EXCLUSIVE AGREEMENT FOR AN AUTOMATED PHOTO ENFORCEMENT PROGRAMEXCLUSIVE AGREEMENT BETWEEN THE CITY OF CLEARWATER, FLORIDA AND REDFLEX
TRAFFIC SYSTEMS, INC. FOR AN AUTOMATED PHOTO ENFORCEMENT PROGRAM
This Agreement (this "Agreement") is made as of (Q(1,)-- 2 , 20 19 ("Execution Date")
between Redflex Traffic Systems, Inc., a Delaware Corporation ("Redflex"), and the City of Clearwater, Florida, a
municipal corporation (the "Customer" and/or the "City"), for an Automated Photo Enforcement Program.
RECITALS
A. Violations of Fla. Stat. Ann. §§ 316.074(1), 316.075(1)(c), and local ordinance of the City of Clearwater,
Florida for failing to stop for a red Tight or failing to stop for a red arrow, have been shown to pose a significant
risk to life and property;
B. It is the objective of the Automated Photo Enforcement Program to reduce the incidents of vehicle collisions
at the traffic intersections and city streets that are subject to the Program;
C. On or about November 22, 2011, the Parties entered into the Exclusive Agreement Between the City of
Clearwater, Florida and Redflex Traffic Systems, Inc. for Traffic Camera Safety Improvement Program for
Redflex to assist the City with its photo enforcement program ("2011 Agreement");
D. On or about August 13, 2015, the Parties entered into the Extension and Clarification of [the] Exclusive
Agreement Between the City of Clearwater, Florida and Redflex Traffic Systems, Inc. for Traffic Camera
Safety Improvement Program to extend the term of the 2011 Agreement and to make other modifications
("First Amendment") (the First Amendment together with the 2011 Agreement, collectively, the "Original
Agreement");
E. From time to time, the Parties have extended the Original Agreement, and the term of the Original Agreement
is set to expire on October 30, 2019;
F. On or about September 1, 2017, the National Cooperative Purchasing Alliance ("NCPA") awarded Redflex
the Traffic Control, Enforcement, & Signal Preemption Equipment contract to allow NCPA member agencies
the opportunity to procure photo enforcement equipment;
G. As an NCPA member agency, the City desires to procure photo enforcement services through the NCPA;
and
H. The City desires that Redflex furnish and Redflex desires to furnish all equipment, licenses, applications and
back office processing related to the Automated Photo Enforcement Program, including digital traffic
enforcement cameras and equipment for the monitoring and enforcement of laws regulating red lights and
traffic signals.
The Parties accordingly agree as follows:
AGREEMENT
1. DEFINITIONS. In this Agreement, the words and phrases capitalized below shall have the following meanings:
1.1. "Authorized Employee" means the Project Manager or such other individual(s) as the Customer shall
designate to review Potential Violation and to authorize the issuance of Notices of Violation.
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 Employee by
using the Redflex System.
1.3. "Automated Photo Enforcement Program" or "the Program" are interchangeable and synonymous and mean
the process by which the monitoring, identification and enforcement of Violation is facilitated by the use of
certain equipment, applications and back office processes of Redflex, including but not limited to cameras,
flashes, central processing units, signal controller interfaces and sensor arrays which, collectively, are
capable of detecting Violation and recording Violation Data in the form of photographic images of motor
vehicles
1.4. "Business Rules" means the set of rules, guidelines, structures and methods of operation that define specific
operational components of the Program.
1.5. "Confidential or Private Information" means, with respect to any Person, any information, matter or thing
of a secret, confidential or private nature, whether or not so labeled, which is connected with such Person's
business or methods of operation or concerning any of such Person's suppliers, licensors, licensees,
customers or others with whom such Person has a business relationship, and which has current or potential
value to such Person or the unauthorized disclosure of which could be detrimental to such Person, including
but not limited to:
1.5.1. 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
1.5.2. Matters of a technical nature, including but not limited to product information, trade secrets, know-
how, formulae, innovations, inventions, devices, discoveries, techniques, formats, processes, methods,
specifications, designs, patterns, schematics, data, access or security codes, compilations of
information, test results and research and development projects. For purposes of this Agreement, the
term "trade secrets" shall have the meaning provided under Florida law.
1.5.3. Notwithstanding the foregoing, Confidential Information will not include information that: (i) was
generally available to the public or otherwise part of the public domain at the time of its disclosure,
(ii) became generally available to the public or otherwise part of the public domain after its disclosure
and other than through any act or omission of a Party in breach of this Agreement, (iii) was lawfully
disclosed to a Party by a person other than a Party, (iv) was required by a court of competent
jurisdiction to be disclosed, or (v) was required by applicable state law to be disclosed.
1.6. "Designated Intersection Approaches" means the Intersection Approaches that the Parties mutually agree
on from time to time. See Exhibit A for the number of approaches.
1.7. "Elect nic Signature" means the method through which the Authorized Employee indicates his or her
approval of the issuance of a Notice of Violation for a Potential Violation using the Redflex System.
1.8. "Enforcement Documentation" means the necessary and appropriate documentation related to the Program,
including but not limited to warning letters, Notice of Violation notices (using the specifications of the
applicable court(s) and the City, a numbering sequence for use on all Notice of Violation notices (in
accordance with applicable court rules), instructions to accompany each issued Notice of Violation
(including in such instructions a description of basic court procedures, payment options and information
regarding the viewing of images and data collected by the Redflex System), chain of custody records, criteria
regarding operational policies for processing Notices of Violation (including for coordinating with the
applicable vehicle registry), and technical support documentation for applicable court and judicial officers.
1.9. "Equipment" means any and all approach cameras, sensors, equipment, components, products, software and
other tangible and intangible property relating to the Program.
1.10. "&_e" means a monetary sum assessed for a Notice of Violation, including but not limited to bail forfeitures,
but excluding suspended fines.
1.11."Governmental Authority" means any domestic or foreign government, governmental authority, court,
tribunal, agency or other regulatory, administrative or judicial agency, commission or organization, and any
subdivision, branch or department of any of the foregoing.
1.12. "Intellectual Property" means, for any Person, any and all now known or later known tangible and intangible
(a) rights associated with works of authorship throughout the world, including but not limited to copyrights
and mask -works, (b) trademark and trade name rights and similar rights, (c) trade secrets rights, (d) patents,
designs, algorithms and other intellectual or industrial property rights, (e) all other intellectual and industrial
property rights (of every kind and nature throughout the universe and however designated), whether arising
by operation of law, contract, license, or otherwise, and (f) all registrations, initial applications, renewals,
extensions, continuations, divisions or reissues in force (including any rights in any of the foregoing), of
such Person.
1.13. "intersection Approach" means a conduit of travel with up to four (4) contiguous lanes from the curb (e.g.,
northbound, southbound, eastbound or westbound) on which at least one (1) system has been installed for
the purposes of facilitating the Program by the Customer.
I.14. "Lost Profits" means profits that would have been received by a party had the other party fully performed
this Agreement, including, but not limited to (a) revenues that would have been received by Customer on
account of Notice of Violation that might have been issued during periods in which the Redflex System was
not functioning properly, and (b) amounts that must be refunded or disgorged by Customer due to Fines
collected as a result of an improper or invalidly issued Notice of Violation.
1.15."Notice of Violation" means the notice of a Violation, which is mailed or otherwise delivered by Redflex
on behalf of the City to the violator on the appropriate Enforcement Documentation for each Authorized
Violation pursuant to the requirements of § 316.0083, Florida Statutes, as may be amended or reoodified.
1.16."Person" means a natural individual, company, Governmental Authority, partnership, firm, corporation,
legal entity or other business association.
1.17. "PLATESCAN® System" means the license plate scanning system of Redflex.
1.18. "Potential Violation" means for any motor vehicle passing through a Designated Intersection Approach, the
data collected by the Redflex System concerning such motor vehicle, which data shall be processed by the
Redflex System for the purposes of allowing the Authorized Employee to review such data and determine
whether a traffic violation has occurred.
1.19. "Project Manager" means the project manager appointed by the Customer in accordance with this
Agreement, which shall be an Authorized Employee and shall be responsible for overseeing the installation
of the Redflex System at the Designated Intersection Approaches and the implementation of the Program,
and which manager shall have the power and authority to make management decisions relating to the
Customer's obligations pursuant to this Agreement, including but not limited to change order authorizations,
subject to any limitations set forth in the Customer's chatter or other organizational documents of the
Customer or by the City Council or other governing body of the Customer.
1.20. "Proprietary Property" means for any Person, any written or tangible property owned or used by such Person
in connection with such Person's business, whether or not such property is copyrightable or also qualifies
as Confidential Information, including without limitation products, samples, equipment, files, lists, books,
notebooks, records, documents, memoranda, reports, patterns, schematics, compilations, designs, drawings,
data, test results, contracts, agreements, literature, correspondence, spread sheets, computer programs and
software, computer print outs, other written and graphic records and the like, whether originals, copies,
duplicates or summaries thereof, affecting or relating to the business of such Person, financial statements,
budgets, projections and invoices.
1.21. "Redflex Marks" means all trademarks registered in the name of Redflex or any of its affiliates, such other
trademarks as are used by Redflex or any of its affiliates on or in relation to the Program at any time during
the Term, service marks, trade names, logos, brands and other marks owned by Redflex, and all
modifications or adaptations of any of the foregoing.
1.22. "Redflex Proiect Manager" means the project manager appointed by Redflex in accordance with this
Agreement, who shall be responsible for overseeing the construction and installation of the Redflex System
and related equipment at the Designated Intersection Approaches and the implementation of the Program,
and who shall have the power and authority to make day-to-day management decisions relating to Redflex's
obligations pursuant to this Agreement; provided, however, the Redflex Project Manager does not have
authority to authorize change orders without additional Redflex approvals.
1.23. "Redflex System" means, collectively, the Salus® System, SMARTcam® System, the SMARTscene®
System, REDFLEXred® System, REDFLEXradar®" System, Alcyon System, HALO, the Program, and all
of the other equipment, applications, software, hardware, back office processes, servers, off-site backup
systems, cameras, sensors, components, motor vehicles and other related tangible and intangible property,
to enable Redflex to enforce a minimum of one lane of travel at a designated location.
1.24. "REDFLEXradar®" means the detection and tracking system of Redflex relating to the Program.
1.25. "REDFLEXrail® System" means the proprietary digital railroad grade crossing photo enforcement system
of Redflex.
1.26. "REDFLEXred® System" means the proprietary digital redlight photo enforcement system of Redflex
relating to the Program.
1.27."Salus® System" means the proprietary software that controls the systems of Redflex relating to the
Program.
1.28. "REDFLEXspeed® System" means the proprietary speed enforcement system of Redflex.
1.29. "REDFLEXstop® System" means the proprietary stop sign enforcement system of Redflex.
1.30. "SMARTcam® System" means the proprietary software system that controls the systems of Redflex relating
to the Program.
1.31. "SMARTgps® System" means the proprietary back-office processes of Redflex relating to the Program.
1.32. "SMARTscene® System" means the proprietary digital video camera unit, hardware and software required
for providing supplemental violation data relating to the Program.
1.33. "Traffic Signal Controller Boxes" means the signal controller interface and vehicle detection owned and
operated by the Customer, or operated at the direction of the Customer. This includes the traffic controller,
the vehicle detection equipment, the communication equipment, and the controller cabin.
1.34. "Uniform Traffic Citation" or "UTC" are synonymous and mean a uniform traffic citation as described in §
316.650,Florida Statutes.
1.35."Violation" any violation of Florida Statutes §§ 316.074(1) or 316.075(IXc) that may be enforced pursuant
to § 316.0083, Florida Statutes, as may be amended or recodified and as established by defined Business
Rules. However, the failure to come to a complete stop before turning right on red shall not be enforced
pursuant to this program.
1.36."Violation Criteria" means the standards and criteria by which Potential Violation will be evaluated by
Authorized Employees of the Customer, which standards and criteria shall include, but are not limited to,
the duration of time that a traffic light must remain red prior to a Violation being deemed to have occurred,
and the location(s) in an intersection which a motor vehicle must pass during a red light signal prior to being
deemed to have committed a Violation, all of which shall be in compliance with all applicable laws, rules
and regulations of Governmental Authorities. Should physical criteria change which requires additional
modification to the Program or its detection equipment, any costs incurred in connection with such
modifications shall be the responsibility of the Customer.
1.37."Violation Data" means the images and other Violation data gathered by the Redflex System at the
Designated Intersection Approaches.
1.38."Warning Period" means the period of time after the installation and activation of the first Designated
Intersection Approach during which period only warning notices shall be issued for a period of thirty (30)
days, unless otherwise agreed to by the Parties.
2. TERM.
2.1. The term of this Agreement shall commence on October 31, 2019 ("Effective Date") and continue for a
period of two (2) years (the "Initial Term"), unless terminated earlier as provided for in this Agreement. The
City shall have the option to extend the Initial Term for up to three (3) additional consecutive and automatic
one (1) year time periods (each a "Renewal Term"). The Initial Term together with each exercised Renewal
Term is collectively the "Term." Each Renewal Term shall automatically and without any required notice
or action be deemed to have been exercised unless the City provides written notice to Redflex in accordance
with Section 9 of its election not to extend at least forty-five (45) days prior to the expiration of the Initial
Term or the applicable Renewal Term.
2.2. For the avoidance of doubt, and notwithstanding anything to the contrary contained in this Agreement, it is
the Parties express intent that the Original Agreement continue in full force and effect through October 30,
2019, and this Agreement shall not become effective until the Effective Date.
3. SERV/CES. Redflex shall provide the following services in connection with the Program [such services,
including those outlined in Exhibits B and C are subject to change based on local and State law]:
3.1. OPERATION AND MAINTENANCE. With respect to the operation and maintenance of the Redflex
System at the Designated Intersection Approaches, the Customer and Redflex shall have the respective rights
and obligations set forth on Exhibits B and C.
3.2. NOTICE OF VIOLATION PROCESSING. During the Term, Notices of Violation shall be processed as
follows:
The Redflex system shall process Infraction Data gathered from the Designated Intersection Approaches
into a format capable of review by the Authorized Employee(s), who must be a traffic infraction enforcement
officer ("TIED") authorized to enforce F.S. § 316.0083 pursuant to F.S. § 316.640, via the Redflex System
and in a manner consistent with Florida law.
Prior to sending the Infraction Data to the TIED for him/her to unilaterally determine whether to issue a
Notice of Violation, Redflex shall review and pre-process the Infraction Data to clearly identify the
registration of the vehicle captured and enter all relevant Florida Department of Highway Safety and Motor
Vehicles (DMV) information into the Redflex System. The identification and entering of DMV information
is based on the criteria set by the Parties in their Business Rules and Redflex's Procedure Manual, which
have both been reviewed and agreed to by the City.
At the east bound approach located at the intersection of Chestnut Street and South Ft. Harrison Avenue and
at the east bound approach located at the intersection of Gulf to Bay Blvd. and Belcher Road, Redflex will
install Radar Detection and SMARTcheck® Software. Because space limitations at the west bound approach
located at the intersection of Gulf to Bay Blvd. and Belcher Road, Redflex is unable to install Radar
Detection at that approach. Redflex will install SMARTCheck® Software at that approach. The Redflex
System will automatically reject detection Data based on "Rejection Criteria," which the City of Clearwater
has reviewed and approved and which consist of the following:
• Amber Phase auto reject
• Excessive speed
• Low speed
• Missing images
• Missing video
• SMARTcheck® — (False Trigger, Tum Triggers [right turn on red infractions]; Screeching Stops
[vehicle stops prior to exiting the intersection])
• Test Image
The City may review and have access to any SMARTCheck® rejections that the system identified prior to it
being purged from the Redflex System to ensure compliance with the Rejection Criteria. The Redflex System
will be accessible by the TIED through a secure and encrypted connection by use of a confidential user
account on a computer equipped with a high-speed Internet connection and an approved web browser. The
City shall be solely responsible for acquiring and maintaining the necessary high-speed Internet access for
this System.
Redflex will provide all of the Infraction Data to the TIED for a determination by the TIED whether the TIED
will issue a Notice of Violation.
Other than reviewing and pre-processing the Infraction Data to clearly identify the registration of the vehicle
captured and then entering all relevant DMV information into the Redflex System, no Redflex employee
shall review any of the Infraction Data for the purpose of determining if a violation occurred.
Redflex shall provide the TIED with continuous access to the Redflex System for the purposes of reviewing
the Infraction Data. Infraction Data shall be accessible by Redflex and available to the City's TIED no later
than one (1) day after the Potential Violation.
The TIEO(s) shall review the Infraction Data provided by Redflex, and the TIED shall unilaterally decide
and direct whether a Notice of Violation shall be issued with respect to each Potential Violation captured
within such Infraction Data. The TIED shall issue such Notice of Violation and order Redflex to send the
Notice of Violation, pursuant to the terms of this Agreement, in the form of an Electronic Signature and
electronic directive transmitted to Redflex using the software or other applications or procedures provided
by Redflex on the Redflex System for such purpose. While performing the foregoing, the TIEO shall certify
that he or she has reviewed photographic or electronic images and streaming video relating to an alleged
violation of F.S. § 316.047(1) or F.S. § 316.075(IXc)(I), has determined that such evidence shows an
Infraction, and is issuing a Notice of Violation to the Registered Owner involved in the Infraction in
accordance with F.S. § 316.0083. REDFLEX ACKNOWLEDGES AND AGREES THAT THE DECISION
TO ISSUE A NOTICE OF VIOLATION SHALL BE THE SOLE, UNILATERAL AND EXCLUSIVE
DECISION OF THE TIED AND SHALL BE MADE IN SUCH TIEO'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 OR TO ALTER THE NOTICE
OF DECISION AND DIRECTION OF THE TIEOS.
3.3. UNIFORM TRAFFIC CITATION ("UTC") PROCESSING: If Redflex does not receive from the registered
owner payment, notice of a nomination, or a request for hearing for a Notice of Violation within sixty (60)
days after the Notice of Violation was sent to the registered owner of the motor vehicle involved in the
Authorized Violation (the "Registered Owner"), then Redflex shall notify the City in such a manner that the
City can comply with the requirements under Florida law for issuance of a UTC. Redflex shall also notify
the City in the above manner if the Registered Owner asserts a defense or requests a hearing against the
Notice of Violation.
If the City receives notice of non-payment, as outlined above, then the TIED shall unilaterally decide
whether a UTC shall be issued. If the TIED decides to issue a UTC, the TIED shall create a UTC in PDF
form that is generated on the Redflex System and ensure that the PDF is then transmitted to Redflex using
the software or other applications or procedures provided by Redflex on the Redflex System for printing
and mailing purposes.
Redflex shall then print a hard copy of the UTC and send the hard copy to the TIEO. The TIED shall then
send the UTC to the violator by certified mail. Within 5 days of mailing the UTC to the violator, the TIED
shall also transmit an electronic version of the UTC to the Pinellas County Clerk of Court using the Redflex
System, in the format and method agreed to by the Clerk of Court in accordance with F.S. § 316.650.
REDFLEX HEREBY ACKNOWLEDGES AND AGREES THAT THE DECISION TO ISSUE A UTC
SHALL BE THE SOLE, UNILATERAL AND EXCLUSIVE DECISION OF THE TIED AND IN NO
EVENT SHALL REDFLEX HAVE THE ABILITY OR AUTHORIZATION TO MAKE A DECISION
REGARDING WHETHER A UTC SHALL BE ISSUED.
3.3.1. Redflex shall provide a toll-free telephone number for the purposes of answering citizen inquiries;
3.3.2. Redflex shall permit the Authorized Employee to generate reports using the Redflex Standard Report
System;
3.3.3. Upon Redflex's receipt of a written request from the Customer and in addition to the Standard Reports,
Redflex will provide, without cost to the Customer, access to a reporting tool to allow the Customer to
generate other reports;
3.3.4. Upon Redflex's receipt of a written request from the Customer at least fourteen (14) calendar days in
advance of a court proceeding, Redflex shall provide expert witnesses for use by the Customer in
prosecuting Violation; provided, however, the Customer shall use reasonable best efforts to seek
judicial notice in lieu of requiring Redflex to provide such expert witnesses.The City shall be provided
on a cost reimbursement basis for time and travel, not to exceed $500 per request.
3.3.5. Redflex shall provide training to Customer personnel as shall be reasonably necessary to allow City
personnel to act as expert witnesses on behalf of the City.
3.4. FLORIDA PUBLIC RECORD PROVISIONS. Redflex is required to comply with public records laws,
specifically § 119.0701, Florida Statues, and Redflex acknowledges that it is required to:
3.4.1. Keep and maintain public records that ordinarily and necessarily would be required by the public agency
in order to perform the service.
3.4.2. Upon request from the City's custodian of public records, provide the City with a copy of the requested
records or allow the records to be inspected or copied within a reasonable time at a cost that does not
exceed the cost provided in this chapter or as otherwise provided by law.
3.4.3. Ensure that public records that are exempt or confidential and exempt from public records disclosure
requirements are not disclosed except as authorized by law for the duration of the Term and following
completion of the Agreement if Redflex does not transfer the records to the City.
3.4.4. Upon completion of the Agreement, transfer, at no cost, to the City all public records in Redflex's
possession or keep and maintain public records required by the public agency to perform the service. If
Redflex transfers all public records to the City upon completion of the Agreement, Redflex shall destroy
any duplicate public records that are exempt or confidential and exempt from public records disclosure
requirements. If Redflex keeps and maintains public records upon completion of the Agreement, Redflex
shall meet all applicable requirements for retaining public records. All records stored electronically must
be provided to the City, upon request from the City's custodian of public records, in a format that is
compatible with the information technology systems oldie public agency.
3.4.5. IF REDFLEX HAS QUESTIONS REGARDING THE
APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO ITS
DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS
AGREEMENT, REDFLEX WILL CONTACT THE CITY'S
CUSTODIAN OF PUBLIC RECORDS AT (727) 562-4455,
Dawn.Lazzaro@MyClearwater.com, 645 Pierce St., Clearwater, FL
33756.
3.5. PROSECUTION AND COLLECTION: COMPENSATION. The Customer shall diligently prosecute
authorized Violations, through either Notice of Violation or Uniform Traffic Citation, which are deemed
prosecutable by the reviewing City employee. Customer shall be obligated to pay Redflex, the compensation
set forth on Exhibit D.
3.6. TAXES. Where obligated by applicable law, Redflex shall timely pay all taxes relating to or arising out of
the Program. Unless otherwise indicated, the City agrees to pay any applicable taxes including but not
limited to use, property or sales taxes required at the municipal, county, state or any other taxing authority
level on all applicable consumer services and materials purchased and/or leased. No charge by the City shall
be made for federal excise taxes and City agrees to furnish Redflex with an exemption certificate where
appropriate for any applicable sales and/or use taxes. For the avoidance of doubt, it is the Parties intent that
this Agreement does not alter the tax liability of either Party under the applicable law.
3.7. OTHER RIGHTS AND OBLIGATIONS. 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.
3.8. CHANGE ORDERS.
3.8.1. 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 to Redflex, setting forth in reasonable detail the proposed changes (a "Chance Order
Notice"). Upon Redflex's receipt of a Change Order Notice, Redflex shall deliver a written statement
describing the cost, if any (the "Chance Order Proposal"). The Change Order Proposal shall include
(i) a detailed breakdown of the charge and any schedule impact, (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 in writing to a plan and schedule for implementation of
the proposed changes, the time, manner and amount of payment or price increases or decreases, as the
case may be, and any other matters relating to the proposed changes; provided, however, in the event
that any proposed change involves only the addition of equipment or services to the existing
Designated Intersection Approaches, or the addition of Intersection Approaches to be covered by
the terms of this Agreement, to the maximum extent applicable, the pricing terms set forth in Exhibit
D shall govern. Any failure of the Parties to reach agreement with respect to any of the foregoing as a
result of any proposed changes shall not be deemed to be a breach of this Agreement provided each
Party acted in good faith.
3.8.2. In the event that the change outlined in the Change Order Notice and the Change Order Proposal, and
approved by the Parties, concerns moving an installed Redflex System to a new Designated
Intersection Approach, the City shall be responsible for the costs associated with the removal and
reinstallation of the Redflex System, and City shall continue paying the Fixed Monthly Fee for the
inactive Designated Intersection Approach, as outlined in Exhibit D, during such period of time.
3.9. ROAD REPAIRS AND CONSTRUCTION PROJECTS.
3.9.1. The Fixed Monthly Fee to be paid will not be affected by any road repairs, street improvements or stop
work order at any Designated Intersection Approach.
4. LICENSE: RESERVATION OF RIGHTS.
4.1. LICENSE. Subject to the terms and conditions of this Agreement, Redflex grants the Customer, and the
Customer accepts from Redflex, a non-exclusive, non -transferable license during the Term to: (a) solely
within the City, access and use the Redflex System for the sole purpose of reviewing Potential Violation and
authorizing the issuance of Notice of Violation pursuant to the terms of this Agreement, and to print copies
of any related content posted on the Redflex System, (b) disclose that Redflex is providing services to the
Customer in connection with Program pursuant to the terms of this Agreement, and (c) use and display the
Redflex Marks on or in marketing, public awareness or education, or other publications or materials relating
to the Program, so long as any and all such publications or materials are approved in advance by Redflex.
4.2. RESERVATION OF RIGHTS. The Customer 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.
4.3. RESTRICTED USE. The Customer 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
Redflex's goodwill, (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 Program, 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 RIGHT. Redflex shall have the right to take whatever action it deems necessary or
desirable to remedy or prevent the infringement of any Intellectual Property of Redflex, including without
limitation the filing of applications to register as trademarks in any jurisdiction any of the Redflex Marks,
the filing of patent application for any of the Intellectual Property of Redflex, and making any other
applications or filings with appropriate Governmental Authorities. The Customer shall not take any action
to remedy or prevent such infringing activities, and shall not in its own name make any registrations or
filings with respect to any of the Redflex Marks or the Intellectual Property of Redflex without the prior
written consent of Redflex.
4.5. INFRINGEMENT. The Customer shall give Redflex prompt notice of any activities or threatened activities
of any Person of which it becomes aware that infringes or violates or potentially infringes or violates the
Redflex Marks or any of Redflex's Intellectual Property or that constitute or potentially 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 its rights to its Marks and Intellectual Property and to make
settlements relating to its Marks and Intellectual Property. In the event that Redflex commences any
enforcement action relating to its Marks or Intellectual Property, the Customer shall provide Redflex with
any reasonable cooperation and assistance that Redflex requests. Redflex shall be entitled to any damages
or other monetary amount that might be awarded provided that after deduction of Redflex's actual costs and
attorney's fees; 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, 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 provide to Redflex reasonable cooperation and
assistance as is requested by Redflex; provided, that Redflex shall reimburse the Customer for its reasonable
costs incurred in providing such cooperation and assistance. If 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.
4.7. UNAUTHORIZED REFERENCES TO REDFLEX. The Customer shall not utilize, make use of and/or
make any reference to Redflex, its name or likeness, its affiliated, parent or subsidiary companies or
corporations, its logos, insignias, trademarks, trade names, brand, websites, property, assets, products or
services, including, but not limited to: "PLATESCAN® System"; "REDFLEXradar® System";
"REDFLEXrail® System"; "REDFLEXred® System"; "REDFLEXslimline® System";
"REDFLEXspeed® System"; "REDFLEXstop® System"; "Redflex Student Guardian® System"; "Salus®
System"; "SMARTcam® System"; "SMARTops® System"; "SMARTscene® System"; and/or and any and
all combinations, variants and derivatives of the foregoing, for any reason or purpose without the prior
written approval of Redflex which may be withheld, denied, delayed, rejected and/or refused, by Redflex in
its sole discretion.
5. REPRESENTATIONS AND WARRANTIES.
5.1. REDFLEX REPRESENTATIONS AND WARRANTIES.
5.1.1. Authoritv. Redflex warrants and represents that it has all right, power and authority to execute and
deliver this Agreement and perform its obligations.
5.1.2. Professional Services. Redflex warrants and represents that any and all services that it provides
pursuant to this Agreement shall be performed in a professional and workmanlike manner and in
compliance with applicable law and by agreed upon specifications.
5.2. CUSTOMER REPRESENTATIONS AND WARRANTIES.
5.2.1. Authoritv. The Customer warrants and represents that the purchasing program it has relied upon in
entering into this Agreement, NCPA, is an approved cooperative purchasing program pursuant to the
local and state laws of the State of Florida, and it has all legal right, power and authority to execute
and deliver this Agreement and perform its obligations. Customer further warrants and represents that
it has complied with all applicable laws and regulations in entering into this Agreement and will
comply with all applicable laws and regulations in performing under this Agreement.
5.2.2. Professional Services. The Customer warrants and represents that any and all services that it provides
pursuant to this Agreement shall be performed in a professional and workmanlike manner and in
compliance with applicable law and by agreed upon specifications.
5.3. LIMITED WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT,
INCLUDING ANY MAINTENANCE OBLIGATIONS SET FORTH IN SECTION 3.2, 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
SOFTWARE, OR WITH RESPECT TO THE RESULTS OF THE PROGRAM.
6. TERMINATION.
6.1. TERMINATION: Either Party shall have the right to terminate this Agreement by 90 days written notice
to the other with or withoutcause.
6.2. If Florida State Statutes are amended to prohibit or substantially change the operation of the Clearwater
Program, or the Sixth Judicial Circuit, one of the Florida District Courts of Appeal, the Florida Supreme
Court, one of the Florida federal district courts, the Eleventh Circuit Court of Appeals, or the United States
Supreme Court rules the red-light camera statues unlawful or that the Notice of Violation from the
Clearwater Program or a substantially similar program are inadmissible in evidence, the City may
immediately terminate this agreement. For the purposes of this agreement, termination of the agreement
under these conditions shall be considered as termination with cause; and the City shall incur no penalty
for such termination.
6.3. Should either party commit a material breach of any of the provisions of this agreement a party shall have
the right to remedy or cure the cause for termination or breach within forty-five (45) calendar days (or
within such other time period as the Customer and Redflex shall mutually agree, which agreement shall
not be unreasonably withheld or delayed) after written notice from the appropriate party setting forth in
reasonable detail the events of the cause for termination or breach. Termination of this Agreement shall
not be enforceable or effective unless the terminating party mails written notice of termination to the non -
terminating party not less than forty-five (45) calendar days prior to the Agreement termination date and
provides to the non -terminating party the opportunity to remedy or cure the cause of the termination or
breach within the forty-five (45) calendar day time period provided herein. Termination of the agreement
under these conditions shall be considered as termination with cause; and the City shall incur no penalty
for such termination.
6.4. PROCEDVRES UPON TERMINATION. The termination of this Agreement shall not relieve either Party
of any liability that accrued before termination. Except as set forth in Section 6.3, upon the termination of
this Agreement, all of the provisions of this Agreement shall terminate and:
6.4.1. Redflex shall: (i) immediately cease to provide services, including but not limited to work in
connection with the construction or installation activities and services in connection with the
Program;. (ii) promptly deliver to the Customer any and all Proprietary Property or Confidential
Information of the Customer provided to Redflex pursuant to this Agreement, (iii) promptly deliver
to the Customer a final report regarding the collection of data and the issuance of Notice of Violation
in a format and for a period of time mutually agreed upon by Redflex and the Customer, (iv) promptly
deliver to the Customer a final invoice for all amounts owed by Customer to Redflex for work
performed and Notices of Violation issued by Redflex prior to the termination; and (v) provide such
assistance as the Customer may reasonably request from time to time in connection with prosecuting
and enforcing Notices of Violation issued prior to the termination of this Agreement.
6.4.2. The Customer shall (i) immediately cease using the Program, accessing the Redflex System and using
any other Intellectual Property of Redflex: (ii) promptly deliver to Redflex any and all Proprietary
Property or Confidential Information of Redflex provided to the Customer pursuant to this
Agreement, and (iii) promptly pay Redflex any and all fees, charges and amounts that the Customer
owes Redflex for work performed and Notices of Violation and UTCs issued prior to the termination,
as outlined in Exhibit D.
6.4.3. Unless the Customer and Redflex have agreed to enter into a new agreement relating to the Program
or have agreed to extend the Tenn, Redflex shall remove any and all above ground level Equipment
or other Redflex materials installed in connection with Redflex's performance of its obligations under
this Agreement and return the site to grade.
6.4.4. In addition to any and all other rights and remedies available and/or reserved herein, the
Customer shall pay to Redflex a pro rata share of all monies or revenue generated, collected and/or
received by Customer after the Agreement termination date that are, in any way, a result of,
associated with and/or attributable to, in whole or in part, the products or services rendered to
Customer by Redflex.
6.5. SURVIVAL. Notwithstanding the foregoing, the definitions provided for in Section 1 and each of the
following Sections shall survive the termination of this Agreement: (i) Sections 4.2 (Reservation of Rights),
5.1 (Redflex Representations and Warranties), 5.2 (Customer Representations and Warranties), 5.3 (Limited
Warranties), 7 (Confidentiality), 8 (Indemnification and Liability), 9 (Notices), 10 (Dispute Resolution),
11.1 (Assignment), 11.17 (Injunctive Relief; Specific Performance), 11.18 (Applicable Law) and 11.19
(Jurisdiction and Venue), and (ii) any Section in this Agreement which states, or evidences the intent of the
Parties, that the Section survives the expiration or termination of the Agreement, or must survive to give
effect to the Section.
7. CONFIDENTIALITY. During the Term and for a period of three (3) years after its expiration or termination,
neither Party shall disclose to any third person, or use for itself in any way, any Confidential Information learned
from the other Party during the course of the negotiations for this Agreement or during the Term. Upon
termination of this Agreement, each Party shall return to the other all tangible Confidential Information of such
Party. Each Party shall retain in confidence and not disclose to any third party any Confidential Information
without the other Party's express written consent, except (a) to its employees who are reasonably required to have
the Confidential Information, (b) to its agents, representatives, attorneys and other professional advisors that have
a need to know such Confidential Information, provided that such Parties undertake in writing (or are otherwise
bound by rules of professional conduct) to keep such information strictly confidential, and (c) pursuant to, and to
the extent of, a request or order by any Govemmental Authority, including laws relating to public records.
8. INDEMNIFICATION AND LIABILTY.
8.1. indemnification by Redflex, Subject to Section 8.3, Redflex hereby agrees to defend and indemnify the
Customer, and its affiliates, shareholders, managers, officers, directors, employees, agents, representatives
and successors, permitted assignees and each of their affiliates, and all persons acting by, through, under or
in concert with them, or any of them (individually a "Customer Party" and collectively, the "Customer
Parties") against, and to protect, save and keep harmless the Customer Parties from, and to pay on behalf of
or reimburse the Customer Parties as and when incurred for, any and all liabilities, obligations, losses,
damages, penalties, demands, claims, actions, suits, judgments, settlements, costs, expenses and
disbursements (including reasonable attorneys', accountants' and expert witnesses' fees) of whatever kind
and nature (collectively, "Losses"), which may be imposed on or incurred by any Customer Party arising
out of or related to (a) any material misrepresentation, material inaccuracy or material breach of any
covenant, warranty or representation of Redflex contained in this Agreement or (b) the willful misconduct
of Redflex, its employees or agents which results in death or bodily injury to any person 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 or negligence of any Customer Party.
8.2. Indemnification by Customer. Subject to Section 8.3, the Customer hereby agrees to defend and indemnify
Redflex and its affiliates, shareholders, managers, officers, directors, employees, agents, representatives and
successors, permitted assignees and all persons acting by, through, under or in concert with them, or any of
them (individually a "Redflex Party" and collectively, the "Redflex Parties") against, and to protect, save
and keep harmless the Redflex Parties from, and to pay on behalf of or reimburse the Redflex Parties as and
when incurred for, any and all Losses which may be imposed on or incurred by any Redflex Party arising
out of or in any way related to (a) any material misrepresentation, material inaccuracy or material breach of
any covenant, warranty or representation of the Customer contained in this Agreement, (b) the negligence
or willful misconduct of the Customer, its employees, contractors or agents which result in death or bodily
injury to any person or any damage to any real or tangible personal property (including the personal property
of third parties), except to the extent caused by the negligence or willful misconduct of any Redflex Party,
or (c) any claim, action or demand challenging the Customer's use of the Redflex System or any portion
thereof, the validity of the results of the Customer's use of the Redflex System or any portion thereof, or the
validity of the Notices of Violation issued, prosecuted and collected as a result of the Customer's use of the
Redflex System or any portion thereof. Nothing herein, however, shall be construed to waive or modify the
provisions of § 768.28, Florida Statutes or the doctrine of sovereign immunity.
8.3. Indemnification Procedures. In the event any claim, action or demand (a "Claim") for which any Party
seeks indemnification from the other Party, the Party seeking indemnification (the "Indemnified Party")
shall give the Party from whom indemnification is sought (the "Indemnifying Party") written notice of the
Claim promptly after the Indemnified Party first becomes aware of the Claim; 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 shalt have the right to choose counsel to defend such Claim (subject to the approval of
such counsel by the Indemnified Party, which approval shall not be unreasonably withheld, conditioned or
delayed), and to control, compromise and settle such Claim, and the Indemnified Party shall have the right
to participate in the defense at its sole expense; provided, however, the Indemnified Party shall have the
right to take over the control of the defense or settlement of such Claim at any time if the Indemnified Party
irrevocably waives all rights to indemnification from and by the Indemnifying Party. The Indemnifying
Party and the Indemnified Party shall cooperate in the defense or settlement of any Claim, and no Party shall
have the right enter into any settlement agreement that materially affects the other Party's material rights or
material interests without such Party's prior written consent, which consent will not be unreasonably
withheld or delayed.
8.4. LIMITED LIABILITY. Notwithstanding anything contrary in this Agreement, neither Party shall be liable to
the other Party for any special, incidental, indirect, consequential, exemplary or punitive damages, including
damages resulting from Lost Profits, however caused and on any theory of liability arising out of or relating to
this Agreement except and only to the extent expressly authorized pursuant to provision 11.20, entitled
"PREVAILING PARTY" of this Agreement.
9. NOTICES. Any notices required by this Agreement 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 either 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, in each case
addressed or sent as follows:
9.1. Notices to Redflex:
Redflex Traffic Systems, Inc.
Attn: Legal Department
5651 W. Talavi Blvd., Suite 200
Glendale, Arizona 85306
E -Mail: tegaldepartment®redflex.com
9.2. Notices to the Customer:
City of Clearwater
Attn: Matthew Smith, Assistant City Attorney
645 Pierce Street
Clearwater, Florida 33756
Email: matthew.smith@myclearwater.com
City of Clearwater Police Department
Attn: David Dalton, Major
645 Pierce Street
Clearwater, Florida 33756
Email: david.dalton®myclearwater.com
10. DISPUTE RESOLUTION. The Parties shall engage in informal, good faith discussions and attempt to resolve
any dispute or disagreement between the Parties arising out of or relating to this Agreement before initiating
arbitration, mediation or litigation. In connection with those informal discussions, each Party shall appoint a
designated officer and the designated officers of the Parties shall meet in person for the purpose of attempting to
resolve and dispute. The designated officers shall meet as often as the Parties shall determine to be reasonably
necessary. If the Parties are unable to resolve the dispute, and any Party concludes in good faith that amicable
resolution through continued negotiation is not reasonably likely to result in resolution of the dispute, the Parties
may mutually agree to submit the dispute to binding or nonbinding arbitration or mediation for resolution. If the
Parties do not mutually agree to submit the dispute to binding or nonbinding arbitration or mediation, any Party
may initiate litigation.
11. MISCELLANEOUS.
11.1. ASSIGNMENT. Neither Party may assign all or any portion of this Agreement without the prior written
consent of the other, which consent shall not be unreasonably withheld or delayed.
11.2. RELATIONSHIP BETWEEN REDFLEX AND THE CUSTOMER. Nothing in this Agreement shall create,
or be deemed to create, a partnership, joint venture or the relationship of principal and agent or employer
and employee between the Parties. The relationship between the Parties shall be that of independent contractors,
and nothing contained in this Agreement shall create the relationship of principal and agent or otherwise permit
either Party to incur any debts or liabilities or obligations on behalf of the other Party (except as specifically
provided in this Agreement).
11.3. AUDIT RIGHTS. Each of Parties hereto shall have the right to audit the books and records of the other
Party (the "Audited Party") solely for the purpose of verifying the payments, if any, payable pursuant to this
Agreement. Any such audit shall be conducted upon not less than forty-eight (48) hours' prior notice to the
Audited Party, at mutually convenient times and during the Audited Party's normal business hours. Except
as otherwise provided in this Agreement, the cost of any such audit shall be borne by the non -Audited Party.
In the event any such audit establishes any underpayment of any payment payable by the Audited Party to
the non -Audited Party pursuant to this Agreement, the Audited Party shall promptly pay the amount of the
shortfall, and in the event that any such audit establishes that the Audited Party has underpaid any payment
by more than twenty five percent (25%) of the amount of actually owing, the cost of such audit shall be
borne by the Audited Party. If the audit establishes any overpayment by the Audited Party of any payment
made pursuant to this Agreement, the non -Audited Party shall promptly refund to the Audited Party the
amount of the overpayment.
11.4. FORCE MAJEURE. No 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, war, terrorism,
significant fires, floods, earthquakes, epidemics, severe weather, quarantine restrictions, strikes, freight
embargoes, or Governmental Authorities approval delays which are not caused by any act or omission of
Redflex. The Party whose performance is affected agrees to notify the other promptly of the existence and
nature of any delay.
11.5. ADDITIONAL SERVICES. This Agreement may be amended, in accordance with Section 11.6, to add
additional Redflex systems and products only as authorized by Florida statute, including, but not limited to,
school bus stop arm enforcement and school zone speed enforcement.
11.6. ENTIRE AGREEMENT. This Agreement represents the entire Agreement between the Parties, and there
are no other agreements (other than invoices and purchase orders), whether written or oral, which affect its
terms. This Agreement may be amended only by a subsequent written agreement signed by both Parties.
11.7. 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 its other provisions
and the remainder of the affected provision.
11.8. WAIVER. Any waiver by either Party of a breach of any provision of this Agreement shall not be considered
as a waiver of any subsequent breach of the same or any other provision of this Agreement.
11.9. CONSTRUCTION. This Agreement shall be construed as having been fully and completely negotiated by
both Parties and neither the Agreement nor any of its provision shall be construed more strictly against either
Party.
11.10. HEADINGS. The headings of the sections contained in this Agreement are included for reference
purposes only, solely for the convenience of the Parties, and shall not in any way be deemed to affect the
meaning, interpretation or applicability of this Agreement or any of its terms, conditions or provisions.
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, instruments and other documents
that may be necessary or appropriate to carry out any of the terms, conditions and provisions of this
Agreement.
11.13. REMEDIES CUMULATIVE. Each and all of the several rights and remedies provided for in this
Agreement shall be construed as being cumulative and no one of them shall be deemed to be exclusive of
the others or of any right or remedy allowed by law or equity, and pursuit of any one remedy shall not be
deemed to be an election of such remedy, or a waiver of any other remedy.
11.14. BINDING EFFECT. This Agreement shall inure to the benefit of and be binding upon all of the
Parties and their respective executors, administrators, successors and permitted assigns.
11.15. COMPLIANCE WITH LAWS. Nothing contained in this Agreement shall be construed to require
any act contrary to law, and whenever there is a conflict between any term, condition or provision of this
Agreement and any present or future statute, law, ordinance or regulation, the latter shall prevail, but in such
event the term, condition or provision of this Agreement affected shall be modified or limited only to the
extent necessary to bring it within the requirement of the law, provided that such modification or limitation
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 agree and acknowledge that a
breach of Sections 4.1 (License), 4.3 (Restricted Use) or 7 (Confidentiality) of this Agreement would result
in severe and irreparable injury to the other Party, which injury could not be adequately compensated by an
award of money damages, and the Parties therefore agree and acknowledge that they shall be entitled to
injunctive relief in the event of any breach of these Sections, or to enjoin or prevent such a breach.
11.18. APPLICABLE LAW. This Agreement shall be governed solely by and construed, in all respects, in
accordance with the laws of the State of Florida.
11.19. JURISDICTION AND VENUS. Any conflict, claim or dispute between the Parties affecting, arising
out of or relating to the subject matter of this Agreement shall be filed only in and litigated solely in the Sixth
Judicial Court in Pinellas County, Florida, or in U.S. District Court of the Middle District of Florida: and
both patties specifically agree to be bound by the exclusive jurisdiction and venue thereof.
11.20. PREVAILING PARTY. In the event any legal action is commenced to enforce or interpret this
Agreement, the prevailing Party is entitled to reasonable attorney's fees, costs and expenses incurred.
Attorneys' fees, expert fees, and related costs shall be assessed by a Court and not by a jury and shall be
included in any judgment obtained by the prevailing party.
[THIS SECTION INTENTIONALLY LEFT BLANK WITH SIGNATURES TO FOLLOW ON NEXT PAGE]
IN WITNESS WHEREOF, the Parties have executed this Agreement effective as of the Effective Date.
Countersigned:
_ etea ter Crc1/4 os
George N. Cretekos
Mayor
Approved as to form:
I i� __1
tt ew Smith
Assistant City , • rney
REDFLEX TRAFFIC SYSTEMS, INC.
By:
lt
Mark . t
President
CITY OF CLEARWATER, FLORIDA
By:
William B. Horne 11
City Manager
Attest:
)UL/Vli1- 0 a ITI,TO
Rosemarie Call
City Clerk
220
Signature Page to the Exclusive Agreement Between the City of Clearwater, Florida and Redflex
Traffic Systems, Inc. for an Automated Photo Enforcement System
EXHIBIT "A"
Designated Intersection Approaches
The contract is for the implementation of up to 30 intersection approaches. Identification of enforced intersection
approaches will be based on mutual agreement between Redflex and the City as warranted by community safety and
traffic needs. Nothing in this Agreement shall be construed as requiring the Parties install the maximum number of
Intersection Approaches authorized herein.
EXHIBIT "B"
Operation and Maintenance Obligations
1. .EDFLEX OBLIGATIONS. Redflex shall do or cause to be done each of the following (in each case, unless
otherwise stated below, at Redflex's sole expense):
1.1. Appoint the Redflex Project Manager and a project implementation team;
1.2. Seek approval from the relevant Governmental Authorities having authority or jurisdiction over the
maintenance of the Designated Intersection Approaches (collectively, the "Approvals"), which will include
compliance with City permit applications;
1.3. Finalize the acquisition of the Approvals;
1.4. Apply for and pay the business tax and registration tax for a business license, in accordance with Clearwater
Municipal Code;
1.5. Complete the installation and testing of all necessary Equipment, including hardware and software, at the
Designated Intersection Approaches;
1.6. Implement the use of the Redflex System at each of the Designated Intersection Approaches;
1.7. Once a year, upon request of the Customer, provide training (i) for up to fifteen (15) personnel of the
Customer, including but not limited to the persons who Customer shall appoint as Authorized Employees
and other persons involved in the administration of the Program, (ii) for up to sixteen (16) hours in the
aggregate, (iii) regarding the operation of the Redflex System and the Program, which training shall include
training with respect to the Redflex System and its operations, strategies for presenting Violations Data in
court and judicial proceedings and a review of the Enforcement Documentation;
1.8. Provide all necessary communication, broadband and telephone services to the Designated Intersection
Approaches;
1.9. Establish an interface by utilizing City's ability, as a government entity, to access the records data of the
Department of Motor Vehicles. Redflex will assist the City in developing an interface to be provided to the
Department of Motor Vehicles;
1.10. Interact with court and judicial personnel to address issues regarding the implementation of the Redflex
System, the development of a subpoena processing timeline that will permit the offering of Violations Data
in court and judicial proceedings, and coordination between Redflex, and the Customer;
1.11. Redflex shall be solely responsible for the fabrication of any signage, notices or other postings required
pursuant to any law, rule or regulation of any Governmental Authority ("Sianage"), including but not limited
to the applicable State statute. Redflex shall submit design drawings to the appropriate local authority for
approval. Redflex shall be solely responsible for installing required Signage. Any changes or modifications
to Signage requirements will be the responsibility of the Redflex; and
1.12. The Redflex Project Manager (or a reasonable alternate) will be available to the Authorized Officers each
business day, on a reasonable best efforts basis.
2. CUSTOMER OBLIGATIONS. The Customer shall do or cause to be done each of the following (in each case,
unless otherwise stated below, at Customer's sole expense):
2.1. Appoint the Project Manager;
2.2. Assist Redflex in obtaining the Approvals from the relevant Governmental Authorities;
2.3. Notify Redflex of any specific requirements relating to the construction and installation of any Intersection
Approaches or the implementation of the Program;
2.4. Provide ongoing assistance to Redflex in obtaining access to the records data of the Department of Motor
Vehicles in Redflex's capacity as an independent contractor to the Customer Assist Redflex in seeking the
Approvals;
2.5. 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 Program;
2.6. Provide reasonable access to the personnel of the Customer and reasonable information about the specific
operational requirements of such personnel for the purposes of performing training;
2.7. Develop and provide the Violation Criteria to Redflex.;
2.8. Seek approval of the Enforcement Documentation;
2.9. The Customer shall provide on an agreed upon frequency, without cost to Redflex, reports regarding the
prosecution of Notices of Violation and UTC, the collection of fines, fees and other monies and available
collision data, in such format and for such periods as Redflex may reasonably request;
2.10. Yellow Light Timing Review: The Customer is responsible to ensure that the yellow or amber light phase
timing at all photo enforced intersections meets minimum standards according to Federal, State, and local
laws, guidelines, and/or rules;
2.11. Provide on-going adequate electrical power in order to operate the Designated Intersection Approaches;
2.12. The Customer will allow Redflex to use existing conduit space, and existing infrastructure, including but
not limited to traffic signal poles and light poles as available;
2.13. The Customer shall maintain LED traffic signal lights (yellow and red) at all enforced locations; and
2.14. Customer is responsible for all computer hardware, web browsers and high speed Internet access necessary
for the Authorized Employee to access the Redflex systems and software.
EXHIBIT "C"
Maintenance
1. All repair and maintenance of the Program and related equipment will be the sole responsibility of Redflex,
including but not limited to maintaining the casings of the cameras included in the Redflex System and all other
Equipment in reasonably clean and graffiti -free condition.
2. Redflex shall not open the Traffic Signal Controller Boxes without a representative of City from the City's Traffic
Engineering Department present, or the applicable Governmental Authority that owns and controls the Traffic
Signal Controller Boxes, as applicable.
3. In the event that images of a quality suitable for the Authorized Employee to identify Violations cannot be
reasonably obtained without the use of flash units, Redflex shall provide and install such flash units.
4. Redflex may assign specific personnel to provide follow up assistance to the Customer in the form of the
HELPDESK, a designated Customer Service Representative and a Director of Accounts.
5. Redflex will make commercially reasonable efforts to promote Customer's successful utilization of the System,
including but not limited to providing Customer with user guides, online help, online training and presentations
(as available). Redflex will respond to helpdesk requests for support within 8 hours of the request except where
circumstances beyond its control preclude a response within that time. Redflex will use commercially -reasonable
efforts to respond to all other support requests within 24 hours for requests received during the period of 8 am to
5 pm Central Standard Time, Monday through Friday. Redflex shall be responsible for receiving Customer reports
of errors in the System, and, to the extent practicable over email or telephone, making commercially -reasonable
efforts to assist the Customer in resolving the Customer's reported problems. If the problem cannot be resolved
telephonically, Redflex will use commercially -reasonable efforts to restore functionality in accordance with
System specifications within 72 hours of Redflex's receipt of the reported problem.
6. In the event a camera system is knocked down or suffers vandalism rendering the approach inoperative, the City
will secure the camera system by removing the system from the scene and storing it in a secure location. Redflex
must pay the City for the cost of a City maintenance team to secure their camera system when an after-hours
callout is required. Redflex is not required to reimburse the City when a City maintenance team secures a camera
system during regular business hours.
7. The City shall notify Redflex as soon as possible if any camera system is knocked down or subject to vandalism.
8. Roadway/Intersection improvement projects: Customer shall reimburse Redflex the costs of replacing and or
modification of operational system approaches necessitated or caused by roadway or intersection improvement
projects.
EXHIBIT "D"
COMPENSATION & PRICING
PRICING PROVISIONS AND OPTIONS:
The Customer agrees to pay Redflex its Monthly Service Fee per Designated Intersection Approach as follows:
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.Monthly ServtceEeeroet l esignitt" tilexsecti rn
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#1 - #5
$4,270 per Designated Intersection Approach
#6 and up
$4,100 per Designated Intersection Approach
1. Business Assumptions
1.1. The fee for certified mail will be billed per unit to the City at the prevailing US Postal Service rate.
Certified mailing fees will be covered under cost neutrality provisions.
1.2. Except where a balance remains unpaid resulting from a deficient in gross cash received under "Cost
Neutrality", Customer agrees to pay Redflex within thirty (30) days after the invoice is received. A monthly
late fee of 1.5% is payable for amounts remaining unpaid ninety (90) days from date of invoice.
1.3. All fees charged for processing credit cards ("Convenience Fees") are not considered revenue received or
as payment toward the Monthly Fixed Fee to be paid by the City. Online Convenience Fees are the
responsibility of the Violator and are passed solely onto Redflex. Redflex will charge a $4.00 Convenience
Fee per transaction.
1.4. Lockbox Account. All payments on citations issued pursuant to the Agreement will be deposited into a
Lockbox Account at a Redflex Bank Partner that the Parties mutually agree upon (the "Lockbox Account").
The mutually agreed upon Bank Partner shall be insured by the Federal Deposit Insurance Corporation
(FDIC). The Lockbox Account shall be in the City's name, but Redflex shall be the sole signatory on the
Lockbox Account. Redflex shall work with City to honor reasonable transfer or withdrawal requests from
the City on the Lockbox Account.
1.4.1. Redflex shall have the following responsibilities and obligations with respect to the Lockbox Account:
1.4.1.1. Pay any fees that the mutually agreed upon Bank Partner charges in connection with operating
or maintaining the Lockbox Account;
1.4.1.2. Monitor and process returned items, such as, checks for insufficient funds and failed credit
card transactions;
1.4.1.3. Develop reporting formats in conjunction with the Bank Partner that are compatible with
Redflex's accounting applications;
1.4.1.4. Report the Lockbox Account activity on a monthly basis to the City by no later than the
fifteenth day of each month for the prior month. Redflex shall as part of this reporting
reconcile all receipts, returned checks and charge backs by credit card companies on a monthly
basis. Redflex shall be responsible for any fees in connection with any returned checks and/or
charge backs and shall be entitled to all amounts collected from violators in connection with
such fees; and
1.4.1.5. Pay any fees in connection with any returned checks and or charge backs and shall be entitled
to all amounts collected from violators in connection with such fees.
1.4.2. Invoices. On a monthly basis, Redflex will electronically transfer to the City an amount equal to the
gross collections for the prior month along with an invoice for the services Redflex performed as set
forth herein, and the City will pay Redflex the amount set forth on the invoice.
1.5. Payment for Notices of Violation. Redflex will offer the following methods of payment for Notices of
Violation:
1.5.1. By Mail: When paying a Notice of Violation by mail, the individual will be asked to enclose the Notice
of Violation and personal check, money order or cashier's check for the fine amount and court costs
indicated on the front of the Notice of Violation. Checks will be made payable as directed by the City
and will be mailed to a specified address for deposit in the Lockbox Account.
1.5.2. By Phone: Credit card payments will be accepted over the telephone by calling the Redflex Call
Center. Redflex will direct the third party processor processing said payments initiated via telephone
to deposit the funds directly to the Lockbox Account. Any online convenience fee or similar fee shall
be the responsibility of the violator and passed solely onto Redflex.
1.5.3. By Internet: Credit card payments will be accepted by Redflex via the Internet. Redflex will direct
the third party processor to deposit the funds directly to the Lockbox Account. Any Convenience Fee
or similar fee shall be the responsibility of the violator and passed solely onto Redflex.
1.5.4. Payment to City: If the City receives a payment for a Notice of Violation or UTC, the City shall forward
the payment to the Lockbox Account by mail.
2. Cost Neutrality Option:
2.1. The City shall have the option to make payments to Redflex in accordance with this Cost Neutrality Payment
Option. Under this option, the City may defer payment of that portion of the monthly service fee in excess
of the amount collected during that month until the City has collected sufficient funds pursuant to this
Agreement to pay that portion of the monthly service fee ("Deferred Monthly Service Fee"). A Deferred
Monthly Service Fee shall be paid from the funds collected in the following month pursuant to this
Agreement provided that sufficient funds are collected during that month to pay the Deferred Monthly
Service Fee. Specifically, the funds collected each month pursuant to this Agreement shall be applied first
to any unpaid Deferred Monthly Service Fees and then to that month's service fee; provided, however, that
the City shall never be required to pay in any month an amount in excess of the funds collected that month.
2.2. Redflex shall maintain an accounting of the net balance of monthly service fees and Deferred Monthly
Service Fees owed to Redflex.
2.3. Cost Neutrality will be reconciled at the end of the contract. If at the expiration or termination of this
Agreement there is an outstanding balance of unpaid Deferred Monthly Service Fees, any previously
uncollected funds obtained by the City on account of Notices of Violation or UTCs issued as a result of the
Program shall be applied to the outstanding balance until that balance is fully paid. If, at the end of the initial
contract term (24 months) or each authorized extension term, sufficient funds have not been collected by the
Customer to pay the balance then due to Redflex, Redflex agrees to waive its right to the recovery of any
outstanding balance; and the Customer shall have option of terminating the agreement without incurring
additional costs. Prior to conducting the Cost Neutrality Payment. the City shall deduct $500.00 per
operational intersection approach from the total amount collected to be applied to operational expenses
relating to violation processing and court D entation,
2.4. Cost neutrality is guaranteed except as follows:
2.4.1. If police or Authorized Employees in bad faith and without due diligence routinely fail to approve
violations in a timely manner;
2.4.2. If collections are not reasonably pursued, unless, despite attempts by the Customer to encourage
collections by the courts, the courts fail to pursue unpaid collections; or
2.4.3. Customer directs Redflex to install a camera at a site that is not mutually agreed upon.
EXHIBIT "E"
Additional Rights and Obligations
Redflex and the Customer shall respectively have the additional rights and obligations set forth below:
I. Redflex shall assist the Customer in public information and education efforts, including but not limited to the
development of artwork for utility bill inserts, press releases and schedules for any public launch of the Program.
All costs related to the foregoing, including actual print and production costs are the responsibility of the
Customer.
2. The Customer shall not access the Redflex System or use the Program in any manner other than prescribed by
law and which restricts or inhibits any other Person from using the Redflex System or the 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, and the Customer shall not attempt to gain unauthorized
access to (i) any account of any other Person, (ii) any computer systems or networks connected to the Redflex
System, or (iii) any materials or information not intentionally made available by Redflex to the Customer by
means of hacking, password mining or any other method whatsoever, nor shall the Customer cause any other
Person to do any of the foregoing.
3. The Customer shall maintain the confidentiality of any username, password or other process or device for
accessing the Redflex System or using the Program.
4. Redflex and the Customer shall advise each other in writing with respect to any applicable rules or regulations
governing the conduct of the other on or with respect to the property of such other Party, including but not limited
to rules and regulations relating to the safeguarding of confidential or proprietary information, and when so
advised, Redflex and the Customer shall obey any and all such rules and regulations.
5. The Customer shall promptly reimburse Redflex for the cost of repairing or replacing any portion of the Redflex
System, or any property or equipment related thereto, damaged directly or indirectly by the Customer, or any of
its employees, contractors or agents.
6. The Parties shall agree on specific Business Rules governing the function and operation of the Redflex System.
EXHIBIT "F"
Insurance
1. Redflex shall procure and maintain at Redflex's sole cost and expense the following insurance coverage 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:
Commercial General Liability Insurance. Commercial General Liability Insurance with coverage
limits of not less than One Million Dollars ($1,000,000) combined single limit per occurrence for
bodily injury and property damage, Two Million Dollars ($2,000,000) Products -Completed
Operations Aggregate and Two Million Dollars ($2,000,000) General Aggregate, such limits of
coverage may be met through any combination of primary and excess liability policies;
Business Automobile Liability Insurance. Business Automobile Liability Insurance with coverage
of not less than One Million Dollars ($1,000,000) combined single limit per accident for bodily
injury or property damage, including but not limited to coverage for all automobiles owned, non -
owned and hired by Redflex, such limits of coverage may be met through any combination of
primary and excess liability policies;
— Professional Liability (Errors and Omissions) Insurance. Redflex will use its commercial best
efforts to procure and maintain Professional Liability (Errors and Omissions) Insurance with
coverage of not less than Two Million Dollars ($2,000,000) each and every claim and in the
Aggregate; and
— Workers' Compensation and Employer's Liability Insurance. Workers' Compensation Insurance
with coverage of not less than that required by the Labor Code of the State of Florida, and
Employer's Liability Insurance with coverage of not less than:
$1,000,000 Bodily Injury by Accident — Each Accident
$1,000,000 Bodily Injury by Disease — Policy Limit
$1,000,000 Bodily Injury by Disease — Each Employee
2. With respect to the Commercial General Liability Insurance the following additional provisions shall apply:
— The Customer or Customers shall be named as additional insureds with respect to the Commercial
General Liability insurance; and
The Commercial General Liability insurance shall be the primary insurance with respect to the
Customer or Customers in connection with this Agreement, and any insurance or self-insurance
maintained by the Customer or Customers shall be in excess, and not in contribution to, such
insurance; and
— The Commercial General Liability insurance shall include "Separation of Insureds" wording which
states that such insurance coverage shall apply separately with respect to each insured against whom
claim is made or suit is brought, except with respect to the limits of insurance or any rights or duties
specifically assigned to Redflex in such insurance policies.
3. With respect to the insurance described above, Redflex shall not cancel or materially reduce the coverage
without providing the City thirty (30) days prior written notice by certified mail.
4. With respect to the insurance described above, if any of the Redflex Parties are notified by any insurer that
such coverage will be materially reduced or cancelled, Redflex shall provide written notice within ten (10)
business days of receipt of such notice to the Customer or Customers and shall take all necessary actions to
correct such cancellation in coverage limits, and shall provide written notice to the Customer or Customers
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 or Customers shall have the right, but not the obligation and exercisable in its/their sole
discretion, to either (i) terminate this Agreement and seek damages from Redflex for such breach, or (ii)
purchase such required insurance, and without further notice to Redflex, deduct from any amounts due to
Redflex pursuant to this Agreement, any premium costs advance by the Customer or Customers for such
insurance. If the premium costs advanced by the Customer or Customers for such insurance exceed any
amounts due to Redflex pursuant to this Agreement, Redflex shall promptly remit such excess amount to the
Customer or Customers upon receipt of written notice thereof.
5. Redflex shall provide certificates of insurance evidencing the insurance required pursuant to the terms of this
Agreement, which certificates shall be executed by an authorized representative of the applicable insurer,
and which certificates shall be delivered to the Customer or Customers prior to Redflex commencing any
work pursuant to the terms of this Agreement.