Item 9CCity of Southlake, Texas
MEMORANDUM
August 9, 2007
TO: Shana Yelverton, City Manager
FROM: Jim C. Blagg, Assistant City Manager/Director of Public Safety
SUBJECT: Authorize the City Manager to enter into a contract for the installation and
operation of red light cameras with Redflex Traffic Systems, Inc.
Action Requested: Authorize the City Manager to enter into a contract for the installation and
operation of red light cameras with Redflex.
Background
Information: In the most recent session of the State Legislature, the State passed SB 1119
which severally restricts cities related to the installation and operation of red
light cameras. After September 1, 2007 a city cannot enter into a revenue
sharing agreement with a firm to install and operate these cameras. The City
would be limited to a contract that paid the firm a fee for the installation and
operation of the cameras regardless of whether the City actually received any
revenues from citations or not. SB1119 "grandfather's" revenue sharing
contracts that are in place prior to September 1, 2007.
This contract does not obligate the City to install red light cameras, but
preserves our right to operate them, should the City make that decision, under a
revenue sharing agreement. Under the contract, City Police Officers would
review each recorded incident and the Police would make the decision whether
or not a violation had occurred. Redflex would then send the notification to the
violator, along with a web link so that the individual could view the tape of the
incident, and provide for payment on line.
Financial
Considerations: This contract calls for a revenue sharing agreement, that is, for each citation
issued the City would pay a portion of that citation to Redflex. It is unknown at
his time how much revenue that would produce for the City.
Financial Impact: Financial impact would be an increase in fine revenue. The exact amount is
currently unknown.
Citizen Input/
Board Review: N/A
Legal Review: The contract has been reviewed by TOASE.
Alternatives: The City could choose to not enter into this agreement.
The City could make a decision related to red light cameras later.
Supporting
Documents: Contract with Redflex Traffic Systems, Inc.
Staff
Recommendation: Authorize the City Manager to enter into a contract for the installation and
operation of red light cameras with Redflex Traffic Systems, Inc.
AGREEMENT BETWEEN THE CITY OF SOUTHLAKE, TEXAS
AND REDFLEX TRAFFIC SYSTEMS, INC. FOR
RED LIGHT PHOTO ENFORCEMENT PROGRAM
This Agreement (this "Agreement") is made as of this _ day of , 2007 by and between Redflex Traffic Systems,
Inc. with offices at 15020 N. 74"' Street, Scottsdale, Arizona 85260 ("Redflex"), and The City of Southlake, Texas, a municipal
corporation, with offices at 1400 Main St., Suite 460, Southlake, Texas, 76092 (the "Customer"). For convenience, Redflex and
Customer may sometimes be referred to hereinafter collectively as "parties" and individually as a "parry."
RECITALS
WHEREAS, Redflex has exclusive knowledge, possession and ownership of certain equipment, licenses, applications,
and Notice of Violation processes related to digital photo red light enforcement systems; and
WHEREAS, the Customer desires to engage the services of Redflex to provide certain equipment, processes and back
office services so that sworn police officers of the Customer are able to monitor, identify and enforce red light running violations
as prescribed under Ordinance No ("Ordinance"), providing for Automated Traffic Signal Enforcement (herein
referred as the "Red Light Photo Enforcement Program"); 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 of Southlake streets that will be monitored pursuant to the terms of this Agreement.
NOW THEREFORE, in consideration of the mutual covenants contained herein, and for other valuable consideration
received, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
AGREEMENT
1. DEFINITIONS. In this Agreement, the words and phrases below shall have the following meanings:
1.1. "Authorized Officer" means the Police Project Manager or such other individual(s) as the Customer shall designate to
review Potential Violations and to authorize the Issuance of Notice of Violations in respect thereto, and in any event, a
sworn police officer of the City of Southlake, Texas, appointed by the Chief of Police.
1.2. "Authorized Violation" means each Potential Violation in the Violation Data for which authorization to issue a Notice of
Violation in the form of an Electronic Signature is given by the Authorized Officer by using the Redflex System.
1.3. "Notice of Violation" means the notice of a Violation, which is mailed or otherwise delivered by Redflex to the violator
on the appropriate Enforcement Documentation in respect of each Authorized Violation.
1.4. "Confidential or Private Information" means, with respect to any Person, any information, matter or thing of a secret,
confidential or private nature, whether or not so labeled, which is connected with such Person's business or methods of
operation or concerning any of such Person's suppliers, licensors, licensees, customers or others with whom such Person
has a business relationship, and 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 parry 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 upon from time to time.
1.6. "Electronic Signature" means the method through which the Authorized Officer indicates his or her approval of the
issuance of a Notice of Violation in respect of a Potential Violation using the Redflex System.
1.7. "Enforcement Documentation" means the necessary and appropriate documentation related to the Photo Red Light
Enforcement Program, including but not limited to warning letters, violation notices (using City of Southlake
specifications), a numbering sequence for use on all Notice of Violation, instructions to accompany each issued Notice
of Violation (including in such instructions a description of basic adjudication procedures, payment options and
information regarding the viewing of images and data collected by the Redflex System), chain of custody records,
criteria regarding operational policies for processing Notices of Violation (including with respect to coordinating with
the Department of Motor Vehicles), and technical support documentation for adjudication personnel.
1.8. "Equipment" means any and all cameras, sensors, equipment, components, products, software and other tangible and
intangible property relating to the Redflex Photo Red Light System(s), including but not limited to all camera systems,
housings, radar units, severs and poles.
1.9. "`Fine" means a monetary sum in the form of a civil penalty assessed for each Notice of Violation.
1.10. "Governmental Authority" means any domestic or foreign government, governmental authority, court, tribunal, agency
or other regulatory, administrative or judicial agency, commission or organization, and any subdivision, branch or
department of any of the foregoing.
1.11. "Installation Date of the Photo Red Light Program am" 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 Red Light Photo Enforcement Program.
1.12. "Intellectual Property" means, with respect to any Person, any and all now known or hereafter known tangible and
intangible (a) rights associated with works of authorship throughout the world, including but not limited to copyrights,
moral rights and mask -works, (b) trademark and trade name rights and similar rights, (c) trade secrets rights, (d) patents,
designs, algorithms and other industrial property rights, (e) all other intellectual and industrial property rights (of every
kind and nature throughout the universe and however designated), whether arising by operation of law, contract, license,
or otherwise, and (f) all registrations, initial applications, renewals, extensions, continuations, divisions or reissues hereof
now or hereafter in force (including any rights in any of the foregoing), of such Person.
1.13. "Intersection Approach" means a conduit of travel with up to four (4) contiguous lanes from the curb (e.g., northbound,
southbound, eastbound or westbound) on which at least one (1) system has been installed by Redflex for the purposes of
facilitating Red Light Photo Enforcement by the Customer.
1.14. "Operational Period" means the period of time during the Term, commencing on the Installation Date, during which the
Photo Red Light Enforcement Program is functional in order to permit the identification and prosecution of Violations at
the Designated City Streets and Intersection Approaches by a sworn police officer of the Customer and the issuance of
Notices of Violation for such approved Violations using the Redflex System.
1.15. "Person" means a natural individual, company, Governmental Authority, partnership, firm, corporation, legal entity or
other business association.
1.16. "Police Project Manager" means the project manager appointed by the Customer in accordance with this Agreement,
who shall be a sworn police officer and shall be responsible for overseeing the installation of the Intersection Approaches
and the implementation of the Red Light Photo Enforcement Program, and who shall have the power and authority to
make management decisions relating to the Customer's obligations pursuant to this Agreement, including, but not
limited to, change order authorizations, subject to any limitations set forth in the Customer's charter or other
organizational documents of the Customer or by the city council of the Customer.
1.17. "Potential Violation" means, with respect to any motor vehicle passing through a Designated City of Southlake Street
and/or Intersection Approach, the data collected by the Redflex System with respect to such motor vehicle, which data
shall be processed by the Redflex System for the purposes of allowing the Authorized Officer to review such data and
determine whether a Red Light Violation has occurred.
1.18. " Proprietaroperty" means, with respect to any Person, any written or tangible property owned or used by such Person
in connection with such Person's business, whether or not such property is copyrightable or also qualifies as Confidential
Information, including without limitation products, samples, equipment, files, lists, books, notebooks, records,
documents, memoranda, reports, patterns, schematics, compilations, designs, drawings, data, test results, contracts,
agreements, literature, correspondence, spread sheets, computer programs and software, computer print outs, other
written and graphic records and the like, whether originals, copies, duplicates or summaries thereof, affecting or relating
to the business of such Person, financial statements, budgets, projections and invoices.
1.19. "Redflex Marks" means all trademarks registered in the name of Redflex or any of its affiliates, such other trademarks as
are used by Redflex or any of its affiliates on or in relation to Photo Red Light Enforcement at any time during the Term
this Agreement, service marks, trade names, logos, brands and other marks owned by Redflex, and all modifications or
adaptations of any of the foregoing.
1.20. "Redflex Project Manager" means the project manager appointed by Redflex in accordance with this Agreement, or such
other 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 Red Light Photo Enforcement Program, and who shall have the power and authority to make
management decisions relating to Redflex's obligations pursuant to this Agreement, including but not limited to change -
order authorizations.
1.21. "Redflex Photo Red Light System" means, collectively, the SmartCamTM System, the SmartOpsTM System, the Red
Light Photo Enforcement Program, and all of the other equipment, applications, back office processes and digital red
light traffic enforcement cameras, sensors, components, products, software and other tangible and intangible property
relating thereto.
1.22. "Red Light Photo Enforcement Prog am' means the process by which the monitoring, identification and enforcement of
Violations is facilitated by the use of certain equipment, applications and back office processes of Redflex, including but
not limited to cameras, flashes, central processing units, signal controller interfaces and detectors (whether loop, radar or
video loop) which, collectively, are capable of measuring Violations and recording such Violation data in the form of
photographic images of motor vehicles.
1.23. "Photo Red Light 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 duration of
time that a traffic light must remain red prior to a Violation being deemed to have occurred, and the location(s) in an
intersection which a motor vehicle must pass during a red light signal prior to being deemed to have committed a
Violation, all of which shall be in compliance with all applicable laws, rules and regulations of Governmental
Authorities.
1.24. " SmartCamTM System" means the proprietary digital red light photo enforcement system of Redflex relating to the Red
Light Photo Enforcement Program.
1.25. " SmartOpsTM System" means the proprietary back -office processes of Redflex relating to the Red Light Photo
Enforcement Program.
1.26. " SmartSceneTM System" means the proprietary digital video camera unit, hardware and software required for providing
supplemental violation data.
1.27. "Traffic Signal Controller Boxes" means the signal controller interface and detector, including but not limited to the
radar or video loop, as the case may be.
1.28. "Violation" means any traffic violation contrary to the terms of the Ordinance or any applicable rule, regulation or law of
any other Governmental Authority, including but not limited to operating a motor vehicle contrary to traffic signals, and
operating a motor vehicle without displaying a valid license plate or registration.
1.29. "Violations Data" means the images and other Violations data gathered by the Redflex System at the Designated City of
Southlake Streets and/or Intersection Approaches.
1.30. "Warning Period" means the period that only warning notices and not Notices of Violation shall be sent during the 30
day period commencing with the installation of a traffic -control signal monitoring device.
2. TERM. The term of this Agreement shall commence as of the date hereof and shall continue for a period of three (3) years
after the Installation Date (the "Initial Term"). The Customer shall have the right, but not the obligation, to extend the term of
this Agreement for up to three (3) additional consecutive and automatic one (1) year periods following the expiration of the
Initial Term (each, a "Renewal Term" and collectively with the Initial Term, the "Term"). The Customer may exercise the
right to extend the term of this Agreement for a Renewal Term by providing written notice to Redflex not less than thirty (30)
days prior to the last day of the Initial Term or the Renewal Term, as the case may be.
3. SERVICES. Redflex shall provide the Red Light Photo Enforcement Program to the Customer, in each case in accordance
with the terms and provisions set forth in this Agreement. This Agreement shall consist not only of the terms and conditions
set forth in this document but also the Redflex Traffic Systems USA Bid Proposal for Automated Traffic Signal Enforcement
System incorporated herein in its entirety (Exhibit "G"). In the event of a conflict in interpretation, the documents shall
control in the order listed above. These documents shall be referred to collectively as "Contract Documents."
3.1. INSTALLATION. With respect to the construction and installation of the Designated Intersection Approaches and the
installation of the Redflex System at such Designated Intersection Approaches, the Customer and Redflex shall have the
respective rights and obligations set forth on Exhibit `B" attached hereto.
3.2. MAINTENANCE. With respect to the maintenance of the Redflex System at the Designated Intersection Approaches
the Customer and Redflex shall have the respective rights and obligations set forth on Exhibit "C" attached hereto.
3.3. VIOLATION PROCESSING. During the Operational Period, Violations shall be processed as follo-,vs:
3.3.1. All Violations Data shall be stored on the Redflex System;
3.3.2. The Redflex System shall process Violations Data gathered from the Designated City of Southlake Streets and/or
Intersection Approaches into a format capable of review by the Authorized Officer via the Redflex System;
3.3.3. The Redflex System shall be accessible by the Authorized Officer through a virtual private network in encrypted
format by use of a confidential password on any computer equipped with a high-speed internet connection and a
web browser;
3.3.4. Redflex shall provide the Authorized Officer with access to the Redflex System for the purposes of reviewing
the pre-processed Violations Data within an average of four (4) days of the gathering of the Violation Data from the
applicable Designated City of Southlake Streets and/or Intersection Approaches
3.3.5. The Customer shall cause the Authorized Officer to review the Violations Data and to determine whether a
Notice of Violation shall be issued with respect to each Potential Violation captured within such Violation Data,
and transmit each such determination in the form of an Electronic Signature to Redflex using the software or other
applications or procedures provided by Redflex on the Redflex System for such purpose, and REDFLEX HEREBY
ACKNOWLEDGES AND AGREES THAT THE DECISION TO ISSUE A NOTICE OF VIOLATION SHALL
BE THE SOLE, UNILATERAL AND EXCLUSIVE DECISION OF THE AUTHORIZED OFFICER AND
SHALL BE MADE IN SUCH AUTHORIZED OFFICER'S SOLE DISCRETION (A "NOTICE OF VIOLATION
DECISION"), AND IN NO EVENT SHALL REDFLEX HAVE THE ABILITY OR AUTHORIZATION TO
MAKE A NOTICE OF VIOLATION DECISION,
3.3.6. With respect to each Authorized Violation, Redflex shall print and mail a Notice of Violation within two (2)
days after Redflex's receipt of such authorization; provided, however, during the Warning Period, warning
violation notices shall be issued in respect of all Authorized Violations;
3.3.7. Redflex shall provide a toll -free telephone number for the purposes of answering citizen enquiries.
3.3.8. Redflex shall permit the Authorized Officer to generate reports as needed using the Redflex Standard Report
System.
3.3.9. Upon Redflex's receipt of a written request from the Customer and in addition to the Standard Reports, Redflex
shall provide, without cost to the Customer, reports regarding the processing and issuance of Notices of Violation,
the maintenance and downtime records of the Designated Intersection Approaches and the functionality of the
Redflex System with respect thereto to the Customer in such format and for such periods as the Customer may
reasonably request; provided, however, Redflex shall not be obligated to provide in excess of six (6) such reports in
any given twelve (12) month period without reimbursement of actual cost from 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 Notices of Violation and the collection of fines, fees and other monies
in respect thereof in such format and for such periods as Redflex may reasonably request; provided, however, the
Customer shall not be obligated to provide in excess of six (6) such reports in any given twelve (12) month period
without reimbursement of actual cost from Redflex;
3.3.11. Upon Redflex's receipt of a written request from the Customer at least fourteen (14) calendar days in advance of
the adjudication proceeding, Redflex shall provide, at Redflex's sole expense, 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 three (3) month period following the Installation Date, Redflex shall provide such training to police
personnel as shall be reasonably necessary in order to allow such personnel to act as expert witnesses on behalf of
the Customer with respect to the Red Light Photo Enforcement Program.
3.4. PROSECUTION AND COLLECTION; COMPENSATION. The Customer shall diligently prosecute all contested
Notices of Violation before the hearing officer and any appeal to Customer's municipal court. Redflex shall diligently
prosecute the collection of all Fines, contested or uncontested. All payments will be collected and deposited into a
Customer specified account and will be in direct accordance with the Customer's guidelines. Redflex will employ a
collection service to collect delinquent payments. Redflex shall have the right to receive, and the Customer shall be
obligated to pay, the compensation set forth on Exhibit "D" attached hereto.
3.5. OTHER RIGHTS AND OBLIGATIONS. During the Term, in addition to all of the other rights and obligations set forth
in this Agreement, Redflex and the Customer shall have the respective rights and obligations set forth on Exhibit "E"
attached hereto.
3.6. CHANGE ORDERS. The Customer may from time to time request changes to the work required to be performed or the
addition of products or services to those required pursuant to the terms of this Agreement by providing written notice
thereof to Redflex, setting forth in reasonable detail the proposed 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 of Southlake Vehicles, or the addition of Intersection Approaches to be
covered by the terms of this Agreement, to the maximum extent applicable, the pricing terms set forth in Exhibit "D"
shall govern. Any failure of the parties to reach agreement with respect to any of the foregoing as a result of any
proposed changes shall not be deemed to be a breach of this Agreement, and any disagreement shall be resolved in
accordance with Section 10.
4. License; Reservation of Rights.
4.1. License. Subject to the terms and conditions of this Agreement, Redflex hereby grants the 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 Southlake, access and use the Redflex System for the
sole purpose of reviewing Potential Violations and authorizing the issuance of Notice of Violations pursuant to the terms
of this Agreement, and to print copies of any content posted on the Redflex System in connection therewith, (b) disclose
to the public (including outside of the City of Southlake that Redflex is providing services to the Customer in connection
with Red Light Photo 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 Red Light
Photo 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.
4.5. INFRINGEMENT. The Customer shall use its reasonable best efforts to give Redflex prompt notice of any activities or
threatened activities of any Person of which it becomes aware that infringes or violates the Redflex Marks or any of
Redflex's Intellectual Property or that constitute a misappropriation of trade secrets or act of unfair competition that
might dilute, damage or destroy any of the Redflex Marks or any other Intellectual Property of Redflex. Redflex shall
have the exclusive right, but not the obligation, to take action to enforce such rights and to make settlements with respect
thereto. In the event that Redflex commences any enforcement action under this Section 4.5, then the Customer shall
render to Redflex such reasonable cooperation and assistance as is reasonably requested by Redflex, and Redflex shall be
entitled to any damages or other monetary amount that might be awarded after deduction of actual costs; provided, that
Redflex shall reimburse the Customer for any reasonable costs incurred in providing such cooperation and assistance.
4.6. INFRINGING USE. The Customer shall give Redflex prompt written notice of any action or claim action or claim,
whether threatened or pending, against the Customer alleging that the Redflex Marks, or any other Intellectual Property
of Redflex, infringes or violates any patent, trademark, copyright, trade secret or other Intellectual Property of any other
Person, and the Customer shall render to Redflex such reasonable cooperation and assistance as is reasonably requested
by Redflex in the defense thereof; provided, that Redflex shall reimburse the Customer for any reasonable costs incurred
in providing such cooperation and assistance. If such a claim is made and Redflex determines, in the exercise of its sole
discretion, that an infringement may exist, Redflex shall have the right, 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. Author i . Redflex hereby warrants and represents that it has all right, power and authority to execute and
deliver this Agreement and perform its obligations hereunder.
5.1.2. Professional Services. Redflex hereby warrants and represents that any and all services provided by Redflex
pursuant to this Agreement shall be performed in a professional and workmanlike manner and, with respect to the
installation of the Redflex System, subject to applicable law, in compliance with all specifications provided to
Redflex by the Customer.
5.2. Customer Representations and Warranties.
5.2.1. Authority. The Customer hereby warrants and represents that it has all right, power and authority to execute and
deliver this Agreement and perform its obligations hereunder.
5.2.2. Professional Services. The Customer hereby warrants and represents that any and all services provided by the
Customer pursuant to this Agreement shall be performed in a professional and workmanlike manner.
5.3. LIMITED WARRANTIES. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, REDFLEX MAKES NO
WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO
THE REDFLEX SYSTEM OR ANY RELATED EQUIPMENT OR WITH RESPECT TO THE RESULTS OF THE
CUSTOMER'S USE OF ANY OF THE FOREGOING NOTWITHSTANDING ANYTHING TO THE CONTRARY
SET FORTH HEREIN, REDFLEX DOES NOT WARRANT THAT ANY OF THE DESIGNATED INTERSECTION
APPROACHES OR THE REDFLEX SYSTEM WILL OPERATE IN THE WAY THE CUSTOMER SELECTS FOR
USE, OR THAT THE OPERATION OR USE THEREOF WILL BE UNINTERRUPTED. THE CUSTOMER HEREBY
ACKNOWLEDGES THAT THE 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 the City of Southlake rules, or a state or federal statute or
judicial decision declares, that results from the Redflex System of photo red light enforcement are inadmissible in
evidence; or (iii) the other party commits any material breach of any of the provisions of this Agreement. In the event of
a termination due to Section 6.I(i) or 6.1(ii) above, Customer shall be relieved of any further obligations for payment to
Redflex other than as specified in Exhibit "D". Either party shall have the right to remedy the cause for termination (Sec
6.1) within forty-five (45) calendar days (or within such other time period as the Customer and Redflex shall mutually
agree, which agreement shall not be unreasonably withheld or delayed) after written notice from the non -causing party
setting forth in reasonable detail the events of the cause for termination.
6.2. The rights to terminate this Agreement given in this Section 6.1 shall be without prejudice to any other right or remedy
of either party in respect of the breach concerned (if any) or any other breach of this Agreement.
6.3. PROCEDURES UPON TERMINATION. The termination of this Agreement shall not relieve either party of any
liability that accrued prior to such termination. Except as set forth in Section 6.3, upon the termination of this
Agreement, all of the provisions of this Agreement shall terminate and:
6.3.1. Redflex shall (i) immediately cease to provide services, including but not limited to work in connection with the
construction or installation activities and services in connection with the Red Light Photo Enforcement Program,
(ii) promptly deliver to the Customer any and all Proprietary Property of the Customer provided to Redflex
pursuant to this Agreement, (iii) promptly deliver to the Customer a final report to the Customer regarding the
collection of data and the issuance of Notice of Violations in such format and for such periods as the Customer may
reasonably request, and which final report Redflex shall update or 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 Notice of Violations issued by Redflex
prior to the termination, and (v) provide such assistance as the Customer may reasonably request from time to time
in connection with prosecuting and enforcing Notice of Violations issued prior to the termination of this
Agreement.
6.3.2. The Customer shall (i) immediately cease using the Red Light Photo Enforcement Program, accessing the
Redflex System and using any other Intellectual Property of Redflex, (ii) promptly deliver to Redflex any and all
Proprietary Property of Redflex provided to the Customer pursuant to this Agreement, and (iii) promptly pay any
and all fees, charges and amounts properly owed by Customer to Redflex for work performed and Notice of
Violations issued by Redflex prior to the termination.
6.3.3. Unless the Customer and Redflex have agreed to enter into a new agreement relating to the Red Light Photo
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 of Southlake 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: (x) Sections 4.2 (Reservation of Rights), 5.1 (Redflex Representations and Warranties), 5.2 (Customer
Representations and Warranties), 5.3 (Limited Warranty), 7 (Confidentiality), 8 (Indemnification and Liability), 9
(Notices), 10 (Dispute Resolution), 11.1 (Assignment), 11.17 (Applicable Law), 11.16 (Injunctive Relief, Specific
Performance) and 11.18 (Jurisdiction and Venue), and (y) those provisions, and the rights and obligations therein, set
forth in this Agreement which either by their terms state, or evidence the intent of the parties, that the provisions survive
the expiration or termination of the Agreement, or must survive to give effect to the provisions of this Agreement.
7. CONFIDENTIALITY. During the term of this Agreement and for a period of three (3) years thereafter, neither party shall
disclose to any third person, or use for itself in any way for pecuniary gain, any Confidential Information learned from the
other party during the course of the negotiations for this Agreement or during the Term of this Agreement. Upon termination
of this Agreement, each party shall return to the other all tangible Confidential Information of such party. Each party shall
retain in confidence and not disclose to any third party any Confidential Information without the other party's express written
consent, except (a) to its employees who are reasonably required to have the Confidential Information, (b) to its agents,
representatives, attorneys and other professional advisors that have a need to know such Confidential Information, provided
that such parties undertake in writing (or are otherwise bound by rules of professional conduct) to keep such information
strictly confidential, and (c) pursuant to, and to the extent of, a request or order by any Governmental Authority, including
laws relating to public records.
8. Indemnification and 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 interest holders, managers, officers, directors, employees, agents, representatives and
successors, permitted assignees and each of their affiliates, and all persons acting by, through, under or in concert with
them, or any of them (individually a "Customer Party" and collectively, the "Customer Parties") against, and to protect,
save and keep harmless the Customer Parties from, and to pay on behalf of or reimburse the Customer Parties as and
when incurred for, any and all liabilities, obligations, losses, damages, penalties, demands, claims, actions, suits,
judgments, settlements, costs, expenses and disbursements (including reasonable attorneys', accountants' and expert
witnesses' fees) of whatever kind and nature (collectively, "Losses"), which may be imposed on or incurred by any
Customer Party arising out of or related to (a) any material misrepresentation, inaccuracy or breach of any covenant,
warranty or representation of Redflex contained in this Agreement, or (b) the willful misconduct of Redflex, its
employees or agents which result in death or bodily injury to any natural person (including third parties) or any damage
to any real or tangible personal property (including the personal property of third parties), except to the extent caused by
the willful misconduct of any Customer Party.
8.2. Indemnification by Customer. Subject to Section 8.3, the Customer, to the extent allowed by law and without waiving
any rights, defenses or immunities provided to it by its sovereign, official, or qualified immunity or under the Texas Tort
Claims Act, hereby agrees to defend and indemnify Redflex and its affiliates, shareholders or other interest holders,
managers, officers, directors, employees, agents, representatives and successors, permitted assignees and all persons
acting by, through, under or in concert with them, or any of them (individually a "Redflex Party" and collectively, the
"Redflex Parties") against, and to protect, save and keep harmless the Redflex Parties from, and to pay on behalf of or
reimburse the Redflex Parties as and when incurred for, any and all Losses which may be imposed on or incurred by any
Redflex Party arising out of or in any way related to (a) any material misrepresentation, inaccuracy or breach of any
covenant, warranty or representation of the Customer contained in this Agreement, or (b) the willful misconduct of the
Customer, its employees, contractors or agents which result in death or bodily injury to any natural person (including
third parties) or any damage to any real or tangible personal property (including the personal property of third parties),
except to the extent caused by the willful misconduct of any Redflex Party.
8.3. Indemnification Procedures. In the event any claim, action or demand (a "Claim") in respect of which any party hereto
seeks indemnification from the other, the party seeking indemnification (the "Indemnified Party") shall give the party
from whom indemnification is sought (the "Indemnifying Party") written notice of such Claim promptly after the
Indemnified Party first becomes aware thereof; provided, however, that failure so to give such notice shall not preclude
indemnification with respect to such Claim except to the extent of any additional or increased Losses or other actual
prejudice directly caused by such failure. The Indemnifying Party shall have the right to choose counsel to defend such
Claim (subject to the approval of such counsel by the Indemnified Party, which approval shall not be unreasonably
withheld, conditioned or delayed), and to control, compromise and settle such Claim, and the Indemnified Party shall
have the right to participate in the defense at its sole expense; provided, however, the Indemnified Party shall have the
right to take over the control of the defense or settlement of such Claim at any time if the Indemnified Party irrevocably
waives all rights to indemnification from and by the Indemnifying Party. The Indemnifying Party and the Indemnified
Party shall cooperate in the defense or settlement of any Claim, and no party shall have the right enter into any settlement
agreement that materially affects the other party's material rights or material interests without such party's prior written
consent, which consent will not be unreasonably withheld or delayed.
8.4. LIMITED LIABILITY. Notwithstanding anything to the contrary in this Agreement, neither party shall be liable to the
other, by reason of any representation or express or implied warranty, condition or other term or any duty at common or
civil law, for any indirect, incidental, special, lost profits or consequential damages, however caused and on any theory
of liability arising out of or relating to this Agreement.
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 74t' Street
Scottsdale, AZ 85260
Attention: Ms. Karen Finley
Facsimile: (480) 607-5552
9.2. Notices to the Customer:
City of Southlake
Attention: City Manager
Re: Official Notification
1400 Main St., Suite 460
Southlake, Texas 76092
Phone: (817) 748-8400
Facsimile: (817) 748-8010
10. DISPUTE RESOLUTION. Upon the occurrence of any dispute or disagreement between the parties hereto arising out of or
in connection with any term or provision of this Agreement, the subject matter hereof, or the interpretation or enforcement
hereof (the "Dispute"), the parties shall engage in informal, good faith discussions and attempt to resolve the Dispute. In
connection therewith, upon written notice of either party, each of the parties will appoint a designated officer whose task it
shall be to meet for the purpose of attempting to resolve such Dispute. The designated officers shall meet as often as the
parties shall deem to be reasonably necessary. Such officers will discuss the Dispute. If the parties are unable to resolve the
Dispute in accordance with this Section 10, and in the event that either of the parties concludes in good faith that amicable
resolution through continued negotiation with respect to the Dispute is not reasonably likely, then the parties may mutually
agree to submit to binding or nonbinding arbitration or mediation or file suit in a court of competent jurisdiction.
11. Miscellaneous.
11.1. ASSIGNMENT. Neither party may assign all or any portion of this Agreement without the prior written consent of the
other. However, the Customer hereby acknowledges and agrees that the execution (as outlined in Exhibit "F"), delivery
and performance of Redflex's rights pursuant to this Agreement shall require a significant investment by Redflex, and
that in order to finance such investment, Redflex may be required to enter into certain agreements or arrangements
("Financing Transactions") with equipment lessors, banks, financial institutions or other similar persons or entities (each,
a "Financial 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 permitted assigns.
11.2. "SPEED ENFORCEMENT" The Customer and Redflex agree that should legislation or local ordinance be enacted
to enable the photo enforcement of speed within the city, and the City of Southlake requires this capability for public
safety then the Customer will have the option to extend this Agreement to include additional terms for photo
enforcement of speed within the city under similar terms and conditions as contained in this Agreement.
11.3. RELATIONSHIP BETWEEN REDFLEX AND THE CUSTOMER. Nothing in this Agreement shall create, or be
deemed to create, a partnership, joint venture or the relationship of principal and agent or employer and employee
between the parties. The relationship between the parties shall be that of independent contractors, and nothing contained in
this Agreement shall create the relationship of principal and agent or otherwise permit either parry to incur any debts or
liabilities or obligations on behalf of the other party (except as specifically provided herein).
11.4. AUDIT RIGHTS. Each of parties hereto shall have the right to audit to audit the books and records of the other party
hereto (the "Audited Party") solely for the purpose of verifying the payments, if any, payable pursuant to this
Agreement. Any such audit shall be conducted upon not less than forty-eight (48) hours' prior notice to the Audited
Party, at mutually convenient times and during the Audited Party's normal business hours. Except as otherwise provided
in this Agreement, the cost of any such audit shall be borne by the non -Audited Party. In the event any such audit
establishes any underpayment of any payment payable by the Audited Party to the non -Audited Party pursuant to this
Agreement, the Audited Party shall promptly pay the amount of the shortfall, and in the event that any such audit
establishes that the Audited Party has underpaid any payment by more than twenty-five percent (256/6) of the amount of
actually owing, the cost of such audit shall be borne by the Audited Party. In the event any such audit establishes any
overpayment by the Audited Party of any payment made pursuant to this Agreement, non -Audited Party shall promptly
refund to the Audited Party the amount of the excess.
11.5. FORCE MAJEURE. Neither party will be liable to the other or be deemed to be in breach of this Agreement for any
failure or delay in rendering 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, any change in State or Federal law
that requires remittance of any and/or all of the Revenue that Customer is required to pay to Redflex, or Governmental
Authorities approval delays which are not caused by any act or omission by Redflex, and unusually severe weather. The
party whose performance is affected agrees to notify the other promptly of the existence and nature of any delay.
11.6. ENTIRE AGREEMENT. This Agreement and the exhibits attached hereto represent the entire agreement between the
parties, and there are no other agreements (other than invoices and purchase orders), whether written or oral, which
affect its terms. This Agreement may be amended only by a subsequent written agreement signed by both parties.
11.7. SEVERABILITY. If any provision of this Agreement is held by any court or other competent authority to be void or
unenforceable in whole or part, this Agreement shall continue to be valid as to the other provisions thereof and the
remainder of the affected provision.
11.8. WAIVER. Any waiver by either party of a breach of any provision of this Agreement shall not be considered as a waiver
of any subsequent breach of the same or any other provision thereof.
11.9. CONSTRUCTION Except as expressly otherwise provided in this Agreement, this Agreement shall be construed as
having been fully and completely negotiated and neither the Agreement nor any provision thereof shall be construed
more strictly against either party.
11.10. HEADINGS. The headings of the sections contained in this Agreement are included herein for reference
purposes only, solely for the convenience of the parties hereto, and shall not in any way be deemed to affect the meaning,
interpretation or applicability of this Agreement or any term, condition or provision hereof.
11.11. EXECUTION AND COUNTERPARTS. This Agreement may be executed in any number of counterparts, each
of which when so executed and delivered shall be deemed an original, and such counterparts together shall constitute
only one instrument. Any one of such counterparts shall be sufficient for the purpose of proving the existence and terms
of this Agreement and no parry shall be required to produce an original or all of such counterparts in making such proof.
11.12. COVENANT OF FURTHER ASSURANCES. All parties to this Agreement shall, upon request, perform any
and all acts and execute and deliver any and all certificates, instruments and other documents that may be necessary or
appropriate to carry out any of the terms, conditions and provisions hereof or to carry out the intent of this Agreement.
11.13. REMEDIES CUMULATIVE. Each and all of the several rights and remedies provided for in this Agreement
shall be construed as being cumulative and no one of them shall be deemed to be exclusive of the others or of any right
or remedy allowed by law or equity, and pursuit of any one remedy shall not be deemed to be an election of such
remedy, or a waiver of any other remedy.
11.14. BINDING EFFECT. This Agreement shall inure to the benefit of and be binding upon all of the parties hereto
and their respective successors and permitted assigns.
11.15. COMPLIANCE WITH LAWS. Nothing contained in this Agreement shall be construed to require the
commission of any act contrary to law, and whenever there is a conflict between any term, condition or provision of this
Agreement and any present or future statute, law, ordinance or regulation contrary to which the parties have no legal
right to contract, the latter shall prevail, but in such event the term, condition or provision of this Agreement affected
shall be curtailed and limited only to the extent necessary to bring it within the requirement of the law, provided that
such construction is consistent with the intent of the parties as expressed in this Agreement.
11.16. NO THIRD PARTY BENEFIT. Nothing contained in this Agreement shall be deemed to confer any right or
benefit on any Person who is not a party to this Agreement.
11.17. INJUNCTIVE RELIEF; SPECIFIC PERFORMANCE. The parties hereby agree and acknowledge that a breach
of Sections 4.1 (License), 4.3 (Restricted Use) or 7 (Confidentiality) of this Agreement would result in severe and
irreparable injury to the other party, which injury could not be adequately compensated by an award of money damages,
and the parties therefore agree and acknowledge that they shall be entitled to injunctive relief in the event of any breach
of any material term, condition or provision of this Agreement, or to enjoin or prevent such a breach, including without
limitation an action for specific performance hereof.
11.18. APPLICABLE LAW. This Agreement shall be governed by and construed in all respects solely in accordance
with the laws of the State of Texas and of the United States.
11.19. JURISDICTION AND VENUE. Any dispute arising out of or in connection with this Agreement shall be
submitted to the exclusive jurisdiction and venue of the courts located in the County of Tarrant, Texas, and both parties
specifically agree to be bound by the jurisdiction and venue thereof.
11.20. CONDITION PRECEDENT. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE
CONTRARY, THIS AGREEMENT IS EXPRESSLY CONDITIONED UPON CUSTOMER PASSING A RED LIGHT
CAMERA ORDINANCE AS REQUIRED BY APPLICABLE LAW. THE FAILURE TO PASS SUCH ORDINANCE
ON OR BEFORE JANUARY 1, 2008 SHALL INVALIDATE THIS AGREEMENT. NO PAYMENT SHALL BE DUE
TO REDFLEX AND THERE SHALL BE NO OBLIGATION IMPOSED ON THE CUSTOMER TO PURCHASE OR
INSTALL RED LIGHT CAMERAS WITHIN THE CITY LIMITS UNLESS AND UNTIL SUCH ORDINANCE IS
PASSED.
(The remainder of this page is left intentionally blank)
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first set forth above.
"Customer"
"Redflex"
CITY OF SOUTHLAKE REDFLEX TRAFFIC SYSTEMS, INC.,
By:
CITY MANAGER Name:
ATTEST: Title:
CITY SECRETARY
APPROVED AS TO FORM:
CITY ATTORNEY
EXHIBIT "A"
Designated Intersection Approaches
The contract is for the implementation of up to 20 intersections. Identification of enforced intersection will be based on mutual
agreement between Redflex and the City of Southlake as warranted by community safety and traffic needs.
EXHIBIT `B"
Construction and Installation Oblivations
Timeframe for Installation: Fixed Photo Red Light System
Redflex will have each specified intersection installed and activated in phases in accordance with an implementation plan to be
mutually agreed to by Redflex Traffic Systems and the Municipality.
Redflex will use reasonable commercial efforts to install the system in accordance with the schedule set forth in the
implementation plan that will be formalized upon project commencement.
Redflex will use reasonable commercial efforts to install and activate the first four specified intersection within the first ninety (90)
days subsequent to formal project kick-off. Any additional intersections will be added within thirty (30) days of receipt of a notice
to proceed. The Municipality agrees that the estimated timeframe for installation and activation are subject to conditions beyond
the control of Redflex and are not guaranteed.
In order to provide the client with timely completion of the photo enforcement project Redflex Traffic Systems requires that the
City of Southlake assist with providing timely approval of City of Southlake permit requests. The City of Southlake acknowledges
the importance of the safety program and undertakes that in order to keep the project on schedule the customer is to provide City
of Southlake engineers review of Redflex permit requests and all documentation within a two business days. Redflex will also
review and correct if necessary any redlines with in two business days. Permits need to be received within five business days of
first submittal in order to implement the program in a timely manner.
1. Redflex Obligations. Redflex shall do or cause to be done each of the following (in each case, unless otherwise stated below,
at Redflex's sole expense):
1.1. Appoint the Redflex Project Manager and a project implementation team consisting of between one (1) and four (4)
people to assist the Redflex Project Manager;
1.2. Request current "as -built" electronic engineering drawings for the Designated Intersection Approaches (the "Drawings")
from the City of Southlake traffic engineer, if available,
1.3. Develop and submit to the Customer for approval construction and installation specifications in reasonable detail for the
Designated Intersection Approaches, including but not limited to specifications for all radar sensors, pavement loops,
electrical connections and traffic controller connections, as required; and
1.4. Seek approval from the relevant Governmental Authorities having authority or jurisdiction over the construction and
installation specifications for the Designated Intersection Approaches (collectively, the "Approvals"), which will include
compliance with City of Southlake permit applications.
1.5. Finalize the acquisition of the Approvals;
1.6. Submit to the Customer a public awareness strategy for the Customer's consideration and approval, which strategy shall
include media and educational materials for the Customer's approval or amendment (the "Awareness Strategy");
1.7. Develop the Red Light Violation Criteria in consultation with the Customer,
1.8. Develop the Enforcement Documentation for approval by the Customer, which approval shall not be unreasonably
withheld;
1.9. Complete the installation and testing of all necessary Equipment, including hardware and software, at the Designated
Intersection Approaches (under the supervision of the Customer),
1.10. Cause an electrical sub -contractor to complete all reasonably necessary electrical work at the Designated Intersection
Approaches, including but not limited to the installation of all related Equipment and other detection sensors, poles,
cabling, telecommunications equipment and wiring, which work shall be performed in compliance with all applicable
local, state and federal laws and regulations;
1.11. Install and test the functionality of the Designated Intersection Approaches with the Redflex System and establish fully
operational Violation processing capability with the Redflex System;
1.12. Implement the use of the Redflex System at each of the Designated Intersection Approaches;
1.13. Deliver the Materials to the Customer; and
1.14. Issue Notice of Violation notices for Authorized Violations;
1.15. Redflex shall provide training (i) for up to fifteen (15) personnel of the Customer, including but not limited to the
persons who Customer shall appoint as Authorized Officers and other persons involved in the administration of the Red
Light Photo Enforcement Program, (ii) for at least sixteen (16) hours in the aggregate, (iii) regarding the operation of the
Redflex System and the Red Light Photo Enforcement Program, which training shall include training with respect to the
Redflex System and its operations, strategies for presenting Violations Data in administrative adjudication hearing
proceedings and a review of the Enforcement Documentation;
1.16. Interact with administrative adjudication hearing personnel to address issues regarding the implementation of the Redflex
System, the development of a subpoena processing timeline that will permit the offering of Violations Data in
adjudication proceedings, and coordination between Redflex, the Customer and adjudication personnel; and
1.17. Redflex will work with the Customer to develop a comprehensive Public Awareness/Education Campaign that will be
based on research and public polling to ensure tailored messaging for the community. Redflex will organize a press
conference at the project's commencement and coordinate all logistics, including preparing a media packet which will
include: a news release; an overview of the Customer's photo enforcement program; a project fact sheet; a project
question and answer sheet; a photo enforcement "Facts & Myths" handout; a map showing photo enforcement
intersections and thoroughfares; background on similar successful projects elsewhere; an explanation of photo
enforcement technology; an explanation of how the program will be administered; and a spokesperson contact list. The
Police Department's Public Information Officer will be their primary point of contact, and will have final approval on all
media materials
1.18. Notice of Violation processing and Notice of Violation re -issuance.
1.19. Employ a collection agency to collect delinquent accounts. To offset the cost of collecting each delinquent account,
Redflex will receive reimbursement for the cost of delinquent collection up to the amount of the late fee penalty of $25
associated with that account, for each account and associated late fee successfully collected.
2. CUSTOMER OBLIGATIONS. The Customer shall do or cause to be done each of the following (in each case, unless
otherwise stated below, at Customer's sole expense):
2.1.1. Appoint the Police Project Manager; Provide an Administrative Hearing Officer to preside over Appeals Hearing
for the City.
2.1.2. Assist Redflex in obtaining the Drawings from the relevant Governmental Authorities;
2.1.3. Notify Redflex of any specific requirements relating to the construction and installation of any Intersection
Approaches or the implementation of the Red Light Photo Enforcement Program;
2.1.4. Provide assistance to Redflex in obtaining access to the records data of the Texas Department of Transportation
in Redflex's capacity as an independent contractor to the Customer; and
2.1.5. Assist Redflex in seeking the Approvals;
2.1.6. Provide reasonable access to the Customer's properties and facilities in order to permit Redflex to install and test
the functionality of the Designated Intersection Approaches and the Red Light Photo Enforcement Program;
2.1.7. Provide reasonable access to the personnel of the Customer and reasonable information about the specific
operational requirements of such personnel for the purposes of performing training;
2.1.8. Seek approval or amendment of Awareness Strategy, as described in Section 1.17 above, and provide written
notice to Redflex with respect to the quantity of media and program materials (the "Materials") that the Customer
will require in order to implement the Awareness Strategy during the period commencing on the date on which
Redflex begins the installation of any of the Designated Intersection Approaches and ending one (1) month after the
Installation Date;
2.1.9. Assist Redflex in developing the Red light Violation Criteria; and
2.1.10. Seek approval of the Enforcement Documentation.
EXHIBIT "C"
Maintenance
1. All repair and maintenance of Photo Red Light Enforcement systems and related equipment will be the sole responsibility of
Redflex, including but not limited to maintaining the casings of the cameras included in the Redflex System and all other
Equipment in reasonably clean and graffiti -free condition.
2. Redflex shall not open the Traffic Signal Controller Boxes without a representative of Southlake'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 sole responsibility of
Redflex.
5. In the event that images of a quality suitable for the Authorized Officer to identify Violations cannot be reasonably obtained
without the use of flash units, Redflex shall provide and install such flash units.
6. The Redflex Project Manager (or a reasonable alternate) shall be available to the Police Project Manager each day, on a
reasonable best efforts basis.
Variable Fee Structure
EXHIBIT "D"
COMPENSATION & PRICING
Tier
Citations Paid (Average Per System
Fee
per Month)
Tier 3
6+ citations paid per day (181+ per
$28
month)
Tier 2
4-6 citations paid per day (91 to 180
S38
per month)
Tier 1
1-3 citations paid per day (up to 90
S48
per month)
o These tiers are incremental e.g. if a single camera delivers the equivalent of 170 paid citations in a
month, the vendor fee will be $48 for the first 90 paid citations and $38 for the next 80 paid citations.
o Fees applied and paid by violators to cover costs of checks returned NSF are for the account of
Redflex and do not contribute to gross receipt tiers stated above
o Refunds paid from the lockbox account at the instruction of the City of Southlake will be deducted
from the payment to the City of Southlake at the original rate they were previously paid to the city
o Fees payable to third party agents in the collection of delinquent violations will be borne by both
parties in proportion to the split of the net proceeds dependent upon the appropriate tier as above.
Additional Fee Structure Explanation
Tier
Citations Paid (Per System per
Gross receipt based
Fee
Month)
on S75 fine
Tier 3
6+citations paid per day (180+ per
>$13,501
37.33% or S28
month)
Tier 2
4-6 citations paid per day (90 to 180
$6,751 - $13,500
50.667% or S38
per month)
Tier 1
1-3 citations paid per day (up to 90
$0 - $6,750
64% or S48
per month)
BUSINESS ASSUMPTIONS FOR ALL PRICING OPTIONS:
1. Redflex construction will be able to utilize existing conduit for installation where space is available.
2. The Customer agrees to pay Redflex within thirty (30) days after the invoice is received. A monthly late fee of 1.5% is
payable for amounts remaining unpaid 60 days from date of invoice.
3. Each year, 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 of Southlake average and shall not exceed 3% annually.
Fixed Fee Structure
Commencing on the expiration of the Warning Period, Customer shall be obligated to pay Redflex a fixed
fee of $4,870 per month for each Designated Intersection Approach ("Fixed Fee") as full remuneration for
performing all of the services contemplated in this Agreement.
Cost Neutrality
Cost neutrality is assured to Customer. The maximum compensation that Customer shall be obligated to pay
to Redflex each month is the Fixed Fee. Each month, Customer and Redflex shall compare the aggregate
revenue received from all Notice of Violations ("Total Revenue") to the total amount invoiced by Redflex
for the Fixed Fee ("Total Invoiced"). The Customer shall be obligated to pay the cumulative balance
invoiced by Redflex, in accordance with terms set forth above, only to the extent of gross cash received by
the City of Southlake from automated red light violations. Any excess of the Total Invoiced over the Total
Revenue (the "Deficit Amount") shall not be payable, but carried forward to be offset by future surpluses
should they occur. Upon contract termination for cause under section 6.1, for convenience under section 6.3
or expiration of this Agreement, any such outstanding Deficit Amounts will be paid for to the extent that
Total Revenues are received that are applied to the outstanding Deficit Amounts.
BUSINESS ASSUMPTIONS FOR ALL PRICING OPTIONS:
1. Redflex construction will be able to utilize existing conduit for installation where space is available.
2. The Customer agrees to pay Redflex within thirty (30) days after the invoice is received. A monthly late fee of 1.5% is
payable for amounts remaining unpaid 60 days from date of invoice.
3. Each year, 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 of Southlake average and shall not exceed 3% annually.
Exhibit "E"
Additional Rights and Obligations
Redflex and the Customer shall respectively have the additional rights and obligations set forth below:
1. Redflex shall assist the Customer in public information and education efforts, including but not limited to the development of
artwork for utility bill inserts, press releases and schedules for any public launch of the Red Light Photo Enforcement Program
(actual print and production costs are the sole responsibility of the Customer).
2. Redflex shall be solely responsible for installing such Signage. The Customer shall be solely responsible for the fabrication of
any signage, notices or other postings required pursuant to any law, rule or regulation of any Governmental Authority
("Signage"), including but not limited to the Vehicle Code, and shall assist in determining the placement of such Signage.
3. The Redflex Project Manager and the Police Project Manager shall meet on a weekly basis during the period commencing as
of the date of execution hereof and ending on the Installation Date, and on a monthly basis for the remainder of the Term, at
such times and places as the Redflex Manager and the Customer Manager shall mutually agree.
4. The Customer shall not access the Redflex System or use the Red Light Photo Enforcement Program in any manner other than
prescribe by law and which restricts or inhibits any other Person from using the Redflex System or the Red Light 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 Red Light Photo Enforcement Program, and the
Customer shall not attempt to gain unauthorized access to (i) any account of any other Person, (ii) any computer systems or
networks connected to the Redflex System, or (iii) any materials or information not intentionally made available by Redflex to
the Customer by means of hacking, password mining or any other method whatsoever, nor shall the Customer cause any other
Person to do any of the foregoing.
5. The Customer shall maintain the confidentiality of any username, password or other process or device for accessing the
Redflex System or using the Red Light Photo Enforcement Program.
6. Each of Redflex and the Customer shall advise each other in writing with respect to any applicable rules or regulations
governing the conduct of the other on or with respect to the property of such other party, including but not limited to rules and
regulations relating to the safeguarding of confidential or proprietary information, and when so advised, each of Redflex and
the Customer shall obey any and all such rules and regulations.
7. The Customer shall promptly reimburse Redflex for the cost of repairing or replacing any portion of the Redflex System, or
any property or equipment related thereto, damaged directly or indirectly by the Customer, or any of its employees,
contractors or agents.
Insurance
1. During the Term, Redflex shall procure and maintain and Redflex's sole cost and expense the following insurance
coverage with respect to claims for injuries to persons or damages to property which may arise from or in connection with
the performance of work or services pursuant to this Agreement by Redflex, and each of Redflex's subcontractors, agents,
representatives and employees:
2. Commercial General Liability Insurance. Commercial General Liability Insurance with coverage of not less than One
Million Dollars ($1,000,000) combined single limit per occurrence for bodily injury and property damage;
3. Commercial Automobile Liability Insurance. Commercial Automobile Liability Insurance with coverage of not less than
One Million Dollars ($1,000,000) combined single limit per occurrence for bodily injury or property damage, including
but not limited to coverage for all automobiles owned by Redflex, hired by Redflex, and owned by third parties;
4. Professional Liability (Errors and Omissions) Insurance. Redflex will use its commercial best efforts to procure and
maintain Professional Liability (Errors and Omissions) Insurance with coverage of not less than One Million Dollars
($1,000,000) per occurrence and in the aggregate.
5. Workers' Compensation and Employer's Liability Insurance. Workers' Compensation Insurance with coverage of not
less than the limits required by the Labor Code of the State of Texas, Employer's Liability Insurance with coverage of not
less than One Million Dollars ($1,000,000) per occurrence.
6. With respect to the insurance described in the foregoing Section of this Exhibit "E", any deductibles or self -insured
retentions must be declared to and approved by the Customer and any changes to such deductibles or self -insured
retentions during the Term must be approved in advance in writing by the Customer.
7. With respect to the Commercial General Liability Insurance the following additional provisions shall apply:
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.
The insurance coverage procured by Redflex and described above shall be the primary insurance with respect to the
Customer in connection with this Agreement, and any insurance or self-insurance maintained by the Customer shall be in
excess of, and not in contribution to, such insurance.
10. Any failure to comply with the reporting provisions of the various insurance policies described above shall not affect the
coverage provided to the Customer, and such insurance policies shall state 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 notice to the Customer. If any of the Redflex Parties are notified by any insurer that any insurance coverage will
be cancelled, Redflex shall immediately provide written notice thereof to the Customer and shall take all necessary
actions to correct such cancellation in coverage limits, and shall provide written notice to the Customer of the date and
nature of such correction. If Redflex, for any reason, fails to maintain the insurance coverage required pursuant to this
Agreement, such failure shall be deemed a material breach of this Agreement, and the Customer shall have the right, but
not the obligation and exercisable in its sole discretion, to either (i) terminate this Agreement and seek damages from
Redflex for such breach, or (ii) purchase such required insurance, and without further notice to Redflex, deduct from any
amounts due to Redflex pursuant to this Agreement, any premium costs advance by the Customer for such insurance. If
the premium costs advanced by the Customer for such insurance exceed any amounts due to Redflex pursuant to this
Agreement, Redflex shall promptly remit such excess amount to the Customer upon receipt of written notice thereof.
12. Redflex shall provide certificates of insurance evidencing the insurance required pursuant to the terms of this Agreement,
which certificates shall be executed by an authorized representative of the applicable insurer, and which certificates shall
be delivered to the Customer prior to Redflex commencing any work pursuant to the terms of this Agreement.
Exhibit F
FORM OF ACKNOWLEDGMENT AND CONSENT
This Acknowledgement and Consent, dated as of , 2007, is entered into by and between
the City of Southlake, Texas (the "City") and Redflex Traffic Systems, Inc., ("Redflex"), with reference to
the Agreement for Red Light Photo Enforcement Program, dated as of , by and between
the City of Southlake and Redflex (the "Agreement").
1. Redflex has entered into a Credit Agreement, dated as of August 3,2004 (the "Harris-Redflex
Credit Agreement"), with Harris Trust and Savings Bank (the "Bank"), pursuant to which the Bank has
provided certain working capital credit facilities to Redflex. Such credit facilities will provide Redflex the
working capital that it needs to perform its obligations to the City of Southlake 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 of Southlake 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 of Southlake further acknowledges and agrees that this Acknowledgement and
Consent shall be binding upon the City of Southlake 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 of Southlake and Redflex have caused this
Acknowledgement and Consent to be executed by their respective duly authorized and elected officers as of
the date first above written.
The City of Southlake, Texas: Redflex:
By:_
Name
Title:
REDFLEX TRAFFIC SYSTEMS, INC.
By:
Name:
Title:
Exhibit "G"
Traffic Control and Signal Preemption Equipment contract between HGAC and Redflex Traffic Systems, Inc.