00-068 Lockheed Martin IMSCITY OF CUPERTINO
AUTOMATED TRAFFIC SIGNAL ENFORCEMENT
Final
April 13, 2000
This Agreement is made on this day oi' 2000 at Cupertino, California, by
and between the City of Cupertino, a municipal corporation, (hereinafter referred to as
the "CITY") and Lockheed Martin IMS (hereinafter referred to as the "CONTRACTOR").
RECITALS
A. The CITY proposes to contract for services as outlined below. The CITY desires to
license certain systems and equipment of CONTRACTOR and utilize certain
services of CONTRACTOR as described below.
B. The CONTRACTOR is willing to perform such services and has the necessary
qualifications by reason of experience, preparation, and organization to provide such
services; .
C. CONTRACTOR, through its Municipal Services Line of Business, has the ability and
expertise to furnish to the CITY equipment and services for the purposes of
detecting certain traffic violations and issuing citations to the alleged violators.
D. NOW, THEREFORE, the CITY and the CONTRACTOR, mutually agree as follows:
DEFINITIONS. Certain words and phra:~es used in this Agreement shall have the
specific meaning shown in this Section 1. Unless otherwise specifically defined
herein, all other words shall have their usual and customary meaning.
1.1 "Photo Safety Program" means type of service that is being conducted by the
CONTRACTOR for the CITY.
1.2"Final Disposition" means as to the citations: (a) payment of the assessed Fine
(hereinafter defined) with respect to ~;I Violation (hereinafter defined); (b) plea of
guilty or no contest with respect to ~i Violation; (c) conviction with respect to a
Violation; (d) any disposition (including dismissals as a result of successful
completion of a traffic violator school course) other than the finding of not guilty
with respect to a Violation.
1.3"Fine" means a monetary sum asses~.ed for a Violation which is actually received
by the CITY including bail forfeitures received but does not include suspended or
unpaid fines.
1.4"Citation" means the initial pleading iri a criminal or civil traffic action relating to a
Violation documented or evidenced b~~ the CONTRACTOR System.
CITY OF CUPERTINO
AUTOMATED TRAFFIC SIGNAL ENFORCEMENT
Final
April 10, 2000
1.5"Person" means an individual, partnership, joint venture, corporation, trust,
unincorporated association, any governmental authority, political subdivision,
thereof or any other form or entity.
1.6"Unattended Housing" means a pole and cabinet used to house the Unit. The
"Unattended Housing" may also in~;lude a "video loop" presence detection
system, as well as the wiring, wFlich connects the terminal block in the
unattended housing to the City traffic :signal controller.
1.7"Unit" means a photographic red light violation monitoring device consisting of a
camera, flash, central processing unit, signal controller interface and digital loop
detector capable of accurately me~lsuring violations of red lights by motor
vehicles and such "Unit" records such violation information on a photograph of
such vehicle.
1.8"CONTRACTOR System" means th~~ CONTRACTOR services furnished and
equipment licensed to the CITY, pursuant to this Agreement.
1.9 "Violation" means any traffic violation contrary to the terms of the State of
California Vehicle Code or the City Municipal Code, including without limitation,
operating a motor vehicle contrary to traffic signals, and operating a motor
vehicle without displaying a valid license plate or registration.
2 LICENSE
2.11n consideration of the fees and payments set forth in Section 7 below,
CONTRACTOR hereby licenses seven (7) Units and Unattended Housings to the
CITY solely for use in documenting violations and collecting Fines in accordance
with the terms hereof at seven (7) intersections with the option to expand in the
City. The number of Units and/or Unattended Housings to be installed at the
intersections proposed by the CITY for enforcement consideration will be
determined by pre-enforcement inter:>ection analysis of the CONTRACTOR and
will include those approaches found to have the required minimum number of
violations as specified in CONTRACTOR"S Bid Proposal (Exhibit B herein). The
quantity of Units and Unattended Housings may be increased or decreased by
mutual agreement of the parties. The CONTRACTOR shall have first right of
refusal for any particular location. For purposes of this paragraph, such
agreement may be made in writing by the City Council and CONTRACTOR's
Regional Vice President. In addition, the CONTRACTOR has exclusive right to
process all violation notices issued as the result of any photo enforcement
detection undertaken on behalf of the CITY.
2.2Subject to the CITY's obligations under the Public Records Act, proprietary and
technical information including information about the use, design, specifications
,~
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CITY OF CUPERTINO
AUTOMATED TRAFFIC SIGNAL ENFORCEMENT
Final
April 10, 2000
or other matters related to the Unit, learned by the CITY from and about
CONTRACTOR during the term hE~reof shall be deemed confidential and
proprietary. Such confidential inform;~tion shall be held in confidence and shall
not be used or disclosed by the CITI' as expressly provided in this Agreement.
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 CONTRACTOR. The ~~bligations of confidentiality shall not apply
to information which: (a) has entered the public domain other than as a result of
an act or omission of the CITY, or (b) 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.
3 AGREEMENT. This agreement consists of this document and attachments "Exhibit
A" (Scope of Services), and "Exhibit B" (Bid Proposal). In the event of a conflict
among the provisions of the foregoing documents, the provisions of this Agreement
shall govern, then the provisions of "Exhit~it A", then the provisions of "Exhibit B".
4 SERVICES. The CONTRACTOR shall ~~erform those services set forth in "Exhibit
A," (Scope of Services) and "Exhibit B" (Bid Proposal) which is attached hereto and
incorporated herein by reference.
4.1 New Technology. In the event there are new developments in photo
enforcement technology and the transition process into .new image capture and
violation detection technologies as they become proven systems and the Court
accepts digital imagery, the CITY and CONTRACTOR may negotiate changes in
this agreement.
4.2The CITY may elect during the term of the contract any or all of the options, as
defined in the CONTRACTOR'S Proposal dated November 30, 1999 in response
to the CITY"S Request For Proposal. The CITY shall make the authorization of
any or all options in writing. Pricing of such services if selected shall be
negotiated.
5 COMMENCEMENT OF PERFORMANCE. CONTRACTOR shall commence the
performance of the services provided for herein upon full execution of this
Agreement and CONTRACTOR'S receipt of a Notice to Proceed ("NTP") by the City.
The date upon which CONTRACTOR receives the NTP shall be the Effective Date
of this Agreement.
6 TERM OF AGREEMENT. This Agreerent shall continue in effect for the five (5)
years following the first day of issuance of citations, after the legally mandated one
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CITY OF CUPERTINO
AUTOMATED TRAFFIC SIGNAL ENFORCEMENT
Final
April 10, 2000
month warning period. This Agreement may be extended for one or more additional
years, upon mutual agreement. City srlall provide ninety (90) days notice to the
CONTRACTOR of its intention to extend 1:he Agreement.
6.1 Upon termination of the Agreement, CONTRACTOR shall remove all
CONTRACTOR's equipment at its own expense and restore CITY property to its
original condition. Should the CONTFACTOR fail to remove all equipment within
60 days, the CITY shall bill the CONTRACTOR for their removal.
7. PAYMENT FOR SERVICES. The C~~NTRACTOR shall be compensated for
services provided as described below ire Section 7.1, pursuant to this Agreement.
Compensation shall under no circumstances be increased or decreased except by
written amendment of this Agreement, e;ccept as provided in Section 7.2 or Section
7.8 of this Agreement.
7.1. The CITY shall pay to CONTRACTOR a fee equal to the amount the City
receives per paid citation (the "ProcE~ssing Fee") for each citation detected and
processed by the CONTRACTOR treat results in a fine collected by the CITY.
CITY shall remit to CONTRACTOR the amount equal to the amount the CITY
receives from the Court for each paid citation. Pricing is based upon installation
of enforcement systems at seven rrlutually agreeable locations, assuming the
continuance of traffic signal operations in effect at the time of this proposal.
7.2. The CITY shall pay to CONTRACTOR a fee equal to $87.50 per paid citation for
the processing of any violation dete~~ted by a photo enforcement system other
than that of CONTRACTOR.
7.3. Pricing is based upon CONTRACT~DR'S installation of a minimum of five (5)
suitable enforcement sites within the CITY'S proposed intersections. A suitable
enforcement site is defined as meeting the CONTRACTOR"S minimum violation
criteria and installation requirements, which are specified in Exhibit "B" (Bid
Proposal).
7.4. Upon the first month that Processing Fee payments are received by the
CONTRACTOR, the CONTRACT012 will begin monthly payments to CITY in
reimbursement for the services of orie Santa Clara County Sheriffs Department
Deputy Sheriff, at the rate of $12,500 per month. The CITY will prepare an
invoice monthly, and CONTRACTOR shall pay within thirty (30) business days
of receipt thereof. The payment amount shall be adjusted annually,
commensurate with the cost of living adjustment provided by the Santa Clara
County Sheriff's Department.
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CITY OF CUPERTINO
AUTOMATED TRAFFIC SIGNAL ENFORCEMENT
Final
April 10, 2000
7.5. The expense for the relocation of CITY loops for intersections identified in the
Request for Proposal shall be the responsibility of the CONTRACTOR, if such
relocation is required.
7.6. The CITY shall assist CONTRACTOR in obtaining all required information from
the Court(s) where Citations are filed electronically, in the Court's records
management system, on line or in batch mode on a nightly basis, so that
CONTRACTOR can track payment: on the CITY 's behalf and provide for
proper invoicing and reporting for the CITY. The CITY shall be responsible for
any cost identified by the Court, which is associated with the interface.
7.7. CONTRACTOR shall provide the CI-rY with monthly statements and/or invoices
with respect to Fines and/or Final C>isposition without a Fine, which the CITY
shall pay within thirty (30) business d Sys of receipt thereof.
7.8. In the event that the CITY terminates this Agreement and provided that all of the
terms and conditions of this AgreemE~nt have been satisfied by CONTRACTOR,
the CITY shall pay CONTRACTOR to continue to redeem outstanding citations
until their expiration and will reimburse CONTRACTOR for any program
expenditures which the CITY authorized prior to the termination of the
Agreement and which would not otherwise be reimbursed.
8. CONTRACT ADMINISTRATION.
8.1. The CITY's Representative. Un ess otherwise designated in writing, the
CITY"S Traffic Engineer or her/his designee shall serve as the CITY's
representative for the administration of the project. All activities performed by
the CONTRACTOR shall be coordin~lted with this person.
8.2. Manager-in-Charge. John Flynn ~~hall be in charge of the project for the
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 done in writing and signed by the
CONTRACTOR'S Regional Vice President.
8.3. Responsibilities of the CITY. The CITY shall provide all relevant
documentation in its possession to tl~e CONTRACTOR upon request in order to
minimize duplication of efforts. The CITY's staff shall work with the
CONTRACTOR as necessary to facilitate performance of the services. The
CITY shall remain responsible for providing the following elements of the Photo
Safety Program:
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CITY OF CUPERTINO
AUTOMATED TRAFFIC SIGNAL ENFORCEMENT
Final
April 10, 2000
8.3.1. The CITY shall be responsible for providing CONTRACTOR with "as built"
drawings required by CONTRACTOR for the preparation of drawings for
the installation of the loops, wiring and Unattended Housings.
8.3.2. The CITY shall not levy any permit fees or, if municipal ordinance requires
the assessing of such fees, the CITY shall pay for such fees associated
with the installation of the Unattended Housings.
8.3.3. The CITY agrees it sh~lll diligently prosecute each Citation.
CONTRACTOR shall defend any challenge in any court of competent
jurisdiction to the use of the Unit or validity of its results and/or the use of
the U.S. mails to deliver the Citation. CONTRACTOR shall not be
responsible to defend any challenge in any court of competent jurisdiction
to the use of a photo enforcement detection unit that is not provided by the
CONTRACTOR. CITY CounsE~l may consult and confer with counsel for
CONTRACTOR in any such proceeding upon reasonable request for such
consultation.
8.3.4. All electrical power required by the Units, except that CONTRACTOR shall
be responsible for connecting the Unattended Housings to the source of
the electrical power.
8.3.5. The CITY will not modify traffic signal operations in effect at the time of the
proposal, without advising COI~TRACTOR in advance of such change and
without consideration of the impact of the change on the Photo Safety
Program. The CITY may elect: to offer a delay to violators at the start of
the red signal phase, such that the camera will not be activated until a
given period after the light ha:~ turned red, but in no case shall the delay
exceed 0.3 seconds (three tenths of one second).
8.3.6. The CITY will reimburse CONTRACTOR for any damage done to
detectors, Units and Unattended Housings 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, including but not
limited to Units and the Unattended Housings.
8.3.7. During the term of this Agreement or any extension thereof, the CITY
agrees that it cannot use the IJnit, or allow the Unit's use by a third party,
for studies without the prior, written permission of CONTRACTOR.
8.3.8. Personnel. The CONTRACT~~R represents that it has or will secure at its
own expense all personnel n~quired to perform the services under this
Agreement. All of the services required under this Agreement will be
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CITY OF CUPERTINO
AUTOMATED TRAFFIC SIGNAL ENFORCEMENT
Final
April 10, 2000
performed by the 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 CONTRACTOR's services
under this Agreement, but the CITY reserves the right, for good cause, to
require the CONTRACTOR to exclude any employee from performing
services on the CITY's premisE~s.
9.1. The CONTRACTOR shall be solE:ly responsible for the satisfactory work
performance of all employees as described in "Exhibit A" or any reasonable
performance standard established by the CITY and mutually agreed to by
CONTRACTOR. The CONTRACTOR shall be solely responsible for payment of
all employees' wages and benefits and subcontractors' costs. Without any
additional expense to the CITY, the CONTRACTOR shall comply with the
requirements of employee liability, worker's compensation, employment
insurance and Social Security. Tl~e CONTRACTOR shall hold the CITY
harmless from any liability, damages, claims, costs and expenses of any nature
arising from alleged violations of personnel practices. The CITY shall have the
right to demand removal from the project, for a reasonable cause, of any
personnel furnished by the CONTR~~CTOR. The CITY must be notified of new
hires or reassignments of project personnel.
9.2. CONTRACTOR must notify CITY in writing of all changes in management and
project supervisory personnel relatecl to this project.
10. TERMINATION.
10.1. Termination for Convenience. Either party may terminate this Agreement
without cause and in its sole discretion at any time by giving the other party thirty
(30) days' written notice of such termination. In the event of such termination, the
CONTRACTOR shall cease service:: as of the date of termination and shall be
compensated for services performed to the CITY's satisfaction up to the date of
termination.
10.1.1. In the event the CITY terminates this Agreement for convenience by
City Council Authority pursuant to this paragraph 10.1, the
CONTRACTOR shall be entitled to a cancellation fee determined in
accordance with the following formula:
A =the number of months remaining within the first three years of
the five year contract term
B = 36 months =the first three years of the contract term
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CITY OF CUPERTINO
AUTOMATED TRAFFIC SIGNAL ENFORCEMENT
Final
April 10, 2000
A/B = the pro rata percent~~ge of remaining period within the first
three years of the contract
C = $25,000 = the red light camera fixed installation cost per
enforced intersection approach
D = the number of inst~~lled systems (intersection approaches
enforced)
(A/B) x (C x D) =amount to Ise paid as cancellation fee
For example, if the contract proceeds through the tenth day of the sixth
month, and seven enforcement systems have been installed, the pro-rata
portion of the cancellation fee vrould be:
A = 29.67 months (36 months - 6.33 months transpired contract)
B = 36 months
C = $25,000
D=7
Calculation of Fee =
(29.67/36) • ($25,000 ~ 7)
82.4% ~ $175,000
$144, 200
The CONTRACTOR is entitled to payment for valid citations issued at
the time of termination, but which have not been paid at the time of
termination.
10.2. Termination for Cause. All terms, provisions, and specifications of this
Agreement are material and binding, and failure to perform any material portion
of the work described herein shall k~e considered a breach of this Agreement.
Should the Agreement be breached in any manner, the CITY may, at its option,
terminate the Agreement not less th~ln thirty (30) days after written notification is
received by the CONTRACTOR to rE:medy the violation within the stated time or
within any other time period agreed to by the parties. In the event of such
termination, the CONTRACTOR :hall be responsible for any reasonable
additional costs incurred by the CITY in securing the services from another
contractor.
CITY OF CUPERTINO
AUTOMATED TRAFFIC SIGNAL ENFORCEMENT
Final
April 10, 2000
10.3. In the event, if any court of last res~~rt shall rule (other than dicta) that red light
camera results connected with the CONTRACTOR'S detection of violations are
inadmissible or otherwise contrary to law, the CITY may terminate this
Agreement immediately with written notice.
10.4. Force Majeure. Neither party shall be liable for any delay or failure of
performance due to any reason c-r unforeseen 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 ~~f the excused party shall be extended on a
day-to-day basis for the time period equal to the period of the excusable delay.
10.5. Upon termination of this Agreement as herein provided, CONTRACTOR shall
provide all reasonable assistance arn~ use its reasonable efforts to deliver to the
CITY in an orderly and expedient m~lnner, all records prepared for or belonging
to the CITY. Notwithstanding expir~ltion of the Agreement, the CITY shall pay
CONTRACTOR all amounts due and payable under Section 7 hereof.
11.INDEMNIFICATION.
11.1. The 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, judgments, or damages,
including reasonable attorneys' fee: and costs of litigation ("claims"), arising
from the CONTRACTOR's negligent or wrongful acts, errors, or omissions in the
performance of the services under this Agreement. 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 the
CONTRACTOR:
11.1.1. The CONTRACTOR shall provide a defense to the CITY indemnitees or
at the CITY's option reimburse tf~e CITY indemnitees their costs of defense,
including reasonable attorneys' fees, incurred in defense of such claims; and
11.1.2. The CONTRACTOR shall promptly pay any final judgment or portion
thereof rendered against the CITY indemnitees with respect to claims
determined by a trier of fact to h;~ve been the result of the CONTRACTOR's
negligent or wrongful performance.
11.2. The City agrees to indemnify, defend and hold harmless CONTRACTOR and
its officers, directors, shareholders, ~Iffiliates, employees and agents against any
and all threatened or pending claim:, actions, losses and damages of any kind
(including all costs and expenses grid reasonable attorneys' fees) arising out of
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CITY OF CUPERTINO
AUTOMATED TRAFFIC SIGNAL ENFORCEMENT
Final
April 10, 2000
or in connection with the negligent or willful misconduct or intentional wrong of
the City, its employees or agents.
11.3. 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, spE~cial or exemplary damages, lost revenues,
lost profits, lost business relationsl-ips or cost of procurement of substitute
goods, technology or service.
11.4. CITY shall not be responsible for ~>ny 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 parl:ies even though such equipment may be
licensed to the CITY by the CONTRACTOR.
12.INSURANCE REQUIREMENTS.
12.1. The CONTRACTOR shall provide certificates no later than 15 days after
execution of this Agreement. The CONTRACTOR shall give CITY at least thirty
(30) days written notice of any material change or cancellation of any policy of
insurance required by this agreement. The CONTRACTOR, at the
CONTRACTOR's own cost and ex~~ense, shall procure and maintain, for the
duration of the contract, the following insurance policies:
12.1.1. Workers' Compensation Coverage. The CONTRACTOR shall maintain
Workers' Compensation Insurance and Employer's Liability Insurance
($1,000,000 each accident) for it:~ employees in accordance with the laws of
the State of California. In addition, the 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 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 i:hirty (30) days prior to such change.
12.1.2. General Liability CoveragE:. The 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 corr~mercial general liability insurance form or
other form with a general aggregate limit is used, either the general
aggregate limit shall apply separ<~tely to the work to be performed under this
Agreement or the general aggregate limit shall be at least twice the required
occurrence limit.
12.1.3. Automobile Liability Coverage. The CONTRACTOR shall maintain
automobile liability insurance covering bodily injury and property damage for
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CITY OF CUPERTINO
AUTOMATED TRAFFIC SIGNAL ENFORCEMENT
Final
April 10, 2000
CONTRACTOR's activities of the vehicles arising out of or in connection
with the work to be performed urder 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.
12.2. Endorsements. Each general liability and automobile liability insurance policy
shall be issued by insurers possessing a Best's rating of no less than A-: VII and
shall be endorsed with or include a ~~rovision related to the specific language of
Section 12.2.1 below.
12.2.1. "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."
12.2.2. 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 exce:~s insurance only and shall not contribute
with this policy.
12.2.3. This insurance shall act for ea~:h insured and additional insured as though
a separate policy had been writi:en for each, however, the insurance shall
provide no additional limits of liability.
12.2.4. The insurer waives all right: of subrogation, in relation the general
liability, against the CITY, its Elected or appointed officers, officials, or
employees.
12.2.5. The insurance provided by thi:~ policy shall not be canceled, nonrenewed,
or materially changed in covera~~e or in limits required by this agreement
except after thirty (30) days' writtE~n notice has been received by the CITY.
12.3. Certificates of Insurance. The C;ONTRACTOR shall provide certificates of
insurance with Standard Acord 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 days after 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.
12.4. Failure to Procure Insurance. F~~ilure on the part of the CONTRACTOR to
procure or maintain required irisur~~nce shall constitute a material breach of
contract under which the CITY m;~y terminate this Agreement pursuant to
Section 12.2 above, or at CITY'S discretion, procure or renew such insurance
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CITY OF CUPERTINO
AUTOMATED TRAFFIC SIGNAL ENFORCEMENT
Final
April 10, 2000
and pay any and all premiums in connection therewith, and all monies so paid by
CITY shall be repaid by the CONTRACTOR to CITY upon demand.
13.ASSIGNMENT AND SUBCONTRACTING. The parties recognize that a substantial
inducement to the CITY for entering into this Agreement is the professional
reputation, experience, and competence of the CONTRACTOR. Assignments of
any or all rights, duties,~or obligations of the CONTRACTOR under this Agreement
will be permitted only with the express consent of the CITY. The CONTRACTOR
shall not subcontract any portion of the ~riork to be performed under this Agreement
without the written authorization of thE~ CITY. If the CITY consents to such
subcontract, the CONTRACTOR shall be fully responsible to the CITY for all acts or
omissions of the subcontractor. Notf•~ing 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 car to see to the payment of any monies due
to any such subcontractor other than as otherwise is required by law.
13.1. During the term of this Agreement or any extension thereof, CONTRACTOR
shall be the sole and exclusive provider to CITY of services as defined in
Section 2 and "Exhibit A" (Scope of Services) hereof.
14. COMPLIANCE WITH LAWS, CODES, ORDINANCES, AND REGULATIONS. The
CONTRACTOR shall use the standard ~~f care in its profession to comply with all
applicable federal, state, and local laws, codes, ordinances, and regulations.
14.1. Taxes. The CONTRACTOR agrees to pay all required taxes on amounts paid
to the CONTRACTOR under this P.greement, 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 Agreement. In the event that the CITY is audited by any Federal
or State agency regarding the independent contractor status of the
CONTRACTOR and the audit in any way fails to sustain the validity of a wholly
independent contractor relationship between the CITY and the CONTRACTOR,
then the CONTRACTOR agrees to reimburse the CITY for all costs, including
accounting and attorneys' fees, arising out of such audit and any appeals
relating thereto.
14.2. Workers' Compensation Law. l'he CONTRACTOR shall fully comply with
the workers' compensation law regarding the CONTRACTOR and the
CONTRACTOR's employees. The ~~ONTRACTOR further agrees to indemnify
and hold the CITY harmless from any failure of the CONTRACTOR to comply
with applicable workers' compensation laws. The CITY shall have the right to
offset against the amount of any corrlpensation due to the CONTRACTOR under
this Agreement any amount due to tt-le CITY from the CONTRACTOR as a result
of the CONTRACTOR's failure to promptly pay to the CITY any reimbursement
or indemnification arising under this ;section.
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CITY OF CUPERTINO
AUTOMATED TRAFFIC SIGNAL ENFORCEMENT
Final
April 10, 2000
14.3. Licenses. The CONTRACTOR represents and warrants to the CITY that it
has all licenses, permits, qualificatiors, insurance, and approvals of whatsoever
nature which are legally required of the CONTRACTOR to practice its
profession. The CONTRACTOR re~~resents 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 licenses, permits, insurance, and
approvals which are legally requirE~d of the CONTRACTOR to practice its
profession. The CONTRACTOR sh:~ll maintain a CITY of Cupertino business
license, if required under CITY ordinance.
15. CONFLICT OF INTEREST. The CONTRACTOR confirms that it has no financial,
contractual, or other interest or oblig~ltion that conflicts with or is harmful to
performance of its obligations under this Agreement. The 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 incompatible interest or obligation.
15.1. The CONTRACTOR, its agents and employees shall comply with all applicable
Federal, State, and local laws and rE~gulations governing conflict of interest. To
this end, the CONTRACTOR shall make available to its agents and employees
copies of all applicable Federal, State, and local laws and regulations governing
conflict of interest. CONTRACTOI~ shall furnish to the CITY, prior to the
execution of this Agreement, a written list of all current or proposed
subgrantees/subcontractors, vendor:, or personal service providers, including
subsidiaries of the CONTRACTOR, which shall receive ten thousand dollars
($10,000.00) or more from this AgreE~ment. 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, personnel service providers, or
subsidiaries of the CONTRACTOR within fifteen (15) days of any change.
16.NON-DISCRIMINATION AND EQUAL EMPLOYMENT OPPORTUNITY. The
CONTRACTOR represents and agrees that it does not and will not discriminate
against any employee or applicant for ei~nployment 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.
17. RECORDS AND AUDITS. The 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 bpi the CITY or any authorized representative,
and will be retained for three years after the expiration of this Agreement. All such
13
CITY OF CUPERTINO
AUTOMATED TRAFFIC SIGNAL ENFORCEMENT
Final
April 10, 2000
records shall be made available for inspection or audit by the CITY upon reasonable
during regular business hours.
17.1. 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 inspecti~~ns 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 Record: Act, proprietary and technical information
shall be deemed confidential as described in Section 2.2.
17.2. Monthly Management Reports. CONTRACTOR shall submit to the CITY
Monthly Management Program Reports described by "Exhibit A" (Scope of
Services).
17.3. CONTRACTOR shall ensure that its employees and board members furnish
such information, which in the judgment of CITY representatives, may be
relevant to a question of compliance with contractual conditions with CITY of
granting agency directives, or with the effectiveness, legality, and achievements
of the program.
17.4. Expenditures made by the CONTRACTOR in the operation of this Agreement
shall be in strict compliance and conformity with the Budget set forth in "Exhibit
B" (Budget Justification) to this Agreement, unless prior written approval for an
exception is obtained from the CONTRACTOR or her/his designee.
17.5. Monitoring and Evaluation. To ensure proper performance of this
Agreement and that the enforcement. program are conducted for the CITY. The
CITY will monitor, evaluate, and pro~~ide guidance to the CONTRACTOR in the
performance of this Agreement. Alathorized 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 performance of this Agreement. Activities
include attendance at Staff, Boar~1 of Directors, Advisory Committee and
Advisory Board meetings, and observation of ongoing program functions. The
CONTRACTOR will insure the cooK-eration of its staff and board members in
such efforts. The CITY PROJECT ~AANAGER or her/his designee will conduct
periodic program progress reviews.
17.6. Ownership Of Documents. It is understood and agreed that the CITY shall
own all documents and other work product of the CONTRACTOR, except the
CONTRACTOR's notes and workpa,pers, which pertain to the work performed
under this Agreement. The CITY shall have the sole right to use such materials
14
CITY OF CUPERTINO
AUTOMATED TRAFFIC SIGNAL ENFORCEMENT
Final
April 10, 2000
in its discretion and without further compensation to the CONTRACTOR, but any
re-use of such documents by the CI1Y on any other project without prior written
consent of the CONTRACTOR shall be at the sole risk of the CITY. The
CONTRACTOR shall at its sole expense provide all such documents to the CITY
upon request.
18. RELIGIOUS AND POLITICAL ACTIVII"IES. CONTRACTOR agrees that funds
under this Agreement will be used exclu:~ively for performance of the work required
under this Agreement, and that no funds made available under this Agreement shall
be used to promote religious or political activities. Further, CONTRACTOR agrees
that it will not perform, nor permit to be performed, any religious or political activities
in connection with the performance of thi:~ Agreement.
19.INDEPENDENT CONTRACTOR. The CONTRACTOR is and shall at all times
remain as to the CITY a wholly indepenclent CONTRACTOR. Neither the CITY nor
any of its agents shall have control over the conduct of the CONTRACTOR or any of
the CONTRACTOR's employees or a~~ents, except as herein set forth. The
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.
20. NOTICE. All Notices permitted or required under this Agreement shall be in writing,
and shall be deemed made when delivered to the applicable party's representative
as provided in this Agreement. Additi~~nally, such notices may be given to the
respective parties at the following adds=sses, or at such other addresses as the
parties may provide in writing for this purpose.
Such notices shall be deemed made vrhen personally delivered or when mailed
forty-eight (48) hours after deposit in the U.S. mail, first-class postage prepaid, and
addressed to the party at its applicable address.
Department of Public Works
CITY OF CUPERTINO
City Hall
10300 Torre Avenue
Cupertino,CA 95014-3255
Attention: Traffic Engineer
CONTRACTOR:
Lockheed Martin IMS
11682 EI Camino Real, Suite 320
San Diego, CA 92130
Attention: Regional Vice President
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CITY OF CUPERTINO
AUTOMATED TRAFFIC SIGNAL ENFORCEMENT
Final
April 10, 2000
21. GOVERNING LAW. This Agreement shall be governed by the laws of the State of
California.
22. ENTIRE AGREEMENT: MODIFICATIO~I. This Agreement supersedes 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 representations, inducements, promises, or agreements, oral
or otherwise, have been made by any party, or anyone acting on behalf of any party,
which 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.
23.ATTORNEYS' FEES. In any action brought to declare the rights granted herein or
to enforce any of the terms of this Agreerent, the prevailing party shall be entitled to
an award of reasonable attorneys' fees ire 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 noncompliant
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 binding upon
the parties when at least one copy herE:of 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.
26.AUTHORITY TO ENTER AGREEMENT. The CONTRACTOR has all requisite
power and authority to conduct its businE~ss and to execute, deliver, and perform this
Agreement. Each party warrants th~~t the individuals who have signed this
Agreement have the legal power, right, and authority to make this Agreement and to
bind each respective party.
16
RESOLUTION NO. 00-121
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO
AUTHORIZING EXECUTION OF AGREEIV[ENT BETWEEN LOCKHEED-MARTIN IMS
AND THE CITY OF CUPERTINO F~ OR RED LIGHT RUNNING PHOTO
ENFORCEMENT S'Y'STEMS PROGRAM
WHEREAS, there has been presented to the City Council a proposed agreement between
Lockheed-Martin IMS 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 acid 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 Cupertino.
PASSED AND ADOPTED at a regular meeting of the City Council of the City of
Cupertino this 17`" day of April, 2000, by the fol.owing vote:
Vote Members of the C~ Council
AYES: Burnett, Chang, Statton
NOES: None
ABSENT: James, Lowenthal
ABSTAIN: None
ATTEST:
/s/Kimberly Smith
City Clerk
APPROVED:
/s/John Statton
Mayor, City of Cupertino
THIS iS TO CERTIFY THAT THE NIIT~1
INSTRUMENT IS A TRUE AND (~RRECT COPY OF
THE ORIGINAL ILF W THI6 OFFK~E.
ATTEST @ATE~ ~
CI CLERK OF Tlic UPERTMIO
i3Y ~c.~~