provided. Such fee is paid by the violator. City will not receive any said convenience fee and City assumes no liability, responsibility or control of said fee. f. Vendor will establish a demand deposit account as an agent for the City. All funds collected pursuant to the Program" will be deposited in this account and transferred by wire, on a mutually agreed schedule to the appropriate designated deposit FDIC member bank or other account as designated by City and mutually agreed to. 29 EXHIBIT "E" 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 the development of atiwork for utility bill inserts, press releases and schedules for any public launch of the Traffic Camera Safety Improvement Program (actual print and production costs are the sole responsibility of the Customer). 2. The Customer shall not access the Redflex System or use the Traffic Camera Safety Improvement Program in any manner other than prescribed by law or authorized by agreement between Redflex and the City. City shall ensure security of the Redflex System to prevent unauthorized usage which could result in damage, impairment, or overburdening of the Redflex System or the Traffic Camera Safety Improvement Program. 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 Traffic Camera Safety Improvement 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. 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. 30 i It, , EXHIBIT "F" 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 Red flex's subcontractors, agents, representatives and employees: Commercial General Liability Insurance. Commercial General Liability Insurance with coverage limits of not less than One Million Dollars ($1,000,000) combined single limit per occurrence for bodily injury and property damage, Two Million Dollars ($2,000,000) Products-Completed Operations Aggregate and Two Million Dollars ($2,000,000) General Aggregate; 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, non-owned 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 Two Million Dollars ($2,000,000) each and every claim and in the Aggregate; and 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 Florida, and Employer's Liability Insurance with coverage of not less than One Million Dollars ($1,000,000) per occurrence. 2. 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 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; and 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. 3. 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 30 days 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 31 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. 4. 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. 32 EXHIBIT "G" FORM OF ACKNOWLEDGMENT AND CONSENT This Acknowledgement and Consent Form, dated , 2011 is entered into by and between the City of Clearwater, Florida (the "City") and Redflex Traffic Systems, Inc., ("Redflex"), with reference to the Agreement between the City of _____ and Redflex Traffic Systems, Inc. for a Traffic Camera Safety Improvement Program, dated as of , by and between the City and Redf1ex (the "Agreement"). 1. Redflex has entered into a Credit Agreement, dated as of ------ 2009 ("the Credit Agreement"), with ("the Creditor") pursuant to which the Creditor has provided certain working capital to Redflex. Such working capital is needed by Redflex to perform its obligations to the City under the Agreement. 2. Pursuant to the Credit Agreement, Redflex granted to the Creditor a security interest in all of Redflex's personal property relevant to and associated with the Agreement with the City as collateral for the payment and performance of Redflex's obligations to the Creditor under the 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 shall not, by virtue of the Credit Agreement, be relieved of any liability or obligation under the Agreement, and the Creditor has not assumed any liability or obligation of Redflex under the Agreement. 4. The City hereby acknowledges notice of, approves and consents, in full, to Redflex's grant of the aforementioned security interest in favor of the Creditor in all of Redflex's rights and interests under the Agreement pursuant to the Credit Agreement. 5. The City further acknowledges and agrees that this Acknowledgement and Consent Form shall be binding upon the City and shall inure to the benefit of the successors and permitted assigns of the Creditor, and to any replacement lenders, banks andlor financial institutions which refinance Redflex's obligations to the Creditor under the Credit Agreement. 33 "1" It I , r' ; Red-Light Camera Operations Supplement EXHIBIT "H" RED-LIGHT CAMERA OPERATIONS SUPPLEMENT TO CRIMINAL JUSTICE USER AGREEMENT This Agreement supplements the Criminal Justice User Agreement entered into between the Florida Department of Law Enforcement (hereinafter referred to as FDLE), an agency of the State of Florida, and the Clearwater Police Department , with headquarters at 645 Pierce St, Clearwater, FI 33756, (hereinafter referred to as the User), and dated _________ _ PURPOSE: This Supplemental Agreement is to document the terms and conditions under which the User is authorized to permit the use of its Originating Agency Identifier (ORl) to facilitate access to vehicle registration information provided via FDLE's International Justice and Public Safety Network (Nlets) connection, the Florida Crime Information Center (FCIC II) Message Switch, and the Florida Department of Highway Safety and Motor Vehicles (DHSMV), for use in association with red-light camera traffic infraction detection operations implemented by county and municipal governments as authorized by Chapter 2010-80, Laws of Florida. Whereas, FDLE is duly authorized and agrees to ensure access to the information services provided to the User via Nlets; Whereas, the User provides law enforcement services for the -=C...:.;it:...<..V...;:o:...:..f...;:Co...;.le;...a=:rw...:...:..;:a.:..::.te;:;.,;r'--______________ -l.(governmental entity); Whereas, the governmental entity has contracted with a vendor for the purposes of traffic code enforcement using red-light cameras; Whereas, the vendor, as a deSignated strategic partner with Nlets, submits queries to DHSMV via FDLE's Nlets connection and the FCIC II Message Switch, and such queries include the User's OR!; FL0520300 Therefore, the FDLE and the User do hereby agree as follows: Section I FDLE REQUIREMENTS FDLE agrees to provide the information services described above and will adhere to the following terms and conditions: 1. Serve as the primary point of contact for Nlets transactions that originate on behalf of the User by the authorized vendor. 2. Monitor the use of the FCIC and Nlets to ensure that automated traffic generated as a result of red-light camera traffic infraction detection operations do not have an adverse impact on officer safety. i !!i i 34 Red-Light Camera Operations Supplement 3. In the event of an outage of normal N CIC services for any reason, FD LE reserves the right to curtail or discontinue the processing of red-light camera inquiries until the event or situation that caused the outage has passed or been resolved and services are fully restored. Section II USER REQUIREMENTS By providing access to the information services described above, the User agrees to adhere to the following terms and conditions: 1. The User shall ensure that all vendor personnel reviewing the vehicle registration information provided as authorized herein are current in CJIS Online certification, as prescribed by FDLE. 2. The User shall not share any state or national Hot File Information to which it has access with the Vendor. The Vendor shall not view or store any Hot File information on behalf of the User. (All other restrictions on access to and dissemination of information obtained by or available to User under its User Agreement with FDLE continue to apply.) 3. The User shall enter into an instrument of agreement with the Vendor acknowledging information is obtained by the Vendor via Nlets and the FCIC II Message Switch on behalf of the User. A copy of this agreement shall be forwarded to FDLE. The User shall ensure the Vendor complies with access and dissemination polices for any information obtained via a query processed through the FCIC II Message Switch. 35 "i III , Red-Light Camera Operations Supplement IN WITNESS HEREOF, the parties hereto have caused this Supplemental Agreement to be executed by the proper officers and officials as of the later date indicated below. NAME OF USER AGENCY: CLEARWATER POLICE DEPARTMENT AGENCY HEAD: .... A ...... n""th....,o"-"n4 y'-'H"-'-'-'-ol!.-"lo><...w"-'-"',ay,/--___________ TITLE Chief of Police (PLEASE PRINT) (SIGNATURE) DATE __________________ __ WITNESS __ _ TITLE Administrativp. An;:)lvst ~~~~------- FLORIDA DEPARTMENT OF LAW ENFORCEMENT By _____________________________________ TITLE __________ _ (PLEASE PRINT) (SIGNATURE) DATE __________________ __ WITNESS __________________________ TITLE _______ _ 36 t. CITY ()F CLEAR\VATER PO,T Oilin Box ,17 48, CU'AII\\XIlH. FI.OltllJA .13 758"i7(lH MI 'NICII'AI. SmVlU" BIII.IlI:'-:(;, 100 Sr)L:TII MYR rlJ AI ENIl:, CLbIHIV.\IElt, FIOIUlH 33756 June 30, 20 I I Ms. Karen Finley, Presidcnt and CEO Redflex Tramc Systems 6076 Bristol Parkway, Suite 106 Culver City, California 90230 Dear Ms. Finley: This lcttcr is provides results of the City ofClearwatcr's Vendor Presentations held on June 29, 20 II in refel'ence to Requcst for Proposal 22 -11, Photo Enforcement -Rcd Light Camera Safety Program. Three short listcd tlrms provided excel lent presentations and whilc the competition was strong, the Evaluation Committee selected Redtlex Tramc Systcms as the best firm ttlr Clcarwater's needs. We congratulate you and your firm on your selection. The recolllmendation has been t()lwarded to the City Council for consideration and award on July 21, 20 II. Pending approval, the contract start dates will be dctermined shortly after the award. We appreciate your participation in the City ofClcarwater's procurement process and look f()IWard to working with your firm in the near nlture. Sincerely, ~ li(w(d/"-.- George McKibben, CPPO, CPM Purchasing Manager GEM "b.ll·.\1 F\\PI{"l\ 'If?'r \'I) '-\11·IR\!.\l/\ I· Af lhJ:\ E~H'lUn:H;1 EXCLUSIVE AGREEMENT BETWEEN THE CITY OF SOUTH MIAMI, FLORIDA AND REDFLEX TRAFFIC SYSTEMS, INC. FOR TRAFFIC CAMERA SAFETY IMPROVEMENT PROGRAM T1' This CONTRACT made and entered into this l day of A//lIL ,2014 by and between the City of South Miami, Florida, a municipal corporation, with offices located at 6130 Sunset Drive South Miami, Florida 33143 hereinafter designated as the "City", and Redflex Traffic Systems, Inc., a Delaware Corporation, with offices located at 23751 23 rd Ave. Phoenix, AZ 85085, hereinafter designated as the "Contractor" or "Redflex." WITNESSETH: That the parties to this contract each in consideration of the undertakings, promises and agreements on the part of the other herein contained, do hereby undertake, promise and agree as follows: The Contractor, and his or its successors, assigns, executors or administrators, in consideration of the sums of money as herein after set forth to be paid by the City and to the Contractor, shall and will at their own cost and expense perform all labor, furnish all materials, tools and equipment for all individual projects assigned as a result of this contract. For each individual project in accordance with such proposal and technical supplemental specifications and such other special provisions and drawings, if any, which will be submitted by the City, together with any advertisement, instructions to bidders, general conditions, proposal and bond, which may be hereto attached, and any drawings if any, which may be herein referred to, are hereby made a part of this contract, and all of said work to be performed and completed by the contractor and its successors and assigns shall be fully completed in a good and workmanlike manner to the satisfaction of the City. If the Contractor should fail to comply with any of the terms, conditions, provisions or stipulations as contained herein within the time specified for completion of the work to be performed by the Contractor, then the City, may at its option, avail itself of any or all remedies provided on its behalf and shall have the right to proceed to complete such work as Contractor is obligated to perform in accordance with the provisions as contained herein. In addition to the foregoing provisions, the Contractor agrees to conform to the following requirements: In connection with the performance of work under this contract, the Contractor agrees not to discriminate against any employee or applicant for employment because of race, sex, religion, color, or national origin. The aforesaid provision shall include, but not be limited to, the following: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; lay-off or termination; rates of payor other forms of compensation; and selection for training, including apprenticeship. The Contractor agrees to post hereafter in conspicuous places, available for employees or applicants for 1 employment, notices to be provided by the contracting officer setting forth the provisions of the non-discrimination clause. The Contractor further agrees to insert the foregoing prOVlSlons III all contracts hereunder, including contracts or agreements with labor unions and/or worker's representatives, except sub-contractors for standard commercial supplies or raw materials. RECITALS WHEREAS, Redflex has exclusive knowledge, possession and ownership of certain equipment, licenses, applications, and citation processes related to the Traffic Camera Safety Improvement Program (hereinafter "the Program"); and WHEREAS, the City desires to engage the services of Redflex to provide certain equipment, processes and back office services so that Authorized Employees of the City are able to identify and enforce traffic violations; and WHEREAS, it is a mutual objective of both Redflex and the City to reduce the incidence of vehicle collisions at the traffic intersections and along roads and 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 Employee" means a Traffic Infraction Enforcement Officer or other individual authorized by the City, whose duties and qualifications are set forth in Chapter 2010-80, Laws of Florida, as amended or recodified from time to time, 1.2. "Authorized Violation" means each Violation in the Violation Data for given by the Authorized Employee through the Redflex System. 1.3. "Confidential or Private Information" means, with respect to any Person, any information, matter or thing of a secret, confidential, exempt, 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, 2 · procedures, business opportunities, marketing methods, plans and strategies, the costs of construction, installation, materials or components, the prices such Person obtains or has obtained from its clients or customers, or at which such Person sells or has sold its services; and 1.3.2. Matters of a technical nature, including but not limited to product information, trade secrets, know-how, formulae, innovations, inventions, devices, discoveries, techniques, formats, processes, methods, specifications, designs, patterns, schematics, data, access or security codes, compilations of information, test results and research and development projects. For purposes of this Agreement, the term "trade secrets" shall mean the broadest and most inclusive interpretation of trade secrets. 1.3.3. Notwithstanding the foregoing, Confidential Information will not include information that: (i) was generally available to the public or otherwise part of the public domain at the time of its disclosure, (ii) became generally available to the public or otherwise part of the public domain after its disclosure and other than through any act or omission by any party hereto in breach of this Agreement, (iii) was subsequently lawfully disclosed to the disclosing party by a person other than a party hereto, (iv) was required by a court of competent jurisdiction to be described, or (v) was required by applicable state law to be public information. 1.4. "Designated Intersection Approaches" means the Intersection Approaches as Redflex and the City shall mutually agree from time to time. See Exhibit A for the number of approaches. 1.5. "Electronic Signature" means the method through which the Authorized Employee indicates his or her approval of the issuance of a Citation in respect of a Potential Violation using the Redflex System. 1.6. "Enforcement Documentation" means the necessary and appropriate documentation related to the issuance and collection of Notices of Violation and Uniform Traffic Citations for the enforcement of identified Infractions. This shall include warning letters, Notices of Violation, instructions for Notices of Violation, form affidavits, instructions for form affidavits, reminder letters, a numbering sequence for notices of violation, chain of custody reports, Uniform Traffic Citations, criteria regarding operational policies for processing Notices of Violation and Uniform Traffic Citations, and technical supporting documentation, to include video and still images, for hearings in accordance with applicable state laws and regulations, and technical support documentation. Video and still images of violations shall additionally be available to City in a common format agreeable to the Miami Dade Clerk of Courts. 1.7. "Equipment" means any and all approach cameras, sensors, equipment, components, products, software and other tangible and intangible property relating to the Program. 1.8. "Fine" means a monetary sum assessed for Citation, but excluding suspended fines. 1.9. "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. 3 1.10. "Infraction" means any violation of secs. 316.074(1) or 316.075(1)(c)l, or other applicable provisions of the Florida Statutes that may be enforced pursuant to sec 316.0083, Florida Statutes, as may be amended or re-codified and as established by defined business rules. However, the failure to come to a complete stop while turning right on red shall not be enforced pursuant to this program. "Infraction Criteria" means the standards and criteria by which Potential Infractions will be evaluated by Authorized Employees of the City, which standards and criteria shall include, but are not limited to, the 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 Florida State Statutes and other Governmental Authorities. Should the State of Florida change criteria which require additional modification to the Program or its detection equipment, any cost incurred is the responsibility of Redflex. 1.11. "Infraction Data" means the images and other Infraction data gathered by the Redflex System at the Designated Intersection Approaches. 1.12. "Installation Date of the Program" means the date on which Redflex completes the construction and installation of at least one (1) Intersection Approach in accordance with the terms of this Agreement so that such Intersection Approach is operational for the purposes of functioning with the Program. 1.13. "Intellectual Property" means, with respect to any Person, any and all now known or hereafter known tangible and intangible (a) rights associated with works of authorship throughout the world, including but not limited to copyrights, moral rights and mask-works, (b) trademark and trade name rights and similar rights, ( c) trade secrets rights, (d) patents, designs, algorithms and other industrial property rights, (e) all other intellectual and industrial property rights (of every kind and nature throughout the universe and however designated), whether arising by operation of law, contract, license, or otherwise, and (f) all registrations, initial applications, renewals, extensions, continuations, divisions or reissues hereof now or hereafter in force (including any rights in any of the foregoing), of such Person. 1.14. "Intersection Approach" means a conduit of travel with up to six (6) 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 the Program by the City. 1 ~ 15. "l'J otice of Violation" means the \vritten notice of an infraction, vvhich is delivered by first class mail by Vendor to Owner of a motor vehicle involved in an Infraction based upon the appropriate Enforcement Documentation pursuant to the requirements of Chapter 2010-80, Law of Florida, as may be amended or recodified. 1.16. "Operational Period" means the period during the Term, commencing on the Installation Date, during which the Program is functional in order to permit the issuance of Notices of Violation and Uniform Traffic Citations for authorized Infractions using the Redflex System. 1.17. "Person" means a natural individual, company, Governmental Authority, partnership, firm, corporation, legal entity or other business association. 4 1.18. "Project Manager" means the project manager appointed by the City in accordance with this Agreement, which may be an Authorized Employee and shall be responsible for overseeing the installation of the Intersection Approaches and the implementation of the Program, and which manager shall have the power and authority to make management decisions relating to the City's obligations pursuant to this Agreement, including but not limited to change order authorizations, subject to any limitations set forth in the City's charter or other organizational documents of the City or by the City Councilor other governing body of the City. 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 traffic violation has occurred. 1.20. "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. 1.21. "Records Retention" means the period of time that Redflex will retain confidential information to include photographic evidence and data associated with the Program at all times in accordance with Florida Code Section 119.0701. 1.22. "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 the Program 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. 1.23. "Redflex Project Manager" 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 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. 1.24. "Redflex System" means, collectively, the Salus® and/or SMARTcam® System, the SMARTscene® System, and all ofthe 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. The SMARTops® System, the 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. 5 1.25. "REDFLEXred® System" means the proprietary digital redlight photo enforcement system of Redflex relating to the Program. 1.26. "Salus® System" means the proprietary software that controls the systems of Redflex relating to the Program. 1.27. "SMARTcam® System" means the proprietary software system that controls the systems of Redflex relating to the Program. 1.28. "SMARTops® System" means the proprietary back-office processes of Redflex relating to the Program. 1.29. "SMARTscene® System" means the proprietary digital video camera unit, hardware and software required for providing supplemental violation data relating to the Program. 1.30. "Traffic Camera Safety Improvement Program" or "the Program" are interchangeable and synonymous and mean 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 measuring Violations and recording such Violation data in the form of photographic images of motor vehicles. l.j 1. "Traffic Signal Controiier Boxes" means the signal controller interface and vehicle detection owned and operated by the City. This includes, but not limited to, the City'S traffic controller, City's vehicle detection equipment, City'S communication equipment, City's controller cabinet, etc. 1.32. "Uniform Traffic Citation" means a uniform traffic citation as described in Section 316.650 of the Florida Statutes; 1.33. "Video Survey Analysis (VSA)" means a video evaluation, statistical modeling, and assessment of infraction rates at suspected problematic intersections and approaches to determine the need for a Redflex System. Video Survey Analysis shall provide for each designated intersection approach, at a minimum of three 8-hour periods on different days, including peak conditions of monitoring in order to provide a data baseline of violation frequency. 1.34. "Warning Period" means a period after the Installation Date of the first intersection approach, wherein only warning notices shall be issued, commencing within 3 days after the system has been installed. After the commencement date, the Warning Period shall continue for a minimum of thirty (30) calendar days, as required by Florida Statutes, prior to the issuance of a Notice of Violation. ,., Tll'DlIff Tho. +a~ n++'h;cc A CT'f'In.n.~O"Y\+ ("Il,nl1 hQl. + ...... 1'" n _.c...~: ..... r1 ....... ++1.-.. ..... .-"\ ...... <rTC""~l"'f ............. _l"I~l"'f+~_~ ........ .(" k. .Jl. .IL.J.L .... H'.Jl.. ~ ~H." l.\ •. I1.~.U V.L u.u':> .Ll..,tSJ.\,.I\..I.l.lH •. /.lJ.... .::U.l(.U.l U\".I .1.V1. a pv1..lUU Vi Ullv,,", y alL), \..rVl1i:)1I,')ll11tf, Vi a six-month Pilot Program, as defined below, and a remaining term of two and one half years (the "Start Date"). The term of this Agreement shall be automatically extended for one additional 2-year term unless the City exercises its right not to renew this Agreement for a renewal term by providing advanced written notice to Redflex not less than forty-five (45) calendar days prior to the last day of the initial term. PILOT PROGRAM The City and Contractor shall initially engage in a six (6) month pilot and testing program to evaluate the benefits of the Traffic Camera Safety Improvement Program. The pilot program shall include installation and enforcement 6 at up to five(5) designated intersections. The City will work with Contractor to identify the designated intersections based on public-safety needs and the physical characteristics of the intersection. To minimize intrusiveness, the City will allow Contractor, to the extent possible, to utilize existing infrastructure including street light poles, mast-arms, and depending on the location, power; if capacity is available. PILOT SUCCESS. This agreement includes a Cost Neutrality guarantee, thereby eliminating all upfront costs and all fiscal risk associated with the Contractor's fees. This Cost Neutrality guarantee is inclusive under the Pilot Program. The goal of the Pilot Program is to quantifY the effectiveness of red light enforcement cameras on red light running rates at dangerous intersections as identified by Police and Traffic Engineering. Analyses will compare the rate of red light running before the installation of red light enforcement cameras and the rate of red light running at the same designated intersections and at the same approaches after the implementation of red light enforcement cameras. The VSA (video survey analysis) process will provide the baseline or "before" study period data to provide average rates of red-light violations. After the 6-month operational pilot program, an "after" study will be implemented. The "after" study will use data from the last four weeks of the 6-month pilot program. Each week, during the final four weeks of the pilot program, data will be collected relating to the frequency of red light violations occurring during the day(s) of week/time period(s) that substantially mirror the three distinct eight (8) hour collection periods of the VSA. At the conclusion of the four weeks, the data from each corresponding collection period will be added and then averaged to determine the mean number of violations occurring during the "after" period. Using regression analysis (or a similar statistical analysis), the success of the Pilot program will examine the relationship of camera enforcement on red light running frequency. If the mean number of violations occurring during the "after" study is reduced by at least fifteen (15) percent when compared to the corresponding VSA mean (calculated by adding and averaging the number of violations occurring during three, eight (8) hour periods), the pilot will be considered "successful" under the terms of this agreement. Should the Pilot Program achieve success as identified above, the two and one-half year remaining term of the initial contract shall automatically continue; and the program will remain in operation under the terms of this Agreement. If the Pilot Program is unsuccessful, the City shall have the right to terminate this program upon 30 days written notice to the Contractor without penalty and the City shall not be obligated to pay any remaining amortized costs as contemplated in 6.4 below. . At any time during the Pilot, based on positive trending regarding the reduction of red- light running rates, at the City's request and based on mutual agreement, the City can 7 request to move beyond the Pilot and implement to a wide-scale system installation. If the City exercises this right prior to the end of the 6-month Pilot period, the remaining months of the Pilot period will be added to the 2'li ~ears of the system-wide implementation and shall end no later than the end of the 36 t month anniversary of the commencement of the Pilot Term~ Upon notice to Contractor, the City reserves the right to renegotiate the terms and conditions of this agreement should the disbursement of fines and/or fees collected during the administration of a red light camera program be amended by any legislative or judicial change in applicable law. If the amount of fines to be disbursed to the City is reduced because of a change in applicable law then the City shall have the right at any time thereafter to terminate this program upon 30 days written notice to the Contractor without penalty and the City shall not be obligated to pay any remaining amortized costs as contemplated in 6.4 below. City 3. SERVICES. Redflex shall provide the Program to the City, in each case in accordance with the terms and provisions set forth in this Agreement. 3.1. INSTALLATION. With respect to the construction and installation of (1) the Designated Intersection Approaches and the installation of the Redflex System at such Designated Intersection Approaches, the City and Redflex shaH have the respective rights and obligations set forth on Exhibit B attached hereto. 3.2. MAINTENANCE. With respect to the maintenance of the Redflex System at the Designated Intersection Approaches the City and Redflex shall have the respective rights and obligations set forth on Exhibit C attached hereto. 3.3. VIOLATION PROCESSING. During the Operational Period, Violations shall be processed as follows: 3.3.1. All Violations Data shall be stored on the Redflex System; 3.3.2. The Redflex System shall process Violations Data gathered from the Designated Intersection Approaches into a format capable of review by the Authorized 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 a computer equipped with a high-speed Internet connection and an approved web browser. 3.3.4. Redflex shall provide the Authorized Employee with access to the Redflex System for the purposes of reviewing the pre-processed Violations Data within four (4) days of the gathering of the Violation Data from the applicable Designated Intersection Approaches. 3.3.5. The City shall cause the Authorized Employee to review the Violations Data and to determine whether a citation 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 CITATION SHALL BE THE SOLE, UNILATERAL AND EXCLUSIVE DECISION OF THE AUTHORIZED EMPLOYEE AND SHALL BE MADE IN SUCH AUTHORIZED EMPLOYEE'S SOLE DISCRETION (A 8 "CITATION DECISION"), AND IN NO EVENT SHALL REDFLEX HAVE THE ABILITY OR AUTHORIZATION TO MAKE A CITATION DECISION. 3.3.6. With respect to each Authorized Violation, Redflex shall print and mail a Notice of Violation and/or Uniform Traffic Citation within five (5) 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 continually maintain an ability to transmit authorized Uniform Traffic Citations electronically, at the time of issuance by an Authorized Employee, to the Miami Dade Clerk of Courts. This transmittal will be in a format authorized by the Miami Dade Clerk of Courts. 3.3.8. Redflex shall maintain an ability to continually transmit, electronically, all data regarding issued Notice of Violations and issued Uniform Traffic Citations to the City's Report Beam server or other designated database. 3.3.9. Redflex shall continually ensure compliance with conditions or restrictions of applicable Florida State Statutes during the terms of this agreement at no cost to the City. 3.3.10. Redflex shall provide a toll-free telephone number for the purposes of answering citizen inquiries. Redflex shall permit the Authorized Employee to generate reports using the Redflex Standard Report System. 3.3.11. Monthly, Redflex shall provide, without cost to the City, reports regarding the processing and issuance of Citations, the maintenance and downtime records of the Designated Intersection Approaches and the functionality of the Redflex System with respect thereto to the City in such format as mutually agreed upon. 3.3.12. During the six (6) month testing and evaluation period and/or upon Redflex's receipt of a written request from the City at least fourteen (14) calendar days in advance of court proceeding, Redflex shall provide expert witnesses for use by the City in prosecuting Violations; provided, however, the City shall use reasonable best efforts to seek judicial notice in lieu of requiring Redflex to provide such expert witnesses; After the initial 6 month period, expert testimony may be provided on a cost reimbursement basis for time and travel, not to exceed $500 per request. All witness testimony provided within a single day or a hearing date that is continued over more than one sequential days shall be considered a single request. 3.3.13. During the three (3) month period following the Installation Date, Redflex shall provide such training to City personnel as shall be reasonably necessary in order to allow such personnel to act as expert witnesses on behalf of the City with respect to the Program. 3.4. Records Retention: Redflex shall retain confidential or exempt information to include photographic evidence and data associated with the Program for a period defined by the guidelines ofthe State of Florida, Miami-Dade County, or the City of South Miami. 3.5. PROSECUTION AND COLLECTION; COMPENSATION. The City shall use its best efforts to diligently prosecute authorized violations, through either Notice of Violation or Uniform Traffic Citation, which are deemed prosecutable by the reviewing City employee. 9 3.6. TAXES. Where required by state statute, ordinance or regulation, Redflex shall pay for and maintain in current status all taxes that are necessary for contract performance. No charge by the City shall be made for federal excise taxes and City agrees to furnish Redflex with an exemption certificate where appropriate for any applicable sales and/or use taxes. 3.7. OTHER RIGHTS AND OBLIGATIONS. During the Term, in addition to all of the other rights and obligations set forth in this Agreement, Redflex and the City shall have the respective rights and obligations set f01ih on Exhibit E attached hereto. 3.8. CHANGE ORDERS. The City may from time to time request changes to the work required to be performed or the addition of products or services to those required pursuant to the terms of this Agreement by providing written notice thereof to Redflex, setting forth in reasonable detail the proposed changes (a "Change Order Notice"). Upon Redflex's receipt of a Change Order Notice, Redflex shall deliver a written statement describing the 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 ofthe parties, (iii) a schedule for the delivery and other performance obligations, and (iv) any other information relating to the proposed changes reasonably requested by the City. Following the City's receipt of the Change Order Proposal, the parties shall negotiate in good faith and agree to a plan and schedule for implementation of the proposed changes, the time, manner and amount of payment or price increases or decreases, as the case may be, and any other matters relating to the proposed changes; provided, however, in the event that any proposed change involves only the addition of equipment or services to the existing Designated Intersection Approaches, or the addition of Intersection Approaches to be covered by the terms of this Agreement, to the maximum extent applicable, the pricing terms set forth in Exhibit D shall govern. Any failure of the parties to reach agreement with respect to any of the foregoing as a result of any proposed changes shall not be deemed to be a breach of this Agreement, and any disagreement shall be resolved in accordance with Section 10. 3.9. ROAD REPAIRS AND CONSTRUCTION PROJECTS. The term of an installed camera shall be temporarily suspended as a result of any City- authorized road repairs, street improvements or stop work order that interrupts, impedes, obstructs or interferes with the successful performance of the installed camera for a period of fourteen (14) or more calendar days. This section shall not apply to those projects beyond the control of the City, such as projects initiated by the Florida Department of Transportation or other controlling entity. 4. LICENSEj RESERVATION OF RIGHTS. 4.1. License. Subject to the terms and conditions of this Agreement, Redflex hereby grants the City, and the City hereby accepts from Redflex upon the terms and conditions herein specified, a non-exclusive, non-transferable license during the Term of this Agreement to: (a) solely within the City of South Miami, access and use the Redflex System for the sole purpose of reviewing Potential Violations and authorizing the issuance of Citations pursuant to the terms of this Agreement, and to print copies of any content posted on the Redflex System in connection 10 therewith, (b) disclose to the public (including outside of the City of South Miami, that Redflex is providing services to the City in connection with 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 Program, so long as any and all such publications or materials are approved in advance by Redflex. 4.2. RESERVATION OF RIGHTS. The City hereby acknowledges and agrees that: (a) Redflex is the sole and exclusive owner of the Redflex System, the Redflex Marks, all Intellectual Property arising from or relating to the Redflex System, and any and all related Equipment, (b) the City neither has nor makes any claim to any right, title or interest in any of the foregoing, except as specifically granted or authorized under this Agreement, and (c) by reason of the exercise of any such rights or interests of City pursuant to this Agreement, the City shall gain no additional right, title or interest therein. City retains the right to any Intellectual Property, equipment, andlor concepts developed by its employees or subcontractors. 4.3. RESTRICTED USE. The City hereby covenants and agrees that it shall not (a) make any modifications to the Redflex System, including but not limited to any Equipment, (b) alter, remove or tamper with any Redflex Marks, (c) use any of the Redflex Marks in any way which might prejudice their distinctiveness, validity or the goodwill of Redflex therein, (d) use any trademarks or other marks other than the Redflex Marks in connection with the City's use of the Redflex System pursuant to the terms of this Agreement without first obtaining the prior consent of Redflex, or (e) disassemble, de-compile or otherwise perform any type of reverse engineering to the Redflex System, the Redflex System, including but not limited to any Equipment, or to any, Intellectual Property or Proprietary Property of Redflex, or cause any other Person to do any of the foregoing. 4.4. PROTECTION OF RIGHTS. Redflex shall have the right to take whatever action it deems necessary or desirable to remedy or prevent the infringement of any Intellectual Property of Redflex, including without limitation the filing of applications to register as trademarks in any jurisdiction any of the Redflex Marks, the filing of patent application for any of the Intellectual Property of Redflex, and making any other applications or filings with appropriate Governmental Authorities. The City shall not take any action to remedy or prevent such infringing activities, and shall not in its own name make any registrations or filings with respect to any of the Redflex Marks or the Intellectual Property of Redflex without the prior written consent of Redflex. 4.5. INFRINGEMENT. The City shall use its reasonable best efforts to give Redflex prompt notice of any activities or threatened activities of any Person of which it becomes aware that infringes or violates the Redflex Marks or any of Redflex's Intellectual Property or that constitute a misappropriation of trade secrets or act of unfair competition that might dilute, damage or destroy any of the Redflex Marks or any other Intellectual Property of Redflex but shall have no liability for any failure to provide such notice to Contractor. Redflex shall have the exclusive right, but not the obligation, to take action to enforce such rights and to make settlements with respect thereto. In the event that Redflex commences any enforcement action under this Section 4.5, then the City shall render to Redflex such reasonable cooperation and assistance as is reasonably requested by 11 Redflex, and Redflex shall be entitled to any damages or other monetary amount that might be awarded after deduction of actual costs; provided, that Redflex shall reimburse the City for any reasonable costs incurred in providing such cooperation and assistance. 4.6. INFRINGI1"JG USE. The City shall givc Rcdflex prompt written notice of any action or claim action or claim, whether threatened or pending, against the City alleging that the Redflex Marks, or any other Intellectual Property of Redflex, infringes or violates any patent, trademark, copyright, trade secret or other Intellectual Property of any other Person, and the City shall render to Redflex such reasonable cooperation and assistance as is reasonably requested by Redflex in the defense thereof; provided, that Redflex shall reimburse the City for any reasonable costs incurred in providing such cooperation and assistance. If such a claim is made and Redflex determines that an infringement may exist, Redflex shall have the obligation, to either procure for the City the right to keep using the allegedly infringing items, modify them to avoid the alleged infringement or replace them with non-infringing items. 4.7. UNAUTHORIZED REFERENCES TO RED FLEX. City shall not utilize, make use of and/or make any reference to Redflex, its name or likeness, its affiliated, parent or subsidiary companies or corporations, its logos, insignias, trademarks, trade names, brand, web sites, property, assets, products or services, inciuding, but not limited to, the ''SMARTcam™ System", ''Salus™ System", ''REDFLEXred™ System", ''REDFLEXspeed™ System", "REDFLEXraiFM System", "REDFLEXstopTM System", ''REDFLEXslimline™ System", "SMARTopsTM System", ''SMARTscene™ System"; "PLATESCANTM System" and/or and any and all combinations, variants and derivatives thereof, in, on or about, City marketing, publicity, media, public relations, advertising, education or training materials, information, data, papers and/or documents, for any reason or purpose, whatsoever, without the prior written approval of Redflex which may be withheld, denied, delayed, rejected and/or refused, by Redflex in its sole, absolute and unilateral discretion. 5. REPRESENTATIONSAND 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 City. 5.2. City Representations and Warranties. 5.2.1. Authority. The City hereby warrants and represents that it has all right, power and authority to execute and deliver this Agreement and perform its obligations hereunder. 5.2.2. Professional Services. The City hereby warrants and represents that any and all services provided by the City pursuant to this Agreement shall be performed in a professional and workmanlike manner. 12 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 RED FLEX SYSTEM OR ANY RELATED EQUIPMENT OR WITH RESPECT TO THE RESULTS OF THE CITY'S USE OF ANY OF THE FOREGOING. NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH HEREIN, RED FLEX DOES NOT WARRANT THAT ANY OF THE DESIGNATED INTERSECTION APPROACHES OR THE REDFLEX SYSTEM WILL OPERATE IN THE WAY THE CITY SELECTS FOR USE, OR THAT THE OPERATION OR USE THEREOF WILL BE UNINTERRUPTED. THE CITY HEREBY ACKNOWLEDGES THAT THE REDFLEX SYSTEM MAY MALFUNCTION FROM TIME TO TIME, AND SUBJECT TO THE TERMS OF THIS AGREEMENT, REDFLEX SHALL DILIGENTLY ENDEAVOR TO CORRECT ANY SUCH MALFUNCTION IN A TIMELY MANNER. 6. TERMINATION. 6.1. TERMINATION: Either party shall have the right to terminate this Agreement by 90 days written notice to the other with or without cause. 6.2. If Florida State Statutes are amended to prohibit or substantially change the operation of the City's Program or that otherwise restrict the use of red light camera evidence, or the Eleventh Judicial Circuit, one of the Florida District Courts of Appeal, the Florida Supreme Court, one of the Florida federal district courts, the Eleventh Circuit Court of Appeals, or the United States Supreme Court rules the red-light camera statues unlawful or that the Citations from the City's Program or a substantially similar program are inadmissible in evidence, or cause a reduction in the revenue generated by the program, including but not limited to a restriction on the currently available fines, fees or charges, sufficient enough to prevent the program from being able to pay for the cost of the program, the City may immediately terminate this agreement. For the purposes of this agreement, termination of the agreement under these conditions shall be considered as termination with cause; and the City shall incur no charge or penalty, including but not limited to any charge for the remaining unamortized costs in 6.4, for such termination. 6.3. Should either party commit a material breach of any of the provisions of this agreement which is curable, a party shall have the right to remedy or cure the cause for termination or breach within forty-five (45) calendar days (or within such other time period as the City and Redflex shall mutually agree, which agreement shall not be unreasonably withheld or delayed) after written notice from the appropriate party setting forth in reasonable detail the events of the cause for termination or breach. Termination of this Agreement shall not be enforceable or effective unless the terminating party mails or electronically transmits written notice of termination to the non-terminating party not less than forty-five (45) calendar days prior to the Agreement termination date and provides to the non-terminating party the opportunity to remedy or cure the cause of the termination or breach within the forty-five (45) calendar day time period provided herein. Termination of the agreement under these conditions shall be 13 considered as termination with cause; and the City shall incur no cost or penalty on account of such termination including but not limited any charge for the remaining unamortized costs in 6.4, for such termination. Notwithstanding anything to the contrary herein, the City may immediately terminate this agreement without cost or penalty upon the occurrence of any of the following: 6.3.1. If it is discovered at any time that the Contractor made material misstatements to the City in order to induce the City to enter into this contract or agree to any modification thereof. 6.3.2. The Contractor partially or wholly assigns this contract to another party without the City's written consent. 6.3.3. The Contractor, any of its principals, or any of its employees with substantial responsibility for providing services to the City is charged with any criminal misconduct that relates to honesty, business ethics or fair dealing or would bring the City into disrepute if the City continued to have a business relationship with the Contractor 6.3.4. Contractor insolvency 6.3.5. Prolonged failure to provide services as required under the contract extending for more than 7 calendar days unless the cause is solely within the control of the City. 6.4. TERMn-rATION FOR CONVENIENCE: This Agreement is terminabie at wiii, and either party may cancel this Agreement, without cause, upon ninety (90) days written notice. If the City terminates without cause, City shall be obliged to reimburse the Contractor for all documented unamortized costs for the non- recoverable expense incurred with construction, installation and development, not to exceed $27,000 per operational approach. Amortized costs will be determined on a 3year or 36 month schedule starting from the date the operational approach is installed. For example, if the City terminates the contract for convenience 1 year after the installation of an operational approach, Redflex would have the right to be reimbursed a total not to exceed $18,000, since 33% (or 12 months of a 36 months schedule) has already been amortized and depreciated. Additionally, Contractor will work with the City's Department of Public Works and when feasible, utilize the Department of Public Works as a sub-contracting entity on a fee for service basis, in which the City will invoice Contractor for any agreed upon construction services. 6.5. RIGHTS AND REMEDIES. In connection with any breach and/or termination of this Agreement, Redflex shall have and hereby reserves, in full, all rights and remedies available in la\x/ and/or in equity_ 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. 6.6. PROCEDURES UPON TERMINATION. The termination of this Agreement without cause 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: 6.6.1. 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 Program, (ii) promptly deliver to the 14 City any and all Proprietary Property of the City provided to Redflex pursuant to this Agreement, (iii) promptly deliver to the City a final report to the City regarding the collection of data and the issuance of Citations in such format and for such periods as the City may reasonably request, and which final report Redflex shall update or supplement from time to time when and if additional data or information becomes available, (iv) promptly deliver to City a final invoice stating all fees and charges properly owed by City to Redflex for work performed and Citations issued by Redflex prior to the termination, and (v) provide such assistance as the City may reasonably request from time to time in connection with prosecuting and enforcing Citations issued prior to the termination of this Agreement. Immediately upon termination Redflex is no longer bound to the Data Retention Requirements for any data and if the City wishes to obtain the data it must be conveyed at the time of termination. Redflex will transfer the data and relevant information to the City by a mutually agreed upon method. Redflex will provide no tools for accessing this data or other guarantees. 6.6.2. The City shall (i) immediately cease using the Program, accessing the Redflex System and using any other Intellectual Property of Redflex, (ii) promptly deliver to Redflex any and all Proprietary Property of Redflex provided to the City pursuant to this Agreement, and (iii) promptly pay any and all fees, charges and amounts properly owed by City to Redflex for work performed and Citations issued by Redflex prior to the termination. 6.6.3. Unless the City and Redflex have agreed to enter into a new agreement relating to the 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. 6.6.4. In addition to any and all other rights and remedies available and/or reserved herein, the City shall pay to Redflex a pro rata share of all monies or revenue generated, collected and/or received by City after the Agreement termination date that are, in any way, a result of, associated with and/or attributable to, in whole or in part, the products or services rendered to City by Redflex. 6.7. SURVIVAL. Notwithstanding the foregoing, the definitions and each of the following shall survive the termination of this Agreement: (i) Sections 4.2 (Reservation of Rights), 5.1 (Redflex Representations and Warranties), 5.2 (City Representations and Warranties), 5.3 (Limited Warranty), 7 (Confidentiality), 8 (Indemnification and Liability), 9 (Notices), 10 (Dispute Resolution), 11.1 (Assignment), 11.17 (Injunctive Relief; Specific Performance), 11.18 (Applicable Law)) and 11.19 (Jurisdiction and Venue), and (ii) 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. 15 7. CONFIDENTIALITY. RED FLEX ACKKNOWLEDGES THAT THE CITY WILL OBTAIN AUTHORIZATION FROM THE FLORIDA DEPARTMENT OF LAW ENFORCEMENT (FDLE) FOR REDFLEX TO USE THE CITY POLICE DEPARTMENT'S ORIGINATING AGENCY IDENTIFIER (ORI) TO FACILITATE ACCESS TO VEHICLE REGISTRATION Il'.JFORlVIATION PROVIDED VIA FDLE'S INTERNATONAL JUSTICE AND PUBLIC SAFETY NETWORK CONNECTION, THE FLORIDA CRIME INFORMATION CENTER MESSAGE SWITCH, AND THE FLORIDA DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES FOR USE IN ENFORCING THE CITY'S RED LIGHT CAMERA PROGRAM. RED FLEX AGREES TO ABIDE BY THE TERMS OF THE "RED LIGHT CAMERA OPERATIONS SUPPLEMENT CRIMINAL JUSTICE USER AGREEMENT," WHICH IS MADE A PART HEREOF AS EXHIBIT "H." 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 Confideniiai 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. Notwithstanding anything contained in this Agreement to the contrary and with regard to information that is made confidential by law, no one who initially received such information may disclose such information, other as allowed by law. In addition, all information is subject ot and controlled by the public records laws of the State of Florida. 8. INDEMNIFICATION AND LIABILTY. 8.1. Indemnification by Redflex. Subject to Section 8.3, , and to the extent permitted to do so under Florida Law, Redflex hereby agrees to defend and indemnify the City and its affiliates, shareholders or other interest holders, managers, officers, directors, employees, agents, representatives and successors, permitted assignees and each oftheir affiliates, and all persons acting by, through, under or in concert with them, or any of them (individually a "City Party" and collectively, the "City Parties") against, and to protect, save and keep harmless the City Parties from, and to pay on behalf of or reimburse the City Parties as and vvhcn 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 City Party arising out of or related to (a) any material misrepresentation, or breach of any covenant,· warranty or representation of Redflex contained in this Agreement, or (b) the gross negligence, reckless 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 16 real or tangible personal property (including the personal property of third parties), except to the extent caused by the willful misconduct of any City Party. 8.2. Indemnification by City. Subject to Section 8.3, and to the extent permitted to do so under Florida Law, and specifically Florida Statute section 768.28, the City hereby agrees to defend and indemnifY Redflex and its affiliates, shareholders or other interest holders, managers, officers, directors, employees, agents, representatives and successors, 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, or breach of any covenant, warranty or representation of the City contained in this Agreement, (b) the gross negligence, reckless acts, or willful misconduct of the City, its employees, contractors or agents which result in death or bodily injury to any natural person (including third parties) or any damage to any real or tangible personal property (including the personal property of third parties), except to the extent caused by the negligence or willful misconduct of any Redflex Party. Nothing herein, however, shall be construed to waive or modify the provisions of Section 768.28, Florida Statutes or the doctrine of sovereign immunity. 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 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 special, incidental, indirect, consequential or punitive damages however caused and on any theory of liability arising out of or relating to this Agreement, except and only to the extent expressly authorized pursuant to 17 provlsIOn 11.20, entitled "PREVAILING PARTY" of this Agreement. In the event of any breach of this Agreement, however, the non-breaching party is entitled to recover expectation damages from the breaching party, which are defined as the amounts that non-breaching party would have received under the Agreement had the breaching party fully performed pursuant to the terms and conditions of 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. 23751 North 23 rd Avenue Phoenix, AZ 85027 Attention: Program Management Office Facsimile: (623) 207-2050 9.2. Notices to the City: Chief of Police City of South Miami Police Department 6130 Sunset Drive South Miami, FL 33143 Attention: Rene' Landa, Chief of Police Facsimile: 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 t:to;th"''' "'a-rt"tT o.nr-h n.f"+'ho. --.nri;C!.C"! "1:'11:1';11 f""I"f""\""'''''';''''''+ n rl£JI.,..,;rv-_n+c..,,1 ....... .r-h"',......_ .... .,.,.1-. ............. ,...... + .......... 1,....:+ r-ct.... ..... l1 t.... ....... "'u~ "'~ l' ~LJ, "'UvH V~ LH" 1'ULU"i:) VHH U1'1'VHH U U"i:)lt:;UULvU Vll1\.-"1 VVllV"" La"1'\.. 1l "11all UC; 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. 18 11.1. Assignment. Neither party may assign all or any portion of this Agreement without the prior written consent of the other, which consent shall not be unreasonably withheld or delayed; provided, however, The City hereby acknowledges and agrees that the execution (as outlined in Exhibit F), delivery and performance of Redflex's rights pursuant to this Agreement shall require a significant investment by Redflex, and that in order to finance such investment, Redflex may be required to enter into certain agreements or arrangements ("Financing Transactions") with equipment lessors, banks, financial institutions or other similar persons or entities (each, a "Financial Institution" and collectively, "Financial Institutions"). The City hereby agrees that Redflex shall have the right to assign, pledge, hypothecate or otherwise transfer ("Transfer") its rights, or any of them, under this Agreement to any Financial Institution in connection with any Financing Transaction between Redflex and any such Financial Institution, subject to the City'S prior written approval, which approval shall not be unreasonably withheld or delayed. The City further acknowledges and agrees that in the event that Redflex provides written notice to the City that it intends to Transfer all or any of Redflex's rights pursuant to this Agreement, and in the event that the City fails to provide such approval or fails to object to such Transfer within forty-five (45) business days after its receipt of such notice from Redflex, for the purposes of this Agreement, the City shall be deemed to have consented to and approved such Transfer by Redflex. Notwithstanding the above, this Agreement shall inure to the benefit of, and be binding upon, the parties hereto, and their respective successors or assigns. 11.2. RELATIONSHIP BETWEEN REDFLEX AND THE CITY. Nothing in this Agreement shall create, or be deemed to create, a partnership, joint venture or the relationship of principal and agent or employer and employee between the parties. The relationship between the parties shall be that of independent contractors, and nothing contained in this Agreement shall create the relationship of principal and agent or otherwise permit either party to incur any debts or liabilities or obligations on behalf ofthe 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 ofthe other party hereto (the "Audited Party") solely for the purpose of verifying the payments, if any, payable pursuant to this Agreement. Any such audit shall be conducted upon not less than forty-eight (48) hours' prior notice to the Audited Party, at mutually convenient times and during the Audited Party's normal business hours. Except as otherwise provided in this Agreement, the cost of any such audit shall be borne by the non-Audited Party. In the event any such audit establishes any underpayment of any payment payable by the Audited Party to the non-Audited Party pursuant to this Agreement, the Audited Party shall promptly pay the amount of the shortfall, and in the event that any such audit establishes that the Audited Party has underpaid any payment by more than twenty five percent (25%) of the amount of actually owing, the cost of such audit shall be borne by the Audited Party. In the event any such audit establishes any overpayment by the Audited Party of any payment made pursuant to this Agreement, non-Audited Party shall promptly refund to the Audited Party the amount of the excess. 11.4. 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 19 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, , 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 expressiy otherwise provided in this Agreement, this Agreement shall be construed as having been fully and completely negotiated and neither the Agreement nor any provision thereof shall be construed more strictly against either party. 11.9. HEADINGS. The headings of the sections contained in this Agreement are included herein for reference purposes only, solely for the convenience of the parties hereto, and shall not in any way be deemed to affect the meaning, interpretation or applicability of this Agreement or any term, condition or provision hereof. 11.10. EXECUTION AND COUNTERPARTS. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original, and such counterparts together shall constitute only one instrument. 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. 11.11. 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, instrUl"1lents 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 anyone 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. 20 11.14. COST NEUTRALITY. As provided in Exhibit D, the City may defer monthly service fee payments to Redflex should the funds collected pursuant to this Agreement be less than or otherwise insufficient to pay the monthly service fee in any a particular month. This provision shall not apply if law enforcement waives more than 10% of valid infractions forwarded to law enforcement for acceptance according to mutually agreed upon business rules. 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 only by and construed, in all respects, solely in accordance with the laws of the State of Florida. 11.19. JURISDICATION AND VENUE. Any conflict, claim or dispute between Redflex and the City affecting, arising out of or relating to the subject matter of this Agreement shall be filed only in and litigated solely in a court of competent jurisdiction in Miami-Dade County, Florida; and both parties specifically agree to be bound by the exclusive jurisdiction and venue thereof. 11.20. PREVAILING PARTY. In the event of any conflict, claim or dispute between Redflex and the City affecting, arising out of or relating to the subject matter of this Agreement, the prevailing party shall be entitled to receive from the non-prevailing party all attorneys' fees, expert fees, and related costs. Attorneys' fees, expert fees, and related costs shall be assessed by a Court and not by a jury and shall be included in any judgment obtained by the prevailing party. 11.21. "Most Favored Nation" Provisions: If, subsequent to the execution of this agreement Contractor enters into any agreement of similar scope in terms of number of camera systems to be installed, price, and duration in Miami-Dade County which contains any business terms more favorable to the City than any terms contained herein, then Contractor shall agree to modifY this agreement to include such more favorable terms. In the event Contractor enters into an agreement with Miami Dade County and such agreement is made available for 21 participation by Miami Dade County municipalities during the term of this agreement, then the City shall have the option to terminate this agreement without penalty and without any obligation to pay any amounts to Contractor and participate in the Miami Dade agreement at any time. 11.22. Contractor and all of its subcontractors are required to compiy with pubiic records laws (s.119.0701) and the Contractor agrees to incorporate this paragraph in all of its subcontracts for this Project. Contractor and its subcontractors are specifically required to: a. Keep and maintain public records that ordinarily and necessarily would be required by the public agency in order to perform the service. b. Provide the public with access to public records on the same terms and conditions that the public agency would provide the records and at a cost that does not exceed the cost provided in this chapter or as otherwise provided by law. c. Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law. d. Meet all requirements for retaining public records and transfer, at no cost, to the public agency all public records in possession of the contractor upon termination of the contract and destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. All records stored electronically must be provided to the public agency in a format that is compatible with the information technology systems of the public agency. (The remainder of this page is left intentionally blank) 22 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first set forth above. 23 --",.....- I, FLORIDA ------------- en Alexander City Manager Attest: YSTEMS, INC. EXHIBIT "A" Designated Intersection Approaches The contract is for the implementation of up to 10 intersection approaches. Identification of enforced intersection approaches will be based on mutual agreement between Redflex and the City as warranted by community safety and traffic needs. The City will make all reasonable efforts to provide the list of proposed intersections under consideration prior to formal project kick-off to the designated Redflex project manager. 24 EXHIBIT "B" Construction and Installation Obligations Timeframe for Installation: Fixed Traffic Camera Safety Improvement Program: Redflex will have each specified approach installed and activated in phases in accordance with an implementation plan to be mutually agreed to by Redflex Traffic Systems and the City. 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 specified intersection within sixty (60) days subsequent to formal project kick-off and receipt of the required City approved program business rules. The City 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 City with timely completion of the Traffic Camera Safety Improvement Program, Redflex requires that the City assist with obtaining timely approval of permit requests. The City acknowledges the importance of the safety program and undertakes that in order to keep the project on schedule the City 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. Request current "as-built" electronic engineering drawings for the Designated Intersection Approaches (the "Drawings"); 1.3. Develop and submit to the City for approval construction and installation specifications in reasonable detail for the Designated Intersection Approaches, including but not limited to specifications for all radar sensors, pavement loops, electrical connections and traffic controller connections, as required; and 104. Seek approval from the relevant Governmental Authorities having authority or jurisdiction over the construction and installation specifications for the Designated Intersection Approaches (collectively, the "Approvals"), which will include compliance with City permit applications. 1.5. Finalize the acquisition of the Approvals; 1.6. Assist the City in developing a public awareness strategy, which may include media and educational materials; 1.7. Develop the Violation Criteria in consultation with the City; 1.8. Develop the Enforcement Documentation for approval by the City, which approval shall not be unreasonably withheld; 1.9. Complete the installation and testing of all necessary Equipment, including hardware and software, at the Designated Intersection Approaches. 1.10. Cause an electrical sub-contractor to complete all reasonably necessary electrical work at the Designated Intersection Approaches, including but not 25 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 City; and 1.14. Citation processing and citation issuance/re-issuance for Authorized Violations; 1.15. Redflex shall provide training (i) for up to fifteen (15) personnel of the City, including but not limited to the persons who City shall appoint as Authorized Employees and other persons involved in the administration of the Program, (ii) for up to sixteen (16) hours in the aggregate, (iii) regarding the operation of the Redflex System and the Program, which training shall include training with respect to the Redflex System and its operations, strategies for presenting Violations Data in court and judicial proceedings and a review of the Enforcement Documentation; 1.16. Intersect with judicial personnel to address issues regarding the implementation of the Redflex System, the development of a subpoena processing timeline that will permit the offering of Violations Data in court and judicial proceedings, and coordination between Redflex, the City and where applicable, juvenile court personnel. 1.17. Comply with Section 316.0776, Florida Statutes, which directs that placement and installation of Traffic Infraction Detectors must be in accordance with placement and installation specifications developed by the Florida Department of Transportation (FDOT). 2. CITY OBLIGATIONS. The City shall do or cause to be done each of the following (in each case, unless otherwise stated below, at City's sole expense): 2.1.1. Appoint the Project Manager; 2.1.2. Assist Redflex in obtaining the Drawings from the relevant Governmental Authorities; 2.1.3. To improve system aesthetics, reduce intrusiveness and reduce incurred expense, City will allow, where permissible, to use existing infrastructure, including but not limited to, poles, Inast-al111S, conduit and power. 2.1.4. Notify Redflex of any specific requirements relating to the construction and installation of any Intersection Approaches or the implementation of the Traffic Camera Safety Improvement Program; 2.1.5. Provide assistance to Redflex in obtaining access to the records data of the Department of Motor Vehicles in Redflex's capacity as an independent contractor to the City by completing a form indicating that Redflex is acting an Agent of the City for purposes of accessing vehicle ownership data for permissible uses under the Driver Privacy Protection Act 18 U.S.C section 2721; and 2.1.6. Assist Redflex in seeking the Approvals 26 2.1.7. Provide reasonable access to the City's properties and facilities in order to permit Redflex to install and test the functionality of the Designated Intersection Approaches and the Traffic Camera Safety Improvement Program; 2.1.8. Provide reasonable access to the personnel of the City and reasonable information about the specific operational requirements of such personnel for the purposes of performing training; 2.1.9. Seek approval or amendment of Awareness Strategy and provide written notice to Redflex with respect to the quantity of media and program materials (the "Materials") that the City will require in order to implement the Awareness Strategy during the period commencing on the date on which Redflex begins the installation of any of the Designated Intersection Approaches and ending one (1) month after the Installation Date; 2.1.10. Assist Redflex in developing the Violation Criteria; and 2.1.11. Seek approval of the Enforcement Documentation. 2.1.12. Provide on-going adequate electrical power in order to operate the systems. 2.1.13. The City will allow Redflex to use existing conduit space as available. 2.1.14. The City shall maintain LED traffic signal lights (yellow and red) at all enforced locations, 2.1.15. City is responsible for maintaining applicable computer hardware, web browsers and high speed Internet access sufficient to access and operate the Redflex system 2.1.16. The City will ensure that amber light phase timing at photo enforced intersections meets the minimum standards according to Federal, State and Local laws, guidelines and rules. 27 EXHIBIT "C" Maintenance 1. All repair and maintenance of the Traffic Camera Safety Improvement Program 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. 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 and install such flash units .. 4. Redflex may assign specific personnel to provide follow up assistance to the City in the form of the HELPDESK, a designated City Service Representative and a Director of Accounts. 28 EXHIBIT "D" COMPENSATION & PRICING Redflex agrees to provide a turnkey solution for a Traffic Camera Safety Improvement Program wherein all reasonably necessary elements required to implement and operate the solutions are the responsibility of Redflex, except for those items identified in this Agreement as the responsibility of the City. The turnkey program includes red light camera equipment, installation, maintenance and violation processing services. Including web application hosting, maintenance and remote administration, clerical data entry and quality review steps, DMV record access and data acquisition, notice mailing, lockbox payment processing, web payment access, call center for general support, web-site accessibility to citizens for image viewing and payment and the design and support for a City-implemented public awareness campaign. Redflex System Flat Fee per Designated Intersection Approach per Month in Accordance with RFP Specifications and Submission: Number of Designated Intersection Monthly Service Fee per Designated Approaches Intersection Approach #1-#5 $4270.00 less $500 per operational approach to be applied to the City's violation processing and court expenses #6 and up $4100.00 less $500 per operational approach to be applied to the City's violation 2rocessing and court expenses 1. Cost Neutrality a. City shall have the option to make payments to Redflex in accordance with the Cost Neutrality Payment Option. Under this option, the City may defer payment of that portion of the monthly service fee in excess of the amount collected during that month until the City has collected sufficient funds pursuant to this Agreement to pay that portion of the monthly service fee. A deferred monthly service fee shall be paid from the funds collected in the following month pursuant to this Agreement provided that sufficient funds are collected during that month to pay the deferred monthly service fee. Specifically, the funds collected each month pursuant to this Agreement, less the $500 to be applied to the City's violation processing and court expenses as provided above, shall be applied first to any unpaid deferred monthly service fees and then to that month's service fee; provided, however, that the City shall never be required to pay in any month an amount in excess of the funds collected that month. If, at the expiration or termination of this Agreement, sufficient funds have not been collected by the City to pay any unpaid deferred monthly service fees , Redflex agrees to waive its right to the recovery of any such fees except as provided below; and the City shall have the option of terminating the Agreement without incurring the costs specified in section 6.4. b. Redflex shall maintain an accounting of the net balance of monthly service fees owed to Redflex. In any event, the City will not be obligated to pay the full amount of 29 an invoice for any given month unless there is sufficient revenue collected in that month to pay all of the amounts of the prior invoices that were deferred as well as the full amount ofthe current month's invoice. c. . In the event the contract expires or is terminated and an outstanding balance is still owed, then in such event receipts from the Redflex program still working though the program will be applied to the Redflex balance, but not to exceed the applicable service fee based upon the number of operational designated intersection approaches at the time of termination or expiration of the contract. Business Assumptions a. The fee for certified mail will be billed per unit to the City at the prevailing US Postal Service rate. Certified mailing fees will be covered under cost neutrality prOVISIOns. b. Except for unpaid deferred monthly service fees as provided for in paragraph lea) of this Exhibit D, City agrees to pay Contractor within thirty (30) days after the City's receipt of Red flex's monthly invoice. Except for unpaid deferred monthly service fees, the City agrees to pay Redflex a monthly late fee of 1.5% on any amounts remaining unpaid 90 days from the date of Redflex' s invoice. c. If capacity is available, set-up and on-going provisions for the electrical powers to the Designated Intersection Approaches will be the responsibility of the City. If capacity is not available, this expense will be the responsibility of the Contractor. d. Contractor shall be solely responsible for the fabrication and installation of such Signage as required by Florida Law. e. Redflex will seek to charge, collect and retain a maximum convenience fee of $4.00 each for electronic payments provided. Such fee is paid by the violator. City will not receive any said convenience fee and City assumes no liability, responsibility or control of said fee. f. Vendor will establish a demand deposit account as an agent for the City. All funds collected pursuant to the Program will be deposited in this account and transferred by wire, on a mutually agreed schedule to the appropriate designated deposit FDIC member bank or other account as designated by City and mutually agreed to. 30 EXHIBIT "E" Additional Rights and Obligations Redflex and the City shall respectively have the additional rights and obligations set forth below: 1. Redflex shall assist the City in public information and education efforts, including but not limited to the development of artwork for utility bill inserts, press releases and schedules for any public launch of the Traffic Camera Safety Improvement Program (actual print and production costs are the sole responsibility of the City). 2. The City shall not access the Redflex System or use the Traffic Camera Safety Improvement Program in any manner other than prescribed by law or authorized by agreement between Redflex and the City. City shall ensure security of the Redflex System to prevent unauthorized usage which could result in damage, impairment, or overburdening of the Redflex System or the Traffic Camera Safety Improvement Program. City shall not attempt to gain unauthorized access to (i) any account of any other Person, (ii) any computer systems or networks connected to the Redflex System, or (iii) any materials or information not intentionally made available by Redflex to the City by means of hacking, password mining or any other method whatsoever, nor shall the City cause any other Person to do any of the foregoing. 3. The City shall maintain the confidentiality of any username, password or other process or device for accessing the Redflex System or using the Traffic Camera Safety Improvement Program. 4. Redflex and the City shall advise each other in writing with respect to any applicable rules or regulations governing the conduct of the other on or with respect to the property of such other party, including but not limited to rules and regulations relating to the safeguarding of confidential or proprietary information, and when so advised, Redflex and the City shall obey any and all such rules and regulations. 5. The City shall promptly reimburse Redflex for the cost of repairing or replacing any portion of the Redflex System, or any property or equipment related thereto, damaged directly or indirectly by the City, or any of its employees, contractors or agents. 31 EXHIBIT "F" 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 Red flex's subcontractors, agents, representatives and employees: Commercial General Liability Insurance. Commercial General Liability Insurance with coverage limits of not less than One Million Dollars ($1,000,000) combined single limit per occurrence for bodily injury and property damage, Two Million Dollars ($2,000,000) Products-Completed Operations Aggregate and Two Million Dollars ($2,000,000) General Aggregate; 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, non-owned 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 Two Million Dollars ($2,000,000) each and every claim and in the Aggregate; and 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 Florida, and Employer's Liability Insurance with coverage of not less than One Million Dollars ($1,000,000) per occurrence. 2. With respect to the Commercial General Liability Insurance the following additional provisions shall apply: The City Parties shall be named as additional insureds with respect to the Commercial General Liability insurance; and The insurance coverage procured by Redflex and described above shall be the primary insurance with respect to the City Parties in connection with this Agreement, and any insurance or self-insurance maintained by any of the City Parties shall be in excess, and not in contribution to, such insurance; and Any failure to comply with the reporting provisions of the various insurance policies described above shall not affect the coverage provided to the City Parties, and such insurance policies shall state the such insurance coverage shall apply separately with respect to each additional insured against whom any claim is made or suit is brought, except with respect to the limits set forth in such insurance policies. 3. 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 30 days written notice thereof to the City and shall take all necessary actions to correct such cancellation in coverage limits, and shall provide written notice to the City of the 32 date and nature of such correction. If Redflex, for any reason, fails to maintain the insurance coverage required pursuant to this Agreement, such failure shall be deemed a material breach of this Agreement, and the City shall have the right, but not the obligation and exercisable in its sole discretion, to either (i) terminate this Agreement and seek damages from Redflex for such breach, or (ii) purchase such required insurance, and without further notice to Redflex, deduct from any amounts due to Redflex pursuant to this Agreement, any premium costs advance by the City for such insurance. If the premium costs advanced by the City for such insurance exceed any amounts due to Redflex pursuant to this Agreement, Redflex shall promptly remit such excess amount to the City upon receipt of written notice thereof. 4. Redflex shall provide certificates of insurance evidencing the insurance required pursuant to the terms of this Agreement, which certificates shall be executed by an authorized representative of the applicable insurer, and which certificates shall be delivered to the City prior to Redflex commencing any work pursuant to the terms of this Agreement. 33 EXHIBIT "G" FORM OF ACKNOWLEDGMENT AND CONSENT This Acknowledgement and Consent Form, dated '1-J&../ ,2014 is entered into by and between the City of South Miami, Florida (the "City") and Redflex Traffic Systems, Inc., ("Redflex"), with reference to the Agreement between the City of South Miami and Redflex Traffic Systems, Inc. for a Traffic Camera Safety Improvement Program, dated as of !.;-I'!-It.; ,by and between the City of South Miami and Redflex (the "Agreement"). 1. Redflex has entered into a Credit Agreement, dated as of June 30, 2009 and as amended on August 9, 2011 ("the Credit Agreement"), with Commonwealth Bank of Australia ("the Creditor") pursuant to which the Creditor has provided certain working capital to Redflex. Such working capital is needed by Redflex to perform its obligations to the City under the Agreement. 2. Pursuant to the Credit Agreement, Redflex granted to the Creditor a security interest in all of Redflex's personal property relevant to and associated with the Agreement with the City as collateral for the payment and performance of Redflex's obligations to the Creditor under the 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 shall not, by virtue of the Credit Agreement, be relieved of any liability or obligation under the Agreement, and the Creditor has not assumed any liability or obligation of Redflex under the Agreement. 4. The City hereby acknowledges notice of, approves and consents, in full, to Redflex's grant of the aforementioned security interest in favor of the Creditor in all of Redflex's rights and interests under the Agreement pursuant to the Credit Agreement. 5. The City further acknowledges and agrees that this Acknowledgement and Consent Form shall be binding upon the City and shall inure tothe benefit of the successors and permitted assigns of the Creditor, and to any replacement lenders, banks and/or financial institutions which refinance Redflex's obligations to the Creditor under the Credit Agreement. 34 Red-Light Camera Operations Supplement EXHIBIT "H" RED-LIGHT CAMERA OPERATIONS SUPPLEMENT TO CRIMINAL JUSTICE USER AGREEMENT This Agreement supplements the Criminal Justice User Agreement entered into between the Florida Department of Law Enforcement (hereinafter referred to as FDLE), an agency of the State of Florida, and the South Miami Police Department , with headquarters at 6130 Sunset Drive, South Miami, FL 33143 (hereinafter referred to as the User), and dated 'i-1c..(--1'1 PURPOSE: This Supplemental Agreement is to document the terms and conditions under which the User is authorized to permit the use of its Originating Agency Identifier (ORI) to facilitate access to vehicle registration information provided via FDLE's International Justice and Public Safety Network (Nlets) connection, the Florida Crime Information Center (FCIC II) Message Switch, and the Florida Department of Highway Safety and Motor Vehicles (DHSMV), for use in association with red-light camera traffic infraction detection operations implemented by county and municipal governments as authorized by Chapter 2010-80, Laws of Florida. Whereas, FDLE is duly authorized and agrees to ensure access to the information services provided to the User via Nlets; Whereas, the User provides law enforcement services for the -=C:..!.!it:J....y-"'o'-'-f..==S:.:::::o""'u..::.:.th.!...M:.:.=ia""-m"-"i'-_____________ --l.(governmental entity); Whereas, the governmental entity has contracted with a vendor for the purposes of traffic code enforcement using red-light cameras; Whereas, the vendor, as a designated strategic partner with Nlets, submits queries to DHSMV via FDLE's Nlets connection and the FCIC II Message Switch, and such queries include the User's ORI; FL0520300 Therefore, the FDLE and the User do hereby agree as follows: Section I FDLE REQUIREMENTS FDLE agrees to provide the information services described above and will adhere to the following terms and conditions: 1. Serve as the primary point of contact for Nlets transactions that originate on behalf of the User by the authorized vendor. 2. Monitor the use of the FCIC and Nlets to ensure that automated traffic generated as a result of red-light camera traffic infraction detection operations do not have an adverse impact on officer safety. 35 3. In the event of an outage of normal NCIC services for any reason, FDLE reserves the right to curtail or discontinue the processing of red-light camera inquiries until the event or situation that caused the outage has passed or been resolved and services are fully restored. Section II USER REQUIREMENTS By providing access to the information services described above, the User agrees to adhere to the following terms and conditions: 1. The User shall ensure that all vendor personnel reviewing the vehicle registration information provided as authorized herein are current in CJIS Online certification, as prescribed by FDLE. 2. The User shall not share any state or national Hot File Information to which it has access with the Vendor. The Vendor shall not view or store any Hot File information on behalf of the User. (All other restrictions on access to and dissemination of information obtained by or available to User under its User Agreement with FDLE continue to apply.) 3. The User shall enter into an instrument of agreement with the Vendor acknowledging information is obtained by the Vendor via Nlets and the FCIC II Message Switch on behalf ofthe User. A copy of this agreement shall be forwarded to FDLE. The User shall ensure the Vendor complies with access and dissemination polices for any information obtained via a query processed through the FCIC II Message Switch. 36 IN WITNESS HEREOF, the parties hereto have caused this Supplemental Agreement to be executed by the proper officers and officials as of the later date indicated below. NAME OF USER AGENCY: SOUTH MIAMI POLICE DEPARTMENT AGENCY HEAD: Rene' Landa TITLE Chief of Police (1IDLL WITNESS TITLE Administrative Analyst FLORIDA DEPARTMENT OF LAW ENFORCEMENT BY ____________________________________ TITLE __________ _ (PLEASE PRINT) (SIGNATURE) DATE __________________ _ WITNESS, _____________________________ TITLE _____ _ 37 -:-:::~' -:=~. MIAMI HERALD I MiamiHerald.com CITY OF SOUTH MIAMI COURTESY NOTICE NOTICE IS HEREBY gIVen that the City CommissIon of the City ot South Miami, Flo(lda will conduct Public Hearing(s) at its re9ula~ City Commission meeting scheduled for Tuesday. March lS, 2014 begiMir.g at 7:00 p.m., in the City Commission Chambers, 6130 Sunset Drive. to consioer the following item(s): A Resolution related to a request pursuant to SectIOn 20-3.4(6)(4J(b) of the City of South Miami Land Development Code lor Special Use Approval to expand a general restaurant al5701 Sunset Drive. ShOps at Sunset Place vOl! A01A; within tne Specially Retail "SA", Hometown District Overlay "HD·QV·', A Resolution authOrizing the City Manager to emer into a multi-year contract With Redtle;: Traffic Systems Inc. tor providing red light enforcement cameras and support at identified int€lfseclions within the City of South Miami. A Resolution authOrizing the City Manager 10 enter in:o a three (3) year conttact with South Miami United F.C. Inc., for the mar:agement of youth soccer programs at Downrile/Soulh Miami Park. An Ordinance amending Section 4-2[3) oj the City Code:: changing distance requirements regarding alcohol sale and service. An OrdinanCe amending the Land Development Code. $ectior\ 20-6.1 (6)(2)(d) changing the time of the Plar-dog BOi::lrd meeting:.. An Qrdina,"ICe related to a request for a zoning map amendment to the City of South Miami official z.oning map, to re-zone the Agency owned property assemblage relerred to as the MarshaU Williamson properties. folio numbers 09-4025-000..0850: 09-4025-000-0852: and 09·4025-065-0090. from a curren! zonir,g deSIgnation of ~RS-4" (Slngle-family) to tne "RM-'S" (Low DenSity Multi-Family ReSidential) to allow lor additional residential dwelling units WIthin ~ Madison Square Mixed~Use Development Project. ALL ir.leresled parties are invited to attend and will be heard. For further informatiO:"l, please contacllr.e City Clerk's Office a1: 305-£63-6340. Maria M. Menendez.. CMC City Clerk Pursuant to Fionaa Sla\utes 285.0105. (toe City hereby advises the public lhal d a person aecides to appeal any declsfon made by thIS BoaIG. Agency or Commission with respect 10 any 1'n3l1er considered at its 1'11eell!'l9 or Maring. he or she w~j ooeo a record ot the proceedings. and It'at tor sUl,;h purpose. affected p.:rson may need to ensure that a verbatim record ot thl;: pro,;eedi:'lgS is made whi:;h record jr\(;lvde~ the testil'!1ony al'lc evidence upon whiCh the appeal is to be tased. SE SUNDAY, MARCH 9, 2014 I n5E MIAMI HERALD l~iamiHerald~ .. ~.c.:_o:.:m.: .. : ......... _ ... _ ........................................................................................... _ .......... __ ..................................... _ ......... r;;;=======;;;;;;:==================== CITY OF SOUTH MIAMI COURTESY NOTICE NOTICE IS HEREBY g,iven thai the City Commission of the City of South Miami, Florida will conduct Public Hearing(s) at i1s regular City Commission meeting scheduled for Tuesday, Marcil 18, 2014 beginning at 7;00 p,m., in the City Commission Chambers. 6130 Sunset DrIVe, to consider the following item(s): A Resolution related 10 a request pursuant to Section 20-3.4(6)(4)(b) of the City of South Miami Land Development Code for Special Use Approval to expand a general restaurant at 5701 Sunset Drive, Shops a1 Sunset Place Unit A01A; within the SpecIalty R.etail "SR", Homa~:lwn District Overtay "HD-OV~. /. / ' A Resolution authorlzir.gthe CIty Manager to enter Into a multi-year contract with Aed1!ex TrafficSystems Inc. for providing red 'igh~ enforcement cameras and suppon at Identified Intersectlons w!~hjn the City of South MiamI. \ A Resolu:ion authorizing the City Mananer to enter Into a three (3) year contract with South Miami United F.e. Inc., for the management of youth soccer programs at DownnlelSouth Miami Park. An Ordinance amending Section 4·21<1) of the City Code char.ging distance requirements regarding alcohol sale and service. An Ordinance amending the Land Dcvelo;::.ment Code. Section 20-6.1 (B)(2)(d) changing the time of the Planning Board meetings. An Ordinance related to a request for a zoning map amendment to the City of South Miami official zoning map, to re-zone the Agency owned property assemblage relerred to as the Marshall Williamson properties, folio numbers 09-4025-000-0850: 09-4025-000-0852; and 09-4025-065-0090, from a current zoning designation of "RS-4K (Single-Family) to the "RM-'8~ (low Density Multi.Family Residential) to allow for additional residential dwelling units within the Madison Square Mixed-Use Development Project. ALL interested pa!1ies are invl,ed 10 attend and will be heard. For further information. pleaSE' contact the City Clerk's Office at: 305-663·6340. Maria M. Menendez. CMC City Clerk Pur:;U<I;-I: to Aorida S1alules 266.0105. the City hereby advises the public that if a persondecitles!o app~aJ aN-{decision made by this Soard. Agency or Cornl'ilissicn with respect to any l'nat\er cOf\Sider::td at Its meeting or hearing. he or she will r.aed a record of lne ~Coodln9S. and thai lor such purpose. affocted PC!'Son may ~d to ensure thai a vli!rbatim record o~:he p."tIceedlngs Is made which record irdude:> the testimony and evidence upon which the appeal is to be based. MIAMI DAILY BUSINESS REVIEW PUblished Daily except Saturday. Sunday and Legal Holidays Miami. Miami-Dade County. Florida STATE OF FLORIDA COUNTY OF MIAMI-DADE: Before the undersigned authority personally appeared M. ZALDIVAR, who on oath says that he or she is the LEGAL CLERK, Legal Notices of the Miami Daily Business Review f/k/a Miami Review, a daily (except Saturday, Sunday and Legal Holidays) newspaper, published at Miami in Miami-Dade County, Florida; that the attached copy of advertisement, being a Legal Advertisement of Notice in the matter of CITY OF SOUTH MIAMI PUBLIC HEARING -MARCH 18, 2014 in the XXXX Court, was published in said newspaper in the issues of 03/07/2014 Affiant further says that the said Miami Daily Business Review is a newspaper published at Miami in said Miami-Dade County, Florida and that the said newspaper has heretofore been continuously published in said Miami-Dade County, Florida, each day (except Saturday, Sunday and Legal Holidays) and has been entered as second class mail matter at the post office in Miami in said Miami-Dade County, Florida, for a period of one year next preceding the first publication of the attached copy of advertisement; and affiant further says that he or she has neither paid nor promised any person, firm or corporation any discount, rebate, commission refund for the purpose of securing this advertisement fa ublication in the said newspaper. 14 MARIA MESA Notary Public· Slale 01 Florida My Comm. Expires Mar 4. 2016 Commission # EE 168275 Bonded Through Natlonai Nctary Assn. ";'~"~''W''''Il>' ___ &l'''''iW'''.'''''!J'''''''~'''''''''' .. ,;.-/f , .. ,:'~\~;). ,/:._.~ f" " ::;~.~. ' ;;.:" Z .,' --'~·:'i ~,;~:; '.; .. :.,: