Agreement with ACS for Photo Red Light Enforcement Program~. 7S - ~~y
AGREEMENT BETWEEN THE CITY OF MIAMI BEACH, FLORIDA,
AND ACS STATE AND LOCAL SOLUTIONS, INC. FOR
PHOTO RED LIGHT ENFORCEMENT PROGRAM
This Agreement (this "Agreement") is made as of this oi3~day of S~pTc~~~ ;
2009, by and between the CITY OF MIAMI BEACH, FLORIDA, a municipal
corporation having its principal office at 1700 Convention Center Drive, Miami Beach,
Florida 33139 (City), and ACS STATE AND LOCAL SOLUTIONS, INC., a Delaware
corporation duly authorized to do business in Florida, and having its principal office at
12410 Milestone Center Drive, Fourth Floor, Germantown, MD, 20876 (Vendor or
ACS).
RECITALS
WHEREAS, on December 10, 2008, the Mayor and City Commission enacted
Ordinance No. 2008-3621, creating Article XI, entitled "Dangerous Intersection Safety,"
of Chapter 106 of the Miami Beach Code, entitled "Traffic and Vehicles"; and
WHEREAS, Article XI, Chapter 106 of the Code authorizes the enforcement of
red light infractions through the utilization of automated image capture technology in an
effort to reduce traffic crashes and resulting injuries; and
WHEREAS, on October 7, 2008, the Mayor and City Commission authorized
the issuance of Request for Proposals No. 02-08/09 for a Red Light Camera Enforcement
System (the RFP); and
WHEREAS, on February 25, 2009, the City Commission approved Resolution
No. 2009-27022, authorizing the City Administration to negotiate with ACS, as the
recommended proposer pursuant to the RFP; and
WHEREAS, accordingly, the Administration has negotiated the following
agreement with ACS for installation, operation, and maintenance of a red light violation
enforcement camera system.
NOW THEREFORE, in consideration of the mutual covenants contained herein,
and for other valuable consideration received, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
AGREEMENT
1. Definitions. All definitions set forth in Ordinance No. 2008-3621, as codified in
Chapter 106, Article XI, Sections 106-480 through 106-494 of the City Code, and as
same may be amended from time to time (hereinafter, the City Ordinance or the
Ordinance), are incorporated herein. In addition, the following words and phrases shall
have the following meanings in this Agreement:
1.1 "Authorized Employee" means the Traffic Control Infraction Review
Officer, whose duties and qualifications are set forth in the City Ordinance.
1.2 "Authorized Infraction" means each Potential Infraction in the Infraction
Data for which authorization to issue a Notice of Infraction in the form of an
Electronic Signature is given by the Authorized Employee by using the Vendor
System.
1.3 "City Ordinance" (or "Ordinance") means Ordinance No. 2008-3621, as
codified in Chapter 106, Article XI, Sections 106-480 through 106-494 of the City
Code, and as same may be amended from time to time (hereinafter, the City
Ordinance).
1.4 "Civil Fee" means the fee assessed for violations of the City Ordinance (as
set forth in the Ordinance).
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, City's 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 City's, 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 mean the broadest and most inclusive interpretation of trade
secrets.
1.5.3 Notwithstanding the foregoing, Confidential Information will not
include information that: (i) is a public record, and not otherwise exempt
pursuant to Florida law; (ii) was generally available to the public or
otherwise part of the public domain at the time of its disclosure; (iii)
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
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any party hereto in breach of this Agreement; (iv) was subsequently
lawfully disclosed to the disclosing party by a person other than a party
hereto; (v) was required by a court of competent jurisdiction to be
described; or (vi) was required by applicable state law to be disclosed.
1.6 "Designated Intersection" means an Intersection, as that term is defined in
the City Ordinance, set forth on Exhibit A attached hereto, and such additional
Intersections as Vendor and the City shall mutually agree from time to time
through the parties' Project Managers.
1.7 "Electronic Signature" means the method through which the Authorized
Employee indicates his or her approval of the issuance of a Notice of Infraction in
respect of a potential Infraction using the Vendor System.
1.8 "Enforcement Documentation" means the necessary and appropriate
documentation related to the enforcement of Red Zone Infractions, as defined in
the City Ordinance, including but not limited to warning letters, Notices of
Infraction (using the specifications of the hearing officer and the City, a
numbering sequence for use on all notices (in accordance with applicable State
statutes and the City's Ordinance), instructions to accompany each issued Notice
of Infraction (including in such instructions a description of basic enforcement
procedures, payment options and information regarding the viewing of images
and data collected by the Vendor System), chain of custody records, criteria
regarding operational policies for processing Notices of Infraction (including with
respect to coordinating with the applicable vehicle registry), and technical support
documentation for applicable hearing officers .
1.9 "Equipment" means any and all cameras, sensors, equipment, components,
products, software and other tangible and intangible property relating to the
Vendor System, including but not limited to all camera systems, housings, sensor
arrays, severs and poles. In accordance with its Proposal, Vendor shall provide
and install the 2-pole design at each Designated Intersection approach (See
Section 2.b.1 on page 13 of Vendor's Proposal).
1.10 "Governmental Authority" means any domestic or foreign government,
governmental authority, court, tribunal, agency or other regulatory, administrative
or judicial agency, commission or organization, and any subdivision, branch or
department of any of the foregoing.
1.11 "Infraction" means any Infraction of the City's Ordinance (including Red
Zone Infractions, as defined in the Ordinance) .
1.12 "Infractions Data" means the images and other Infractions data gathered
by the Vendor System at the Designated Intersection.
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1.13 "Installation Date" means the date on which Vendor completes the
construction and installation of at least one (1) Designated Intersection in
accordance with the terms of this Agreement so that such Intersection is
operational for the purposes of functioning with the Red Light Photo Enforcement
Program.
1.14 "Intellectual Property" means, with respect to any Person, any and all now
known or hereafter known tangible and intangible (a) rights associated with works
of authorship throughout the world, including but not limited to copyrights, moral
rights and mask-works; (b) trademark and trade name rights and similar rights; (c)
trade secrets rights; (d) patents, designs, algorithms and other industrial property
rights; (e) all other intellectual and industrial property rights (of every kind and
nature), 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, consistent with the definition of such terms in
Florida Statutes.
1.15 "Notice of Infraction" shall mean the notice of an Infraction, which is
mailed or otherwise delivered by Vendor to the alleged violator on the appropriate
Enforcement Documentation in respect of each Infraction pursuant to the
requirements of the City Ordinance.
1.16 "Operational Period" means the period of time during the Term,
commencing on the Installation Date, during which the Red Light Photo
Enforcement Program is functional in order to permit the identification and the
issuance of Notices of Infraction for Infractions using the Vendor System.
1.17 INTENTIONALLY OMITTED
1.18 "Person" means a natural individual, company, Governmental Authority,
partnership, firm, corporation, legal entity, or other business association.
1.19 "Project Manager" means the project manager appointed by the City in
accordance with this Agreement, who shall be the City Manager or his designee
and shall be responsible for overseeing the installation of the Intersection and the
implementation of the Red Light Photo Enforcement Program, and which
manager shall have the power and authority to make administrative decisions
relating to the City's obligations pursuant to this Agreement including, but not
limited to, change order authorizations, subject to any limitations set forth in the
City's Charter or Code or by the City Commission.
1.20 "Potential Infraction" means, with respect to any motor vehicle passing
through a Designated Intersection, the data collected by the Vendor System with
respect to such motor vehicle, which data shall be processed by the Vendor
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System for the purposes of allowing the Authorized Employee to review such data
and determine whether a Red Zone Infraction has occurred.
1.21 "Proprietary Property" means, with respect to any Person, any written or
tangible property owned or used by such Person in connection with such Person's
business, whether or not such property is copyrightable or also qualifies as
Confidential Information including, without limitation, products, samples,
equipment, files, lists, books, notebooks, records, documents, memoranda,
reports, patterns, schematics, compilations, designs, drawings, data, test results,
contracts, agreements, literature, correspondence, spread sheets, computer
programs and software, computer print outs, other written and graphic records and
the like, whether originals, copies, duplicates or summaries thereof, affecting or
relating to the business of such Person, financial statements, budgets, projections
and invoices.
1.22 "Vendor Marks" means all trademarks registered in the name of Vendor or
any of its affiliates, such other trademarks as are used by Vendor or any of its
affiliates on or in relation to the Red Light Photo Enforcement Program at any
time during the Term this Agreement, service marks, trade names, logos, brands
and other marks owned by Vendor, and all modifications or adaptations of any of
the foregoing.
1.23 "Vendor Project Manager" means the project manager appointed by
Vendor in accordance with this Agreement, which project manager shall initially
be named by the Vendor within fourteen (14) days of the execution of this
Agreement, or such person as Vendor shall designate by providing written notice
thereof to the City from time to time, who shall be responsible for overseeing the
construction and installation of the Designated Intersections and the
implementation the Red Light Photo Enforcement Program, and who shall have
the power and authority to make administrative decisions relating to Vendor's
obligations pursuant to this Agreement, including but not limited to change-order
authorizations.
1.24 "Vendor Red Light Photo System" (or "Vendor System") means,
collectively, the Red Light Photo Enforcement Program provided by Vendor and
all Equipment relating thereto (including, without limitation, applications, back
office processes and digital red light traffic enforcement cameras, sensors,
components, products, software and other tangible and intangible property
relating thereto).
1.25 "Red Light Photo Enforcement Program" (or the "Program") means the
process by which the monitoring, identification and enforcement of Infractions is
facilitated by the use of certain equipment, applications and back office processes
of Vendor including, but not limited to, cameras, flashes, central processing units,
signal controller interfaces and sensor arrays which, collectively, are capable of
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identifying Infractions and recording such Infraction data in the form of
photographic images of motor vehicles.
1.26 "Red Light Photo Infraction Criteria" means the standards and criteria by
which Potential Infractions will be evaluated by Authorized Employees of the
City, which standards and criteria shall include, but are not limited to, the
definition of a Red Zone Infraction set forth in the City Ordinance, relying upon
the duration of time that a traffic light must remain red prior to an Infraction 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 an Infraction, all of which shall be in compliance with all applicable
laws, rules and regulations of Governmental Authorities.
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 "Warning Period" means the period of thirty (30) days after the
Installation Date of the first two (2) cameras .
1.29 "City Marks" means all trademarks registered in the name of City; such
other trademarks as are used by City on or in relation to the City of Miami Beach
at any time during the Term of this Agreement; service marks, trade names, logos,
brands and other marks owned by City; and all modifications or adaptations of
any of the foregoing.
2. Term. The term of this Agreement shall commence as of the date hereof and shall
continue for a period of five (5) years after the date of the first paid Notice of Infraction
from the first installed Intersection (the "Initial Term"). The City shall have the right, but
not the obligation, to extend the term of this Agreement for up to two (2) additional, two
(2) year terms following the expiration of the Initial Term (each, a "Renewal Term" and
collectively with the Initial Term, the "Term"). The City may exercise the right to extend
the term of this Agreement for a Renewal Term by providing written notice to Vendor
not less than sixty (60) days prior to the last day of the Initial Term or the Renewal Term,
as the case may be.
3. Services. Vendor shall provide the Vendor System to the City, in each case, for
each Designated Intersection, in accordance with the terms and provisions of the
Ordinance.
3.1 Installation. With respect to the construction and installation of the
Designated Intersection and the installation of the Vendor System at such
Designated Intersection, the City and Vendor shall have the respective rights and
obligations set forth on Exhibit B attached hereto.
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Vendor will have at least ten (10) Designated Intersection approaches installed
and activated on or before January 31, 2010, excluding events of Force Majeure
(as defined in Section 30 hereof). In the event that Vendor fails to comply with
the installation/activation deadline in this paragraph, the City, through a
Resolution adopted by a majority of the City Commission, may terminate this
Agreement in the same manner (and with the same rights and remedies) as
provided in Section 6.2 hereof (relating to termination during the Warning
Period).
3.2 Maintenance. With respect to the maintenance of the Vendor System at the
Designated Intersections, the City and Vendor shall have the respective rights and
obligations set forth on Exhibit C attached hereto.
3.3 Infraction Processing. During the Operational Period, Infractions shall be
processed as set forth on Exhibit D attached hereto.
3.4 Prosecution. The City shall diligently prosecute Notices of Infraction
pursuant to the terms, procedures and requirements of the City Ordinance.
3.5 Other Rights and Obligations. During the Term, in addition to all of the
other rights and obligations set forth in this Agreement, Vendor and the City shall
have the respective additional rights and obligations set forth on Exhibit F
attached hereto.
3.6 Change Orders. The City 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 Vendor, setting forth in reasonable detail the proposed changes (a
"Change Order Notice"). Upon Vendor's receipt of a Change Order Notice,
Vendor shall deliver a written statement describing the effect, if any, the proposed
changes would have on the terms set forth in Exhibit F (the "Change Order
Proposal"), which Change Order Proposal shall include (i) a detailed breakdown
of the charge and schedule effects; (ii) a description of any resulting changes to
the specifications and obligations of the parties; (iii) a schedule for the delivery
and other performance obligations; and (iv) any other information relating to the
proposed changes reasonably requested by the City. Following the City'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. Any failure of the
parties to reach agreement with respect to any of the foregoing as a result of any
proposed changes shall not be deemed to be a breach of this Agreement, and any
disagreement shall be resolved in accordance with Section 16.
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4. License: Reservation of Rights.
4.1 License. Subject to the terms and conditions of this Agreement, Vendor
hereby grants the City, and the City hereby accepts from Vendor upon the terms
and conditions herein specified, anon-exclusive, non-transferable license during
the Term of this Agreement to: (a) solely within the City, access and use the
Vendor System for the sole purpose of reviewing Potential Infractions and
authorizing the issuance of Notices of Infraction pursuant to the terms of this
Agreement, and to print copies of any content posted on the Vendor System in
connection therewith; and (b) disclose to the public (including outside of the City)
that Vendor is providing services to the City in connection with the Red Light
Photo Enforcement Program pursuant to the terms of this Agreement, and use and
display the Vendor Marks on or in marketing, public awareness or education, or
other publications or materials relating to the Red Light Photo Enforcement
Program.
4.2 Reservation of Rights. The City hereby acknowledges and agrees that: (a)
Vendor is the sole and exclusive owner of the Vendor System, the Vendor Marks,
all Intellectual Property arising from or relating to the Vendor System, and any
and all related Equipment provided under this Agreement; (b) the City 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 City pursuant to this Agreement, the
City shall gain no additional right, title or interest therein.
4.3 Restricted Use. The City hereby acknowledges and agrees that it shall not
(a) make any modifications to the Vendor System, including but not limited to
any Equipment; (b) alter, remove or tamper with any Vendor Marks; (c) use any
of the Vendor Marks in any way which might prejudice their distinctiveness,
validity or the goodwill of Vendor therein; (d) use any trademarks or other marks
other than the Vendor Marks or City Marks, in connection with the City's use of
the Vendor System pursuant to the terms of this Agreement without first obtaining
the prior consent of Vendor; or (e) disassemble, de-compile or otherwise perform
any type of reverse engineering to the Vendor System including, but not limited
to, any Equipment, or to any Intellectual Property or Proprietary Property of
Vendor.
4.4 Protection of Rights. Vendor shall have the right to take whatever action it
deems necessary or desirable to remedy or prevent the infringement of any
Intellectual Property of Vendor including, without limitation, the filing of
applications to register as trademarks in any jurisdiction any of the Vendor Marks,
the filing of patent application for any of the Intellectual Property of Vendor, and
making any other applications or filings with appropriate Governmental
Authorities. The City shall not take any action to remedy or prevent such
infringing activities, and shall not in its own name make any registrations or
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filings with respect to any of the Vendor Marks or the Intellectual Property of
Vendor without the prior written consent of Vendor.
4.5 Infrin ement. The City shall use reasonable efforts to give Vendor prompt
notice of any activities or threatened activities of any Person of which it
reasonably becomes aware that infringes the Vendor Marks or any of Vendor's
Intellectual Property. Vendor shall have the exclusive right, but not the obligation,
to take action to enforce such rights and to make settlements with respect thereto.
4.6 Infringin Use. The City shall give Vendor prompt written notice of any
action or claim action or claim, whether threatened or pending, against the City
alleging that the Vendor Marks, or any other Intellectual Property of Vendor,
infringes or violates any patent, trademark, copyright, trade secret or other
Intellectual Property of any other Person, and the City shall render to Vendor such
reasonable cooperation and assistance as is reasonably requested by Vendor in the
defense thereof; provided, however, that as a condition thereof, Vendor shall
reimburse the City for any reasonable costs including, without limitation,
attorneys fees and court costs, as well as City staff costs, incurred in providing
such cooperation and assistance. If such a claim is made and Vendor determines
in the exercise of its sole discretion, or a court or administrative proceeding of
competent jurisdiction determines, that an infringement may exist, Vendor shall
have the right, but not the obligation, to procure for the City the right to keep
using the allegedly infringing items, modify them to avoid the alleged
infringement, or replace them with non-infringing items, all at no cost and/or
liability to the City. In addition, in such event, Either Party has the right, but not
the obligation, to terminate this Agreement pursuant to Section 6.1.
5. Representations and Warranties.
5.1 Vendor Representations and Warranties.
5.1.1 Authority. Vendor hereby warrants and represents that:
5.1.1.1 it has all right, power and authority to execute and deliver
this Agreement and perform its obligations hereunder; and
5.1.1.2 it has all ownership rights, licenses, or other required
authority to use the software and hardware it installs to perform the
services under this Agreement.
5.1.2. Professional Services. Vendor hereby warrants and represents that
any and all services provided by Vendor pursuant to this Agreement shall
be performed in a professional and workmanlike manner and, with respect
to the installation of the Vendor System, subject to applicable law, and in
compliance with all specifications provided to Vendor by the City.
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5.2 City Representations and Warranties.
5.2.1. Authori .The City hereby warrants and represents that it has all
right, power and authority to execute and deliver this Agreement and perform its
obligations hereunder; provided that Vendor acknowledges that the initial
program is premised on being consistent with the requirements and authority of
State law, applicable attorney general opinions, and the City's Ordinance, and
City cannot warrant the outcome of any judicial or legislative action that may be
taken affecting these authorities subsequent to the execution of this Agreement.
5.3 Professional Services. The City hereby warrants and represents that any
and all services provided by the City pursuant to this Agreement shall be
performed in a professional and workmanlike manner.
6. Termination.
6.1 Termination for Cause: Either party shall have the right to terminate this
Agreement at any time during the Term herein, upon written notice to the
other, if: (i) State or federal statutes are amended, or regulations adopted
by agencies with jurisdiction, to prohibit or materially change the
operation of red light photo enforcement systems so as to make it
reasonably impractical to operate the program contemplated by the parties
under this Agreement including, without limitation, changes that would
prohibit such program, or which would impose restrictions on revenues
and uses that are contrary to the terms of this Agreement; (ii) any court
having jurisdiction over City rules, or declares, that the City's red light
enforcement program is invalid or results from the Vendor System of red
light photo enforcement are inadmissible in evidence, or otherwise renders
a decision that makes it reasonably impractical to operate the red light
enforcement program; (iii) a determination by a court of competent
jurisdiction or other applicable dispute resolution forum that Vendor has
infringed upon a third party's patent, trademark, copyright, trade secret or
other intellectual property; (iv) the other party commits any material
breach of any of the provisions of this Agreement; (v) Vendor's non-
payment of revenues to City as required by this Agreement.
Notwithstanding, the preceding paragraph, either party shall first have the
right to remedy the default(s) within forty-five (45) calendar days (or
within such other time period as the City and Vendor shall mutually agree,
which agreement shall not be unreasonably withheld or delayed) after
written notice from the non-defaulting party setting forth in reasonable
detail the events of the cause for termination.
In the event of a termination under this Section, City shall be relieved of
any further obligations to Vendor other than as specified herein.
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The rights to terminate the Agreement given in Section 6.1 shall be without
prejudice to any other right or remedy of either party in respect of the breach
concerned (if any) or any other breach of this Agreement.
6.2 Warning Period/City's Right to Terminate for Convenience/Vendor's
Right to Terminate for Convenience. This Agreement provides for a thirty (30)
day Warning Period, during which time courtesy notices of Infractions, with no
civil fees, are used. The parties hereto acknowledge that this Warning Period will
be used to verify the reliability of the program and the detection of Infractions, as
well as to monitor anticipated changes in State law on the subject of camera
enforcement of red light infractions. The Warning Period shall commence as
outlined in Exhibit B, 1.15 with the exact date to be confirmed in writing by the
parties' Project Managers.
At any time up to the conclusion of the Warning Period, the City, through a
Resolution adopted by a majority of the City Commission, may terminate the red
light enforcement program, for any or no cause, upon thirty (30) days written
notice to Vendor. The City shall not be liable for any costs or expenses incurred
by Vendor during the Warning Period.
In addition to the City's right to terminate during the Warning Period, the City,
through a Resolution adopted by a majority of the City Commission, may also
terminate the red light enforcement program at any time during the Term after the
expiration of the Warning Period, for any or no cause, upon thirty (30) written
days notice to Vendor.
If the City Commission determines to terminate the program pursuant to this
subsection 6.2, the Agreement shall be deemed terminated and the parties shall
proceed pursuant to Section 6.3 hereof. The City shall not be liable for any costs
or expenses incurred by Vendor up to the date of termination.
In addition to the City's right to terminate, as set forth herein, for a period of
ninety (90) calendar days after the expiration of the Warning Period, Vendor shall
have the right to terminate the Agreement, for any or no cause, upon thirty (30)
days written notice to City, and the parties shall proceed pursuant to Section 6.3;
provided, however, that the City shall not be liable to Vendor for any costs or
expenses incurred by Vendor as a result of the termination.
6.3 Procedures Upon Termination. Except as set forth in this Section 6.3, and
except for any provisions of this Agreement which are expressly intended to
survive termination (or expiration) of the Agreement, upon the termination of this
Agreement, all of the provisions of this Agreement shall terminate and:
6.3.1 Vendor 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
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Enforcement Program; (ii) promptly deliver to the City any and all
Proprietary Property of the City provided to Vendor pursuant to this
Agreement; (iii) promptly deliver to the City a final report to the City
regarding the collection of data and the issuance of Notices of Infraction in
such format and for such periods as the City may reasonably request, and
which final report Vendor shall update or supplement from time to time
when and if additional data or information becomes available; (iv) provide
City all data pertaining to outstanding Civil Fee payments due and owing
to City and potential payments due to Vendor; (v) provide City with its
proposed schedule for the removal of the Equipment, at no cost to the
City and, once such schedule is approved by City Vendor shall remove
such pursuant to the schedule; and (vi) provide such assistance as the City
may reasonably request from time to time in connection with prosecuting
and enforcing Notices of Infraction issued prior to the termination of this
Agreement.
6.3.2 The City shall, except for pending enforcement cases,(i)
immediately cease using the Photo Red Light Enforcement Program,
accessing the Vendor System and using any other Intellectual Property of
Vendor; and (ii) promptly deliver to Vendor any and all Proprietary
Property of Vendor provided to the City pursuant to this Agreement, other
than such equipment installed by Vendor along the roadways for the
enforcement program.
6.3.3 Unless the City and Vendor 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, Vendor shall remove any
and all Equipment or other materials of Vendor installed in connection
with Vendor's performance of its obligations under this Agreement, at no
cost to City including, but not limited to, housings, poles and camera
systems, and Vendor shall restore the Designated Intersections to the same
condition such Designated Intersections were in immediately prior to this
Agreement, reasonable wear and tear excepted, at no cost to City, pursuant
to the schedule agreed upon by the parties in section 6.3.1.
6.3.4 The Vendor shall be paid only for those actual direct costs,
including actual construction costs (if any), for completed work incurred
by the Vendor up to the date of termination set forth in the written notice
of termination. In no event shall the City be liable to Vendor for any
indirect, incidental, special, lost profits or consequential damages.
7. Fees to be Paid to Vendor and Payment Processing.
7.1 Vendor shall have the right to receive the compensation set forth in
Exhibit E attached hereto.
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7.2 Vendor shall be responsible for processing payments of the Civil Fees.
The Vendor shall provide payment means through mail, telephone and on-line
processes. Vendor shall track all payments and handle all applied payments,
unapplied payments, overpayments, refunds, adjustments, dismissals and
reversals.
7.3 Vendor shall collect and deposit payments issued pursuant to the City
Ordinance directly into a Miami Beach account (as determined and approved by the
City's Chief Financial Officer), on a daily basis.
7.4 Vendor shall invoice the City for all applicable fees according to the fee
schedule delineated in Exhibit E. Along with the invoice, Vendor shall provide
information to the City, in a format acceptable to the City, supporting the invoice
amounts forwarded by Vendor to the City. In addition, City shall have access to
the financial reporting functions of Vendor's system upon City's request.
7.5 For the first six (6) months following the installation date of an individual
camera, the Cost Neutral Requirement, as set forth in Section 27 hereof, shall not
apply to that camera. Vendor will be required to do a monthly "true-up"
reconciliation of all fees and payments due under the Agreement for each camera
during this six (6) month period. The revenue generated from the individual
camera during this six (6) month period will pay for the monthly fees for that
camera and any unpaid monthly fees from revenue shortages for that camera will
be carried over, but only until the six (6) months have expired at which time any
unpaid shortage will be absorbed by Vendor (i.e. If revenue does not exceed the
Vendor monthly rate for that specific camera, the amount due to Vendor from the
revenue shortage will be carried over to the next month for that camera, but not to
exceed the six (6) period following installation date of that camera).
At the end of the six (6) month period (i.e. six months after the installation
date of the camera), the camera shall be placed into the "general camera system"
group. All cameras in the general camera system group:
a) Shall be subject to a monthly "true-up" accounting. Vendor will
be required to provide the "true-up" monthly reconciliation at the
end of each month for all fees and payments (as due under this
Agreement) for each camera in the general camera system.
b) All camera revenue in the general camera system shall be
accounted for via the monthly "true-up" report and Vendor shall
submit a bill for the total monthly fees of the cameras in the
general camera system.
c) The general camera system shall be subject to cost neutral
accounting and any shortfall in revenue received in paying the
monthly fee for the general camera group will be absorbed by
Vendor (and not carried over to the next month).
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d) All cameras in the general camera system shall be subject to the
cost neutral requirements of Section 27 hereof.
8. INTENTIONALLY OMITTED.
9. Confidentiality. During the term of this Agreement and for a period of three (3)
years thereafter, neither party shall disclose to any third person, or use for itself in any
way for pecuniary gain, any Confidential Information learned from the other party during
the course of the negotiations for this Agreement or during the Term of this Agreement,
subject to the obligations and requirements of Florida's public records laws and public
meetings law, as same may be amended from time to time. Upon termination of this
Agreement, each party shall return to the other all tangible Confidential Information of
such party. Each party shall retain in confidence and not disclose to any third party any
Confidential Information without the other party's express written consent, except (a) to
its employees who are reasonably required to have the Confidential Information; (b) to its
agents, representatives, attorneys and other professional advisors that have a need to
know such Confidential Information, provided that such parties undertake in writing (or
are otherwise bound by rules of professional conduct) to keep such information strictly
confidential; and (c) pursuant to, and to the extent of, a request or order by any
Governmental Authority, including laws relating to public records.
10. Indemnification and Liability.
10.1 The parties recognize that various provisions of this Agreement including,
without limitation, this Section 10, provide for indemnification by the Vendor and
requires a specific consideration be given therefore. The parties therefore agree
that the sum of Ten Dollars and 00/100 ($10.00), receipt of which is hereby
acknowledged, is the specific consideration for such indemnities, and the
providing of such indemnities is deemed to be part of the specifications with
respect to the services to be provided by Vendor. Furthermore, the parties
understand and agree that the covenants and representations relating to these
indemnification provisions shall survive the Term and or other termination or
expiration of this Agreement and continue in full force and effect.
10.2 Indemnification -Negligence. The Vendor shall indemnify and hold
harmless the City, its elected and appointed officials, officers, employees, agents,
and servants, from and against any and all claims, demands, or causes of action
(for purposes of this Section 10, hereinafter "Claims"), of whatsoever kind or
nature, and the resulting losses, costs, expenses, reasonable attorneys' fees,
liabilities, damages, orders, judgments, or decrees (for purposes of this Section
10, hereinafter "Losses"), sustained by the City or any third party arising out of,
or by reason of, or resulting from the Vendor's negligent acts, errors, or
omissions, except to the extent such Losses arise from the gross negligence or
willful misconduct of the City or its employees or agents.
14
10.3 Indemnification - Infringements. Vendor certifies that Vendor is
unaware that the products and services to be furnished to the City pursuant to this
Agreement infringe on any valid patent, trademark, copyright, trade secret or
other proprietary right. Notwithstanding the preceding sentence, Vendor shall
indemnify and hold harmless the City, its elected and appointed officials, officers,
employees, agents, and servants, from and against any and all Claims, of
whatsoever kind or nature, and the resulting Losses, sustained by the City by
reason of any infringement or claim of infringement of any patent, trademark,
copyright, trade secret or other proprietary right relating to products or services
furnished pursuant to this Agreement. The Vendor will defend, at its sole cost and
expense, with legal counsel reasonably acceptable to the City, any Claim brought
against the City, to the extent that it is based on a claim that all or any products or
services furnished to City by the Vendor pursuant to this Agreement, become
unusable as a result of any such infringement or claim. Any infringement or claim
that renders all or any products or services furnished pursuant to this Agreement
to be unusable, or materially affects the Vendor System, shall be grounds for
termination of this Agreement.
10.4 Legal Challenges. The parties recognize and acknowledge that the red
light camera enforcement program contemplated herein may be subject to legal
challenge and/or judicial review. It is understood and acknowledged that various
aspects of the Program may be challenged. In the event of a legal challenge to the
program, City and Vendor shall jointly defend any Claim brought against the
City. In the defense of any such Claim, City and Vendor shall use reasonable
efforts to first utilize City and Vendor's respective in-house legal counsel. In the
event that the defense of a Claim requires the parties to retain outside legal
counsel, City and Vendor shall mutually select and agree upon said counsel and
shall share in the cost of the defense (including appeals) on a pro-rata basis;
provided, however, that ACS's respective financial contribution for such outside
legal counsel shall not exceed $150,000.
Within thirty (30) days of execution of this Agreement by the parties hereto,
Vendor shall post a bond (or other alternate form of security as may be approved
by the City Manager, in his sole discretion) to secure Vendor's contribution for its
outside legal fees, as set forth in the preceding sentence. Such bond shall be
maintained throughout the Term of the Agreement, and the City shall have the
right, at any time, to file a Claim on such bond in the event, of Vendor's breach of
its legal fee payment obligations (in this Section 10.4)
Notwithstanding the preceding paragraph, the City shall control the defense of
any Claims including, without limitation, any negotiations to settle a Claim;
provided, however, that in the event that the City determines not to oppose or
defend a particular Claim, the City shall so notify Vendor in writing, and Vendor
may take over and assume control of the defense or settlement of such Claim, at
its sole cost and expense (and, in which case, the cap on ACS's contribution for
outside legal counsel fees shall not apply).
15
10.5 In the event that, pursuant to a legal challenge to the program (of the kind
contemplated in Section 10.4), a court of competent jurisdiction or the State of
Florida (including any of its agencies) orders or requires the City to return any fee
payments, Vendor shall assist City to perform all relevant portions of any such
order, decree, judgment, etc., required to be performed by the City including, but
not limited to, assisting the City to locate each violator so ordered reimbursement
can be made. Additionally, Vendor and City shall share in the cost of any court
(or State of Florida) ordered reimbursements on a pro-rata basis. For purposes of
determining the City and Vendor's respective pro-rata share in the event of a
court (or State of Florida) ordered reimbursement, Vendor's share will be
determined from the percentage of the monthly fee payment received by Vendor
(as set forth in Exhibit E hereto) to the total amount of Civil Fees actually
collected (and not including any deductions or set-offs by Vendor for any costs
incurred in operating the Vendor System including, without limitation, for
processing payment of Civil Fees, tracking or handling or payments, etc.).
Further, for purposes of determining the parties' pro-rata share in the event of an
ordered reimbursement, the parties shall calculate their respective shares based
upon the monthly "true-up" of fees and payments, as required in Section 7.3
hereof.
Vendor and City shall split the cost of any court ordered or court awarded
attorney's fees and court costs incurred by the plaintiff (or plaintiffs) in
connection with its/their defense of a Claim(s), on a fifty/fifty (50/50) basis.
10.6 Change in State Law. If during the Term of the Agreement, the Florida
Legislature enacts any law modifying Uniform Traffic Laws so as to expressly
permit red light violation and enforcement systems, similar to the one
contemplated by the program in this Agreement, then the City and Vendor shall
use mutual good faith efforts to negotiate an amendment to the Agreement, which
amendment may include, without limitation, a modification to, or deletion of, the
requirements of subsection 10.5 hereto; provided, however, that any proposed
amendment shall be subject to final approval by the Mayor and City Commission.
If during the Term of the Agreement, the Florida Legislature enacts any law
which, while permitting red light camera violation and enforcement systems
similar to the one contemplated by the program in this Agreement, materially
changes the fee and/or compensation structure for such programs (including
imposing restrictions on revenues that are not currently contemplated in the
Agreement); and/or otherwise materially changes and/or imposes restrictions on
uses that are contrary to the terms of the Agreement; and/or otherwise materially
changes and/or imposes restrictions that makes it reasonably impractical for the
City to operate a red light camera enforcement program, then the City, through a
Resolution adopted by a majority of the City Commission, or the Vendor may
terminate this Agreement, with or without cause, upon thirty (30) days written
notice to other party, and the parties shall proceed pursuant to Section 6.3 hereof.
16
10.7 Defense of Other Claims. In addition to Claims based on legal challenges
to the program, as contemplated in Section 10.4 hereof, the City shall control the
defense of any other Claims brought against the City including, without
limitation, any negotiations to settle the Claim. The parties shall use legal counsel
that may be mutually selected by the parties but which shall be subject to the
ultimate approval of the City, which approval shall not be unreasonably withheld,
conditioned, or delayed. In the event the City determines not to defend or oppose
such other Claim as contemplated in this Section 10.7, the City shall provide
Vendor with written notice and Vendor may assume defense of the Claim, at its
sole cost and expense. Vendor shall then control the defense and any negotiations
to settle the claim. If Vendor elects to defend a Claim, the City may retain (at its
sole cost and expense) separate legal counsel to participate in (but not control) the
defense and to participate in (but not control) any settlement negotiations.
10.8 Settlement of Claims. City and Vendor shall cooperate in the settlement
of any Claim. The City shall have the right to settle any Claim, without the prior
consent or agreement of Vendor, unless it (i) would materially affect Vendor's
material rights or material interests under the terms of this Agreement; and (ii)
would not result in Vendor's full and complete release from all liability to the
plaintiffs or claimants who are parties to or otherwise bound by the settlement.
The City's right to settle a Claim without the consent or agreement of Vendor
shall also not apply in the event the City determines not to defend or oppose a
Claim, as contemplated in Section 10.7 hereof.
The Vendor shall not have the right to settle any Claim without the prior written
consent of the City, which consent shall not be unreasonably withheld,
conditioned, or delayed. The City's failure to consent to any settlement to which
its consent is required shall have no affect on Vendor's indemnification and
defense obligations under the Agreement.
10.9 Notice of Claims. If the City or Vendor receives notice of any Claim or
other circumstances which could give rise to Losses under this Section 10, the
receiving party shall give written notice to the other party within ten (10) days of
receipt. The notice must include the following:
(a) a description of the Claim in reasonable detail;
(b) the basis on which indemnification may be due; and
(c) the anticipated amount of the Loss(es).
This notice shall not stop or prevent the City from later asserting a different basis
for indemnification or a different amount of Loss(es) than that indicated in the
initial notice. If the City does not provide this notice within the ten (10) day
period, it does not waive any right to indemnification except to the extent that
17
Vendor is materially (i) prejudiced; (ii) suffers loss; or (iii) incurs expense
because of the delay.
Within thirty (30) days after receiving the City's notice, Vendor must advise the
City as to whether or not it will defend the Claim. If Vendor does not assume the
defense, the City shall assume and control its defense, without further notice to
Vendor required, and all City defense expenses shall constitute an indemnified
Loss for which Vendor will be obligated for under this Section 10.
11. Independent Contractor. This Agreement does not create anemployee/employer
relationship between the parties. It is the intent of the parties that the Vendor is an
independent contractor under this Agreement and not the City's employee for all
purposes, including but not limited to, the application of the Fair Labor Standards Act
minimum wage and overtime payments, Federal Insurance Contribution Act, the Social
Security Act, the Federal Unemployment Tax Act, the provisions of the Internal Revenue
Code, the State Workers Compensation Act, and the State unemployment insurance law.
The Vendor shall retain sole and absolute discretion in the judgment of the manner and
means of carrying out Vendor's activities and responsibilities hereunder provided, further
that administrative procedures applicable to services rendered under this Agreement shall
be those of Vendor, which policies of Vendor shall not conflict with City, or United
States policies, rules or regulations relating to the use of Vendor's funds provided for
herein. The Vendor agrees that it is a separate and independent enterprise from the City,
that it has full opportunity to find other business, that it has made its own investment in
its business, and that it will utilize a high level of skill necessary to perform the work.
This Agreement shall not be construed as creating any joint employment relationship
between the Vendor and the City and the City will not be liable for any obligation
incurred by Vendor, including but not limited to unpaid minimum wages and/or overtime
premiums.
12. Assignments; Amendments. This Agreement, or any interest herein, shall not be
assigned, transferred or otherwise encumbered, under any circumstances, by either party,
including without limitations purchases of controlling interest in Vendor or merger,
without the prior written consent of the other party. It is further agreed that no
modification, amendment or alteration in the terms or conditions contained herein shall
be effective unless contained in a written document executed with the same formality and
of equal dignity herewith.
13. No Contingent Fees. Vendor warrants that it has not employed or retained any
company or person, other than a bona fide employee working solely for the Vendor to
solicit or secure this Agreement, and that it has not paid or agreed to pay any person,
company, corporation, individual or firm, other than a bona fide employee working solely
for Vendor any fee, commission, percentage, gift, or other consideration contingent upon
or resulting from the award or making of this Agreement. For the breach or Infraction of
this provision, the City shall have the right to terminate the Agreement without liability at
its discretion, to deduct from the contract price, or otherwise recover the full amount of
such fee, commission, percentage, gift or consideration.
18
14. Notices. Whenever any party desires to give notice unto any other party, it must
be given by written notice, sent by registered United States mail, with return receipt
requested, addressed to the party for whom it is intended and the remaining party, at the
places last specified, and the places for giving of notice shall remain such until they shall
have been changed by written notice in compliance with the provisions of this section.
For the present, the Vendor and the City designate the following as the respective places
for giving of notice:
City: City of Miami Beach
Attn: Jorge M. Gonzalez
City Manager
1700 Convention Center Drive
Miami Beach, Florida 33139
Phone: 305-673-7000 Ext. 7010
Copies To: City of Miami Beach Police Department
Attn: Michael Gruen
Planning and Research Manager
1100 Washington Avenue
Miami Beach, Florida 33139
Phone: 305-673-7000 Ext. 5772
And
Vendor: ACS State & Local Solutions, Inc. (ACS)
Attn: Allen Shutt
Vice President of Operations
12410 Milestone Center Drive, Fourth Floor
Germantown, MD 20876
Phone: 301 820 4275
15. Audit Rights. Each of parties hereto shall have the right to audit to audit the books
and records of the other party hereto (the "Audited Party") solely for the purpose of
verifying the payments, if any, payable pursuant to this Agreement. Any such audit shall
be conducted upon not less than forty-eight (48) hours' prior notice to the Audited Party,
at mutually convenient times and during the Audited Party's normal business hours.
Except as otherwise provided in this Agreement, the cost of any such audit shall be borne
by the non-Audited Party. In the event any such audit establishes any underpayment of
any payment payable by the Audited Party to the non-Audited Party pursuant to this
Agreement, the Audited Party shall promptly pay the amount of the shortfall, and in the
event that any such audit establishes that the Audited Party has underpaid any payment
by more than ten percent (10%) 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.
19
16. Dispute Resolution. Upon the occurrence of any dispute or disagreement between
the parties hereto arising out of or in connection with any term or provision of this
Agreement, the subject matter hereof, or the interpretation or enforcement hereof (the
"Dispute"), the parties shall engage in informal, good faith discussions and attempt to
resolve the Dispute. In connection therewith, upon written notice of either party, each of
the parties will appoint a designated officer whose task it shall be to meet for the purpose
of attempting to resolve such Dispute. The designated officers shall meet as often as the
parties shall deem to be reasonably necessary. Such officers will discuss the Dispute. If
the parties are unable to resolve the Dispute in accordance with this Section 16, 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 nonbinding mediation.
17. Binding Authority. Each person signing this Agreement on behalf of either party
individually warrants that he or she has full legal power to execute this Agreement on
behalf of the party for whom he or she is signing, and to bind and obligate such party
with respect to all provisions contained in this Agreement.
18. Headings. Headings herein are for the convenience of reference only and shall not
be considered on any interpretation of this Agreement.
19. Exhibits. Each Exhibit referred to in this Agreement forms an essential part of this
Agreement. The exhibits if not physically attached should be treated as part of this
Agreement and are incorporated herein by reference.
20. Waiver. Failure of either party to insist upon strict performance of any covenant
or condition of this Agreement, or to execute any right herein contained, shall not be
construed as a waiver or relinquishment for the future of any such covenant, condition or
right, but the same shall remain in full force and effect.
21. Legal Representation. It is acknowledged that each party to this Agreement had
the opportunity to be represented by counsel in the preparation of this Agreement and,
accordingly, the rule that a contract shall be interpreted strictly against the party
preparing same shall not apply herein due to the joint contributions of both parties.
22. Severability. If any provision of this Agreement or application thereof to any
person or situation shall to any extent, be held invalid or unenforceable, the remainder of
this Agreement, and the application of such provisions to persons or situations other than
those as to which it shall have been held invalid or unenforceable shall not be affected
thereby, and shall continue in full force and effect, and be enforced to the fullest extent
permitted by law, except that this provision shall not be deemed to deprive any party of
any legal remedy, including termination.
20
23. Insurance.
23.1 Throughout the Term of this Agreement, the Vendor agrees to maintain in
force at their own expense insurance as follows:
23.1.1 Commercial General Liability insurance to cover liability bodily
injury and property damage. Exposures to be covered are premises,
operations, products\completed operations, and contractual liability.
Coverage must be written on an occurrence basis, with the following
limits of liability.
A. Bodily Injury/Property Damage $1,000,000
1. Each Occurrence
2. Annual Aggregate $1,000,000
B. Personal Injury $1,000,000
1. Annual Aggregate
23.1.2 Worker's Compensation Insurance shall be maintained during the
life of this contract to comply with Florida statutory limits for all
employees. The following limits must be maintained:
A. Worker's Compensation Statutory
B. Employer's Liability $100,000 each accident $500,000
Disease-policy limit $100,000 Disease-employee
If Vendor claims to be exempt from this requirement, Vendor shall
provide City proof of such exemption along with a written request for City
to exempt Vendor, written on Vendor letterhead.
23.1.3 Business Auto Liability -coverage shall include owned, hired
and non-owned vehicles.
A. Bodily Injury and Property Damage combined single limit
1. Each Occurrence $1,000,000
23.1.4 Professional Liability - $1,000,000 per claims made basis
23.1.5 Vendor shall name the City as an additional insured on each of the
policies required herein, with the exception of the Vendor's Worker's
Compensation policy and Professional Liability, and shall hold the City
harmless on account of claims for damages to persons, property or
premises arising out of the services provided hereunder, except to the
extent such damages are incurred as a result of City's gross negligence or
willful misconduct.
21
23.1.6 Certificates of Insurance, reflecting evidence of the required
insurance, shall be filed with the City's Risk Manager prior to the
commencement of this Agreement. These Certificates shall contain a
provision that coverage's afforded under these policies will not be
canceled until at least thirty (30) days prior written notice has been given
to the City. Policies shall be issued by companies authorized to do
business under the laws of the State of Florida. Financial Ratings must not
be less than "B+ - VI" or better, per Best's rating guide, latest edition.
Insurance shall be in force until the obligations required to be fulfilled
under the terms of the Contract are satisfied. In the event the insurance
certificate provided indicates that the insurance shall terminate and lapse
during the period of this contract, then in that event, the Vendor shall
furnish, at least thirty (30) days prior to the expiration of the date of such
insurance, a renewed certificate of insurance as proof that equal and like
coverage for the balance of the period of the contract and extension there
under is in effect. The Vendor shall not utilize the facility pursuant to this
contract unless all required insurance remains in full force and effect.
23.1.7 Any insurance required of Vendor pursuant to this Agreement
must also be required by any sub-contractor of Vendor in the same limits
and with all requirements as provided herein, including naming the City
and Vendor as an additional insured, in any work is subcontracted. The
Vendor and any sub-contractor of Vendor shall maintain such policies
during the term of this Agreement.
24. Governing Law and Exclusive Venue. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Florida, both substantive and
remedial, without regard to principles of conflict of laws. The exclusive venue for any
litigation arising out of this Agreement shall be Miami-Dade County, Florida, if in state
court, and the U.S. District Court, Southern District of Florida, if in federal court. BY
ENTERING INTO THIS AGREEMENT, CITY AND VENDOR EXPRESSLY WAIVE
ANY RIGHTS EITHER PARTY MAY HAVE TO A TRIAL BY JURY OF ANY CIVIL
LITIGATION RELATED TO, OR ARISING OUT OF, THIS AGREEMENT.
25. Extent of Agreement. This Agreement represents the entire and integrated
agreement between the City and the Vendor and supersedes all prior negotiations,
representations or agreements, either written or oral.
26. Attorne 's Fees. In the event that either party brings suit for enforcement of this
Agreement, the prevailing party shall be entitled to attorney's fees and court costs in
addition to any other remedy afforded by law.
27. COST NEUTRAL REQUIREMENT. THE PARTIES AGREE AND HEREBY
ACKNOWLEDGE THAT THIS AGREEMENT IS EXPECTED TO BE COST
NEUTRAL. ACCORDINGLY, THE ACTUAL REVENUE COLLECTED FROM THE
CIVIL FEES WILL AT LEAST MATCH THE COST OF VENDOR'S FEES. SHOULD
THE REVENUE COLLECTED FROM THE CIVIL FEES FALL SHORT OF THE
COST OF THE VENDOR'S FEES AT ANY TIME OVER THE TERM OF THE
22
AGREEMENT, VENDOR WILL ABSORB THE DIFFERENCE IN COST. THE CITY
WILL NOT PAY ANY ADDITIONAL FEES NOT COVERED BY ACTUAL
REVENUE RECEIVED. THE COST NEUTRAL DETERMINATION OF THIS
SECTION 27 SHALL BE ACCOMPLISHED DURING THE MONTHLY "TRUE-UP"
OF FEES AND PAYMENTS FOR ALL CAMERAS INSTALLED MORE THAN SIX
(6) MONTHS, AS REQUIRED IN SECTION 7.5 HEREOF. THIS SECTION DOES
NOT APPLY TO THE REVENUE COLLECTED DURING THE INITIAL SIX (6)
MONTH PERIOD OF TIME FOLLOWING THE INSTALLATION DATE FOR EACH
INDIVIDUAL CAMERA, AS STATED 1N SECTION 7.5.
28. Most Favored Customer. The Vendor represents that the fees, charges, and/or
costs paid to Vendor under this Agreement do not exceed the current fees, charges or
costs paid to Vendor by other Florida cities, counties and/or municipalities for the same
(or substantially similar) services described in this Agreement. In the event the stated
fees, charges and/or costs charged to the City under this Agreement are determined to be
higher, then said fees, charges and/or costs shall be reduced accordingly. In such an
event, the Vendor agrees to offer the same (or lower) fees, charges and/or costs to the
City as those charged to other Florida cities, counties and/or municipalities for the same
(or substantially similar) services described in this Agreement.
29. Proposal Documents Incorporated. "Proposal Documents" shall mean
Request For Proposals No. 02-08/09 for a Red Light Violation Camera Enforcement
System and Related Support Services, issued by the City in contemplation of this
Agreement, together with all amendments thereto, if any, and the Vendor's proposal in
response thereto (Proposal), which is incorporated by reference in this Agreement and
made a part hereof; provided, however, that in the event of an express conflict between
the Proposal Documents and this Agreement, this Agreement shall prevail.
30. Force Majeure. Neither party will be liable to the other or be deemed to be
in breach of this Agreement for any failure or delay in rendering performance arising out
of causes beyond its reasonable control and without its fault or negligence. Such causes
may include but are not limited to, acts of God or the public enemy, terrorism, hurricanes,
folds, earthquakes, epidemics, quarantine restrictions, strikes, freight embargoes,
orGovernmental Authorities approval delays which are not caused by any act or omission
by Vendor. The party whose performance is affected agrees to notify the other promptly
of the existence and nature of any delay.
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F:\atto\AGUR\AGREEMENT\Red Light Camera Agreement (Final 9-21-09).doc
23
IN WITNESS OF THE FOREGOING, the parties have set their hands and
seals the day and year first written above.
ATTEST:
City Clerk
ATTEST:
~ ,1 ~~~
Print Name
~2.. ~ 1`~it' ~ ~c~r~c.~
STATE OF FLORIDA
COUNTY OF MIAMI-DARE
CITY OF MIAMI BEACH, FLORIDA
M or
VENDOR/ACS STATE AND LOCAL
SOLUTIONS, INC.
®n ~~s ~~`~ C~Cx O\ SE~~.~,~-~ 200`1
t~~ore me.. -+-~ :~~d.~`rs'~ ~.ecA o-~-~~y ~ub~i c 1
~~c~t'k- ~a~ ~- ~ P2~;~lly nocA.r~ -~,o n-~e.
Gr~d~ - S~ e,r'.s~ c~~o SubSZr~bedl 1-~
SS `~~-- ~~ `~ f r, ~~i.,seoat
~C~ I Pir69c
Q CtY\Y~2. SCo°~~` saw ~ I
ON THIS day of , 200, before me, the ~ ~,~.~~
notary public, personally appeared personally
known to me, or who has produced as identification,
and is the person who subscribed to the foregoing instrument and who acknowledged that
he executed the same on behalf of said Corporation and that he was duly authorized to do
so.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
NOTARY PUBLIC
Print or Type Name
My commission Expires:
24
& FO CUTION
,~
~~ f' ~ ~ ai o°~
APPROVED AS TO
FORM & LANGUAGE
EXHIBIT "A"
* DESIGNATED INTERSECTIONS
Miami Beach Police Department Recommended Intersection Locations
First Priority Intersections
Sd' Street and Alton Road
Sd' Street and Washington Avenue
17`" Street and Alton Road
17~` Street and Collins Avenue
Alton Road and Dade Boulevard
41 S` Street and Pinetree Drive
41S` Street and Alton Road
63rd Street and Indian Creek Drive
69~' Street and Abbott Avenue
71 S` Street and Collins Avenue
4151 Street and Prairie Avenue
Second Priority Intersections
Abbott Avenue and Indian Creek
17d' Street and Washington Avenue
Dade Boulevard and Washington Avenue
Dade Boulevard and 23rd Street
Lagorce Drive and Pinetree Drive
Lagorce Drive and 63rd Street
McArthur Causeway and Fountain Street
67"' Street and Collins Avenue
10~' Street and Ocean Drive
Chase Avenue and Alton Road
* Initial installation shall be 15 cameras from the Exhibit "A" list as presented or subsequently
amended.
25
EXHIBIT "B"
Construction and Installation Obligations
1. ACS will have each Designated Intersection installed and activated in phases in
accordance with and no later than a mutually agreed upon implementation plan to be
mutually agreed to by ACS and the City. The initial installation shall be fifteen (15)
cameras from the Intersections list in Exhibit "A".
ACS OBLIGATIONS -ACS shall do or cause to be done each of the following (in each case,
unless otherwise stated below, at ACS' sole expense):
1.1. ACS will use reasonable efforts to install the System in accordance with the
schedule set forth in the implementation plan that will be formalized upon project
commencement.
1.2. ACS will use reasonable efforts to install and activate the first Designated
Intersection within forty-five (45) days from receipt of all Right of Ways (ROW)
and permits required by Section 1.4 of this Exhibit B.
1.3. [INTENTIONALLY OMITTED]
1.4. Appoint the ACS Project Manager and a project implementation team consisting
of the appropriate number of staff members to assist the ACS Project Manager;
1.5. Request current "as-built" electronic engineering drawings for the Designated
Intersections (the "Drawings") from the County Traffic Engineer;
1.6. Develop and submit to the City for approval construction and installation
specifications in reasonable detail for the Designated Intersection including, but
not limited to, specifications for all laser traffic detection, pavement loops (if
applicable), electrical connections and traffic controller connections, as required.
1.7. Seek approval from the applicable Governmental Authorities having authority or
jurisdiction over the construction and installation specifications for the
Designated Intersection (collectively, the "Approvals"), which will include
compliance with City permit applications.
1.8. Seek rights from private property owners, with assistance from City, as
necessary for the placement of System Equipment at designated intersections
where Governmental Authorities do not have jurisdiction over the Designated
Intersection and adjacent rights of way, and such Governmental Authorities
cannot provide authority to ACS for the installation of its Equipment.
1.9. Provide reasonable public relations and media template materials to the City in
the event the City elects to conduct a public launch of the Red Light Photo
Enforcement Program.
1.10. Provide 2500 printed City developed and designed brochures.
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1.11. Develop the Red Light Infraction Criteria and Enforcement Documentation
(Business Rules) for approval by the City, consistent with the requirements of the
City Ordinance.
1.12. Complete the installation and testing of all necessary Equipment, including
hardware and software, at the Designated Intersections (under the supervision of
the City).
1.13. Subcontract with an electrical sub-contractor to complete all reasonably
necessary electrical work at the Designated Intersections, including but not
limited to the installation of all related equipment and other detection sensors,
poles, cabling, telecommunications equipment and wiring, which shall be
performed in compliance with all applicable local, state and federal laws and
regulations.
1.14. Install and test the functionality of the Designated Intersections with the ACS
Solutions and establish fully operational infraction processing capability with
CitewebTM violation processing.
1.15. Generate warning notices the first thirty (30) days after the Installation Date of
the first two (2) cameras. Warning notices will be designed according to the
City's criteria.
1.16. Issue Notices of Infraction to include "Failure to Comply" notices and if the
alleged violator requests hearing, issue Notices of Hearing, pursuant to City
Ordinance.
1.17. Obtain access to the records data of the Department of Motor Vehicles and the
National Law Enforcement Telecommunications System INLETS) as needed for
the program.
1.18. Provide training for personnel of the City, including, but not limited to, the
persons who City shall appoint as Authorized Employees and other persons
involved in the administration of the Red Light Photo Enforcement Program.
This shall include training with respect to the ACS Solution and its operations,
strategies for presenting Infraction Data in court and judicial proceedings and a
review of the Enforcement Documentation.
1.19. Interact with court and judicial personnel, including the City's hearing officer to
address issues regarding the implementation of the ACS Solution, the
development of hearing notification processes that will permit the offering of
Infractions Data in hearings and judicial proceedings, and coordination between
ACS, the City and the City's Hearing officer
1.20. Provide reports and statistical data on a predetermined schedule, as outlined in
the Proposal, Section 2.b.III thereof.
1.21. Provide delinquent citation collections for all citations where an appeal has not
been filed. Components of the collection program will be approved by the City.
1.22. Shall mail Notices of Infractions by first class mail.
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1.23. Shall mail hearing notices certified mail via electronic return receipt.
2. CITY OBLIGATIONS. The City shall do or cause to be done each of the following (in
each case, unless otherwise stated below, at City's sole expense):
2.1. Appoint the Project Manager.
2.2. Assist ACS in obtaining the Drawings from the applicable Governmental
Authorities.
2.3. Notify ACS of any specific requirements relating to the construction and
installation of any Intersection or the implementation of the Red Light Photo
Enforcement Program.
2.4. Assist ACS in seeking the Approvals.
2.5. Provide reasonable access to the City's properties and facilities in order to permit
ACS to install and test the functionality of the Designated Intersections and the
Red Light Photo Enforcement Program;
2.6. Provide reasonable access to the personnel of the City and reasonable
information about the specific operational requirements of such personnel for the
purposes of performing training.
2.7. Develop and implement Public Awareness Strategy during the period
commencing on the date on which ACS begins the installation of the first
Designated Intersection and ending six (6) months after the Installation Date.
2.8. Assist ACS in developing the Red Light Infraction Criteria and Enforcement
Documentation (Business Rules) for approval by the City, consistent with the
requirements of the City Ordinance.
2.9. The City shall, on a form provided by ACS, provide verification to the State
Department of Motor Vehicles, National Law Enforcement Telecommunications
System, or appropriate authority indicating that ACS is acting as an agent of the
City for the purposes of accessing vehicle ownership data pursuant to the list of
permissible uses delineated in the Drivers Privacy Protection Act 18 U.S.C.§
2721, Section (b) (1), and as may otherwise be provided or required by any
provision of applicable State law.
2.10. If feasible, and/or applicable, and only after all necessary approvals have been
obtained from utilities and other governmental entities with jurisdiction, City
shall allow ACS to access power from existing power sources, at no cost to City.
2.11. The Miami Beach Police Department shall process each Infraction in accordance
with State Laws and or City Ordinances within seven (7) business days of its
appearance in the Police Review Queue, using CitewebTM to determine which
violations will be issued as Infractions or Notices of Infraction or as soon as
reasonably practical in the event of technical difficulties, power outages, or other
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circumstances beyond the City's control, or with the consent or approval of ACS
for extension.
2.12. City shall provide authorized personnel access to the internet for the purpose of
approving violations and reviewing adjudications.
2.13. ACS shall provide the City with two (2) workstations for use in support of this
contract to be used in any city department designated by the City. In the event
the Agreement is terminated, workstations will be returned to ACS.
2.14. For optimal data throughput workstations should be connected to a high-speed
internet connection with bandwidth of T-1 or greater. ACS will coordinate
directly with the City's Information Technology (IT) Department on installation
and implementation of the computerized aspects of the program.
2.15. Approve Infractions on forms provided by ACS.
2.16. In the event that remote access to the ACS Solution is blocked by City's network
security infrastructure, the City's IT Department and the counterparts at ACS
shall coordinate to facilitate appropriate communications access while
maintaining required security measures.
2.17. City shall provide adequate space in a City facility for on-site training.
2.18. City shall provide a URL link on the City website to direct violators to ACS
public portal for payment options and to view images and videos of violations.
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EXHIBIT "C"
Maintenance
1. All repair and maintenance of Vendor System and related Equipment will be the sole
responsibility of ACS, including but not limited to maintaining the casings of the cameras
included in ACS Solution and all other Equipment in reasonably clean and graffiti-free
condition.
2. ACS shall repair or replace inoperable Equipment within 72 hours of detection or notification
by City.
3. ACS shall not open the Traffic Signal Controller Boxes without a representative present of
the City of Miami Beach or Miami Dade County Traffic Engineering.
4. The provision of all necessary communication, broadband and telephone services to the
Designated Intersections will be the sole responsibility of ACS.
5. The provision of all necessary electrical services to the Designated Intersections will be the
sole responsibility of ACS.
6. In the event that images of a quality suitable for the Authorized Employee to identify
Infractions cannot be reasonably obtained without the use of flash units, ACS shall provide
and install such flash units.
7. ACS Project Manager (or a reasonable alternate) shall be available to the City's Project
Manager each day.
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EXHIBIT "D"
Infraction Processing
1. All Infraction Data shall be stored on ACS Solution;
2. The ACS Solution shall process Infractions Data gathered from the Designated Intersections
into a format capable of review by the Authorized Employee from the internet.
3. ACS shall make the initial determination that the image meets the requirements of the
Ordinance, Business Rules, and this Agreement, and is otherwise sufficient to enable the City
to meets its burden of demonstrating a violation under the Ordinance. If ACS determines that
the standards are not met, the image shall not be processed any further.
4. ACS Solution shall be accessible by the Authorized Employee through a virtual private
network in encrypted format by use of a confidential password on any computer equipped
with ahigh-speed internet connection and a web browser.
5. ACS shall provide storage capabilities for the City to store Infractions identified for
prosecution for five (5) years after final disposition of a case.
6. ACS shall provide the Authorized Employee with access to the ACS Solution for the
purposes of reviewing the pre-processed Infractions Data within seven (7) days of the
gathering of the Infraction Data from the applicable Designated Intersections.
7. The City shall cause the Authorized Employee to review the Infractions Data and to
determine whether a Notice of Infraction shall be issued with respect to each Potential
Infraction captured within such Infraction Data, and transmits each such determination to
ACS using the software or other applications or procedures provided by ACS on the ACS
Solution for such purpose. ACS HEREBY ACKNOWLEDGES AND AGREES THAT THE
DECISION TO ISSUE A NOTICE OF INFRACTION SHALL BE THE SOLE,
UNILATERAL AND EXCLUSNE DECISION OF THE AUTHORIZED EMPLOYEE
AND SHALL BE MADE IN SUCH AUTHORIZED EMPLOYEE'S SOLE DISCRETION
(A "NOTICE OF INFRACTION DECISION"), AND IN NO EVENT SHALL ACS HAVE
THE ABILITY OR AUTHORIZATION TO MAKE A NOTICE OF INFRACTION
DECISION.
8. ACS shall print and mail a Notice of Infraction including Warning Notices during the
Warning Period within seven (7) days after approval and authorization by the City.
9. ACS shall provide atoll-free telephone number, at its sole expense, for the purposes of
answering citizen inquiries.
10. ACS shall permit the Authorized Employee to generate monthly reports using the ACS
Standard Report System.
11. Upon ACS receipt of a written request from the City and in addition to the Standard Reports,
ACS shall provide, without cost to the City, issue reports regarding the processing and
issuance of Notices of Infraction, the maintenance and downtime records of the Designated
Intersections and the functionality of the ACS Solution with respect thereto to the City in
such format and for such periods as the City may reasonably request, without cost to the City.
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12. Upon ACS receipt of a written request from the City, at least fourteen (14) calendar days in
advance of a hearing, ACS shall provide expert witnesses for use by the City in prosecuting
Infractions, at no cost to the City.
13. ACS shall provide such training to City personnel as shall be reasonably necessary in order to
allow such personnel to act as expert witnesses on behalf of the City with respect to the Red
Light Enforcement Program. However, if a specific case requires testimony on the technical
aspects of the Equipment, upon City's request ACS shall provide the City with an expert in
the hearing in that case, at no cost to the City.
14. During the Warning Period, ACS shall assist the City in the development of a public relations
program, in coordination with the City and upon City's approval, at no cost to the City in
accordance with the elements included in Proposal.
15. ACS will provide video monitoring at monitored Intersections and will provide City data
upon request.
16. Notice of Infraction. ACS shall prepare and provide to City a Notice of Infraction Form that
provides, at a minimum, the following information:
a) name and address of the owner of the vehicle involved in the Infraction;
b) the registration number of the vehicle involved in the Infraction;
c) a citation to the City's Ordinance violated;
d) the location of the Intersection where the Infraction occurred;
e) the date and time of the Infraction; with a unique Infraction control number that contains
the Infraction date and time;
fj a copy of the recorded image of the Infraction;
g) the amount of fee and charges imposed and the date by which the fee and charges must
be paid or appealed;
h) instructions on all methods of payment for the fee;
i) a clear statement of the time limit to file an appeal and describing the procedure for
appealing the Infraction;
17. The Notices of Infraction will include a statement that the City's traffic control infraction
officer has reviewed and observed the recorded images evidencing the violation of the
Ordinance and has found reasonable and probable grounds to believe that an Infraction has
occurred and can identify the license tag number of the violating vehicle; and a conspicuous
statement, printed on larger font and bold, stating that if the owner of the vehicle fails to pay
the civil fee within the time allotted, or fails to file an appeal, collection activities will
commence.
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18. ACS agrees that the City shall have the right to review and approve the Notice of Infraction
form prior to its use, and that in the event City determines additional information should be
included in the Notice of Infraction, ACS shall modify the Notice of Infraction form, at its
sole expense, to comply with those requirements, subject only to space limitations on the
Notice paper.
19. ACS shall collect and deposit payments issued pursuant to the City Ordinance directly into a
Miami Beach account as determined by the City Finance Department on a daily basis. All
payments must be mailed to ACS Post Office Box or dropped off at the City of Miami Beach
Customer Service Center located at: Miami Beach City Hall, 1700 Convention Center Drive,
Miami Beach, Florida.
20. Provisions will be made for payments to be received by Pay-by-Web, and Pay-by Phone.
Acceptable payment will include cash, personal checks, money orders, MasterCard, and Visa.
ACS will charge a convenience fee of $4.95 for all payments made by web or phone. ACS
will be responsible to pay all credit card service fees.
21. Unpaid citations will be considered delinquent and referred to the ACS collections.
Collections will be in accordance with the City directed procedures.
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EXHIBIT "E"
Fee
1. Fixed fee, per month, per approach $3,555
2. Late Fee on 31St day if citation is not paid or appeal filed. Imposed by $16.50
ACS and paid to ACS.
3. Late Fee on 31St day of citation is not paid or appeal filed. Imposed $8.50
by ACS, paid to City.
4. Delinquent Collection Fee -additional 20% after 45 days. Imposed 20%
by ACS and paid to ACS.
5. Delinquent Collection Fee -additional fee after 45 days. Imposed by $10.00
ACS and paid to City.
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Exhibit "F"
Additional Rights and Obligations
ACS and the City shall respectively have the additional rights and obligations set forth
below:
1. ACS shall assist the City in public information and education efforts including but not limited
to the development of artwork for utility bill inserts, press releases and schedules for any
public launch of the Red-Light Photo Enforcement Program, as outlined in the ACS Proposal,
Section 2.b.VI 6.5 thereof.
2. ACS will be responsible for fabrication and posting of signs at Designated Intersections,
under the direction of the City. ACS' engineering team will work with City transportation
officials to ensure all "signage" is designed and installed according to the Manual of Uniform
Traffic Control Devices (MUTCD) regulations including, but not limited to, Florida
Department of Transportation (FDOT) and City engineering standards. All work will be
coordinated with the City for locations, signage size and design. ACS will include company
identification on the back of the sign.
3. ACS Project Manager and the City Project Manager shall meet at least on a weekly basis
during the period commencing as of the date of execution of the Agreement and ending on
the termination of the Warning Period, and at least on a monthly basis for the remainder of
the Term, at such times and places as ACS Project Manager and the City Project Manager
shall mutually agree.
4. The City shall not access or use the Vendor System in any manner other than prescribed by
law.
5. The City shall maintain the confidentiality of any user name, password or other process or
device for accessing the ACS Solution or using the Red-Light Photo Enforcement Program.
6. ACS and the City 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 Information and, when so advised, ACS and the City shall obey any and all
such rules and regulations.
7. The City shall promptly reimburse ACS for the cost of repairing or replacing any portion of
ACS Solution, or any property or equipment related thereto, damaged solely and directly by
the gross negligence or willful misconduct of the City, or any of its employees, contractors,
or agents. In all other instances, such costs shall be solely ACS costs.
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