Case 2:14-cv-14429-XXXX Document 1 Entered on FLSD Docket 10/27/2014 Page 1 of 23
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF FLORIDA
FORT PIERCE DIVISION
CASE NO.
CHRISTOPHER L. PARKER AND
MARWA MOUSSA, individually and on
behalf of others similarly-situated,
CLASS ACTION
Plaintiffs,
vs.
AMERICAN TRAFFIC SOLUTIONS,
INC., ATS CONSOLIDATED, INC.,
AMERICAN TRAFFIC SOLUTIONS,
LLC, and AMERICAN TRAFFIC
SOLUTIONS CONSOLIDATED LLC,
Defendants.
CLASS ACTION COMPLAINT
AND DEMAND FOR JURY TRIAL
Plaintiffs CHRISTOPHER L. PARKER and MARWA MOUSSA, individually and on
behalf of all others similarly situated, by their undersigned attorneys, hereby file suit against
Defendants, AMERICAN TRAFFIC SOLUTIONS, INC., ATS CONSOLIDATED, INC.,
AMERICAN TRAFFIC SOLUTIONS LLC, and AMERICAN TRAFFIC SOLUTIONS
CONSOLIDATED LLC and allege:
Cohen Milstein Sellers & Toll, PLLC
2925 PGA Boulevard, Suite 200, Palm Beach Gardens, FL 33410
Telephone: (561) 515-1400 Facsimile (561) 515-1401
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Parker, et al. v. American Traffic Solutions, Inc., et al
Complaint
Page 2
I.
INTRODUCTION
1. Plaintiffs Christopher L. Parker and Marwa Moussa bring this Class Action Complaint
against American Traffic Solutions, Inc., ATS Consolidated, Inc., American Traffic Solutions
LLC, and American Traffic Solutions Consolidated LLC (collectively, “Defendants” or “ATS”)
challenging the unreasonable and unlawful review and issuance of Notices of Violation
(“NOVs”) and Uniform Traffic Citations (“UTCs”) by Defendants under the color of law with
respect to Plaintiffs and other similarly-situated drivers who received NOVs and UTCs based on
information obtained from red light cameras installed and operated by Defendants.
2. ATS, a private and for-profit vendor, installs and operates red light cameras, among
other traffic monitoring tools. On information and belief, in or about 2008, ATS began to
contract with various Florida municipalities and counties to provide, install, and monitor red
light camera equipment. Approximately 70 Florida municipalities and counties have contracted
with ATS to provide such services.
3. Only ATS reviews all images taken by a red light camera; Traffic Infraction
Enforcement Officers (“TIEOs”) within the municipalities or counties review the images ATS
determines, in its sole discretion, should be forwarded to a TIEO. If the TIEO hits “Accept,”
ATS sends a NOV via certified mail to the registered owner of the vehicle in the image or video.
If a driver who receives an NOV fails to pay the fine by the due date, ATS automatically issues a
UTC without any further review or involvement by a TIEO.
4. These practices are in direct contravention of Florida Statute Section 316.0083(1)(a),
which strictly requires the TIEO to review the red light camera images and only TIEO to issue
the NOVs and UTCs.
Cohen Milstein Sellers & Toll, PLLC
2925 PGA Boulevard, Suite 200, Palm Beach Gardens, FL 33410
Telephone: (561) 515-1400 Facsimile (561) 515-1401
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Parker, et al. v. American Traffic Solutions, Inc., et al
Complaint
Page 3
5. That is not to say that a municipality or county can never contract with an independent
contractor to run a red light program, as long as the municipality or county itself exercises its
statutory duty to review and supervise the NOVs and UTCs issued and issues the NOVs and
UTCs itself.
6. ATS, acting as a contractor to and agent for various Florida municipalities and
counties, under color of state law, violated Plaintiffs’ right to due process of law under the U.S.
Constitution.
7. ATS’s actions under the color of law are improper and illegal. The fact that these
practices contravene the Florida Statute was confirmed in City of Hollywood v. Arem, No. 4D12–
1312, 2014 WL 5149159, at *4 (Fla. Dist. Ct. App. Oct. 15, 2014).
8. Plaintiffs bring this class action on behalf of themselves and all other similarly-situated
individuals (or their guardians or representatives) and entities who received NOVs and/or UTCs
pursuant to Defendant ATS’s improper and illegal conduct and who either paid the statutory
fines or still owe said fines.
II.
PARTIES, JURISDICTION, AND VENUE
9. This is a class action for damages that exceed $5,000,000, exclusive of interest and
costs.
10. Plaintiff Christopher L. Parker is a citizen and resident of Florida, over the age of
eighteen, and otherwise sui juris.
11. Plaintiff Marwa Moussa is a citizen and resident of Florida, over the age of eighteen,
and otherwise sui juris.
12. Defendant American Traffic Solutions, Inc. is a Kansas corporation with its primary
place of business located at 7681 East Gray Road, Scottsdale, Arizona. It is one of the two
Cohen Milstein Sellers & Toll, PLLC
2925 PGA Boulevard, Suite 200, Palm Beach Gardens, FL 33410
Telephone: (561) 515-1400 Facsimile (561) 515-1401
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Parker, et al. v. American Traffic Solutions, Inc., et al
Complaint
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largest traffic camera vendors/operators in the United States and conducts significant business in
Florida, including the operation of thousands of red light cameras in Florida. ATS is engaged in
substantial, continuous, systematic, and non-isolated business activity within the state of Florida.
It is subject to personal jurisdiction in the state of Florida because it regularly conducts business
in the state of Florida and committed the unlawful acts alleged herein in the state of Florida. On
its website, ATS openly acknowledges its affiliation with the state of Florida and in fact uses the
affiliation as a marketing tool.
13. Defendant ATS Consolidated, Inc. is a Delaware corporation with its primary place of
business located at 7681 East Gray Road, Scottsdale, Arizona. American Traffic Solutions, Inc.
is a subsidiary of ATS Consolidated, Inc.
14. Defendant American Traffic Solutions LLC is a Delaware limited liability company
with its primary place of business located at 7681 East Gray Road, Scottsdale, Arizona.
15. Defendant American Traffic Solutions Consolidated LLC is a Delaware limited
liability company with its primary place of business located at 7681 East Gray Road, Scottsdale,
Arizona.
16. On information and belief, all the foregoing entities are jointly financially controlled
by one another and are the alter ego of each other. Therefore, each is jointly and severally liable
for all damages due the Plaintiffs and all Class members.
17. At all times relevant herein, ATS was acting as a contractor to and agent for various
Florida municipalities and counties, acting under color of state law by, among other things,
performing red light camera installation and maintenance among other public, governmental,
and/or municipal functions, including but not limited to issuing NOVs and UTCs to class
Cohen Milstein Sellers & Toll, PLLC
2925 PGA Boulevard, Suite 200, Palm Beach Gardens, FL 33410
Telephone: (561) 515-1400 Facsimile (561) 515-1401
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Parker, et al. v. American Traffic Solutions, Inc., et al
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members. Defendant ATS was therefore acting under color of state law for the purposes of 42
U.S.C. § 1983.
18. This Court has jurisdiction pursuant to 28 U.S.C. §1331 (federal question), 28 U.S.C.
§ 1332 (d) (diversity of citizenship), and 28 U.S.C. § 1343 (original jurisdiction for actions under
42 U.S.C. § 1983).
19. Venue is proper within this District because a substantial part or all of the events
giving rise to the claims occurred and continue to occur in this District.
III.
FACTUAL ALLEGATIONS
A. Florida Red Light Statutes and Use of Cameras
20. Red light cameras involve an integrated system of a camera, or multiple cameras, and
vehicle sensors working in conjunction with a traffic control signal. The system is designed to
capture images and video of vehicles disobeying certain traffic violations—specifically, “running
a red light.” The cameras are meant to record images and video of vehicles that appear to be
violating red light statutes so that citations can be mailed to the registered owner or lessee of the
recorded vehicle.
21. Red light cameras can be used to enforce violations of two Florida statutes: sections
316.074(1) and 316.075(1)(c)1. Section 316.074(1) requires, in relevant part, that drivers “obey
the instructions of any official traffic control device,” including red lights.
Section
316.075(1)(c)1 requires drivers to stop at a crosswalk, if there is one, or before entering an
intersection until the light turns green.
22. Although red light cameras were first used in Florida in or about 2008, in 2010 the
Florida Supreme Court held that the ordinances pursuant to which violations were issued prior to
July 1, 2010 were preempted by state law. The Florida legislature responded by passing the
Cohen Milstein Sellers & Toll, PLLC
2925 PGA Boulevard, Suite 200, Palm Beach Gardens, FL 33410
Telephone: (561) 515-1400 Facsimile (561) 515-1401
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Parker, et al. v. American Traffic Solutions, Inc., et al
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Mark Wandall Traffic Safety Act, which authorized the use of red light traffic infraction
detectors by local governments and the Florida Department of Highway Safety and Motor
Vehicles effective July 1, 2010. This Complaint addresses only violations issued after July 1,
2010.
23. The Mark Wandall Traffic Safety Act grants traffic infraction enforcement officers
(“TIEOs”) the power to enforce red light violations under sections 316.074(1) and
316.075(1)(c)1 of the Florida Statutes.
The Act further authorizes TIEOs to “review . . .
information from a traffic infraction detector” before “the traffic infraction enforcement officer”
issues a citation for violations. Fla. Stat. § 316.0083(1)(a) (2010).
B. Contracts with ATS
24. Red light cameras were installed by ATS in Florida beginning in or about 2008. ATS
was retained by various municipalities and counties to install and operate its systems. Among
the municipalities and counties serviced by ATS include but are not limited to:
•
Aventura;
•
Boynton Beach;
•
Clermont;
•
Cocoa Beach;
•
Cutler Bay;
•
Davie;
•
Florida City;
•
Ft. Lauderdale;
•
Groveland;
Cohen Milstein Sellers & Toll, PLLC
2925 PGA Boulevard, Suite 200, Palm Beach Gardens, FL 33410
Telephone: (561) 515-1400 Facsimile (561) 515-1401
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Parker, et al. v. American Traffic Solutions, Inc., et al
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•
Haines City;
•
Hialeah Gardens;
•
Hollywood;
•
Juno Beach;
•
Key Biscayne;
•
Lauderdale Lakes;
•
Margate;
•
Miami;
•
Miami Gardens;
•
New Port Richey;
•
North Miami Beach;
•
Ocoee;
•
Opa-locka;
•
Orange Park;
•
Osceloa County;
•
Palatka;
•
Palm Coast;
•
Sarasota;
•
Sweetwater;
•
Tampa;
•
West Palm Beach;
•
Apopka;
Cohen Milstein Sellers & Toll, PLLC
2925 PGA Boulevard, Suite 200, Palm Beach Gardens, FL 33410
Telephone: (561) 515-1400 Facsimile (561) 515-1401
Case 2:14-cv-14429-XXXX Document 1 Entered on FLSD Docket 10/27/2014 Page 8 of 23
Parker, et al. v. American Traffic Solutions, Inc., et al
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•
Bal Harbour;
•
Boca Raton;
•
Campbellton;
•
Clewiston;
•
Coral Gables;
•
Doral;
•
El Portal;
•
Green Cove Springs;
•
Gulfport;
•
Hallandale Beach;
•
Hillsborough County;
•
Homestead;
•
Kenneth City;
•
Lakeland;
•
Medley;
•
Miami Springs;
•
Milton;
•
North Bay Village;
•
North Miami;
•
Oldsmar;
•
Orange County;
•
Orlando;
Cohen Milstein Sellers & Toll, PLLC
2925 PGA Boulevard, Suite 200, Palm Beach Gardens, FL 33410
Telephone: (561) 515-1400 Facsimile (561) 515-1401
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Parker, et al. v. American Traffic Solutions, Inc., et al
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•
Palm Beach County;
•
Port Richey;
•
South Pasadena;
•
St. Petersburg;
•
Sunrise;
•
Surfside;
•
Tamarac;
•
Temple Terrace;
•
West Miami; and
•
West Park.
25. Pursuant to the contracts entered into with the municipalities and counties, ATS’s
responsibilities have included issuing NOVs and UTCs to alleged violators, calibrating the
timing of traffic control devices, setting protocols for the language printed on citations mailed to
alleged violators, and determining the intervals at which NOVs and UTCs are mailed to alleged
violators.
C. ATS’s Improperly Delegated Authority and Actions Under the Color of Law
26. ATS’s contracts with municipalities and counties include the improper delegation of
authority to ATS for certain decision-making powers and issuing powers that Florida law
mandates be conducted by TIEOs.
27. ATS reviews recorded images and video from red light cameras to “mak[e] an initial
determination of whether Recorded Images should be forwarded to the Traffic Infraction
Enforcement Officer to determine whether a Violation has occurred and shall not forward for
Cohen Milstein Sellers & Toll, PLLC
2925 PGA Boulevard, Suite 200, Palm Beach Gardens, FL 33410
Telephone: (561) 515-1400 Facsimile (561) 515-1401
Case 2:14-cv-14429-XXXX Document 1 Entered on FLSD Docket 10/27/2014 Page 10 of 23
Parker, et al. v. American Traffic Solutions, Inc., et al
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Page 10
processing those Recorded Images that clearly fail to establish the occurrence of a Violation.”
(See Exhibit A, p. 71). Only ATS reviews all images taken by a red light camera; TIEOs review
the images ATS determines, in its sole discretion, should be forwarded to a TIEO.
28. Images that ATS determines should be forwarded to a TIEO are sent to the
contracting municipality or county via an ATS computer program that permits review of
approved images and video.
The TIEO may then authorize enforcement of the potential
violation by clicking “Accept” in the computer program. If the TIEO hits “Accept,” ATS
populates a citation, which includes a computer-generated copy of the TIEO’s signature and
badge number. ATS sends the citation via certified mail to the registered owner of the vehicle in
the image or video. A duplicate of the citation is sent to the county court clerk.
29. The NOV contains a statement that the violation was issued by the contracting
municipality or county.
30. The NOV declares that the contracting municipality or county reviewed the recorded
images and video of the alleged violation at its processing center for “Inspection Safety
Program” at PO Box 22091, Tempe, AZ 85285-2091. The NOV has an imprinted signature of
the “officer” issuing this violation, identifying the name and badge identification of the TIEO.
31. The statutory fine for an NOV is $158.
32. If a driver who receives an NOV fails to pay the fine by the due date, ATS
automatically issues a UTC without any further review or involvement by a TIEO.
33. The statutory fine for a UTC is $277.
34. If a driver fails to pay the UTC by the due date, the violation goes to collections and
doubles in price.
Cohen Milstein Sellers & Toll, PLLC
2925 PGA Boulevard, Suite 200, Palm Beach Gardens, FL 33410
Telephone: (561) 515-1400 Facsimile (561) 515-1401
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Parker, et al. v. American Traffic Solutions, Inc., et al
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35. Both practices are in direct contravention of Florida Statute section 316.0083(1)(a),
which requires in relevant part:
. . . [A] traffic infraction detector [may be reviewed] by an
authorized employee or agent of the department, a county or a
municipality before issuance of the traffic citation by the traffic
infraction enforcement officer.
(Emphasis added). In practice, the TIEO reviews only curated images from red light cameras,
and both NOVs and UTCs are issued by ATS.
36. The Florida Supreme Court has held that traffic statutes are to be strictly construed
and cannot be varied by a local government by ordinance or contract without express
authorization from the legislature. Masone v. City of Aventura, 39 Fla. L. Weekly S406 (Fla.
2014).
37. Although section 316.0083(1)(a) of the Florida Statutes authorizes the use of red light
cameras to enforce violations, its language specifically requires that a TIEO review the alleged
violation and issue any NOV or UTC arising out of the alleged violation. The statute makes
clear that only a TIEO is to review images or video to determine whether a violation has
occurred—there is no carve-out for a vendor to perform a preliminary analysis. ATS’s actions
under the color of law, therefore, are improper and illegal.
38. In its decision in City of Hollywood v. Arem, the 4th District Court of Appeals
confirmed that ATS’s actions contravened section 316.0083(1)(a). In its holding, the Court held
that citations issued by the City of Hollywood using ATS do not comply with the statute and,
therefore that there was no authority to issue the citation at issue. As a result, the Court affirmed
the dismissal of the citation as the proper remedy. 2014 WL 5149159, at *6.
Cohen Milstein Sellers & Toll, PLLC
2925 PGA Boulevard, Suite 200, Palm Beach Gardens, FL 33410
Telephone: (561) 515-1400 Facsimile (561) 515-1401
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D. Plaintiff Christopher L. Parker’s Experience with ATS
39. On or about December 17, 2012, Plaintiff Christopher L. Parker was photographed
for an alleged red light camera violation by an ATS camera in or near Davie, Florida. As the
registered owner of the vehicle photographed, he received a NOV from ATS in the amount of
$158.
40. The NOV bore the name and badge number of an officer, and included an affirmative
representation that “[t]he traffic enforcement officer named above has reviewed the recorded
images evidencing the red light signal infraction, has identified the tag number of the violating
vehicle and has found reasonable and probable grounds that a violation has been committed.”
E. Plaintiff Marwa Moussa’s Experience with ATS
41. On or about April 28, 2012, Plaintiff Marwa Moussa was driving her mother’s car
and was photographed by an ATS camera for allegedly “fail[ing] to comply with a steady red
signal” at SB US-1/s Dixie Highway at Caribbean Boulevard/SW 200th in Cutler Bay, Florida.
Her mother, as the registered owner of the vehicle photographed, received a NOV from ATS in
the amount of $158.
42. The NOV bore the name and badge number of an officer, and included an affirmative
representation that “[t]he traffic enforcement officer named above has reviewed the recorded
images evidencing the red light signal infraction, has identified the tag number of the violating
vehicle and has found reasonable and probable grounds that a violation has been committed.”
43. Ms. Moussa paid the citation in the amount of $158 on or before the due date of June
14, 2012.
Cohen Milstein Sellers & Toll, PLLC
2925 PGA Boulevard, Suite 200, Palm Beach Gardens, FL 33410
Telephone: (561) 515-1400 Facsimile (561) 515-1401
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Parker, et al. v. American Traffic Solutions, Inc., et al
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F. Plaintiffs and All Class Members Have Been Issued Tickets That Are
Unenforceable
44. The NOVs sent out by ATS bear an attestation and affirmance, under color of law,
that a TIEO has reviewed the recorded images and identified the license plate number of the
allegedly violating vehicle and therefore has found reasonable and probable grounds that an
offense has been committed, resulting in the violation charged.
UTCs similarly bear an
attestations and affirmances, giving them the imprimatur of being from the municipality or
county from which it purported to be issued.
In fact, both NOVs and UTCs are initially
reviewed and ultimately issued by ATS.
45. Plaintiffs received NOVs and UTCs and did not know that the tickets were issued in a
manner inconsistent with statutory requirements. Because of the foregoing unlawful conduct, the
tickets were not enforceable and Plaintiffs were wrongfully asked or actually induced to pay
fines.
IV. CLASS ACTION ALLEGATIONS
46. Plaintiffs re-allege and incorporate by reference herein all of the allegations contained
in paragraphs 1 through 40.
47. Pursuant to Federal Rule of Procedure 23(b)(2) and (3), Plaintiffs bring this action on
behalf of themselves and a class of all persons similarly situated and as defined as follows:
All individuals (or their guardians or representatives) and entities
who received a traffic NOV or UTC in Florida as a result of an
image or video taken from a red light camera administered by ATS
from July 1, 2010 through the present and who either paid the
statutory fine or still owe the fine.
Excluded from the Class are Defendants, any officers or directors
thereof, together with the legal representatives, heirs, successors,
or assigns of any Defendant, and any judicial officer assigned to
this matter and his or her immediate family.
Cohen Milstein Sellers & Toll, PLLC
2925 PGA Boulevard, Suite 200, Palm Beach Gardens, FL 33410
Telephone: (561) 515-1400 Facsimile (561) 515-1401
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Parker, et al. v. American Traffic Solutions, Inc., et al
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48. This action has been brought and may properly be maintained as a class action as it
satisfies the numerosity, commonality, typicality, adequacy, and superiority requirements.
Plaintiffs seek to represent an ascertainable Class with a well-defined community of interest in
the questions of law and fact involved in this matter.
49. Although the precise number of Class members is unknown and can only be
determined through appropriate discovery, Plaintiffs believe and, on that basis, allege that the
proposed class is so numerous that joinder of all members would be impracticable. Based on the
number of NOVs and UTCs issued in Florida since July 1, 2010 and the number of
municipalities and counties that contracted with ATS to administer their red light camera
programs, it is apparent that hundreds of thousands of drivers have been issued NOVs and UTCs
in violation of state law as referenced herein such that the number of individual plaintiffs would
make joinder impossible.
50. Questions of law and fact common to the Plaintiff Class exist that predominate over
questions affecting only individual members, including inter alia:
a) Whether the red light camera program uses a ticket processing/issuing system that
gave ATS discretion to issue NOVs and UTCs under the color of law;
b) Whether the red light camera program violates constitutional protections under the
U.S. Constitution (including but not limited to the due process clause);
c) The extent to which revenue is shared, and on what basis, between ATS and the
contracting municipality or county;
d) The extent to which a TIEO participates in the process of identifying a violation,
sending out a notice, and collecting any fines;
Cohen Milstein Sellers & Toll, PLLC
2925 PGA Boulevard, Suite 200, Palm Beach Gardens, FL 33410
Telephone: (561) 515-1400 Facsimile (561) 515-1401
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e) The extent to which a TIEO participates in related enforcement and/or collection
activities with respect to unpaid violations;
f) The extent to which any municipalities or counties have ceded their authority and
police power to ATS;
g) Whether the class is entitled to an order enjoining ATS from continuing to operate the
red light camera program until the program complies with Florida state and federal laws, rules,
and regulations with respect to the issuing and processing of alleged violations, as well as U.S.
constitutional protections;
h) Whether the class is entitled to an order establishing a court-supervised program to
carry out an audit and refund class members who suffered injury as a result of the unlawful red
light camera program; and
i) Whether Defendants’ conduct injured the putative Class members and, if so, the extent
of the damages.
51. Plaintiffs are members of the putative Class. The claims asserted by the Plaintiffs in
this action are typical of the claims of the members of the putative Class, as the claims arise from
the same course of conduct by Defendants and the relief sought is common. Defendants issued
Plaintiffs NOVs and UTCs pursuant to an improper and illegal delegation of power in direct
contravention of Florida state and federal law and U.S. constitutional protections. Plaintiffs were
asked to pay, and in many cases did pay, NOVs and UTCs that were unenforceable as a matter of
law and were damaged by such payments. Plaintiffs who have not yet paid a NOV or UTC
pursuant to this scheme should receive express notice relieving them of any adverse
consequences for nonpayment.
Cohen Milstein Sellers & Toll, PLLC
2925 PGA Boulevard, Suite 200, Palm Beach Gardens, FL 33410
Telephone: (561) 515-1400 Facsimile (561) 515-1401
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52. Plaintiffs will fairly and adequately represent and protect the interests of the members
of the putative Class, as their interests are coincident with, not antagonistic to, the other Class
members’.
Plaintiffs have retained counsel competent and experienced in both consumer
protection and class action litigation.
53. Certification of the Class is appropriate pursuant to Federal Rule of Civil Procedure
23(b)(2) and (3) because Defendants have acted with respect to the Class in a manner generally
applicable to each Class member, there is a well-defined community of interest in the questions
of law and fact involved in the action, which affect all class members, and questions of law or
fact common to the respective members of the Class predominate over questions of law or fact
affecting only individual members. This predominance makes class litigation superior to any
other method available for the fair and efficient adjudication of these claims including
consistency of adjudications. Absent a class action, it would be highly unlikely that the members
of the Class would be able to protect their own interests because the cost of litigation through
individual lawsuits might exceed the expected recovery.
54. A class action is an appropriate method for the adjudication of the controversy in that
it will permit a large number of claims to be resolved in a single forum simultaneously,
efficiently, and without the unnecessary hardship that would result from the prosecution of
numerous individual actions and the duplication of discovery, effort, expense, and the burden on
the courts that individual actions would create.
55. The benefits of proceeding as a class action, including providing a method for
obtaining redress for claims that would not be practical to pursue individually, outweigh any
difficulties that might be argued with regard to the management of the class action.
Cohen Milstein Sellers & Toll, PLLC
2925 PGA Boulevard, Suite 200, Palm Beach Gardens, FL 33410
Telephone: (561) 515-1400 Facsimile (561) 515-1401
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Parker, et al. v. American Traffic Solutions, Inc., et al
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COUNT 1 – Violation of 42 U.S.C. § 1983
56. Plaintiffs re-allege and reaffirm herein all of the allegations contained in paragraphs 1
through 55.
57. Plaintiffs are drivers who are citizens of and reside in Florida.
58. Plaintiffs have a property interest in not being requested or compelled to pay
improper and illegal fines.
59. At all relevant times, ATS was a contractor retained by various municipalities and
counties in Florida to perform public, governmental functions, including issuing NOVs and
UTCs for alleged traffic violations to such an extent as to support a determination that ATS was
acting under color of state law when it performed the actions described herein.
60. ATS undertook the challenged conduct pursuant to express contractual provisions
regarding the issuance of tickets.
61. ATS, while acting under the color of state law, denied each Plaintiff (and the Class)
their property interests by issuing NOVs and UTCs in violation of the law and, as to some class
members, collecting fines related to same.
62. ATS’s actions violated clearly established constitutional rights that have existed in
the United States since the drafting of the Constitution—specifically, the right to due process of
law under the Fourteenth Amendment. Accordingly, the constitutional property rights were
clearly established at the time ATS deprived the Plaintiffs and Class of said rights. And ATS
subjected, or caused others to subject, the Plaintiffs and the Class to the deprivation of
substantive and procedural constitutional rights described more fully herein.
63. Given the conduct described above, Plaintiffs’ and that Class’s rights to substantive
due process (here Plaintiffs’ and the Class’s Fourteenth Amendment rights not to have their
Cohen Milstein Sellers & Toll, PLLC
2925 PGA Boulevard, Suite 200, Palm Beach Gardens, FL 33410
Telephone: (561) 515-1400 Facsimile (561) 515-1401
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property—money—taken or be subject to attempts to take their property notwithstanding that the
grounds for such taking or attempts to take their property is violative of the law) were violated
by ATS, which was acting under the color of state law.
64. Given the conduct described above, Plaintiffs’ and the Class’s rights to procedural
due process (without limitation, a means by which Plaintiffs and the Class could receive
sufficient notice, the right to an impartial arbiter, the right to give testimony and admit relevant
evidence at hearings regarding the legality of the delegation of authority to ATS and ATS’s
authority to issue NOVs and UTCs) were violated by ATS, which was acting under the color of
law.
65. As a direct and proximate result of ATS’s violation of 42 U.S.C. § 1983, Plaintiffs
have suffered injuries and damages.
COUNT 2 – Violation of the Florida Deceptive and Unfair Trade Practices Act
66. Plaintiffs re-allege and reaffirm herein all of the allegations contained in paragraphs 1
through 55.
67. In Florida, unconscionable acts or practices, and unfair or deceptive acts or practices
in the conduct of any trade or commerce are unlawful.
68. Plaintiffs, individually, and the members of the putative Class are “consumers” within
the meaning of Florida Statute Section 501.203.
69.
Defendants’ practice of issuing, attempting to collect, and in many cases, actually
collecting fines for red light violations as a result of an improper delegation of authority
constitutes unfair, deceptive, or unconscionable trade practices in violation of Florida’s
Deceptive and Unfair Trade Practices Act (“FDUPTA”) as provided by §§ 501.201-.213, Florida
Statutes.
Cohen Milstein Sellers & Toll, PLLC
2925 PGA Boulevard, Suite 200, Palm Beach Gardens, FL 33410
Telephone: (561) 515-1400 Facsimile (561) 515-1401
Case 2:14-cv-14429-XXXX Document 1 Entered on FLSD Docket 10/27/2014 Page 19 of 23
Parker, et al. v. American Traffic Solutions, Inc., et al
Complaint
Page 19
70. Failure to disclose material information may cause deception within the meaning of
FDUPTA. Such deception has occurred here as Defendants have failed to disclose important
material information concerning the source of the tickets issued, including listing TEIOs’ names
and badge numbers, as well as the name of the municipality or county in which the alleged
violation occurred, on NOVs and UTCs. As a result, the NOVs and UTCs issued by ATS bear
the imprimatur of being from the municipality or county in which the alleged violation took
place when in fact they are issued by ATS.
71. Defendants engage in the unfair and deceptive trade practices described herein in
violation of Section 316.0083 of the Florida Statutes, which mandates that a TIEO review and
issue a violation detected by a red light camera.
72. Defendants practices regarding the issuance and collection of NOVs and UTCs are
unconscionable and constitute unfair and deceptive methods of competition in violation of one or
more of the following:
a) The standards of unfairness and deception set forth and interpreted by the Federal
Trade Commission or by the federal courts, as set forth in FDUPTA, §§ 45(a)(1) and
incorporated into FDUPTA under § 501.204(2), or the law against unfair and deceptive trade
practices as set forth in FDUPTA § 501.203(3)(c); and/or
b) The law against unfair and deceptive trade practices set forth in 15 U.S.C. § 45(a)(1)
and incorporated into FDUPTA under § 501.204(2), or the law against unfair and deceptive trade
practices as set forth in FDUPTA § 501.203(3)(c).
73. Defendants’ conduct amounts to “unfair” business practices insofar as Defendants
have no authorization under the statute to send NOVs or UTCs.
Cohen Milstein Sellers & Toll, PLLC
2925 PGA Boulevard, Suite 200, Palm Beach Gardens, FL 33410
Telephone: (561) 515-1400 Facsimile (561) 515-1401
Case 2:14-cv-14429-XXXX Document 1 Entered on FLSD Docket 10/27/2014 Page 20 of 23
Parker, et al. v. American Traffic Solutions, Inc., et al
Complaint
Page 20
74. Defendants’ conduct also constitutes “deceptive” business practices within the
meaning of FDUPTA in that Defendants fail to disclose that there is no authorization to review
and issue NOVs and UTCs. Further, Defendants affirmatively state that a TIEO has reviewed
and issued NOVs when in fact only curated images are reviewed by a TIEO and UTCs are
automatically issued by ATS if the due date for an NOV passes.
75. As a result of these unfair and deceptive trade practices, Plaintiffs individually, and
the members of the putative Class, have suffered actual damages in that they have been asked to
pay or actually paid fines that were issued improperly and illegally and therefore unenforceable.
76. As a result of the aforementioned conduct, Plaintiffs individually, and the members of
the putative Class, are entitled to permanent injunctive relief to prevent Defendants from
continuing to engage in these unfair and deceptive trade practices and to stop all efforts to collect
unpaid fines.
77. Pursuant to Florida Statute § 501.2105, Plaintiffs individually, and as members of the
putative Class, are entitled to recover costs and reasonable attorneys’ fees in this action.
COUNT 3 – Unjust Enrichment/Disgorgement
78. Plaintiffs re-allege and reaffirm herein all of the allegations contained in paragraphs 1
through 55.
79. By the acts alleged herein, ATS received a benefit from Plaintiffs and the Class in the
form of fines imposed on and collected from class members in the manner alleged herein.
80. The retention of that benefit by ATS would be unjust because the amounts were
collected in a manner that violated the express requirements of a Florida state statute—Section
316.0083—as outlined herein.
Cohen Milstein Sellers & Toll, PLLC
2925 PGA Boulevard, Suite 200, Palm Beach Gardens, FL 33410
Telephone: (561) 515-1400 Facsimile (561) 515-1401
Case 2:14-cv-14429-XXXX Document 1 Entered on FLSD Docket 10/27/2014 Page 21 of 23
Parker, et al. v. American Traffic Solutions, Inc., et al
Complaint
Page 21
81. By the facts alleged herein, equity demands that ATS disgorge themselves of this
benefit and that the benefit be returned to Plaintiffs and the Class.
COUNT 4 – Conversion
82. Plaintiffs re-allege and reaffirm herein all of the allegations contained in paragraphs 1
through 55.
83. By their actions described above, ATS has converted the Plaintiffs’ property (money)
in the unjustified, willful interference with property of the Plaintiffs (i.e., money) which deprives
those entitled to the property in possession.
84. ATS wrongfully asserted dominion over Plaintiff’s property.
85. As a direct and proximate result of ATS’s activities, Plaintiffs have each been injured.
ATS has received monies from the illegally obtained fines charged to Plaintiffs, and Plaintiffs
have suffered losses in the amounts of the illegally obtained fines.
86. ATS should be required to disgorge their improperly converted profits by the Court’s
powers in equity.
COUNT 5 – Declaratory Judgment
87. Plaintiffs re-allege and reaffirm herein all of the allegations contained in paragraphs 1
through 55.
88. Based on the conduct and facts alleged herein, and pursuant to 28 U.S.C. § 2202,
Plaintiffs seek a class-wide order for declaratory relief, including a declaratory judgment that
ATS failed to comply with the statutory requirements of Fla. Stat. section 316.0083 for lawfully
issuing NOVs and UTCs and collecting fines for same from July 1, 2010 to the present, as well
as a declaratory judgment that, owing to these statutory violations, ATS was not lawfully entitled
Cohen Milstein Sellers & Toll, PLLC
2925 PGA Boulevard, Suite 200, Palm Beach Gardens, FL 33410
Telephone: (561) 515-1400 Facsimile (561) 515-1401
Case 2:14-cv-14429-XXXX Document 1 Entered on FLSD Docket 10/27/2014 Page 22 of 23
Parker, et al. v. American Traffic Solutions, Inc., et al
Complaint
Page 22
to issue NOVs or UTCs in Florida during that period of non-compliance, nor to collect fines
related to same.
WHEREFORE, Plaintiffs Christopher L. Parker and Marwa Moussa, individually and
on behalf of all others similarly situated, demand:
a) Certification of the proposed Class;
b) Appointment of the Named Plaintiffs as representatives of the Class;
c) Appointment of the undersigned counsel as counsel for the Class;
d) A declaration that Defendants’ actions, described fully above, violate 42 U.S.C. § 1983
and FDUPTA, and constitute conversion and unjust enrichment requiring disgorgement;
e) An order enjoining ATS and/or related entities, as provided by law, from engaging in
the unlawful conduct set forth herein;
f) An award to Plaintiffs’ Class of any monies paid pursuant to the unlawful conduct set
forth herein, pre- and post-judgment interest, statutory damages, compensatory damages,
exemplary damages, attorneys’ fees, costs, and litigation expenses, and punitive damages, as
allowed by law, including § 1983;
g) An order requiring ATS to relieve any class members of the obligation to pay any
outstanding fines demanded based on the unlawful conduct set forth herein;
h) Leave to amend this Complaint to conform to the evidence presented at trial;
i) Orders granting such other and further relief as the Court deems necessary, just, and
proper; and
j) For such other and further relief as this Court deems just and equitable.
Cohen Milstein Sellers & Toll, PLLC
2925 PGA Boulevard, Suite 200, Palm Beach Gardens, FL 33410
Telephone: (561) 515-1400 Facsimile (561) 515-1401
Case 2:14-cv-14429-XXXX Document 1 Entered on FLSD Docket 10/27/2014 Page 23 of 23
Parker, et al. v. American Traffic Solutions, Inc., et al
Complaint
Page 23
DEMAND FOR TRIAL BY JURY
Plaintiffs hereby demand a trial by jury on all matters triable as of right by a jury.
Click here to enter a date.
Respectfully submitted,
/s/ Theodore J. Leopold
Theodore J. Leopold (FL Bar No. 705608)
Leslie M. Kroeger (FL Bar No. 989762)
Diana L. Martin (FL Bar No. 624489)
COHEN MILSTEIN SELLERS & TOLL
PLLC
2925 PGA Boulevard
Suite 200
Palm Beach Gardens, FL 33410
Telephone: (561) 515-1400
Fascimile: (561) 515-1401
Andrew N. Freidman, pro hac pending
Matthew S. Axelrod, pro hac pending
Sally Handmaker, pro hac pending
COHEN MILSTEIN SELLERS & TOLL
PLLC
1100 New York Ave. NW
East Tower, 5th Floor
Washington, DC 20005
Telephone: (202) 408-4600
Fascimile: (202) 408-4699
Andrew T. Trailor (FL Bar No. 966710)
ANDREW T. TRAILOR, P.A.
8603 S, Dixie Highway #303
Miami, FL 33143-7829
Telephone: (305) 668-6090
Fascimile: (305) 668-6225
Attorneys for Plaintiffs
Cohen Milstein Sellers & Toll, PLLC
2925 PGA Boulevard, Suite 200, Palm Beach Gardens, FL 33410
Telephone: (561) 515-1400 Facsimile (561) 515-1401
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EXHIBIT A
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American
I
January
7 2009
VIA FEDERAL EXPRESS
Mr Robert Frank
City Manager
City of Ocoee
The
Florida
150 North Lakeshore Drive
Ocoee Florida 34761
RE
Two Phase Agteement Pertaining to Red Light Running Camera Enforcement
System between the City of Ocoee Florida and America TraffIC Solutions Inc
dated December 2 2009
Dear Mr Frank
Enclosed for your records is the original
above referenced Two Phase Agreement
executed
fully
signed by Adam Tuton Chief Operating Officer on behalf of ATS
Please let
Very truly
me
know if you have any questions
or
if I may be of further assistance
yours
American Traffic Solutions Inc
t It
1
J
J
J
J
III
If
11
I
Linda Welsch
Executive
Legal
Assistant to
Adam Tuton Executive Vice President COO
Enclosure
nw
1
www
Scottsdale
atsolcom
Arizona 85260
www
redliahtcamera
TEl
com
443
480
www
7000
FAX
olateoass
III
lq
U
JAN I 2 lOOl
7681 E Gray Road
1
480 607 0901
com
Case 2:14-cv-14429-XXXX Document 1-1 Entered on FLSD Docket 10/27/2014 Page 28 of
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CITY OF OCOEE SERVICES TWO PHASE AGREEMENT WITH
AMERICAN TRAFFIC SOLUTIONS LLC PERTAINING TO RED LIGHT
RUNNING CAMERA ENFORCEMENT SYSTEM
k day of
THIS AGREEMENT made and entered into this
and between the
f
a
2008
by
City of Ocoee Florida
City Hall
150 N Lakeshore Dr
Ocoee Florida 34761
a
municipal corporation of the
as the City
and
State of Florida
holding
tax
exempt
status
hereinafter
referred to
American Traffic Solutions LLC
7681 E Gray Road
Scottsdale Arizona 85260
corporation authorized
to do business in the State of Florida
hereinafter referred to
as
the Contractor
The
City
and the Contractor
are
collectively referred
to herein
as
the
parties
WITNESSETH
WHEREAS the City desires to retain the Contractor for the services identified in
the Palm Coast FL Request For Proposal RFP and description of services outlined in
Exhibit A which outlines two phases of the work the terms services and work
being
synonymous in this
WHEREAS
Agreement
on
occasion
and
the
City desires to employ the Contractor for the performance to
support
public safety activities programs and projects of the City upon the terms
and conditions hereinafter set forth and the Contractor is desirous of
performing and
such
services
said
terms
and
providing
conditions and
upon
the
WHEREAS the Contractor hereby warrants and represents to the
City that it is
competent and otherwise able to provide professional and high quality services to the
City and
WHEREAS all submissions submitted by the Contractor in the documents
submitted to the City by the Contractor in order to induce or
encourage the City to retain
the services of the Contractor are hereby incorporated to the extent not inconsistent
with the terms and conditions as set forth herein
NOW THEREFORE
Red
in consideration of the mutual covenants and
Light
Camera Two Phase Services
Page
No 1
Agreement
agreements
Case 2:14-cv-14429-XXXX Document 1-1 Entered on FLSD Docket 10/27/2014 Page 29 of
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hereinafter contained and
sufficiency of
hereto
as
which is
other good and valuable consideration the receipt and
hereby acknowledged it is agreed by and between the parties
follows
Table Of Contents
SECTION 1
DEFINITIONS
SECTION 2
CAPTIONS
EXTENT OF AGREEMENT INTEGRATION
NO GENERAL CITY OBLIGATION
SECTION 3
SECTION 4
SECTION 5
AMENDMENT
SECTION 6
CONTRACTOR UNDERSTANDING OF SERVICES REQUIRED
GENERAL PROVISIONS
SECTION 7
CODES AND DESIGN
SECTION 8
SUBCONTRACTORS
SECTION 9
ASSiGNABILITY
SECTION 10
SECTION 11
SECTION 12
SECTION 13
STANDARDS
COMMENCEMENT IMPLEMENTATION SCHEDULE OF AGREEMENT
LENGTH OF
AGREEMENT
DESCRIPTION OF SERVICES
SECTION 14
CONTRACTOR RESPONSIBILITIES
CITY RIGHTS AND RESPONSIBILITIES
SECTION 15
WAiVER
SECTION 16
SECTION 17
FORCE MAJ EU RE
STANDARDS OF CONDUCT
SECTION 18
NOTICES
SECTION 19
DESIGNATED REPRESENTATIVES
COMPENSATION
SECTION 20
SECTION 21
SECTION 22
SECTION 23
SECTION 24
SECTION 25
SECTION 26
SECTION 27
SECTION 28
SECTION 29
SECTION 30
SECTION 31
SECTION 32
INVOICE
PROCESS
TERMINATION OF AGREEMENT
TERMINATION BY CONTRACTOR FOR CAUSE
TERMINATION BY THE CITY WITHOUT CAUSE
PAYMENT IN THE EVENT OF TERMINATION
ACTION FOLLOWING TERMINATION
SUSPENSiON
ALTERNATIVE DISPUTE RESOLUTION ADR
SEVERABILITY
CONTROLLING LAWSNENUE INTERPRETATION
INDEMNITY
SECTION 33
SECTION 34
SECTION 35
INSURANCE
EQUAL OPPORTUNITY EMPLOYMENT NON DISCRIMINATION
ACCESS TO RECORDS AUDIT PUBLIC RECORDS
COUNTERPARTS
SECTION 36
EXHIBITS
Red
light
Camera Two Phase Services
Page
NO 2
Agreement
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SECTION 1
DEFINITIONS
Ad valorem
In
to the estimated value of the
proportion
goods taxed
This document
between the City and Contractor
Each exhibit as
identified below even if not physically attached shall be treated as if they were
part of
this Agreement The effective date of this Agreement is the date City Commission of
Agreement
the
City approves the selection of the Contractor
Billing Period
period of time between project commencement to the close of the
current period inclusive or from the close of the previous billing period exclusive to
the close of the current period usually concurrent with the month In no case shall this
period be less than one 1 calendar month except for the final billing period
Bona Fide
City
The
exempt
The
Made
City
or
carried out in
of Ocoee
a
good faith sincere
municipal corporation of
the State of Florida
holding
tax
status
Contractor
To include all
principals of the Contractor including but not limited to full
part time employees professional or otherwise and all other agents employed by
or for Contractor to perform its obligations hereunder
and
Description of Services
Shall be written in paragraph form resonably describing
those services work the City can expect the Contractor to provide The description shall
be written in such a manner that the
type of service is clearly provided but broad
enough that all services reasonably expected of the Contractor including services
provided by partners subcontractors and other supporting professionals can be
provided to the City
Designated Representative
provision
of services
A person who administers reviews and coordinates the
This definition applies equally to the City and to the Contractor
Exhibit A
Description
of Services
Exhibit B
Pricing
Exhibit C
Certificate of
and Rate Schedule
Liability Insurance
Force Maieure Force Majeure shall include but not be limited to hostility revolution
civil commotion terrorism strike epidemic fire flood wind earthquake
explosion any
law proclamation regulation or ordinance or other act of
government or any act of
God or any cause whether of the same or different nature existing or future
that the
cause
provided
Agreement is beyond the control and
negligence of the party seeking relief under this Agreement
whether
without the fault
or
or
not enumerated in this
Red
Light
Camera Two Phase Services
Page
No 3
Agreement
Case 2:14-cv-14429-XXXX Document 1-1 Entered on FLSD Docket 10/27/2014 Page 31 of
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Law
type
Said
or
phrase
shall include statutes
nature enacted
or
adopted by
a
codes
rules and
governmental entity
regulations of whatsoever
competent jurisdiction
of
Of the same matter on the same subject Provisions in pari materia
Pari Materia
must be construed with reference to each other together when related to the same
matter or subject The provisions of a contract agreement are to be construed together
with no isolated construction of a particular provision such that it would defeat the
overall intent of the contract agreement
Submittals
Any item
for
inclusion
either
City
required by
as
agreement that
agreement or not
this
part of this
the Contractor must
provide the
light enforcement system using cameras for the benefit of
the public safety and interests said services being provided in accordance with the
controlling provisions of law The services shall be provided in two 2 phases with the
first phase being an evaluative and analytical phase which is non compensated and the
second phase if the evaluation and analysis results in the conclusion that services
should proceed forward the second phase shall be an operational and compensated
Type of Services
red
A red
light enforcement system
CAPTIONS
SECTION 2
headings and captions of this Agreement are for convenience
reference only and in no way define limit describe the scope or intent of
Agreement or any part thereof or in any way affect this Agreement or construe
provision of this Agreement
The
Section
SECTION 3
this
any
AMENDMENT
lANGTREGERMAETINOT
EXTENT OF
and
Agreement together with the exhibits constitute the entire integrated
Agreement between the City and the Contractor and supersedes all prior written or oral
a
This
understandings
provisions
in
connection
therewith
This Agreement
and
all the
terms
and
including without limitation the exhibits attached constitute
agreement between the parties hereto to the date hereof and
contained herein
the full and
complete
supersedes and controls over any and all prior agreements understandings
representations correspondence and statements whether written or oral
supplemented or modified by a formal
written amendment and the Contractor may not rely upon non written assignments of
work or services that are not consistent with the provisions of this Agreement
b
This
Agreement
may
only
be amended
Any alterations amendments deletions or waivers of the provisions of this
Agreement shall be valid only when expressed in writing and duly signed by the parties
c
Red
Light
Camera Two Phase Services
Page
NO 4
Agreement
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d
The exhibits made part of this
Exhibit A
are as
follows
Description of Services
Pricing and Rate Schedule
Certificate of Liability Insurance
Exhibit B
Exhibit C
This is
Agreement
Agreement relating
of services to the City in two 2
phases by the Contractor such that the Contractor shall not proceed to the second
compensated phase absent a review and analysis by the City of the results of the first
e
to the
provision
compensated phase of services
non
SECTION 4
In
a
a
an
no
NO GENERAL CITY OBLIGATION
event shall any
general obligation
or
obligation of the City under this Agreement be or constitute
indebtedness of the City a pledge of the ad valorem
taxing
power of the City or a general obligation or indebtedness of the City within the meaning
of the Constitution of the State of Florida or any other applicable laws but shall be
payable solely from legally available
b
taxing
revenues
The Contractor shall not have the
power of the City
SECTION 5
right
and funds
to
compel the exercise of the
ad valorem
CONTRACTOR UNDERSTANDING OF SERVICES REQUIRED
a
Execution of this Agreement by the Contractor is a representation that the
Contractor is familiar with local conditions and with the services to be
performed The
Contractor shall make no claim for additional time or money based
upon its failure to
this
with
The
Contractor
the
comply
has informed
Agreement
City and hereby
represents to the City that it has extensive experience in performing and providing the
services described in this Agreement and that it is well acquainted with the
components
that are properly and customarily included within such projects and the
of
requirements
regulations or orders of any public authority or licensing entity
having jurisdiction over City projects
Execution of this Agreement shall be an
affirmative and irrefutable representation by the Contractor to the
City that the
Contractor is fully familiar with any and all requisite work conditions of the provisions of
the services and that no work conditions will be
unanticipated
laws
b
this
ordinances
rules
The recitals herein
are
true and correct and form and constitute
a
material part of
Agreement upon which the parties have relied
c
in any
or as
It is
agreed that nothing herein contained is intended or should be construed as
creating or establishing a relationship of co partners between the parties
constituting the Contractor including but not limited to its officers employees
manner
Red
Light
Camera Two Phase Services
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NO
5
Agreement
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and
agents
manner
any
independent
the
agent representative
or
employee
The Contractor
whatsoever
Contractor with
respect
of the
is to be and
to all services
for any purpose or in
shall remain forever an
City
performed
under this
Agreement
Persons employed by the Contractor in the provision and performance of the
d
services and functions pursuant to this Agreement shall have no claim to pension
workers compensation unemployment compensation civil service or other employee
rights
law
privileges granted
by the City
or
or
SECTION 6
to the
City s
officers and
employees
either
by operation
of
GENERAL PROVISIONS
represents to the other that it has undertaken all necessary
actions to execute this Agreement and that it has the legal authority to enter into this
Agreement and to undertake all obligations imposed on it The person s executing this
Agreement for the Contractor certifies certify that he she they is are authorized to bind
the Contractor fully to the terms of this Agreement and so execute this Agreement under
penalty of perjury
a
Each
party
hereto
red light
Agreement is for services pertaining to a governmental
enforcement system using cameras for the benefit of the public safety and interests said
services being provided in accordance with the controlling provisions of law The
services shall be provided in two 2 phases with the first phase being an evaluative and
analytical phase which is non compensated and the second phase if the evaluation and
analysis results in the conclusion that services should proceed forward the second
phase shall be an operational and compensated red light enforcement system Related
services as needed by the City for the City s operations as set forth herein and as
otherwise directed by the City to include all labor and materials that may be required
shall be provided by the Contractor to the City in accordance with the hourly rate
schedule set forth herein At no time will the Contractor have or use governmental law
enforcement or public safety powers and all services provided by the Contractor to the
City shall be in aid of the City in the City s exercise of such powers
b
c
This
the services for
provide
contractor shall
d
acknowledges that the City may retain other contractors to
City projects The City reserves the right to select which
provide services for City projects
The Contractor
The Contractor agrees to
provide
and
ensure
coordination
between
servIce
providers
e
Time is of the
essence
of the lawful
performance
of the duties and
obligations
contained in this Agreement The parties covenant and agree that they shall diligently
and expeditiously pursue their respective obligations set forth in this Agreement
specified approach installed and activated in accordance with
implementation plan to be mutually agreed to by the Contractor and City Contractor
Contractor will have each
an
will
use
reasonalbe commerical efforts to install the system in accordance with the
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schedule set forth in the
implementation plan
that will
be formalized
upon
project
commencement
Contractor shall maintain an adequate and competent staff or professionally
t
qualified persons throughout the performance of this Agreement to ensure acceptable
and timely completion of the services Should the City determine that a particular staff
member or particular staff members cannot adequately provide the services due to the
as
City or that the use of such Contractor employee s is not in the public interest
determined by action of the City Manager of the City the Contractor shall immediately
to cease work under this Agreement and such action shall not
cause such employee s
be deemed a suspension or termination of this Agreement
signing and sealing plans reports and documents prepared by
the
the Contractor shall be governed by the laws and regulations of Orange County
City and Federal and State regulatory agencies
g
Requirements
for
specifically provided for
herein shall be honored by the City Should the Contractor proceed to accomplish work
without written authorization by the City such work shall not be deemed compensable
work It is the responsibility of the Contractor to ensure that the Contractor takes
direction from the appropriate person with requisite authority of the City
h
No claim for services furnished
SECTION 7
by the Contractor
not
CODES AND DESIGN STANDARDS
provided or performed by the Contractor shall at a
minimum be in conformance with commonly accepted industry and professional codes
and standards standards of the City and the laws of any Federal State or local
regulatory agencies
a
b
All the services
to be
The Contractor shall be
applicable
to the services to be
SECTION 8
responsible for keeping apprised
performed under this Agreement
of any
changing
laws
SUBCONTRACTORS
the City for written
Any Contractor proposed subcontractor shall be submitted to
information
subcontract
Subcontractor
Contractor
into
a
entering
approval prior to the
address
local
business
shall include but not be limited to State registrations business
tax proof of payment and insurance certifications
a
provision of services and work product of any
City approved subcontractor and remain fully responsible for such services and work
under the terms of this Agreement The Contractor is prohibited from executing any
document that would purport to assign the Contractor s duties to the City to a
b
The Contractor shall coordinate the
subcontractor
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writing and shall fully incorporate the terms and
conditions of this Agreement and require the subcontractors to assume performance of
the Contractor duties commensurately with the Contractor s duties to the City under this
Agreement it being understood that nothing herein shall in any way relieve the
Contractor from any of its duties under this Agreement The Contractor shall provide
business day of the
the City with executed copies of all subcontracts within one 1
All subcontracts shall be in
c
execution
SECTION 9
ASSIGNABILITY
The Contractor shall not sublet assign or transfer any interest in this Agreement or
claims for the money due or to become due out of this Agreement to a bank trust
When approved by
or other financial institution without written City approval
company
be furnished promptly
City written notice of such assignment or transfer shall
and
assigns shall be bound
City and in such cases the Contractor s successors
City by the terms and conditions of this Agreement
the
SECTION
10
COMMENCEMENT
I
IMPLEMENTATION
SCHEDULE
to the
to the
OF
AGREEMENT
The Contractor shall commence the provision of services for the first phase of
services as described in this Agreement immediately upon execution of this Agreement
and the issuance of a written notice to proceed by the City The Contractor shall within
a
five
5
of the
with written verification
days of receipt of the notice to proceed provide the City
receipt and state a plan of action relative to the commencement of the work
provision of services for the second phase of
services as described in this Agreement immediately upon the issuance of a written
notice to proceed by the City The Contractor shall within five 5 days of receipt of the
notice to proceed provide the City with written verification of the receipt and state a plan
b
The Contractor shall
commence
the
of action relative to the commencement of the work
City agree to make every effort to adhere to the
However if the Contractor is materially and
schedules established by the City
substantially delayed at any time in the provision of services by any act or omission of
the City or of any employee of the City or by any other contractor employed by the
City or by changes ordered by the City or by strikes lock outs fire unusual delay in
transportation unavoidable casualties or any other causes of force majeure not
resulting from the inactions or actions of the Contractor and beyond the Contractor s
control which would not reasonably be expected to occur in connection with or during
performance or provision of the services or by delay authorized by the City pending a
decision or by any cause which the City shall decide to justify the delay the time of
completion shall be extended for such reasonable time as the City may decide in its
c
The Contractor and
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It is further expressly understood and agreed that the
sole and absolute discretion
Contractor shall not be entitled to any damages or compensation or be reimbursed for
account of any delay
any other cause whatsoever
any losses
or
on
SECTION 11
delays resulting
execution of this
City by
means
of
a
notice to
on
the date of full
begin upon written notification
to
proceed by the
phases of the provision
d
the
3
years
proceed
Contractor services shall be
c
causes
commencing
Agreement is three
Agreement by the parties
The Contractor services shall
b
from any of the aforesaid
LENGTH OF AGREEMENT
The term of this
a
by
or
provided
to the
City solely
as
directed in the two
of services
Subsequent to the conclusion of the initial term this Agreement may
parties for maximum total of an additional five 5 years
be renewed
expert witness as needed in judicial
proceedings relating to the services that are the subject of this Agreement at a rate of
compensation as set forth in the Notice To Proceed for the second phase of the
e
The
Contractor
shall
as
serve
an
services set forth herein
t
All
survive
provisions
the expiration
SECTION 12
of this
or
Agreement
termination of this
which
contain
continuing obligations
shall
Agreement
DESCRIPTION OF SERVICES
The Contractor agrees to perform diverse services relating to the full array of
needs of the City pertaining to a red light enforcement system using cameras to
advance the public interest and public safety in accordance with the controlling
a
provisions
of law
The
Description
of Services is further and
more
specifically
outlined
in Exhibit A
b
The Contractor shall
diligently
and in
the services outlined herein
hereto the duties of the Contractor shall not
and
provide
services
pertaining
to this
professional
and
timely manner perform
Unless modified in writing by the parties
be construed to exceed the provision of the
a
Agreement
City and Contractor agree that there may be certain additional services
required to be performed by the Contractor during the performance of this Agreement
Such
that cannot be defined sufficiently at the time of execution of this Agreement
the
written
authorization
of
work
services shall be authorized in writing by
City The
may contain addititonal instructions or provide specifications upon certain aspects of
this Agreement pertinent to the work to be undertaken Such supplemental instructions
c
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or
shall not be construed
provisions
SECTION 13
a
as a
modification of this
Agreement
CONTRACTOR RESPONSIBILITIES
The Contractor shall be
responsible
for the
professional quality accepted
standards technical accuracy and the coordination of all services furnished by the
Contractor under this Agreement as well as the conduct of its staff personnel
employees and agents The Contractor shall work closely with the City on all aspects
of the provision of the services With respect to services the Contractor shall be
responsible for the professional quality technical accuracy competence methodology
accuracy and the coordination of all of the following which are listed for illustration
purposes and not as a limitation documents analysis reports data plans plats
maps surveys specifications and any and all other services of whatever type or nature
furnished by the Contractor under this Agreement The Contractor shall without
additional compensation correct or revise any errors or deficiencies in its plans
analysis data reports designs drawings specifications and any and all other services
of whatever type or nature
b
The
Contractor
shall
furnish
administer review and coordinate the
a
designated
Contractor
provision
of services under this
representative
Agreement
to
City review approval or acceptance of nor payment for any of the
services required under this Agreement or failure to insist upon strict compliance by the
Contractor with regard to any provision of this Agreement shall be construed to operate
release discharge modification or change of any rights of the City or of
as a waiver
of
action arising out of the performance of this Agreement to the benefit of
any cause
the City The Contractor shall be and shall remain liable to the City in accordance with
applicable law for all damages to the City caused by the Contractor s negligent or
improper performance or failure to perform any of the services furnished under this
Agreement
c
d
Neither
In the event the Contractor fails to
Agreement
the
City
shall
notify
the
comply with the terms and conditions of this
Contractor s designated representative in writing so
that the Contractor may take remedial action
e
Time is of the
essence
in
Contractor under the terms of this
SECTION 14
a
The
cost to the
City
the
performance
Agreement
of all
services
provided by
the
CITY RIGHTS AND RESPONSIBILITIES
shall
reasonably cooperate with the Contractor
Contractor
as
in
a
timely fashion
at
no
set forth in this Section
b
The City shall furnish a City designated representative to administer review and
coordinate the provision of services under this Agreement
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City shall make City personnel reaonably available where in the City s
opinion they are required and necessary to assist the Contractor The availability and
necessity of said personnel to assist the Contractor shall be determined solely at the
discretion of the City
c
The
Upon the written request of the Contractor the City shall furnish the Contractor
with existing data records maps plans specifications reports fiscal data and other
information that is available in the City s files that is necessary or useful to the
Contractor for the performance of the work All such documents conveyed by the City
shall be and remain the property of the City and shall be returned to the City upon
completion of the services to be performed by the Contractor
d
City shall upon request of the Contractor reasonably examine all Contractor
reports sketches drawing estimates proposals and other documents presented to the
City and indicate the City s approval or disapproval within a reasonable time so as not to
materially delay the provisions of the services of the Contractor provided however that
the City s examination s shall not in any way relieve the Contractor of its duties and
obligations under the provisions of this Agreement
e
The
request of the Contractor unless the procurement
documents otherwise provide
provide access to and make provisions for the
Contractor to enter upon public and private lands as required for the Contractor within a
reasonable time to perform work as necessary to complete services
t
The
City shall
upon
relevant
information
and
provide
City shall transmit instructions
decisions
to
and
and
with
and all
definition
of
any
respect
interpretation
City policies
this
and
matters
to
the
services
covered
materials
other
pertinent
by
Agreement
not
in
however
that
the
s
examination
s
shall
relieve the
any
City
way
provided
Contractor of its duties and obligations under the provisions of this Agreement
g
The
City
representative
h
The
performed
defect
or
i
The
shall
give
knows
under this
change
rights
written notice to the Contractor whenever the
of
a
that
development
Agreement timing
affects
of the Contractor
the
s
services
provision
City designated
provided and
of services
or a
necessary in the services of the Contractor
and remedies of the
City provided
for under this
Agreement
are
in
addition to any other
of recovery by any
rights and remedies provided by law the City may assert its right
appropriate means including but not limited to set off suit
withholding recoupment or counterclaim either during or after performance of this
Agreement
any and all legal costs including but not
limited to attorney fees and other legal costs that it may incur in any legal actions it may
pursue in the enforcement of the terms and conditions of this Agreement or the
0
The
City shall
responsibilities of the
from this Agreement
be entitled to
recover
Contractor in
carrying
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City to insist in any instance upon the strict performance of any
provision of this Agreement or to exercise any right or privilege granted to the City
hereunder shall not constitute or be construed as a waiver of any such provision or right
k
The failure of the
and the
shall continue in force
same
payment for any of the
rights under this
required
operate
of
this Agreement
Agreement nor or any cause of action arising out of the performance
and the Contractor shall be and always remain liable to the City in accordance with
applicable law for any and all damages to the City caused by the Contractor s negligent
under this
or wrongful provision or performance of any of the services furnished
Agreement
I
Neither the
City s review approval
or
acceptance of
shall be construed to
services
as
a
nor
waiver of any
survey data plans and reports or any
other form of written instrument or document that may result from the Contractor s
services or have been created during the course of the Contractor s performance under
m
this
All deliverable
Agreement
analysis reference
shall become the
property
data
of the
City
after final
payment
is made to the
Contractor
City fails to comply with the terms and conditions of this
Agreement the Contractor shall notify the City s designated representative in writing in
order that the City may take remedial action
n
In
the event the
SECTION 15
WAIVER
The failure of the
City to insist
provision of this Agreement or
hereunder
right and
shall not constitute
the
same
SECTION 16
Neither
party
SECTION 17
or
be construed
as
a
waiver of any such
provision
or
shall continue in force
FORCE MAJEURE
shall be considered in default in
to the extent that
prevented by
in any instance upon the strict performance of any
to exercise any right or privilege granted to the City
force
performance
of such
performance of its obligations hereunder
obligations or any of them is delayed or
majeure
STANDARDS OF CONDUCT
The Contractor warrants that it has not
employed or retained any company or
person other than a bona fide employee working solely for the Contractor to solicit or
secure this Agreement and that the Contractor has not paid or agreed to pay any
person company corporation individual or firm other than a bona bide employee
working solely for the Contractor any fee commission percentage gift or any other
consideration contingent upon or resulting from the award of making this Agreement
a
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City determines that any employee or representative of the Contractor is
not satisfactorily performing his or her assigned duties or is demonstrating improper
conduct pursuant to any assignment or work performed under this Agreement the City
shall so notify the Contractor in writing The Contractor shall immediately remove such
employee or representative of the Contractor from such assignment
b
If the
c
By execution of
this
the
Agreement
hereby certifies
Agreement including
Contractor
that
no
but not
undisclosed conflict of interest exists with respect to the
other
clients
customers
or
due
of
to representation
limited to any conflicts that may be
vendees
other contractual
relationships of
that the Contractor may
interest that arises during the term of this
writing
to the
City
or any interest in property
certifies that any conflict of
shall be immediately disclosed in
the Contractor
The Contractor further
have
Agreement
Violation of this Section shall be considered
immediate termination of this
as
justification
for
Agreement
The Contractor shall not engage in any action that would create a conflict of
interest for any City employee or other person during the course of performance of or
otherwise related to this Agreement or which would violate or cause others to violate
d
provisions of Part III Chapter
relating to ethics in government
the
112
Florida Statutes
as
amended from time to time
City shall not intentionally award publicly funded contracts to any Contractor
who knowingly employs unauthorized alien workers constituting a violation of the
274A e of the
employment provisions contained in 8 U S C Section 1324a e Section
Immigration and Nationality Act lNA as the INA may be amended from time to time
The City shall consider the employment by the Contractor of unauthorized aliens a
Such violation by the Contractor of the
violation of Section 274A e of the INA
274A
in
e
of the INA is a per se breach of
Section
employment provisions contained
this Agreement and shall be grounds for immediate termination of this Agreement by the
City
e
t
The
The Contractor shall
discrimination
provisions
comply with and
of this
adhere to the
equal employment
and
non
Agreement
If the Contractor or an affiliate is placed on a discriminatory vendor list such
g
The Contractor shall certify upon request
action may result in termination by the City
Section 287 134 Florida Statutes or
that
it
is
to
submit
a
bid
under
qualified
by the City
its
successor
provision
s
If the Contractor
i
The Contractor
maintains
a
drug
free
or an
affiliate is
placed
the convicted vendor list
following a
conviction for a public entity crime such action may result in termination by the City
The Contractor shall certify upon request by the City that is qualified to submit a bid
under Section 287 133 Florida Statutes or its successor provision s
h
on
certify upon request by the City that the Contractor
workplace policy in accordance with Section 287 0878 Florida
shall
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Statutes
as
amended from time to time Failure to submit this certification may result in
termination
The Contractor agrees to comply with Federal State and local environmental
health and safety laws and regulations applicable to the services provided to the City
The Contractor agrees that any program or initiative involving the work that could
0
adversely affect any personnel involved citizens residents users neighbors or the
surrounding environment shall ensure compliance with any and all employment safety
environmental and health laws
or its
applicable in accordance with Section 216 347 Florida Statutes
the Contractor shall not use funds provided by this Agreement
successor provision s
for the purpose of lobbying the Legislature the Judicial Branch or any State Agency
If
k
publish any documents or release information regarding
this Agreement to the media without prior approval of the City The Contractor may not
in any manner or means without
use its relationship with the City for publicity purposes
the expressed written consent of the City
I
The Contractor shall not
m
The Contractor shall
Contractor has obtained
licenses
permissions approvals
The Contractor shall
n
timely
ensure
at its
and
complete
SECTION 18
ensure
manner
that all services
are
provided
sole and exclusive expense
or similar consents
to the City after the
any and all permits
that all taxes due from the Contractor
including
are
paid
in
a
but not limited to the local business tax
NOTICES
party desires to give notice unto the other it must be given by
written notice sent by registered United States mail with return receipt requested
addressed to the party for whom it is intended at the place last specified and the place
for giving of notice shall remain such until it shall have been changed by written notice
in compliance with the provisions of this Section
a
b
for
1
Whenever either
For the
giving
present
the
parties designate
the
following
as
the
of notice to wit
For the City
City Manager
City of Ocoee
150 N Lakeshore Drive
Ocoee Florida 34761
2
For the Contractor
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Agreement
representative places
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Mr Adam E Tuton
Manager
American Traffic Solutions LLC
7681 E
Gray Road
Scottsdale Arizona 85260
Agreement shall be strictly construed and
such requirements are a condition precedent to pursuing any rights or remedies
The Contractor agrees not to claim any waiver by City of such notice
hereunder
requirements based upon City having actual knowledge implied verbal or constructive
notice lack of prejudice or any other grounds as a substitute for the failure of the
Contractor to comply with the express written notice requirements herein
Computer
Written notice
c
notification
requirements
of this
mails and message boards
e
under the terms of the
shall not constitute proper written notice
Agreement
DESIGNATED REPRESENTATIVES
SECTION 19
City Manager or designated representative represents the City in all
pertaining to and arising from the work and the performance of this Agreement
The
a
matters
b
The
City Manager
responsibilities
or
designated representative shall
City s approval
or
disapproval within
a
the
following
writing decisions indicating
reasonable time so as not to materially delay
Examination of all work and
1
have
rendering
in
the
the
work of the Contractor
and decisions with
definition of
City s policies
pertinent to the work
matters
3
a
defect
c
receipt of information and interpretation and
respect to design materials and other
covered by this Agreement
Transmission of instructions
2
Giving prompt
or
Until
Agreement
change
written notice to the Contractor whenever the
necessary in the
further
written
notice
project
and
the
City s
designated representative
is
City Manager
City of Ocoee
150 N Lakeshore Dr
Ocoee FL 34761
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City
Agreement
knows of
for
this
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Prior to start of any work under this Agreement
submit to the City detailed
written request of the City
d
personnel
that will be involved in
the Contractor shall
resumes
of
at the
key professional
services described in the work
At any
personnel in an
performing
change key professional
of the new professional personnel to
qualifications
assignment
the City for prior approval Key professional personnel shall include the principal in
charge project managers and others interfacing with City personnel
time hereafter that the Contractor desires to
it shall submit the
active
e
Until further written notice
the Contractor
s
designated representative for
this
Agreement is
Mr Adam Tuton
LLC
American Traffic Solutions
7681 E
Gray
Road
Scottsdale Arizona 85260
Telephone Number 480 443 7000
SECTION 20
a
COMPENSATION
There shall be
no
fee
charged
phase of performance while the fee to
post authorization shall be as set forth in
b
Should
the
City
authorize
City for the work accomplished in the first
be charged for the second phase of services
to the
work
Exhibit B
under
to the Contractor for the services
compensation
notice to proceed
c
The
City
and
as
the
second
performed
of the
phase
shall be
as
services
set forth the
set forth in Exhibit B
shall not pay for reimbursable items such
as
gas tolls
mileage
meals
etc
performed by the Contractor without written approval by the City s
Any work performed by the
designated representative shall not be compensated
is
at
the
Contractor s own election
Contractor without approval by the City
performed
d
Work
City fails to provide compensation
conditions of this Agreement the Contractor shall notify
representative in order that the City may take remedial action
e
In
the
SECTION 21
a
event the
under
the
the
terms
and
City s designated
INVOICE PROCESS
Payments shall
be made
by the City
to the Contractor when
requested as work
monthly The Contractor
progresses for services furnished but not more than once
shall render to the City at the close of each calendar month
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Agreement
an
itemized invoice
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properly
Form
all services rendered
describing
dated
the cost of the services
the
required by
Number and all other information
b
as
and
this
Exhibit 8
the
Project Status Report
address of the Contractor
Contract
Agreement
acceptable form to the City and without disputable items
processed for payment within thirty 30 days of receipt by the City
Invoices which
will be
name
in
are
an
The Contractor will be notified of any disputable items contained In Invoices
submitted by the Contractor within fifteen 15 days of receipt by the City with an
c
of the deficiencies
explanation
d
The
City and the Contractor will make every effort
contained in the Contractor
to resolve all
disputable
items
invoices
s
Prompt Payment Act shall apply
e
The Florida
t
Invoices shall be forwarded
by
when
the Contractor
applicable
directly
to
fiNA IIcP
City Hall
City of Ocoee
150 N Lakeshore Dr
Ocoee Florida 34761
SECTION 22
The
a
more
City may terminate this Agreement
of the
reasons as
1
Contractor
TERMINATION OF AGREEMENT
If
in the
If
Contractor is
City s opinion adequate progress
or
is not
being
made
by
the
City s OpiniOn the quality of the services provided by the
in
conformance
with commonly accepted professional standards
not
in
are
the
City
Contractor has
not corrected
determined
3
direct
by
the
the
City
The Contractor
charge
The
of Federal
or
such deficiencies
in
requirements
State
a
regulatory agencies and the
timely manner as reasonably
or
or
any
or
agent of the Contractor is indicted or
arising out of or in conjunction with
against
performed by the Contractor
Contractor
bankruptcy proceedings
employee
him for any crime
issued
any work that has been
4
1
follows
standards of the
a
one
or
2
has
for convenience at any time for
or
Red
becomes
makes
Light
an
involved
assignment
or
in either voluntary or
for the benefit of creditors
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Agreement
involuntary
or
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The Contractor violates the standards of conduct
5
provision of
State
or
local law
available to the Contractor
6
The
or
any
provision
of the
City
s
provisions
herein
or
any
Code of Conduct which is
or
violates
otherwise
Contractor
the
terms
and
conditions
of this
Agreement
In the event of any of the causes described in this Section the City s designated
representative may send a certified letter requesting that the Contractor show cause
why the Agreement should not be terminated If assurance satisfactory to the City of
corrective measures to be made within a reasonable time is not given to the City within
b
calendar days of the receipt of the letter the City may consider the
Contractor to be in default and may immediately terminate this Agreement
14
fourteen
Agreement is terminated for cause and it is later determined
that the cause does not exist then this Agreement shall be deemed terminated for
convenience by the City and the City shall have the right to so terminate this Agreement
without any recourse by the Contractor
c
In the event that this
TERMINATION BY CONTRACTOR FOR CAUSE
SECTION 23
a
The Contractor may terminate this
The
1
responsibilities
2
b
as
The
a
if
City substantially and materially fails
specifically contained in this Agreement
City fails
to meet its
certified letter
described in Subsection
causes
obligations
and
or
to pay the Contractor in accordance with this
In the event of either of the
shall send
Agreement
a
Agreement
the Contractor
that the
requesting
should not be terminated and to otherwise
to cure or explain the alleged breach
City show cause why the Agreement
provide the City will a reasonable opportunity
adequate assurances are not given to the Contractor within fourteen 14
calendar days of the receipt of said show cause notice that there is no breach or if a
breach exists it may be reasonably explained or has been cured the Contractor may
consider the City to be in default and may immediately terminate this Agreement
c
If
d
No
implied obligations
SECTION 24
a
of the
City
arise from the
operation
of this
Agreement
TERMINATION BY THE CITY WITHOUT CAUSE
Notwithstanding any other provision of this Agreement the City shall have the
right at any time to terminate this Agreement in its entirely without cause if such
termination is deemed by the City to be in the public interest provided that thirty 30
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days prior
calendar
written notice
is
given
to the
Contractor of the
City s
intent to
terminate
Agreement is terminated the City shall identify any specific
completion pursuant to the provisions of this Agreement
In the event that this
b
work to be continued to
This
c
to
Agreement will remain
be continued to completion
in full force and effect
as
to all authorized work that is
PAYMENT IN THE EVENT OF TERMINATION
SECTION 25
Agreement is terminated or canceled prior to final completion payment
for the unpaid portion of the services provided by the Contractor to the date of
termination and any additional services shall be paid to the Contractor
In the event this
ACTION FOLLOWING TERMINATION
SECTION 26
a
shall
Upon receipt of notice of termination given by either party
promptly discontinue the provision of all services unless
the terminated
the notice
party
provides
otherwise
b
The Contractor
termination
by
whatever
SECTION 27
a
means
mitigate damages
in the event of
under whatever circumstances
SUSPENSION
performance or provision of the Contractor services
suspended by the City at any time
The
may be
b
to
recognizes its obligation
under this
Agreement
In the event the
City suspends the performance or provision of the Contractor s
City shall so notify the Contractor in writing Such suspension
The City shall pay to the
becoming effective upon the date stated in the notice
Contractor within thirty 30 days all compensation which has become due to and
payable to the Contractor to the effective date of such suspension The City shall
thereafter have no further obligation for payment to the Contractor for the suspended
provision of services unless and until the City s designated representative notifies the
Contractor in writing that the provision of the services of the Contractor called for
hereunder are to be resumed by the Contractor
services hereunder
c
Upon receipt of written notice from the City that the Contractor
services hereunder
services to the
d
the
are
the Contractor shall continue to
provision of
provide the
City
The Contractor
suspension of
to be resumed
s
recognizes its
duties to
mitigate damages
services
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SECTION 28
ALTERNATIVE DISPUTE RESOLUTION
In the event of
ADR
dispute related to any performance or payment obligation arising
under this Agreement the parties agree attempt resolution by means of mutual
a
and
discussion
a
if resolution does not result there from
resolution
dispute
procedures reasonably imposed by
pursuing legal remedies
otherwise
The Contractor agrees that it will file
based on facts or evidentiary materials that
b
City
no
suit
dispute resolution procedures
present during the City procedures
and failed to
otherwise pursue
legal remedies
presented for consideration to the
which the Contractor had knowledge
not
were
in alternative
or
to exhaust any alternative
the City prior to filing suit or
or
In the event that
City procedures are exhausted and a suit is filed or legal
remedies are otherwise pursued the parties shall exercise best efforts to resolve
Mediator selection and the procedures to be
disputes through voluntary mediation
employed in voluntary mediation shall be mutually acceptable to the parties Costs of
voluntary mediation shall be shared equally among the parties participating in the
mediation The Contractor recognizes that mediation may be deemed open by the City
at its discretion subject to any controlling limitations of State law
c
SECTION 29
SEVERABILITY
If any term provision or condition
extent be held invalid or unenforceable
a
application
those in
and
of such term
provision
b
c
condition to persons
or
to any
or
the
circumstances other than
which it is invalid or unenforceable shall not be affected thereby
provision and condition of this Agreement shall be valid and
term
enforceable to the fullest extent
other
Agreement shall
the remainder of this Agreement
respect of
each
public
or
contained in this
permitted by law
when consistent with
equity
and the
interest
All
provisions of this Agreement
provisions hereof
Violation of this
constitute
Agreement by
irreparable harm to the City
SECTION 30
the Contractor is
applied
in
pari
materia with all
recognized by
the
parties
to
CONTROLLING LAWSNENUEIINTERPRETA TION
a
This
b
Venue for any
County
shall be read and
Agreement is
to be
governed by the
legal proceeding related
laws of the State of Florida
to this
Agreement shall be
in
Orange
FL
Agreement is the result of bona fide arms length negotiations between the
City and the Contractor and all parties have contributed substantially and materially to
c
This
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preparation of the Contract Accordingly
interpreted more strictly against anyone party
the
The
d
all
litigation
parties hereby affirmatively
this
Agreement shall not be construed
than against any other party
waive their
commenced in relation to this
right
Agreement
to trial
by jury
relative to any and
dispute resolution and similar negotiations sessions
Orange County Florida absent agreement otherwise by the City
All alternative
e
SECTION 31
or
shall
occur
in
INDEMNITY
a
To the fullest extent permitted by law the Contractor shall indemnify hold
harmless and defend the City its agents servants officers officials and employees or
any of them from and against any and all claims damages losses and expenses
including but not limited to attorneys fees and other legal costs such as those for
paralegal investigative and legal support services and the actual costs incurred for
expert witness testimony arising out of or resulting from the performance or provision of
services required under this Agreement provided that same is caused in whole or part
by the error omission negligent act failure to act malfeasance misfeasance conduct
officers officials employees or
or misconduct of the Contractor its agents servants
subcontractors
b
In accordance with Section 725 06
Florida Statutes
has been
provision s
adequate consideration
the
obligation
receipt and sufficiency of which
c
the
d
In claims
obligation
against any
successor
and similar
Contractor for this
provided
hereby specifically acknowledged
person or
its agents
subcontractors
employee
entity
or
indemnified under this Section
subcontractors
anyone
directly
or
by an
indirectly
they may be liable the indemnification
under this Section shall not be limited by a limitation on amount or type of
damages compensation
e
its
to the
Nothing herein shall be deemed to affect the rights privileges and immunities of
City as set forth in Section 768 28 Florida Statutes as amended from time to time
employee of the Contractor or
employed by them or anyone for
to
is
or
or
whose acts
benefits
under workers
payable by or for the Contractor or its agents or
compensation acts disability benefits acts or other
benefit acts
Agreement by the Contractor shall obligate the Contractor
provision in this Agreement however the Contractor
provisions of this Agreement relating to insurance coverages
The execution of this
comply
must also
with the indemnification
comply
SECTION 32
with the
INSURANCE
a
The Contractor shall obtain or possess and continuously maintain the following
insurance coverages from a company or from companies with a Best Rating of A or
better or such other qualifications as may be acceptable to the City in its sole and
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absolute discrection which insuranace company ies must be authorized to do business
in the State of Florida and which policies must be in a form acceptable to the City and
with
only
such terms and conditions
may be
as
acceptable
to the
City
1
Workers Compensation Employer Liability The Contractor shall provide
workers compensation insurance for all employees engaged in the work under this
Agreement in accordance with the laws of the State of Florida
Insurance shall be provided by the Contractor at limits not less than
Employers liability
following
the
100 000 00 Each Accident
100 000 00 Disease Each
500 000 00 Disease
Employee
Aggregate
Comprehensive General Liability The Contractor shall provide coverage
operations including but not limited to contractual independent contractor
2
for all
products
following
and
and
complete operations
personal injury with limits
not less than the
1 000 000 00
Bodily injury and property damage each occurrence
advertising injury each occurrence
000 000 00 General aggregate
000 000 00 Products completed operations aggregates limit
5 000 00 Medical payments
1 000 000 00 Personal and
2
2
3
Comprehensive
Business
coverage with
Automobile
combined
The
Liability
Contractor
limit of not less than
shall
1 000 000 00
provide complete
single
bodily injury and property damage coverage in accordance with the laws of the State of
Florida as to the ownership maintenance and use of all owned n on owned leased or
a
hired vehicles
4
insurance
Professional
well
as
as
less than
and
errors
1 000 000 00 combine
The Contractor shall
Liability
limit
omission
single
protecting
1 000 000 00
or
its
equivalent
with
the
Contractor
omissions in the
negligence errors mistakes or
performed and furnished by the Contractor
5
necessary to
use
Other Required
complete
of aircraft
or
Insurance Coveraqe
the work such
watercraft
Red
use
Light
provide professional liability
insurance
in
a
minimum
combined
amount
of
limit of not
single
against claims of the City for
performance of services to be
a
Where unusual
operations
are
longshoremen and harbor workers exposures
No
of explosives and any high risk circumstances
as
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aircraft
watercraft
approval
of the
City
explosives shall be used without the
thereupon required additional
or
which may
express advance written
insurance coverages
All insurance coverages shall be kept in full force and effect by the Contractor
throughout the duration of this Agreement and for one 1 year after the termination of
this Agreement All insurance coverages shall be occurrence basis coverage policies
All insurance other than workers compensation and professional liability that must be
maintained by the Contractor shall specifically include the City as an additional insured
b
All insurance minimum coverages extend to any subcontractor and the Contractor shall
be responsible for all subcontractors
provide certificates of insurance to the City evidencing that
prior to performance of work under this Agreement
These certificates of insurance shall affirmatively show that the City is a named insured
under the policies set forth therein and shall become part of this Agreement Neither
approval by the City nor failure to disapprove the insurance furnished by a Contractor
shall relieve the Contractor of the Contractor s full responsibility for performance of any
obligation including the Contractor s indemnification of the City under this Agreement
If during the period which an insurance company is providing the insurance coverage
required by this Agreement an insurance company shall 1 lose its certificate of
authority or right to issue insurance in the State of Florida or 2 no longer complies
with
State law or 3 fails to maintain the requisite Best s rating and financial size
category the Contractor shall as soon as the Contractor has knowledge of any such
circumstance
immediately notify the City and immediately replace the insurance
coverage provided by the insurance company with a different insurance company
meeting the requirements of this Agreement Until such time as the Contractor has
replaced the unacceptable insurer with an insurer acceptable to the City the Contractor
shall be deemed to be in default of this Agreement
c
The Contractor shall
all such insurance is in effect
The insurance coverage shall contain a provision that requires that prior to any
changes in the coverage except increases in aggregate coverage thirty 30 days prior
notice will be given to the City by submission of a new certificate of insurance
d
e
The Contractor
shall
designated representative
obtained insurance of the
t
Nothing
construed
as
in this
the City
provide
type
waiver
Section 768 28 Florida Statutes
g
The
City shall
not be
other than the
of insurance
clearly
directly
to the
City s
indicate that the Contractor has
amount and classification
required by
as
or
be
in
amended from time to time
obligated
Contractor
any action
this Agreement
relating to this Agreement shall
of sovereign immunity beyond the limits set forth
Agreement
s
certificates
The certificates shall
or
liable under the terms of this
There
are
no
third
Agreement to any
beneficiaries to this
party
party
Agreement The Contractor hereby relases and discharges the City of and from all
liability to the Contractor and to anyone claiming by through or under the Contractor
by subrogation or otherwise on account of any loss or damage to the City
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h
The Contractor is
employee of the City
this Agreement
an
The
independent Contractor and not an agent representative
City shall have no liability except as specifically provided
All insurance shall be
i
insurance maintained
SECTION 33
by
the
primary
City
to and not contribute with
any insurance
or
or
in
self
EQUAL OPPORTUNITY EMPLOYMENT NON DISCRIMINATION
The Contractor agrees that it will not discriminate against any person employee or
applicant for employment for work under this Agreement because of race color
religion sex age national origin or disability and shall take affirmative steps to ensure
that applicants are employed and employees are treated during employment without
regard to race color religion sex age national origin or disability This provision shall
include but not be limited to the following
employment upgrading demotion or
transfer recruitment advertising layoff or termination rates of payor their forms or
compensation and selection for training including apprenticeship The Contractor
moreover shall comply with all the requirements as imposed by the Americans with
Disability Act the rules and regulations of the Federal government issued thereunder
and any and all requirements of Federal or State law related thereto and any and all
related Federal or State laws which prohibits discrimination by public and private entities
on the basis of disability and shall not otherwise discriminate on the grounds of race
color religion sex or national origin in the performance of work under this Agreement
or violate any laws pertaining to civil rights equal protection or discrimination
SECTION 34
a
The
accounts
ACCESS TO RECORDS AUDIT PUBLIC RECORDS
Contractor
shall
maintain
and other evidence
books
records
related to its
documents
time
and
costs
of services
directly
provision
performance
Agreement All time records and cost data shall be maintained in accordance
generally accepted accounting principles
or
under this
with
b
The
City
right to unilaterally terminate this Agreement if the
public access to all documents papers letters or other
materials subject to provisions of Chapter 119 Florida Statutes Article I Section 24 of
the Constitution of the State of Florida and other applicable law as amended from time
to time that would in any way be considered to be a public record in its broadest
definition and made or received by the Contractor in conjunction in any way with this
Agreement Without in any way limiting any provision of this Agreement included in the
records that are the subject of this Agreement are field memos computer code
computer text shop drawings and similar documents and data
reserves
the
Contractor refuses to allow
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The
may perform or
before
Contractor
or after final
c
City
cause
to have
payment
to
performed
support
final
audit of the records of the
payment issued hereunder
an
mutually agreeable to the Contractor and the
City subsequent
period in which services are provided or
performed Total compensation to the Contractor may be determined subsequent to an
audit as provided for in this Section and the total compensation so determined shall be
used to calculate final payment to the Contractor
Conduct of this audit shall not delay
as
Section
final payment
required by this
This audit shall be
performed
at
a
time
to the close of the final fiscal
In addition to the above if Federal State County or other entity funds are used
for any services under this Agreement the Comptroller General of the United States or
d
the Chief Financial Officer of the State of Florida Flagler County or any representative
shall have access to any books documents papers and records of the Contractor
which are directly pertinent to services provided or performed under this Agreement for
purposes of
audit examination
excerpts and transcriptions
In the event of any audit or inspection conducted reveals any overpayment by the
under the terms of the Agreement the Contractor shall refund such overpayment to
e
City
the
making
City within thirty
30
days
of notice
by
the
City of the request
for the refund
The Contractor agrees that if any litigation claim or audit is started before the
t
expiration of the record retention period established above the records shall be retained
until all litigation claims or audit findings involving the records have been resolved and
final action taken
City shall own all documents prepared by the Contractor pursuant
provisions of this Agreement
The
g
to the
The Contractor may not rely upon any general or generic confidentiality provision
of any contract to which it may be a party such as by way of example only computer
licenses and similar documents
h
The Contractor shall maintain and allow
i
Section for
a
performance
or
minimum
of five
to the records
required
under this
period
years after the completion of the provision or
services under this Agreement and date of final payment for said services
date of termination of this
SECTION 35
access
5
Agreement
COUNTERPARTS
Agreement may be executed in any number of counterparts each of which shall be
deemed an original but all of which taken together shall constitute the singular and the
This
same
document
SECTION 36
EXHIBITS
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Each exhibit referred to and attached to this
Agreement The exhibits
physically attached hereto
IN WITNESS
Agreement
on
the
Agreement
is
an
essential
part
and any amendments or revisions thereto even
shall be treated as if they are part of this Agreement
WHEREOF
respective
the
hereto have made
parties
dates under each
of this
if
not
and executed this
signature the City through its City
Commission
D
t
J
c
cl
I
200X and the Contractor signing by and
taking action on the R day of
through its duly authorized corporate officer having the full and complete authority to
execute
A TTE
same
r
AMERICAN
TRAFFIC
SOLUTIONS
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Authorize
Date
ATTEST
CITY OF
vm
6
tr
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By
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City Manager
Date
Approved by
I
I
Initials and date
Responsible Department Director
City Finance
Purchasing and Contracts Management
City Attorney
Red
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No 26
Division
Agreement
I
tJ
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APPROVED
ATTEST
CITY OF OCOEE FLORIDA
j
5 5
S Scott
Vandergrift Mayor
SEAL
FOR USE AND RELIANCE ONLY BY
APPROVED BY THE OCOEE CITY
THE CITY OF OCOEE FLORIDA
COMMISSION AT A MEETING HELD
APPROVED AS
ON
this
L day
FOLEY
By
of
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FORlVl
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2008
LARDNER LLP
lj Wi
City Attorney
2008
v
UNDER AGENDA
hEM NO
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EXHIBIT A
DESCRIPTION SCOPE OF SERVICES
I FIRST PHASE OF SERVICES
The Contractor shall
Uncompensated
comprehensive and fully integrated red light traffic
Contractor will deploy traffic safety
safety management
camera equipment at designated
arterial intersections covering one to three 3
approaches at each intersection At the selected approaches up to four 4 lanes will
require traffic safety camera enforcement including any turn lanes The Contractor s
services shall include all hardware software installation maintenance operation and
all back office processing of violations
provide for
services
All systems must be
non
a
The successful
intrusive to roadway
II SECOND PHASE OF SERVICES
or
transportation siqnal cabinetry
Compensated
Red Lh lht Camera System
cabinets
provide and install all equipment including but not limited to poles
All systems
and related operational equipment at the selected intersection s
must be
non
The Contractor shall
intrusive to roadway
or
transportation siqnal cabinetry
The Contractor shall disclose whether the
system
at any time
photographs
an
image
the driver of the vehicle
The Contractor shall
high quality digital camera system with an output in excess
The Contractor shall detail the image
pixels per image is required
quality specifications and provide real sets of violation image examples captured in
daytime nighttime during inclement weather and during times where sunlight is
pointing in the direction of the camera
of 3000
x
use a
2000
The Contractor shall
statistical
analysis
provide equipment that is capable of gathering traffic
The Contractor shall provide copies of sample reports
data for
The Contractor shall
operating conditions
provide equipment capable of deployment in a wide range of
e g
heavy traffic volumes adverse weather conditions road
surface configurations etc and across five 5 moving lanes of traffic
The Contractor shall
physical
provide equipment shall provide
phase signal
a
reliable
connection to the red
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No 27
Agreement
non
intrusive
non
I
I
I
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The Contractor shall
provide a system which must provide at least three 3 digital color
images
violating event The images shall be taken to ensure that the rear of
the vehicle and license plate are captured
The first image shall capture the vehicle
before the front wheels strike the legal violation limit line
The second image shall
capture the vehicle after the rear axle has crossed the crosswalk or legal limit line The
third image shall depict a close up of the license plate The contractor will use a video
still
of each
system that
will
capture
a
short duration video of the violation
The Contractor shall
violation at the
provide a
time of capture
The Contractor shall
camera
system which
shall be recorded in
provide data which
bar that is embedded with each
scene
may be used to prove the violation
following information for each violation
license
b
pertinent
to each
flexibly configured data
plate and stop bar detection images that
a
The data bar shall include
Unique violation
a
shall record data
identifier
at
incorporating
minimum
a
the
the
City
Location of violation
c
Date
MM
d
Time of the violation in
DDIYYYY
24 hour clock
including hours
minutes and seconds
Elapsed time between images
e
f Direction of travel
g Traffic signal phase
h
Time into the red
phase displayed
in thousandths of
a
second
g Duration of the prior amber
h Vehicle lane of travel
i
Camera ID and
j Frame sequence
The Contractor shall
transmitted to the
of license
plate
how the
explain
processing
The Contractor shall
explain
phase
number
image
and
violation
data
IS
secured
and
center
how the
proposed system
can
compensate
for the effects
how the
proposed system
can
compensate for
covers
The Contractor shall
of reflective material
explain
on
license
the effects
plates
The Contractor shall
provide a system which includes an ancillary video system as
information
to the violation provided by the still images
The video must be
supporting
full motion at the rate of thirty 30 frames per second or greater and allow aperture
adjustment
The Contractor shall
ensure
Red
that each
Light
imaging unit s operation
Camera Two Phase Services
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Agreement
shall be
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controlled and
fully
automatic
The Contractor shall include
activation and maintenance
violation
a
date and time of
a
debugged
substantiate
The Contractor shall
are
and date
a
or
remote
that allows
a
error
self test
set up
messages record
on
malfunction to be
a
easily
that records event
system
a camera
or
concurrent violations
specific evidence to
occurring during any
24 hours
dayn days
a
a
synchronized
to
a
system which includes component operations
single standard independent external and verifiable time
a
camera
source
can
be used
limitations of each
light
system
camera
provide a system which shall provide
monitoring and viewing capabilities
use more
will not be considered
Red
site
on
intersection
The Contractor must
which
of
line
on
The Contractor shall include
which
perform
communicate
simultaneous and
multiple
signal phase
week live
capable
being
testing
system shutdown in the event of a malfunction
The Contractor shall include
red
that shall
system
camera
recorded for
The Contractor shall include
identified and
that shall be
support
The Contractor shall include
simulate
system
a camera
camera
if
than
one
1
vehicle detection method
The Contractor must
ground loops
explain the vehicle detection methods
by the system including
more
than
one
enclosures must be
1
in
but not limited to
the
benefits and
is offered
tamper proof
and vandal
proof
Red
light camera enclosures must be designed in such a fashion that maintenance and
other operations can be accomplished easily and quickly without creating a public safety
hazard The Contractor shall explain typical maintenance procedures
The Contractor shall state installation and construction times for
The
system
shall be able to
simultaneously
The Contractor shall monitor
of detecting and
recording
a
generic
monitor traffic in up to five 5
straight through
evidence of left and
violations
right
The
system
intersection
lanes
shall
be
capable
regardless of vehicle
explain how the system
turn violations
speed please reference program The Contractor
captures illegal right turn on red movements
must
Violation Processing
There shall be
no
requirement
Red
to install Contractor
Light
processing software
Camera Two Phase Services
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Agreement
on
City
owned
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or
maintained information
The violation
technology
or
computing systems
shall allow the
processing system
City
a
detailed view into all of the
information related to the program
processing system for the purpose of preprocessing
evidence police authorization notice printing payments tracking and generation of
court evidence packages shall be Internet enabled and shall be available 24 hours a
dayl7 days a week for authorized users
All
access
The violation
to the
violation
processing system shall provide the following functions
a
Web enabled
b
Secure
user
d
by
Easy
log
camera
system
g
h
operation
access
presentation of images and data captured
onto review PC
s
review of violation evidence
against regulations
Ability
play full motion video and view
multiple scene and plate images
Ability to view each image as a full screen enlargement with a
single click
Ability to view all original images
Ability to crop a license plate image area from the optimal license
plate image in the multiple image license plate set to establish
vehicle 10 and subsequently print the cropped plate area image to
to both
e
f
and
in and
Automatic
c
the
access
the notice
i
Ability
to
accept
or
reject
violation sets and
record
rejection
reasons
j
k
generate printed warning letters during the first 30 days of
the program at the City s discretion
Ability to automatically generate printed violation notices
I
Ability to store and archive all processed violation
Ability
to
evidence into
secured database
dayl7 days a week ability to access any stored violation
image
system database subject to agreed archive rules
24
hours a day 7 days a week ability to request and immediately
n
view
Court Evidence Package image sequences displayed as
video or as
individual high resolution still shots or send images to
print locally
0
24 hours a day 7 days week ability to immediately request view
and print both standard and user defined reports
Secured Access Control and automatically generated electronic
p
m
24 hours
a
from the
a
s
audit trails
q
r
Encryption and decryption management
The system shall be capable of preparing and mailing one notice
letter for all chargeable violations to vehicle owners issuing and
Red
Light
Camera Two Phase Services
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mailing
a
second notice for any violations that remain unpaid as
All violations for which registered owner data is
their due date
available shall be issued within
seven
7
business
days
after
police
review of the incident
Statistical Analysis and ReportinQ Systems
processing system shall produce statistical analysis of camera location
operations will be preferred including at minimum
a
Hours of use per camera by operational site
b
Results achieved by each camera by site
c
Offenses recorded by site and
d
Traffic counts by lane date and hour
The
The
24
processing system shall be capable
hours a dayl7 days a week including
immediately generating operations reports
a
Number of violations recorded
b
Count of violations where notices not
Notices prepared and mailed and
c
canceled
The
of
processing system shall
a
Camera
b
Number
and
prepared
d
Status of notices
reissued and so forth
issued
outstanding
also
supply reports of
equipment hours of service and hours lost and
and
description of camera or other equipment
malfunctions
The
processing system
shall
provide
The
a
follows
b
Real time violation
individual lane
II
time of
provide
number
The total
day
a
of week
monthly report
of
events
rate
and
day
by
that includes the
detected
by lane
following
notices violations
issued
and
location and in total
number of violations that
vehicle traffic
images by
graphs and chart by
I
prosecutable image
b
as
Real time traffic volume and vehicle counts and
III
The contractor shall
violation and traffic statistics
a
occurred and
and the total number of
percentage
of total
of
rejected
percentage
reason
ImaQe Transmission Security and Data StoraQe
The
provide for image and data security that shall prevent unauthorized
from accessing the camera images and databases and tampering with images
system
persons
shall
Red
Light
Camera Two Phase Services
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The Contractor shall store all enforceable
one
hundred and
eighty
The Contractor shall
package
180
days
provide
after
images produced by
final disposition
evidence
an
package
cameras
for
no
less than
for any contested violations
The
shall consist of
a
All issued and
b
A violation
c
A
d
A
disputed notices
history report
correspondence file and
payment history
The Contractor shall maintain
and court functions
The Contractor shall
theory operation
provide
a
a
and functional
to the
party
proper chain of evidence that meets the needs of
qualified expert witness who is knowledgeable
capabilities of the red light camera unit
on
City
the
Maintenance Support and Trainin
All maintenance of
the
video
camera
responsibility of the
repair
hours of detection
the Contractor
or
replace
The Contractor shall describe the
any
or
inoperable equipment within seventy
by the City
proposed
during
maintenance and
by
the
two
72
inspection visit
provide ongoing training support
The Contractor shall
shall be
standard process for how often the cameras
inspection and shall explain what occurs
systems
The Contractor shall
equipment
notification
will be visited for maintenance and
a
and related
Contractor
The Contractor shall
by
computer
sensors
provide
hands
on
training
as
as
needed
necessary to
by the City
personnel
as
required
City
The Contractor shall
provide training
materials
Operations and Public Awareness
The Contractor shall describe the
a
successful
project
for the
Project Management Approach and how it will
City
Red
Light
Camera Two Phase Services
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Agreement
ensure
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The Contractor shall
provide assistance
with
the
content and
education program and associated materials to be funded
the
by
design
City
of
public
a
The Contractor shall support the
systems
forums
at
as
public
or
necessary
Contractor shall
to the
seminars
City by training staff on how to present the Contractor s
presentations The Contractor will provide staff for public
provide
project
a
manager for the
project
as
the
single point of
contact
City
Contractor shall
approval by
the
provide intersection design and installation plans for review
City Traffic Engineering Department and Permitting Department
Contractor shall install and maintain installed
and
cameras
responsible for loading optimizing and license plate data entry
processing of images for review final review to be processed by authorized City
personnel
Contractor shall be
Contractor will prepare one notice letter for all chargeable violations and will mail notice
letters to vehicle owners The Contractor shall include a return envelope for payments
Contractor will prepare a second and a final notice will be issued for any violations that
remain unpaid after their due date The Contractor shall include a return envelope for
payments
Violations for which
required
registered
of days of the
number
Contractor may be asked to
paper
envelopes postage
Notices shall include
Contractor shall
one
provide
Contractor shall
provide
owner
legally
violation event date
provide all required notice processing supplies including
printing supplies
toner and any and all notice
set of
images
a means
a
data is available shall be issued within the
and
a
license
for the fines to be
means
plate image
paid
for the fines to be
on
line
by credit
or
debit card
paid by phone using
a
credit
or
debit card
Contractor
delinquent
shall
provide for
a
third
party collection
service
accounts
Red
Light
Camera Two Phase Services
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Agreement
for the collection
of
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EXHIBIT B
PRICING AND RATE SCHEDULE
I FIRST PHASE OF SERVICES
No
compensation
Uncompensated
is due from the
City to the Contractor
II SECOND PHASE OF SERVICES
Compensated
Fees and Scope of Work for Pricing
Red
Light
Fee Per Paid Citation
Camera Two Phase Services
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No 34
Agreement
40 00
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EXHIBIT C
CERTIFCATE OF LIABILITY INSURANCE
Red
Light
Camera Two Phase Services
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American
I
January
7 2009
VIA FEDERAL EXPRESS
Mr Robert Frank
City Manager
City of Ocoee
The
Florida
150 North Lakeshore Drive
Ocoee Florida 34761
RE
Two Phase Agteement Pertaining to Red Light Running Camera Enforcement
System between the City of Ocoee Florida and America TraffIC Solutions Inc
dated December 2 2009
Dear Mr Frank
Enclosed for your records is the original
above referenced Two Phase Agreement
executed
fully
signed by Adam Tuton Chief Operating Officer on behalf of ATS
Please let
Very truly
me
know if you have any questions
or
if I may be of further assistance
yours
American Traffic Solutions Inc
t It
1
J
J
J
J
III
If
11
I
Linda Welsch
Executive
Legal
Assistant to
Adam Tuton Executive Vice President COO
Enclosure
nw
1
www
Scottsdale
atsolcom
Arizona 85260
www
redliahtcamera
TEl
com
443
480
www
7000
FAX
olateoass
III
lq
U
JAN I 2 lOOl
7681 E Gray Road
1
480 607 0901
com
Case 2:14-cv-14429-XXXX Document 1-1 Entered on FLSD Docket 10/27/2014 Page 83 of
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CITY OF OCOEE SERVICES TWO PHASE AGREEMENT WITH
AMERICAN TRAFFIC SOLUTIONS LLC PERTAINING TO RED LIGHT
RUNNING CAMERA ENFORCEMENT SYSTEM
k day of
THIS AGREEMENT made and entered into this
and between the
f
a
2008
by
City of Ocoee Florida
City Hall
150 N Lakeshore Dr
Ocoee Florida 34761
a
municipal corporation of the
as the City
and
State of Florida
holding
tax
exempt
status
hereinafter
referred to
American Traffic Solutions LLC
7681 E Gray Road
Scottsdale Arizona 85260
corporation authorized
to do business in the State of Florida
hereinafter referred to
as
the Contractor
The
City
and the Contractor
are
collectively referred
to herein
as
the
parties
WITNESSETH
WHEREAS the City desires to retain the Contractor for the services identified in
the Palm Coast FL Request For Proposal RFP and description of services outlined in
Exhibit A which outlines two phases of the work the terms services and work
being
synonymous in this
WHEREAS
Agreement
on
occasion
and
the
City desires to employ the Contractor for the performance to
support
public safety activities programs and projects of the City upon the terms
and conditions hereinafter set forth and the Contractor is desirous of
performing and
such
services
said
terms
and
providing
conditions and
upon
the
WHEREAS the Contractor hereby warrants and represents to the
City that it is
competent and otherwise able to provide professional and high quality services to the
City and
WHEREAS all submissions submitted by the Contractor in the documents
submitted to the City by the Contractor in order to induce or
encourage the City to retain
the services of the Contractor are hereby incorporated to the extent not inconsistent
with the terms and conditions as set forth herein
NOW THEREFORE
Red
in consideration of the mutual covenants and
Light
Camera Two Phase Services
Page
No 1
Agreement
agreements
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hereinafter contained and
sufficiency of
hereto
as
which is
other good and valuable consideration the receipt and
hereby acknowledged it is agreed by and between the parties
follows
Table Of Contents
SECTION 1
DEFINITIONS
SECTION 2
CAPTIONS
EXTENT OF AGREEMENT INTEGRATION
NO GENERAL CITY OBLIGATION
SECTION 3
SECTION 4
SECTION 5
AMENDMENT
SECTION 6
CONTRACTOR UNDERSTANDING OF SERVICES REQUIRED
GENERAL PROVISIONS
SECTION 7
CODES AND DESIGN
SECTION 8
SUBCONTRACTORS
SECTION 9
ASSiGNABILITY
SECTION 10
SECTION 11
SECTION 12
SECTION 13
STANDARDS
COMMENCEMENT IMPLEMENTATION SCHEDULE OF AGREEMENT
LENGTH OF
AGREEMENT
DESCRIPTION OF SERVICES
SECTION 14
CONTRACTOR RESPONSIBILITIES
CITY RIGHTS AND RESPONSIBILITIES
SECTION 15
WAiVER
SECTION 16
SECTION 17
FORCE MAJ EU RE
STANDARDS OF CONDUCT
SECTION 18
NOTICES
SECTION 19
DESIGNATED REPRESENTATIVES
COMPENSATION
SECTION 20
SECTION 21
SECTION 22
SECTION 23
SECTION 24
SECTION 25
SECTION 26
SECTION 27
SECTION 28
SECTION 29
SECTION 30
SECTION 31
SECTION 32
INVOICE
PROCESS
TERMINATION OF AGREEMENT
TERMINATION BY CONTRACTOR FOR CAUSE
TERMINATION BY THE CITY WITHOUT CAUSE
PAYMENT IN THE EVENT OF TERMINATION
ACTION FOLLOWING TERMINATION
SUSPENSiON
ALTERNATIVE DISPUTE RESOLUTION ADR
SEVERABILITY
CONTROLLING LAWSNENUE INTERPRETATION
INDEMNITY
SECTION 33
SECTION 34
SECTION 35
INSURANCE
EQUAL OPPORTUNITY EMPLOYMENT NON DISCRIMINATION
ACCESS TO RECORDS AUDIT PUBLIC RECORDS
COUNTERPARTS
SECTION 36
EXHIBITS
Red
light
Camera Two Phase Services
Page
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SECTION 1
DEFINITIONS
Ad valorem
In
to the estimated value of the
proportion
goods taxed
This document
between the City and Contractor
Each exhibit as
identified below even if not physically attached shall be treated as if they were
part of
this Agreement The effective date of this Agreement is the date City Commission of
Agreement
the
City approves the selection of the Contractor
Billing Period
period of time between project commencement to the close of the
current period inclusive or from the close of the previous billing period exclusive to
the close of the current period usually concurrent with the month In no case shall this
period be less than one 1 calendar month except for the final billing period
Bona Fide
City
The
exempt
The
Made
City
or
carried out in
of Ocoee
a
good faith sincere
municipal corporation of
the State of Florida
holding
tax
status
Contractor
To include all
principals of the Contractor including but not limited to full
part time employees professional or otherwise and all other agents employed by
or for Contractor to perform its obligations hereunder
and
Description of Services
Shall be written in paragraph form resonably describing
those services work the City can expect the Contractor to provide The description shall
be written in such a manner that the
type of service is clearly provided but broad
enough that all services reasonably expected of the Contractor including services
provided by partners subcontractors and other supporting professionals can be
provided to the City
Designated Representative
provision
of services
A person who administers reviews and coordinates the
This definition applies equally to the City and to the Contractor
Exhibit A
Description
of Services
Exhibit B
Pricing
Exhibit C
Certificate of
and Rate Schedule
Liability Insurance
Force Maieure Force Majeure shall include but not be limited to hostility revolution
civil commotion terrorism strike epidemic fire flood wind earthquake
explosion any
law proclamation regulation or ordinance or other act of
government or any act of
God or any cause whether of the same or different nature existing or future
that the
cause
provided
Agreement is beyond the control and
negligence of the party seeking relief under this Agreement
whether
without the fault
or
or
not enumerated in this
Red
Light
Camera Two Phase Services
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Law
type
Said
or
phrase
shall include statutes
nature enacted
or
adopted by
a
codes
rules and
governmental entity
regulations of whatsoever
competent jurisdiction
of
Of the same matter on the same subject Provisions in pari materia
Pari Materia
must be construed with reference to each other together when related to the same
matter or subject The provisions of a contract agreement are to be construed together
with no isolated construction of a particular provision such that it would defeat the
overall intent of the contract agreement
Submittals
Any item
for
inclusion
either
City
required by
as
agreement that
agreement or not
this
part of this
the Contractor must
provide the
light enforcement system using cameras for the benefit of
the public safety and interests said services being provided in accordance with the
controlling provisions of law The services shall be provided in two 2 phases with the
first phase being an evaluative and analytical phase which is non compensated and the
second phase if the evaluation and analysis results in the conclusion that services
should proceed forward the second phase shall be an operational and compensated
Type of Services
red
A red
light enforcement system
CAPTIONS
SECTION 2
headings and captions of this Agreement are for convenience
reference only and in no way define limit describe the scope or intent of
Agreement or any part thereof or in any way affect this Agreement or construe
provision of this Agreement
The
Section
SECTION 3
this
any
AMENDMENT
lANGTREGERMAETINOT
EXTENT OF
and
Agreement together with the exhibits constitute the entire integrated
Agreement between the City and the Contractor and supersedes all prior written or oral
a
This
understandings
provisions
in
connection
therewith
This Agreement
and
all the
terms
and
including without limitation the exhibits attached constitute
agreement between the parties hereto to the date hereof and
contained herein
the full and
complete
supersedes and controls over any and all prior agreements understandings
representations correspondence and statements whether written or oral
supplemented or modified by a formal
written amendment and the Contractor may not rely upon non written assignments of
work or services that are not consistent with the provisions of this Agreement
b
This
Agreement
may
only
be amended
Any alterations amendments deletions or waivers of the provisions of this
Agreement shall be valid only when expressed in writing and duly signed by the parties
c
Red
Light
Camera Two Phase Services
Page
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Agreement
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d
The exhibits made part of this
Exhibit A
are as
follows
Description of Services
Pricing and Rate Schedule
Certificate of Liability Insurance
Exhibit B
Exhibit C
This is
Agreement
Agreement relating
of services to the City in two 2
phases by the Contractor such that the Contractor shall not proceed to the second
compensated phase absent a review and analysis by the City of the results of the first
e
to the
provision
compensated phase of services
non
SECTION 4
In
a
a
an
no
NO GENERAL CITY OBLIGATION
event shall any
general obligation
or
obligation of the City under this Agreement be or constitute
indebtedness of the City a pledge of the ad valorem
taxing
power of the City or a general obligation or indebtedness of the City within the meaning
of the Constitution of the State of Florida or any other applicable laws but shall be
payable solely from legally available
b
taxing
revenues
The Contractor shall not have the
power of the City
SECTION 5
right
and funds
to
compel the exercise of the
ad valorem
CONTRACTOR UNDERSTANDING OF SERVICES REQUIRED
a
Execution of this Agreement by the Contractor is a representation that the
Contractor is familiar with local conditions and with the services to be
performed The
Contractor shall make no claim for additional time or money based
upon its failure to
this
with
The
Contractor
the
comply
has informed
Agreement
City and hereby
represents to the City that it has extensive experience in performing and providing the
services described in this Agreement and that it is well acquainted with the
components
that are properly and customarily included within such projects and the
of
requirements
regulations or orders of any public authority or licensing entity
having jurisdiction over City projects
Execution of this Agreement shall be an
affirmative and irrefutable representation by the Contractor to the
City that the
Contractor is fully familiar with any and all requisite work conditions of the provisions of
the services and that no work conditions will be
unanticipated
laws
b
this
ordinances
rules
The recitals herein
are
true and correct and form and constitute
a
material part of
Agreement upon which the parties have relied
c
in any
or as
It is
agreed that nothing herein contained is intended or should be construed as
creating or establishing a relationship of co partners between the parties
constituting the Contractor including but not limited to its officers employees
manner
Red
Light
Camera Two Phase Services
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5
Agreement
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and
agents
manner
any
independent
the
agent representative
or
employee
The Contractor
whatsoever
Contractor with
respect
of the
is to be and
to all services
for any purpose or in
shall remain forever an
City
performed
under this
Agreement
Persons employed by the Contractor in the provision and performance of the
d
services and functions pursuant to this Agreement shall have no claim to pension
workers compensation unemployment compensation civil service or other employee
rights
law
privileges granted
by the City
or
or
SECTION 6
to the
City s
officers and
employees
either
by operation
of
GENERAL PROVISIONS
represents to the other that it has undertaken all necessary
actions to execute this Agreement and that it has the legal authority to enter into this
Agreement and to undertake all obligations imposed on it The person s executing this
Agreement for the Contractor certifies certify that he she they is are authorized to bind
the Contractor fully to the terms of this Agreement and so execute this Agreement under
penalty of perjury
a
Each
party
hereto
red light
Agreement is for services pertaining to a governmental
enforcement system using cameras for the benefit of the public safety and interests said
services being provided in accordance with the controlling provisions of law The
services shall be provided in two 2 phases with the first phase being an evaluative and
analytical phase which is non compensated and the second phase if the evaluation and
analysis results in the conclusion that services should proceed forward the second
phase shall be an operational and compensated red light enforcement system Related
services as needed by the City for the City s operations as set forth herein and as
otherwise directed by the City to include all labor and materials that may be required
shall be provided by the Contractor to the City in accordance with the hourly rate
schedule set forth herein At no time will the Contractor have or use governmental law
enforcement or public safety powers and all services provided by the Contractor to the
City shall be in aid of the City in the City s exercise of such powers
b
c
This
the services for
provide
contractor shall
d
acknowledges that the City may retain other contractors to
City projects The City reserves the right to select which
provide services for City projects
The Contractor
The Contractor agrees to
provide
and
ensure
coordination
between
servIce
providers
e
Time is of the
essence
of the lawful
performance
of the duties and
obligations
contained in this Agreement The parties covenant and agree that they shall diligently
and expeditiously pursue their respective obligations set forth in this Agreement
specified approach installed and activated in accordance with
implementation plan to be mutually agreed to by the Contractor and City Contractor
Contractor will have each
an
will
use
reasonalbe commerical efforts to install the system in accordance with the
Red
Light
Camera Two Phase Services
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schedule set forth in the
implementation plan
that will
be formalized
upon
project
commencement
Contractor shall maintain an adequate and competent staff or professionally
t
qualified persons throughout the performance of this Agreement to ensure acceptable
and timely completion of the services Should the City determine that a particular staff
member or particular staff members cannot adequately provide the services due to the
as
City or that the use of such Contractor employee s is not in the public interest
determined by action of the City Manager of the City the Contractor shall immediately
to cease work under this Agreement and such action shall not
cause such employee s
be deemed a suspension or termination of this Agreement
signing and sealing plans reports and documents prepared by
the
the Contractor shall be governed by the laws and regulations of Orange County
City and Federal and State regulatory agencies
g
Requirements
for
specifically provided for
herein shall be honored by the City Should the Contractor proceed to accomplish work
without written authorization by the City such work shall not be deemed compensable
work It is the responsibility of the Contractor to ensure that the Contractor takes
direction from the appropriate person with requisite authority of the City
h
No claim for services furnished
SECTION 7
by the Contractor
not
CODES AND DESIGN STANDARDS
provided or performed by the Contractor shall at a
minimum be in conformance with commonly accepted industry and professional codes
and standards standards of the City and the laws of any Federal State or local
regulatory agencies
a
b
All the services
to be
The Contractor shall be
applicable
to the services to be
SECTION 8
responsible for keeping apprised
performed under this Agreement
of any
changing
laws
SUBCONTRACTORS
the City for written
Any Contractor proposed subcontractor shall be submitted to
information
subcontract
Subcontractor
Contractor
into
a
entering
approval prior to the
address
local
business
shall include but not be limited to State registrations business
tax proof of payment and insurance certifications
a
provision of services and work product of any
City approved subcontractor and remain fully responsible for such services and work
under the terms of this Agreement The Contractor is prohibited from executing any
document that would purport to assign the Contractor s duties to the City to a
b
The Contractor shall coordinate the
subcontractor
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writing and shall fully incorporate the terms and
conditions of this Agreement and require the subcontractors to assume performance of
the Contractor duties commensurately with the Contractor s duties to the City under this
Agreement it being understood that nothing herein shall in any way relieve the
Contractor from any of its duties under this Agreement The Contractor shall provide
business day of the
the City with executed copies of all subcontracts within one 1
All subcontracts shall be in
c
execution
SECTION 9
ASSIGNABILITY
The Contractor shall not sublet assign or transfer any interest in this Agreement or
claims for the money due or to become due out of this Agreement to a bank trust
When approved by
or other financial institution without written City approval
company
be furnished promptly
City written notice of such assignment or transfer shall
and
assigns shall be bound
City and in such cases the Contractor s successors
City by the terms and conditions of this Agreement
the
SECTION
10
COMMENCEMENT
I
IMPLEMENTATION
SCHEDULE
to the
to the
OF
AGREEMENT
The Contractor shall commence the provision of services for the first phase of
services as described in this Agreement immediately upon execution of this Agreement
and the issuance of a written notice to proceed by the City The Contractor shall within
a
five
5
of the
with written verification
days of receipt of the notice to proceed provide the City
receipt and state a plan of action relative to the commencement of the work
provision of services for the second phase of
services as described in this Agreement immediately upon the issuance of a written
notice to proceed by the City The Contractor shall within five 5 days of receipt of the
notice to proceed provide the City with written verification of the receipt and state a plan
b
The Contractor shall
commence
the
of action relative to the commencement of the work
City agree to make every effort to adhere to the
However if the Contractor is materially and
schedules established by the City
substantially delayed at any time in the provision of services by any act or omission of
the City or of any employee of the City or by any other contractor employed by the
City or by changes ordered by the City or by strikes lock outs fire unusual delay in
transportation unavoidable casualties or any other causes of force majeure not
resulting from the inactions or actions of the Contractor and beyond the Contractor s
control which would not reasonably be expected to occur in connection with or during
performance or provision of the services or by delay authorized by the City pending a
decision or by any cause which the City shall decide to justify the delay the time of
completion shall be extended for such reasonable time as the City may decide in its
c
The Contractor and
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It is further expressly understood and agreed that the
sole and absolute discretion
Contractor shall not be entitled to any damages or compensation or be reimbursed for
account of any delay
any other cause whatsoever
any losses
or
on
SECTION 11
delays resulting
execution of this
City by
means
of
a
notice to
on
the date of full
begin upon written notification
to
proceed by the
phases of the provision
d
the
3
years
proceed
Contractor services shall be
c
causes
commencing
Agreement is three
Agreement by the parties
The Contractor services shall
b
from any of the aforesaid
LENGTH OF AGREEMENT
The term of this
a
by
or
provided
to the
City solely
as
directed in the two
of services
Subsequent to the conclusion of the initial term this Agreement may
parties for maximum total of an additional five 5 years
be renewed
expert witness as needed in judicial
proceedings relating to the services that are the subject of this Agreement at a rate of
compensation as set forth in the Notice To Proceed for the second phase of the
e
The
Contractor
shall
as
serve
an
services set forth herein
t
All
survive
provisions
the expiration
SECTION 12
of this
or
Agreement
termination of this
which
contain
continuing obligations
shall
Agreement
DESCRIPTION OF SERVICES
The Contractor agrees to perform diverse services relating to the full array of
needs of the City pertaining to a red light enforcement system using cameras to
advance the public interest and public safety in accordance with the controlling
a
provisions
of law
The
Description
of Services is further and
more
specifically
outlined
in Exhibit A
b
The Contractor shall
diligently
and in
the services outlined herein
hereto the duties of the Contractor shall not
and
provide
services
pertaining
to this
professional
and
timely manner perform
Unless modified in writing by the parties
be construed to exceed the provision of the
a
Agreement
City and Contractor agree that there may be certain additional services
required to be performed by the Contractor during the performance of this Agreement
Such
that cannot be defined sufficiently at the time of execution of this Agreement
the
written
authorization
of
work
services shall be authorized in writing by
City The
may contain addititonal instructions or provide specifications upon certain aspects of
this Agreement pertinent to the work to be undertaken Such supplemental instructions
c
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or
shall not be construed
provisions
SECTION 13
a
as a
modification of this
Agreement
CONTRACTOR RESPONSIBILITIES
The Contractor shall be
responsible
for the
professional quality accepted
standards technical accuracy and the coordination of all services furnished by the
Contractor under this Agreement as well as the conduct of its staff personnel
employees and agents The Contractor shall work closely with the City on all aspects
of the provision of the services With respect to services the Contractor shall be
responsible for the professional quality technical accuracy competence methodology
accuracy and the coordination of all of the following which are listed for illustration
purposes and not as a limitation documents analysis reports data plans plats
maps surveys specifications and any and all other services of whatever type or nature
furnished by the Contractor under this Agreement The Contractor shall without
additional compensation correct or revise any errors or deficiencies in its plans
analysis data reports designs drawings specifications and any and all other services
of whatever type or nature
b
The
Contractor
shall
furnish
administer review and coordinate the
a
designated
Contractor
provision
of services under this
representative
Agreement
to
City review approval or acceptance of nor payment for any of the
services required under this Agreement or failure to insist upon strict compliance by the
Contractor with regard to any provision of this Agreement shall be construed to operate
release discharge modification or change of any rights of the City or of
as a waiver
of
action arising out of the performance of this Agreement to the benefit of
any cause
the City The Contractor shall be and shall remain liable to the City in accordance with
applicable law for all damages to the City caused by the Contractor s negligent or
improper performance or failure to perform any of the services furnished under this
Agreement
c
d
Neither
In the event the Contractor fails to
Agreement
the
City
shall
notify
the
comply with the terms and conditions of this
Contractor s designated representative in writing so
that the Contractor may take remedial action
e
Time is of the
essence
in
Contractor under the terms of this
SECTION 14
a
The
cost to the
City
the
performance
Agreement
of all
services
provided by
the
CITY RIGHTS AND RESPONSIBILITIES
shall
reasonably cooperate with the Contractor
Contractor
as
in
a
timely fashion
at
no
set forth in this Section
b
The City shall furnish a City designated representative to administer review and
coordinate the provision of services under this Agreement
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City shall make City personnel reaonably available where in the City s
opinion they are required and necessary to assist the Contractor The availability and
necessity of said personnel to assist the Contractor shall be determined solely at the
discretion of the City
c
The
Upon the written request of the Contractor the City shall furnish the Contractor
with existing data records maps plans specifications reports fiscal data and other
information that is available in the City s files that is necessary or useful to the
Contractor for the performance of the work All such documents conveyed by the City
shall be and remain the property of the City and shall be returned to the City upon
completion of the services to be performed by the Contractor
d
City shall upon request of the Contractor reasonably examine all Contractor
reports sketches drawing estimates proposals and other documents presented to the
City and indicate the City s approval or disapproval within a reasonable time so as not to
materially delay the provisions of the services of the Contractor provided however that
the City s examination s shall not in any way relieve the Contractor of its duties and
obligations under the provisions of this Agreement
e
The
request of the Contractor unless the procurement
documents otherwise provide
provide access to and make provisions for the
Contractor to enter upon public and private lands as required for the Contractor within a
reasonable time to perform work as necessary to complete services
t
The
City shall
upon
relevant
information
and
provide
City shall transmit instructions
decisions
to
and
and
with
and all
definition
of
any
respect
interpretation
City policies
this
and
matters
to
the
services
covered
materials
other
pertinent
by
Agreement
not
in
however
that
the
s
examination
s
shall
relieve the
any
City
way
provided
Contractor of its duties and obligations under the provisions of this Agreement
g
The
City
representative
h
The
performed
defect
or
i
The
shall
give
knows
under this
change
rights
written notice to the Contractor whenever the
of
a
that
development
Agreement timing
affects
of the Contractor
the
s
services
provision
City designated
provided and
of services
or a
necessary in the services of the Contractor
and remedies of the
City provided
for under this
Agreement
are
in
addition to any other
of recovery by any
rights and remedies provided by law the City may assert its right
appropriate means including but not limited to set off suit
withholding recoupment or counterclaim either during or after performance of this
Agreement
any and all legal costs including but not
limited to attorney fees and other legal costs that it may incur in any legal actions it may
pursue in the enforcement of the terms and conditions of this Agreement or the
0
The
City shall
responsibilities of the
from this Agreement
be entitled to
recover
Contractor in
carrying
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City to insist in any instance upon the strict performance of any
provision of this Agreement or to exercise any right or privilege granted to the City
hereunder shall not constitute or be construed as a waiver of any such provision or right
k
The failure of the
and the
shall continue in force
same
payment for any of the
rights under this
required
operate
of
this Agreement
Agreement nor or any cause of action arising out of the performance
and the Contractor shall be and always remain liable to the City in accordance with
applicable law for any and all damages to the City caused by the Contractor s negligent
under this
or wrongful provision or performance of any of the services furnished
Agreement
I
Neither the
City s review approval
or
acceptance of
shall be construed to
services
as
a
nor
waiver of any
survey data plans and reports or any
other form of written instrument or document that may result from the Contractor s
services or have been created during the course of the Contractor s performance under
m
this
All deliverable
Agreement
analysis reference
shall become the
property
data
of the
City
after final
payment
is made to the
Contractor
City fails to comply with the terms and conditions of this
Agreement the Contractor shall notify the City s designated representative in writing in
order that the City may take remedial action
n
In
the event the
SECTION 15
WAIVER
The failure of the
City to insist
provision of this Agreement or
hereunder
right and
shall not constitute
the
same
SECTION 16
Neither
party
SECTION 17
or
be construed
as
a
waiver of any such
provision
or
shall continue in force
FORCE MAJEURE
shall be considered in default in
to the extent that
prevented by
in any instance upon the strict performance of any
to exercise any right or privilege granted to the City
force
performance
of such
performance of its obligations hereunder
obligations or any of them is delayed or
majeure
STANDARDS OF CONDUCT
The Contractor warrants that it has not
employed or retained any company or
person other than a bona fide employee working solely for the Contractor to solicit or
secure this Agreement and that the Contractor has not paid or agreed to pay any
person company corporation individual or firm other than a bona bide employee
working solely for the Contractor any fee commission percentage gift or any other
consideration contingent upon or resulting from the award of making this Agreement
a
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City determines that any employee or representative of the Contractor is
not satisfactorily performing his or her assigned duties or is demonstrating improper
conduct pursuant to any assignment or work performed under this Agreement the City
shall so notify the Contractor in writing The Contractor shall immediately remove such
employee or representative of the Contractor from such assignment
b
If the
c
By execution of
this
the
Agreement
hereby certifies
Agreement including
Contractor
that
no
but not
undisclosed conflict of interest exists with respect to the
other
clients
customers
or
due
of
to representation
limited to any conflicts that may be
vendees
other contractual
relationships of
that the Contractor may
interest that arises during the term of this
writing
to the
City
or any interest in property
certifies that any conflict of
shall be immediately disclosed in
the Contractor
The Contractor further
have
Agreement
Violation of this Section shall be considered
immediate termination of this
as
justification
for
Agreement
The Contractor shall not engage in any action that would create a conflict of
interest for any City employee or other person during the course of performance of or
otherwise related to this Agreement or which would violate or cause others to violate
d
provisions of Part III Chapter
relating to ethics in government
the
112
Florida Statutes
as
amended from time to time
City shall not intentionally award publicly funded contracts to any Contractor
who knowingly employs unauthorized alien workers constituting a violation of the
274A e of the
employment provisions contained in 8 U S C Section 1324a e Section
Immigration and Nationality Act lNA as the INA may be amended from time to time
The City shall consider the employment by the Contractor of unauthorized aliens a
Such violation by the Contractor of the
violation of Section 274A e of the INA
274A
in
e
of the INA is a per se breach of
Section
employment provisions contained
this Agreement and shall be grounds for immediate termination of this Agreement by the
City
e
t
The
The Contractor shall
discrimination
provisions
comply with and
of this
adhere to the
equal employment
and
non
Agreement
If the Contractor or an affiliate is placed on a discriminatory vendor list such
g
The Contractor shall certify upon request
action may result in termination by the City
Section 287 134 Florida Statutes or
that
it
is
to
submit
a
bid
under
qualified
by the City
its
successor
provision
s
If the Contractor
i
The Contractor
maintains
a
drug
free
or an
affiliate is
placed
the convicted vendor list
following a
conviction for a public entity crime such action may result in termination by the City
The Contractor shall certify upon request by the City that is qualified to submit a bid
under Section 287 133 Florida Statutes or its successor provision s
h
on
certify upon request by the City that the Contractor
workplace policy in accordance with Section 287 0878 Florida
shall
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Statutes
as
amended from time to time Failure to submit this certification may result in
termination
The Contractor agrees to comply with Federal State and local environmental
health and safety laws and regulations applicable to the services provided to the City
The Contractor agrees that any program or initiative involving the work that could
0
adversely affect any personnel involved citizens residents users neighbors or the
surrounding environment shall ensure compliance with any and all employment safety
environmental and health laws
or its
applicable in accordance with Section 216 347 Florida Statutes
the Contractor shall not use funds provided by this Agreement
successor provision s
for the purpose of lobbying the Legislature the Judicial Branch or any State Agency
If
k
publish any documents or release information regarding
this Agreement to the media without prior approval of the City The Contractor may not
in any manner or means without
use its relationship with the City for publicity purposes
the expressed written consent of the City
I
The Contractor shall not
m
The Contractor shall
Contractor has obtained
licenses
permissions approvals
The Contractor shall
n
timely
ensure
at its
and
complete
SECTION 18
ensure
manner
that all services
are
provided
sole and exclusive expense
or similar consents
to the City after the
any and all permits
that all taxes due from the Contractor
including
are
paid
in
a
but not limited to the local business tax
NOTICES
party desires to give notice unto the other it must be given by
written notice sent by registered United States mail with return receipt requested
addressed to the party for whom it is intended at the place last specified and the place
for giving of notice shall remain such until it shall have been changed by written notice
in compliance with the provisions of this Section
a
b
for
1
Whenever either
For the
giving
present
the
parties designate
the
following
as
the
of notice to wit
For the City
City Manager
City of Ocoee
150 N Lakeshore Drive
Ocoee Florida 34761
2
For the Contractor
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Agreement
representative places
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Mr Adam E Tuton
Manager
American Traffic Solutions LLC
7681 E
Gray Road
Scottsdale Arizona 85260
Agreement shall be strictly construed and
such requirements are a condition precedent to pursuing any rights or remedies
The Contractor agrees not to claim any waiver by City of such notice
hereunder
requirements based upon City having actual knowledge implied verbal or constructive
notice lack of prejudice or any other grounds as a substitute for the failure of the
Contractor to comply with the express written notice requirements herein
Computer
Written notice
c
notification
requirements
of this
mails and message boards
e
under the terms of the
shall not constitute proper written notice
Agreement
DESIGNATED REPRESENTATIVES
SECTION 19
City Manager or designated representative represents the City in all
pertaining to and arising from the work and the performance of this Agreement
The
a
matters
b
The
City Manager
responsibilities
or
designated representative shall
City s approval
or
disapproval within
a
the
following
writing decisions indicating
reasonable time so as not to materially delay
Examination of all work and
1
have
rendering
in
the
the
work of the Contractor
and decisions with
definition of
City s policies
pertinent to the work
matters
3
a
defect
c
receipt of information and interpretation and
respect to design materials and other
covered by this Agreement
Transmission of instructions
2
Giving prompt
or
Until
Agreement
change
written notice to the Contractor whenever the
necessary in the
further
written
notice
project
and
the
City s
designated representative
is
City Manager
City of Ocoee
150 N Lakeshore Dr
Ocoee FL 34761
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City
Agreement
knows of
for
this
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Prior to start of any work under this Agreement
submit to the City detailed
written request of the City
d
personnel
that will be involved in
the Contractor shall
resumes
of
at the
key professional
services described in the work
At any
personnel in an
performing
change key professional
of the new professional personnel to
qualifications
assignment
the City for prior approval Key professional personnel shall include the principal in
charge project managers and others interfacing with City personnel
time hereafter that the Contractor desires to
it shall submit the
active
e
Until further written notice
the Contractor
s
designated representative for
this
Agreement is
Mr Adam Tuton
LLC
American Traffic Solutions
7681 E
Gray
Road
Scottsdale Arizona 85260
Telephone Number 480 443 7000
SECTION 20
a
COMPENSATION
There shall be
no
fee
charged
phase of performance while the fee to
post authorization shall be as set forth in
b
Should
the
City
authorize
City for the work accomplished in the first
be charged for the second phase of services
to the
work
Exhibit B
under
to the Contractor for the services
compensation
notice to proceed
c
The
City
and
as
the
second
performed
of the
phase
shall be
as
services
set forth the
set forth in Exhibit B
shall not pay for reimbursable items such
as
gas tolls
mileage
meals
etc
performed by the Contractor without written approval by the City s
Any work performed by the
designated representative shall not be compensated
is
at
the
Contractor s own election
Contractor without approval by the City
performed
d
Work
City fails to provide compensation
conditions of this Agreement the Contractor shall notify
representative in order that the City may take remedial action
e
In
the
SECTION 21
a
event the
under
the
the
terms
and
City s designated
INVOICE PROCESS
Payments shall
be made
by the City
to the Contractor when
requested as work
monthly The Contractor
progresses for services furnished but not more than once
shall render to the City at the close of each calendar month
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Agreement
an
itemized invoice
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properly
Form
all services rendered
describing
dated
the cost of the services
the
required by
Number and all other information
b
as
and
this
Exhibit 8
the
Project Status Report
address of the Contractor
Contract
Agreement
acceptable form to the City and without disputable items
processed for payment within thirty 30 days of receipt by the City
Invoices which
will be
name
in
are
an
The Contractor will be notified of any disputable items contained In Invoices
submitted by the Contractor within fifteen 15 days of receipt by the City with an
c
of the deficiencies
explanation
d
The
City and the Contractor will make every effort
contained in the Contractor
to resolve all
disputable
items
invoices
s
Prompt Payment Act shall apply
e
The Florida
t
Invoices shall be forwarded
by
when
the Contractor
applicable
directly
to
fiNA IIcP
City Hall
City of Ocoee
150 N Lakeshore Dr
Ocoee Florida 34761
SECTION 22
The
a
more
City may terminate this Agreement
of the
reasons as
1
Contractor
TERMINATION OF AGREEMENT
If
in the
If
Contractor is
City s opinion adequate progress
or
is not
being
made
by
the
City s OpiniOn the quality of the services provided by the
in
conformance
with commonly accepted professional standards
not
in
are
the
City
Contractor has
not corrected
determined
3
direct
by
the
the
City
The Contractor
charge
The
of Federal
or
such deficiencies
in
requirements
State
a
regulatory agencies and the
timely manner as reasonably
or
or
any
or
agent of the Contractor is indicted or
arising out of or in conjunction with
against
performed by the Contractor
Contractor
bankruptcy proceedings
employee
him for any crime
issued
any work that has been
4
1
follows
standards of the
a
one
or
2
has
for convenience at any time for
or
Red
becomes
makes
Light
an
involved
assignment
or
in either voluntary or
for the benefit of creditors
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Agreement
involuntary
or
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The Contractor violates the standards of conduct
5
provision of
State
or
local law
available to the Contractor
6
The
or
any
provision
of the
City
s
provisions
herein
or
any
Code of Conduct which is
or
violates
otherwise
Contractor
the
terms
and
conditions
of this
Agreement
In the event of any of the causes described in this Section the City s designated
representative may send a certified letter requesting that the Contractor show cause
why the Agreement should not be terminated If assurance satisfactory to the City of
corrective measures to be made within a reasonable time is not given to the City within
b
calendar days of the receipt of the letter the City may consider the
Contractor to be in default and may immediately terminate this Agreement
14
fourteen
Agreement is terminated for cause and it is later determined
that the cause does not exist then this Agreement shall be deemed terminated for
convenience by the City and the City shall have the right to so terminate this Agreement
without any recourse by the Contractor
c
In the event that this
TERMINATION BY CONTRACTOR FOR CAUSE
SECTION 23
a
The Contractor may terminate this
The
1
responsibilities
2
b
as
The
a
if
City substantially and materially fails
specifically contained in this Agreement
City fails
to meet its
certified letter
described in Subsection
causes
obligations
and
or
to pay the Contractor in accordance with this
In the event of either of the
shall send
Agreement
a
Agreement
the Contractor
that the
requesting
should not be terminated and to otherwise
to cure or explain the alleged breach
City show cause why the Agreement
provide the City will a reasonable opportunity
adequate assurances are not given to the Contractor within fourteen 14
calendar days of the receipt of said show cause notice that there is no breach or if a
breach exists it may be reasonably explained or has been cured the Contractor may
consider the City to be in default and may immediately terminate this Agreement
c
If
d
No
implied obligations
SECTION 24
a
of the
City
arise from the
operation
of this
Agreement
TERMINATION BY THE CITY WITHOUT CAUSE
Notwithstanding any other provision of this Agreement the City shall have the
right at any time to terminate this Agreement in its entirely without cause if such
termination is deemed by the City to be in the public interest provided that thirty 30
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days prior
calendar
written notice
is
given
to the
Contractor of the
City s
intent to
terminate
Agreement is terminated the City shall identify any specific
completion pursuant to the provisions of this Agreement
In the event that this
b
work to be continued to
This
c
to
Agreement will remain
be continued to completion
in full force and effect
as
to all authorized work that is
PAYMENT IN THE EVENT OF TERMINATION
SECTION 25
Agreement is terminated or canceled prior to final completion payment
for the unpaid portion of the services provided by the Contractor to the date of
termination and any additional services shall be paid to the Contractor
In the event this
ACTION FOLLOWING TERMINATION
SECTION 26
a
shall
Upon receipt of notice of termination given by either party
promptly discontinue the provision of all services unless
the terminated
the notice
party
provides
otherwise
b
The Contractor
termination
by
whatever
SECTION 27
a
means
mitigate damages
in the event of
under whatever circumstances
SUSPENSION
performance or provision of the Contractor services
suspended by the City at any time
The
may be
b
to
recognizes its obligation
under this
Agreement
In the event the
City suspends the performance or provision of the Contractor s
City shall so notify the Contractor in writing Such suspension
The City shall pay to the
becoming effective upon the date stated in the notice
Contractor within thirty 30 days all compensation which has become due to and
payable to the Contractor to the effective date of such suspension The City shall
thereafter have no further obligation for payment to the Contractor for the suspended
provision of services unless and until the City s designated representative notifies the
Contractor in writing that the provision of the services of the Contractor called for
hereunder are to be resumed by the Contractor
services hereunder
c
Upon receipt of written notice from the City that the Contractor
services hereunder
services to the
d
the
are
the Contractor shall continue to
provision of
provide the
City
The Contractor
suspension of
to be resumed
s
recognizes its
duties to
mitigate damages
services
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SECTION 28
ALTERNATIVE DISPUTE RESOLUTION
In the event of
ADR
dispute related to any performance or payment obligation arising
under this Agreement the parties agree attempt resolution by means of mutual
a
and
discussion
a
if resolution does not result there from
resolution
dispute
procedures reasonably imposed by
pursuing legal remedies
otherwise
The Contractor agrees that it will file
based on facts or evidentiary materials that
b
City
no
suit
dispute resolution procedures
present during the City procedures
and failed to
otherwise pursue
legal remedies
presented for consideration to the
which the Contractor had knowledge
not
were
in alternative
or
to exhaust any alternative
the City prior to filing suit or
or
In the event that
City procedures are exhausted and a suit is filed or legal
remedies are otherwise pursued the parties shall exercise best efforts to resolve
Mediator selection and the procedures to be
disputes through voluntary mediation
employed in voluntary mediation shall be mutually acceptable to the parties Costs of
voluntary mediation shall be shared equally among the parties participating in the
mediation The Contractor recognizes that mediation may be deemed open by the City
at its discretion subject to any controlling limitations of State law
c
SECTION 29
SEVERABILITY
If any term provision or condition
extent be held invalid or unenforceable
a
application
those in
and
of such term
provision
b
c
condition to persons
or
to any
or
the
circumstances other than
which it is invalid or unenforceable shall not be affected thereby
provision and condition of this Agreement shall be valid and
term
enforceable to the fullest extent
other
Agreement shall
the remainder of this Agreement
respect of
each
public
or
contained in this
permitted by law
when consistent with
equity
and the
interest
All
provisions of this Agreement
provisions hereof
Violation of this
constitute
Agreement by
irreparable harm to the City
SECTION 30
the Contractor is
applied
in
pari
materia with all
recognized by
the
parties
to
CONTROLLING LAWSNENUEIINTERPRETA TION
a
This
b
Venue for any
County
shall be read and
Agreement is
to be
governed by the
legal proceeding related
laws of the State of Florida
to this
Agreement shall be
in
Orange
FL
Agreement is the result of bona fide arms length negotiations between the
City and the Contractor and all parties have contributed substantially and materially to
c
This
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preparation of the Contract Accordingly
interpreted more strictly against anyone party
the
The
d
all
litigation
parties hereby affirmatively
this
Agreement shall not be construed
than against any other party
waive their
commenced in relation to this
right
Agreement
to trial
by jury
relative to any and
dispute resolution and similar negotiations sessions
Orange County Florida absent agreement otherwise by the City
All alternative
e
SECTION 31
or
shall
occur
in
INDEMNITY
a
To the fullest extent permitted by law the Contractor shall indemnify hold
harmless and defend the City its agents servants officers officials and employees or
any of them from and against any and all claims damages losses and expenses
including but not limited to attorneys fees and other legal costs such as those for
paralegal investigative and legal support services and the actual costs incurred for
expert witness testimony arising out of or resulting from the performance or provision of
services required under this Agreement provided that same is caused in whole or part
by the error omission negligent act failure to act malfeasance misfeasance conduct
officers officials employees or
or misconduct of the Contractor its agents servants
subcontractors
b
In accordance with Section 725 06
Florida Statutes
has been
provision s
adequate consideration
the
obligation
receipt and sufficiency of which
c
the
d
In claims
obligation
against any
successor
and similar
Contractor for this
provided
hereby specifically acknowledged
person or
its agents
subcontractors
employee
entity
or
indemnified under this Section
subcontractors
anyone
directly
or
by an
indirectly
they may be liable the indemnification
under this Section shall not be limited by a limitation on amount or type of
damages compensation
e
its
to the
Nothing herein shall be deemed to affect the rights privileges and immunities of
City as set forth in Section 768 28 Florida Statutes as amended from time to time
employee of the Contractor or
employed by them or anyone for
to
is
or
or
whose acts
benefits
under workers
payable by or for the Contractor or its agents or
compensation acts disability benefits acts or other
benefit acts
Agreement by the Contractor shall obligate the Contractor
provision in this Agreement however the Contractor
provisions of this Agreement relating to insurance coverages
The execution of this
comply
must also
with the indemnification
comply
SECTION 32
with the
INSURANCE
a
The Contractor shall obtain or possess and continuously maintain the following
insurance coverages from a company or from companies with a Best Rating of A or
better or such other qualifications as may be acceptable to the City in its sole and
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absolute discrection which insuranace company ies must be authorized to do business
in the State of Florida and which policies must be in a form acceptable to the City and
with
only
such terms and conditions
may be
as
acceptable
to the
City
1
Workers Compensation Employer Liability The Contractor shall provide
workers compensation insurance for all employees engaged in the work under this
Agreement in accordance with the laws of the State of Florida
Insurance shall be provided by the Contractor at limits not less than
Employers liability
following
the
100 000 00 Each Accident
100 000 00 Disease Each
500 000 00 Disease
Employee
Aggregate
Comprehensive General Liability The Contractor shall provide coverage
operations including but not limited to contractual independent contractor
2
for all
products
following
and
and
complete operations
personal injury with limits
not less than the
1 000 000 00
Bodily injury and property damage each occurrence
advertising injury each occurrence
000 000 00 General aggregate
000 000 00 Products completed operations aggregates limit
5 000 00 Medical payments
1 000 000 00 Personal and
2
2
3
Comprehensive
Business
coverage with
Automobile
combined
The
Liability
Contractor
limit of not less than
shall
1 000 000 00
provide complete
single
bodily injury and property damage coverage in accordance with the laws of the State of
Florida as to the ownership maintenance and use of all owned n on owned leased or
a
hired vehicles
4
insurance
Professional
well
as
as
less than
and
errors
1 000 000 00 combine
The Contractor shall
Liability
limit
omission
single
protecting
1 000 000 00
or
its
equivalent
with
the
Contractor
omissions in the
negligence errors mistakes or
performed and furnished by the Contractor
5
necessary to
use
Other Required
complete
of aircraft
or
Insurance Coveraqe
the work such
watercraft
Red
use
Light
provide professional liability
insurance
in
a
minimum
combined
amount
of
limit of not
single
against claims of the City for
performance of services to be
a
Where unusual
operations
are
longshoremen and harbor workers exposures
No
of explosives and any high risk circumstances
as
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aircraft
watercraft
approval
of the
City
explosives shall be used without the
thereupon required additional
or
which may
express advance written
insurance coverages
All insurance coverages shall be kept in full force and effect by the Contractor
throughout the duration of this Agreement and for one 1 year after the termination of
this Agreement All insurance coverages shall be occurrence basis coverage policies
All insurance other than workers compensation and professional liability that must be
maintained by the Contractor shall specifically include the City as an additional insured
b
All insurance minimum coverages extend to any subcontractor and the Contractor shall
be responsible for all subcontractors
provide certificates of insurance to the City evidencing that
prior to performance of work under this Agreement
These certificates of insurance shall affirmatively show that the City is a named insured
under the policies set forth therein and shall become part of this Agreement Neither
approval by the City nor failure to disapprove the insurance furnished by a Contractor
shall relieve the Contractor of the Contractor s full responsibility for performance of any
obligation including the Contractor s indemnification of the City under this Agreement
If during the period which an insurance company is providing the insurance coverage
required by this Agreement an insurance company shall 1 lose its certificate of
authority or right to issue insurance in the State of Florida or 2 no longer complies
with
State law or 3 fails to maintain the requisite Best s rating and financial size
category the Contractor shall as soon as the Contractor has knowledge of any such
circumstance
immediately notify the City and immediately replace the insurance
coverage provided by the insurance company with a different insurance company
meeting the requirements of this Agreement Until such time as the Contractor has
replaced the unacceptable insurer with an insurer acceptable to the City the Contractor
shall be deemed to be in default of this Agreement
c
The Contractor shall
all such insurance is in effect
The insurance coverage shall contain a provision that requires that prior to any
changes in the coverage except increases in aggregate coverage thirty 30 days prior
notice will be given to the City by submission of a new certificate of insurance
d
e
The Contractor
shall
designated representative
obtained insurance of the
t
Nothing
construed
as
in this
the City
provide
type
waiver
Section 768 28 Florida Statutes
g
The
City shall
not be
other than the
of insurance
clearly
directly
to the
City s
indicate that the Contractor has
amount and classification
required by
as
or
be
in
amended from time to time
obligated
Contractor
any action
this Agreement
relating to this Agreement shall
of sovereign immunity beyond the limits set forth
Agreement
s
certificates
The certificates shall
or
liable under the terms of this
There
are
no
third
Agreement to any
beneficiaries to this
party
party
Agreement The Contractor hereby relases and discharges the City of and from all
liability to the Contractor and to anyone claiming by through or under the Contractor
by subrogation or otherwise on account of any loss or damage to the City
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Agreement
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h
The Contractor is
employee of the City
this Agreement
an
The
independent Contractor and not an agent representative
City shall have no liability except as specifically provided
All insurance shall be
i
insurance maintained
SECTION 33
by
the
primary
City
to and not contribute with
any insurance
or
or
in
self
EQUAL OPPORTUNITY EMPLOYMENT NON DISCRIMINATION
The Contractor agrees that it will not discriminate against any person employee or
applicant for employment for work under this Agreement because of race color
religion sex age national origin or disability and shall take affirmative steps to ensure
that applicants are employed and employees are treated during employment without
regard to race color religion sex age national origin or disability This provision shall
include but not be limited to the following
employment upgrading demotion or
transfer recruitment advertising layoff or termination rates of payor their forms or
compensation and selection for training including apprenticeship The Contractor
moreover shall comply with all the requirements as imposed by the Americans with
Disability Act the rules and regulations of the Federal government issued thereunder
and any and all requirements of Federal or State law related thereto and any and all
related Federal or State laws which prohibits discrimination by public and private entities
on the basis of disability and shall not otherwise discriminate on the grounds of race
color religion sex or national origin in the performance of work under this Agreement
or violate any laws pertaining to civil rights equal protection or discrimination
SECTION 34
a
The
accounts
ACCESS TO RECORDS AUDIT PUBLIC RECORDS
Contractor
shall
maintain
and other evidence
books
records
related to its
documents
time
and
costs
of services
directly
provision
performance
Agreement All time records and cost data shall be maintained in accordance
generally accepted accounting principles
or
under this
with
b
The
City
right to unilaterally terminate this Agreement if the
public access to all documents papers letters or other
materials subject to provisions of Chapter 119 Florida Statutes Article I Section 24 of
the Constitution of the State of Florida and other applicable law as amended from time
to time that would in any way be considered to be a public record in its broadest
definition and made or received by the Contractor in conjunction in any way with this
Agreement Without in any way limiting any provision of this Agreement included in the
records that are the subject of this Agreement are field memos computer code
computer text shop drawings and similar documents and data
reserves
the
Contractor refuses to allow
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The
may perform or
before
Contractor
or after final
c
City
cause
to have
payment
to
performed
support
final
audit of the records of the
payment issued hereunder
an
mutually agreeable to the Contractor and the
City subsequent
period in which services are provided or
performed Total compensation to the Contractor may be determined subsequent to an
audit as provided for in this Section and the total compensation so determined shall be
used to calculate final payment to the Contractor
Conduct of this audit shall not delay
as
Section
final payment
required by this
This audit shall be
performed
at
a
time
to the close of the final fiscal
In addition to the above if Federal State County or other entity funds are used
for any services under this Agreement the Comptroller General of the United States or
d
the Chief Financial Officer of the State of Florida Flagler County or any representative
shall have access to any books documents papers and records of the Contractor
which are directly pertinent to services provided or performed under this Agreement for
purposes of
audit examination
excerpts and transcriptions
In the event of any audit or inspection conducted reveals any overpayment by the
under the terms of the Agreement the Contractor shall refund such overpayment to
e
City
the
making
City within thirty
30
days
of notice
by
the
City of the request
for the refund
The Contractor agrees that if any litigation claim or audit is started before the
t
expiration of the record retention period established above the records shall be retained
until all litigation claims or audit findings involving the records have been resolved and
final action taken
City shall own all documents prepared by the Contractor pursuant
provisions of this Agreement
The
g
to the
The Contractor may not rely upon any general or generic confidentiality provision
of any contract to which it may be a party such as by way of example only computer
licenses and similar documents
h
The Contractor shall maintain and allow
i
Section for
a
performance
or
minimum
of five
to the records
required
under this
period
years after the completion of the provision or
services under this Agreement and date of final payment for said services
date of termination of this
SECTION 35
access
5
Agreement
COUNTERPARTS
Agreement may be executed in any number of counterparts each of which shall be
deemed an original but all of which taken together shall constitute the singular and the
This
same
document
SECTION 36
EXHIBITS
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Each exhibit referred to and attached to this
Agreement The exhibits
physically attached hereto
IN WITNESS
Agreement
on
the
Agreement
is
an
essential
part
and any amendments or revisions thereto even
shall be treated as if they are part of this Agreement
WHEREOF
respective
the
hereto have made
parties
dates under each
of this
if
not
and executed this
signature the City through its City
Commission
D
t
J
c
cl
I
200X and the Contractor signing by and
taking action on the R day of
through its duly authorized corporate officer having the full and complete authority to
execute
A TTE
same
r
AMERICAN
TRAFFIC
SOLUTIONS
J CJj
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Corporate Officer
Authorize
Date
ATTEST
CITY OF
vm
6
tr
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By
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le
City Manager
Date
Approved by
I
I
Initials and date
Responsible Department Director
City Finance
Purchasing and Contracts Management
City Attorney
Red
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No 26
Division
Agreement
I
tJ
Case 2:14-cv-14429-XXXX Document 1-1 Entered on FLSD Docket 10/27/2014 Page 109 of
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APPROVED
ATTEST
CITY OF OCOEE FLORIDA
j
5 5
S Scott
Vandergrift Mayor
SEAL
FOR USE AND RELIANCE ONLY BY
APPROVED BY THE OCOEE CITY
THE CITY OF OCOEE FLORIDA
COMMISSION AT A MEETING HELD
APPROVED AS
ON
this
L day
FOLEY
By
of
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FORlVl
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2008
LARDNER LLP
lj Wi
City Attorney
2008
v
UNDER AGENDA
hEM NO
Case 2:14-cv-14429-XXXX Document 1-1 Entered on FLSD Docket 10/27/2014 Page 110 of
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EXHIBIT A
DESCRIPTION SCOPE OF SERVICES
I FIRST PHASE OF SERVICES
The Contractor shall
Uncompensated
comprehensive and fully integrated red light traffic
Contractor will deploy traffic safety
safety management
camera equipment at designated
arterial intersections covering one to three 3
approaches at each intersection At the selected approaches up to four 4 lanes will
require traffic safety camera enforcement including any turn lanes The Contractor s
services shall include all hardware software installation maintenance operation and
all back office processing of violations
provide for
services
All systems must be
non
a
The successful
intrusive to roadway
II SECOND PHASE OF SERVICES
or
transportation siqnal cabinetry
Compensated
Red Lh lht Camera System
cabinets
provide and install all equipment including but not limited to poles
All systems
and related operational equipment at the selected intersection s
must be
non
The Contractor shall
intrusive to roadway
or
transportation siqnal cabinetry
The Contractor shall disclose whether the
system
at any time
photographs
an
image
the driver of the vehicle
The Contractor shall
high quality digital camera system with an output in excess
The Contractor shall detail the image
pixels per image is required
quality specifications and provide real sets of violation image examples captured in
daytime nighttime during inclement weather and during times where sunlight is
pointing in the direction of the camera
of 3000
x
use a
2000
The Contractor shall
statistical
analysis
provide equipment that is capable of gathering traffic
The Contractor shall provide copies of sample reports
data for
The Contractor shall
operating conditions
provide equipment capable of deployment in a wide range of
e g
heavy traffic volumes adverse weather conditions road
surface configurations etc and across five 5 moving lanes of traffic
The Contractor shall
physical
provide equipment shall provide
phase signal
a
reliable
connection to the red
Red
Light
Camera Two Phase Services
Page
No 27
Agreement
non
intrusive
non
I
I
I
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The Contractor shall
provide a system which must provide at least three 3 digital color
images
violating event The images shall be taken to ensure that the rear of
the vehicle and license plate are captured
The first image shall capture the vehicle
before the front wheels strike the legal violation limit line
The second image shall
capture the vehicle after the rear axle has crossed the crosswalk or legal limit line The
third image shall depict a close up of the license plate The contractor will use a video
still
of each
system that
will
capture
a
short duration video of the violation
The Contractor shall
violation at the
provide a
time of capture
The Contractor shall
camera
system which
shall be recorded in
provide data which
bar that is embedded with each
scene
may be used to prove the violation
following information for each violation
license
b
pertinent
to each
flexibly configured data
plate and stop bar detection images that
a
The data bar shall include
Unique violation
a
shall record data
identifier
at
incorporating
minimum
a
the
the
City
Location of violation
c
Date
MM
d
Time of the violation in
DDIYYYY
24 hour clock
including hours
minutes and seconds
Elapsed time between images
e
f Direction of travel
g Traffic signal phase
h
Time into the red
phase displayed
in thousandths of
a
second
g Duration of the prior amber
h Vehicle lane of travel
i
Camera ID and
j Frame sequence
The Contractor shall
transmitted to the
of license
plate
how the
explain
processing
The Contractor shall
explain
phase
number
image
and
violation
data
IS
secured
and
center
how the
proposed system
can
compensate
for the effects
how the
proposed system
can
compensate for
covers
The Contractor shall
of reflective material
explain
on
license
the effects
plates
The Contractor shall
provide a system which includes an ancillary video system as
information
to the violation provided by the still images
The video must be
supporting
full motion at the rate of thirty 30 frames per second or greater and allow aperture
adjustment
The Contractor shall
ensure
Red
that each
Light
imaging unit s operation
Camera Two Phase Services
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Agreement
shall be
microprocessor
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controlled and
fully
automatic
The Contractor shall include
activation and maintenance
violation
a
date and time of
a
debugged
substantiate
The Contractor shall
are
and date
a
or
remote
that allows
a
error
self test
set up
messages record
on
malfunction to be
a
easily
that records event
system
a camera
or
concurrent violations
specific evidence to
occurring during any
24 hours
dayn days
a
a
synchronized
to
a
system which includes component operations
single standard independent external and verifiable time
a
camera
source
can
be used
limitations of each
light
system
camera
provide a system which shall provide
monitoring and viewing capabilities
use more
will not be considered
Red
site
on
intersection
The Contractor must
which
of
line
on
The Contractor shall include
which
perform
communicate
simultaneous and
multiple
signal phase
week live
capable
being
testing
system shutdown in the event of a malfunction
The Contractor shall include
red
that shall
system
camera
recorded for
The Contractor shall include
identified and
that shall be
support
The Contractor shall include
simulate
system
a camera
camera
if
than
one
1
vehicle detection method
The Contractor must
ground loops
explain the vehicle detection methods
by the system including
more
than
one
enclosures must be
1
in
but not limited to
the
benefits and
is offered
tamper proof
and vandal
proof
Red
light camera enclosures must be designed in such a fashion that maintenance and
other operations can be accomplished easily and quickly without creating a public safety
hazard The Contractor shall explain typical maintenance procedures
The Contractor shall state installation and construction times for
The
system
shall be able to
simultaneously
The Contractor shall monitor
of detecting and
recording
a
generic
monitor traffic in up to five 5
straight through
evidence of left and
violations
right
The
system
intersection
lanes
shall
be
capable
regardless of vehicle
explain how the system
turn violations
speed please reference program The Contractor
captures illegal right turn on red movements
must
Violation Processing
There shall be
no
requirement
Red
to install Contractor
Light
processing software
Camera Two Phase Services
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Agreement
on
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owned
Case 2:14-cv-14429-XXXX Document 1-1 Entered on FLSD Docket 10/27/2014 Page 113 of
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or
maintained information
The violation
technology
or
computing systems
shall allow the
processing system
City
a
detailed view into all of the
information related to the program
processing system for the purpose of preprocessing
evidence police authorization notice printing payments tracking and generation of
court evidence packages shall be Internet enabled and shall be available 24 hours a
dayl7 days a week for authorized users
All
access
The violation
to the
violation
processing system shall provide the following functions
a
Web enabled
b
Secure
user
d
by
Easy
log
camera
system
g
h
operation
access
presentation of images and data captured
onto review PC
s
review of violation evidence
against regulations
Ability
play full motion video and view
multiple scene and plate images
Ability to view each image as a full screen enlargement with a
single click
Ability to view all original images
Ability to crop a license plate image area from the optimal license
plate image in the multiple image license plate set to establish
vehicle 10 and subsequently print the cropped plate area image to
to both
e
f
and
in and
Automatic
c
the
access
the notice
i
Ability
to
accept
or
reject
violation sets and
record
rejection
reasons
j
k
generate printed warning letters during the first 30 days of
the program at the City s discretion
Ability to automatically generate printed violation notices
I
Ability to store and archive all processed violation
Ability
to
evidence into
secured database
dayl7 days a week ability to access any stored violation
image
system database subject to agreed archive rules
24
hours a day 7 days a week ability to request and immediately
n
view
Court Evidence Package image sequences displayed as
video or as
individual high resolution still shots or send images to
print locally
0
24 hours a day 7 days week ability to immediately request view
and print both standard and user defined reports
Secured Access Control and automatically generated electronic
p
m
24 hours
a
from the
a
s
audit trails
q
r
Encryption and decryption management
The system shall be capable of preparing and mailing one notice
letter for all chargeable violations to vehicle owners issuing and
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Light
Camera Two Phase Services
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Agreement
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mailing
a
second notice for any violations that remain unpaid as
All violations for which registered owner data is
their due date
available shall be issued within
seven
7
business
days
after
police
review of the incident
Statistical Analysis and ReportinQ Systems
processing system shall produce statistical analysis of camera location
operations will be preferred including at minimum
a
Hours of use per camera by operational site
b
Results achieved by each camera by site
c
Offenses recorded by site and
d
Traffic counts by lane date and hour
The
The
24
processing system shall be capable
hours a dayl7 days a week including
immediately generating operations reports
a
Number of violations recorded
b
Count of violations where notices not
Notices prepared and mailed and
c
canceled
The
of
processing system shall
a
Camera
b
Number
and
prepared
d
Status of notices
reissued and so forth
issued
outstanding
also
supply reports of
equipment hours of service and hours lost and
and
description of camera or other equipment
malfunctions
The
processing system
shall
provide
The
a
follows
b
Real time violation
individual lane
II
time of
provide
number
The total
day
a
of week
monthly report
of
events
rate
and
day
by
that includes the
detected
by lane
following
notices violations
issued
and
location and in total
number of violations that
vehicle traffic
images by
graphs and chart by
I
prosecutable image
b
as
Real time traffic volume and vehicle counts and
III
The contractor shall
violation and traffic statistics
a
occurred and
and the total number of
percentage
of total
of
rejected
percentage
reason
ImaQe Transmission Security and Data StoraQe
The
provide for image and data security that shall prevent unauthorized
from accessing the camera images and databases and tampering with images
system
persons
shall
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Light
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The Contractor shall store all enforceable
one
hundred and
eighty
The Contractor shall
package
180
days
provide
after
images produced by
final disposition
evidence
an
package
cameras
for
no
less than
for any contested violations
The
shall consist of
a
All issued and
b
A violation
c
A
d
A
disputed notices
history report
correspondence file and
payment history
The Contractor shall maintain
and court functions
The Contractor shall
theory operation
provide
a
a
and functional
to the
party
proper chain of evidence that meets the needs of
qualified expert witness who is knowledgeable
capabilities of the red light camera unit
on
City
the
Maintenance Support and Trainin
All maintenance of
the
video
camera
responsibility of the
repair
hours of detection
the Contractor
or
replace
The Contractor shall describe the
any
or
inoperable equipment within seventy
by the City
proposed
during
maintenance and
by
the
two
72
inspection visit
provide ongoing training support
The Contractor shall
shall be
standard process for how often the cameras
inspection and shall explain what occurs
systems
The Contractor shall
equipment
notification
will be visited for maintenance and
a
and related
Contractor
The Contractor shall
by
computer
sensors
provide
hands
on
training
as
as
needed
necessary to
by the City
personnel
as
required
City
The Contractor shall
provide training
materials
Operations and Public Awareness
The Contractor shall describe the
a
successful
project
for the
Project Management Approach and how it will
City
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Light
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Agreement
ensure
Case 2:14-cv-14429-XXXX Document 1-1 Entered on FLSD Docket 10/27/2014 Page 116 of
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The Contractor shall
provide assistance
with
the
content and
education program and associated materials to be funded
the
by
design
City
of
public
a
The Contractor shall support the
systems
forums
at
as
public
or
necessary
Contractor shall
to the
seminars
City by training staff on how to present the Contractor s
presentations The Contractor will provide staff for public
provide
project
a
manager for the
project
as
the
single point of
contact
City
Contractor shall
approval by
the
provide intersection design and installation plans for review
City Traffic Engineering Department and Permitting Department
Contractor shall install and maintain installed
and
cameras
responsible for loading optimizing and license plate data entry
processing of images for review final review to be processed by authorized City
personnel
Contractor shall be
Contractor will prepare one notice letter for all chargeable violations and will mail notice
letters to vehicle owners The Contractor shall include a return envelope for payments
Contractor will prepare a second and a final notice will be issued for any violations that
remain unpaid after their due date The Contractor shall include a return envelope for
payments
Violations for which
required
registered
of days of the
number
Contractor may be asked to
paper
envelopes postage
Notices shall include
Contractor shall
one
provide
Contractor shall
provide
owner
legally
violation event date
provide all required notice processing supplies including
printing supplies
toner and any and all notice
set of
images
a means
a
data is available shall be issued within the
and
a
license
for the fines to be
means
plate image
paid
for the fines to be
on
line
by credit
or
debit card
paid by phone using
a
credit
or
debit card
Contractor
delinquent
shall
provide for
a
third
party collection
service
accounts
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Light
Camera Two Phase Services
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Agreement
for the collection
of
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EXHIBIT B
PRICING AND RATE SCHEDULE
I FIRST PHASE OF SERVICES
No
compensation
Uncompensated
is due from the
City to the Contractor
II SECOND PHASE OF SERVICES
Compensated
Fees and Scope of Work for Pricing
Red
Light
Fee Per Paid Citation
Camera Two Phase Services
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Agreement
40 00
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EXHIBIT C
CERTIFCATE OF LIABILITY INSURANCE
Red
Light
Camera Two Phase Services
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Agreement