HomeMy WebLinkAbout12-05-2005 ITEM VIII-B-3CITY OF
AXUR-N AGENDA BILL APPROVAL FORM
p WASHINGTON
Agenda Subject: Resolution No. 3949, Ordinance No. 5957 and
Date: November 30, 2005
Ordinance No. 5958
Department: Legal Attachments: Resolution No. 3949
1 Budget Impact:
Administrative Recommendation:
City Council adopt Resolution No. 3949.
Background Summary: This agenda bill covers several items including Resolution No. 3949
which authorizes the City's enforcement of photo enforcement programs and speed enforcement
programs.
Washington State legislature recently enacted revisions to the legislation of what was previously a pilot
program, opening the door for cities, generally, to utilize programs for photo enforcement infraction
programs. Most typically, these programs include fixed red light photo enforcement and fixed or mobile
speed enforcement programs in qualifying neighborhoods. Pursuant to the provisions of Ordinance No.
5957, the City of Auburn would be authorized, upon the Ordinance's adoption, to embark upon an
enforcement program through these new strategies. The Ordinance creates a new chapter 10.42 which
defines the program and sets fines and enforcement perimeters. Along with that, Resolution No. 3949
authorizes the execution of a contract with Redflex Traffic Systems, Inc. for a photo red light and mobile
speed enforcement program system, each one being separate options within the contract. With the
passage of this resolution, the City of Auburn would be able to have Redflex install equipment which
would then authorize enforcements pursuant to the new chapter 10.42 of the Auburn City Code, which
violations would be infractions of an equivalent nature to parking tickets by generating revenue that would
then not have to be split with the state. It is anticipated that this might be a cost effective method of
insuring better safety around problem intersections or high speed areas in neighborhoods warranting
protection under the statute.
Also related to the resolution and ordinance described above is Ordinance No. 5958, an Ordinance which
authorizes the use of certified electronic signatures for the photo enforcement programs. Pursuant to
state law, certain requirements must be met in order for a city to utilize electronic signatures as would be
contemplated and as would be convenient in the photo enforcement programs. This Ordinance would
authorize the officer who would be approving and processing the tickets for issuance to have his or her
signature electronically added to the document that is then mailed to the driver.
A1205-3 03.4.1.14
Reviewed by Council & Committees:
Reviewed by Departments & Divisions:
❑ Arts Commission COUNCIL COMMITTEES:
❑ Building ❑ M&O
❑ Airport ❑ Finance
❑ Cemetery ❑ Mayor
❑ Hearing Examiner ❑ Municipal Serv.
❑ Finance ❑ Parks
❑ Human Services ❑ Planning & CD
❑ Fire ❑ Planning
❑ Park Board ❑Public Works
❑ Legal ❑ Police
❑ Planning Comm. ❑ Other
❑ Public Works ❑ Human Resources
Action:
Committee Approval: ❑Yes ❑No
Council Approval: ❑Yes ❑No Call for Public Hearing
Referred to Until!_!_
Tabled Until_ _/_/_
Councilmember: CerinoStaff:
Kell
MeetingDate: December 5, 2005
Item Number: VII1.B.3
AUBURN* MORE THAN YOU IMAGINED
RESOLUTION NO. 3 9 4 9
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
AUBURN, WASHINGTON, APPROVING AND AUTHORIZING
THE EXECUTION AND ENTRY INTO AN AGREEMENT
BETWEEN THE CITY OF AUBURN AND REDFLEX TRAFFIC
SYSTEMS, INC. FOR PHOTO RED LIGHT AND MOBILE SPEED
ENFORCEMENT PROGRAMS
WHEREAS, the state law in the State of Washington has recently
accommodated the opportunity for cities to utilize photo red light and mobile
speed enforcement programs, within certain restrictions and limitations; and
WHEREAS, to address the public safety concerns involved in people
running red lights or speeding in certain speed zones, including school zones,
the City of Auburn is interested in employing such programs; and
WHEREAS, the City of Auburn has solicited proposals from vendors
involved in the programs nationwide and has received and reviewed those
proposals and has developed a contract with the selected service provider for
such services; and
WHEREAS, it is in the best interest of the City and it is appropriate for
the City to enter into that contract to utilize the services for photo red light and
mobile speed enforcement programs.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN,
KING COUNTY, WASHINGTON, HEREBY RESOLVES as follows:
--------------------------------------
Resolution No. 3949
November 29, 2005
Page 1
Section 1. The Mayor of the City of Auburn and the Auburn City Clerk
are hereby authorized to execute an Agreement between the City of Auburn
and Redflex Traffic Systems, Inc. for photo red light and mobile speed
enforcement programs which agreement shall be in substantial conformity with
the Agreement a copy of which is attached hereto, marked as Exhibit "A" and
incorporated herein by this reference.
Section 2. The Mayor is hereby authorized to implement such
administrative procedures as may be necessary to carry out the directives of
this legislation.
Section 3. This resolution shall be in full force and affect upon
passage and signatures hereon.
DATED and SIGNED this day of
CITY OF AUBURN
PETER B. LEWIS
Mayor
Attest:
Danielle E. Daskam
City Clerk
--------------------------------------
Resolution No. 3949
November 29, 2005
Page 2
2005.
Appr��, as to Farm:
Dailiel B. Hei
City Attorney
Resolution No. 3949
November 29, 2005
Page 3
AGREEMENT BETWEEN THE CITY OF AUBURN
AND REDFLEX TRAFFIC SYSTEMS, INC. FOR AN EXCLUSIVE
PHOTO RED LIGHT AND MOBILE SPEED ENFORCEMENT PROGRAM
This Agreement (this "Agreement") is made as of this _ day of (insert month), 2005 by
and between Redflex Traffic Systems, Inc. with offices at 6047 Bristol Parkway I"
Floor, Culver City, California 90230 ("Redflex"), and The City of Auburn a municipal
corporation, with offices at (25 West Main Street, Auburn, Washington 98001) (the
"Customer").
RECITALS
WHEREAS, Redflex has exclusive knowledge, possession and ownership of
certain equipment, licenses, applications, and citation processes related to digital photo
red light enforcement systems; and
WHEREAS, the Customer desires to engage the services of Redflex to provide
certain equipment, processes and back office services so that sworn peace officers of the
Customer are able to monitor, identify and enforce red light running violations; and
WHEREAS, it is a mutual objective of both Redflex and the Customer to reduce
the incidence of vehicle collisions at the traffic intersections and city streets that will be
monitored pursuant to the terms of this Agreement.
NOW THEREFORE, in consideration of the mutual covenants contained herein,
and for other valuable consideration received, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
AGREEMENT
1. DEFINITIONS. In this Agreement, the words and phrases below shall have the
following meanings:
1.1. "Authorized Officer" means the Law Enforcement Project Manager and/or such
other individual(s) as the Customer shall designate to review Potential Violations
and to authorize the Issuance of Citations with respect thereto, and in any event,
a sworn peace officer or a qualified employee of the City of Auburn .
1.2. "Authorized Violation" means each Potential Violation in the Violation Data for
which authorization to issue a citation in the form of an Electronic Signature is
given by the Authorized Officer by using the Redflex System.
1.3. "Citation" means the notice of a Violation, which is mailed or otherwise
delivered by Redflex to the violator on the appropriate Enforcement
Documentation in respect of each Authorized Violation.
1.4. "Confidential or Private Information" means, to the extent permitted by law, with
respect to any Person, any information, matter or thing of a secret, confidential or
private nature, whether or not so labeled, which is connected with such Person's
business or methods of operation or concerning any of such Person's suppliers,
licensors, licensees, customers or others with whom such Person has a business
relationship, and which has current or potential value to such Person or the
unauthorized disclosure of which could be detrimental to such Person, including
but not limited to:
1.4.1. Matters of a business nature, including but not limited to information
relating to development plans, costs, finances, marketing plans, data,
procedures, business opportunities, marketing methods, plans and strategies,
the costs of construction, installation, materials or components, the prices
such Person obtains or has obtained from its clients or customers, or at
which such Person sells or has sold its services; and
1.4.2. Matters of a technical nature, including but not limited to product
information, trade secrets, know-how, formulae, innovations, inventions,
devices, discoveries, techniques, formats, processes, methods, specifications,
designs, patterns, schematics, data, access or security codes, compilations of
information, test results and research and development projects. For
purposes of this Agreement, the term "trade secrets" shall mean the broadest
and most inclusive interpretation of trade secrets.
1.4.3. Notwithstanding the foregoing, Confidential Information will not include
information that: (i) was generally available to the public or otherwise part
of the public domain at the time of its disclosure, (ii) became generally
available to the public or otherwise part of the public domain after its
disclosure and other than through any act or omission by any party hereto in
breach of this Agreement, (iii) was subsequently lawfully disclosed to the
disclosing party by a person other than a party hereto, (iv) was required by a
court of competent jurisdiction to be described, or (v) was required by
applicable state law to be described.
1.5. "Designated Intersection Approaches" means the Intersection Approaches set
forth on Exhibit A attached hereto, and such additional Intersection Approaches
as Redflex and the Customer shall mutually agree from time to time.
1.6. "Designated School Zones" means the identified School Zones set forth for the
purposes of fixed speed enforcement, as Redflex and the Customer shall
mutually agree
1.7. "Electronic Signature" means the method through which the Authorized Officer
indicates his or her approval of the issuance of a Citation in respect of a Potential
Violation using the Redflex System.
1.8. "Enforcement Documentation" means the necessary and appropriate
documentation related to the Photo Enforcement Program, including but not
limited to warning letters, citation notices (using the specifications of the body
authorized to approve Uniform Citation forms in the State of Washington), a
numbering sequence for use on all citation notices (in accordance with applicable
court rules), instructions to accompany each issued Citation (including in such
instructions a description of basic court procedures, payment options and
information regarding the viewing of images and data collected by the Redflex
System), chain of custody records, criteria regarding operational policies for
processing Citations (including with respect to coordinating with the Department
of Motor Vehicles), and technical support documentation for applicable court and
judicial officers .
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1.9. "Equipment" means any and all cameras, sensors, equipment, components,
products, software and other tangible and intangible property relating to the
Redflex System(s), including but not limited to all camera systems, housings,
radar units, severs and poles.
1.10. "`Fine" means a monetary sum assessed for Citation, including but not
limited to bail forfeitures, but excluding suspended fines.
1.11. "Governmental Authority" means any domestic or foreign government,
governmental authority, court, tribunal, agency or other regulatory,
administrative or judicial agency, commission or organization, and any
subdivision, branch or department of any of the foregoing.
1.12. "Installation Date of the Photo Red Light Proms" means the date on
which Redflex completes the construction and installation of at least one (1)
Intersection Approach in accordance with the terms of this Agreement so that
such Intersection Approach is operational for the purposes of functioning with
the Redlight Photo Enforcement Program.
1.13. "Installation Date of Mobile Photo Speed Program" means the date on
which Redflex completes the construction and installation of at least one mobile
unit in accordance with the terms of this Agreement so that such mobile speed
unit is operational for the purposes of functioning with the Speed Photo
Enforcement 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 (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.
1.15. "Intersection Approach" means up to four (4) lanes of traffic moving
towards an intersection from one direction. The lanes shall be contiguous from
the curb (e.g., northbound, southbound, eastbound or westbound) on which at
least one (1) system has been installed by Redflex for the purposes of facilitating
Redlight Photo Enforcement by the Customer.
1.16. "Operational Period" means the period of time during the Term,
commencing on the Installation Date, during which the Photo Enforcement
Program is functional in order to permit the identification and prosecution of
Violations at the Designated City Streets, School Zones and Intersection
Approaches by a sworn peace officer of the Customer and the issuance of
Citations for such approved Violations using the Redflex System.
1.17. "Person" means a natural individual, company, Governmental Authority,
partnership, firm, corporation, legal entity or other business association.
1.18. "Police Project Manager" means the project manager appointed by the
Customer in accordance with this Agreement, which shall be a sworn peace
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officer and shall be responsible for overseeing the installation of the Intersection
Approaches, the deployment of the mobile speed units and the implementation of
the Photo Enforcement Program, and which manager shall have the power and
authority to make management decisions relating to the Customer's obligations
pursuant to this Agreement, including but not limited to change order
authorizations, subject to any limitations set forth in the Customer's charter or
other organizational documents of the Customer or by the city counsel or other
governing body of the Customer.
1.19. "Potential Violation" means, with respect to any motor vehicle passing
through a Designated City Street and/or Intersection Approach, the data collected
by the Redflex System with respect to such motor vehicle, which data shall be
processed by the Redflex System for the purposes of allowing the Authorized
Officer to review such data and determine whether a 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. "Redflex Marks" means all trademarks registered in the name of Redflex
or any of its affiliates, such other trademarks as are used by Redflex or any of its
affiliates on or in relation to Photo Enforcement at any time during the Term of
this Agreement, service marks, trade names, logos, brands and other marks
owned by Redflex, and all modifications or adaptations of any of the foregoing.
1.22. "Redflex Proiect Manager" means the project manager appointed by
Redflex in accordance with this Agreement, which project manager shall initially
be Joe Bernard or such person as Redflex shall designate by providing written
notice thereof to the Customer from time to time, who shall be responsible for
overseeing the construction and installation of the Designated Intersection
Approaches and the implementation the Mobile Speed Enforcement Program,
and who shall have the power and authority to make management decisions
relating to Redflex's obligations pursuant to this Agreement, including but not
limited to change -order authorizations.
1.23. "Redflex Photo Red Light System" means, collectively, the SmartCamTM
System, the SmartOpsTM System, the Redlight Photo Enforcement Program, and
all of the other equipment, applications, back office processes and digital red
light traffic enforcement cameras, sensors, components, products, software and
other tangible and intangible property relating thereto.
1.24. "Photo Red Light Enforcement Program" means the process by which the
monitoring, identification and enforcement of Violations is facilitated by the use
of certain equipment, applications and back office processes of Redflex,
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including but not limited to cameras, flashes, central processing units, signal
controller interfaces and detectors (whether loop, radar or video loop) which,
collectively, are capable of measuring Violations and recording such Violation
data in the form of photographic images of motor vehicles.
1.25. "Photo Redlieht Violation Criteria" means the standards and criteria by
which Potential Violations will be evaluated by sworn peace officers of the
Customer, which standards and criteria shall include, but are not limited to, the
duration of time that a traffic light must remain red prior to a Violation being
deemed to have occurred, and the location(s) in an intersection which a motor
vehicle must pass during a red light signal prior to being deemed to have
committed a Violation, all of which shall be in compliance with all applicable
laws, rules and regulations of Governmental Authorities.
1.26. "Redflex Photo Speed System" means, collectively, the SmartCamTM
System, the SmartOpsTM System, the Photo Speed Enforcement Program, and all
of the other equipment, applications, back office processes and digital speed
traffic enforcement cameras, radar units, components, products, software and
other tangible and intangible property relating thereto.
1.27. "Photo Speed Enforcement Program" means the process by which the
monitoring, identification and enforcement of Violations is facilitated by the use
of certain equipment, applications and back office processes of Redflex,
including but not limited to cameras, flashes, central processing units, interfaces
and detectors which, collectively, are capable of measuring Violations and
recording such Violation data in the form of photographic images of motor
vehicles.
1.28. "Photo Sneed Violation Criteria" means the standards and criteria by
which Potential Violations will be evaluated by sworn police officers of the
Customer, which standards and criteria shall include, but are not limited to, the
vehicle speed, the location(s) in which a motor vehicle must exceed posted speed
limits prior to being deemed to have committed a Violation, all of which shall be
in compliance with all applicable laws, rules and regulations of Governmental
Authorities.
1.29. "SmartCamTM System" means the proprietary digital redlight photo
enforcement system of Redflex relating to the Photo Red Light Enforcement
Program.
1.30. "SmartopsTM System" means the proprietary back-office processes of
Redflex relating to the Photo Red Light Enforcement Program.
1.31. "SmartSceneTM System" means the proprietary digital video camera unit,
hardware and software required for providing supplemental violation data.
1.32. "Traffic Signal Controller Boxes" means the signal controller interface
and detection system, including but not limited to the radar, video detection
system, or induction loops used for normal signal operations not used for Redflex
operation, as the case may be.
1.33. "Violation" means any traffic violation contrary to the terms of the
Vehicle Code or any applicable rule, regulation or law of any other
Governmental Authority, including but not limited to operating a motor vehicle
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contrary to traffic signals, and operating a motor vehicle without displaying a
valid license plate or registration.
1.34. "Violations Data" means the images and other Violations data gathered by
the Redflex System at the Designated City Streets and/or Intersection
Approaches.
2. TERM. The term of this Agreement shall commence as of the date hereof and shall
continue for a period of three (3) years after the Installation Date (the "Initial Term").
The Customer shall have the right, but not the obligation, to extend the term of this
Agreement for up to two (2) additional consecutive two (2) year periods following the
expiration of the Initial Term (each, a "Renewal Term" and collectively with the
Initial Term, the "Term"). The Customer may exercise the right to extend the term of
this Agreement for a Renewal Term by providing written notice to Redflex not less
than thirty (30) days prior to the last day of the Initial Term or the Renewal Tenn, as
the case may be.
3. SERVICES. Redflex shall provide the Photo Red Light and Speed Enforcement
Program to the Customer, in each case in accordance with the terms and provisions
set forth in this Agreement.
3.1. INSTALLATION. With respect to the construction and installation of the
Redflex System at the Designated Intersection Approaches, the Customer and
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 and the Mobile Speed Units, 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 and will
comply with the State of Washington's records retentions laws and will be
provided to the Customer on a recordable CD format upon request;
3.3.2. The Redflex System shall process Violations Data gathered from the
Designated City Streets and/or Intersection Approaches into a format
capable of review by the Authorized Officer via the Redflex System;
3.3.3. The Redflex System shall be accessible by the Authorized Officer through
a virtual private network in encrypted format by use of a confidential
password on any computer equipped with a high-speed internet connection
and a web browser;
3.3.4. Redflex shall provide the Authorized Officer with access to the Redflex
System for the purposes of reviewing the pre-processed Violations Data
within 5 days of gathering the Violation Data from the applicable
Designated City Streets and/or Intersection Approaches, however, should the
Customer suffer from operational issues resulting from this 5 day period,
both parties will meet, discuss and implement a mutually agreed to operating
practice that will alleviate the operational issue;
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3.3.5. The Customer shall cause the Authorized Officer to review the Violations
Data and to determine whether a citation shall be issued with respect to each
Potential Violation captured within such 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 OFFICER AND SHALL BE MADE
IN SUCH AUTHORIZED OFFICER'S SOLE DISCRETION (A
"CITATION DECISION"), AND IN NO EVENT SHALL REDFLEX
HAVE THE ABILITY OR AUTHORIZATION TO MAKE A CITATION
DECISION;
3.3.6. With respect to each Authorized Violation, Redflex shall print and mail a
Citation within four (4) days after Redflex's receipt of such authorization;
provided, however, during the Warning Period, warning violation notices
shall be issued in respect of all Authorized Violations;
3.3.7. Redflex shall provide a toll-free telephone number for the purposes of
answering citizen inquiries
3.3.8. Redflex shall permit the Authorized Officer to generate monthly reports
using the Redflex Standard Report System.
3.3.9. Upon Redflex's receipt of a written request from the Customer and in
addition to the Standard Reports, Redflex shall provide, without cost to the
Customer, reports regarding the processing and issuance of Citations, the
maintenance and downtime records of the Designated Intersection
Approaches and the functionality of the Redflex System with respect thereto
to the Customer in such format and for such periods as the Customer may
reasonably request; provided, however, Redflex shall not be obligated to
provide in excess of six (6) such reports in any given twelve (12) month
period without cost to the Customer;
3.3.10. Upon the Customer's receipt of a written request from Redflex, the
Customer shall provide, without cost to Redflex, reports regarding the
prosecution of Citations and the collection of fines, fees and other monies in
respect thereof in such format and for such periods as Redflex may
reasonably request; provided, however, the Customer shall not be obligated
to provide in excess of six (6) such reports in any given twelve (12) month
period without cost to Redflex;
3.3.11. Upon Redflex's receipt of a written request from the Customer at least
seven (7) 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;
and
3.3.12. During the term of this agreement and any extensions, Redflex shall
provide personnel to act as expert witnesses in any court where such
testimony is germane on behalf of the Customer with respect to the Photo
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Enforcement Program. In addition to the above, during the term of this
agreement and any extensions, and as requested by the Customer, Redflex
shall provide such training to Police personnel as shall be reasonably
necessary in order to allow such personnel to act as expert witnesses on
behalf of the Customer with respect to the Photo Enforcement Program.
3.4. PROSECUTION AND COLLECTION, COMPENSATION. The Customer shall
diligently prosecute, within its discretion, Citations and the collection of all Fines
in respect thereof, and Redflex shall have the right to receive, and the Customer
shall be obligated to pay, the compensation set forth on Exhibit D attached
hereto.
3.5. OTHER RIGHTS AND OBLIGATIONS. During the term hereof and any
extensions, in addition to all of the other rights and obligations set forth in this
Agreement, Redflex and the Customer shall have the respective rights and
obligations set forth on Exhibit E attached hereto.
3.6. CHANGE ORDERS. The Customer may from time to time request changes to
the work required to be performed or the addition of products or services to those
required pursuant to the terms of this Agreement by providing written notice
thereof to Redflex, setting forth in reasonable detail the proposed changes (a
"Change Order Notice"). Upon Redflex's receipt of a Change Order Notice,
Redflex shall deliver a written statement describing the effect, if any, the
proposed changes would have on the pricing terms set forth in Exhibit D (the
"Change Order Proposal'), which Change Order Proposal shall include (i) a
detailed breakdown of the charge and schedule effects, (ii) a description of any
resulting changes to the specifications and obligations of the parties, (iii) a
schedule for the delivery and other performance obligations, and (iv) any other
information relating to the proposed changes reasonably requested by the
Customer. Following the Customer's receipt of the Change Order Proposal, the
parties shall negotiate in good faith and agree to a plan and schedule for
implementation of the proposed changes, the time, manner and amount of
payment or price increases or decreases, as the case may be, and any other
matters relating to the proposed changes; provided, however, in the event that
any proposed change involves only the addition of equipment or services to the
existing Designated Intersection Approaches, Designated City Vehicles, or the
addition of Intersection Approaches to be covered by the terms of this
Agreement, to the maximum extent applicable, the pricing terms set forth in
Exhibit D shall govern. Any failure of the parties to reach agreement with
respect to any of the foregoing as a result of any proposed changes shall not be
deemed to be a breach of this Agreement, and any disagreement shall be resolved
in accordance with Section 10 herein.
4. License; Reservation of Rights.
4.1. License. Subject to the terms and conditions of this Agreement, Redflex hereby
grants the Customer, and the Customer hereby accepts from Redflex upon the
terms and conditions herein specified, a non-exclusive, non-transferable license
during the Term of this Agreement to: (a) solely within the City of Auburn 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
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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
(insert name) that Redflex is providing services to the Customer in connection
with Photo Red Light Enforcement Program pursuant to the terms of this
Agreement, and (c) use and display the Redflex Marks on or in marketing, public
awareness or education, or other publications or materials relating to the Photo
Red Light Enforcement Program, so long as any and all such publications or
materials are approved in advance by Redflex.
4.2. RESERVATION OF RIGHTS. The Customer hereby acknowledges and agrees
that: (a) Redflex is the sole and exclusive owner of the Redflex System, the
Redflex Marks, all Intellectual Property arising from or relating to the Redflex
System, and any and all related Equipment, (b) the Customer neither has nor
makes any claim to any right, title or interest in any of the foregoing, except as
specifically granted or authorized under this Agreement, and (c) by reason of the
exercise of any such rights or interests of Customer pursuant to this Agreement,
the Customer shall gain no additional right, title or interest therein.
4.3. RESTRICTED USE. The Customer hereby covenants and agrees that it shall not
(a) make any modifications to the Redflex System, including but not limited to
any Equipment, (b) alter, remove or tamper with any Redflex Marks, (c) use any
of the Redflex Marks in any way which might prejudice their distinctiveness,
validity or the goodwill of Redflex therein, (d) use any trademarks or other marks
other than the Redflex Marks in connection with the Customer's use of the
Redflex System pursuant to the terms of this Agreement without first obtaining
the prior consent of Redflex, or (e) disassemble, de -compile or otherwise perform
any type of reverse engineering to the Redflex System, the Redflex System,
including but not limited to any Equipment, or to any, Intellectual Property or
Proprietary Property of Redflex, or cause any other Person to do any of the
foregoing.
4.4. PROTECTION OF RIGHTS. Redflex shall have the right to take whatever
action it deems necessary or desirable to remedy or prevent the infringement of
any Intellectual Property of Redflex, including without limitation the filing of
applications to register as trademarks in any jurisdiction any of the Redflex
Marks, the filing of patent application for any of the Intellectual Property of
Redflex, and making any other applications or filings with appropriate
Governmental Authorities. The Customer shall not take any action to remedy or
prevent such infringing activities, and shall not in its own name make any
registrations or filings with respect to any of the Redflex Marks or the
Intellectual Property of Redflex without the prior written consent of Redflex,
which consent shall not be unreasonably withheld.
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
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rights and to make settlements with respect thereto. In the event that Redflex
commences any enforcement action under this Section 4.5, then the Customer
shall render to Redflex such reasonable cooperation and assistance as is
reasonably requested by Redflex, and Redflex shall be entitled to any damages or
other monetary amount that might be awarded after deduction of actual costs;
provided, that Redflex shall reimburse the Customer for any reasonable costs
incurred in providing such cooperation and assistance.
4.6. INFRINGING USE. The Customer shall give Redflex prompt written notice of
any action or claim known to the Customer, whether threatened or pending,
against the Customer alleging that the Redflex Marks, or any other Intellectual
Property of Redflex, infringes or violates any patent, trademark, copyright, trade
secret or other Intellectual Property of any other Person, and the Customer shall
render to Redflex such reasonable cooperation and assistance as is reasonably
requested by Redflex in the defense thereof; provided, that Redflex shall
reimburse the Customer for any reasonable costs incurred in providing such
cooperation and assistance. If such a claim is made and Redflex determines, in
the exercise of its sole discretion, that an infringement may exist, Redflex shall
have the right, but not the obligation, to procure for the Customer the right to
keep using the allegedly infringing items, modify them to avoid the alleged
infringement or replace them with non -infringing items.
5. Representations and Warranties.
5.1. Redflex Representations and Warranties.
5.1.1. Authority. Redflex hereby warrants and represents that it has all right,
power and authority to execute and deliver this Agreement and perform its
obligations hereunder.
5.1.2. Professional Services. Redflex hereby warrants and represents that any
and all services provided by Redflex pursuant to this Agreement shall be
performed in a professional and workmanlike manner and, with respect to
the installation of the Redflex System, subject to applicable law, in
compliance with all specifications provided to Redflex by the Customer.
5.2. Customer Representations and Warranties.
5.2.1. Authoritv. The Customer hereby warrants and represents that it has all
right, power and authority to execute and deliver this Agreement and
perforin its obligations hereunder.
5.2.2. Professional Services. The Customer hereby warrants and represents that
any and all services provided by the Customer pursuant to this Agreement
shall be performed in a professional and workmanlike manner.
5.3. LIMITED WARRANTIES. EXCEPT AS OTHERWISE PROVIDED IN THIS
AGREEMENT, REDFLEX MAKES NO WARRANTIES OF ANY KIND,
EXPRESS OR IMPLIED, INCLUDING; BUT NOT LIMITED TO, THE
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE, WITH RESPECT TO THE REDFLEX SYSTEM OR
ANY RELATED EQUIPMENT OR WITH RESPECT TO THE RESULTS OF
THE CUSTOMER'S USE OF ANY OF THE FOREGOING.
NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH
HEREIN, REDFLEX DOES NOT WARRANT THAT ANY OF THE
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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 FOR CAUSE: Either party shall have the right to terminate
this Agreement immediately by written notice to the other if (i) state statutes are
amended to prohibit or substantially change the operation of photo red light
enforcement systems; (ii) any court having jurisdiction over City rules, or state or
federal statute declares, that results from the Redflex System of photo red light
enforcement are inadmissible in evidence or otherwise unenforceable; or (iii) the
other party commits any material breach of any of the provisions of this
Agreement. Which aforementioned causes for termination (section 6.1) are not
remedied within thirty (30) calendar days (or within such other time period as the
Customer and Redflex shall mutually agree, which agreement shall not be
unreasonably withheld or delayed) after written notice from the non -breaching
party setting forth in reasonable detail the events which caused the breach.
6.2. The rights to terminate this Agreement given in this Section 6.1 shall be without
prejudice to any other right or remedy of either party with respect to the breach
concerned (if any) or any other breach of this Agreement.
6.3. PROCEDURES UPON TERMINATION. The termination of this Agreement
shall not relive either party of any liability that accrued prior to such termination.
Except as set forth in this Section 6.3, upon the termination of this Agreement, all
of the provisions of this Agreement shall terminate and:
6.3.1. Redflex shall (i) immediately cease to provide services, including but not
limited to work in connection with the construction or installation activities
and services in connection with the Photo Red Light Enforcement Program,
(ii) promptly deliver to the Customer any and all Proprietary Property of the
Customer provided to Redflex pursuant to this Agreement, (iii) promptly
deliver to the Customer a final report to the Customer regarding the
collection of data and the issuance of Citations in such format and for such
periods as the Customer may reasonably request, and which final report
Redflex shall update or supplement from time to time when and if additional
data or information becomes available, (iv) promptly deliver to Customer a
final invoice stating all fees and charges properly owed by Customer to
Redflex for work performed and Citations issued by Redflex prior to the
termination, and (v) continue to 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.
11
6.3.2. The Customer shall (i) immediately cease using the Photo Red Light
Enforcement Program, accessing the Redflex System and using any other
Intellectual Property of Redflex, (ii) promptly deliver to Redflex any and all
Proprietary Property of Redflex provided to the Customer pursuant to this
Agreement, and (iii) promptly pay any and all fees, charges and amounts
properly owed by Customer to Redflex for work performed and Citations
issued by Redflex prior to the termination.
6.3.3. Unless the Customer and Redflex have agreed to enter into a new
agreement relating to the Photo Red Light Enforcement Program or have
agreed to extend the Term of this Agreement, Redflex shall remove any and
all Equipment or other materials of Redflex installed in connection with
Redflex's performance of its obligations under this Agreement, including but
not limited to housings, poles and camera systems, and Redflex shall restore
the Designated City Vehicles and Designated Intersection Approaches to
substantially the same condition such Designated Intersection Approaches
were in immediately prior to this Agreement.
6.4. SURVIVAL. Notwithstanding the foregoing, the definitions and each of the
following shall survive the termination of this Agreement: (a) Sections 4.2
(Reservation of Rights), 5.1 (Redflex Representations and Warranties), 5.2
(Customer Representations and Warranties), 5.3 (Limited Warranty), 7
(Confidentiality), 8 (Indemnification and Liability), 9 (Notices), 10 (Dispute
Resolution), 11.1 (Assignment), 11.17 (Applicable Law), 11.16 (Injunctive
Relief, Specific Performance) and 11.18 (Jurisdiction and Venue), and (b) those
provisions, and the rights and obligations therein, set forth in this Agreement
which either by their terms state, or evidence the intent of the parties, that the
provisions survive the expiration or termination of the Agreement, or must
survive to give effect to the provisions of this Agreement.
7. CONFIDENTIALITY. During the term of this Agreement and for a period of three
(3) years thereafter, neither party shall disclose to any third person, or use for itself in
any way for pecuniary gain, any Confidential Information learned from the other
party during the course of the negotiations for this Agreement or during the Term of
this Agreement, except as provided herein below. Upon termination of this
Agreement, each party shall return to the other all tangible Confidential Information
of such party. Each party shall retain in confidence and not disclose to any third party
any Confidential Information without the other party's express written consent,
except (a) to its employees who are reasonably required to have the Confidential
Information, (b) to its agents, representatives, attorneys and other professional
advisors that have a need to know such Confidential Information, provided that such
parties undertake in writing (or are otherwise bound by rules of professional conduct)
to keep such information strictly confidential, and (c) pursuant to, and to the extent
of, a request or order by any Governmental Authority, or a request a by any person,
entity or agency entitled to such information by law, including laws relating to public
records.
8. Indemnification and Liability.
8.1. Indemnification by Redflex. Subject to Section 8.3, Redflex hereby agrees to
defend and indemnify the Customer and its affiliates, shareholders or other
12
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 Parry" 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 the acts or omissions of Redflex and/or 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 and collectively, "Redflex") in the
performance of this Agreement, including, but not limited 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
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 willful misconduct
of any Redflex Party, (c) any claim, action or demand not caused by Redflex's
failure to perform its obligations under this Agreement, or (d) any claim, action
or demand alleging negligent actions or omissions of the Customer regarding
how it's used of the Redflex System or any portion thereof, where those
allegations are totally independent of and unrelated to the obligations of Redflex.
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
13
notice of such Claim promptly after the Indemnified Party first becomes aware
thereof, provided, however, that failure so to give such notice shall not preclude
indemnification with respect to such Claim except to the extent of any additional
or increased Losses or other actual prejudice directly caused by such failure. The
Indemnifying Party shall have the right to choose counsel to defend such Claim
(subject to the approval of such counsel by the Indemnified Party, which
approval shall not be unreasonably withheld, conditioned or delayed), and to
control, compromise and settle such Claim, and the Indemnified Party shall have
the right to participate in the defense at its sole expense; provided, however, the
Indemnified Party shall have the right to take over the control of the defense or
settlement of such Claim at any time if the Indemnified Party irrevocably waives
all rights to indemnification from and by the Indemnifying Party. The
Indemnifying Party and the Indemnified Party shall cooperate in the defense or
settlement of any Claim, and no party shall have the right enter into any
settlement agreement that materially affects the other party's material rights or
material interests without such party's prior written consent, which consent will
not be unreasonably withheld or delayed.
8.4. LIMITED LIABILITY. Notwithstanding anything to the contrary in this
Agreement, neither party shall be liable to the other, by reason of any
representation or express or implied warranty, condition or other term or any duty
at common or civil law, for any indirect, incidental, special, lost profits or
consequential damages, however caused and on any theory of liability arising out
of or relating to this Agreement.
9. NOTICES. Any notices to be given hereunder shall be in writing, and shall be
deemed to have been given (a) upon delivery, if delivered by hand, (b) three (3) days
after being mailed first class, certified mail, return receipt requested, postage and
registry fees prepaid, or (c) one Business Day after being delivered to a reputable
overnight courier service, excluding the U.S. Postal Service, prepaid, marked for next
day delivery, if the courier service obtains a signature acknowledging receipt, in each
case addressed or sent to such party as follows:
9.1. Notices to Redflex:
Redflex Traffic Systems, Inc.
15020 North 74`h Street
Scottsdale, AZ 85260
Attention: Ms. Karen Finley
Facsimile: (480) 607-5552
9.2. Notices to the Customer:
City of Auburn
340 East Main Street
Auburn, WA 98002
Attention: Commander Greg Wood
Facsimile: (253) 931-5108
14
10. DISPUTE RESOLUTION. Upon the occurrence of any dispute or disagreement
between the parties hereto arising out of or in connection with any term or provision
of this Agreement, the subject matter hereof, or the interpretation or enforcement
hereof (the "Dispute"), the parties shall engage in informal, good faith discussions
and attempt to resolve the Dispute. In connection therewith, upon written notice of
either party, each of the parties will appoint a designated officer whose task it shall be
to meet for the purpose of attempting to resolve such Dispute. The designated
officers shall meet as often as the parties shall deem to be reasonably necessary. Such
officers will discuss the Dispute. If the parties are unable to resolve the Dispute in
accordance with this Section 10, and in the event that either of the parties concludes
in good faith that amicable resolution through continued negotiation with respect to
the Dispute is not reasonably likely, then the parties may mutually agree to submit to
binding or nonbinding arbitration or mediation.
11. Miscellaneous.
11.1. Assignment. Neither party may assign all or any portion of this
Agreement without the prior written consent of the other, which consent shall not
be unreasonably withheld or delayed; provided, however, The Customer hereby
acknowledges and agrees that the execution (as outlined in Exhibit F), delivery
and performance of Redflex's rights pursuant to this Agreement shall require a
significant investment by Redflex, and that in order to finance such investment,
Redflex may be required to enter into certain agreements or arrangements
("Financing Transactions") with equipment lessors, banks, financial institutions
or other similar persons or entities (each, a "Financial Institution" and
collectively, "Financial Institutions"). The Customer hereby agrees that Redflex
shall have the right to assign, pledge, hypothecate or otherwise transfer
("Transfer") its rights, or any of them, under this Agreement to any Financial
Institution in connection with any Financing Transaction between Redflex and
any such Financial Institution, subject to the Customer's prior written approval,
which approval shall not be unreasonably withheld or delayed. The Customer
further acknowledges and agrees that in the event that Redflex provides written
notice to the Customer that it intends to Transfer all or any of Redflex's rights
pursuant to this Agreement, and in the event that the Customer fails to provide
such approval or fails to object to such Transfer within forty-five (45) business
days after its receipt of such notice from Redflex, for the purposes of this
Agreement, the Customer shall be deemed to have consented to and approved
such Transfer by Redflex. Notwithstanding the above, this Agreement shall inure
to the benefit of, and be binding upon, the parties hereto, and their respective
successors or assigns.
11.2. RELATIONSHIP BETWEEN REDFLEX AND THE CUSTOMER.
Nothing in this Agreement shall create, or be deemed to create, a partnership,
joint venture or the relationship of principal and agent or employer and employee
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
15
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 Parry 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 parry 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 terns.
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, Provided that if the invalidity or
unenforceability prevents the Customer from being able to utilize the Redflex
System, as contemplated by and provided for in this Agreement, the Customer
shall have the right to terminate this Agreement forthwith.
11.7. WAIVER. Any waiver by either party of a breach of any provision of this
Agreement shall not be considered as a waiver of any subsequent breach of the
same or any other provision thereof.
11.8. CONSTRUCTION Except as expressly otherwise provided in this
Agreement, this Agreement shall be construed as having been fully and
completely negotiated and neither the Agreement nor any provision thereof shall
be construed more strictly against either party.
El
11.9. HEADINGS. The headings of the sections contained in this Agreement
are included herein for reference purposes only, solely for the convenience of the
parties hereto, and shall not in any way be deemed to affect the meaning,
interpretation or applicability of this Agreement or any term, condition or
provision hereof.
11.10. EXECUTION AND COUNTERPARTS. This Agreement may be
executed in any number of counterparts, each of which when so executed and
delivered shall be deemed an original, and such counterparts together shall
constitute only one instrument. Any one of such counterparts shall be sufficient
for the purpose of proving the existence and terms of this Agreement, and no
party shall be required to produce an original or all of such counterparts in
making such proof.
11.11. COVENANT OF FURTHER ASSURANCES. All parties to this
Agreement shall, upon request, perform any and all acts and execute and deliver
any and all certificates, instruments and other documents that may be necessary
or appropriate to carry out any of the terms, conditions and provisions hereof or
to carry out the intent of this Agreement.
11.12. REMEDIES CUMULATIVE. Each and all of the several rights and
remedies provided for in this Agreement shall be construed as being cumulative
and no one of them shall be deemed to be exclusive of the others or of any right
or remedy allowed by law or equity, and pursuit of any one remedy shall not be
deemed to be an election of such remedy, or a waiver of any other remedy.
11.13. BINDING EFFECT. This Agreement shall inure to the benefit of and be
binding upon all of the parties hereto and their respective executors,
administrators, successors and permitted assigns.
11.14. COMPLIANCE WITH LAWS. Nothing contained in this Agreement
shall be construed to require the commission of any act contrary to law, and
whenever there is a conflict between any term, condition or provision of this
Agreement and any present or future statute, law, ordinance or regulation
contrary to which the parties have no legal right to contract, the latter shall
prevail, but in such event the term, condition or provision of this Agreement
affected shall be curtailed and limited only to the extent necessary to bring it
within the requirement of the law, provided that such construction is consistent
with the intent of the Parties as expressed in this Agreement.
11.15. NO THIRD PARTY BENEFIT. Nothing contained in this Agreement
shall be deemed to confer any right or benefit on any Person who is not a party to
this Agreement.
11.16. INJUNCTIVE RELIEF; SPECIFIC PERFORMANCE. The parties
hereby agree and acknowledge that a breach of Sections 4.1 (License), 4.3
(Restricted Use) or 7 (Confidentiality) of this Agreement would result in severe
and irreparable injury to the other party, which injury could not be adequately
compensated by an award of money damages, and the parties therefore agree and
acknowledge that they shall be entitled to injunctive relief in the event of any
breach of any material term, condition or provision of this Agreement, or to
enjoin or prevent such a breach, including without limitation an action for
specific performance hereof.
17
11.17. APPLICABLE LAW. This Agreement shall be governed by and
construed in all respects solely in accordance with the laws of the State of
Washington, United States.
11.18. JURISDICTION AND VENUE. Any dispute arising out of or in
connection with this Agreement shall be submitted to the exclusive jurisdiction
and venue of the courts located in the County of King and both parties
specifically agree to be bound by the jurisdiction and venue thereof.
(The remainder of this page is left intentionally blank)
18
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day
and year first set forth above.
"Customer"
"Redflex"
CITY OF (insert name) REDFLEX TRAFFIC SYSTEMS, INC.,
U -M
By: _
Name:
Title:
Ir
EXHIBIT "A"
Designated Intersection Approaches
The contract is for the initial implementation of up to 10 intersections. Identification of
enforced intersection will be based on mutual agreement between Redflex and the
Customer as warranted by community safety and traffic needs, but the Customer reserves
the right for the final approval.
EXHIBIT `B"
Construction and Installation Obligations
Timeframe for Installation: Fixed Photo Red Light System
Redflex will develop an implementation plan and submit said plan within 7 days of
program Kick—Off to the Customer for approval. The implementation plan shall include
a list of specified intersections to be installed and activated and include a detailed
schedule of said installations and activations. The implementation plan shall show the
first specified intersection installed and activated within forty-five (45) to sixty (60) days
from execution of this agreement.
The Customer reserves the right of final approval of the intersections at which the
Redflex Traffic Systems cameras will be installed and utilized. Redflex Traffic Systems
will not install and/or activate the traffic cameras or system until approval of the
intersections is given by the Customer.
Redflex shall install the system in accordance with the schedule set forth in the
implementation plan. The Customer agrees that the estimated schedule 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 photo enforcement
project Redflex Traffic Systems requires that the Customer assist with providing timely
approval of required permits. The Customer acknowledges the importance of the safety
program and undertakes that in order to keep the project on schedule the customer is to
provide review of Redflex permit requests and all documentation within five (5) business
days of first submittal, and re -submittals within two (2) business days. Redflex will also
review and correct if necessary any redlines with in two (2) business days.
1. Redflex Obligations. Redflex shall do or cause to be done each of the following (in
each case, unless otherwise stated below, at Redflex's sole expense):
1.1. Appoint the Redflex Project Manager and a project implementation team
consisting of between one (1) and four (4) people to assist the Redflex Project
Manager;
1.2. Request current "as -built" engineering drawings (electronic if available) for the
Designated Intersection Approaches (the "Drawings") from the Customer;
1.3. Develop and submit to the Customer for approval construction and installation
specifications for the Designated Intersection Approaches, including but not
limited to specifications for all vehicle detection system and electrical
connections and required traffic control plans as required; and
1.4. Seek approval from the relevant Governmental Authorities having authority or
jurisdiction over the construction and installation specifications for the
Designated Intersection Approaches (collectively, the "Approvals"), which will
include compliance with City permit applications.
1.5. Finalize the acquisition of the Approvals;
21
1.6. Submit to the Customer a public awareness strategy for review and approval, the
strategy shall include media and educational materials (the "Awareness
Strategy");
1.7. Develop the Redlight Violation Criteria in consultation with the Customer;
1.8. Develop the Enforcement Documentation for approval by the Customer, which
approval shall not be unreasonably withheld;
1.9. Complete the installation and testing of all necessary Equipment, including
hardware and software, at the Designated Intersection Approaches (under the
supervision of the Customer);
1.10. Cause an electrical sub -contractor to complete all reasonably necessary
electrical work at the Designated Intersection Approaches in accordance with
Customer approved "Construction and Installation Documents" as described in
section 1.3 above, including but not limited to the installation of all related
Equipment and other detection sensors, poles, cabling, telecommunications
equipment, wiring, and required traffic control, which all work shall be
performed in compliance with all applicable local, state and federal laws and
regulations and be done under the supervision of the Customer;
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 all necessary required and program related materials and
documentation in a timely manner;
1.14. Issue citation notices for Authorized Violations;
1.15. Redflex shall provide all necessary and required program and technical
training onsite within the City of Auburn for (i) up to fifteen (15) personnel of
the Customer, including but not limited to the persons who Customer shall
appoint as Authorized Officers and other persons involved in the administration
of the Redlight Photo Enforcement Program, (ii) for at least sixteen (16) hours in
the aggregate, (iii) regarding the operation of the Redflex System and the
Redlight Photo Enforcement Program, which training shall include training with
respect to the Redflex System and its operations, strategies for presenting
Violations Data in court and judicial proceedings and a review of the
Enforcement Documentation, (iv) additional training will be provided to the
Customer upon request, at no additional cost to the Customer and (v) annually,
Redflex will work with the City and provide arrangements for the City's program
director visit Redflex North American headquarters for operational audit
purposes;
1.16. Interact with court and judicial personnel to address issues regarding the
implementation of the Redflex System, the development of a subpoena
processing timeline that will permit the offering of Violations Data in court and
judicial proceedings, and coordination between Redflex, the Customer and
juvenile court personnel; and
22
1.17. Provide reasonable public relations resources and media materials, in both
printed and video/multimedia formats, to the Customer in the event that the
Customer elects to conduct a public launch of the Photo Enforcement Program.
1.18. Citation processing and issuance of citations, including re -issuance of
citations as directed by the Customer
1.19. Assist the Customer in assuring that the customer's website is able to be
linked to the Redflex website
1.20. Ensure that all correspondence, citations or notices sent to violators by
Redflex shall include a City of Auburn return address and have a non-specific
First -Class Mail U.S Postage Paid postmark;
2. CUSTOMER OBLIGATIONS. The Customer shall do or cause to be done each of
the following (in each case, unless otherwise stated below, at Customer's sole
expense):
2.1.1. Appoint the Police Project Manager;
2.1.2. Provide Redflex with the most current available Drawings for the
Designated Intersection Approaches;
2.1.3. Notify Redflex of any known specific requirements relating to the
construction and installation of the Designated Intersection Approaches or
the implementation of the Photo Enforcement Program;
2.1.4. Provide assistance to Redflex in obtaining access to the records data of the
Department of Licensing or other agency in Redflex's capacity as an
independent contractor to the Customer; and
2.1.5. Assist Redflex in seeking the necessary permit approvals
2.1.6. Provide reasonable access to the Customer's properties and facilities in
order to permit Redflex to install and test the functionality of the Designated
Intersection Approaches and the Redlight Photo Enforcement Program;
2.1.7. Provide reasonable access to the personnel of the Customer and reasonable
information about the specific operational requirements of such personnel
for the purposes of performing training;
2.1.8. Seek approval or amendment of Awareness Strategy and provide written
notice to Redflex with respect to the quantity of media and program
materials (the "Materials") that the Customer will require in order to
implement the Awareness Strategy during the period commencing on the
date on which Redflex begins the installation of any of the Designated
Intersection Approaches and ending one (1) month after the Installation
Date;
2.1.9. Assist Redflex in developing the Violation Criteria; and
2.1.10. Seek approval of the Enforcement Documentation.
2.1.11. Provide facilities for on-site user training
23
Timeframe for Installation: Mobile Photo Sneed Svstem Component (Optional
Redflex shall provide the Customer provide a fully equipped vehicle for mobile school
zone photo speed enforcement.
Redflex shall use reasonable commercial efforts to acquire and configure the vehicle
within the first sixty (60) days subsequent to providing in writing a formal Notice to
Proceed. The Customer acknowledges that the estimated timeframe for acquisition,
equipping and delivery of the vehicle are subject to conditions beyond the control of
Redflex and are not guaranteed.
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. Supply a fully equipped vehicle for mobile photo speed enforcement.
1.2. Appoint the Redflex Project Manager and a project implementation team
consisting of between one (1) and four (4) people to assist the Redflex Project
Manager;
1.3. Submit to the Customer a public awareness strategy for review and approval, the
strategy shall include media and educational materials (the "Awareness
Strategy");
1.4. Develop the Speed Violation Criteria in consultation with the Customer;
1.5. Develop the Enforcement Documentation for approval by the Customer, which
approval shall not be unreasonably withheld;
1.6. Complete the installation and testing of all necessary Equipment, including
hardware and software, in the Designated Vehicle
1.7. Install and test the functionality of the Designated Vehicle with the Redflex
System and establish fully operational Violation processing capability with the
Redflex System;
1.8. Deliver the all necessary required and program related materials and
documentation in a timely manner;
1.9. Issue citation notices for Authorized Violations;
1.10. Redflex shall provide all necessary and required program and technical
training onsite within the City of Auburn for (i) up to fifteen (15) personnel of
the Customer, including but not limited to the persons who Customer shall
appoint as Authorized Officers and other persons involved in the administration
of the Photo Speed Enforcement Program, (ii) for at least sixteen (16) hours in
the aggregate, (iii) regarding the operation of the Redflex System and the Photo
Speed Enforcement Program, which training shall include training with respect to
the Redflex System and its operations, strategies for presenting Violations Data
in court and judicial proceedings and a review of the Enforcement
Documentation, (iv) additional training will be provided to the Customer upon
request, at no additional cost to the Customer and (v) annually, Redflex will work
with the City and provide arrangements for the City's program director visit
Redflex North American headquarters for operational audit purposes ;
24
1.11. Interact with court and judicial personnel to address issues regarding the
implementation of the Redflex System, the development of a subpoena
processing timeline that will permit the offering of Violations Data in court and
judicial proceedings, and coordination between Redflex, the Customer and
juvenile court personnel; and
1.12. Provide reasonable public relations resources and media materials, in both
printed and video/multimedia formats, to the Customer in the event that the
Customer elects to conduct a public launch of the Photo Speed Enforcement
Program.
1.13. Citation processing and issuance of citations, including re -issuance of
citations as directed by the Customer
1.14. Assist the Customer in assuring that the customer's website is able to be
linked to the Redflex website
1.15. Ensure that all correspondence, citations or notices sent to violators by
Redflex shall include a City of Auburn return address and have a non-specific
First -Class Mail U.S Postage Paid postmark;
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. Provide resources to deploy the vehicle at a minimum of five (5) hours per day.
2.2. Appoint the Police Project Manager;
2.3. Provide assistance to Redflex in obtaining access to the records data of the
Department of Licensing or other agency in Redflex's capacity as an independent
contractor to the Customer; and
2.4. 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;
2.5. 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
2.6. Assist Redflex in developing the Violation Criteria; and
2.7. Seek approval of the Enforcement Documentation.
2.8. Provide facilities for on-site user training
25
Fixed Speed School Zone (Optional)
Redflex shall provide the Customer provide a fully equipped vehicle for mobile school
zone photo speed enforcement.
Redflex shall use reasonable commercial efforts to acquire and configure the vehicle
within the first sixty (60) days subsequent to providing in writing a formal Notice to
Proceed. The Customer acknowledges that the estimated timeframe for acquisition,
equipping and delivery of the vehicle are subject to conditions beyond the control of
Redflex and are not guaranteed.
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):
I.I. Appoint the Redflex Project Manager and a project implementation team
consisting of between one (1) and four (4) people to assist the Redflex Project
Manager;
1.2. Request engineering drawings (electronic if available) for the Designated Streets
(the "Drawings") from the Customer;
1.3. Develop and submit to the Customer for approval construction and installation
specifications for the Designated School Zones, including but not limited to
specifications for all vehicle detection system and electrical connections and
required traffic control plans 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 School Zones (collectively, the "Approvals"), which will include
compliance with City permit applications.
1.5. Finalize the acquisition of the Approvals;
1.6. Submit to the Customer a public awareness strategy for review and approval, the
strategy shall include media and educational materials (the "Awareness
Strategy");
1.7. Develop the Speed 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, in the Designated Vehicle
1.10. Install and test the functionality of the Designated Vehicle with the
Redflex System and establish fully operational Violation processing capability
with the Redflex System;
1.11. Deliver the all necessary required and program related materials and
documentation in a timely manner;
1.12. Issue citation notices for Authorized Violations;
1.13. Redflex shall provide all necessary and required program and technical
training onsite within the City of Auburn for (i) up to fifteen (15) personnel of
the Customer, including but not limited to the persons who Customer shall
appoint as Authorized Officers and other persons involved in the administration
26
of the Photo Speed Enforcement Program, (ii) for at least sixteen (16) hours in
the aggregate, (iii) regarding the operation of the Redflex System and the Photo
Speed Enforcement Program, which training shall include training with respect to
the Redflex System and its operations, strategies for presenting Violations Data
in court and judicial proceedings and a review of the Enforcement
Documentation, (iv) additional training will be provided to the Customer upon
request, at no additional cost to the Customer and (v) annually, Redflex will work
with the City and provide arrangements for the City's program director visit
Redflex North American headquarters for operational audit purposes ;
1.14. Interact with court and judicial personnel to address issues regarding the
implementation of the Redflex System, the development of a subpoena
processing timeline that will permit the offering of Violations Data in court and
judicial proceedings, and coordination between Redflex, the Customer and
juvenile court personnel; and
1.15. Provide reasonable public relations resources and media materials, in both
printed and video/multimedia formats, to the Customer in the event that the
Customer elects to conduct a public launch of the Photo Speed Enforcement
Program.
1.16. Citation processing and issuance of citations, including re -issuance of
citations as directed by the Customer
1.17. Assist the Customer in assuring that the customer's website is able to be
linked to the Redflex website
1.18. Ensure that all correspondence, citations or notices sent to violators by
Redflex shall include a City of Auburn return address and have a non-specific
First -Class Mail U.S Postage Paid postmark;
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. Appoint the Police Project Manager;
2.2. Provide assistance to Redflex in obtaining access to the records data of the
Department of Licensing or other agency in Redflex's capacity as an independent
contractor to the Customer; and
2.3. Provide Redflex with the most current available Drawings for the Designated
School Zones;
2.4, Notify Redflex of any known specific requirements relating to the construction
and installation of the Designated School Zones or the implementation of the
Photo Enforcement Program;
2.5. Provide assistance to Redflex in obtaining access to the records data of the
Department of Licensing or other agency in Redflex's capacity as an independent
contractor to the Customer; and
2.6. Assist Redflex in seeking the necessary permit approvals
2.7. Provide reasonable access to the personnel of the Customer and reasonable
information about the specific operational requirements of such personnel for the
purposes of performing training;
27
2.8. Seek approval or amendment of Awareness Strategy and provide written notice
to Redflex with respect to the quantity of media and program materials (the
"Materials") that the Customer will require in order to implement the Awareness
Strategy
2.9. Assist Redflex in developing the Violation Criteria; and
2.10. Seek approval of the Enforcement Documentation.
2.11. Provide facilities for on-site user training
28
EXHIBIT "C"
Maintenance
1. All repair, maintenance and/or replacement of Photo Enforcement systems and
related equipment will be the sole responsibility of Redflex, including but not limited
to maintaining the casings of the cameras included in the Redflex System and all
other Equipment in reasonably clean and graffiti -free condition.
2. Redflex shall not open the Traffic Signal Controller Boxes without a representative of
the Customer's Traffic Engineer present.
3. The provision of all necessary communication, broadband and telephone services to
the Designated Intersection Approaches will be the sole responsibility of the Redflex
4. The provision of all necessary electrical services to the Designated Intersection
Approaches will be the responsibility of the Customer, if available, if electrical
services are not available, the cost will borne by Redflex.
5. In the event that images of a quality suitable for the Authorized Officer to identify
Violations cannot be reasonably obtained without the use of flash units, Redflex shall
provide and install such flash units.
6. The Redflex Project Manager (or a reasonable alternate) shall be available to the
Police Project Manager each day, on a reasonable best efforts basis.
29
EXHIBIT "D"
COMPENSATION & PRICING
Fixed Photo Red Light System
Commencing on the installation date, for each Designated Intersection Approach,
Customer shall be obligated to pay Redflex a fixed fee of $4,870 per[R1 month for
each Designated Intersection Approach ("Fixed Fee") as full remuneration for performing
all of the services contemplated in this Agreement.
Mobile Photo Speed System Component (Optional)
Commencing on the deployment date, for each Mobile Speed Unit, Customer shall be
obligated to pay Redflex a fixed fee as outlined in the Pricing Table below ("Fixed Fee")
as full remuneration for performing all of the services contemplated in this Agreement.
Tier
Fixed Fee Per Month
Volume
1
$4,870
Up to 100 Paid Citations
2
$5,870
101-160 Paid Citations
3
$6,870
161+ Paid Citations
Fixed Speed School Zone (Optional)
Commencing on the installation date, for each Designated School Zone, Customer shall
be obligated to pay Redflex a fixed fee as outlined in the Pricing Table below ("Fixed
Fee") as full remuneration for performing all of the services contemplated in this
Agreement.
Tier
Fixed Fee Per Month
Volume
1
$4,870
Up to 100 Paid Citations
2
$5,870
101-160 Paid Citations
3
$6,870
161+ Paid Citations
The fees paid to Redflex Traffic Systems under this contract are for a full turnkey
program, inclusive of all hardware, software and support services required to
implement and maintain a functional photo enforcement program. The hardware,
software and support services shall include but are not limited to a program and
process by which the monitoring, identification and enforcement of Violations is
facilitated by the use of certain equipment, applications and back office processes
30
of Redflex, including but not limited to cameras, flashes, central processing units,
signal controller interfaces and detectors (whether loop, radar or video loop) which,
collectively, are capable of measuring Violations and recording such Violation data
in the form of photographic images of motor vehicles. Services shall also include
but are not limited to Training Services, Citation Processing, Expert Witness, and
System Maintenance.
Cost Neutrality
Notwithstanding the Fixed Fee provisions provided herein to the contrary, Redflex
assures the Customer that the programs provided hereby shall be cost neutral to
Customer. The maximum compensation that Customer shall be obligated to pay to
Redflex each month is the Fixed Fee or the gross receipts received by the
Customer, whichever is less. The Customer agrees to pay Redflex within thirty
(30) days after the invoice is received. City shall be obligated to pay the cumulative
balance invoiced by Redflex, in accordance with standard terms, to the extent of
gross receipts to the city from automated violations. In the event that a balance
remains unpaid due to a deficit in gross receipts compared to invoiced amounts,
City will provide to Redflex with each monthly payment, an accounting of such
gross receipts supporting the amount withheld.
In the event that the contract ends or is terminated and an invoiced balance is still
owed to Redflex, all subsequent receipts from automated red light violations for a
period of up to 12 months from date of termination will be applied to such balance
and paid to Redflex up to the amount of said balance.
BUSINESS ASSUMPTIONS FOR ALL PRICING OPTIONS:
I. Redflex construction will be able to utilize existing conduit for installation where
space is available.
2. Customer agrees to pay Redflex within forty-five (45) days after the invoice is
received. A monthly late fee of 1% of the unpaid balance is payable for amounts
remaining unpaid 60 days from date of invoice.
3. Each year the pricing will increase by the CPI. CPI will be derived from the
publication of the U.S. Department of Labor Consumer Price Index for U.S. City
average.
4. Redflex will collect all payments on Citations and will deposit all payments into a
lockbox account operated by an FDIC member bank and designated exclusively for
the City (the "Lockbox Account'). The City shall have controlled access to the
Lockbox Account. Redflex shall provide a full accounting to the City on a monthly
basis in accordance with the specifications set forth in the Contract Documents.
31
Redflex will offer the following payment methods:
5.1. By Mail: When paying a Citation by mail, individuals will be asked to
enclose the Citation and a personal check, money order or cashier's check for the
penalty amount indicated on the front of the Citation. Checks will be made
payable as directed by the City and will be mailed to a specified address.
5.2. Walk-in Payments: Walk-in payments by personal check, money order,
cashier's check or credit card will be accepted at City facilities (Le Court). If the
City receives a payment for a Citation, the City will forward the payment to
Redflex's lockbox institution.
5.3. By Phone: Credit card payments will be accepted over the telephone by
Redflex.
5.4. Pay -by -Web: Credit card payments will be accepted by Redflex via the Internet.
32
Exhibit "E"
Additional Rights and Obligations
Redflex and the Customer shall respectively have the additional rights and obligations set
forth below:
1. Redflex shall be solely responsible for installing Signage, the size, description,
location and nature of which shall be as approved by the Customer, which signage
shall give notice of the Redlight Photo Enforcement Program and the Mobile Speed
Enforcement Program. The Signage shall be installed at intersections and gateways
to the Customer city, as determined by the Customer. The number of signs shall
include not less than ten (10) intersection signs and twenty (20) gateway signs. The
Redflex shall be solely responsible for the fabrication of any signage, notices or other
postings required pursuant to any law, rule or regulation of any Governmental
Authority ("Signage"), including but not limited to the Vehicle Code, and shall assist
in determining the placement of such Signage.
2. The Redflex Project Manager and the Police Project Manager shall meet on a weekly
basis during the period commencing as of the date of execution hereof and ending on
the Installation Date, and on a monthly basis for the remainder of the Term, at such
times and places as the Redflex Manager and the Customer Manager shall mutually
agree.
3. The Customer shall not access the Redflex System or use the Redlight Photo
Enforcement Program in any manner other than prescribed by law and which restricts
or inhibits any other Person from using the Redflex System or the Redflex Photo
Enforcement Program with respect to any Intersection Approaches constructed or
maintained by Redflex for such Person, or which could damage, disable, impair or
overburden the Redflex System or the Redflex Photo Enforcement Program, and the
Customer shall not attempt to gain unauthorized access to (i) any account of any other
Person, (ii) any computer systems or networks connected to the Redflex System, or
(iii) any materials or information not intentionally made available by Redflex to the
Customer by means of hacking, password mining or any other method whatsoever,
nor shall the Customer cause any other Person to do any of the foregoing.
4. The Customer shall maintain the confidentiality of any username, password or other
process or device for accessing the Redflex System or using the Redlight Photo
Enforcement Program.
5. Each of Redflex and the Customer shall advise each other in writing with respect to
any applicable rules or regulations governing the conduct of the other on or with
respect to the property of such other party, including but not limited to rules and
regulations relating to the safeguarding of confidential or proprietary information, and
when so advised, each of Redflex and the Customer shall obey any and all such rules
and regulations.
6. 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 by the Customer, or any of its employees, contractors or agents,
save normal wear and tear.
33
Insurance
1. During the Term, Redflex shall procure and maintain and Redflex's sole cost and
expense the following insurance coverage with respect to claims for injuries to
persons or damages to property which may arise from or in connection with the
performance of work or services pursuant to this Agreement by Redflex, and each
of Redflex's subcontractors, agents, representatives and employees:
2. Commercial General Liability Insurance. Commercial General Liability
Insurance with coverage of not less than Two Million Dollars ($2,000,000)
combined single limit per occurrence for bodily injury and property damage;
3. Commercial Automobile Liability Insurance. Commercial Automobile Liability
Insurance with coverage of not less than One Million Dollars ($1,000,000)
combined single limit per occurrence for bodily injury or property damage,
including but not limited to coverage for all automobiles owned by Redflex, hired
by Redflex, and owned by third parties;
4. Professional Liability (Errors and Omissions) Insurance. Redflex will use its
commercial best efforts to procure and maintain Professional Liability (Errors and
Omissions) Insurance with coverage of not less than One Million Dollars
($1,000,000) per occurrence and in the aggregate.
5. Workers' Compensation and Employer's Liability Insurance. Workers'
Compensation Insurance with coverage of not less than the limits required by the
Labor Code of the State of (insert name), Employer's Liability Insurance with
coverage of not less than One Million Dollars ($1,000,000) per occurrence.
6. With respect to the insurance described in the foregoing Section of this Exhibit E,
any deductibles or self-insured retentions must be declared to and approved by the
Customer, and any changes to such deductibles or self-insured retentions during
the Term must be approved in advance in writing by the Customer.
7. With respect to the Commercial General Liability Insurance the following
additional provisions shall apply:
8. The Customer Parties shall be covered as additional insureds with respect to any
liability arising from any act or omission of any Redflex Parties on the premises
upon which any such Redflex Parties may perform services pursuant to this
Agreement, and such coverage shall contain no special limitations on the scope of
protection afforded to such additional insureds.
9. The insurance coverage procured by Redflex and described above shall be the
primary insurance with respect to the Customer Parties in connection with this
Agreement, and any insurance or self-insurance maintained by any of the
Customer Parties shall be in excess, and not in contribution to, such insurance.
10. Any failure to comply with the reporting provisions of the various insurance
policies described above shall not affect the coverage provided to the Customer
Parties, and such insurance policies shall state that such insurance coverage shall
apply separately with respect to each additional insured against whom any claim
is made or suit is brought, except with respect to the limits set forth in such
insurance policies.
11. With respect to the insurance described in the foregoing Section of this Exhibit E,
each such insurance policy shall be endorsed to state that the coverage provided
thereby shall not be cancelled except after thirty (30) calendar days' prior written
34
notice to the Customer. If any of the Redflex Parties are notified by any insurer
that any insurance coverage will be cancelled, Redflex shall immediately provide
written notice thereof to the Customer and shall take all necessary actions to
correct such cancellation in coverage limits, and shall provide written notice to
the Customer of the date and nature of such correction. If Redflex, for any
reason, fails to maintain the insurance coverage required pursuant to this
Agreement, such failure shall be deemed a material breach of this Agreement, and
the Customer shall have the right, but not the obligation and exercisable in its sole
discretion, to either (i) terminate this Agreement and seek damages from Redflex
for such breach, or (ii) purchase such required insurance, and without further
notice to Redflex, deduct from any amounts due to Redflex pursuant to this
Agreement, any premium costs advance by the Customer for such insurance. If
the premium costs advanced by the Customer for such insurance exceed any
amounts due to Redflex pursuant to this Agreement, Redflex shall promptly remit
such excess amount to the Customer upon receipt of written notice thereof.
12. Redflex shall provide certificates of insurance and copies of such insurance
policies evidencing the insurance required pursuant to the terms of this
Agreement, which certificates and copies of insurance policies 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.
35
Exhibit F
FORM OF ACKNOWLEDGMENT AND CONSENT
This Acknowledgement and Consent, dated as of , 2005, is entered into by and
between the City of Auburn (the "City") and Redflex Traffic Systems, Inc., ("Redflex"),
with reference to the Agreement between the city of Auburn
and Redflex Traffic Systems, inc. for Photo red light enforcement program, dated as of
by and between the City and Redflex (the "Agreement").
1. Redflex has entered into a Credit Agreement, dated as of August 3, 2003
(the "Harris-Redflex Credit Agreement"), with Harris Trust and Savings Bank (the
"Bank"), pursuant to which the Bank has provided certain working capital credit facilities
to Redflex. Such credit facilities will provide Redflex the working capital that it needs to
perform its obligations to the City under the Agreement.
2. Pursuant to the Harris-Redflex Credit Agreement, Redflex has granted
Harris a security interest in all of Redflex's personal property as collateral for the
payment and performance of Redflex's obligations to the Bank under the Harris-Redflex
Credit Agreement. Such security interest applies to and covers all of Redflex's contract
rights, including, without limitation, all of Redflex's rights and interests under the
Agreement.
3. Redflex will not, by virtue of the Harris-Redflex Credit Agreement, be
relieved of any liability or obligation under the Agreement, and the Bank has not
assumed any liability or obligation of Redflex under the Agreement.
4. The City hereby acknowledges notice of, and consents to, Redflex's grant
of such security interest in favor of the Bank in all of Redflex's rights and interests under
the Agreement pursuant to the Harris-Redflex Credit Agreement.
5. The City further acknowledges and agrees that this Acknowledgement and
Consent shall be binding upon the City and shall inure to the benefit of the successors and
assigns of the Bank and to any replacement lender, which refinances Redflex's
obligations to the Bank under the Harris-Redflex Credit Agreement.
IN WITNESS WHEREOF, the City and Redflex have caused this
Acknowledgement and Consent to be executed by their respective duly authorized and
elected officers as of the date first above written.
[Name of City]
Name:
Title:
Mira
REDFLEX TRAFFIC SYSTEMS, INC.,
a Delaware Corporation
By:_
Name:
Title:
36