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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. Page 1 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. Page 2 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. Page 3 (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. Page 4 (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; Page 5 (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; Page 6 (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; Page 7 (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 Page 8 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: Page 10 (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 Page 11 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: Page 12 (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 W:%Southlake- \AuoomentslRedt3ex 003.doc 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 W:% SouthlakelAgreementsaedflex.003 ,doc 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 w:%Southlake\Ag, eements\Redflex.003,doe 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. AEDFLEX CONTRACT PAGE 4 OF 32 «i:ISout}ilakelA�eementslRedtl ex. D03.doc 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 w:\SQuthlakelA u=mentsURedflex.003, doc 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 Tv:lSouthIal:elA�eementslRedfl ex.443.doc 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 w:ISou&lal;e\AgTtements\Redfl ex.003. doe 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 W:ISouthl akrlAUeein ents\Redflex.003.doc 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 V1 :15out1xIakelAoreementslRedf�ex .003. doc 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 W:1 Southtake \A.gTeements\Red'Sex.003. doc 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 W:lsouthlakelA�eement5\Redfl ex. D43.doc 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 W:ISouthla1ce1A2rDc crytslRed#lex.003.doc 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 W:15outhla]:elAsreernents\Redfl ex.003. doc 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 W:lsoutMake\, �_ oem- nts\Redf1ex.003.doc 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 W:lsouthlake\AzreementslRedf3 ex. Q03.doc 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 W :1South]aktl�eements\Redrlex. D03.doc 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 IV:ISoutMai:elA --reements\Redflex.003. doc 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 t d oD @® CITY SECRETAR APPRO AS TO FO ATTORNEY w � °yea c` F6 t d c e� r ff. � c 4 P, r 6f f � LS ,� o �. e �� 44t � t cv. °c "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 w:ISouthial e1A�eemenslTZedf7ex.003.doc 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 Vd:lSouthlal,e\Aa ceementslRedflex.003.doc 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 REDFLEX CONTRACT PACE 24 OF 32 W :1Southl al<e1AgeementslRedflex.003.doc 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 W: \SouthlakelAgreements\Rtdf3 ex.003. doc 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 W :\South] ak-e\Agireernents\Redfl ex. 003.doe 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