00-117 APAC TechnologiesAGREEMENT
This agreement for goods and services (hereinafter referred to as the Agreement") is entered into by
and between the City of Cupertino (hereinafter ref~:rred to as °Cupertino" or the City's and Poltech
International Limited (Poltech") and American Plastics & Chemicals, Inc. dba APAC Technologies, lnc.
("APAC? (hereinafter referred to jointly and severally as "Contractor").
RECII~ ALS
Whereas,
A. The City is a State of California municipal corporation with offices at City Hall, 10300 Torre
Avenue, Cupertino, CA 95014-3255;
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. corporation with headquarters offices at 3300 Oak Lawn
Avenue, Suite 500, Dallas, TX 75219-4266;
D. Cupertino has determined installation of a red light 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 c~f a red light camera system which uses state-of-the-
art digital technology to capture and process n:d 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 Centauri"", 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 terms and conditions set forth
hereunder;
K. If conflict arises between the Terms and ConClitions 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 covenants contained herein and other good and valuable
consideration, the receipt of which is hereby acknowledged, the City and Contractor do hereby agree as
follows.
TERMS AND CONDITIONS
1. Definitions
Certain words and phrases used in this Agreement 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, without 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 vehicles 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 Contractor's RLCS.
1.7 "Photograph" means an image recorded either 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, political subdivision, or any other form or entity.
2. Term
2.1 Primary Term
The Primary Term shall commence as ~~f the date of execution of this Agreement and shall
terminate five (5) years after the first ~1ay 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 Agreerent.
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3. Contractor's Scope of Work
Contractor's scope of work shall include provision 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 Ianes,l 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, (T) 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) F(:U"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 be installed all of the FCU equipment enumerated in
Section 3.1. of this Agreement.
3.2.2 Contractor will be responsible for obtaining all required permits, licenses, and
insurance required for installation 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 pr;rmit 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 sutx;ontractors to pertorm 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 such 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 d~~e to any such subcontractor other than as otherwise
is required by law.
3.2.6 In the event installation of a FC:U requires the removal or relocation of a City loop,
the cost of such removal or relocation shall be borne by Contractor.
3.3 Testing, Repair and Maintenance of FCI.J'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 scheduleci maintenance on its FCU's not less than once each
month.
3.3.4 Reports
All FCU testing will be certified t-y 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 storeci on the WORM disk will be securely encrypted and
transferred to Contractor's central server complex not less than once each work day. Within
two (2) work days after receipt of the clata at the central server complex, the data will be
transmitted to LM in a form acceptable to 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 Monitored 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 Icy 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 the 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 E~rovided 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 Nlinotaur"" software, (3) legal considerations vis a vis
digital versus wet film technology and State 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 bs~sis (as determined by Contractor using generally
accepted accounting principles).
3.8 Reports
Contractor will provide the City with periodic 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 Citty 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 :~11 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 any court of competent jurisdiction to the use of the
FCU, the RLCS, or the validity of the evidence 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 provide expert witness testimony regarding the accuracy
and technical operation of the FCU ~rnd RLCS. Contractor shall supply all courts of
competent jurisdiction with a statement c-f technology for use at informal hearings.
3.11 Removal of FCU's and Other Contractor Owned Equipment
Within 60 days after termination of this Agreement 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 shalt 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 City will use its best efforts to assist Contractor to
identify and obtain compensation from any party who is responsible for damage to Contractor
equipment.
4.3 City Representative
The City Traffic Engineer shall serve as the City's representative relative to administration of
this Agreement and the RLCS project. ~~II 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 op~:rations 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 Violation Capture
The City shall establish the amount of time 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 between the time the signal light turns red and the
time an automobile may enter the intersE~ction 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 allow use of the RLCS by a third party, for studies
without the prior written consent of Contractor.
4.8 Relationship With Contractor
The City shall work with Contractor as 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 C:ity 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 performing 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 which 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 f=ines 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 sh~dl assist Contractor in obtaining relevant information
regarding Citations from LM and 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 to 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 are 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 (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 tei-rrtinate this Agreement without cause at any time by
giving the other Party thirty (30) days notice 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 acre first issued for Violations captured by Contractor's
RLCS, the City shall pay Contractor 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 i1r 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 Ciity 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 either Party to perform any material portion of their
responsibilities described herein :hall 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 ~i 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 followiing 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 disputes. The obligations and rights of the excused Party
shall be extended on a day-today basis for the time period equal to the period of the
excusable delay.
6.3 Post Termination
Upon termination of this Agreement, thie Parties agree to continue cooperating with each
other and to cant' out an orderly termin~rtion of their relations. This shall include, but not be
limited to, (1) each Party's prompt payment of any sums owed to the other, (2) the City's
assistance to Contractor in the remo~ral 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 including, but not limited to,
any liability or obligation (statutory or otherwise) to compensate or reimburse the other for
any indemnity, claims, or damages whatsoever (including, but not limited to, Gaims relating
to lost revenues or lost profds, or reimbursement of any expenditures, investments, leasehold
or employment obligations or other continuing commitments incurred by such Party in the
performance of its duties or obligations hiereunder).
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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 u:se, 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 Cifi~ 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 omission 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 information 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
perform the services required under this Agreement. All of the services required under this
Agreement will be performed by Contractor or under its supervision, and all personnel
engaged in the work shall be qualified to perform such services. The Contractor reserves the
right to determine the assignment of its own employees to the performance of the
Contractors services under this Agreement, however the City reserves the right, for good
cause, to require the Contractor to exclude any employee from performing services on the
City's premises.
8.2 Employee Performance, Payment and Insurance
Contractor shall be solely responsible for the satisfactory work performance of its employees,
or any reasonable performance standani established by the City and mutually agreed to by
Contractor. Contractor shall be solely rE~sponsible for payment of all employees' wages and
benefits and subcon#ractors' costs. Without any additional expense to the City, Contractor
shall comply with the requirements of employee liability, worker's compensation, employment
insurance and Social Security.
Contractor shall hold the City harmle:~s from any liability, damages, claims, costs and
expenses of any nature arising from alle~~ed 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 rind 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, ~x 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~, inGuding reasonable attorneys' fees, incurred in
defense of such claims; and
9.1.2 Contractor shall promptly pay an!~ final judgement or portion thereof rendered against
the City Indemnitees with respect. to 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 damages 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 City, 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 2~ny incidental, indirect, consequential, special or
exemplary damages, lost revenues, lost 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 Agreement. 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, at Contractor's own cost and expense, shall procure
and maintain, for the duration of the Agmement, the following insurance policies:
10.1.1 Workers' Compensation Coverage
Contractor shall maintain Workers° Compensation Insurance and Employer's Liability
Insurance ($1,000,000 per occurrence) !for its employees in accordance with the laws of the
State of Califomia. In addition, Contractor 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 Califomia for all of the subcontractor's employees.
Any notice of cancellation or non-rene~nral of all Workers' Compensation policies must be
received by the City at least thirty (30) d+ays prior to such change.
10.1.2 Commercial General Liability Coverage
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, or Two Million Dollars ($2,000,000).
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10.1.3 Automobile Liability Coverage
Contractor shall maintain automobile liability insurance covering bodily injury and property
damage for Contractor's operation of tfie 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 bey 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 gen~~rat liability and automobile liability."
10.2.2 "This policy shall be considered primary insurance as respects the City, its elected
or appointed officers, officials, and 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 of subrogation in relation to general liability against
the City, its elected or appointed officers, officials, or employees".
10.2.5 "The insurance provided by this policy shall not be canceled, non-renewed, or
materially changed in coverages or in limits required by this Agreement except after
thirty (30) days written notice h;~s 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 req~.~ired herein. Certifiicates of such insurance shall be
filed with the City no later than fifteens (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 procure 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 alt 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 ot~ligations 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, Contracor shall be fully responsible to the City for all acts
or omissions of the subcontractor. Nothincl 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 nth Laws, Codes, Ordinances, and Regulations
Contractor shall use the standard of care in its profession to comply with all applicable federal,
state, and local laws, codes, ordinances, and regulations.
12.1 Taxes
Contractor agrees to pay all required taxes on amounts paid to Contractor under this
Agreement, and to indemnify and hold 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 ,4greement. In the event the City is audited by any
Federal or State agency regarding 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 ~~ontractor 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 fw~ther agrees to indemnify and hold the City harmless
from any failure of Contractor to comply with applicable workers' compensation laws. The
City shall have the right to offset ~rgainst 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 pair 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 approvals 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 anti expense, keep in effect or obtain at all times during
the term of this Agreement any licenses, permits, insurance, and approvals which are
legally required of Contractor to practi~:e 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 pertormance of this Agreement who has
such an incompatible interest or obligation.
13.1 Contractor, its agents and employees :hall comply with all applicable Federal, State, and
local laws and regulations goveming Gmflict of interest. To this end, Contractor shall make
available to its agents and employees ~~opies 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 providers, including subsidiaries of Contractor, which shall
receive Ten-Thousand Dollars ($10,000) or more from this Agreement. Such a list shall
include the names, addresses, telephone numbers, and identification of principal party(ies)
and a description of services to be provided. 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, or 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 records will be retained for three (3) yeai5 after the expiration of this Agreement and shall be
made available for inspection or audit by the City upon reasonable request during Contractor's
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 records 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 monthly reports as described in Section 3.8 of this
Agreement.
15.3 Contractor shall insure its employees and 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 e~upertino granting agency directives, or with the
effectiveness, legality, and achievements of the program.
15.4 Monitoring and Evaluation
To ensure proper performance of thi:~ Agreement and that the enforcement program is
conducted for the City, the City will m~~nitor, 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 and facilities operated by the Contractor under this
Agreement. Facilities include all files, records, and other documents related to the
pertormance 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 wiill conduct periodic program progress reviews.
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16. Religious and Political Activities
Contractor agrees that no funds made availalble 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 activii:ies in connection with the performance of this
Agreement.
17. Independent Contractor
Contractor is and shall at all times remain as i:o 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 herein set forth. Contractor shall not at any time or in
any manner represent that it or any of its agents 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 act 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 agreements between the Parties. Each Party to this
Agreement acknowledges that no representatiions, 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, or promise not contained in the Agreement, and any
modification to the Agreement, will be effective only if signed by both Parties.
20. Commencement of Pertormance
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. Edward Stewart shalt 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 Icy 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 P~rrties 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
Datlas, TX 75219-4266
Attn: M. Edward Stewart
23. Attorneys' Fees
In any action brought to declare the rights gi°anted herein or to enforce any of the terms of this
Agreement, the prevailing Party shall be entii:led 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 waiver of the City's right to obtain correction or
replacement of any defective or non-compliant work product.
25. Execution
This Agreement may be executed in several counterparts, each of which shall constitute one and
the same instrument and shall become bindiing 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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