00-101 APAC TechnologiesRESOLUTIOI`l NO. 00-240
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO
AUTHORIZING EXECUTION OF AGREEM]3NT BETWEEN APAC TECHNOLOGIES
AND THE CITY OF CUPERTINO FO:~ RED LIGHT RUNNING PHOTO
ENFORCEMENT SYSTEMS PROGRAM
WHEREAS, there has been presented to the City Council a proposed agreement between
APAC Technologies and the City of Cupcrtino to deploy and implement a program of red light
running photo enforcement systems; and
WHEREAS, the provisions, terms, and conditions of said agreement have been reviewed
and approved by the Director of Public Works and the City Attorney.
NOW, THEREFORE, BE IT RESOLVED;, that the City Council of the City of Cupertino
hereby approves the agreement and authorizes the Mayor and the City Clerk to execute said
agreement on behalf of the City of Cupcrtino.
PASSED AND ADOPTED at a regular meeting of the City Council of the City of
Cupertino this 18°i day of September, 2000, by the following vote:
Vote Members of the City Council
AYES: Burnett, Chang, Lowenthal, Statton
NOES: None
ABSENT: James
ABSTAIN: None
ATTES~':
eputy City Clerk
APP V
Mayor, City of Cupertino
J
CITY OF
CUPEI~TINO
City Hall
10300 Torre Avenue
Cupertino, CA 95014-3255
(408) 777-3354
FAX (408) 777-3333
PUBLIC WORKS DEPARTMENT
Summary
AGENDA ITEM ~~
AGENDA DATE September 18, 2000
SUBJECT AND ISSUE
Authorization to Execute Agreement with APAC Technologies for Red Light Running Photo Enforcement
Systems Program
BACKGROUND
APAC Technologies (APAC) has a proposal for the City Ito demonstrate their photo enforcement systems for red
light running violation. APAC is the American distributor for Poltech International (Poltech), an Australian
corporation that manufactures photo enforcement systerr~s. They want to deploy Poltech's Centaur digital red
light camera system in Cupertino. The system is in use ire Australia, but not in America.
On April 17, 2000, City Council approved an agreement with Lockheed-Martin IMS (LM) to deploy their wet
film red light camera systems at seven traffic signals. LM has first right of refusal for any particular location.
LM also has exclusive right to process citations for red li€;ht running violations by photo enforcement systems of
other contractors. LM is coordinating with our Public Safety Commission on selection of seven traffic signals
for deployment. They will coordinate the initial public education campaign scheduled for November with red
light enforcement commencing in December.
The minimum fine for a red light running violation is $281.00 The City's share is $137.01 per paid citation.
Agreement
APAC will annually pay $42,000 per field camera unit to the City for a minimum term of five years. They want
to install a minimum of two field camera units. They will receive $49.51 for each paid citation.
After LM selects their seven traffic signals for deployment, APAC will install two or more field camera units.
They will coordinate their deployment with LM.
There is no financial risk to the City unless the City wishes to terminate for convenience within the first eighteen
months. The termination fee is $25,000 for each field camera unit.
STAFF RECOMMENDATION
Staff recommends that the City Council adopt Resolution No. y~l~ authorizing execution of an agreement on
systems with APAC Technologies.
~~pproved for submission:
David W. napp
City Manager
Printed on Rec~~cled Paper ~ ~ r l
RESOLUTIOly NO.00-240
A RESOLUTION OF THE CITY COUI`1CIL OF THE CITY OF CUPERTINO
AUTHORIZING EXECUTION OF AGREEMENT BETWEEN APAC TECHNOLOGIES
AND THE CITY OF CUPERTINO FOR RED LIGHT RUNNING PHOTO
ENFORCEMENT SYSTEMS PROGRAM
WHEREAS, there has been presented to t:he City Council a proposed agreement between
APAC Technologies and the City of Cupertino to deploy and implement a program of red light
running photo enforcement systems; and
WHEREAS, the provisions, terms, and conditions of said agreement have been reviewed
and approved by the Director of Public Works anti the City Attorney.
NOW, THEREFORE, BE IT RESOLVEI:~, that the City Council of the City of Cupertino
hereby approves the agreement and authorizes the Mayor and the City Clerk to execute said
agreement on behalf of the City of Cupertino.
PASSED AND ADOPTED at a regular meeting of the City Council of the City of
Cupertino this 18"' day of September, 2000, by the; following vote:
Vote Members of the City Council
AYES: Burnett, Chang, Lowenthal, Stattoii
NOES: None
ABSENT: James
ABSTAIN: None
ATTEST: APPROVED:
/s/Roberta Wolfe /s/John Statton
Deputy City Clerk Mayor, City of Cupertino
AGREEflAENT
This agreement for goods and services (hereinafter referred to as "the Agreement") is entered into by
and between the City of Cupertino (hereinafter referred to as "Cupertino" or °the City's and Poltech
International Limited (°Poltech") and American Plastics & Chemicals, Inc. dba APAC Technologies, Inc.
("APAC' (hereinafter referred to jointly and severally .as °Contractor").
RECITALS
Whereas,
A. The City is a State of California municipal corporation with offices at City Hall, 10300 Torre
Avenue, Cupertino, CA 950143255;
B. Poltech is a State of Victoria, Australia corporation with headquarters offices at Level 54 Rialto
Building, 525 Collins Street, Melbourne, Victoria 3000, Australia, and U.S. offices at 3300 Oak
Lawn Avenue, Suite 500, Dallas, TX 75219-4266;
C. APAC is a State of Delaware, U.S.A. corpor~~tion with headquarters offices at 3300 Oak Lawn
Avenue, Suite 500, Dallas, TX 75219-4266;
D. Cupertino has determined installation of a red Tight camera system will advance the City's ongoing
efforts to protect the lives and property of its citizens and others;
E. The City has entered into a contract with Lockheed Martin IMS (°LM") to install a red light camera
system which uses wet film technology;
F. The City wishes to research the capabilities of a red light camera system which uses state-of-the-
artdigital technology to capture and process re~~ light running offenses;
G. LM does not presently offer red light camera systems which use digital technology;
H. Poltech is an international leader in the development, manufacture, and marketing of digital
imaging systems used expressly for law enforcement purposes, including CentaurTM', the
Company's patented digital red light camera system;
I. APAC is the exclusive U.S.A. distributor for Centauri"" and other Poltech products; and
J. The City and Contractor wish to enter into an agreement whereby Contractor will provide certain
equipment and services to the City in accordance with the terrns and conditions set forth
hereunder;
K. If conflict arises between the Terms and Conditions of this Agreement and Agreement entered into
by the City and LM, the City's Agreement with LM shall prevail.
Now, Therefore, in consideration of the covenant:> contained herein and other good and valuable
consideration, the receipt of which is hereby acknowledged, the City and Contractor do hereby agree as
follows.
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TERMS AND C~~NDITIONS
1. Definitions
Certain words and phrases used in this Agreem~:nt shall have the specific meaning set forth in this
Section. All other words and phrases, unless specifically defined herein, shall have their usual and
customary meaning.
1.1 "Field Camera Unit' ("FCU") means a digital imaging system and ancillary equipment
installed at an intersection inGuding, with~~ut limitation, a housing, Peizoelectric strip trigger
system, digital cameras, flash, central processing unit, WORM (write-once-read-many)
magneto optic disk data storage system, loop detector, traffic signal interface, and power and
communications links.
1.2 "MinotaurT""" means Poltech's proprietary software and back office system for processing
citations, testing FCU performance, and reporting.
1.3 "Red light camera system' ("RLCS") means the equipment and services provided by
Contractor to the City pursuant to this Agreement.
1.4 "Violation" means an action of a vehicle or driver of a vehicle prohibited by the State of
California Vehicle Code or the City Municipal Code including, without limitation, operating a
motor vehicle contrary to traffic signal instructions and operating a motor vehicle without
proper display of a valid license plate or registration.
1.5 "Fine' means a monetary sum assessed for a Violation, including bail forfeitures.
1.6 "Citation" means the initial pleading in a criminal or civil traffic action relating to a Violation
captured by Contrador's RLCS.
1.7 "Photograph" means an image recorded ~:ither on film or in a digital format on an magneto
optic medium.
1.8 "Person' means an individual, partnership, joint venture, corporation, trust, unincorporated
association, any governmental authority, Frolitical subdivision, or any other form or entity.
2. Term
2.1 Primary Term
The Primary Term shall commence as o1' the date of execution of this Agreement and shall
terminate five (5) years after the first d;~y Citations are issued for Violations captured by
Contractor's RLCS.
2.2 Contract Extension(s)
This Agreement may be extended beyond the Primary Term by mutual consent of the
Parties.
2.2.1 The City shall provide Contractor with not less than ninety (90) days written notice of
its intention to extend the Agreement.
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3. Contractor's Scope of Work
Contractor's scope of work shall include provisi~m of the following equipment and services:
3.1 Field Camera Units
Contractor shall provide the City with FCU's capable of simultaneously monitoring up to four
(4) lanes of traffic (including tum lanes) traveling in the same direction. Each FCU will
include (1) mounting poles, if required, (2) a steel weatherproof and vandalism resistant
housing, (3) state-of--the-art digital cameras, (4) CPU (central processing unit), (5) auxiliary
flash unit, (6) Piezoelectric strip triggering devices, ('n WORM magneto optic disk data
storage system, (8) Piezo controller, (9) traffic signal interface, (10) communications links,
(11) connection of FCU with electric power, and (12) power conditioner (UPS).
3.1.1 FCU's will be installed at sites mutually acceptable to the City and Contractor.
3.1.2 Not less than two (2) FCU"S will be installed initially. Subject to mutual
agreement of the City and Contractor, additional FCU's may be installed in the
future.
3.1.3 All FCU's installed by Contractor shall remain the property of Contractor.
3.2 Installation of FCU's
3.2.1 Contractor will install or cause to t-e installed all of the FCU equipment enumerated in
Section 3.1. of this Agreement.
3.2.2 Contractor will be responsible 1`or obtaining all required permits, licenses, and
insurance required for installations provided, however, that the City will use its best
efforts to assist Contractor in obtaining all such required permits and licenses.
3.2.3 The City shall not levy any permit fees or, if municipal ordinance requires the
assessing of such fees, the City shall pay for any such fees.
3.2.4 The City shall provide Contractor with "as built" drawings as may be required by
Contractor.
3.2.5 The Contractor may employ subcontractors to perform certain of its responsibilities
hereunder provided, however, that Contractor shall not subcontract any portion of its
installation responsibilities without receiving express written authorization from the
City. If the City consents to :>uch subcontract(s), the Contractor shall be fully
responsible to the City for all acts and omissions of the subcontractor. Nothing in this
Agreement shall create any contractual relationship between the City and
subcontractor nor shall it create any obligation on the part of the City to pay or to see
to the payment of any monies dui: to any such subcontractor other than as othervvise
is required by law.
3.2.6 In the event installation of a FCU requires the removal or relocation of a City loop,
the cost of such removal or relocation shall be home by Contractor.
3.3 Testing, Repair and Maintenance of FCU's
3.3.1 Testing
Contractor will conduct daily remote testing of FCU cameras, loop detector, traffic
signal interface, power and communications links, and Piezoelectric strip trigger.
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Contractor will conduct on-site testing of FCU components not less than once each
month.
3.3.2 Repair
Contractor will respond to a report of a malfunctioning FCU within 24 hours of
receiving notice of the malfunction.
3.3.3 Maintenance
Contractor will perform scheduled maintenance on its FCU's not less than once each
month.
3.3.4 Reports
All FCU testing will be certified bar Contractor staff and reports detailing such testing
will be made available to the City at the City's request. Maintenance logs will be
maintained by Contractor and will be made available to the City at the City's request.
3.4 Data Capture, Storage and Transfer
Data pertaining to each Violation captured by Contractor's FCU, including not less than three
(3) digital images of the violation, will initially be stored on the WORM magneto optic disk
located within the FCU. The data stored on the WORM disk will be securely encrypted and
transferred to Contractor's central server ~~mplex not less than once each work day. Within
two (2) work days after receipt of the d~rta at the central server complex, the data will be
transmitted to LM in a form acceptable ~:o LM for processing into Citations. The Violation
data transmitted to LM will include, but not necessarily be limited to:
a. Location, date and time
b. Number of seconds into red traffic signal
c. Vehicle speed
d. One (1) close-up frontal view of automobile and front license plate
e. One (1) panoramic view of the intersection and the violating automobile taken after
the automobile has crossed the limit (stop) line while the traffic signal is in the red
phase.
f. One (1) panoramic view of the intersection and the violating automobile taken
subsequent to the photograph described in Section 3.4.e.
3.5 Real Time Viewing of Contractor MonitorE;d Intersections
Contractor will provide, install, and maintain up to two (2) sets of equipment, software, and
communications links which will permit City and other authorized personnel to conduct real
time viewing of intersections monitored b~~ Contractor FCU's. Such equipment, software, and
communications links shall remain the property of Contractor.
3.6 RLCS Enhancements
Contractor will promptly provide City with all RLCS modifications which result in meaningful
enhancements to system performance.
3.7 RLCS Orientation
Contractor will conduct at no cost to th~~ City one pre-startup and one post-startup RLCS
orientation session. Each two (2) day session will accommodate up to 30 City designated
personnel and will be held in facilities provided by the City. The sessions will focus on (1)
description of the RLCS equipment and operation, (2) explanation and hands-on
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demonstration of the capabilities of the MinotaurTM software, (3) legal considerations vis a vis
digital versus wet film technology and Staile of Califomia evidence code, and (4) introduction
to key Contractor personnel. Session schedules will be mutually established by the City and
Contractor.
Should the City request additional orientation sessions, Contractor shall provide such
sessions on a full cost-reimbursable ba::is (as determined by Contractor using generally
accepted accounting principles).
3.8 Reports
Contractor will provide the City with perio~~ic reports on RLCS performance, the content and
timing of which will be mutually agreed upon by City and Contractor personnel. In addition,
Contractor will prepare and submit financial, program progress, monitoring, evaluation, and
such other reports as is required by City or State of Califomia law authorizing the use of
automated enforcement systems. Contractor shall maintain and permit on-site inspections of
property, personnel, financial, and other records and reports as are considered necessary by
the City to assure proper accounting for all compensation paid by the City to Contractor.
3.9 Advisory Services
At the City's request, Contractor will provide the City with advice and counsel regarding
operation of a red light camera system, site selection, implementation and administration of a
public awareness campaign, and other subjects of mutual interest to Contractor and the City.
3.10 Defense of Legal Challenges
Contractor shall defend any challenge in rcny court of competent jurisdiction to the use of the
FCU, the RLCS, or the validity of the ~;vidence obtained by their use. In the event of
contested Citations, and as may be reasonably necessary to protect the interests of the City
and Contractor, Contractor will also provicie expert witness testimony regarding the accuracy
and technical operation of the FCU and RLCS. Contractor shall supply all courts of
competent jurisdiction with a statement of technology for use at informal hearings.
3.11 Removal of FCU's and Other Contractor O~~vned Equipment
Within 60 days after termination of this E~greement Contractor shall remove or cause to be
removed all Contractor owned equipment at no expense to the City and shall restore all City
property to its original condition. Should Contractor fail to remove its equipment within 60
days after termination of this Agreement, the City shall have the right to remove said
equipment and bill Contractor for its removal.
4. City of Cupertino Responsibilities
In addition to the City's responsibilities set forth elsewhere in this Agreement, Cupertino shall also
have the following responsibilities:
4.1 Prosecution of Citations
The City shall diligently prosecute each Citation arising from Violations captured by
Contractor's FCU's.
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4.2 Damage To Contractor Property
The City will reimburse Contractor for any damage to Contractor property resulting from City-
financed public works projects. The Ciiy will use its best efforts to assist Contractor to
identify and obtain compensation from an~r party who is responsible for damage to Contractor
equipment.
4.3 City Representative
The City Traffic Engineer shall serve as ttie City's representative relative to administration of
this Agreement and the RLCS project. All' Contractor activities shall be coordinated with this
individual.
4.4 Electric Power
The City shall provide all electric power required to operate the FCU, however Contractor
shall be responsible for connecting the FCU to the source of the electrical power.
4.5 Traffic Signal Operations
The City will not modify traffic signal operations which were in effect at the time of selection
of the FCU sites without advising Contractor in advance of such change(s) and without
considering the impact of the change(s) on RLCS operation.
4.6 Establishment of Certain Criteria For Viol2~tion Capture
The City shall establish the amount of tune which will be permitted to elapse between the
start of the traffic signal's red phase and the time the FCU's cameras are activated to record
violations, i.e. the time that may elapse t~etween the time the signal light turns red and the
time an automobile may enter the intersection after the signal light has turned red without the
cameras being activated to record the Violation. This elapsed time shall not exceed the
lesser of three tenths of one second (0.3 seconds) or the time delay established by the City
for LM operated Units pursuant to Section 8.3.5 of that agreement between the City and LM
dated May 26, 2000.
4.7 Use of the RLCS For Studies
The City shall not use the RLCS, or all~~w use of the RLCS by a third party, for studies
without the prior written consent of Contra~~tor.
4.8 Relationship With Contractor
The City shall work with Contractor ;~s may be necessary to facilitate Contractor's
performance of its services. Upon request, the City shall provide all relevant documentation
in its possession to Contractor in order to minimize duplication of efforts by Contractor and.
the City.
4.9 Property Tax Exemption
The City shall exempt Contractor from City property taxes on Contractor assets located in the
City.
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5. Payment For Services
5.1 Contractor Compensation
The Contractor shall be compensated for pertorming the Scope of Work set forth in Section 3
of this Agreement, as follows:
5.1.1 The City shall compensate Contractor only for Citations for which the Fine has been
paid.
5.1.2 The City shall pay to Contractor a fee equal to Forty-Nine and 51/100 Dollars
($49.51) for each Citation for whi~:h the Fine has been paid. This fee is the amount
received by the City from each paid Fine less the amount to be paid by the City to LM
for Citation processing pursuant to Section 7.2 of that Agreement between the City
and LM dated May 26, 2000.
5.1.3 Contractor shall provide the City with bi-weekly invoices which shall set forth the
number of Citations for which Fines were paid during the period covered by the
invoice and the amount due to be paid Contractor. Payment of invoices is due within
thirty (30) days of the City's receipt thereof.
5.1.4 The City, Sheriff, and Courts shall assist Contractor in obtaining relevant information
regarding Citations from LM arnd the Courts in order that Contractor can track
payments of Fines and properly invoice the City. The City shall be responsible for
any Court costs associated with this interface.
5.2 City of Cupertino Compensation
Contractor shall reimburse the City for expenses incurred in administration of this Agreement
and for services rendered by the City too Contractor at the rate of Three-Thousand-Five-
Hundred Dollars ($3,500) per month. Payment of this reimbursement for expenses will begin
ninety (90) days after the day Citations aria first issued for Violations captured by Contractor's
RLCS, and will continue each month thereafter during the term of this Agreement. Payment
of said reimbursement is due within ten x;10) days following the end of the month for which
the payment is due.
6. Termination
6.1 Termination For Convenience
Either Party in its sole discretion may terminate this Agreement without cause at any time by
giving the other Party thirty (30) days noti~re of such termination.
6.1.1 City Termination of the Agreement
In the event the City terminates this Agreement for convenience prior to eighteen (18)
months from the date Citations ane first issued for Violations captured by Contractor's
RLCS, the City shall pay Contr~rctor a termination fee of Twenty-Five Thousand
Dollars ($25,000) per installed FCU. Payment of this termination fee is due as of the
date of termination. The Contractor will also receive payment for Citations issued at
the time of termination for which Fines are paid after the date of termination.
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6.2 Termination For Cause
6.2.1 Insolvency
The non-affected Party may terminate this Agreement at any time after either Party is
declared or acknowledges that it is insolvent, or upon the filing of any proceeding
(whether voluntary or involuntary) for bankruptcy, insolvency or relief from creditors.
6.2.2 Legal Ruling(s)
In the event any court of last resort shall rule (other than dicta) that red light camera
results connected with Contractor's detection of violations are inadmissible or
otherwise contrary to law, the Ci1:y may terminate this Agreement immediately with
written notice.
6.2.3 Breach
All terms, conditions, provisions, and specifications of this Agreement are material
and binding and the failure of eii;her Party to perform any material portion of their
responsibilities described herein shall be considered a breach of this Agreement.
However, prior to exercising its right to terminate hereunder, the non-defaulting Party
shall send the defaulting Party a notice of default which specifies the nature of the
default and the steps which need to be taken to cure same. The defaulting Party
shall have thirty (30) days following receipt of the notice of default to cure the default.
If the default is not cured within :such thirty (30) day period, then the non-defaulting
Party may terminate this Agreement.
6.2.4 Force Majeure
Neither Party shall be liable for any delay or failure of performance due to any reason
or unforseen circumstances beyond the affected Party's reasonable control, including
acts of God or public authorities, war and war measures (whether or not a formal
declaration of war is in effect), civil unrest, fire, epidemics, delay in transportation,
delivery or supply, or labor disput~:s. The obligations and rights of the excused Party
shall be extended on a day-to-day basis for the time period equal to the period of the
excusable delay.
6.3 Post Termination
Upon termination of this Agreement, thE: Parties agree to continue cooperating with each
other and to cant' out an orderly termination of their relations. This shall include, but not be
limited to, (1) each Party's prompt payrrient of any sums owed to the other, (2) the City's
assistance to Contractor in the removal of Contractor's property, and (3) Contractor's
expedient delivery to City of all records for, or belonging to, the City.
6.4 Liability On Termination
Except as specifically provided for in this Agreement, neither Party shall have any liability to
the other solely by reason of the termination of this Agreement inGuding, but not limited to,
any liability or obligation (statutory or otherwise) to compensate or reimburse the other for
any indemnity, claims, or damages what:>oever (including, but not limited to, claims relating
to lost revenues or lost profits, or reimbur.~ement of any expenditures, investments, leasehold
or employment obligations or other confiinuing commitments incurred by such Party in the
performance of its duties or obligations hereunder).
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7. Confidentiality
Subject to the City's obligations under the Public Records Act, proprietary and technical
information, including information about the use, design, specifications, and other matters related
to the RLCS teamed from and about Contractor during the term hereof, shall be held in confidence
and shall not be used or disclosed by the City without the express written consent of Contractor.
The City agrees that it will take all reasonable measures necessary to protect the secrecy and
confidentiality of, and avoid disclosure or use of, the confidential information of and about
Contractor.
The obligations of confidentiality shall not apply to information which: (1) has entered the public
domain other than as a result of an act or emission of the City, or (2) which subsequent to
disclosure hereunder is obtained by the recipient Party on anon-confidential basis from a third
party who has the right to disclose such inform~rtion to the recipient Party.
The foregoing commitments shall survive any termination or expiration of this Agreement.
8. Personnel
8.1 Employee Control and Supervision
Contractor represents that it has, or will secure at its own expense, all personnel required to
pertorm the services required under this ,Agreement. All of the services required under this
Agreement will be performed by Contactor or under its supervision, and all personnel
engaged in the work shall be qualifred to F~erform such services. The Contractor reserves the
right to determine the assignment of its own employees to the performance of the
Contractors services under this AgreemE~nt, however the City reserves the right, for good
cause, to require the Contractor to exclu~~e any employee from pertorming services on the
City's premises.
8.2 Employee Performance, Payment and Insurance
Contractor shall be solely responsible for i.he satisfactory work performance of its employees,
or any reasonable performance standard established by the City and mutually agreed to by
Contractor. Contractor shall be solely responsible for payment of all employees' wages and
benefits and subcontractors' costs. without any additional expense to the City, Contractor
shall comply with the requirements of emE~loyee liability, worker's compensation, employment
insurance and Social Security.
Contractor shall hold the City harmless; from any liability, damages, claims, costs and
expenses of any nature arising from allegr;d violations of personnel practices.
The City shall have the right to demand removal from the project, for a reasonable cause,
any personnel furnished by Contractor. The City must be notified of new hires and
reassignments of project personnel.
8.3 Changes In Contractor Management
Contractor must notify City in writing of all changes in management and project supervisory
personnel related to the project.
9. Indemnification
9.1 Contractor shall indemnify, defend, and hold harmless the City, and its officers, employees,
and agents (City Indemnitees), from and against any and all causes of action, claims,
liabilities, obligations, judgements, or damages, including reasonable attorneys' fees and
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costs of litigation (°claims'~, arising from Contractor's negligent or wrongful acts, errors, or
omissions in the performance of its services hereunder. In the event the City Indemnitees
are made a party to any action, lawsuit, or other adversarial proceeding alleging negligent or
wrongful conduct on the part of Contractor:
9.1.1 Contractor shall provide a defense to the City Indemnitees or, at the City's option,
reimburse their costs of defense, including reasonable attomeys' fees, incurred in
defense of such claims; and
9.1.2 Contractor shall promptly pay any final judgement or portion thereof rendered against
the City Indemnitees with respect 1:o claims determined by a trier of fact to have been
the result of Contractor's negligent or wrongful performance.
9.2 The City agrees to indemnify, defend, and hold harmless Contractor and its officers,
directors, shareholders, affiliates, employees and agents against any and all threatened or
pending claims, actions, losses and dam~~ges of any kind (including all costs and expenses
and reasonable attomeys' fees) arising out of or in connection with the negligent or willful
misconduct or intentional wrong of the Cite, its employees or agents.
9.3 Notwithstanding any other provision of this Agreement or otherwise, Contractor will not be
liable under any section of this Agreement or under any contract, negligence, strict liability or
other legal or equitable theory for any incidental, indirect, consequential, special or
exemplary damages, lost revenues, lo:~t profits, lost business relationships or cost of
procurement of substitute goods, technology or service.
9.4 The City shall not be responsible for any damage to persons or property due to the use,
misuse, or failure of any equipment used by the Contractor, or by any of its employees, and
third parties even though such equipment may be provided to City by Contractor.
10. Insurance Requirements
10.1 Contractor shall provide satisfactory evidence of insurance to the City no later than fifteen
(15) days after full execution of this Agre~:ment. Contractor shall give the City at least thirty
(30) days written notice of any material change or cancellation of any policy of insurance
required by this Agreement. Contractor, pit Contractor's own cost and expense, shall procure
and maintain, for the duration of the Agreement, the following insurance policies:
10.1.1 Workers' Compensation Coverage
Contractor shall maintain Workers° Compensation Insurance and Employees Liability
Insurance ($1,000,000 per occurrence) for its employees in accordance with the laws of the
State of Califomia. In addition, Contra~rtor shall require any and every subcontractor to
similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in
accordance with the laws of the State of California for all of the subcontractor's employees.
Any notice of cancellation or non-renewal of all Workers' Compensation policies must. be
received by the City at least thirty (30) da~~s prior to such change.
10.1.2 Commercial General Liability Cove:rage
Contractor shall maintain commercial general liability insurance in an amount of not less than
One Million Dollars ($1,000,000) per occurrence for bodily injury, personal injury, and
property damage. If a commercial general liability insurance form or other form with a
general aggregate limit is used, either the general aggregate limit shall apply separately to
the work to be performed under this Agreement or the general aggregate limit shall be at
least twice the required occurrence limit, car Two Million Dollars ($2,000,000).
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10.1.3 Automobile Liability Coverage
Contractor shall maintain automobile liat~ility insurance covering bodily injury and property
damage for Contractor's operation of the: vehicles arising out of or in connection with the
work to be performed under this Agreement, including coverage for Contractor's owned,
hired, and non-owned vehicles driven by Contractor's employees, in an amount of not less
than One-Million Dollars ($1,000,000) combined single limit for each occurrence.
10.2 Endorsements
Each general liability and automobile liability insurance policy shall be issued by insurers
possessing a Best's rating of no less than A -and shall be endorsed with, or include a
provision related to, the specific language of Sections 10.2.1 through 10.2.5, below.
10.2.1 "The City, its elected or appointed officers, officials, and employees, are to be
covered as additional insureds with respect to liability arising out of work performed
by Contractor in relation to general liability and automobile liability."
10.2.2 "This policy shall be considered primary insurance as respects the City, its elected
or appointed officers, officials, ~rnd employees. Any insurance maintained by the
City, including any self-insured retention the City may have, shall be considered
excess insurance only and shall not contribute with this policy".
10.2.3 "This insurance shall act for each insured and additional insured as though a
separate policy had been written for each, however, the insurance shall provide no
additional limits of liability".
10.2.4 "The insurer waives all rights o1' subrogation in relation to general liability. against
the City, its elected or appointed officers, officials, or employees".
10.2.5 "The insurance provided by thus policy shall not be canceled, non-renewed, or
materially changed in coverage or in limits required by this Agreement except after
thirty (30) days written notice ha;> been received by the City".
10.3 Certificate of Insurance
Contractor shall provide certificates of insurance with Standard Accord Forms to the City as
evidence of the insurance coverage required herein. Certificates of such insurance shall be
filed with the City no later than fifteen (15) days after full execution of this Agreement.
Current certification of insurance shall be (kept on file with the City at all times during the term
of this Agreement.
10.4 Failure To Procure Insurance
Failure on the part of Contractor to procw°e or maintain required insurance shall constitute a
material breach of contract under which the City may terminate this Agreement pursuant to
Section 6.2.3, above, or, at the City's discretion, procure or renew such insurance and pay
any and all premiums in connection therewith, and all monies so paid by the City shall be
repaid by Contractor upon demand.
11. Assignment and Subcontracting
The Parties hereto recognize that a substantial inducement to the City for entering into this
Agreement is the professional reputation, experience, and competence of Contractor.
Assignments of any or all rights, duties, or obligations of Contractor under this Agreement will be
permitted only with the express consent of the City. Contractor shall not subcontract any portion
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of the work to be performed under this Agreement without the written authorization of the City. If
the City consents to such subcontract, Contractor shall be fully responsible to the City for all acts
or omissions of the subcontractor. Nothing in this Agreement shall create any contractual
relationship between the City and subcontractor nor shall it create any obligation on the part of the
City to pay or to see to the payment of any monies due to any such subcontractor other than as
otherwise is required by law.
12. Compliance With Laws, Codes, Ordinances„ and Regulations
Contractor shall use the standard of care in i1:s profession to comply with all applicable federal,
state, and local laws, codes, ordinances, and rE~gulations.
12.1 Taxes
Contractor agrees to pay all required taxes on amounts paid to Contractor under this
Agreement, and to indemnify and held the City harmless from any and all taxes,
assessments, penalties, and interest asserted against the City by reason of the independent
contractor relationship created by this ~~greement. In the event the City is audited by any
Federal or State agency regarciing the independent contractor status of Contractor and the
audit in any way fails to sustain the validity of a wholly independent contractor relationship
between the City and Contractor, then Contractor agrees to reimburse the City for all costs,
including accounting and attorneys' fees;, arising out of such audit and any appeals relating
thereto.
12.2 Workers' Compensation Law
Contractor shall fully comply with the workers' compensation law regarding Contractor and
Contractor's employees. Contractor further agrees to indemnify and hold the City harmless
from any failure of Contractor to compl~r with applicable workers' compensation laws. The
City shall have the right to offset al~ainst the amount of any compensation due to
Contractor under this Agreement any amount due to the City from the Contractor as a result
of Contractor's failure to promptly pay to the City any reimbursement or indemnification
arising under this Section.
12.3 Licenses
Contractor represents and warrants to the City that it has all licenses, permits,
qualifications, insurance, and approval~~ of whatever nature which are legally required of
Contractor to practice its profession. Contractor represents and warrants to the City that
the Contractor shall, at its sole cost and expense, keep in effect or obtain at all times during
the term of this Agreement any liven;>es, permits, insurance, and approvals which are
legally required of Contractor to practice' its profession. Contractor shall maintain a City of
Cupertino business license.
13. Conflict of Interest
Contractor confirms it has no financial, contractual, or other interest or obligation that conflicts
with, or is harmful to, performance of its obligations under this Agreement. Contractor shall not,
during the term of this Agreement, knowingly obtain such an interest or incur such an obligation,
nor shall it employ or subcontract with any person for performance of this Agreement who has
such an incompatible interest or obligation.
13.1 Contractor, its agents and employees shall comply with all applicable Federal, State, and
local laws and regulations goveming conflict of interest. To this end, Contractor shall make
available to its agents and employees cc-pies of all applicable Federal, State, and local laws
and regulations goveming conflict of interest. Contractor shall furnish to the City, prior to
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the execution of this Agreement, a written list of all current subgrantees/subcontractors,
vendors, or personal service provider:., including subsidiaries of Contractor, which shall
receive Ten-Thousand Dollars ($10,000) or more from this Agreement. Such a list shall
inGude the names, addresses, telephone numbers, and identification of principal party(ies)
and a description of services to be proviided. During the term of this Agreement, Contractor
shall notify the City in writing of any change in the list of subgrantees/subcontractors,
vendors, personal service providers, cr subsidiaries of the Contractor within fifteen (15)
days of any change.
14. Non-Discrimination and Equal Employment Opportunity
Contractor represents and agrees it does not and will not discriminate against any employee or
applicant for employment because of race, religion, color, medical condition, sex, sexual
orientation and/or gender identity, national origin, political affiliation or opinion, or pregnancy or
pregnancy-related condition.
15. Records and Audits
Contractor shall maintain accounts and records, including personnel, property, performance and
financial records, adequate to identify and account for all costs directly related to this Agreement
and such other records as may be deemed necessary by the City or any authorized representative.
Such recorcfs will be retained for three (3) year. after the expiration of this Agreement and shall be
made available for inspection or audit by the City upon reasonable request during ContractoPs
normal business hours.
15.1 Contractor agrees to prepare and :submit financial, program progress, monitoring,
evaluation, and other reports as required by City or by State law authorizing the use of
automated enforcement systems. Contractor shall maintain and permit on-site inspections
of such property, personnel, financial, ;and other recorcis and accounts as are considered
necessary by the City to assure proper accounting for all Agreement funds. Subject to the
City's obligations under the Public Records Act, proprietary and technical information shall
be deemed confidential as described in Section 7 of this Agreement.
15.2 Monthly Management Reports
Contractor shall submit to the City m~mthly reports as described in Section 3.8 of this
Agreement.
15.3 Contractor shall insure its employees aryl board members furnish such information, which in
the judgement of City representatives, may be relevant to a question of compliance with
contractual conditions with City of Cupertino granting agency directives, or with the
effectiveness, legality, and achievemeni:s of the program.
15.4 Monitoring and Evaluation
To ensure proper pertormance of this Agreement and that the enforcement program is
conducted for the City, the City will moinitor, evaluate, and provide guidance to Contractor
in the performance of this Agreement. Authorized representatives of the City shall have
the right of access to all activities arnl facilities operated by the Contractor under this
Agreement. Facilities include all files, records, and other documents related to the
performance of this Agreement. Such activities will include attendance at meetings directly
related to Contractor's administration of the RLCS and observation of ongoing program
functions. Contractor will insure the cooperation of its staff in such efforts. The City's
Project Manager or her/his designee will conduct periodic program progress reviews.
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16. Religious and Political Activities
Contractor agrees that no funds made availat~le under this Agreement shall be used to promote
religious or political activities. Furthermore, Contractor agrees it will not perform, or permit to be
performed, any religious or political activities in connection with the performance of this
Agreement.
17. Independent Contractor
Contractor is and shall at all times remain as t~~ the City a wholly. independent contractor. Neither
the City nor any of its agents shall have control over the conduct of Contractor or any of
Contractor's employees or agents, except as h~;rein set forth. Contractor shall not at any time or in
any manner represent that it or any of its altents or employees are in any manner agents or
employees of the City. The Contractor shall have no power to incur any debt, obligation, or
liability on behalf of the City or otherwise ad on behalf of the City as an Agent.
18. Governing Law
This Agreement shall be governed by the laws of the State of California.
19. Entire Agreement /Modification
This Agreement supercedes any and all other agreements, either oral or written, between the
Parties, and contains all of the covenants and ~rgreements between the Parties. Each Party to this
Agreement acknowledges that no representations, inducements, promises, or agreements, oral or
otherwise, have been made by any party, or anyone acting on behalf of any party that are not
embodied herein. Any agreement, statement, ~~r promise not contained in the Agreement, and any
modification to the Agreement, will be effective only if signed by both Parties.
20. Commencement of Performance
Contractor's commencement of performance and provision of the Scope of Work set forth herein
is subject to (1) Contractor's and City's execution of this Agreement, (2) Contractor's receipt of a
Notice to Proceed from the City, (3) Lockheed Martin IMS' provision of certain citation processing
services to City as is required by Section 2.1 of that Agreement between the City and Lockheed
Martin IMS dated May 26, 2000, and (4) the 30-day public awareness "grace" period after the
RLCS is installed.
21. Contract Administration
M. Edwarci Stewart shall serve as Manager-in-Charge of the project for Contractor and shall be
responsible for performance of all its tasks and assuring compliance on all matters relating to this
Agreement. The Manager-in-Charge shall not be replaced without the written consent of the City.
Any changes to this Agreement shall be in writing and signed by the City Traffic Engineer and M.
Edward Stewart.
22. Notice
All notices, requests, reports, submissions and other communications permitted or required to be
given under this Agreement shall be deemed to have been duly given if such notice or
communication shall be in writing and sent by personal delivery or by airmail, cable, telegram,
telex, facsimile transmission or other commercial means of rapid delivery, postage or costs of
transmission and delivery prepaid, to the Parties at the following addresses. The Parties may
change addresses for delivery of notices by giving the other Party not less than ten (10) days prior
written notice of any change of address.
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The City's address is:
City of Cupertino
Department of Public Works
City Hall
10300 Torre Avenue
Cupertino, CA 95014-3255
Attn: City Traffic Engineer
Contractor's address is:
APAC Technologies, Inc.
3300 Oak Lawn Avenue
Suite 500
Dallas, TX 75219-4266
Attn: M. Edward Stewart
23. Attorneys' Fees
In any action brought to declare the rights granted herein or to enforce any of the terms of this
Agreement, the prevailing Party shall be entitl~:d to an award of reasonable attorneys' fees in an
amount determined by the court.
24. Waiver
Waiver of a breach or default under this Agreement shall not constitute a continuing waiver of a
subsequent breach of the same or any other provision under this Agreement. Payment of any
invoice by the City shall not constitute a Hraiver of the City's right to obtain correction or
replacement of any defective ornon-compliant work product.
25. Execution
This Agreement may be executed in several c~~unterparts, each of which shall constitute one and
the same instrument and shall become binding upon the Parties when at least one copy hereof
shall have been signed by both Parties hereto. In approving this Agreement, it shall not be
necessary to produce or account for more than one such counterpart.
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1
CITY OF
CUPEf~TINO
o~ _~~ ~
City Hall
10300 Torre Avenue
Cupertino, CA 95014-3255
(408) 777-3354
FAX (408) 777-3333
PUBLIC WORKS DEPARTMENT
Summary
AGENDA ITEM ~,,Z
SUBJECT AND ISSUE
AGENDA DATE January 16, 2001
Approval of installation of three locations for Demonstration Red Light Running Photo
Enforcement Systems.
BACKGROUND
At the September 18, 2000 meeting, City Council authorized an agreement with APAC
Technology to install and operate a demonstration red light running photo enforcement
system.
APAC will annually pay $42,000 to the City for a minimum term of five years. The
minimum fine for a red light running violation is $281. APAC will receive $49.50 for each
paid citation.
Under a separate agreement with the City, Lockheed Martin IMS is concurrently deploying
the red light running photo enforcement systems. At its December 4, 2000 meeting, City
Council approved the proposed installation at :.ix locations by Lockheed Martin. They have
the exclusive right to process citations for red light running violating by photo enforcement
systems by other contractors. Lockheed Martin also has first right of refusal for any
installation at a particular location.
APAC representatives met with the Public Safety Commission at their December 14, 2000
meeting. They reviewed the three locations proposed by APAC and recommend their
installation, and the City Traffic Engineer concurs. Under the first right of refusal, Lockheed
Martin has reviewed the three locations and has no interest to deploy their systems.
The list of the three locations for the field camera units by APAC are:
1. Wolfe Road at Stevens Creek Boulevard., south bound left turn.
2. Stevens Creek Boulevard at Wolfe Road., east bound left turn.
3. Wolfe Road at Homestead Road, north bound turn.
Printed on Rec y Ned Paper ~ ~ , ~