Item 6ACity of Southlake, Texas
MEMORANDUM
December 12, 2007
To: Shana Yelverton, City Manager
From: Jim Blagg, Assistant City Manager /Director of Public Safety
Subject: Adopt Ordinance 922 to amend Chapter 18, Traffic and Vehicles, of
the City of Southlake Code of Ordinances by adding new Article VIII,
Automated Red Light Enforcement
Action
Requested: Consider adopting Ordinance 922 to amend Chapter 18, Traffic and
Vehicles, of the City of Southlake Code of Ordinances by adding new
Article VIII, Automated Red Light Enforcement
Background: According to a 2007 National Institute for Highway Safety (NIHS) report, a
nationwide study of fatal crashes at traffic signals in 1999 and 2000
estimated that 20 percent of the drivers involved failed to obey the
signals. In 2005, more than 800 people were killed and an estimated
165,000 were injured in crashes that involved red light running. About half
of the deaths in red light running crashes are pedestrians and occupants
in other vehicles who are hit by the red light runners.
Cameras have been shown to reduce intersection crashes. In Oxnard,
California, significant citywide crash reductions followed the introduction
of red light cameras, and injury crashes at intersections with traffic signals
were reduced by 29 percent. Front - into -side collisions — the crash type
most closely associated with red light running — also were reduced by 32
percent overall, and front - into -side crashes involving injuries were
reduced by 68 percent.
In addition to a reduction in intersection crashes, cameras have also been
shown to substantially reduce red light violations. The National Institute
for Highway safety reports that evaluations in Fairfax, Virginia, and
Oxnard, California, showed that camera enforcement reduced red light
running violations by about 40 percent. In addition to reducing red light
running at camera - equipped sites, violation reductions in both
communities carried over to signalized intersections not equipped with
red light cameras, indicating community -wide changes in driver behavior.
The NIHS study also looked at the effect of coupling yellow timing
changes with red light camera enforcement on the number of red light
violations. Their study found that when a red light program was
introduced into an intersection whose yellow light timing followed the
guidelines suggested by the Institute of Traffic Engineers (ITE), red light
violations were reduced by 96 percent. Ordinance 922 includes a
provision that would require yellow timing to be set in accordance with
ITE guidelines.
Automated Red Light Enforcement, Ordinance 922
December 12, 2007
Page 2 of 4
Background: From January 1, 2006 through June 30, 2007, 16% of all traffic accidents
within Southlake occurred at traffic signals. During that same time period,
there were a total of 583 citations written directly related to either running
a red light (317) or disregarding an official traffic control device (266).
Reduction in traffic accidents and the number of citations written through
the use of a red light camera program is integral to increasing the safety
of Southlake's streets and intersections.
At the August 21, 2007 meeting of the Southlake City Council, the City
Manager was authorized to enter into a contract with Redflex Traffic
Systems for the installation and operation of red light cameras. By
entering into this contract prior to September 1, 2007, the City was able to
preserve the right to share revenues from citations issued as a result of
violations captured on a red light camera, a right that is now restricted
with the State Legislature's passage of SB 1119 which ruled that a city
may not enter into a revenue sharing agreement with a firm to install and
operate red light cameras after September 1, 2007. SB1119
"grandfathered" revenue sharing contracts that were in place prior to
September 1, 2007.
The contract with Redflex was signed on August 31, 2007 with the
understanding that before installation of any equipment, the City would
adopt an ordinance providing for the monitoring, identification and
enforcement of red light violations through the use of a red light photo
enforcement program. If adopted, proposed Ordinance 922 would meet
this requirement.
If this ordinance is approved, the contract with Redflex provides that
Redflex is responsible for the cost of all equipment including installation
and maintenance expenses. In return, the City will share revenues
generated from citations issued. Citations ($75.00 each) are not
considered moving violations and are not subject to warrant issuance but
rather become a debt/credit issue with Redflex.
Below is a chart describing the fee structure:
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 -180 per
$38
month)
Tier 1
1 -3 citations paid per day (up to 90 per
$48
month)
Automated Red Light Enforcement, Ordinance 922
December 12, 2007
Page 3 of 4
Background: The contract with Redflex describes the process by which a citation would
be issued:
1. Redflex photographs and retains 12 seconds of video at the time of
the alleged infraction. After review and affirmation by three different
Redflex employees that a violation occurred the photograph and video
are made available to the Southlake Police Department via encrypted
internet access.
2. A police officer authorizes or denies the issuance of a violation notice.
3. If authorized, Redflex prints and mails a notice of violation along with
a copy of the photograph of the infraction. The offender is also given
the option of viewing the video on the internet on a website provided
by Redflex.
4. After receiving notice, the offender can choose to pay the $75.00 fine
or challenge the violation by asking to go to a hearings examiner
appointed by the City for an additional $35.00 fee.
Ordinance 922 also includes a number of sections that meet the
requirements of SB1119:
• Before installation of a red light camera system at any
intersection, the City must conduct a traffic engineering study to
determine if a design or signalization change in addition to or as
an alternative system would reduce the number of red light
violations at the intersection.
• Prior to installation, a written report that includes the number and
type of traffic accidents that have occurred at the intersection for a
period 18 months must be compiled.
• A Citizen Advisory Committee shall be appointed by the City
Council for the purpose of reviewing the traffic engineering study
in order to make recommendations regarding system installation,
based solely on the results of the traffic engineering study. At the
time of the second reading of Ordinance 922, we will bring forward
a resolution for the Council to appoint the Citizen Advisory
Committee.
Financial
Considerations: The contract with Redflex Traffic Systems calls for a revenue sharing
agreement. For each citation issued, the City would pay a portion of that
citation to Redflex. It is unknown at this time how much revenue that
would produce for the City. Any of the revenue the City receives will go
into a special account that will fund traffic safety programs.
Additionally, with the passage of SB 1119, the State Legislature ruled that
50% of net revenues from red light camera programs must be submitted
to the State to fund regional trauma centers.
Financial Impact: Financial impact would be an increase in fine revenue. The exact amount
is currently unknown.
Automated Red Light Enforcement, Ordinance 922
December 12, 2007
Page 4 of 4
Citizen Input/
Board Review: N/A
Legal Review: The City Attorney has reviewed the proposed ordinance.
Alternatives: 1. The City could choose not to approve the ordinance which would also
void the contract with Redflex.
Supporting
Documents: Supporting documents include:
• Ordinance 922
• Contract with Redflex Traffic Systems, Inc.
Staff
Recommendation: Council approval of Ordinance 922 to amend Chapter 18, Traffic and
Vehicles, of the City of Southlake Code of Ordinances by adding new
Article VIII, Automated Red Light Enforcement.
ORDINANCE NO. 922
AN ORDINANCE OF THE CITY OF SOUTHLAKE, TEXAS, AMENDING
THE CODE OF ORDINANCES OF THE CITY OF SOUTHLAKE, BY
AMENDING CHAPTER 18, TRAFFIC AND VEHICLES, TO ADD A NEW
ARTICLE VIII, AUTOMATED RED LIGHT ENFORCEMENT; PROVIDING
THAT THIS ORDINANCE SHALL BE CUMULATIVE OF ALL
ORDINANCES; PROVIDING A SEVERABILITY CLAUSE; PROVIDING
FOR PUBLICATION AS REQUIRED BY LAW; AND PROVIDING AN
EFFECTIVE DATE.
WHEREAS, the City of Southlake, Texas is a home rule city acting under its
charter adopted by the electorate pursuant to article XI, section 5 of the Texas
Constitution and chapter 9 of the Texas Local Government Code; and
WHEREAS, the City Council of the City of Southlake desires to implement a red
light photographic traffic signal enforcement system pursuant to chapter 707 of the
Texas Transportation Code;
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY
OF SOUTHLAKE, TEXAS:
SECTION 1.
That the Code of Ordinances of the City of Southlake, Texas is hereby amended
by amending Chapter 18, Traffic and Vehicles, to add a new Article VIII, Automated Red
Light Enforcement, to read as follows:
"Article VIII. Automated Red Light Enforcement
Sec. 18 -325. Purpose.
The purpose of this article is to implement a photographic traffic signal
enforcement system pursuant to chapter 707 of the Texas Transportation Code
and to provide that the owner of a motor vehicle is liable to the City for a civil
penalty if, while facing only a steady red signal displayed by an electrically
operated traffic - control signal located in the City, the vehicle is operated in
violation of the instructions of the traffic - control signal, as specified by section
544.007(d) of the Texas Transportation Code.
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Sec. 18 -326. Definitions.
In this article:
(1) "Department' shall mean the Police Department of the City of
Southlake, Texas, or an entity with which the City contracts under
section 707.003(a)(1) of the Texas Transportation Code for the
enforcement and administration of this article.
(2) "Municipal Court" shall mean the Southlake Municipal Court.
(3) "Owner of a motor vehicle" shall mean the owner of a motor vehicle
as shown on the motor vehicle registration records of the Texas
Department of Transportation or the analogous department or
agency of another state or country. The term "owner" includes a
lessee of a motor vehicle under a lease of six (6) months or more
from a motor vehicle rental or leasing company, but does not
include the motor vehicle rental or leasing company itself.
(4) "Photographic Traffic Signal Enforcement System" shall mean a
system that:
(a) consists of a camera system and vehicle sensor installed to
exclusively work in conjunction with an electrically operated
traffic - control signal; and
(b) is capable of producing at least two recorded images that
depict the license plate attached to the front or the rear of a
motor vehicle that is not operated in compliance with the
instructions of the traffic - control signal.
(5) "Recorded Image" means a photographic or digital image that
depicts the front or the rear of a motor vehicle.
(6) "System Location" means the approach to an intersection toward
which a photographic traffic monitoring system is directed and in
operation.
(7) "Traffic Control Signal" has the meaning assigned by section
541.304 of the Texas Transportation Code, as amended.
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Sec. 18 -327. Administration and Enforcement of Photographic Traffic
Signal Enforcement System.
(a) The Department is responsible for the enforcement and
administration of this article.
(b) To implement the photographic traffic signal enforcement system
under this article, the City may:
(1) contract for the administration and enforcement of the
system as provided in section 707.003(x)(1) of the Texas
Transportation Code;
(2) install and operate the system or contract for the installation
or operation of the system as provided in section 707.003
(a)(1) of the Texas Transportation Code.
(c) The City or the person with which the City contracts for the
administration and enforcement of a photographic traffic signal enforcement
system shall not report information concerning civil penalties imposed under this
article to a credit bureau as defined in section 392.001 of the Texas Finance
Code.
Sec. 18 -328. Citizen Advisory Committee.
The City Council shall appoint a Citizen Advisory Committee consisting of one
person appointed by each Councilmember. The committee shall review the
traffic engineering study described in section 18 -329 of this article and shall
advise the City Council on the installation and operation of the photographic
traffic signal enforcement systems installed within the City limits based solely on
such study. The committee shall not have any authority over the photographic
traffic signal enforcement systems other than to make recommendations to the
City Council with respect to decisions concerning the installation of such systems
based solely on the traffic engineering study.
Sec. 18 -329. Procedures for Creation of Photographic Traffic Signal
Enforcement Systems.
(a) Before installing a photographic traffic signal enforcement system at an
intersection approach, the City shall conduct or cause to be conducted a traffic
engineering study or the approach to determine whether, in addition to or as an
alternative to the system, a design change to the approach or a change in the
signalization of the intersection is likely to reduce the number of red light
violations at the intersections.
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(b) The City shall report the results of the traffic engineering study described
in subsection (a) to the Citizen Advisory Committee appointed by the City Council
pursuant to section 18 -328.
(c) Any intersection approach selected by the City for the installation of a
photographic traffic signal enforcement system must be selected based on traffic
volume, the history of accidents at the approach, the number or frequency of red
light violations at the intersection, and any similar traffic engineering and safety
criteria, without regard to the ethnic or socioeconomic characteristics of the area
in which the approach is located.
(d) The City may not impose the civil penalty described in section 18 -333 on
an owner of a motor vehicle if it does not first comply with the requirements of
subsections (a) and (b) above. However, the failure of the City to comply with
the requirements of subsections (a) and (b) above with respect to one
intersection shall not prevent the City from imposing said civil penalty on the
owner of a motor vehicle for a violation occurring at a different intersection.
(e) In addition to installing the photographic traffic signal enforcement
system, the City shall also install signs along each roadway that leads to the
intersection at which such system is installed. The signs must be at least 100
feet from the intersection or located according to the standards established in the
manual adopted by the Texas Transportation Commission under section 544.001
of the Texas Transportation Code. In addition, the signs must be easily readable
to any motor vehicle operator approaching the intersection and must clearly
indicate the presence of a photographic monitoring system that records violations
that may result in the issuance of a notice of violation and the imposition of a
monetary penalty.
Sec. 18 -330. Reports of Accidents.
For years beginning on or after January 1, 2008, the following requirements
shall apply:
(a) Before installing a photographic traffic signal enforcement system
at an intersection approach, the Department shall compile a written report of the
number and type of traffic accidents that have occurred at the intersection for a
period of 18 months before the date of the report.
(b) Not later than six months after the date of the installation of the
photographic traffic signal enforcement system at the intersection, the
Department shall provide a copy of the report required by subsection (a) to the
Texas Department of Transportation.
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(c) After installing a photographic traffic signal enforcement system at
an intersection approach, the City shall monitor and annually report to the Texas
Department of Transportation the number and type of traffic accidents at the
intersection to determine whether the system results in a reduction in accidents
or a reduction in the severity of accidents.
(d) The report shall be in writing in the form prescribed by the Texas
Department of Transportation.
Sec. 18 -331. Minimum Change Interval.
At an intersection at which a photographic traffic monitoring system is in
use, the minimum change interval for a steady yellow signal shall be established
in accordance with the Texas Manual on Uniform Traffic Control Devices.
Sec. 18 -332. General Surveillance Prohibited.
The City shall operate the photographic traffic control signal enforcement
system only for the purpose of detecting a violation or suspected violation of a
traffic control signal.
Sec. 18 -333. Imposition of Civil Penalty; Other Penalties and Fees.
(a) The owner of a motor vehicle is liable to the City for a civil penalty
of $75.00 if, while facing only a steady red signal displayed by an electrically
operated traffic - control signal located in the City, the vehicle is operated in
violation of the instructions of the traffic - control signal, as specified by section
544.007(d) of the Texas Transportation Code.
(b) A person who fails to timely pay the civil penalty shall also be liable
to the City for a late payment penalty of $25.00.
(c) A person who pays the amount due by check and whose check is
rejected or declined shall be subject to an additional fee of $25.00.
(d) A person who pays the amount due by credit card over the Internet
shall be subject to an additional convenience fee of $2.95.
Sec. 18 -334. Effect on Other Enforcement.
(a) The implementation of the photograph traffic signal enforcement
system by the City under this article does not:
(1) preclude the application or enforcement in the City of section
544.007(d) of the Texas Transportation Code in the manner
prescribed by chapter 543 of the Texas Transportation Code;
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(2) prohibit a peace officer from arresting a violator of section
544.007(d) of the Texas Transportation Code as provide by chapter
543 of the Texas Transportation Code, if the peace officer
personally witnesses this violation, or from issuing the violator a
citation and notice to appear as provided by the chapter 543 of the
Texas Transportation Code.
(b) The City may not impose a civil penalty under this article on the
owner of a motor vehicle if the operator of the vehicle was arrested or issued a
citation and notice to appear by a peace officer for the same violation of section
544.007(d) recorded by the photographic traffic signal enforcement system.
Sec. 18 -335. Notice of Violation; Contents.
(a) The imposition of a civil penalty under this article is initiated by the
mailing of a notice of violation to the owner of the motor vehicle against whom
the City seeks to impose the civil penalty. Not later than the 30 day after the
date the violation is alleged to have occurred, the Department shall mail a notice
of violation to the owner of the motor vehicle at:
(1) the owner's address as shown on the registration records of
the Texas Department of Transportation; or
(2) if the vehicle is registered in another state or country, the
owner's home address as shown on the motor vehicle
registration records of the department or agency of the other
state or country analogous to the Texas Department of
Transportation.
(b) A notice of violation issued under this article shall contain:
(1) a description of the violation alleged;
(2) the location of the intersection where the violation occurred;
(3) the date and time of the violation;
(4) the name and address of the owner of the vehicle involved in
the violation;
(5) the registration number displayed on the license plate of the
vehicle involved in the violation;
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(6) a copy of a recorded image of the violation limited solely to a
depiction of the area of the registration number displayed on
the license plate of the vehicle involved in the violation;
(7) the amount of the civil penalty for which the owner is liable;
(8) the person has 30 days from the date the notice of violation
is mailed in which to pay or contest the imposition of the civil
penalty and a statement that the person incurs a late
payment penalty if the civil penalty is not paid or imposition
of the penalty is not contested within that period;
(9) a statement that the owner of the vehicle in the notice
violation may elect to pay the civil penalty by mail sent to a
specified address instead of appearing at the time and place
of the administrative adjudication hearing; and
(10) information that informs the owner of the vehicle named in
the notice of violation:
(A) of the owner's right to contest the imposition of the
civil penalty in an administrative adjudication hearing;
(B) that imposition of the civil penalty may be contested
by submitting a written request for an administrative
adjudication hearing before the expiration of the time
to contest the imposition of the civil penalty;
(C) that failure to pay the civil penalty within the time
prescribed or to timely contest liability in a timely
manner is an admission of liability and a waiver of the
owner's right to appeal the imposition of the civil
penalty;
(D) that if the owner fails to timely pay the amount of the
civil penalty imposed against the owner:
(1) an arrest warrant may not be issued for the
owner; and
(2) imposition of the civil penalty may not be
recorded on the owner's driving record;
(E) a statement that the recorded images may be used as
evidence against the person in an administrative or
civil proceeding for the imposition of a civil penalty;
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(F) a statement that, if at the time and place of the
violation, the vehicle was being operated by a person
other than the owner, if the owner is a natural person,
the owner may transfer liability for the violation to the
person who was operating the vehicle at that time and
place if the owner submits to the Department an
affidavit, on a form provided by the Department, or
under oath at an administrative adjudication hearing,
the name and current home address of the person:
(1) operating the vehicle at the time and place of
the violation; or
(2) who was the subsequent owner of the motor
vehicle, if the ownership of the vehicle was
transferred by the owner prior to the time of the
violation.
(G) any other information deemed necessary by the
Department.
(c) A notice of violation under this article is presumed to have been
received on the 5th day after the date the notice of violation is mailed.
(d) In lieu of issuing a notice of violation, the Department may mail a
warning notice to the owner.
Sec. 18 -336. Admission of Liability.
A person who fails to pay the civil penalty or to contest liability for the penalty
in a timely manner or who requests an administrative adjudication hearing to
contest the imposition of the civil penalty against the person and fails to appear
at the hearing is considered to:
(a) admit liability for the full amount of the civil penalty and late
payment penalty stated in the notice of violation mailed to the person; and
(b) waive the person's right to appeal the imposition of the civil penalty
and the late payment penalty.
Sec. 18 -337. Presumption.
(a) It is presumed that the owner of the motor vehicle committed the
violation alleged in the notice of violation mailed to the person if the motor vehicle
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depicted in a photograph or digital image taken by a photographic traffic signal
enforcement system belongs to the owner of the motor vehicle.
(b) If, at the time of the violation alleged in the notice of violation, the
motor vehicle depicted in a photograph or digital image taken by a photographic
traffic signal enforcement system was owned by a person in the business of
selling, renting, or leasing motor vehicles or by a person who was not the person
named in the notice of violation, the presumption under paragraph (a) is rebutted
on the presentation of evidence establishing that the vehicle was at that time:
(1) being test driven by another person;
(2) being rented or leased by the vehicle's owner to another
person; or
(3) owned by a person who was not the person named in the
notice of violation.
(c) Notwithstanding section 18 -338, the presentation of evidence under
paragraph (b) by a person who is in the business of selling, renting, or leasing
motor vehicles or did not own the vehicle at the time of the violation may be
made by affidavit, through testimony at the administrative adjudication hearing
under section 18 -338, or by a written declaration under penalty of perjury. The
affidavit or written declaration may be submitted by mail to the Department.
(d) If the presumption established by paragraph (a) is rebutted under
paragraph (b), a civil penalty and late payment penalty may not be imposed on
the owner of the vehicle or the person named in the notice of violation, as
applicable.
(e) If, at the time of the violation alleged in the notice of violation, the
motor vehicle depicted in the photograph or digital image taken by the
photographic traffic signal enforcement system was owned by a person in the
business of renting or leasing motor vehicles and the vehicle was being rented or
leased to an individual, the owner of the motor vehicle shall provide to the
Department the name and address of the individual who was renting or leasing
the motor vehicle depicted in the photograph or digital image and a statement of
the period during which that individual was renting or leasing the vehicle. The
owner shall provide the information required by this paragraph not later than the
30 day after the date the notice of violation is received. If the owner provides
the required information, it is presumed that the individual renting or leasing the
motor vehicle committed the violation alleged in the notice of violation and the
Department may send a notice of violation to that individual at the address
provided by the owner of the motor vehicle.
Page 9
Sec. 18 -338. Administrative adjudication hearing.
(a) A person who receives a notice of violation under this article may
contest the imposition of the civil penalty specified in the notice of violation by
filing a written request for an administrative adjudication hearing. The request for
a hearing must be filed with the Department not later than the 30 day after the
date the notice of violation was mailed.
(b) If the person requesting the hearing either fails to appear at the
hearing, or if the hearing officer determines that there was a violation, and the
person requesting the hearing either elects not to appeal, or if the person
requesting the hearing is unsuccessful on an appeal filed under Section 18 -341,
the Department shall assess a fee of Thirty -Five Dollars and no cents ($35.00)
against the person requesting the hearing.
(c) On receipt of a timely request for an administrative adjudication
hearing, the Department shall notify the person of the date, time and place of the
hearing. The hearing shall be held within 30 days of the request for a hearing
unless the person who receives the notice of violation is granted a delay by the
hearing officer.
(d) A hearing officer designated by the City Council shall conduct the
administrative adjudication hearing. The hearing officer shall have authority to
issue orders compelling the attendance of witnesses and the production of
documents.
(e) In an administrative adjudication hearing, the issues must be
proven by a preponderance of the evidence.
(f) The reliability of the photographic traffic signal enforcement system
used to produce the recorded image of the motor vehicle involved in the violation
may be attested to by affidavit of an officer or employee of the Department who is
responsible for inspecting and maintaining the system.
(g) An affidavit of an officer or employee of the Department that alleges
a violation based on an inspection of the applicable recorded image is:
(1) admissible in the administrative adjudication and in an
appeal under section 18 -341; and
(2) evidence of the facts contained in the affidavit.
(h) It shall be an affirmative defense to liability under this article, to be
proven by the person contesting liability by a preponderance of the credible
evidence, that:
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(1) the person was operating the motor vehicle in compliance
with the lawful order or direction of a police officer, fire fighter
or other person authorized by local, state or federal law to
direct or control traffic;
(2) the person had no other choice but to violate the instructions
of the traffic - control signal in order to yield the right -of -way to
an immediately approaching authorized emergency vehicle;
(3) the person was operating an emergency vehicle as defined
in chapter 546 of the Texas Transportation Code and that
the person with acting in compliance with that chapter;
(4) the license plate depicted in the recorded image was a
stolen plate and being displayed on a motor vehicle other
than the motor vehicle for which the plate had been issued;
(5) at the time of the violation, and if the owner is a natural
person, the vehicle was being operated by a person other
than the owner of the vehicle and the owner, in the
proceeding, provides the name and current home address of
the person who was operating the vehicle at the time and
place of the violation;
(6) prior to the time of the violation, the owner transferred title to
the motor vehicle described in the notice of violation to
another person or entity and the owner, in the proceeding,
provides the name and current address of the subsequent
owner of the vehicle; and
(7) the person was arrested or issued a citation and notice to
appear by a peace officer for a violation of section
544.007(d) of the Texas Transportation Code which was
recorded by the photographic traffic signal enforcement
system.
(i) To demonstrate that at the time of the violation the motor vehicle
was stolen or that the license plate displayed on the vehicle was stolen, the
owner must submit proof acceptable to the hearing officer that the theft of the
vehicle or license plate was reported to the appropriate law enforcement agency.
(j) In the event that the owner submits the proof described in section
18- 335(b)(10)(F) or in the event that the owner establishes the affirmative
defense described in section 18- 338(g)(5) or rebuts the presumption of violation
described in section 90 -337, the Department may issue a notice of violation to
the person alleged by the owner to have been driving the motor vehicle at the
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time of the violation within 30 days of the Department's receipt of the proof
described in sections 18- 335(b)(10)(F) and 18- 337(b) or within 30 days of the
hearing at which the owner established the affirmative defense described in
section 18- 338(g)(5).
Sec. 18 -339. Untimely Request for Administrative Hearing.
Notwithstanding any other provision of this article, a person who receives a
notice of violation under this article and who fails to timely pay the amount of the
civil penalty or fails to timely request an administrative adjudication hearing is
entitled to an administrative adjudication hearing if:
(1) the person submits a written request for the hearing to the
designated hearing officer, accompanied by an affidavit that attests
to the date on which the person received the notice of violation; and
(2) the written request and affidavit are submitted to the hearing officer
within 30 days after the date the person received the notice of
violation.
Sec. 18 -340. Order.
(a) The hearing officer at the conclusion of any administrative
adjudication hearing under this article shall issue an order stating:
(1) whether the person charged with the violation is liable for the
violation; and
(2) the amount of any penalty, cost, or fee assessed against the
person.
(b) The orders issued under subsection (a) must be in writing and
signed and dated by the hearing officer and may be filed with the City Secretary
who shall keep the orders in a separate index and file. The orders may be
recorded using microfilm, microfiche, or data processing techniques.
Sec. 18 -341. Appeal.
(a) The owner of a motor vehicle determined by a hearing officer to be
liable for a civil penalty may appeal that determination to a judge by filing an
appeal petition with the clerk of the Municipal Court.
(b) The petition must be:
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(1) filed before the 31 day after the date on which the
administrative adjudication hearing officer entered the finding
of liability for the civil penalty; and
(2) accompanied by the payment of the appellate filing fee of
$50.00 to cover the costs required by law for the court.
(c) The court clerk shall schedule a hearing and notify the owner of the
motor vehicle and the Department of the date, time, and place of the hearing.
(d) An appeal stays enforcement and collection of the civil penalty and
any late penalty imposed against the owner of the motor vehicle. The owner
shall file a notarized statement of personal financial obligation to perfect the
owner's appeal.
(e) An appeal under this section shall be determined by the court by
trial de novo. All evidence submitted at the administrative hearing shall be and
any additional relevant evidence may be admitted in the trial.
(f) The Municipal Court shall have exclusive appellate jurisdiction
within the City's territorial limits in cases arising under this article.
Sec. 18 -342. Imposition of Civil Penalty Not a Conviction.
The imposition of a civil penalty under this article is not a criminal
conviction and may not be considered a conviction for any purpose.
Sec. 18 -343. Enforcement.
In accordance with section 701.017 of the Texas Transportation Code, if
the owner of a motor vehicle is delinquent in the payment of a civil penalty
imposed under this article, the county assessor - collector or the Texas
Department of Transportation may refuse to register a motor vehicle alleged to
have been involved in the violation.
Sec. 18 -344. Failure to Pay Civil Penalty.
(a) If the owner of the motor vehicle fails to timely pay the amount of
the civil penalty imposed against the owner:
(1) an arrest warrant may not be issued for the owner; and
(2) the imposition of the civil penalty may not be recorded on the
owner's driving record.
Page 13
(b) Notice of subsection (a) must be included in the notice of violation
required by section 18 -335.
(c) The City Attorney is authorized to file suit to enforce collection of
any civil penalties and late payment fees assessed under this article.
Sec. 18 -345. Revenue from Civil Penalties and Other Fees.
(a) Not later than the 60th day after the end of the City's fiscal year,
after deducting amounts the City is authorized by subsection (b) to retain, the
City shall:
(1) send 50 percent of the revenue derived from civil or
administrative penalties collected by the City under this
section to the comptroller for deposit to the credit of the
regional trauma account established under section 782.002
of the Texas Health and Safety Code; and
(2) deposit the remainder of the revenue in a special account in
the City's treasury that may be used only to fund traffic
safety programs, including pedestrian safety programs,
public safety programs, intersection improvements, and
traffic enforcement.
(b) The City may retain an amount necessary to cover the costs of:
(1) purchasing or leasing equipment that is part of or used in
connection with the photographic traffic signal enforcement
system in the City;
(2) installing the photographic traffic signal enforcement system
at sites in the City, including the costs of installing cameras,
flashes, computer equipment, loop sensors, detectors, utility
lines, data lines, poles and mounts, networking equipment,
and associated labor costs;
(3) operating the photographic traffic signal enforcement system
in the City, including the costs of creating, distributing, and
delivering violation notices, review of violations conducted by
City employees, the processing of fine payments and
collections, and the costs associated with administrative
adjudications and appeals; and
Page 14
(4) maintaining the general upkeep and functioning of the
photographic traffic signal enforcement system."
SECTION 2.
This ordinance shall be cumulative of all provisions of ordinances and of the
Code of Ordinances of the City of Southlake, Texas, as amended, except where the
provisions of this ordinance are in direct conflict with the provisions of such ordinances
and such Code, in which event the conflicting provisions of such ordinances and such
Code are hereby repealed.
SECTION 3.
That should any sentence, paragraph, subdivision, clause, phrase or section of
this ordinance be adjudged or held to be unconstitutional, illegal or invalid, the same
shall not affect/ the validity of this ordinance as a whole, or any part or provision thereof
other than the part so decided to be invalid, illegal or unconstitutional, and shall not
affect the validity of the Code of Ordinances as a whole.
SECTION 4.
The City Secretary of the City of Southlake is hereby directed to publish this
ordinance to the extent required by law.
SECTION 5.
This Ordinance shall take effect immediately from and after its passage and
approval, and it is so ordained.
Page 15
PASSED AND APPROVED on the 1st reading the day of
, 2007.
MAYOR
ATTEST:
CITY SECRETARY
PASSED AND APPROVED on the 2nd reading the day of
, 2007.
MAYOR
ATTEST:
CITY SECRETARY
APPROVED AS TO FORM AND LEGALITY:
CITY ATTORNEY
Page 16
AGREEMENT BETWEEN THE CITY OF SOUTHLAKE
AND REDFLEX TRAFFIC SYSTEMS, INC. FOR
PHOTO RED LIGHT ENFORCEMENT PROGRAM
This Agreement (this " Ag g reement '') is made as of this - 3( day of August, 2007 by
and between Redflex Traffic Systems, Inc. with offices at 15020 N. 74"' Street,
Scottsdale, Arizona 85260 ( " Redfl ex "), 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 "party."
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
WTTEREAS, the Customer desires to engage the services of Redflex to provide
certain equipment, processes and back offiee services so that sworn police officers of the
Customer are able to monitor, identify and enforce red light runnin violations as
prescribed under Ordinance No. ( "Ordinance "), providing for Automated
Traffic Signal Enforcement (herein referred as the "Red Light Photo Enforcement
Program'); and
) dT=REAS, it is a mutual objective of both Redflex and the Customer to reduce
the incidence of vehicle collisions at the traffic intersections and of 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. DEF`£NIT -tQNS 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(y) 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, 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.
REDFLEX CONTRACT PAGE 1 OF 32
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1.3. " Notice of Violations means the notice of a Violation, which is mailed or
other 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 natur(, 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 )7,7ith 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 secrcts" shall mean the broadest
and most inclusive interpretation of trade secrets.
1.43. Notwithstanding the foregoing, Confidential lnformation 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 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 Potcntial Violation using the Redflex System.
REDFI.EX CONTRACT PAGE 2 OF 32
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L7. " Enforcement Documentation means the necessary and appropriate
documentation related to the Photo Red Light Enforcement Program, including
but not limited to - warning letters, violation notices (using city specifications), a
numbering sequence for use on all Notice of Violation, instructions to
accompany each issued Notice of Violation (including in such instructions a
description of basic adjudication procedures, payment options and information
regarding the viewing of images and data collected by the Redflex System),
chain of custody records, criteria regarding operational policies for processing
Notices of Violation (including with respect to coordinating with the. Departs - n nt
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 5ystem(s), including but not limited to all camera
systems, housings, radar units, severs and poles.
1.9. "' means a monetary sure 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 an) of the foregoing.
1.11. " Iristallation bate of the Photo Red Light Program means the date on
Which Rcdflex completes the construction and installation of at least one (1)
Intersection Approach in accordance with the terrn.s 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 «rith
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
riglits (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.
REpFLEX CONTRACT PAGE 3 OF 32
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1.13. " Intersection Approach means a conduit of travel with up to four (4)
contiguous lanes from the curb (e.g., northbound, southbound, castbound 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, fine, 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 street and/or Intersection Approach, the data collected
by the Red 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. " Propriet , Pte '' 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 prim outs, other - "gitten 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.
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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, ,soft rare and
other tangible and intangible property relating thereto.
1.22. " Red Liglit Photo Enforcement Program means the process by which the
monitoring, identification and enforcement of Violations is facilitated by the use
of certain equipment, applications and back office processes of Redflex,
including but not limited to cameras, flashes, central processing units, signal
controller interfaces and detectors (whether loop, radar or video loop) which,
collectively, are capable of measuring Violations and recording such Violation
data in the form of photo graphic 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. v
1.25. " Sm.artQpST 111 System means the proprietary back - office processes of
Redflex relating to the Red Light Photo Enforcement Program.
REDFLEX CONTRACT PAGE 5 OF 32
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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 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. TE RM. The term of this Agreement shall commence as of the date hereof and shall
continue for a period of five (5) years after the Installation Date (the " Initial T= ").
The Customer shall have the right, but not the obligation., to extend the term of this
Agreement for up to two (2) additional consecutive and automatic two (2) year
Periods following the expiration of the Initial Term (each, a " Renewal Tenn and
collectively with the Initial Term, the " Term "). The Customer may exercise the right
to extend the terra 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. SERWCES 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.
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 follows:
REI7PLEx CONTRACT PAGE 6 OF 32
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3.3. 1. All Violations Data shall be stored on the Redflex System;
3.3.2. The Redflex System shall process Violations Data gathered from the
Designated city streets and/or Intersection Approaches into a format capable
of review by the Authorized Officer via the Redflex System;
3.33. The Redflex System shall be accessible by the Authorized Officer through
a virtual private network in encrypted format by use of a confidential
passjvord on any computer equipped with a high -speed internet connection
and a web browser,
3.3.4. Redflex shall provide the Authorized Officer Arith access to the Redflex
System for the purposes of reviewing the pre- processed Violations Data
within an average of four (4) days of the gathering of the Violation Data
from the applicable Designated city streets and/or Intersection Approaches
3.3.5. The Customer shall cause the Authorized Officer to review the Violations
Data and to determine whether a Notice of Violation shall be issued with
respect to each Potential Violation captured within such Violation Data, and
transmit each such determination in the form of an Electronic Signature to
Redflex using the software or other applications or procedures provided by
Redflex on the Redflex System for such purpose, and REDFLEX HEREBY
ACKNOVdI.EDGES 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;
33.5. Vdith 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; provide d, 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.
3.3.5. Redflex shall permit the Autlorized Officer to generate reports as nceded
using the Redflcx 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
REDFLEX CONTRACT PACE 7 OF 32
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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 rcgarding 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 seep 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 auy 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
" Chance Order Notice "). Upon Redflex's receipt of a Change Order Notice,
REDFLEY CONTRACT PAGE S OF 32
1�i:lSavth4akelA�eementslRedflex .003. doo
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 breakdc)wn 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 Equipmcnt 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 aecordance )- pith Section 10.
4. License; Resen of
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 Systein 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.
REDFLEx CONTRACT PAGE 9 OF 32
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4.3. RESTRICTED USE The Customer hereby covenants and agrees that it shall not
(a) make any modifications to the Redflex. System, including but not limited to
any Equipment, (b) alter, remove or tamper with any Redflex Marks, (c) use any
of the Redflex Marks in any way which might prejudice their distinctiveness,
validity or the goodwill of Redflex therein, (d) use any trademarks or other marks
other than the Redflex Marks in connection with the Customer's use of the
Redflex System pursuant to the terms of this Agreement without first obtaining
the prior consent of Redflex, or (e) disassemble, de- compile or otherwise perform
any type of reverse engineering to the Redflex System, the Redflex System,
including but not limited to any Equipment, or to any, Intellectual Property or
Proprietary Property of Redflex, or cause any other Person to do any of the
foregoing.
4.4. PROTECTION OF RIGHTS Redflex shall have the right to take whatever
action it deems necessary or desirablc to remedy or prevent the infringement of
any Intellectual Property of Redflex, including without linutation 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 CONTRACT PAGE 10 OF 32
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Redflex in the defense thereof; - 2rovided that Redflex shall reimburse the
Customer for any reasonable costs incurred in pro -riding 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 Re resenta-tions and Warranties.
5.1.1. Authorily. Redflex hereby warrants and represents that it has all right,
power and authority to execute and deliver this Agreement and perform its
obli 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, v,'th respect to
the installation of the Redflex System, subject to applicable law, in
compliance N pith all specifications provided to Redflex by the Customer.
5.2. Customer Re resentations 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 INT 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 - \VITH 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,
REDFLEX CONTRACT PAGE 11 OF 32
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AND SUBJECT TO THE TERMS OF THIS AGREEMENT, REDFLEX SHALL
DILIGENTLY ENDEAVOR TO CORRECT ANY SUCH MALFUNCTION IN
A TIN4F_LY MANNER.
6. Termination.
6.1. TERYUNA'1! ION 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
en.forcernent systems; (ii) any court having jurisdiction over the city 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; (iii) the
other party commits any material breach of any of the provisions of this
Agreement; or (iv) the Texas Legislature enacts any laws regarding photo red
light enforcement systems that negatively impacts Customer. In the event of a
termination due to Section 6.1(i) or 6.1(ii) above, Customer shall be. relieved of
any further obligations for payment to Redflex other than as specified in Exhibit
"D ". Either party shall have the right to remedy the cause for termination (Sec
6.1) within forty -five (45) calendar days (or 'Mthirn such other time period as the
Customer and Redflex shall mutually agree, which agreement shall not be
unreasonably - ,Adthhcld or delayed) after Nvritten notice from the non - causing
parry setting forth M' 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 pare 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:
63.1. 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 ul connection with
REDFLEX CONTRACT PAGE 12 OF 32
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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.
6.33. 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 vehicles and Designated Intersection Approaches to
substantially the same condition such Designated Intersection Approaches
were in immediately prior to this Agreement.
6.4. SURVINTAL 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 'Narranties), 53 (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 Perforinance) 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 in tent 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. CONFIDENTMLITY 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 parry 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 infonnation strictly
REDI=LEX CONTRACT PAGE 13 OP 32
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confidential, and (c) pursuant to, and to the extent of, a request or order by any
Governmental Authority, including laws relating to public records.
S. Indemnification and Liability.
8.1. Indemnificatioln 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, settle - meats, 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
Parts arising out of or related to (a) any material misrepresentation, inaccuracy or
breach of any co 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 an) 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 irnm uaities 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 Redflcx 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 - villful 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.
REDFLEX CONTRACT PAGE 14 OF 32
«T:IS out1t1a1,:e1A �ee�entslRedIlex.003.doe
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
parry from whom indemnifi cation 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 light to choose counsel to defend such Claim
(subject to the approval of such counsel by the Indemnified Pare, 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 indenu from and by the Indemnifying Party. The
Indemnifying Party and the Indemnified Party shall cooperate in the defense or
settlemc -nt of an) Claim, and no party shall have the right enter into any
settlement agreement that materially affectss the other party's material rights or
material interests without such party's prior written consent, �Ahich consent will
not be unreasonably withheld or delayed.
5.4. LIMITED LIABILITY Notuithstanding an�gl ing to the contrary in this
Agreement, neither party shall be liable to the other, by reason of any
representation or express or implied - v=anty, condition or other term or any duty
at common or ci '\ail la for an) 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"' Street
Scottsdale, AZ 85250
Attention: Ms. Karen Finley
Facsimile: (480) 507 -5552
REDFLEX CONTRACT PAGE 15 OF 32
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9.2. Notices to the Customer:
City of Southlake
Attention: City Manager
Re: Official Notification
1400 Main St., Suite 460
Southlake, Texas 75092
10. DISPUTE RESOLUTION Upon the occurrence of any dispute or disagreement
between the parties hereto arising out of or in connection with any terra 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 parry, 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 deein 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 -Mth 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
REDFLEx CONTRACT PAGE 15 OF 32
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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 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 - Mthin the city under similar terms and
conditions as contained in this Agreement.
11.x. RELATIONSHIP BETWEEN REDFLEX AND THE CUSTOMER
Nothing in this Agreement shall create, or be deemed to create, a partnership,
joint venture or the relationship of principal and agent or employer and employee
between the parties. The relationship between the parties shall be that of
independent contractors, and nothing contained in this Agreement shall create the
relationship of principal and agent or otherwise permit either party to incur any
debts or liabilities or obligations on behalf of the other party (except as specifically
provided herein).
11.4. AUDIT RIGHTS Each of parties hereto shall have the right to audit to
audit the boobs and records of the other party hercto (tile " Audited PaM ") 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 - cight
(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
Parry. 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
Ab eement, 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 Wienty -five percent (25 %) of the amount of actually
owing, the cost of such audit shall be borne by the Audited Party. In the event
any such audit establishes any overpayment by the Audited Party of any payment
made pursuant to this Agreement, non- Audited Party shall promptly refund to the
Audited Party the amount of the excess.
11.5. FORCE 11fiAJEURE 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 rcquires remittance of any and/or all of the Revenue that Customer is
required to pay to Redff ex, or Governmental Authorities approval delays which
are not caused by any act or omission by Redflex, and unusually severe - weather.
REDFLEx CONTRACT PAGE 17 OF 32
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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), vFrhether 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.$. 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 terra, 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
party shall be required to produce an original or all of such counterparts in
making such proof.
11.12. COVENANT OF FURTHER ASSURANCES All parties to this
Agreement shall, upon request, perform any and all acts and execute and deliver
any and all certificates, instrumcnts 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
REDFT.EY CONTRACT PAGE 19 OF 32
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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. BE\TDTNG EFFECT This Agreement shall inure to the benefit of and be
binding upon all of the parties hereto and their respective successors and
peirnitted 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 bet ccn any term, condition or provision of this
Agreement and any present or future statute, law, ordinance or regulation
contrary to Nvhich 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), 43
(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 LANK This Agreement shall be govemed 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 LA - K THE
FAILURE TO PASS SUCH ORDINANCE ON OR BEFORE JANUARY 1,
2009 SHALL INVALIDATE THIS AGREEMENT. NO PAYMENT SHALL BE
REDFLEX CONTRACT PACE 19 OF 32
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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.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of
the day and year Erst set forth above.
"Custoiner"
CITY Og SOUTHLAKE
CITY MANA
ATTEST: �� u H
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CITY SECRETAR
APPRO AS TO FO
ATTORNEY
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"Redflex"
REDFLEX TRAFFIC SYSTEMS, INC.,
r
B3T:
Name: �tir��+ ti 111f
Title:
REDFLEX CONTRACT PAGE 20 OF 32
'v�r:\SDUtlalakclA 003.doc
EXF1T_BIT "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 Customer as
warranted by community safety and traffic needs.
REDFLEX CONTRACT PAGE 21 OF 32
4V:15onUal:elAueements\Redflex. DD3.doc
E)=IT "B"
Construction and Installation Obligations
Tirnefi ame 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 intersections - \Aithin the first =J ety (9 0) days subsequent to formal project kick-
off. Any additional intersections will be added - sA ithin thirty (30) days of receipt of a
notice to proceed. The Customer agrees that the estimated timeframe for installation and
activation are subject to conditions beyond the control of Redflex and are not guaranteed.
in order to provide the client «rith timely completion of the photo enforcement project
Redflex Traffic Systems requires that the Customer assist with providing timely approval
of city pernnit requests. 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 city engineers review of Redflex permit requests and all documentation within a
two business days. Redflex will also review and correct if necessary any redlines with in
two business days. Permits need to be received within five business days of first
submittal in order to implement the program in a timely manner.
1. Redflex Obligations. Redflex shall do or cause to be done each of the folio (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;
12. Request current "as- built" electronic engineering drawings for the Designated
Intersection Approaches (the "Drawings ") from the city traffic engineer if
available,
1.3. Develop and submit to the Customer for approval construction and installation
specifications in reasonable detail for the Designated Intersection Approaches,
including but not limited to specifications for all radar scissors, 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
REDFLEX CONTRACT PAGE 22 OF 32
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Designated Intersection Approaches (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 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 - svith 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;
REDFLEX CONrTRACT PAGE 23 OF 32
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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
1.1'7. Redflex will work with the Customer to develop a cozxlprehcnsivc 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 ` & Myths"
handout; a inap 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 Departnaient'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.
1.13. 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 obtainua , access to the records data of the
Texas Department of Transportation in Redflex's capacity as an independent
contractor to the Customer; and
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2.1.5. Assist Redflex in seeking the Approvals for permits;
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
in.fbrmation 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..
REDFLEX CONTRACT PAGE 25 OF 32
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EXHIBIT "C"
Maintenance
1. AD 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 ,vithout a representative of
Customer's Public Works or Engineering Department being present.
3. The provision of all nccessary communication, broadband and telephone services to
the Designated Intersection Approaches gill 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 the Customer at non -TxDOT right -of-
Ways.
5. In the event that images of a quality suitable for the Authorized Officer to identify
Violations cannot be reasonably obtained v6thout 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 Proj ect Manager each day, on a reasonable best efforts basis.
REDFLEX CONTRACT PAGE 26 OF 32
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EX.EIMIT "D"
CONIPENSATIONT & PRICING
Variable Fee Structure
. Tier
Citations Paid (Average Per
Fee
Fee
S stem er Month)
IVlonth)
Tier
6+ citations paid per clay (181+
$28
3
per month)
'pier
4 -6 citations paid per day (91 to
$38
2
180 per month)
per month)
Tier
1 -3 citations paid per day (rip to
$48
1
90 per month)
50.667% or
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 40 paid citations
and $3 8 for the next 80 paid citations.
a 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 Customer will be
deducted from the payment to the Customer at the original rate they were
previously paid to the Customer.
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
Goss receipt
Fee
IVlonth)
based on $75
Huse
'Fier
6+ citations paid per day (181+
x$13,501
37.31%o
3
per month)
$28
'pier
4 -6 citations paid per day (90 to
$6,751- 813.500
50.667% or
2
180 per month)
838
Tier
1 -3 citations paid per day (up to
$0-$6,750
64% or S48
1
90 per month
BUSINESS ASSUAIPTIEINS FOR ALL PRICING OPTIONS:
1. Redflex construction will be able to utilize existing conduit for installation where
space is available.
2. The Custolncr agrees to pay Redflex within this[ (30) days after the invoice is
received. A monthly late fee of 1.5% is payable for amounts remaining unpaid 60
days from date of invoice.
3. Each year, beginning with the second year of the Initial Term, the pricing will be
adjusted by the Consumer Price Index (CPI) as published by the U.S. Department of
Labor.
REDFLEX CONTRACT PAGE 27 OF 32
w:lSouthlakelAgreementslRedfl ex .003. doe
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 dcvelopment 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. 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 dete the placement of such Signage. Redflex shall be solely responsible for
installing 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 Bate, 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 Programs 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 miming 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.
REDFLEX CONTRACT PAGE 28 OF 32
W:\Southl akelAzreernentsaodflex.003. doc
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 at Redflex's sole cost and
expense the following insurance coverage with respect to claims for injuries to
persons or damages to property -which may arise from or in connection with the
performance of work or services pursuant to this Agreement by Redflex, and each of
Redflex's subcontractors, agents, representatives and employees:
2. Commercial General Liability lnsurance. 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 accident for bodily injury or property damage, including but not
limited to coverage for all automobiles owned by Redflex and hired by Redflex..
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 claim and in the aggregate.
5. Workers' Compensation and Employer's Liability Insurance. Workers'
Compensation Insurance with coverage of not less than that required by the Labor
Code of the State of Texas, and 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 named as additional insureds with respect to the
Commercial General Liability insurance, and such coverage shall contain no special
limitations on the scope of protection afforded to such additional insureds.
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
REDFLEx CONTRACT PAGE 24 of 32
W:15outhI ai:elAareementslRedfl ex, OD3.doc
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 the such insurance coverage shall apply separately
with respect to each additional insured against whom any claim is made or suit is
brought, except Frith respect to the limits set forth in such insurance policies.
11. With respect to the insurance described in the foregoing Section of dais Exhibit E, if
any of the Redflex Parties are notified by any insurer that any insurance coverage will
be cancelled, Redflex shall immediately provide Written notice 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
,Adthout 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 preau'um costs advanced by the Customer for such insurance exceed any
amounts due to Red�ex 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 c Odencing the insurance required
pursuant to the terms of this Agreement, NY,Thich 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.
REDFLEX CONTRACT PAGE 30 OF 32
W:\Southlake\A--Tbtments\Redflex.003.doc
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 "), wrth reference to the Agreement for Red Light Photo
Enforcement Program, dated as of by and bet�reen the City and
Redflex (the "Agreement ").
1. Redflex has entered into a Credit Agreement, dated as of August 3,2004
(the "Harris - Redflex Credit Agreement "), with Harris Trust and Savings Bank (the
"Bank "), pursuant to which the Bank has provided certain working capital credit facilities
to Redflex. Such credit facilities will provide Redflex the working capital that it needs to
perform its obligations to the City under the Agreement.
2. Pursuant to the Harris - Redflex Credit Agreement, Redflex has granted
Harris a security interest in all of Redflex's personal property as collateral for the
payment and performance of Redflex's obligations to the Bank under the Harris Redflex
Credit Agreement. Such securi - Ly interest applies to and covers all of R(-,dflex's contract
rights, including, without limitation, all of Redflex's rights and interests under the
Agreement.
3. Redflex X711 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 Agrccment.
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 fitrther 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 v n'tten.
The City of Southlake, Texas:
By:
z ie: �Ccfi
RED=X CONTRACT
ACT
W:1Southl akelAsreementslRed4ex.003.doc
Redflex:
REDFLEX TRAFFIC SYSTEMS, INC.
By
Title: UVJt�4-Cei)
PAGE 31 OF 32
Exhibit "G"
Traffic Control and Signal Preemption Equipment contract between HGAC and Redflex
Traffic Systems, Inc.
REDFLEX CONTRACT PAGE 32 OF 32
W:1Southla} e1A�,reements\Redflex.003.doc