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HomeMy WebLinkAboutExhibit-SUBw rl Contract By and Between The City Of Miami UW*j TI IIS TlC}C`UMENT IS A SUBSTITUTION I.« ORIGINAL 13ACKUP ORIGINAL C -NN BE STEN AT END OF THIS D�X.'I,�ME[tiT American Traffic Solutions, Inc. To Furnish, Install, Operate, and Maintain a Traffic Infraction Detector Program Capital Improvements Program 444 SW 2"d Avenue, 8th Floor Miami, Florida 33130 /o- 009 9--Exh;blf - TI IIS D(X'LTKiFNi' IS A SUBSTITiMON TO ORIGINAL BACKUP ORIGINAL CAN BE SEEN AT ENI] OF THIS 17OC rM>" NT TABLE OF CONTENTS Contents 1. Definitions............................................................................................................4 2. Overview/Recitals................................................................................................ 6 3. Intention of City................................................................................................... 6 4. Scope of JJork...................................................................................................... 7 5. Contract Term..................................................................................................... 7 6. Notices..................................................................................................................7 7. Contract Term...................................................................................................... 8 8. Time is of the Essence........................................................... I.... I .... .................... 8 9. Contract Documents............................................................... I.............................. 9 10. Program Representation..............................................................................I........ 9 11. Contractor's Responsibitity.................................................................................. 9 12. Proposal Bond/Guaranty.................................................................................... 10 13. Indemnification .............. ........... ..................................................... I ......... .......... 10 14. Insurance..................................................................................... ...... 11 15, Construction Key Personnel and Staffing.......................................................... 13 16. Subcontractors....................................................................................................1) 17. Installation of Traffic Infraction Detector Systems-- .......................................... 14 18, Primary Contact .............. 19. Ownership of the Equipment and Data.................................I..............I............. 15 20. Continuing the Work......................................................................................... 16 21. Discretion of Director......................................................................................... 16 22. Authority of the City's Project Managerr........................................................... 16 23. Reference Standards ............................ _................................................... ......... 16 24. Changes in the Work or, Terms of Contract Documents .................................... 17 25. Extension of Time.............................................................................................. 17 26. Safety Precautions ....................................... _..................................................... 17 27. Priority of Provisions......................................................................................... 17 28. Payments............................................................................................................ 18 29. Payments Related to Guaranteed Obligations.................................................... 19 30. Default/ Events of Default.................................................................................. 19 31. Notice of Default -Opportunity to Cure.............................................................. 20 32. Remedies for Contractor's Default.................................................................... 20 33. Termination .For Convenience............................................................................. 21 34.Termination Due To Undisclosed Lobbyist Or Agent ....................................... 21 35. Materiality and Waiver of Breach...................................................................... 22 36. Force Majeure................................................................................................ 22 37- Resolution of Contract Disputes,., ................................... ................................. 22 38. Mediation - Waiver of Jury Trial....................................................................... 23 39. Applicable Law and Venue Of Litication; Waiver of Jury Trial and Permissive Counterclaims...........................................II........................................ ............ 24 40, City May Avait Itself of All Remedies............................................................. 24 Traffic Infraction Detector Program Page 2 41 42 43 44 45 46 47 48 49 50 51 52 Si 54 55 56 57 58 59 60 61. 62 63 64 65 66 TH#s DO('UMENT ISA SUBSTITUTION TO ORIGINAL BACKUP OPJGINAL CA:N BE SEEN AT CND OF TtAl5 DOCUMENT Public Entity Crimes .............................................. ........... 24 AuditRights....................................................................................................... 24 Nondiscrimination, Equal Employment Opportunity. and Americans with DisabilitiesAct................................................................................................... 25 Independent Contractor...................................................................................... 25 Successors And Assigns ........... ......................... ................................................ 26 Third Party Beneficiaries................................................................................... 26 ContingencyClause............................................................................................ 27 Perfonnance Evaluation..................................................................................... 27 Joint Preparation- Interpretation......................................................................... 27 Confidentiality.................................................................................................... 27 Contract Limiting Time in Which to Bring Action Against the City ................. 27 Defenseof Claims................ ............ ................................................................. 28 Amendments....................................................................................................... 28 Severability......................................................................................................... W 28 Survival.............................................................................................................. 28 EntireContract................................................................................................... 28 First Source Hiring Agreements .............................. ..................... 28 Performance Standards....................................................................................... 29 Substitutions, Upgz•ades or Replacements ................ ChangeOrders.................................................................................................... 31 Maintenance....................................................................................................... 32 Trainialg.................................................................................................. ...,... ... 32 Removal of Equipment...................................................................................... 32 Confidential Information. Trade Secrets. Intellectual or Proprietary Property. Trademarks or Patents........................................................................................ 32 MostFavored Nation...........................................................................................)3 Licensing Agreement......................................................................................... 33 Traffic Infraction Detector Program Page 3 THIS DOCUMENT IS A SUBST111TTION TO ORIGINAL BACKUP ORIGINAL CAN BE SEEN AT END Of- THIS DOCUMENT THIS CONTRACT, made and entered into this `day of , 2010 by and between the City of Miami, Florida, a municipal corporation, hereinafter called the City, and American Traffic Solutions, Inc., a Kansas Corporation, hereinafter called Contractor. WITNESSETH: WHEREAS, on June 11, 2010, the City issued a Request for Proposal (RFP) to Furnish, Install, Operate and Maintain a Traffic Infraction Detector Program for the City; and WHEREAS, the Contractor submitted a Response to the RFP ("Response") that was deemed the most qualified for the performance of the Traffic Infraction Detector Program ("Program") described in the RFP, and WHEREAS, the Contractor's Response, as further negotiated and agreed to by the City and the Contractor, and the RFP are all incorporated into and made a part of this Contract; and WHEREAS, Contractor represents that it possesses the requisite expertise and desires to enter into a contract to provide the Program as set forth herein; and WHEREAS, the City Commission has authorized the City Manager to execute and enter into this Contract by Resolution No. R-XX-XXXX adopted (month) (date), 2010; NOW THEREFORE, in consideration of the foregoing and of the mutual covenants and compensation set forth herein the City and Contractor agree as follows: 1. Definitions Active Traffic Infraction Detector System means a Traffic Infraction Detector System that has been approved by the Project Manager for use in the Program. Approach means one (1) direction of travel or one (1) or more lanes on a road or a traffic intersection up to five (5) contiguous lanes. Attachments or Exhibit means any Attachments or Exhibits to this Contract which are expressly incorporated by reference and made a part of this Contract as if set forth in full. Change Order means a written document ordering a change in the Contract. A change order must comply with the Contract Documents. City means the City of Miami, Florida, a Florida municipal corporation. In all respects hereunder, City's performance is pursuant to the City's capacity as Owner. In the event the City exercises its regulatory authority as a governmental body, the exercise of such regulatory authority and the enforcement of any rules, regulations, codes, laws and ordinances shall be deemed to have occurred pursuant to City's authority as a governmental body and shall not be attributable in any manner to the City as a party to this Contract. For the purposes of this Contract, "City" without modification shall mean the City Manager or Director, as applicable. City Commission means the legislative body of the City of Miami. City Manager means the duly appointed chief administrative officer of the City of Miami. Traffic Infraction Detector Program Page 4 THIS 1LX> UME NT IS A SUBSTITI," PON TO ORIGINAL BACKUP ORIGINAL CAN ISE SEEN A,r Elm of THIN Contract means this document, together with all documents incorporated herein by reference and the Contract Documents. Contract Documents means the documents described in Article 10 of this Contract. Contractor means American Traffic Solutions, Inc., who will be responsible for the Program in accordance with the Contract Documents. Court means the Miami -Dade County court system which is responsible for the processing, disposition, and adjudication of all citations issued under the Contract. Cure means the action taken by the Contractor promptly after receipt of written notice from the City of a breach of the Contract Documents which shall be performed at no cost to the City, to repair, replace, correct, or remedy all material. equipment, or other elements of the Work or the Contract Documents affected by such breach, or to otherwise make good and eliminate such breach, including, without limitation, repairing, replacing or correcting any portion of the Work or the Project(s) site(s) disturbed in performing such cure. Cure Period means the period of time in which the Contractor is required to remedy deficiencies in the Work or compliance with the Contract Documents after receipt of written Notice to Cure from the City identifying the deficiencies and the time to Cure Director means the Chief of Police or his designee, who has the authority and responsibility for managing the Project(s) under this Contract. FDOT means the Florida Department of Transportation, any successor agency or authorized public agency designee. Force Majeure means those certain failures to perform due to a condition of force majeure as defined in Article 37 of this Contract. Notice of Award means the written letter to the Contractor notify the Contractor that they have been awarded the Contract. Notice To Proceed means a written letter or directive issued by the Director or designee acknowledging that all conditions precedent have been met and directing that the Contractor may begin Work on the Program or the installation of Traffic Infraction Detector System(s) additional intersections, as applicable. Plans and/or Drawings means the official graphic representations design and construction requirements of a Traffic Infraction Detector System to be installed at an intersection. Program means the furnishing, installation, operation, and maintenance of the Traffic Infraction Detector program in accordance with the Contract Documents, HB325/Chapter 2010-80 Laws of Florida and the rules and procedures promulgated by the Court. Program Manager means the person designated by Contractor as its lead representative to the City. The Contractor's Program Manager shalt have the authority to obligate and bind Contractor and to act on all matters on behalf of Contractor except for revisions to the Contract Documents and Change Orders. Program Manager's responsibilities include creating clear and attainable project objectives, building the project requirements, and managing cost, time, and scope. Project Manager means the individual assigned by the Director to manage the Program. Traffic Infraction Detector Program Page 5 ■ 1'1I1S DOCUMENT tS A SUBSTI'tU lON 10 OR001NAL BACKUP Oft1GIlelAL CAN BE SEEN -kT END OF THIS DO-CUMENT Request for Proposals or RFP means the solicitation issue by the City for the purposes of entering into a Contract for the Program, which is incorporated into a made a part of the Contract Documents. Response means the documents submitted by the Contractor in response to the RFP. Risk Administrator means the City's Risk Management Administrator, or designee, or the individual named by the City Manager to administer matters relating to insurance and risk of loss for the City. Scope of Work or Work means a comprehensive description of the activities, tasks, objectives, deliverables and milestones required for the Program. Subcontractor means a person, firm or corporation having a direct contract with Contractor who furnishes any portion of the Work, including materials and supplies, required by the Contract Documents. Successful Proposer means the firm that was selected by the City to enter into a contract to provide the Program. System means the database system, including ail hardware and software utilized by the Contractor to operate and manage the Program. Traffic Infraction Detector System means the cameras, poles, cabinets, and any and all related operation equipment located at an intersection. Uncontrollable Factor means all uncontrollable factors found in the Location Performance Detail Report, including but not limited to plate or DMV record missing, plate obstructed, atypical weather related exceptions (beyond normal South Florida weather conditions known to include severe thunderstorms and heavy rain, etc.), vehicle stopped, valid right turn violations not enforced by the City, and various other factors that are not related to image or system quality performance or reliability which Contractor would need to document to the reasonable satisfaction of the City. Violation Processing System (VPS) means the back-office support system provided to the City through access to the AxsisTM System. 2. Overview/Recitals This Contract sets forth the terms and conditions pursuant to which Contractor will provide all the Work as required by and detailed in the Contract Documents for the Traffic Infraction Detector Program. The Recitals are incorporated into and made a part of this Contract. 3. Intention of Ci It is the intent of City to describe in the Contract Documents the Program to be provided in accordance with the Contract Documents and in accordance HB325/Chapter 2010-080 Laws of Florida, the Florida Statutes, and with all law, rules and regulations governing the Program. All work, materials, supplies, and equipment that are specifically stated or that may reasonably be inferred from the Contract Documents as being required to produce the intended result shall be furnished by Contractor whether or not specifically stated. By executing this Contract the Contractor expressly warrants and agrees that the Active Traffic Infraction Detector System, the Program, and its Scope of Work will be in full compliance with HB 325, Chapter 2010-80 Laws of Florida, as amended, and with all rules, procedures and regulations adopted in Traffic Infraction Detector Program Page 6 furtherance of HB 325, Chapter 2010-80 Laws of Florida. These rules, procedures and regulations will include, but not be limited to, the Florida Department of Transportation's ("FDOT's") development and publishing of specifications for the placement and installation of the Traffic Infraction Detectors by June 30, 2010, as amended; the development and publishing of the specifications for equipment and testing by December 31, 2010, as amended; and any rule, regulation and procedure required by the Court having jurisdiction over the citations, violations or offenses arising under applicable state laws, or other state agency having jurisdiction over the Program. Where words, which have a well-known technical or trade meaning, are used to describe work, materials or equipment, such words shall be interpreted in accordance with that meaning. Reference to standard specifications, manuals, or codes of any technical society, organization or association, or to the laws or regulations of any governmental authority, whether such reference be specific or by implication, shall mean the latest standard specification, manual, code or laws or regulations in effect at the time of execution of the Contract and as may be implemented, amended, or become effective during the term of the Contract and the Contractor shall comply therewith. City shall have no duties other than those duties and obligations expressly set forth within the Contract Documents. 4. Scope of Work The Work specified in this Contract consists of furnishing all labor, material, equipment, vehicles, supplies, services, photographic, film, digital, computer equipment, software, hardware, and management necessary to furnish, install, operate, and maintain the Traffic Infraction Detector Program as required by this Contract and by the applicable laws of the State of Florida in a manner that will ensure an efficient and effective Program. The specific requirements of the Program are specified in the Contract Documents. 5. Contract Term The Contract shall commence upon issuance of the Notice of Award, which shall be issued subsequent to the execution of the Contract by the City. The Contract shall be for an initial period of five (5) years. Option to Renew/Extension of Term The City Manager shall at the sole discretion of the City, have the option to renew the Contract for up to two, two (2) year additional terms by furnishing a written notice of renewal by the City, issued by the City Manager, to the Contractor thirty (30) or more calendar days prior to the expiration of the original term providing the Contractor is not in debt or default of any obligation to the City, in addition, the City Manager may extend the term of the Contract for a period of up to ninety (90) days should the City decide not to exercise an option to renew or at the expiration of the option to renew terms. Such extension shall be for the sole purpose of closing out the Contract in accordance with the requirements of the Contract. 6. Notices Whenever notice is desired or required under this Contract, the notice shall be given in writing, by mail, email, facsimile or via courier/delivery service, must be addressed to the party for whom it is intended and delivered at the place last specified ("Notice"): and the place for giving of notice shall remain such until it shall have been Traffic Infraction Detector Program Page 7 changed by Notice given in compliance with this provision. Notice shall be deemed given on the date received or within 3 days of mailing, if mailed through the United States Postal Service. If given via email or facsimile, Notice shall be deemed given on the date sent. If given via courier/delivery service, Notice shall be deemed given upon the initial delivery date by the courier/delivery service. For the present, the parties designate the following as the respective places for giving of notice: For City of Miami: ,a. Carlos A. Migoya City Manager —0— 0 -Office Office of the City Manager City of Miami 3500 Pan American Drive 7 - Miami, Florida 33133 LL y Miguel Exposito_ Chief of Police J Police Department- Central Headquarters City of Miami rn C 400 N.W. 2nd Ave. ,p ., Miami, Florida 33128 F Julie O. Bru City Attorney City Attorney's Office City of Miami 444 SW 2 I Avenue, 9th Floor Miami, Florida 33130 For Contractor: Adam Tuton Chief Operating Officer American Traffic Solutions, Inc. 7681 East Gray Road Scottsdale, AZ 85260 During the Work, the Contractor and Program Manager shall maintain continuing communications with the Project Manager. The Contractor and Program Manager shall keep the City fully informed as to the status of the Program at all times throughout the term of the Contract. 7. Contract Term The Contract shall commence upon issuance of the Notice of Award, which shall be issued subsequent to the execution of the Contract by the City. The Contract shall terminate upon notice by the City that the Contract has been closed -out after final completion or otherwise terminated by the City pursuant to the terms and conditions herein set forth. 8. Time is of the Essence Time is of the essence of this Contract and the Contractor will promptly perform its duties under the Contract Documents and will give the Work as much priority as is necessary to cause the Work to be performed in accordance with the Contract Documents. All Work shall be performed strictly (not substantially) within the time Traffic Infraction Detector Program Page 8 r limitations necessary to maintain compliance with the requirements and dead€fines „ G established in the Contract Documents. All dates and periods of time set forth in the Contract Documents, including those -:r r established by H133251Chapter 2010-80 Laws of Florida, as amended, FDOT, and the Court have been included because of their importance to the City. 7 r Except and only to the extent provided otherwise by signing this Contract, the Contractor agrees to the assessment of liquidated damages as provided in Article 58 f, Ld of the Contract. = e The Contractor acknowledges that the City is purchasing the right to have the Contractor's Program Manager, or a designee, available 100% of the time to this Program during the term of the Contract. Contractor will provide 24/7 support for the Program. 9. Contract Documents The Contract Documents are complementary and are inclusive of all items necessary for the execution and performance of the Work by the Contractor. Contractor shall perform all Work indicated in or reasonably inferable from and consistent with the Contract Documents for the proper operation of the Program. The Contract Documents shall consist of this Contract, the RFP, the RFP Response, any negotiated revisions to the RFP Response agreed to in writing by both parties to the Contract, any Change Orders issued thereto, duly issued and agreed upon in writing after execution of the Contract. Any modification to this Contract shall only be effective if it is reduced to writing, and duly executed by both parties. The Contract Documents are to be inclusive of all items necessary for the proper operation of the Program by the Contractor. The Contract Documents represent the entire and integrated agreement between Contractor and City hereto and supersedes all prior negotiations, representations or agreements, either written or oral_ The Contract Documents shall not be construed to create a contractual relationship of any kind between the City and any Subcontractor, Subcontractor, Suppliers, Material Persons, Third Party Vendors, or similar persons or entities not a party to this Contract. 10. Program Representation The Contractor acknowledges that it has satisfied itself as to all of the requirements of the Program, and any failure by the Contractor to acquaint itself with any and all aspects of the Program shall not relieve Contractor from responsibility for complying with all of the requirements of the Contract Documents. 11. Contractor's Responsibility Contractor accepts the relationship of trust and confidence established between Contractor and City by this Contract. Contractor recognizes the necessity of a close working relationship with City and agrees to furnish the skill and judgment of its organization in the performance of this Contract and to cooperate in furthering the interests of City. Contractor shall provide Contractor's knowledge, ideas, experience, and abilities relating to all aspects of the Program; furnish efficient business administration and superintendence; and use its best efforts to arrange for all personnel, materials, equipment, vehicles, supplies, and other services and things to manage the Program in the best and soundest way and in the most efficient and effective manner consistent with the interests and objectives of City and the Contract Traffic Infraction Detector Program Page 9 12 13 Documents. Contractor agrees to advise and make written recommendations to the City as specified in the Contract. a P Contractor shall provide administrative, management and related services as required to coordinate, supervise and manage the performance of the Program in c accordance with the Contract Documents. �ii -.; z <L� Contractor shall be responsible to the City for the acts and omissions of Contractor's 7.E4 W 7. employees, Subcontractors and their agents and employees, and any other persons 01-1 performing any of the Work under a contract with Contractor, or claiming by, through 'A 0 7. E) or under Contractor, for all damages, losses, costs and expenses resulting from such acts or omissions. Proposal Bond/Guaranty The execution of this Contract is precedent upon the Contractor providing a Proposal Bond in accordance with the requirements of the RFP. The RFP must be accompanied by an original bond by a Surety or by cash, money order, certified check, cashier's check, or Unconditional/Irrevocable Letter of Credit in the amount of $25,000. The return of the Bond or Guarantee is conditioned upon the Successful Proposer executing a Contract with the City, unless the City in its sole discretion determines not to enter into a Contract. The form of the Proposal Bond shall be in a form acceptable to the City. A PERSONAL CHECK OR A COMPANY CHECK OR OTHER SUBSTITUTE SECURITY NOT LISTED IN THIS SECTION SHALL NOT BE DEEMED A VALID GUARANTY. The City Manager may accept a cashier's (bank), an irrevocable, unconditional letter of credit drawn on a local bank, or cash (US) if the Manager finds the City's interests would be protected by such acceptance. The Guaranty or Bond shall be forfeited to the City as Liquidated Damages, not as a penalty, for the cost and expense incurred should the Successful Proposer fail to execute the Contract. Indemnification Contractor shall indemnify and hold harmless City, its officers, agents, departments, instrumentalities directors, and employees, from liabilities, damages, losses, and costs, including, but not limited to reasonable attorney's fees, to the extent caused by the negligence, recklessness or intentional wrongful misconduct of Contractor and persons employed or utilized by Contractor in the performance of this Contract, and/or any civil action alleging the Contract was awarded in violation of any applicable law or ordinance, and/or that the Contractor is not performing this Contract in accordance with applicable laws including without limitation HB 325, Chapter 2010-80, Laws of Florida, as amended, and with rules, procedures, and regulations adopted in furtherance of HB 3251Chapter 2010-80. Performance of this Contract includes any civil action alleging that signage, tickets, notices of violations, and similar documents within the control of Contractor evidencing the offense do not comply or are otherwise in conflict with applicable laws. These indemnifications shall survive the term of this Contract and any termination or expiration of this Contract. In the event that any action or proceeding is brought against City by reason of any such claim or demand, Contractor shall, upon written notice from City, resist, investigate and defend such action or proceeding by counsel satisfactory to City Attorney. The Contractor expressly understands and agrees that any insurance protection required by this Contract or otherwise provided by Contractor shakl in no way limit the responsibility to indemnify, keep and save Traffic Infraction Detector Program Page 10 harmless and defend the City or its officers, employees, departments, agents and instrumentalities as herein provided. The indemnification provided above shall obligate Contractor to defend at its own expense to and through trial, appellate, supplemental or bankruptcy proceeding, or to provide for such defense, at City's option, any and all claims of liability and all suits and actions of every name and description which may be brought against City whether performed by Contractor, or persons employed or utilized by Contractor. This indemnity will survive the cancellation or expiration of the Contract. This indemnity will be interpreted under the laws of the State of Florida, including without limitation and interpretation, which conforms to the limitations of §725.06 and/or §725.08, Fla. Statutes, if determined to be applicable by a court, Contractor shall require all Subcontractor agreements to include a provision that they will indemnify the City. The Contractor agrees and recognizes that the City shall not be held liable or responsible for any claims which may result from any actions or omissions of the Contractor in which the City participated either through review or concurrence of the Contractor's actions. In reviewing, approving or rejecting any submissions by the Contractor or other acts of the Contractor, the City in no way assumes or shares any responsibility or liability of the Contractor or Subcontractor, under this Contract. Ten ($10.00) dollars payable by the City to the Contractor constitutes separate and distinct consideration for this indemnity and hold harmless provision, the sufficiency of which is hereby acknowledged by the Contractor. 14. Insurance Without limiting any of the other obligations or liabilities of the Contractor, Contractor shall provide. pay for, and maintain in force until expiration of the Contract, the insurance coverage's set forth herein 14.1. Workers' Compensation insurance to apply for all employees in compliance with the Statutory "Workers' Compensation Law" of the State of Florida and all applicable federal laws In addition, the policy (ies) must include: • Waiver of subrogation • Statutory State of Florida • Limits of Liability 14.2. Employers' Liability with a limit of One Million Dollars ($1,000,000.00) Dollars each bodily injury caused by an accident, each accident. One Million Dollars ($1,000,000.00) Dollars each bodily injury caused by disease, each employee. One Million Dollars ($1,000,000.00 Dollars each bodily injury caused by disease, policy limit. 14.3. Commercial General Liability (CGL) with minimum limits of One Million Dollars ($1,000,000.00) per occurrence, for Bodily Injury Liability and Property Damage Liability, with a general aggregate Limit of Two Million Dollars ($2,000,000.00). Coverage must be afforded on a form no more restrictive than the latest edition of the Commercial General Liability policy form, without restrictive endorsements, as filed by the Insurance Services Office. and must include: Traffic Infraction Detector Program Page 11 7 Z� • Products and Completed Operations with a limit of One Million Dollars ism i ($1,000,000.00) per project. Contractor shall maintain this coverage in force for three years after completion of all Work required under the Contract. Personal and Advertising Injury with a limit of One Million = �d Ul Dollars ($1,000,000). ='—tz • CGL Required Endorsements z o Employees included as insured w o Contingent Liability ( Independent Contractor Coverage) 4 O z c Contractual Liability o Waver of Subrogation o Premises and/or Operations o Explosion, Collapse and Underground hazard (If applicable) o Loading and Unloading o Mobile Equipment (Contractor's) whether owned, leased, borrowed or rented by Contractor or employees of the Contractor. 14.4. Business Automobile friability with minimum limits of One Million Dollars ($1,000,000.00) per occurrence combined single limit for Bodily Injury Liability and Property Damage Liability. Coverage must be afforded on a form no more restrictive than the latest edition of the Business Automobile Liability policy, without restrictive endorsements, as filed by the insurance Services Office, and must include ■ Owned Vehicles. • Hired and Non -Owned Vehicles. • City of Miami as Additional Insured 14. S. Umbrella Policy (Excess Follow Form) • Bodily injury and property damage liability with limits of Two Million Dollars ($2,000,000) each occurrence and an aggregate limit of Two Million Dotlars ($2,000,000). Excess coverage over the policies as follows: ■ Commercial General Liability ■ Business Automobile Liability • Employer's Liability (W/C) City shall be listed as an additional insured. Notice of Cancellation and/or material changes --The policy (ies) must be endorsed to provide City with notice of cancellation and/or material changes in accordance to policy provisions. Contractor shall furnish to the Project Manager the Certificates of Insurance or endorsements evidencing the insurance coverage specified above within fifteen (15) calendar days after notification by the City and prior to award of the Contract. Award if the Contract is contingent upon providing proof of the required insurance. The required Certificates of Insurance shall name the types of policies provided, refer specifically to this Contract, and state that such insurance is as required by this Contract. Traffic Infraction Detector Program Page 12 The official title to be shown for the Owner is the City of Miami, Florida. This official title shall be used in all insurance documentation. Companies authorized to do business in the State of Florida, with the following qualifications, shall issue all insurance policies required above: The company must be rated no less than "A2 as to management, and no less than "Class V as to Financial Strength, by the latest edition of Best's Insurance Guide, published by A.M. Best Company, Oldwick, New Jersey, or its equivalent. All policies and /or certificates of insurance are subject to review and verification by Risk Management prior to insurance approval. The Risk Administrator or his/her authorized designee reserves the right to require modifications, increases, or changes in the required insurance requirements, coverage, deductibles or other insurance obligations by providing a thirty (30) day written notice to the Contractor in accordance with Article 7, Notices. Contractor shall comply with such requests unless the insurance coverage is not then readily available in the national market. An additive or deductive change order will be issued to adjust the Contract Fee as necessary. 15. Construction Key Personnel and Staffing Contractor shall assign to this Project all of the Key Personnel identified in its RFP Response. Such personnel shall remain assigned to the Project through the duration of this Project and shall not be reassigned without the prior written approval of the City's Project Manager, unless the individual has left the employment of the Contractor. Program Manager shall be authorized to act on behalf of the Contractor to coordinate all aspects of the Program. The Program Manager or designee is expected to be available 100% of his/her time full-time as assigned to the Program. Contractor will provide 24/7 support for the Program. The employee(s) of the Contractor and Subcontractors shall be considered to be at all times employee(s) of the Contractor or the Subcontractors, as applicable, and not an employee(s) or agent(s) of the City or any of its departments. The Contractor agrees that the Contractor and its Subcontractors shall at all times employ, maintain and assign to the Program a sufficient number of competent and qualified personnel to meet the requirements of the Program. The Contractor and Subcontractors agree to adjust staffing levels or to replace any staff personnel to ensure that the Program is managed and operated in an efficient and effective manner and in accordance with the requirements of the Contract. 16. Subcontractors A Subcontractor is any person or entity that is performing, furnishing, supplying or providing any portion of the Work pursuant to a contract with Contractor. Contractor shall be solely responsible for and have control over the Subcontractors. All subcontracts shall. • require each Subcontractor to be bound to the Contractor to the same extent Contractor is bound to the City by the terms of the Contract Documents, as those terms may apply to the portion of the Work to be performed by the Subcontractor; Traffic Infraction Detector Program Page 13 • Require the Subcontractor to indemnify and hold harmless the City, its officers, agents, directors, and employees, and instrumentalities as provided in this - v Contract. • provide that the City will be an additional indemnified party of the subcontract; u • a provision requiring Subcontractor to maintain insurance in accordance with the M < Contract Documents or as may be required by the Risk Administrator; • provide that the City will be an additional insured on all insurance policies U z required to be provided by the Subcontractor except workers' compensation; in Contractor shall require all Subcontractor agreements to include a provision that they =_ will indemnify and hold harmless the City, its officers, agents, directors, and employees, and instrumentalities as herein provided. 17. Installation of Traffic Infraction Detector Svstems Contractor shall be solely responsible for the installation of, and all cost associated therewith for all Traffic Infraction Detector Systems. Contractor shall be responsible for all property access requirements (easement agreements), design, approvals, permitting, construction, including Work performed by Subcontractors, required for the performance of the Work necessary for the installation of the Traffic Infraction Detector Systems, including but not limited to; • Contractor shalt only instal; Traffic Infraction Detector Systems at intersection approved in writing by the Project Manager. The City may add additional intersections to the initial nineteen (19), up to an unlimited amount, during the term of the Contract. Such additions will be added through the issuance of a Change Order and Work on new installations shall not commence until the Project Manager issues a written Notice to Proceed • Obtaining any required easement agreements necessary for the installation of the Detector Systems, It is the sole responsibility of the Contractor to obtain any easements required for the Traffic Infraction Detector System(s) to be installed at an approved intersection. Where the City owns the property the City will provide access to the property for the purpose of the installation and maintenance of the Traffic Infraction Detector System(s), • Contractor is solely responsible for the design and installation, including any associated construction work that may be required to install the Traffic Infraction Detector System(s) at approved intersections. Contractor is responsible for obtaining any and all permits, at its sole cost required for installation. The City will waive any City of Miami construction master or trade permits required by the City. Permit fees require by other public entities will not be waived. • Any traffic infraction detector installed by the Contractor will meet specifications established by the FDOT, and roust be tested at regular intervals according to specifications prescribed by the FDOT. • Contractor shall submit all design plans to the Project Manager for review and approval prior t to the design plans being submitted for permitting. • Contractor is required to obtain all permit inspections and provide the Project Manager copies of all permit approvals. • Contractor shall be responsible for coordinating any installation work with utilities companies, FDOT, Miami -Dade County or any other individual or business, which may be affected by the installation of the Traffic Infraction Detector System. Contractor shall be solely liable and responsible for all cost for the Traffic Infraction Detector Program Page 14 repair of any damage to any property, public or private, which results from the Contractor's Work. • Project Manager shall inspect the installation of each Traffic Infraction Detector System installed at an intersection and Issue a written acceptance of said installation. Project Manager shall have the authority to accept or reject the installation Work, or require modification of the Work. • Any new Traffic Infraction Detector System installed at an intersection shall not become an Active Traffic Infraction Detector System under the Program until the Contractor has tested the Traffic Infraction Detector System and demonstrated to the satisfaction of the Project Manager that the Traffic Infraction Detector System(s) is working in accordance with the requirements of the Contract Documents. Project Manager shall issue written acceptance and designate the Traffic infraction Detector System(s) as an Active Traffic Infraction Detector System(s) at which time the Active Traffic Infraction Detector System shall become operational under the Program. 18. Primary Contact Contractor shall coordinate all correspondence, submittals, applications for payment, requests for information, change orders, claims and any other requests or documents through the Project Manager, 19. Ownership of the Equipment and Data Contractor shall retain sole ownership of all equipment, including but not limited to the Traffic Infraction Detector System and the System, which shall be maintained free and clear of any liens, encumbrances, pledges, security interests, or guaranties, not including company lender security interests. The Contractor shall maintain direct ownership of the equipment during its use under the Program. Where the City determines that the Contractor does not possess sole ownership of said equipment the City may, at its sole discretion, required the replacement of the equipment at the sole cost of the Contractor, with equipment owned by the Contractor. Should the Contractor fail to replace said equipment the City may assess liquidated damages, as stipulate in Article 58 of the Contract or find the Contractor in default of the Contract. At the expiration of the Contract the City may, at its sole discretion, negotiate to purchase some or all of the equipment. All data and documents collected or generated under this Contract which would routinely be kept and maintained by the City in its usual course of business are the property of the City and as such shall be considered public records, to be disposed of in accordance with state law, except for any data or documents that the Contractor has designated as confidential, in accordance with applicable Florida Statutes. Contractor shall be required to provide such documentation as may be necessary to respond to public records requests received by the City. Court records of courts of competent jurisdiction of the State of Florida which are part of the State Court System, which are not in the possession of the Contractor or the City are not public records of the City of Miami. At the completion of the Contract the Contractor shall turn over all data to the City in an electronic format acceptable to the City that allows for its use in a database system owned by the City. Final Payment shall not be made to the Contractor until the City has received all of the data. Traffic Infraction Detector Program Page 15 z ` I in f 20. Continuing the Work Contractor shall carry on the Program and adhere to the requirements of the 0 Contract Documents during all disputes or disagreements with City. The Work shall not be delayed, postponed pending resolution of any disputes or disagreements. All F disputes shall be resolved in accordance with the provisions of the Contract = :n 4 Documents. d U- ZD 21. Discretion of Director ' LU Any matter not expressly provided for herein dealing with the City or decisions of the M Un City shall be within the exercise of the reasonable professional discretion of the 77 Director or the Director's authorized designee. 22. Authority of the City's Project Manager The Director hereby authorizes the Project Manager designated by the Director, without limitation, to be the City's point of contact for the management of the Program. All Work shall be coordinated through the Project Manager, including day to day operations, answering all questions of any nature whatsoever arising out of, under or in connection with, or in any way relating to or on account of the Work under the Program, and the interpretation of the Work to be performed the Contract Documents. The Contractor shalt/ be bound by all determinations or orders of the Project Manager and shall promptly respond to requests of the Project Manager. Where requests are made orally, the Project Manager will follow up in writing, as soon thereafter as is practicable. The Project Manager shall have authority to act on behalf of the City to the extent provided by the Contract Documents, unless otherwise modified in writing by the City. All instructions to the Contractor shall be issued in writing. All instructions to the Contractor shall be issued through the Director, or the Project Manager. The City's Project Manager and other representatives of the City, as authorized by the Director, shall have access to the Contractor's operations facility during normal words hours. The Project Manager shall endeavor to provide a minimum of twenty- four hours advance notice to the Contractor. All interpretations and recommendations of the Project Manager and Director shall be consistent with the intent of the Contract Documents. The Project Manager will not be responsible for the acts, errors, or omissions of the Contractor, or anyone employed or contracted directly or indirectly by the Contractor, including any Subcontractor, or any of their agents or employees, or any other persons performing any of the Work. Project Manager will not be responsible for ensuring that the Active Traffic Infraction Detector System, the Program and the Scope of Work as are all referenced herein will be in compliance with applicable laws, rules and regulations, this shall be the sole responsibility of the Contractor. 23. Reference Standards Reference to the standards of any technical society, organization or body shall be construed to mean the latest standard adopted and published at the date of RFP or as subsequently amended or revised, even though reference may have been made to an earlier standard, unless otherwise stipulated in the Contract Documents. Such reference is hereby made a part of the Contract Documents, the same as if herein Traffic Infraction, Detector Program Page 16 repeated in full and in the event of any conflict between any of these standards and — those specified, the most stringent shall govern unless otherwise stated. - 24. Changes in the Work or Terms_ of Contract_ Documents ,, z Without invalidating the Contract, City reserves and shall have the right, from time to i~ time to make such increases, decreases or other changes in the character or � =Z quantity of the Work as may be considered necessary or desirable, including but not limited to the addition or deletion of traffic intersections from Program. Any extra or w additional Work within the scope of the Program must be accomplished by means of m a Change Orders issued in accordance with this Contract. Any changes to the terms of the Contract Documents must be contained in a written document, executed by the parties hereto; This Article shall not prohibit the issuance of Change Orders executed only by City as hereinafter provided. 25. Extension of Time The Contract Documents contain specific timeframes for performance of certain specific aspects of the Work under the Program. Contractor is solely responsible for meeting the timeframes established in the Contract Documents. Where the Contractor may be delayed in meeting the established timeframes due to a force majeure, or other intervening event outside the control of the Contractor, the Contractor shall submit a written request for delay to the Project Manager, within five (5) calendar days of the intervening event. Such a request must clearly substantiate the reason and time impact for the delay. The Project Manager, at his/her sole discretion may approve or reject the request for delay, or request that additional information be provided prior to making a determination. Failure to submit written notice to the Project Manager within five (5) calendar days shall result in the City not considering any request for delay due to the intervening event. 26, Safety Precautions Contractor shall be solely responsible for initiating, maintaining and supervising all safety precautions and programs required to maintain safe work environment(s), inclusive of all Work performed in the office or in the field. Contractor and its Subcontractors shall take all necessary precautions for the safety of its employees and the public, and shall provide the necessary protection to prevent damage, injury or loss to: All employees and other persons who may be affected where Work is being performed; All equipment and materials used in or to be incorporated into the Program, whether in an office environment, in the field, or at an intersection; and Other property at an intersection where a Traffic Infraction Detector System is being installed, including trees, shrubs, lawns, walks, pavements, roadways, structures and utilities. The Contractor warrants that it will comply with all OSHA requirements as well as all safety precautions as required by federal, state or local laws, rules, regulations and ordinances. 27. Priority of Provisions If there is a conflict or inconsistency between any term, statement requirement, or provision of any exhibit attached hereto, any document or events referred to herein, or any document incorporated into this Contract by reference and a term, statement, Traffic Infraction Detector Program Page 17 In the event of omissions in the Contract Documents which are not complete as to any incidental details or requirements of the Program, such details or requirements shall be deemed to be an implied requirement of the Contract Documents. 28. Payments No fee shall be required during the initial public awareness campaign which shall be no fewer than forty-five (45) days. The public awareness campaign plan shall be subject to the approval of the City Manager, Payments shall be made on a monthly (iasis for the Work performed in the previous month based on a monthly fee per camera as detailed below, for each intersection with an Active Traffic Infraction Detector System. Cameras per'Monthly Fee II intersection One Camera $ 4,750 Two Cameras $ 4,500 -hree Cameras Four Cameras $4,350 $ 4,250 Where an Active Traffic Infraction Detector System is in operation for less than the full month being invoiced, the Contractor shall invoice on a pro rata basis for the month. Payment of an approved Application for Payment shail be made within forty-five (45) days after receipt of Contractor's invoice by the City, which shall be accompanied by sufficient supporting documentation and contain sufficient detail, to allow a proper audit of expenditures, should the City require one to be performed. City and Contractor shall agree on a standard format for all invoices prior to the submission of the first invoice. The monthly per camera fee shall consist of the total compensation for furnishing installing, operating and maintaining the Program inclusive of any/all direct and indirect expenses (including cost of regular and certified mail associated with issuance of warnings, citations and/or violations). Should the City monthly revenue Traffic Infraction Detector Program Page 18 7_ G .� d ` T requirement, or provision of this Contract, then the provision that imposes the quality, U. quantity, duty or obligation most consistent with the intent of the Contract Documents, as reasonably determined by the City, shall govern. Should any conflict or inconsistency continue to exist, the following order of precedence shall apply: Cd In the event of conflicts in the Contract Documents, the priorities stated below shall r q �t , govern; z a • Change Orders to the Contract Documents shall govern over the Contract m Documents, © v • Contract Documents shall govern over the RFP Response. • Final Negotiated changes to RFP Response shall govern over the RFP Response. • Contract shall govern over the RFP Response. • Addendum to the RFP shall govern over the RFP. In the event of omissions in the Contract Documents which are not complete as to any incidental details or requirements of the Program, such details or requirements shall be deemed to be an implied requirement of the Contract Documents. 28. Payments No fee shall be required during the initial public awareness campaign which shall be no fewer than forty-five (45) days. The public awareness campaign plan shall be subject to the approval of the City Manager, Payments shall be made on a monthly (iasis for the Work performed in the previous month based on a monthly fee per camera as detailed below, for each intersection with an Active Traffic Infraction Detector System. Cameras per'Monthly Fee II intersection One Camera $ 4,750 Two Cameras $ 4,500 -hree Cameras Four Cameras $4,350 $ 4,250 Where an Active Traffic Infraction Detector System is in operation for less than the full month being invoiced, the Contractor shall invoice on a pro rata basis for the month. Payment of an approved Application for Payment shail be made within forty-five (45) days after receipt of Contractor's invoice by the City, which shall be accompanied by sufficient supporting documentation and contain sufficient detail, to allow a proper audit of expenditures, should the City require one to be performed. City and Contractor shall agree on a standard format for all invoices prior to the submission of the first invoice. The monthly per camera fee shall consist of the total compensation for furnishing installing, operating and maintaining the Program inclusive of any/all direct and indirect expenses (including cost of regular and certified mail associated with issuance of warnings, citations and/or violations). Should the City monthly revenue Traffic Infraction Detector Program Page 18 • The Contractor has not managed or operated the Program, including the performance standards set forth in the Contract Documents, in accordance with the requirements of the Contract Documents. • The Contractor has not installed or maintained Traffic Infraction Detector Systems in a timely manner; • The Contractor has failed to make prompt payment to Subcontractors or suppliers for any services. materials or equipment they have provided; • The Contractor has become insolvent or has assigned the proceeds received for the benefit of the Contractor's creditors, or the Contractor has taken advantage of any insolvency statute or debtor/creditor law or if the Contractor's affairs have been put in the hands of a receiver; • The Contractor has failed to obtain the approval of the City, FDOT, Miami -Dade County, or the Court where required by the Contract Documents; • Contractor fails to obtain or maintain the insurance herein required. • Contractor fails to comply with any of its duties under this Contract, with any terms or conditions set forth in this Contract beyond the specified period allowed to cure such default. • Contractor fails to commence the Work within the timeframes provided or contemplated herein, or fails to complete the Work in a timely manner as required by the Contract Documents. • When, in the opinion of the City, reasonable grounds for uncertainty exist with respect to the Contractor's ability to continue to perform the Work required by the Program, the City shall notify the Contractor in writing that it must, within the time frame set forth in the City's request, provide adequate assurances and an action plan to the City, in writing, of the Contractor's ability to perform in accordance with the terms of the Contract Documents. In the event that the Contractor fails to provide to the City the requested assurances within the prescribed time frame or subsequently fails to meet the requirements of the action plan, such failure shall be deemed an Event of Default. In the event the Traffic Infraction Detector Program Page 19 l= � for a particular camera fall short of the cost of the fee for that camera, the Contractor will absorb the difference in cost for that camera that month. The City will not pay 0 any fee per camera that exceeds the revenue per that camera received by the City. n 29. Pa ments Related to Guaranteed Obligations T: Z �' The City may withhold from any payments to be made such sums as may reasonably � M � be necessary to ensure payment to a Subcontractor or supplier who has notified the � w �- City in writing that it has not been paid in accordance with Florida Statute's Local En w C JF Government Prompt Payment Act, The Project Manager, prior to withholding or deducting any monies hereunder, shall give the Contractor prior written notice providing the basis for the withholding or deduction. Upon the Project Manager's determination that the Contractor has fulfilled its obligations, the City will pay the Contractor any monies owed. 30. Default/ Events of Default An event of default shall mean a breach of the Contract by the Contractor ("Event of Default"). Without limiting the generality of the foregoing, and in addition to those instances referred to herein as a breach, an Event of Default shall include but is not limited to, the following: • The Contractor has not managed or operated the Program, including the performance standards set forth in the Contract Documents, in accordance with the requirements of the Contract Documents. • The Contractor has not installed or maintained Traffic Infraction Detector Systems in a timely manner; • The Contractor has failed to make prompt payment to Subcontractors or suppliers for any services. materials or equipment they have provided; • The Contractor has become insolvent or has assigned the proceeds received for the benefit of the Contractor's creditors, or the Contractor has taken advantage of any insolvency statute or debtor/creditor law or if the Contractor's affairs have been put in the hands of a receiver; • The Contractor has failed to obtain the approval of the City, FDOT, Miami -Dade County, or the Court where required by the Contract Documents; • Contractor fails to obtain or maintain the insurance herein required. • Contractor fails to comply with any of its duties under this Contract, with any terms or conditions set forth in this Contract beyond the specified period allowed to cure such default. • Contractor fails to commence the Work within the timeframes provided or contemplated herein, or fails to complete the Work in a timely manner as required by the Contract Documents. • When, in the opinion of the City, reasonable grounds for uncertainty exist with respect to the Contractor's ability to continue to perform the Work required by the Program, the City shall notify the Contractor in writing that it must, within the time frame set forth in the City's request, provide adequate assurances and an action plan to the City, in writing, of the Contractor's ability to perform in accordance with the terms of the Contract Documents. In the event that the Contractor fails to provide to the City the requested assurances within the prescribed time frame or subsequently fails to meet the requirements of the action plan, such failure shall be deemed an Event of Default. In the event the Traffic Infraction Detector Program Page 19 City may, at its sole discretion terminate the Contract for default, the City or its designated representatives shall have right to immediately possession of all applicable documentation and data. • Where the City erroneously terminates the Contract for default, the terminations shall be converted to a Termination for Convenience, and the Contractor shall have no further recourse of any nature for wrongful termination. 31. Notice of Default -Opportunity to Cure In the event that the City determines that an Event of Default has occurred, the City may, at its sole discretion, notify the Contractor, specifying the basis for such default, and advising the Contractor that such default must be cured within Cure Period determined by the City. The City is under no obligation to issue such notification. The City may grant an extension to the Cure Period if the City deems it appropriate and in the best interest of the City, without waiver of any of the City's rights hereunder. The City, at its sole discretion, may have a default corrected by its own forces or another contractor and any such costs incurred will be deducted from any sums due the Contractor under this Contract or any other contract between Contractor and the City. 32. Remedies for Contractor's Default If an Event of Default occurs that is not cured within the applicable Cure Period, if any, then in addition to all remedies available to it by law, the City may (i) have the default corrected by its own forces or another contractor, and any such costs incurred will be deducted from any sums due the Contractor under this Contract or any other contract between Contractor and the City, (ii) suspend any payment or part thereof or order a Work stoppage until such time as the issues concerning compliance are resolved, or (iii) immediately, upon written notice to Contractor, terminate this Contract whereupon all payments, advances, or other compensation paid by the City to Contractor while Contractor was in default shall be immediately returned to the City. in the event the City exercises it right to terminate due to a default, the City shall be entitled to possession of all data generated by the Program, which is owned by the City. In such event Contractor fails to furnish to the City said data, the City shall retain any payment due the Contractor until said data is provided to the City. The City may also take any necessary and appropriate action available under this Contract or under the law. Additionally, Contractor shall be liable for all costs and expenses incurred by the City in the re -procurement of the Work under this Contract. The Contractor shall stop Work as of the date of notification of the termination. At the City's option, the City may order the Contractor to immediately remove all Traffic Infraction Detector Systems from the Work Site. The City assumes no liability for the Contractor's failure to remove the Traffic Infraction Detector Systems as required. Contractor shall promptly return all City owned property to a location(s) designated by the Project Manager. No payments will be made to the Contractor for any sum owed the Contractor until all material and data are turned over to the City, Contractor shall also be required to restore the intersections where Traffic Infraction Detector Systems are removed to their pre-existing condition. Contractor understands and agrees that termination of this Contract under this Article shall not release Contractor from its obligations under this Contract and the Contract Documents Traffic Infraction Detector Program Page 20 z �z =0o Zm ail z 83 As an alternative to termination, the City may bring suit or proceedings for specific performance or for an injunction. Where it has been determined by a court of competent jurisdiction that the Contractor has been erroneously terminated, such termination shall be deemed to have occurred under Article 33, as a Termination for Convenience. 33. Termination for Convenience In addition to any other rights the City may have by law or under this Contract with respect to cancellation or termination, the City may at any time, after the first year following the initial installation of the cameras, in its sole discretion, with or without cause, terminate the Contract, in whole or in part, by written notice to the Contractor. Such Written Notice shall state the date upon which Contractor shall cease all Work under the Contract and remove the Traffic Infraction Detector Systems. The Contractor shall, upon receipt of such notice, unless otherwise directed by the City: Stop all Work on the Program on the date specified in the notice ("the Effective Date"); Take no action that shall increase the amounts payable by the City under the Contract Documents', and Take reasonable measures to mitigate the City's liability under the Contract Documents. • All Work Product, including but not limited to data, reports and other documents, including electronic documents, related to Program, must be turned over to the City, f=ailure to timely deliver the documentation shall be cause to withhold any payments due without recourse by Contractor until all documentation is delivered to the City. In the event that the City exercises its right to terminate this Contract, the City will pay the Contractor the monthly fee due based on the Active Traffic Infraction Detector Systems. All payments pursuant to this Article shall be accepted by the Contractor in full satisfaction of all claims against the City arising out of the termination. Further, the City may deduct or set off against any sums due and payable under this Article any claims it may have against the Contractor. Contractor shall promptly return all City owned property to a location(s) designated by the Project Manager. No payments will be made to the Contractor for any sum owed the Contractor until all material and data are turned over to the City. Contractor shall also be required to restore the intersections where Traffic Infraction Detector Systems are removed to their pre-existing condition. Contractor shall not be entitled to lost profits, overhead or consequential damages as a result of a Termination for Convenience and all payments made under the Contract are subject to audit by the City. 34. Termination Due To Undisclosed Lobbyist Or Agent Contractor warrants that it has not employed or retained any company or person to solicit or secure this Contract and that it has not paid or agreed to pay any person, company, corporation, individual or firm any fee, commission, percentage, gift, or other consideration contingent upon or resulting from the award or making of this Contract. Traffic Infraction Detector Program Page 21 r -- If the Contractor is delayed in performing any obligation under this Contract due to a force majeure condition, the Contractor shall request a time extension from the City within two (2) working days of said force majeure occurrence. Any time extension shall be subject to mutual agreement and shall not be cause for any claim by the Contractor for extra compensation unless additional services are required. Force Majeure shall not include inclement weather, except as permitted by Florida law, and shall not include the acts or omissions of Subcontractors or suppliers. 37. Resolution of Contract Disputes Contractor understands and agrees that all disputes between it and the City based upon an alleged violation of the terms of this Contract by the City shall be submitted for resolution in the following manner. The initial step shall be for the Contractor to notify the City's Project Manager in writing of the claim or dispute and submit a copy to the City of Miami personnel identified in Article 7, Notices, Should the Contractor and the Project Manager fail to resolve the dispute, the Contractor shall submit the dispute in writing, with all supporting documentation, to the Capital Improvements Program Assistant Director, as identified in Article 7, Notices. Upon receipt of said notification, the Assistant Director shall review the issues relative to the claim or dispute and issue a written finding. Should the Contractor and the Assistant Director fail to resolve the dispute within fourteen (14) calendar days, or such other timeframe agreed to by both parties in writing, the Contractor shall submit the dispute in writing, within five (5) calendar days of the issuance of the written finding, to the Director. Failure to submit such appeal of the written finding within five (5) calendar days shall constitute acceptance of the finding by the Contractor, Upon receipt of said notification, the Director shall review the issues relative to the claim or dispute and issue a written finding within fourteen (14) calendar days, or such other timeframe agrees{ to by both parties in writing. Contractor must submit any further appeal in writing within five (5) calendar days of the issuance of the written finding or failure by the Director to issue a written finding, Traffic Infraction Detector Program Page 22 z 0 For the breach or violation of this provision, the City shall have the right to terminate Z, a the Contract without liability. 0 Ln C 35. Materiality and Waiver of Breach < n f 7 - City and Contractor agree that each requirement, duty, and obligation set forth in these Contract Documents is substantial and important to the formation of this € Contract and, therefore, is a material term hereof. City's failure to enforce any provision of this Contract shall not be deemed a waiver V of such provision or modification of this Contract. A waiver or any failure on the part of the City to act on any breach of a provision of this Contract shall not be deemed a waiver of any subsequent breach and shall not be construed to be a modification of the terms of this Contract. 36, Force Maieure Should any failure to perform on the part of Contractor be due to a condition of force majeure as that term is interpreted under Florida law, then the City may allow an extension of time reasonably commensurate with the cause of such failure to perform or cure. If the Contractor is delayed in performing any obligation under this Contract due to a force majeure condition, the Contractor shall request a time extension from the City within two (2) working days of said force majeure occurrence. Any time extension shall be subject to mutual agreement and shall not be cause for any claim by the Contractor for extra compensation unless additional services are required. Force Majeure shall not include inclement weather, except as permitted by Florida law, and shall not include the acts or omissions of Subcontractors or suppliers. 37. Resolution of Contract Disputes Contractor understands and agrees that all disputes between it and the City based upon an alleged violation of the terms of this Contract by the City shall be submitted for resolution in the following manner. The initial step shall be for the Contractor to notify the City's Project Manager in writing of the claim or dispute and submit a copy to the City of Miami personnel identified in Article 7, Notices, Should the Contractor and the Project Manager fail to resolve the dispute, the Contractor shall submit the dispute in writing, with all supporting documentation, to the Capital Improvements Program Assistant Director, as identified in Article 7, Notices. Upon receipt of said notification, the Assistant Director shall review the issues relative to the claim or dispute and issue a written finding. Should the Contractor and the Assistant Director fail to resolve the dispute within fourteen (14) calendar days, or such other timeframe agreed to by both parties in writing, the Contractor shall submit the dispute in writing, within five (5) calendar days of the issuance of the written finding, to the Director. Failure to submit such appeal of the written finding within five (5) calendar days shall constitute acceptance of the finding by the Contractor, Upon receipt of said notification, the Director shall review the issues relative to the claim or dispute and issue a written finding within fourteen (14) calendar days, or such other timeframe agrees{ to by both parties in writing. Contractor must submit any further appeal in writing within five (5) calendar days of the issuance of the written finding or failure by the Director to issue a written finding, Traffic Infraction Detector Program Page 22 to the City Manager. Failure to submit such appeal of the written finding within five (5) calendar days shall constitute acceptance of the finding by the Contractor. Appeal to the City Manager for his/her resolution, is required prior to Contractor being entitled to seek judicial relief in connection therewith. Should the amount of compensation hereunder exceed $100,000, the City Manager's decision shall be approved or disapproved by the City Commission. Contractor shall not be entitled to seek judicial relief unless it has complied with all of the requirements of this Article, and: it has first received City Manager's written decision, approved by the City Commission, if applicable, or a period of thirty (30) days has expired after submitting to the City Manager a detailed statement of the dispute, accompanied by all supporting documentation, or a period of (90) days has expired where City Manager's decision is subject to City Commission for approval; or City has waived compliance with the procedure set forth in this Article by written instrument(s) signed by the City Manager. In the event the determination of a dispute under this Article is unacceptable to the Contractor, the Contractor must notify the City, in writing, within seven (7) calendar days of receipt of the written determination that it intends to seek arbitration of the claim. The notice must state the basis of the objection and must be accompanied by a statement that any price or time adjustment claimed is the entire adjustment to which the Contractor has reason to believe it is entitled to as a result of the determination. Failure to submit such notification within the stipulated timeframe shall constitute acceptance of the City's final position in response to any claim. Both parties will work together and make their best efforts to have the mediation held within thirty (30) calendar days of the request being submitted by the Contractor. Within sixty (60) calendar clays after expiration of the Contract, the parties shall participate in mediation to address all objections to any determinations hereunder and to attempt to prevent litigation. The mediator shall be mutually agreed upon by the parties. Should any objection not be resolved in mediation, the parties retain all their legal rights and remedies provided under State law. Contractor specifically waives all of its rights provided hereunder, Including its rights and remedies under State law, if said party fails to comply in strict accordance with the requirements of this Article. Notwithstanding the existence of any dispute between the City and Contractor, each Party shall continue to perform as required under the Contract Documents, and City shall continue to pay Contractor as provided in the Contract Documents, 38. Mediation - Waiver of Jury Trial In an effort to engage in a cooperative effort to resolve conflict which may arise during the course of the design and/or construction of the Project, and/or following the completion of the Project, the parties to this Contract agree that alt unresolved disputes between them shall be submitted to non-binding mediation prior to the initiation of litigation, unless otherwise agreed in writing by the parties. A certified Mediator, who the parties find mutually acceptable, will conduct any Mediation Proceedings in Miami -Dade County, State of Florida. The parties will share the costs of a certified Mediator on a 50/50 basis. Traffic Infraction Detector Program Page 23 In an effort to expedite the conclusion of any litigation, the parties voluntarily waive their right to jury trial or to file permissive counterclaims in any action arising under this Contract. Any dispute submitted to the courts for resolution prior to the completion of the procedures stipulated in Article 38, Resolution of Contract Disputes and Article 39, Mediation — Waiver of Jury Trial shall be rejected by the courts until such time as the stipulated procedures have been completed. 39. Applicable Law and Venue Of Liti ation� Waiver of Jury Trial and Permissive Counterclaims This Contract shall be interpreted and construed in accordance with and governed by the laws of the State of Florida. Any suit or action brought by any party, concerning this Contract, or arising out of this Contract, shall be brought in Miami -Dade County, Florida. Each party shall bear its own attorney's fees except in actions arising out of Contractor's duties to indemnify the City under this Contract where Contractor shall pay the City's reasonable attorney's fees. In order to expedite the conclusion of litigation between the parties the Contractor and City each agree that in any suit or action between themselves involving performance or breach of this Contract they each voluntarily and knowingly waive their right to demand a jury trial or to file a permissive counterclaim in suits or actions between the parties under this Section. 40. City MaV Avail Itself of All Remedies The City may avail itself of each and every remedy herein specifically given to it now or existing at law or in equity, and each and every such remedy shall be in addition to every other remedy so specifically given or otherwise so existing and may be exercised from time to time and as often and in such order as may be deemed expedient by the City. The exercise or the beginning of the exercise, of one remedy shall not be deemed a waiver of the right to exercise, at the same time or thereafter, of any other remedy. The City's rights and remedies as set forth in the Contract Documents are not exclusive and are in addition to any other rights and remedies in law or in equity. 41. Public Entity Crimes In accordance with the Public Crimes Act, Section 287.133, Florida Statutes, a person or affiliate who is a contractor, consultant or other provider, who has been placed on the convicted vendor list following a conviction for a public entity crime, may not submit a bid on a contract to provide any goods or services to the City, may not submit a bid on a contract with the City for the construction or repair of a public building or public work, may not submit bids on leases of real property to the City, may not be awarded or perform work as a contractor, supplier, subcontractor, or sub consultant under a contract with the City, and may not transact any business with the City in excess of the threshold amount provided in Section 287.017, Florida Statutes, for category two purchases for a period of 36 months from the date of being placed on the convicted vendor list. Violation of this section by Contractor shall result in cancellation of the City purchase and may result in Contractor's debarment. 42. Audit Rights Contractor's records which shall include but not be limited to accounting records, payroll time sheets, cancelled payroll checks, W -2's, 1099's, written policies and procedures, computer records, disks and software, videos, photographs, subcontract Traffic Infraction Detector Program Page 24 O 7 - files files (including proposals of successful and unsuccessful bidders), originals estimates, estimating worksheets, correspondence, change order files (including documentation covering negotiated settlements), and any other supporting evidence ¢ necessary to substantiate charges related to this Contract (all the foregoing hereinafter referred to as "records") shall be open to inspection and subject to audit m and/or reproduction, during normal working hours, by City's agent or its authorized z representative to the extent necessary to adequately permit evaluation and = z VJ z verification of any invoices, payments or claims submitted by the Contractor or any of Ns payees pursuant to the execution of the Contract. Such records subject to o M 0 examination shall also include, but not be limited to, those records necessary to 0 U evaluate and verify direct and indirect costs (including overhead allocations) as they may apply to costs associated with this Contract. Records subject to the provisions of Public Record Law, Florida Statutes Chapter 119, shall be kept in accordance with such statute. Otherwise, for the purpose of such audits, inspections, examinations and evaluations, the City's agent or authorized representative shall have access to said records from the effective date of this Contract, for the duration of the Work, and until 5 years after the date of final payment by the City to Contractor pursuant to this Contract. The City's agent or its authorized representative shall have access to the Contractor's facilities, shall have access to all necessary records, and shall be provided adequate and appropriate work space, in order to conduct audits in compliance with this provision. The City or its authorized representative shall give auditees reasonable advance notice of intended audits. 43. Nondiscrimination, Equal Employment Opportunity, and Americans with Disabilities Act Contractor warrants and represents that it does not and will not engage in discriminatory practices and that there shall be no discrimination in connection with Contractor's performance under this Contract on account of race, color, sex, religion, age, handicap, marital status or national origin. Contractor further covenants that no otherwise qualified individual shall, solely by reason of his/her race, color, sex, religion, age, handicap, marital status or national origin, be excluded from participation in, be denied services, or be subject to discrimination under any provision of this Contract. Contractor shall affirmatively comply with all applicable provisions of the Americans with Disabilities Act (ADA) in the course of providing any services funded by City, including Titles I and II of the ADA (regarding nondiscrimination on the basis of disability), and all applicable regulations, guidelines, and standards. In addition, Contractor shall take affirmative steps to ensure nondiscrimination in employment against disabled persons. 44. Independent Contractor The Contractor is engaged as an independent business and agrees to perform Work as an independent contractor In accordance with the status of an independent contractor, the Contractor covenants and agrees that the Contractor will conduct business in a manner consistent with that status, that the Contractor will not claim to be an officer or employee of the City for any right or privilege applicable to an officer or employee of the City, including, but not limited to: worker's compensation coverage; unemployment insurance benefits; social security coverage; retirement membership, or credit. Traffic Infraction Detector Program Page 25 7- ZD ZD < z Ln The Contractor's staff shall not be employees of the City, and the Contractor alone „u shall be responsible for their Work, the direction thereof, and their compensation and xU.benefits of any kind. Nothing in the Contract Documents shall impose any liability or � O duty on the City on account of the Contractor's acts, omissions, liabilities or obligations of those of any person, firm, company, agency association, corporation, F:. or organization engaged by the Contractor as a Subcontractor, expert, consultant, independent contractors, specialist, trainee, employee, servant or agent or for taxes ¢- of any nature, including, but not limited to: unemployment insurance; worker's Y compensation and anti-discrimination, or workplace legislation of any kind. The m Contractor hereby agrees to indemnify and hold harmless the City against any such Ln z liabilities, even if they arise from actions directed or taken by the City. u 45. Successors And Assigns The performance of this Contract shall not be transferred pledged, sold, delegated or assigned, in whole or in part, by the Contractor without the written consent of the City. It is understood that a sale of the majority of the stock or partnership shares of the Contractor, a merger or bulk sale, an assignment for the benefit of creditors shall each be deemed transactions that would constitute an assignment or sale hereunder requiring prior City approval. The Contractor's services are unique in nature and any transference without City Commission approval shall be cause for the City to nullify this Contract. Any assignment without the City's consent shall be null and void. The Contractor shall have no recourse from such cancellation. The City may require bonding, other security, certified financial statements and tax returns from any proposed assignee and the execution of an assignment/ assumption agreement in a form satisfactory to the City Attorney as a condition precedent to considering approval of an assignment. The Contractor and the City each binds one another, their partners, successors, legal representatives and authorized assigns to the other party of this Contract and to the partners, successors, legal representatives and assigns of such party in respect to all covenants of this Contract. If the Contractor assigns, transfers, sublets or otherwise disposes of the Contract or its right, title or interest in or to the same or any part thereof without the previous consent in writing of the City, such action shall be an Event of Default. Nothing herein shall either restrict the right of the Contractor to assign monies due to, or to become due or be construed to hinder, prevent or affect any assignment by the Contractor for the benefit of its creditors, made pursuant to applicable law. The Contractor shall not pledge the City's credit or make it a guarantor of payment or surety for any contract, debt, or obligation, judgment, lien or any form of indebtedness. The Contractor further warrants and represents that it has no obligation or indebtedness that would impair its ability to fulfill the terms of this Contract. 46. Third Party Beneficiaries Neither Contractor nor the City intends to directly or substantially benefit a third party by this Contract. Therefore, the parties agree that there are no third party beneficiaries to this Contract and that no third party shall be entitled to assert a claim against either of them based upon this Contract. The parties expressly acknowledge that it is not their intent to create any rights or obligations in any third person or entity under this Contract. Traffic Infraction Detector Program Page 26 Z C C� 47. Contingency Clause Funding for this Contract is contingent on the availability of funds and continued w authorization for program activities and the Contract is subject to amendment or t" CL O termination due to lack of funds, reduction of funds and/or change in regulations, �� Z upon thirty (30) days notice. _ < ' 48, Performance Evaluation Contractor acknowledges that upon completion of the of the Work under this z u Contract and/or at any other time deemed appropriate by the City a performance m evaluation report wi(I be completed by the City. A copy of each performance, evaluation shall also be forwarded to the Contractor. The performance evaluations U will be kept in City files for evaluation on future solicitations. 49, Joint Preparation- Interpretation The language of this Contract has been agreed to by both parties to express their mutual intent and no rule of strict construction shall be applied against either party hereto. The headings contained in this Contract are for reference purposes only and shall not affect in any way the meaning or interpretation of this Contract. All personal pronouns used in this Contract shall include the other gender, and the singular shall include the plural, and vice versa, unless the context otherwise requires. Terms such as "herein," "hereof," "hereunder," and "hereinafter" refer to this Contract as a whole and not to any particular sentence, article, paragraph, or section where they appear, unless the context otherwise requires. Whenever reference is made to a Section or Article of this Contract, such reference is to the Section or Article as a whole, including all of the subsections of such Section or Article, unless the reference is made to a particular subsection or subparagraph of such section or article. 50. Confidentiality Unless authorized by the Director, Contractor shall keep confidential all information concerning and relating to this Program, including without limitation, any information and documentation provided by employee or officers of the City to the Contractor or any other data or materials prepared by the Contractor in connection with the Program. Contractor shall not disclose any confidential information to any persons or other entities not listed above without the prior written consent of the City. Such consent may be granted or withheld at the sole discretion of the City. The foregoing shall not prohibit such disclosures as may be necessary in the performance of the Work under this Contract or as required by law. 51. Contract t-imitina Time in Which to Brina Action Acrainstthe Cit In the event the Contractor may be deemed to have a cause of action against the City, no action shall lie or be maintained by the Contractor against the City upon any claim arising out of or based upon the Contract Documents by reason of any act or omission or requirement of the City or its agents, unless such action shall be commenced within six (6) months after the date of issuance of a final payment under the Contract, or if final payment has not been issued within six (6) months of substantial completion of the Work or upon any claim relating to monies required to be retained for any period after the issuance of the said certificate, unless such action is commenced within six (6) months after such monies become due and payable under the terms of the Contract Documents, or if the Contract is terminated or declared abandoned under the provisions of the Contract unless such action is Traffic Infraction Detector Program Page 27 commenced within six (6) months after the date of such termination or declaration of abandonment by the City. 52. Defense of Claims Should any claim be made or any legal action brought in any way relating hereto or to the Program hereunder, except as expressly provided herein, the Contractor shall diligently render to the City any and all reasonable assistance which the City may require of the Contractor. 53. Amendments No modification, amendment, or alteration in the terms or conditions contained herein shall be effective unless contained in a written document prepared with the same or similar formality as this Contract and executed by the City Manager, Director or designee. 54. Severability In the event that any provision of this Contract is determined by a Court of competent jurisdiction to be illegal or unenforceable, then such unenforceable or unlawful provision shall be excised from this Contract, and the remainder of this Contract shall continue in full force and effect. Notwithstanding the foregoing, if the result of the deletion of such provision will materially and adversely affect the rights of either party, such party may elect, at its option, to terminate this Contract in its entirety. An election to terminate this Contract based upon this provision shall be made within seven (7) days after the finding by the court becomes final. 55. Survival The parties acknowledge that any of the obligations in the Contract Documents will survive the term, termination and cancellation hereof. Accordingly, the respective obligations of the Contractor and the City under the Contract, which by nature would continue beyond the termination, cancellation or expiration thereof, shall survive termination, cancellation or expiration thereof. 56. Entire Contract This Contract, as it may be amended from time to time, represents the entire and integrated agreement between the City and the Contractor and supersedes all prior negotiations, representations or agreements, written or oral. This Contract may not be amended, changed, modified, or otherwise altered in any respect, at any time after the execution hereof, except by a written document executed with the same formality and equal dignity herewith. Waiver by either party of a breach of any provision of this Contract shall not be deemed to be a waiver of any other breach of any provision of this Contract. 57. First Source Hiring Agreements The Contractor may be required to comply with Section 18-110 of the City Code which states; (a) The City Commission approves implementation of the first -source hiring agreement policy and requires as a condition precedent to the execution of service contracts for facilities, services, and/or receipt of grants and loans, for projects of a nature that create new jobs, the successful negotiation of first source hiring agreements between the organization or individual receiving said contract and the Authorized Representative unless such an agreement is found infeasible by the Traffic Infraction Detector Program Page 28 C� waw.. r. u �d tq CnQ;Z City Manager and such finding approved by the City Commission at a public hearing. (b) For the purpose of this section, the following terms, phrases, words and their derivations shall have the following meanings: Authorized Representative means the Private Industry Council of South Florida/South Florida Employment and Training Consortium, or its successor as local recipient of federal and state training and employment funds. Facilities means all publicly financed projects, including but without limitation, unified development projects, municipal public works, and municipal improvements to the extent they are financed through public money or services or the use of publicly owned property. Grants and loans means, without limitation, urban development action grants (UDAG), economic development agency construction loans, loans from Miami Capital Development, Incorporated, and all federal and state grants administered by the City. Service contracts means contracts for the procurement of services by the City which include professional services. Services include, without limitation, public works improvements, facilities, professional services, commodities, supplies, materials and equipment. (c) The Authorized Representative shall negotiate each first source hiring agreement. (d) The primary beneficiaries of the first -source hiring agreement shall be participants of the City training and employment programs, and other residents of the City. Contractors are strongly encouraged to identify opportunities to hire qualified City residents if a Contract is awarded, and are expected to secure the cooperation of subcontractors in this effort as well. Approved community agencies are available to assist with recruitment and screening of job applicants, and may periodically monitor contractors' employment records during the term of the Contract. Resident job applicants are not expected to receive special consideration by the prospective employer, and must meet all hiring requirements normally imposed by the employer. During the term of the Contract, if awarded, the City may require the Contractor and its subcontractors to periodically review its manpower needs and resubmit First Source Hiring forms. 58. Performance Standards Contractor shall be required to meet the performance standards established below which have been established based on the Contractor's RFP Response. Where the Contractor fails to meet the established performance standards the Contractor shall be subject to the deduction of the stipulated liquidated damages. These liquidated damages amounts are not penalties but are liquidated damages to the City for the lost revenue that would have been received had the performance standards been met by the Contractor. Liquidated damages are hereby fixed and agreed upon between the parties, recognizing the impossibility of precisely ascertaining the amount of damages that will be sustained by City as a consequence of such delay, and both parties desiring to obviate any question of dispute concerning the amount Traffic 4nfraction Detector Program Page 29 7 �R of said damages and the cost and effect of the failure of Contractor to meet the performance standards. C3 City is authorized to deduct liquidated damages from monies due to Contractor under this Contract or as much thereof as City may, in its sole discretion, deem just and m reasonable unless delays or failure to meet performance standards are entirely attributable to acts beyond the control of Contractor. City will provide information z used to calculate liquidated damages. Contractor will have up to 14 days to provide �y rebuttal information for City's consideration. The performance standards shall be o W az reviewed by the Project Manager and the Contractor quarterly, semi-annual or —0, annual basis to review System reports documenting the performance standards established below. Traffic Infraction Detector System availability per camera must meet an operational threshold of 95% per month. For each month the Contractor does not meet the established percentage availability the monthly fee shall be reduced by $250.00 per camera. Assessments will be made on a quarterly or semi- annual basis at the discretion of the City. Operational is defined as a camera and detector that are capable of detecting vehicles and capturing images for issuance of violations. No deductions shall be made for events outside Contractor's direct control such as loss of supplied power or third party telecommunications services. Program shall be fully operational 95% of the time. For each month the Contractor does not meet the established percentage availability the monthly fee shall be reduced by $250.00 per month, per camera, per percentage point below standard. Fully operational shall mean that the availability of the major system components including the System, Traffic Infraction Detector System Violation Processing System (VPS), and Internet Website availability has met the above stated operational percentage for the Program. Assessment will be made on a quarterly or semi-annual basis at the discretion of the City Normal scheduled maintenance where downtime is pre -scheduled for the Axsis VPS system shall not be used to calculate the uptime operational threshold above so long as there is no loss of violation data. Violations captured to violations issued shall not be less than 90% per month, less Uncontrollable Factors. For each violation captured that does not result in the issuance of a notice of violation the Contractor shall be assessed liquidated damages in the amount of $15.00 per violation notice not issued that resulted in the percentage threshold not being met. Should the ratio of violations captured to violation notices issued be less than 80% per month, less Uncontrollable Factors, the Contractor shall be assessed liquidated damages in the amount of $25.00 per violation not issued that resulted in the percentage threshold of 90% not being met. The calculations shall not include violations captured where the violation has been waived in accordance with the requirement of the Contract Documents. Assessments will be made on a quarterly or semi-annual basis at the discretion of the City" In no event shall the gross amount paid exceed $25 per notice of violation and in total the gross amount paid to the contractor. The ratio shall be calculated across all operational cameras. Timeframes have been established and are hereby incorporated as Attachment A, for the installation of the Traffic Infraction Detector System and for the Program to become fully operational subsequent to the award of the Contract. Contractor shall be assessed liquidated damages in the amount of $100.00 per calendar day per camera for each day the Contractor is late in meeting the established timelines Traffic Infraction Detector Program Page 30 unless such delays are entirely attributable to acts beyond the control of the Contractor. Assessments will be made on a quarterly or semi-annual basis at the discretion of the City. The calculation of this liquidated damage assessment shall not include any delays related to any permit or other required governmental approval associated with the construction that stands in front of the Contractor's ability to meet its own delivery time line. In other words, the Contractor shall warrant its ability to install its Intersection Safety Cameras and AxsisT"' VPS system, but cannot be held liable for approvals needed by governmental parties not under Contractor's direct control. City shall pay Contractor $50.00 per camera, per day for any camera installed prior to the thirty (30) days as noted above for installation, after permits being granted and power delivered for each agreed upon approach. 59. Substitutions, Upgrades or Replacements Contractor as part of its RFP Response identified specific equipment, software, materials and other items that are to be used in the performance of this Contract. The specific equipments were identified by either, the name of the manufacturer, model number, technological capabilities or similar manner. If Contractor wishes to substitute or upgrade any item of material, equipment, or technology Contractor shall submit a written request to the Project Manager. Such request shall state the basis, including benefits, for the substitution, upgrade, or replacement and stipulate that the acceptance of the proposed substitute, upgrade, or replacement will not adversely affect the Program. The Project Manager may require the Contractor to furnish at Contractor's expense additional data about the proposed substitute, upgrade or replacement. The City shall be allowed a reasonable time within which to evaluate each proposed substitute, upgrade or replacement. The Project Manager and the City shall be the sole judges of the acceptability of any substitute, upgrade, or replacement. No substitute shall be ordered, instalied or utilized without the Project Manager's prior written acceptance which shall be evidenced by either a Change Order or an approved submittal. 60. Change Orders Changes in the quantity or character of the Program, including all changes resulting in changes in the Contract Fee to be paid the Contractor shall be authorized only by Change Orders approved in advance and issued in accordance with the provisions and procedures of the Contract and the City. Change Orders shall be required to add, delete or modify the list of intersections at which Traffic Infraction Detector System are installed. The City reserves the right to order changes which may result in additions to or reductions from the amount, type or value of the Work shown in the Contract Documents and which are within the general scope of the Contract Documents. The value of any Work to be covered by a Change Order shall be determined in one of the following ways: • Where the work involved is covered by fees contained- in the Contract Documents, such as the fees to add a Traffic Infraction Detector System to an intersection. • By mutual acceptance of a lump sum which Contractor and City acknowledge contains a component for overhead and profit. Traffic Infraction Detector Program Page 31 The Contractor shall provide training of all appropriate City employees or personnel employed by the City as stipulated in the Contract Documents. The Project and Program Manager shall jointly deve4op a training program based on the requirements of the Contract Documents, which will include the training necessary for the City to fulfill its requirements under this Contract and with the applicable Florida Statutes and Court requirements, The Project Manager and Program Manager shall also establish a schedule for training to ensure that training opportunities are periodically offered on an ongoing basis during the term of this Contract, as needed_ 63. Removal of Equipment Where an Active Traffic Infraction Detector System has been removed from the Program or the Contract has been terminated before completion for any cause whatsoever, Contractor shall promptly remove Contractor's Traffic Infraction Detector Systems and any other equipment or materials. If the Contractor fails to do so the City shall have the right to remove such equipment and supplies at the expense of Contractor. In the event an installed camera system at an intersection approach is capturing less than an average of 2.11 violations per day for ninety (90) consecutive days, through no fault of the Contractor or City, at the sole discretion of City, the Contractor may remove the camera system entirely or relocate the camera system to a new location mutually agreed to by the parties at no cost to the City. 64. Confidential Information, Trade Secrets, intellectual or Pronrietary Prooertv. Trademarks or Patents The Program may involve the use of process, procedures, intellectual information, which the Contractor may consider confidential information, trade secret, or intellectual or proprietary property, trademarks or patents. The City will makes its reasonably best efforts to ensure that no confidential information, trade secrets, Intellectual Property rights, copyright, trademark or patent, as defined by Florida Statute, are maintained in a secure manner and are not provided to member of the public, private company or any unauthorized individual without the express written consent of the Contractor or unless required by a court of competent jurisdiction. Failure of the City to comply with this requirement shall result in the City being in default of the Contract. The Contractor at its discretion may terminate this Contract for said default upon providing the City with ninety (90) days written notice of its intent to terminate. Traffic Infraction Detector Program Page 32 Q • On the basis of the "cost of Work," determined as provided in this Article, plus a proportional rate for the Contractor's overhead and profit. ,w '" F- The term "cost of work" means the sum of all costs to be incurred and/or paid by Contractor in the proper performance of the Extra Work described in the Change n Order. m ,r. 61. Maintenance Contractor shall be required to maintain all equipment and software on an ongoing = 0 - basis in accordance with the requirements established in the Contract Documents. _. The Program Manager shall notify the Project Manager within two (2) hours of any. instance where any component of the System or Traffic Infraction Detector System is not working or is not working in accordance with normal operation capacity. FO 62. Training The Contractor shall provide training of all appropriate City employees or personnel employed by the City as stipulated in the Contract Documents. The Project and Program Manager shall jointly deve4op a training program based on the requirements of the Contract Documents, which will include the training necessary for the City to fulfill its requirements under this Contract and with the applicable Florida Statutes and Court requirements, The Project Manager and Program Manager shall also establish a schedule for training to ensure that training opportunities are periodically offered on an ongoing basis during the term of this Contract, as needed_ 63. Removal of Equipment Where an Active Traffic Infraction Detector System has been removed from the Program or the Contract has been terminated before completion for any cause whatsoever, Contractor shall promptly remove Contractor's Traffic Infraction Detector Systems and any other equipment or materials. If the Contractor fails to do so the City shall have the right to remove such equipment and supplies at the expense of Contractor. In the event an installed camera system at an intersection approach is capturing less than an average of 2.11 violations per day for ninety (90) consecutive days, through no fault of the Contractor or City, at the sole discretion of City, the Contractor may remove the camera system entirely or relocate the camera system to a new location mutually agreed to by the parties at no cost to the City. 64. Confidential Information, Trade Secrets, intellectual or Pronrietary Prooertv. Trademarks or Patents The Program may involve the use of process, procedures, intellectual information, which the Contractor may consider confidential information, trade secret, or intellectual or proprietary property, trademarks or patents. The City will makes its reasonably best efforts to ensure that no confidential information, trade secrets, Intellectual Property rights, copyright, trademark or patent, as defined by Florida Statute, are maintained in a secure manner and are not provided to member of the public, private company or any unauthorized individual without the express written consent of the Contractor or unless required by a court of competent jurisdiction. Failure of the City to comply with this requirement shall result in the City being in default of the Contract. The Contractor at its discretion may terminate this Contract for said default upon providing the City with ninety (90) days written notice of its intent to terminate. Traffic Infraction Detector Program Page 32 Contractor shall when providing information, documentation, data, etc., or access thereto, to the City that it believes falls within the category of Confidential Information, Trade Secret, or Intellectual Property shall clearly identify such to the Project Manager or other City representatives being provided with or access to such information or documentation. The Contractor may take any necessary and appropriate actions available to it under this Contract or in law to protect its rights. Contractor shall pay all royalties and license fees, shall defend all suits or claims for infringement of any copyright, patent, trademark, or other rights, and shall hold the City, and any City's representative, harmless from loss on account thereof. The City, at its sole discretion may elect to defend itself against any suit or claim. In such instance, the Contractor shall be liable for ail cost incurred by the City in the defense of such suit or claim. Where either party to this Contract has been notified of any suit or claim for infringement of a patent the party receiving the notification must notify the other party within ten (10) business days of receipt of such notification. The City may, at its sole discretion, terminate this Contract for convenience in accordance with the terms of the Contract should the Contractor be in breach of any copyright, patent, trademark, or other similar right. Contractor may at is sole discretions procure the rights to continue to the any infringing item, modify the items to mitigate the alleged infringement, or replace the items with non -infringing items, all at no cost to the City. 65. Most Favored Nation In the event Contractor and any other public agency execute a more favorable term, condition or provision in a contract for this same Program then the Contractor shall automatically and promptly, by giving a written notice under Section 6 to the City Manager, the same term, condition or provision which the City shall have the option to accept at its own discretion within thirty (30) days of receipt of such notice. 66. Licensing Agreement Contractor hereby warrants and stipulates that it has ownership rights, licenses, titles or other rights of usage to all equipment and software provided under this Contract. Contractor hereby grants to the City a non-exclusive, non -transferable license during the term of the Contract authorizing the City access to the System. Contractor agrees to provide the City with the appropriate levels of access to the System for the Project Manager, Traffic Enforcement Officer, and other appropriate City personnel designated by the Director or Project Manager, to perform their responsibilities as part of the Program. Access, at a minimum shall include the ability for the City to review, approve, or reject violations and to have access to view and print any information related to any violations in the System. The City shall also have the capability to review and print any and all reports related to the Program if such information is available on the System. The licensing agreement shall also include the website provided by the Contractor for use by the public as part of this Program. The City hereby acknowledges that the Contractor is the owner of the System, Traffic Infraction Detector System, and all other non City owned or provided equipment provided as part of the Program, and that the City has no right, title or claim to said System, Traffic Infraction Detector System, and equipment. The City shall not, by exercising any rights or interest pursuant to this Contract, gain any right, title or interest in the System, Traffic Infraction Detector System, or equipment. However, Traffic Infraction Detector Program Page 33 0 n:1 the City shall does have right of ownership of the data collected as part of the Program, as specified by this Contract, whether or not the data resides in the System or other equipment of the Contractor. The City shall not alter, modify, disassemble, or take any other similar action to the System, Traffic Infraction Detector System, or equipment at any time without the prior written consent of the Contractor. Should the City desire any alterations or modifications to the System, Traffic Infraction Detector System, or equipment the Project Manager shall request in writing that the Contractor take such action. The Contractor may take any necessary and appropriate actions available to it under this Contract or in law to protect the rights stipulated in this Article. THIS DOCUMENT IN A SUBSTITt_ri ON TO ORIGINAL. BACKUP ORIGINAL CAN BE SEEN .AT END OF THIS DO U ME`: l Traffic Infraction Detector Program Page 34 IN WITNESS WHEREOF, the paries have set their hands and seals on the day y and year first above written. r gic5$ ity City of Miami, a municipal ? U 4 ATTEST; corporation of the State of FloridaLW By'. Priscilla A. Thompson, City Clerk Carlos A. Migoya, City Manager APPROVED AS TO LEGAL FORM AND APPROVED AS TO INSURANCE CORRECTNESS: REQUIREMENTS: Julie O. Bru Risk Management Administrator City Attorney "Contractor" ATTEST: American Traffic Solutions, Inc , a Kansas corporation By: Print Name: Arum E. Tuton Title: Chief Operating Officer THE CITY REQUIRES FOUR (4) FULLY -EXECUTED AGREEMENTS FOR DISTRIBUTION. Traffic Infraction Detector Program Page 35 THIS DOCUMENT IS A SUBSTITUTION TO ORIGINAL. BACKUP ORIGINAL CAN BE SEEN At END OF THIS DOCUMENT ATTACHMENT A TIMELINE SCHEDULE The Contractor agrees to provide the tasks and schedule as outlined below. I. Upon Notice to Proceed — Contractor Pians: ■ Task 1- Deliver Project Implementation Pian • Task 2- Submit Site Plans for Review & Permits City will issue individuai notices to proceed in maximum of 20 approaches per notice. City agrees to minimum of 45 days between notices. The tasks above will be completed within forty-five (45) days after Notice to Proceed is provided to the Contractor in writing from the City. Upon Permit Approval — Installation of Camera(s) • Task 1- Complete Site Construction ■ Task 2- Complete Equipment Installation • Task 3- Confirm Power Delivered • Task 4- Installation of Live Camera The Contractor agrees to install a camera system within thirty (30) days of all required Permits granted and Power delivered for each agreed upon approach. Traffic Infraction Detector Program Page 36 THIS DOCUMENT IS A SUBSTITUTION TO ORIGINAL. BACKUP ORIGINAL CAN BE SEEN AT ENC] OF THIS DOCUMENT ATTACHMENT B ATS will provide ongoing assistance to the City in promoting the City's safety program. ATS will supply the City with the content from the many resources of ATS' Public Awareness Toolkit, including a collection of: • press releases for all phases of deployment, expansion, and program milestones • website content • radio and TV public service announcements (PSAs) • public education flyers and brochures in English, Spanish and other languages • system images and graphics • program taglines and logo examples • talking points regarding the City's photo enforcement program • engaging and educational website content for the City's website. • materials for media events • commonly requested media items, such as sample video clips and images of our camera system ATS will provide a website that is independent from the municipal website which will contain relevant proactive information in support of the road safety program. In addition, each month ATS will contact City with ideas and themes for outreach and education and media pitches such as Stop on Red week, extreme violation videos, and end -of -year results to name a few. ATS will also keep City informed about state - specific as well as key photo enforcement industry news — from Florida opinion polls to national court rulings and major study findings. The ATS team will support City staff and tailor a community awareness and media campaign that fits City's program and level of desired outreach. Traffic Infraction Detector Program Page 37 SUBSTITUTED Contract By and Between The City Of Miami And American affic Solutions, Inc. E Furnish;- Install, Caper e Traffic Infiaction Dete , and Maintain a r Program Capital Improvements Program 444 SW 2nd Avenue, 8t" Floor Miami, Florida 33130 SUBSTITUTED TABLE OF CONTENTS Contents IDefinitions .................................................................... I .............................. 4 2. verview/Recltals ....................... .................................................................... 6 3. ntion of Cit) . ................................................................................................... 6 4. S e of Work ...................................................................................................... 7 5. Con t Term ...................................................................................................... 7 Notices6. N 0 o S ............................................. I ................. -1 ............................................. 7 7. Contract rm ............................................................................................. ........ 8 S. Time is of Essence ................................ ........ .................. 11.11 .................. 8 9. Contract Doc ents ......................................................... .................................. 9 10. Program Repre tation ....................... ................. I ............... ................ ­.... 9 11. Contractor's Resp sibility ............................................. * ...................................... 9 12. Proposal Bond/Gu ry. .... I .............. I ..................................... I ......................... 10 13. Indemnification .......... ................... ................ _ ....................... I.---,.-: ............ 10 14. Insurance ........................ ----- .......... ............................................... 11 15. Construction Key Personn and Staffing ............... ..................................... 13 16. Subcontractors .................... ............... 71 ................ ......... ....... 13 17. Installation of Traffic Infra.:Lic) Ltuctor Systems.-_ ....................................... 14 18. Primary CoT-ttact ..................... .... .................. ............ ­ ................................... 15 19. Ownership ref the Equipment and 4 .... I ...... ........................................ 15 20. Continuin -the Work ... ...... I ........ . ........ 9. 71 ...... I ............... 16 21. Discretion of Director ........... ............. ", ........ ...... * ....................... 16 22. Audhciityof the City's Project Manager... .. ........................ ........................ 16 23. it &f a q.Staadards.: ............................. ...... .................................................. 16 24- Chan e !�� g F uf'the Work or Terms of Contract Do ents .................................... 17 'S.I................ Extension o"Time ................................. .................................. I ......... 17 % 26. - Safety Precaut-10.1bS: ........... ..................................... ......................................... 17 27, Priority of Provi.qipns .................................................. ..................................... 17 28. pts ....... ....... ... .. . ............ ........... I ...... 18 29. _j�ap Payments Related to Guaranteed Obligations ................... ............................... 18 30. Defaulti Events of Default ..................................................... ........................... 19 31. Notice of i)efault-Op' portur.Lity to Cure .................................... ........................ 20 32. Remedies for Cbntractor's Default ............................................. .................... 20 33. Termination for Convenience-, ........................................................ ................. 21 34. Termination Due To Undisclosed Lobbyist Or Agent ....................... .............. 21 35, Materiality and Waiver of Breach ......................................................... .......... 21 36. Force Majeure ........................................................................................ I .. ....... 22 37. Resolution of Contract Disputes .................................................................. ...22 38. Mediation - Waiver of Jury Trial ... _ ................. .............................................. 23 39. Applicable Law and Venue Of Litigation-, Waiver of Jury Trial and Pen-niss e Counterclaims... I ............... I ................................................................................ 2 40. City May Avail Itself of All Remedies .............................................................. 24 Traffic Infraction Detector Program Page 2 SUBSTITUTED 41, Public Entity Crimes................................................................. ..... 24 42. Audit Rights....................................................................................1111............... 24 43. Nondiscrir=ation, Equal Employment Oppoma.nity, and An, cricans with DisabilitiesAct................................................................................................... 25 4 independent Contractor...................................................................................... 25 45. Successors And Assigns ................. .................................................................... 26 46. d Party Beneficiaries................................................................................... 26 47. tingency Clause............................................................................................ 26 48. Pe rmance Evaluation..................................................................................... 27 49. Joint eparation- interpretation......................................................................... 27 50. Confi tiality................................................... ............... .................................. 27 51. Contract ' 'ting Time in Which to Bring Action Against the City ................. 27 52. Defense o lairns.........................................................---................................... 27 53. Amendment....................................................................................................28 54. Severability ...... ................................. .-------- ...................... .................................. 28 55. Survival ............. .................. ...............................................................28 56. Entire Contract..... ....................................................... ..........,....28 57. First Source Hiring A eements.......... :.._.-....... ........ ................. :........ ................. 28 58. Performance Standards...................................................................... 29 59. Substitutions, Upgrades eplacements.... .,............... ..................................... 31 60. Change Orders.................................................................................................. 31 61. Maintenance .. .........32 62. Training ........ ...................... I...... .... ............. ....................................................... 32 63. Removal of Eduipment............I....................................................................... 32 64. Confided Inform-atioa, Trade rets, Intellectual or Proprietary Property, Tradem --or Patents ......................... .............................................1111... 32 65. Most FavorNation........... ................. ........................................................... 33 66. Licensing Ag ee_ merit................................ ...................................................... 33 67. Offer Extmded ,cti tither Governmental En 'es.Error! Bookmark not defined. -traffic Infraction Detector Program page 3 SUBSTITUTE[ THIS CONTRACT, made and entered into this day of , 2010 by and between the City of Miami, Florida, a municipal corporation, hereinafter called the City, and American Traffic Solutions, Inc., a Kansas Corporation, hereinafter called \Install, WITNESSETH: , on June 11, 2010, the City issued a Request for Proposal (RFP) to Furnish, rate and Maintain a Traffic Infraction Detector Program for the City; and WHEREAS,\desed ontractor submitted a Response to the RFP ("Response") that was deemed theualified for the performance of the Traffic Infraction Detector Program ("Program") in the RFP, and WHEREAS, the Co actor's Response, as further negotiated and agreed to by the City and the Contractor, d the RFP are ail incorporated into and made a part of this Contract; and WHEREAS, Contractor repsents that it possesses the requisite expertise and desires to enter into a contract to pro e the Program as set forth herein; and WHEREAS, the City Commission as authorized the City Manager to execute and enter into this Contract by Resolution No.-XX-XXXX adopted (month) (date), 2010; NOW THEREFORE, in consideration 3Xthe foregoing and of.the mutual covenants and compensation set forth herein the City an Contractor agree as follows: 1.,:: 1. Definitions Active Traffic; Infraction Detector Syst means a Traffic Infraction Detector System that has been apprgyed by the Projec anager for use in the Program. Approach means one (1 ) direction oT travel or e (1) or more lanes on a road or a traffic intersection up to frve (5) contiguous lanes. Attachments or Exhibit means any Attachments o xhibits to this Contract which are expressly incorporated by r.'eference and made a rt of this Contract as if set forth in full. Change Order means p--written--document-ordering a- ch e in -the Contract. A change order must comply with the Contract Documents. City means the City. of Miami, Florida, a Florida municipal rporation. In all respects hereunder, City's performance is pursuant to the City's acity as Owner. In the event the City exercises its regulatory authority as a govern ntal body, the exercise of such regulatory authority and the enforcement of any rule regulations, codes, laws and ordinances shall be deemed to have occurred purse t to City's authority as a governmental body and shall not be attributable in any ma er to the City as a party to this Contract. For the purposes of this Contract, "Ci without modification shall mean the City Manager or Director, as applicable. City Commission means the legislative body of the City of Miami. City Manager means the duly appointed chief administrative officer of the City Miami. Traffic Infraction Detector Program Page 4 SUBSTITUTED Contract means this document, together with all documents incorporated herein by reference and the Contract Documents. Documents means the documents described in Article 10 of this Contract. ConXactor means American Traffic Solutions, Inc., who will be responsible for the ProqrM in accordance with the Contract Documents. Court nuns the Miami -Dade County court system which is responsible for the processin disposition, and adjudication of all citations issued under the Contract. Cure means\Work ction taken by the Contractor promptly after receipt of written notice from tof a breach of the Contract Documents which shall be performed at no cost toy, to repair, replace, correct, or remedy al! material, equipment, or other elemee Work or the Contract Documents affected by such breach or to otherwiseood and eliminate such breacb,. including, without limitation, repairing, reo correcting any portion of the VVork or the Project(s) site(s) disturbed in ing ch cure. Cure Periods the p iod of time in which the Contractor is required to remedy deficiencies ork or mpliance with the Contract Docurn'dnts after receipt of written Noticre from th City identifying the deficiencies and the time to Cure Director means the Chief of lice or his designee, who has the authority and responsibility for managing the.Pr ct(s) under this Contract. FDOT means the Florida Dep9pime of Transportation, any successor agency or authorized public agency desigh6e. Force Majeure means those certain fai �:-3 to perform due to a condition of force majeure as defined in Article 37 of t�` si Cc ct. Notice of Award means the written letter to Contractor notify the Contractor that they have been awarded the Contract. Notice To Proceed means a written letter orO ective issued by the Director or designee ack,rowiedging that all conditions° prece\and been met and directing that the Contractor may'begin Work` on the Progre installation of Traffic Infraction Detector. ystem(�s) additional intersectioplicable. Plans andfor Drawings means the official grapsentations design and constrUc,b n requirements of a Traffic Infraction Dstem to be installed at Program means, the fury-shing, installation, operd aintenance of the Traffic Infraction. Detector program in accordance C tract Documents, HB3251Chapter 2f4-;80 Laws of Florida and the ruroce es promulgated by the Court. Program Manager means the person designated by Contractor s its lead representative to the City. The Contractor's Program Manager sha have the authority to obligate and bind Contractor and to act on all matters on ehalf of Contractor except for revisions to the Contract Documents and Change rders. Program Manager's responsibilities include creating clear and attainable jest objectives, building the project requirements, and managing cost, time, and scop Project Manager means the individual assigned by the Director to manage t Program, Traffic Infraction Detector Program Page 5 SUBSTITUTED Request for Proposals or RFP means the solicitation issue by the City for the purposes of entering into a Contract for the Program, which is incorporated into a made a part of the Contract Documents. sponse means the documents submitted by the Contractor in response to the R RisAeid ministrator means the Citys Risk Management Administrator, or designee, or iv,6ual named by the City Manager to administer matters relating to insuranc and risk of lass for the City. Scope of rk or Work means a comprehensive description of the activities, tasks, objectives; verabies and milestones required for the Program, Subcontracto Bans a person, firm or corporation having a direct contract with Contractor who nishes any portion of the Work, including materials and supplies, required by the Co ract Documents. Successful Proposeans the firm that Was selected by the City to enter into a contract to provide the ogram. System means the data' e system, including all hardware and software utilized by the Contractor to operate a manage the Program. Traffic Infraction Detector- Nstem means the bameras, poles, cabinets, and any and all related operation equipnXnt located at an intersection. Uncontrollable Factor means uncontrollable factors found in the Location Performance Detail Report, includin but not limited to plate or DMV record missing, plate obstructed,:,;ttypical weather re ed exceptions (beyond normal South Florida weather con itidrts�knowvn, to include- vere thunderstorms and heavy rain, etc.), vehicle stopp valid rig*E Wrn violation of enforced by the City, and various other factors that are`got related, . Mage or sys quality performance or reliability which Contractor would need to dominent to the re onable satisfaction of the City. Violation Processing-�' System -JVPS)mea the back-office support system provided to the City throudh access to the AxsIS ystem. 2. Overview/Recitals This Contract sets forth the terms and conditions p cant to which Contractor will provide -a] the Work as required'iby and detained in th Contract Documents for the -Traffio-lnfr'action -Detector-Program.- The Recitals are in rporated into and made a part of this Contract. Intention of C!ty It is the intent of City to describe in the Contract Docum\endedh Program to be provided in accordance with the Contract Documentin accordance HB3251Chapter 20'10-080 Laws of Florida, the Florida Stand with all law, rules and regulations governing the Program. All work, supplies, and equipment that are specifically stated or that may reasonain ed from the Contract Documents as being required to produce the ire It shall be furnished by Contractor whether or not specifically stated. By executing this Contract the Contractor expressly waand ag es that the Active Traffic Infraction Detector System, the Prognd its S e of Work will be in full compliance with HB 325, Chapter 20Laws of FI Ida, as amended, and with all rules, procedures and rens adopte in Traffic Infraction Detector Program Page 6 SUBSTITUTED furtherance of HB 325, Chapter 2010-80 Laws of Florida, These rules, procedures and regulations will include, but not be limited to, the Florida apartment of Transportation's ("FDQT's") development and publishing of ecifcations for the placement and installation of the Traffic Infraction D ctors by June 30, 2010, as amended; the development and publishing of the pecifications for equipment and testing by december 31, 2010, as ame\aurity, and any rule, regulation and procedure required by the Court having jurisn over the citations, violations or offenses arising under applicable stateor other state agency having jurisdiction over the Program. Where wordi have a well-known technical or trade meaning, are used to describe worken s or equipment, such words shall be interpreted in accordance with that ing. Reference to standard specifications, manuals, or codes of any technocia organization or association, or to the Saws or regulations of any govental au rity, whether such reference be specific or by implication, shall meanlatest sta and specification, manual, code or laws or regulations in effect at thof execu n of the Contract and_as may be implemented, amended, or becoffective duri the term of We. Contract and the Contractor shall comply thereCity shall ve no duties •other than those duties and obligations expreet forth within t Contract Documents. 4. Scope of Work The Work specified in this ntract consists of furnishing all labor, material, equipment, vehicles, supplies, services, photographic, film, digital, computer equipment, software, hardware, d management necessary to furnish, install, operate, and maintain the Traffic I action Detector Program as required by this Contract and by this: applicable laws f the State of Florida in a manner that MI ensure an efficbrit'ihd effective Progra The specific regejirements of the Program are specified )n fife Contract Documents. 5. Contract Term The Contract shall commence upon issuance the Notice of Award, which shall be issWd subsequent to the execution of he Con ct by the City. The Contract shall fie_for an initial period of five f5) years: Option to Renew/Extension of Term The City Manager shall at the sole discretion of the Ci have the option to renew the Contra ,for up to two;-VN__6�2yyear acid€tional terms b urnishing a written notice of renewal ok _the City,: issued by the City Manager, the Contractor thirty (30) or more calendar days prior to the expiration of the ori al term providing the Contractor is notin debt or default of any obligation to the City. In addition, the City Manager may extend the term of the Contrac r a period of up to ninety (90) days should the City decide not to exercise an option t :new or at the expiration of the option to renew terms. Such extension shall be for th sole purpose of closing out the Contract in accordance with the requirements of the C\have 6. Notices Whenever notice is desired or required under this Contract, the notice shalln in writing, by mail, email, facsimile or via courier/delivery service, must d to the party for whom it is intended and delivered at the place ld ("Notice"); and the place for giving of notice shall remain such until it shn Traffic Infraction Detector Program Page SUBSTITUTED changed by Notice given in compliance with this ,provision. Notice shall be deemed iven on the date received or within 3 days of mailing, if mailed through the United ies Postal Service. If given via email or facsimile, Notice shall be deemed given on e date sent. If given via courier/delivery service, Notice shalf be deemed given upon he initial delivery date by the courier/delivery service.. For the present, the pantie esignate the following as the respective places for giving of notice: For atv of Miami: Carlos\Florida City Ma Office Manager City of 3500 Pan Drive Miami, 133 Miguel Exposito Chief of Poiice Police Department- C tral Headquarters City of Miami 400 N.W. 2nd Ave. Miami, Florida 33128 Julie O. Bru City Attorney City Attorney's Office City of Miami 444 SW 2"d Avenue, 9 h f=loor Miami, Florida 33130 For Contractor: Adam Tuton Chief Operating Officer Ar e"dci aritraffic Solutions, Inc. 1681 East Gr-PY'Road - AZ- 85260 During-tbe Work, the Contractor and Program Mana shall maintain continuing communications with the_Froject Manager. The Contra r and Program Manager shall -O #i3e City - 0Yj infdrmed' as to thg status©f- Program at all times throughout Ne"'. arm of the:,Contract. rt -r 7. Contract Term ` The Contract shall corhmence upon issuance of the Notice of A� rd, which shall be issued subsequent to the execution of the Contract by the City. e Contract shall terminate upon notice by the City that the Contract has been clos -out after final completion or otherwise terminated by the City pursuant to the terms d conditions herein set forth. 8. Time is of the Essence Time is of the essence of this Contract and the Contractor will promptly pe rm its duties under the Contract Documents and will give the Work as much priori as is necessary to cause the Work to be performed in accordance with the Co ct Documents. All Work shall be performed strictly (not substantially) within the h e Traffic Infraction Detector Program Page 8 SUBSTITUTED limitations necessary to maintain compliance with the requirements and deadlines established in the Contract Documents.. All dates and periods of time set forth in the Contract Documents, including talose \xct d by HB325IChapter 2010-80 Laws of Florida, as amended, FDOT, and have been included because of their importance to the City, nd only to the extent provided otherwise by signing this Contract, the r agrees to the assessment of liquidated damages as provided in Article Contract. TheCont 'for acknowiedges that the City is purchasing the right to have the Contractors rogram Manager, or a designee, available 100% of the time to this Program duri the term of the Contract. Contractor will provide 2417 support for the Program. 9. Contract Docum is The Contract Docum is are compiementary,and are inclusive of all items necessary for the execution and rformance of_t e Work by the Contractor. Contractor shall perform all Work indica in or reasonably inferable from and consistent with the Contract Documents for e proper operation of the Program. The Contract Documents shall consist this Contract, the RFR, the RFP Response, any negotiated revisions to the R Response agreed to in writing by both parties to the Contract, any Change Orders i ed thereto, duly issued and agreed upon in writing after execution of the Contract. y modification to this Contract shall only be effective if It is reduced to writing, d. duly execuA by both parties. The Contract Documents are to be inclusive of all ms necessary for the proper operation of the Program by th( �oGd. tactor. The Contract'.Documents represent the tire and integrated agreement between Contractor andtity hereto and supersede II prior negotiations, representations or agreements, eithiet-1vritten or` oral. The Con ct Documents shall not be construed to create a cont`rtual relionship of an kind between the City and any Subcontractor, Subconc'tor, Suppliers_ , Materi Persons, Third Party Vendors, or rii sirlar persons or entities inert a party to tris Contra 10. Program Representation The ,Contractor acknowledges that it has satisfied itsel s to all of the requirements of the Program, and any failure by the Contractor to ac int itself with any and all - aspects -5f the -Program s ial not relieve'Contrai for from r ohsibility for complying with all of the&requlrements of the Contract Documents, 11. Contractor's Responsibility Contractor accepts the relationship of trust and confidence e blished between Contractor and City by this Contract. Contractor recognizes the ne ssity of a close working relationship with City and agrees to fumish the skill and dgment of its organization in the performance of this Contract and to cooperate in rthering the interests of City. Contractor shall provide Contractor's knowledge, ideas, perience, and abilities relating to all aspects of the Program; furnish efficient usiness administration and superintendence; and use its best efforts to arrang for all personnel, materials, equipment, vehicles, supplies, and other services and thl s to manage the Program in the best and soundest way and in the most efficient nd effective manner consistent with the interests and objectives of City and the Contr t Traffic Infraction Detector Program Page 9 SUBSTITUTED Documents_ Contractor agrees to advise and make wriflen recommendations to the City as specked in the Contract, ntractor shall provide administrative, management and related serVcss as fired to coordinate, supervise and manage the performance of the Program in ,,o Vance with the Contract Documents. Contra r shall be responsible to the City for the acts and omissions of Contractor's employe Subcontractors and their agents and employees, and any other persons performin ny of the Work under a contract with Contractor, or claiming by, through or under Co actor, for all damages, losses, costs and expenses resulting from such acts or omissi s. 12. Proposal Bon uarant The execution of t Contract is precedent upon the Contractor providing a Proposal Bond in accordan\TYt ith the requirements of the . RFP. The RFP must be accompanied by ainal bond by a Surety or by cash, money order, certified check, cashier's chUnconditiona.Ylrrevocable Letter of Credit in the amount of $25,000. The returt Bond or Guarantee is conditioned upon the Successful Proposer executingon ct with the City, unless the City in its sole discretion determines not to ento a ontract. The form of the Proposal Bond shall be in a form acceptable to ity. A ERSONAL'CHECK OR A COMPANY CHECK OR OTHER SUBSTITUECURI NOT LISTED IN 'THIS SECTION SHALL NOT BE DEEMED A VALID RANTY. a City Manager_may accept a cashier's (bank), an irrevocable, uncional letter credit drawn -on a local bank, or cash (US) if the Manager finds tity's interests ould be protected by such acceptance. The Guaranty or Bond be forfeited to e City as Liq:3idated Damages, not as a penalty, for the cosexpense incurr should the Successful Proposer fail to execute the Contrac 13. Indemnification Contractor-, shall indemnify and hold harmless Ci its officers, agents, departments, - C. iristii .; rur�entalifes directors, 'and 'employees, from ' bilities, damages, losses, and costs, including; t notlimited to reasonable attorne ' fees, to the extent caused by t11e„negligence, ackl�sssness or intentional wrongful isconduct of Contractor and pers.bDs employed for utilized by Contractor in the p ormance of this Contract, an !a' any civil actlq'& alleging - tyre Contract was aw ded in violation of any applica ` law or ordfriarice, and/or that the Contrac_to is not performing this Confrct raiaccordanc4 ,uvith applicable �ws mci�ing wit f limitation HB 325, Chapter 2q%-80, Laws,& Florida, as amended, and with ru s, procedures, and regulations ac'[pted in furtherance of HB 325/Chapter 2010- Performance of this Contract incudes any civil action alleging that signage, t ets, notices of violations, and siMilar documents within the control of Contra or evidencing the offense do not comply or are otherwise in conflict with ap icable laws. These indemnifications shall survive the term of this Contract and any t ination or expiration of this Contract. In the event that any action or proceeding ' brought against City by reason of any such claim or demand, Contractor shall, up written notice from City, resist, investigate and defend such action or proceeding by unsel satisfactory to City Attorney. The Contractor expressly understands and agree that any insurance protection required by this Contract or otherwise provided y Contractor shall in no way limit the responsibility to indemnify, keep and sa Traffic Infraction Detector Program Page 10 SUBSTITUTED harmless and defend the City or its officers, employees, departments, agents and instrumentalities as herein provided. e indemnification provided above shall obligate Contractor to defend at its own ex nse t- and through trial, appellate, supplemental or bankruptcy proceeding, or to Prov' for such defense, at City's option, any and all claims of liability and all suits and a ons of every name and description which may be brought against City whether erformed by Contractor, or persons employed or utilized by Contractor. This inde ity will survive the cancellation or expiration of the Contract. This indemnity wie interpreted under the laws of the State of Florida, including without limitation and terpretation, which conforms to the limitations of §725.08 and/or §725.08, Fla. St Utes, if determined to be applicat, e.by a court. Contractor shall re ire all Subcontractor agreements to include a provision that they will indemnify the Ci The Contractor agree and recognizes that the City shall, not be held liable or responsible for any clai which may result from any actions or omissions of the Contractor in which the Ci articipated either through review or concurrence of the Contractor's actions. In re wing, approving or rejecting any submissions by the Contractor or other acts of the ontractor the City in no way assumes or shares any responsibility or liability of the f `ractor or Subcontractor, under this Contract. Ten ($10.00) dollars payable oy th City to the Contractor constitutes separate and distinct consideration for this ir�dem and hold harmless provision, the sufficiency of which is hereby acknowledged by tie Contractor. 14. Insurance Without limiting any of the other obligati( shall provide, pay for, and maintain in insurance coverage's set forth herein liabilities Wof the Contractor, Contractor ,,until expiration of the Contract, the 14.1. Workers' Compensation insurance to ap for all employees in compliance wi}h 1he Statutory 7Workers' Compensation w" of the State of Florida and all applic-Lible federal laws. In addition, the pol' (ies) must include: ■ Waiver of subrogation Statutory SUe of Florida Limits of Liability - - . -----•-- • - -- ....._ .. -- - - -.. - - - - 14.2. �rnployers' Liability with a limit of One Miiiion D ars ($1,000,000.00) Dolls; -s each bodily injury caused by an accident, e3 ch accident. One MiFri on; Dollars ($1,000,000.00) Dollars each bodily jurycaused by disease, each employee. One Million Dollars ($1,00 000.00 Dollars each bod:;y injury caused by disease, policy limit. 14.3. Commercial General Liability (CGL) with minimum limits \Servi ion Dollars ($1,000,000.00) per occurrence, for Bodily Injurnd Property Damage `Liability, with a general aggregate Limit on Dollars ($2,000,000.00). Coverage must be afforded on are restrictive than the latest edition of the Commercial Generallicy form, without restrictive endorsements, as filed by the Insus Office, and must include: Traffic Infraction Detector Program Page 11 SUBSTITUTED ■ Products and Completed Operations with: a limit of One Million Dollars ($1,000,000.00) per project. Contractor shall maintain this coverage in force for three years after completion of all Work required under the Contract. Personal and Advertising Injury with a limit of One Million Dollars ($1,000,000). ■ CGL Required Endorsements o Employees included as insured Contingent Liabiiity ( Independent Contractor Coverage) \Explosn, ual Liability Subrogation and/or Operations n, Collapse and Underground hazard (If applicable) d Unloading qui ent (Corifrator's) whether owned, leased, borrowed or y Co actor or employees of the Contractor. 14.4. Business Automobile 'ability with minimum limits of One Million Dollars ($1,000,000.00) per occurnee combine.d:singie limit for Bodily Injury Liability and Property Damage Lia ' .�. Coverage must be afforded on a form no more restrictive than the lat t edition of the.,$usiness Automobile Liability policy, without restrictive endo em6nts, as fired by the Insurance Services Office, and-rmust include ■ Ou 6 Vehicles_ ■ Hired -and Non=owned Vehicles. ■ City-4.Miami as Additional Insured 14. 5. Umbrella policy (Excess Follow Form) ■ Bodily injury, and property damage lila Dollars ($2,000;D'00) each occurrence Mlllio�n`Dollars ($2,080,000). Excess coverage over thpalicies as follows: Commercial General Liability ■ Business Automobile- Liability ■ Employer's Liability (WIC) City shall be listed as an additional insured, with limits of Two Million an aggregate limit of Two Notice of Cancellation and/or material changes --The po\insurance. must be endorsed to provide City with notice of cancellation and/ol changes in accordance to policy provisions. Contractor shall furnish to the Project Manager the Certificateranee or endorsements evidencing the insurance coverage specified aboveen (15) calendar days after notification by the City and prior to award of tht. ward if the Contract is contingent upon providing proof of the requirece. Therequired Certificates of Insurance shall name the types of policied, farspecifically to this Contract, and state that such insurance is ad by s Contract. Traffic Infraction Detector Program Page 12 SUBSTITUTED Tne official title to be shown for the Owner is the City of Miami, Florida. This official title shall be used in all insurance documentation. Companies authorized to do business in the State of Florida, with the following \/a ns, shall issue all insurance policies required above: ny must be rated no less than "A-" as to management, and no less than "Cls to Financial Strength, by the latest edition of Best's Insurance Guide, y A.M. Best Company, Oldwick, New Jersey, or its equivalent. All policies rtificates of insurance are subject to review and verification by Risk rt prior to insurance approval. The Risk A inistrator or his/her authorized designee reserves the right to require modifications, increases, or changes in the required insurance requirements, coverage, de d ibles or other insurance obligations by providing a thirty (30) day written notice to t Contractor in accordance with Article 7, Notices. Contractor shall comply with such equests unless the insurance coverage is not then readily available in the nati al market. An additive or deductive change order will be issued to adjust the Co ract Fee as necessary. 15. Construction Kev PersoAnel and Staffin Contractor shall assign tot ' Project all of the Key Personnel identified in its RFP Response. Such personnel s I remain assigned to the Project through the duration of this Project and shall not be, assigned without the prior written approval of the City's Project Manager, unless e individual hos left the employment of the Contractor. Program Manager sera e authorized to act on behalf of the Contractor to coordinate all aspects of the Proar The Program Manager -or designee' is ,e full-time as assigned to the Program:, Program. orf to he available 100% of his/her time rctor will provide 24/7 support for the The employee(s) of the Contractor and Spbo\requirements rs shall be considered to be at a. times er�nployee(s) of.the Contractor or the tractors, as applicable, and not ori ern��toyree{s or agent(s) of the City or any oartments. The Contractor agrees that the Contractor ancontractors shall at all times employ, maintain and assign to the Program i t number of competent and quali�7ed personnel to�mget the requirements oogr The..ContrAictor and Subcontractors agree -to taffin vels or to replace any staff persorin6l to ensure fiat the Program isd and erated in an efficient and effective raarwer acrd in accordance with trements the Contract. 16. Subcontractors A Subcontractor isany person or entity that is performing, furnishi, supplying or providing any portion of the Work pursuant to a contract with Contract Contractor shall be solely responsible for and have control over the Subcontractors. All subcontracts shall: • require each Subcontractor to be bound to the Contractor to the same xtent Contractor is bound to the City by the terms of the Contract Documents, as se terms may apply to the portion of the Work to be performed by the Subcontrac r; Traffic Infraction Detector Program Page 13 SUBSTITUTED Require the Subcontractor to indemnify and hold harmiess the City, its officers, gents, directors, and employees, and instrumentaiities as provided in this ntract. . pr ide that the City will b2 an additional indemnified party of the subcontract; • a pr ision requiring Subcontractor to maintain insurance in accordance with the Contr t Documents or as may be required by the Risk Administrator; • provide that the City will be an additional insured on all insurance policies required be provided by the Subcontractor except worker's' compensation; Contractor sha equire all Subcontractor agreements to include a provision that they will indemnify d hold harmless the City, its officers, agents, directors, and employees, and in rumentalities as herein provided. 17. E n of Traffit Infraction Detector Contractor shall be so ly responsible for the instaliafi6n of, and all cost associated therewith for all Traffic I action Detector Systems. Contractor shall be responsible for all property access r uirements (easement agreerr.ents), design, approvals, permitting, construction, in ding Work performed by Sub tractors, required for the performance of the Wor necessary for the installation of the -Traffic Infraction Detector Systems, including bu of limited to: • Contractor shall only install affic Infraction Detector Systems at -intersection approved in writing byt}�e ect Manager. The City may add additional intersections to the initiaf r�irreie., (19), up to an unlimited amount, during the term of the Contract. Such'additi .s will be added through the issuance of a Change Order and Work on __Pew siallations shall not commence until the Project Manager issues a written Noti tci Proceed. • Obtaining any required easement age, ehtt necessary for the installation of the Detector Systems. It is the sole ,resp sibility'o€ the Contractor to obtain any easements required for the Traffic lhfractio etector System(s) to be installed at an approved intersection: Where the Qity o s the property the City will provide access to the property for the purpose �of the i tallation and maintenance of the Tiiateic Infraction Detector Systems) • Contractor is solely responsible for the design d installation, including any a.ssociafed construction work that may be required install the Traffic Infraction Detector System(s) at approved intersections. Co ractor is responsible for obtaining any and aid permits at its sole cost require or installation. The City -will-waive any. -City of Miami construction master -or trad ermits required by the City. PYriut.fees require by other public entities will not be aived. • Any traffi infraction detector installed by the Contractor wi meet specifications established by the FDOT, and must be tested at regular int als according to specifications prescribed by the FDOT. • Contractor shall submit all design plans to the Project Manage or review and approval prior t to the design plans being submitted for permitting. • Contractor is required to obtain all permit inspections and provid he Project Manager copies of all permit approvals. • Contractor shall be responsible for coordinating any installation work wi utilities companies, FDOT, Miami -Dade County or any other individual or b 'ness, which may be affected by the installation of the Traffic Infraction De ctor System. Contractor shall be solely liable and responsible for ail cost for e Traffic Infraction Detector Program Page 14 SUBSTITUTED repair of any damage to any property, public or private, which Fesults from the Contractor's Work_ Project Manager shall inspect the installation of each Traffic Infraction Detector System installed at an intersection and issue a written acceptance of said installation. Project Manager shall have the authority to accept or reject the installation Work, or require modification of the Work. Any new Traffic Infraction Detector System installed at an intersection shall not become an Active Traffic Infraction Detector System under the Program until the Contractor has tested the Traffic Infraction Detector System and demonstrated to e satisfntion of the Project Manager that the Traffc Infraction Detector S tem(ss working in accordance with the requirements of the Contract Do ments. Project Manager shall issue written acceptance and designate the Traffl Infraction Detector System(s) as an Active Traffic Infraction Detector System ) at which time the Active Traffic Infraction Detector System shall become erational under the Program.. 18. Primary Conta Contractor shall cNirdinate all correspondence, submittals, applications for payment, requests for inorrXtion, change orders, claims and any other requests or documents through th roject Manager. 19. Ownership of the E ui ent and Data Contractor shall retain sol wnership of all equipment, including but not limited to the Traffic Infraction Detect o System and the System, which shall be maintained free and clear of any liens, enc brances, pledges, security interests, or guaranties, not including company lender se ity interests, The Contractor shall maintain direct ownership of the equipfoent duri its use under the Program. Where the City determines that the Cori"dor doesof possess sole ownership of said equipment the City may, at its sole disdption, req ,`ed the replacement of the equipment at the sole cost of the Contractor, with equip „ nt owned by the Contractor. Should the Contractor fail to replace said equipment City may assess liquidated damages, as stipulate in Article 58 of the Contract find the Contractor in default of the Contract. At -the expiration of the Cjanbact e City may, at its sole discretion, negotiate to purchase some or all of the equipme All data and documents collectetf_ or generated er this Contract which would routinely be kept and maintained�t?y the City in its u t coarse of business are the property -of -the City -and -as such shallbe considered p lic records, to be disposed of in accordance with state law, except for any data or do ments that the Contractor has designated as confidential, in accordance with ap ' able Florida Statutes. Contractor shall be required to provide such documentation may be necessary to respond to public records requests received by the City. Cou records of courts of competent jurisdiction of the State of Florida which are part the State Court System, which are not in the possession of the Contractor or the ' are not public records of the City of Miami. At the completion of the Contract the Contractor shall turn over all data the City in an electronic format acceptable to the City that allows for its use in JNatabase system owned by the City. Final Payment shall not be made to the Contra ars until the City has received all of the data. Traffic Infraction Detector Program Page 15 SUBSTITUTED 20. Continuing the Work \Di tor shall carry on the Program and adhere to the requirements of the t Documents during all disputes or disagreements with City. The Work shall elayed, postponed pending resolution of any disputes or disagreements. All s shall be resolved in accordance with the provisions of the Contract ents. ion of Director Any ma r not expressly provided for herein dealing with the City or decisions of the City shal e within the exercise of the reasonable professional discretion of the Director or Director's authorized designee. 22. Authority of t City's Proiect Manager The Director he by authorizes the Project Manager designated by the Director, without limitation, be the City's point of contact for the management of the Program. All Work\thein oordinated through the Project Manager, including day to day operations, all questions of any nature whatsoever arising out of, under or in connectin any way relating to or on account of the Work under the Program, andretation of the Work to be performed the Contract Documents. The Contractor shall be bound all determinations or orders of the Project Manager and shall promptly respond t r ests of the Project Manager. Where requests are made orally, the Project Mantijger-JIV.follow up in writing, as soon thereafter as is practicable. The Project Manager shall have autha to act on behalf of the City to the extent provided by the Contract Documents, u -otl-i�iw,ise modified in writing by the City. All instructions to the Contractors be issued_in writing- All instructions to the Contractor shall be issued through 113:Di tor, or tie Project Manager, The City's Project -Manager and other r6 se tives of the City, as authorized by the.Direc ri, shall have access to the Contractor operations facility during normal *wO* S4!-16 Project Manager shall endeavor provide a minimum of twenty- �otir hours advant inotice to the Contrac"tor. AT74nnlerpretations artid recommendations of the Project anager and Director shall be ci r ijent with the •iptent of the Contract Documents. The -Praj;-10anager wioot- be- responsible -for the acts; err s;- or omissions- of the Contractor,16ranyone employed or contracted directly or indire by the Contractor, including any`SUcontrector, or any of their agents or emplo es, or any other persons performing'`ar j of the Work. Project Manager will not responsible for ensuring that the Active Traffic Infraction Detector System, the P ram and the Scope of Work as are all referenced herein will be in compliance h applicable laws, rules and regulations, this shall be the sole responsibility of the Cc actor. 23. Reference Standards Reference to the standards of any technical society, organization or body s II be construed to mean the latest standard adopted and published at the date of Ror as subsequently amended or revised, even though reference may have been m e to an earlier standard, unless otherwise stipulated in the Contract Documents. Suc reference is hereby made a part of the Contract Documents, the same as if herein Traffic Infraction Detector Program Page 16 25. SUBSTITUTED repeated in full and in the event of any conflict between any of these standards and those specified, the most stringent shall govern unless otherwise stated. Changes in the Work or Terms of Contract Documents Without invalidating the Contract, City reserves and shall have the right, from time to time to make such increases: decreases or other changes n the character or uantity of the Work as may be considered necessary or desirauie, including but not li ited to the addition or deletion of traffic intersections from Program. Any extra or ad?S4 ional Work within the scope of the Program must be accomplished by means of a Ch nae Orders issued in accordance with this Contract. Any ch Xges to the terms of the Contract Documents must be contained in a written docume executed by the parties hereto; This Article shall not prohibit the issuance of Change rders executed only by City as hereinafter provided. The Contract cuments contain specific flrneframes for performance of certain specific aspects the Work under the Program. Contractor is solely responsible for meeting the time mes established in the Contract Documents. Where the Contractor may be layed in meeting the established timeframes due to a force majeure, or other in\delay event outside the control of the Contractor, the Contractor shall submin request for delay to the Project Manager., within five (5) calendar days of thning event. Such a request must clearly substantiate the reason and time r the delay. The Project Manager, at his/her sole discretion may approct. the request for delay, or request that additional information be provideaking a. determination: Failure to submit written notice to the Project'Mit five (5),cafendar days;shall result in the City not considering any requey d to tine interve.nirog event. 26. Safety Precautions Contractorshall be solely responsible initiating, maintaining and supervising all safety preauautions and programs requir� to maintain safe work environment(s), inclusive -ah Al. Work performed in the o e or in the field. Contractor and its SLOcontractors, shall take all necessary pre c tions for the safety of its employees Ind: the public, arsdhOaEl provide the necessary rotection to prevent damage, injury or, loss. to: All employees and other persons who may bNaffected where Work is being perforn)ed; . All equipment and, :-naterials used in or to be inc porated into the Program, whether in an office environment, in the field, or at antersection; and Other property at eri intersection where a Traffic Infra ion Detector System is being installed, including trees, shrubs, lawns, walks, vements, roadways, structures and utilities. The Contractor warrants that it will comply with all OSHA requirenVnts as well as all safety precautions as required by federal, state or local laws, rules, egu" ons and ordinances. 27. Priority of Provisions If there is a conflict or inconsistency between any term statement regal ent, or provision of any exhibit attached hereto, any document or events referred t erein, or any document incorporated into this Contract by reference and a term, stat ent, Traffic Infraction Detector Program Page SUBSTITUTED requirement, or provision of this Contract, they the provision that imposes the quality, uantity, duty or obligation most consistent with the intent of the Contract cements, as reasonably determined by the City, shall govern. Should any conflict or onsistency continue to exist, the following order of precedence shall apply: In th vent of conflicts in the Contract Documents, the priorities stated below shall govern, • Chan Orders to the Contract Documents shall govern over the Contract Docum ts. • Contract cuments shall govern over the RFP Response. • Final Neg ' ted changes to RFP Response shall govern over the RFP Response. • Contract shall vern over the RFP Response. • Addendum to th FP shall govern over the RFP. In the event of omissi in the Contract Documents which are not complete as to any incidental details or quirements of the Program, such details or requirements shall be deemed to be an i lied requirement of the Contract Documents. 28. Payments No fee shall be required during e initial public awareness campaign which shall be no fewer than forty (45) days. T public awareness campaign plan shall be subject to the approval of the City Manage Payments shall. be made on a monthly basis for the Work performed in the previous onth based on a monthly fee per camera as detailed below, for each intersectio with an Active Traffic infraction Detector System. Camerasper .`-,Monthly Fee intersection One Camera $ 4,750 Two Cameras { $ 4.5M e Three Cameras $4,350 Four Cameras; $ 4,250 -Where-amArtive Traffic Infraction Detector System- is in op tiori for less than -the fulf month being invoiced, the Contractor shall invoice on ao rata basis for the month. Payment of an approved Application for Payment shall be madew in forty five (45) days after receipt of Contractor's invoice by the City, which shall be\0MW panied by sufficient supporting documentation and contain sufficient detail, to a proper audit of expenditures, should the City require one to be performed, City and Contractor shall agree on a standard format for all invoicespl�r to the submission of the first invoice. �► 29. Payments Related to Guaranteed Obligations The City may withhold from any payments to be made such sums as may reason. be necessary to ensure payment to a Subcontractor or supplier who has notified Traffic Infraction Detector Program Page 18 SUBSTITUTED City in writing that it has not been paid in accordance with Florida 5tatute:s Local Government Prompt Payment Act. Project Manager, prior to withholding or deducting any monies hereunder, shall the Contractor prior written notice providing the basis for the withholding or Upon 'die Project Manager's determination that the Contractor has fulfilled its obligatio , the City will pay the Contractor any monies owed, 34. Default/ Eftnts of Default An event of ault shall mean a breach of the Contract .by the Contractor ("Event of Defaultn), Wit ut limiting the generality of the foregoing, and in addition to those instances referr to herein as a breach, an Event of Default shall include but is not limited to, the follo 'ng: • The Contractor as not managed or operated the Program, including the performance stain rds set forth in the Contract Documents, in accordance with the requirements of e Contract Documents. • The Contractor has t installed or maintained Traffic' Infraction Detector Systems in a timely me er; • The Contractor has fail to make prompt payment to Subcontractors or suppliers for any services. terials or equipment they have provided-, • The Contractor has becrrrrnej olvent or has assigned the proceeds received for the benefit of the Contractor's ditors, or the. Contractor has taken advantage of any insolvency statute o' -debt creditor law or .if the Contractor's affairs have been put in the hands of a receive , • The Contract©r has failed to obtain t Approval of the City, FDOT, Miami -Dade County, or the Court Where required ti e Corf#ract Documents-, • Contractor. fails to obtain or maintain th surance herein required. • Contractor fails to comply with any. of its uties under this Contract, with any term or conditions set forth in this Contract yond the specified period allowed tai' I'rIOU.ch.default. *,*-.'Con fails to commence the Work with the timeframes provided or contemplated rein, or fails to complete the oris in a timely manner as required by the'Contract Documents. lle.n, in the opinion of the City, reasonable groan for uncertainty exist with resect to the Conf ctor's_gbjlity_to continue to perf. the Work required_by s ept t -t the Program, the Cq,4thall notify the Contractor in writin that it must, within the time frai�eNset forth -11P the City's request, provide adequa assurances and an action plan. the City, in writing, of the Contractor's iiity to perform in accordance w+t>h li'e terms of the Contract Documents. In e event that the Contractor fails to provide to the City the requested assur ccs within the prescribed time frame or subsequently fails to meet the req ii eats of the action plan, such failure shall be deemed an Event of Default. In a event the City may, at its sole discretion terminate the Contract for default, th City or its designated representatives shall have right to immediately possess n of all applicable documentation and data. • Where the City erroneously terminates the Contract for default, the termin ions shall be converted to a Termination for Convenience, and the Contractor all have no further recourse of any nature for wrongful termination. Traffic Infraction Detector Program Page 19 SUBSTITUTED Notice of Default -Opportunity to Cure In the event that the City determines that an Event of Default has occurred, the City may\rrnned at its sole discretion, notify the Contractor, specifying the basis for such default, ing the Contractor that such default must be cured within Cure Period d by the City. The City is under no obligation to issue such notification. may grant an extension to the Cure Period if the City deems it appropriate e best interest of the City, without waiver of any of the City's rights r. The City, at its sole discretion, may have a default corrected by its own nother contractor and any such costs incurred will be deducted from any e he Contractor under this Contract or any other contract between r a the City. 32. Remedies for ftntractor's Default If an Event of De Lilt occurs that is not cured within the applicable Cure Period, if any, then in additio to all remedies available to it by law, the City may (i) have the default corrected by s own forces or another contractor, and any such costs "tncurred will be deduct from any sums due the Contractor -under this Contract or any other contract betw Contractor and the City, (ii) suspend any payment or part thereof or order a k stoppage until such time as the issues concerning compliance are resolved, o (iii) immediately, upon written notice. to Contractor, terminate this Contract where on all payments, advances, or other ,compensation paid by the City to Contractor He Contractor was in default shall be immediately returned to the City. In the event the City exercises it sigh o terminate due to a default, the City shall be entitled to possession of all data -gene ted by the Program, which is owned by the City. In such eve,nt:.Contractor fails to is% 16 the City said data, the City shall retain any payment due the Contractb_r u said dada is provided to the City. The City may also -take any necessary and ropriate action available under this Contract or under the law.- Additionally; Con ctor shall be liable for all costs and expenses,4ncurred by the City,- in the re-procurem t of the Work under this Contract. Thb.Contractvrshall stop..Work as of the date of tification of the termination, At tfip City's optiorO be. City may order the Contractor t immediately remove all Traffic iiiijaction DetectorSi�stems from the Work Site. The assumes no liability for the Co i factor's failure to remove the Traffic Infraction Detec Systems as required, Contracfor,shall promptly return all City owned property to location(s) designated by-tl'ie- Prct_'M~ inager:.'Nia'-paymentswill-be made td -the ntractor for any sum owed the dontractor t.r�til all material and data are turn over to the City. Contractor shall also be, required to restore the intersections wh Traffic Infraction Detector Systems are removed to their pre-existing condition. Contractor understands and agrees that termination of this Contract u er this Article shall not release Contractor from its obligations under this Contract an he Contract Documents. As an alternative to termination, the City may bring suit or proceedings f performance or for an injunction. Where it has been determined by a court of competent jurisdiction that Contractor has been erroneously terminated, such termination shall be deemE have occurred under Article 33, as a Termination for Convenience. Traffic Infraction Detector Program Page 20 SUBSTITUTED Termination for Convenience In addition to any other rights the City may have by law or under this Contract with respect to cancellation or termination, the City may at any time, after the first year ollowing the initial installation of the cameras, in its sole discretion, with or without use, terminate the Contract, in whole or in part, by written notice to the Contractor. S Written Notice shall state the date upon which Contractor shall cease all Work and the Contract and remove the Traffic Infraction Detector Systems. The C tractor shall, upon receipt of such notice, unless otherwise directed by the City. • Stop al ork on the Program on the date specified in the notice ("the Effective Date"); • Take no a ' n that shall increase the amounts payable by the City under the Contract Doc encs; and • Take reasona measures to mitigate the City's liability under the Contract Documents. • All Work Product, i luding but not limited to data, reports and other documents, including electronic currents, related to Program, must be turned over to the City. Failure to timely liver the documentation shall be cause to withhold any payments due without re urse by Contractor until all documentation is delivered to the City. In the event that the City exerci " s its right to terminate this Contract, the City will pay the Contractor the monthly e due based "ori the Active Traffic Infraction Detector Systems All payment`s pu uant `to this Article shall be accepted by the Contractor in full satisfaction of all aims against the. City arising out of the termination. -Further, the City may de ct or set off against any sums due and payable under this Article any claims it ma ' ave against the Contractor. Contractor shall promptly ret=urn all City own property to a location(s) designated by the Project Manager., , Flo, payrnents will be ade to the Contractor for any sum owed the Contractor until all material and a are turned over to the City, Contractor shall also be' required to restore the int ections where Traffic Infraction Detector Systems are remc)vEid. to their pre=existing c dition. Contractor shall not be entitled to. iost profits, overhead consequential damages as a result of a Termination for Convenience and all paymen made under the Contract are subject to_auditby_tho City. 34. Termination Due To Undisclosed Lobbyist Or Agent: Contractor warrants that it has not employed or retained any\pentage, r person to solicit or secure this Contract and that it has not paid or agrny person, company, corporation, individual or firm any fee, commissigift, or other consideration contingent upon or resulting from the aking of this Contract. For the breach or violation of this provision, the City shall have the right to\fort the Contract without liability. 35. Materiality and Waiver of Breach City and Contractor agree that each requirement, duty, and obligation sthese Contract Documents is substantial and important to the formati Contract and, therefore, is a material term hereof. Traffic Infraction Detector Program Page 21 SUBSTITUTED City's failure to enforce any provision of this Contract shall not be deemed a waiver of such provision or modification of this Contract. A waiver or any failure on the part of the City to act on any breach of a provision of this Contract shall not be deemed a waiver of any subsequent breach and shall not be construed to be a modification of ,the terms of this Contract_ 36. ce Maieure Sho d any failure to perform on the part of Contractor be due to a condition of force maje as that term is interpreted under Florida law, then the City may allow an extensi of time reasonably commensurate with the cause of such failure to perform or cure. 37. if the Contra or is delayed in performing any obliuCation under this Contract due to a force majeure ndition, the Contractor shall request a time extension from the City within two (2) ,%n icing days of said force majeu4 occurrence. Any time extension shall be subject t utual agreement and shalk not tam cause for any claim by the Contractor for extra ompensation unless additional services are required_ Force Majeure shall not inclu inclement weather, except as permitted by Florida law, and shall not include the act r omissions of Subcontractors or suppliers. Contractor understands and,ees that all disputes, between it and the City based upon an alleged violation of t rms of this Contract by the City shall be submitted for resolution in the following rnan r. The initial step shall be for the.,Co adarr to notify the City's Project Manager in writing of the claim -or dispute and s mirt-i copy to the. City of Miami personnel identified in Article 7, Notices. Should the Contractor and the Project_r eager fail 'to resolve the dispute, the Contractor shall' submit the dispute in writing, ith all supporting documentation, to the Capital Improvements Program Assistant !rector, as identified in Article 7, NMR" `>I;Jon receipt of =said.. notification, the sistant Director shall review the iss Ave to the claim or dispute and issue a w en finding. Should the Coritiradtor and the Assistant Director fai resolve the dispute within fourteen (14) cater tear.l days, or; such other timeframe reed to by both parties in wrifr4;x{the Contractor shall submit the dispute in writin within five (5) calendar appeal-of'tt3� �,r✓ritten findlr�g withinn finding, to the Director. allure to submit such days of a issuance of he writte 'five (5) calehdar days shal onstitute-acceptance of the finding by_ the Cgtiftctor. Upon receipt of said notlficati the Director shall review the issues relaOl to the claim or dispute and issue a w en finding within fourteen (14) calendar -Ways, or such other timeframe agreed to b Moth parties in writing. Contractor must submit any further appeal in writing within five (5) cafe r days of the issuance of the written finding or failure by the Director to issue a writt finding, to the City Manager. Failure to submit such appeal of the written finding wi in five (5) calendar days shall constitute acceptance of the finding by the Contractor, eal to the City Manager for his/her resolution, is required prior to Contractor b ' g entitled to seek judicial relief in connection therewith. Should the amount compensation hereunder exceed $100,000, the City Manager's decision shall be approved or disapproved by the City Commission. Contractor shall not be entitled to Traffic Infraction Detector Program Page 22 SUBSTITUTED seek judicial relief unless it has complied with all of the requirements of this Article, and: it has first received City Manager's written decision, approved by the City ommission, if applicabie, or • a eriod of thirty (30) days has expired after submitting to the City Manager a de led statement of the dispute, accompanied by all supporting documentation, or a rind of (90) days has expired where City Manager's decision is subject to City C mission for approval; or • City has aived compliance with the procedure set forth in this Article by written instrumen ) signed by the City Manager. In the event the etermination of a dispute under this Article is unacceptable to the Contractor, the C tractor must notify the City, in writing, within seven (7) calendar days of receipt of t written determination that it intends to seek arbitration of the claim. The notice m state the basis of the objection aria must be accompanied by a statement that any ice or time adjustment claimed is the entire adjustment to which the Contractor h reason to believe it is entitled to as a result of the determination. Failure to ubmit such, notification within the � stipulated timeframe shall constitute acceptance the City's final position in response to any claim. Both parties will work together an ake their best efforts to have the mediation held within thirty (30) calendar days the request being submitted by the Contractor. Within sixty (60) calendar days er participate in mediation to address and to attempt to prevent litigation. the parties. Should any objection not their legal rights and remedies proviC waives all of, its rights provided hereu State law, if said party fails to comply this Article, expiration of the Contract, the parties shall objections to any determinations hereunder mediator shall be mutually agreed upon by r resolved,_in mediation, the parties retain all e rider State lave. Contractor specifically )der; "ncluding its rights and remedies under in stri accordance with the requirements of Notwithstanding the existence of any dispute be en the City and Contractor, each Party shall continue to perform as required lander t Contract Documents, and City ,shall continue to pay Contractor as provided in the C tract Documents. 38. Mediation - Waiver of Jury Trial In an' -effort to engage in a cooperative effort to resolv conflict which may arise during_ ie_course-oLthe_design_ and/or __construction_ of_the roject, .and/or following.. the completicin of the Project, the parties to this Contract a e that all unresolved disputes between them shall be submitted to non-binding diation prior to the initiation of litigation, unless otherwise agreed in writing by the rties. A certified Mediator, who the parties find mutually acceptable, will cond any Mediation Proceedings in Miami -Dade County, State of Florida. The parties wit hare the costs of a certified Mediator on a 50/50 basis. in an effort to expedite the conclusion of any litigation, the parties volu illy waive their right to jury trial or to file permissive counterclaims in any action ari g under this Contract. Any dispute submitted to the courts for resolution prior to the completion the procedures stipulated in Article 38, Resolution of Contract Disputes and Article 9, Mediation -- Waiver of Jury Trial shall be rejected by the courts until such time as t stipulated procedures have been completed. Traffic Infraction Detector Program Page 23 Applicable Law and Venue Of Litigation; Waiver of Jury Trial and Permissive Cnuntercfaims This Contract shall be interpreted and construed in accordance with and governed by \betweenthe s of the State of Florida. Any suit or action brought by any party, concerning ntract, or arising out of this Contract, shall be brought in Miami -Dade County, . Each party shall bear its own attorney's fees except in actions arising out of tor's duties to indemnify the City under this Contract where Contractor shall City's reasonable attorney's fees. r Expedite the conclusion of litigation between the parties the Contractor ty ch agree that in any suit or action between themselves involving anc or breach of this Contract they each voluntarily and knowingly waive ht to -nand a jury trial or to file a permissive counterclaim in suits or actions n the pa 'es under this Section. 40. City Mav Avail I The City may avail i If of each and every remedy herein specifically given to it now or existing at law or in uity, and each and every such remedy shall be in addition to every other remedy s specifically given or otherwise so existing and may be exercised from time to ti e and as often and in such order as may be deemed expedient by the City. The ercise or the beginning of the exercise, of one remedy shall not be'deemed a waive f the right to exercise, at the same time or thereafter, of any other remedy. The Ci eights and remedies as set forth in the Contract Documents are not exclusive an re in addition taany other rights and remedies in law or in equity. 41. Public Entity Crimes In accordance wi:h tl-,e Public Crime ck. Section 287.133, Florida Statutes, a person or at%2te who is a contractor, ci sultant or o.her provider, who has been placed on the convicted vendor list follows a conviction for a public entity crime, may not submit a bird vn a..pntct to provid ny goods or services to the City, may not.s.ubmit a bid on a doratract weh bhe City fo he construction or repair of a public building or public work, may not submit bids on ases of real property to the City, may not be awarded or perform work as a contrac r, supplier, subcontractor, or sub consultant under acontract with the City, and may n transact any business with the City in excess of the .threshold amount provide n Section 287-017, Florida Statutes, for category two purchases for a period of 36 nths From the date of being -placed-on-the-convicted--vendor-list.- Violation - of- this-- ction--by Contractor -shall result in cancellation of the'City purchase and may result in ontractor's debarment. 42. Audit Rights Contractor's records which shall include but not be limited \supportievidence ounting records, payroll time sheets, cancelled payroll checks, W -2's, 1099'ten policies and procedures, computer records, disks and software, videos, phhs, subcontract files (including proposals of successful and unsuccessrs), originals estimates, estimating worksheets, correspondence, changer fi s (including documentation covering negotiated settlements), and any othporti evidence necessary to substantiate charges related to this Contrll the regoing hereinafter referred to as "records") shall be open to inspectisubject o audit and/or reproduction, during normal working hours, by City's or its aut rued representative to the extent necessary to adequately pevaluation nd verification of any invoices, payments or claims submitted by ttractor or an f Traffic Infraction Detector Program Page 24 SUBSTITUTED TITUTE his payees pursuant to the execution of the Contract. Such records subject to examination shall also include, but not be limited to, those records necessary to aluate and verify direct and indirect costs (including overhead allocations) as they m apply to costs associated with this Contract. Rec ds subject to the provisions of Public Record Law, Florida Statutes Chapter 119, all be kept in accordance with such statute. Otherwise, for the purpose of such a its, inspections, examinations and evaluations, the City's agent or authorize epresentative shall have access to said records from the effective date of this Contra for the duration of the Work, and until 5 years after the date of final payment by City to Contractor pursuant to this Contract. The City's ag t or its authorized represents ive shall have access to the Contractor's foci 'es, shall have access to all necessary records, and shall be provided adequat and appropriate work space, in order to conduct audits in compliance with this rovision. The City or its authorized representative shall give auditees reasonable a ance notice of intended audits. 43. Nondiscrimination, Echal Emploment Opportunity, and, Americans with Disabilities Act Contractor warrants and r resents that it does ,not and w l not engage in discriminatory practices and f t there shall be no discrimination in �:­nnection with Contractor's performance under is. Contract on account of race, color, sex, religion, age, handicap, marital status er n. . 'onai origin. Contractor further covenants that no otherwise qualified individual shat , ".caiel,7, by reason of his/her race, color, sex, religion, age, handicap, marital s -:6 or national ,origin, be excluded from participation in, be denied servic:E4s, t sL biect to discrimination under any provision of this Contract. Contractor sh,:4 affirmativ�_y comply with a'"�� with Disabilities Act (ADA), ih the course sof including Titles I and IIof `--e ADA (reaar i disasiiity), and_all applicable rogulations, gi Contractor snali take affirmative steps to dnt' against disabled persons. pplicao"e provisions of the Americans p0ding any services funded by City, nondiscrimination on the basis of de es, and standards. In addition, ure 0ndiscrimination in employment 44. Inde0endent Contractor The C -D -,t -actor is engaged as an independent business d agrees to perform Work as -an -independent --contractor.- -In accordance -with -the atus of an independent - contractor, tike Contrac'cr covenants and agrees that the ontractor will conduct business in a manner so sistent with that status, that the Con ctor will not claim to be an officer or employee of the City for any right or privilege a licable to an officer or employee of t -re City, including, but not limited to: work s compensation coverage; unemployment insurance benefits; social security cov ge; retirement membership, or credit. The Contractor's staff shall not be employees of the City, and the Coactor alone shall be responsible for their Work, the direction thereof, and their compe ation and benefits of any kind. Nothing in the Contract Documents shall impose any bility or duty on the City on account of the Contractor's acts, omissions, /lobi 'es or obligations of those of any person, firm, company, agency association, corpo tion, or organization engaged by the Contractor as a Subcontractor, expert, consu nt, independent contractors, specialist, trainee, employee, servant or agent or for to Traffic Infraction Detector Program Page 25 SUBSTITUTED of any nature, including, but not limited to: unemployment insurance-, workers compensation and anti -discrimination, or workplace legislation of any kind. The iSotractor hereby agrees to indemnify and hold harmless the City against any such lilities, even if they arise from actions directed or taken by the City. 45. Suc ssors And Assigns The p or mance of this Contract shall not be transferred pledged, sold, delegated or assigne in whole or in part, by the Contractor without the written consent of the City. It is derstood that a sale of the majority of the stock or partnership shares of the Contra r, a merger or bulk sale, an assignment for the benefit of creditors shall each be dee d transactions that would constitute an assignment or sale hereunder requiring prior -ty approval. The Contractor's ervices are unique in nature and any transference without City Commission aper I shall be cause for the City to nullify this Contract. Any assignment without\condi consent shall be null and -void. The Contractor shall have no recourse cancellation. The City may require bonding, other security, certified fintements and tax returns from any proposed assignee and the execution onment/ assumption agreement in a form satisfactory to the City Attorney as In precedent to considering approval of an assignment. The Contractor and the City- ch binds one another, their partners, successors, legal representatives and autho. ed assigns to the other party of this Contract and to the partners, successor, )6A representatives and assigns of such party in respect to all covenants of this Con If the Contractor assigns, transfers, s\warrants r otherwise disposes of the Contract or its right, title or interest in or to the. r any part thereof without the previous consent in w ntr of the City, such shall be an Event of Default. Nothing herein shall either restrict'itie right oftractor to assign monies due to, or to become due or be construed to hine nt or affect any assignment by the Contractor for the'buriefit of'&'creditoe rsuant to applicable law. The Contractee shall not p edge tlie'.Cdit o ake it a guarantor of payment or surety for any contradf :r debt, or tion, j ment, lien or any form of indebtedness. The Contraitc?r furtrrants a represents that it has no obligation or indebtedness that.1wouir its abili to fulfill the terms of this Contract. 46.- - -'third-PartX Beneficiaries - - - - - Neither Contractor nor the City intends to directly or substanti benefit a third party by this Contract. Therefore, the parties agree that there re no third party beneficiaries to this Contract and that no third party shall be entiti to assert a ciaim against either of them based upon this Contract. The parties expre ly acknowledge that it is not their intent to create any rights or obligations in any third rson or entity under this Contract.. 47. Contingency Clause Funding for this Contract is contingent on the availability of funds and ntinued authorization for program activities and the Contract is subject to amend nt or termination due to lack of funds, reduction of funds and/or change in regula ns, upon thirty (30) days notice. Traffic Infraction Detector Program Page 26 SUBSTITUTED Performance Evaluation Contractor acknowledges that upon completion of the of the Work under this Contract and/or at any other time deemed appropriate by the City a performance valuation report will be completed by the City. A copy of each performance A 11uation shall also be forwarded to the Contractor. The performance evaluations wit a kept in City files for evaluation on future solicitations. 49_ JointVreoaration- I The Ian age of this Contract has been agreed to by both parties to express their mutual in nt and no rule of strict construction shall be applied against either party hereto, Th\nrwe ings contained in this Contract are fo.r reference purposes only and shall not aany way the meaning or interpretation of this Contract. All personal pronouns this Contract shall include the other gender, and the singular shall include thand vice versa, unless the context otherwise requires. Terms such as 'herein," ereof," "hereunder," and "hereinafter" refer to this Contract as a whole and a particular sentence,, article, paragraph, or section where they appear, uhe c text otherwise requires. Whenever reference is made to a Section or of th Contract, such reference is to the Section or Article as a whole, incall of a subsections. of such Section or Article, unless the reference e to a p icular subsection or subparagraph of such section or article, 50. Confidentiality Unless authorized by the Direct Contractor shall Beep confidential all information concerning and relating to this Pro am, including with6LAL limitation, any information and documentation provided by em- yee or officers of the City to the Contractor or any other data [ir-�materials prepare by the Contractor in connection with the Program. C clot shallnQt disclose a confidential information to any persons or other entities above without th prior written consent of the City. Such consent may be gt rated or -withheld at the le discretion of the City. The foregoing shall not prohibit such. disclC�s as may b necessary in the performance of the Work under this Contract or as regchred by law. 51. Contract Limitinca Time in Which to Brtrfa Actio Against the Citv In' the event the Contractor Ma be deemed to ha a cause of action against the City, no action shall lie or be maintained by the Contr for against the City upon any claim arising out of or based upon' the Contract Docu nts by reason of any act or omission or, ind uirbmennof tF�e City o� its agents, -u - ss such -action shall be commencedwithin six (6) months after the date of issuanc of a final payment under the Contract, or if final - payment has not been issued in six (6) months of substantial completion of the Work or upon'any claim relating o monies required to be retained for any period after the issuance of the said ce icate, unless such action is commenced within six (6) months after such monies ecome due and payable under the terms of the Contract Documents, or if the Cont ct is terminated or declared abandoned under the provisions of the Contract unles uch action is commenced within six (6) months after the date of such termination or claration of abandonment by the City. 52. Defense of Claims Should any claim be made or any legal action brought in any way relating h to or to the Program hereunder, except as expressly provided herein, the Gontracto hall Traffic Infraction Detector Program Page 27 SUBSTITUTED diligently render to the City any and all reasonable assistance which the City may require of the Contractor. 53. mendments modification, amendment, or alteration in the teras or conditions contained he in shall be effective unless contained in a written document prepared with the sam or similar formality as this Contract and executed by the City Manager, Director or de nee. 54. Severa i In the eve that any provision of this Contract is determined by a Court of competent jurisdiction be illegal or unenforceable, then such unenforceable or unlawful provision steal a excised from this Contract, and the remainder of this Contract shall continue in full rce and effect. Notwithstanding the foregoing, if the result of the deletion of such ovision will materially and acNersely affect the rights of either party, such party m elect, at its option, to ternhinate this Contract in its entirety. An election to terminate is Contract based upon this provision shall be made within seven (7) days after th finding by the court becomes final. 55. Survival The parties acknowledge t t any of the obligations in -the Contract, Documents will survive the term, terminatio nd cancellation hereof. Accordingly, the respective obligations of the Contractor a the City under the Contract, which by nature would continue beyond the terminatio cancellation, or expiration thereof, shall survive termination, cancellation or expimt thereof. 56. Entire Contract This Contract, as it may tie amender am time Ia. time, represents the entire and integrated agreement between the City d the Contractor and supersedes all prior negotiations, representations or agreemen written or oral. This Contract may not be amended, changed, modified, or othe e altered in any respect, at any time after,Vt 6�bxecution 'hereof, except by a writt document executed with the same faand dual dignity herewith.- Waiver either party of a breach of any fmaliCy .provision of th4ntract shall not be 1dee-med to a waiver of any other breach of anprovision of &s Contract. 57. Firsi�§ource Hirin i reements The Co , ctor tip may _ required to comply with Secti 18-110 of the -City Code_ which stagy - - - (a) The City Commission approves implementation o the first -source hiring agreement polftiandaequires as a condition precedent to t execution of service contracts for facifi#ies, services, and/or receipt of grants and I ns, for projects of a nature that create new jobs, the successful negotiation of 'rst source hiring agreements between the organization or individual receiving sai ontract and the Authorized Representative unless such an agreement is found i asible by the City Manager and such finding approved by the City Commissio at a public hearing. (b) For the purpose of this section, the following terms, phrases, words nd their derivations shall have the following meanings: Traffic Infraction Detector Program Page SUBSTITUTED uthorized Representative means the Private industry Council of South orida/South Florida Employment and Training Consortium, or its successor as to I recipient of federal and state training and employment funds. Fac "ies means all publicly financed projects, including but without limitation, unifie development projects, municipal public works, and municipal improvements to the tent they are financed through public money or services or the use of publicly ned property. Grants an loans means, without limitation, urban development action grants (UDAG), ec omit development agency construction loans, loans from Miami Capital DeveI ment, Incorporated, and all federal and state grants administered by the City. Service contracts Bans contracts for the procurement of services by the City which include Profe ional services. Services include, wxout limitation, public works improvements, facilities, professional services, c modities, supplies, materials and equipment_ (c) The Authorized Re esentative shall negotiate eachfirst source hiring agreement. (d) The primary benefician of the first -source hiring agreement shall be participants of the City training d employment programs, and other residents of the City. Contractors are strongly encourage Jo identify opportunities to hire qualified City residents if a Cor?traat is awarded, a are expected to secure the cooperation of subcontractors in, 'tris; effort as well. A roved community agencies are available to assist with- recruitrn@nt and screenin of job applicants, and may periodically monitor conit hctors` emplvyment records ring the term of the Contract. Resident job applicants are�not erected to receive s cial consideration by the prospective employer, and -must meet all hiring requ meats normally imposed by the employer. During the t4 of,thy Contract, if warded, the City may require the Contractor and its subcontractors to p'erio6call eview its manpower needs and resubmit First Source Hiring forms. 58, Performance Standards Contractor small be regcred to meet the performance ndards established below which -have been established based on the Contractor's P Response.- Where the Contractor `flails to meet the established performance stand ds the Contractor shall be subject to the deduction of the stipulated liquidated dam es. These liquidated damages amounts are not penalties but are liquidated dama s to the City for the lost revenue that would have been received had the per -forma e standards been met by the Contractor. Liquidated damages are hereby fixed nd agreed upon between the parties, recognizing the impossibility of precisely scertaining the amount of damages that will be sustained by City as a consequent f such delay, and both parties desiring to obviate any question of dispute concernin the amount of said damages and the cost and effect of the failure of Contractor meet the performance standards. City is authorized to deduct liquidated damages from monies due to Contract under this Contract or as much thereof as City may, in its sole discretion, deem ju and reasonable unless delays or failure to meet performance standards are en " ely Traffic Infraction Detector Program Page SUBSTITUTED attributable to acts beyond the control of Contractor. Ciry will provide information used to calculate liquidated damages, Contractor will have up to 14 days to provide rebuttal information for City's consideration. The performance standards shall be eviewed by the Project Manager and the Contractor quarterly, semi-annual or nual basis to review System reports documenting the performance standards es bfished below: •ffic Infraction Detector System availability per camera must meet an op tional threshold of 95% per month. For each month the Contractor does not et the established percentage availability the monthly fee shall be reduced by $2 .00 per camera_ Assessments will be made on a quarterly or semi- annual is at the discretion of the City. Operational is defined as a camera and detector t t are capable of detecting vehicles and. capturing images for issuance of violations. No deductions shall be made for events outside Contractor's direct control such s loss of supplied power or third parry telecommunications services. Prog shall be fully operational 95% of the time. For each month the Contractor d not meet the established percentage availability the monthly fee shall be reduc by $250.00 pier rnonth, per camera, per percentage point below standard. Fu operational shall mean that the availability of the major system components i lulling the System, Traffic Infraction, Detector System Violation Processing Sy m (VPS), and.Internel Website avaiiabifityPas met the above stated operational centage for the Prggram. Assessment will be made on a quarterly or semi -an al basis at the discretion of the City Normal scheduled maintenance whe 'downtime is piq-scheduled for the Axsis VPS system shall not be used to'ca late the uptime operational threshold above so long as there -is no,loss of violati©. ata. • Violations cap{ur4"ty violations-�iss d shall not be less than 90% per month, less Uncontrollable Fair�rs. For eac violation captured that does not result in the issuance of- a notie6f violation the ontractor shall be assessed liquidated damages in the-amount2of.$15.00 per Vi o ion notice not issued that resulted in the percentage threskold ri-Ot. 'ngmet. uld the ratio of violations captured to violation notices issued be'�e"ss than 80 per month, fess Uncontrollable Factors, the Contractor' hall be assessed liqu ted damages in the amount of $25.00 per violation not likied that resulted in t percentage threshold of 90% not being met. The; calcul2111diis shall not include ' lations captured where the violation has been waived in accordance with the quirement of the Contract Documents: Assessments will be made- on a. quarte - or semi-annual basis at the discretion of the City. In no event shall the gross ount paid exceed $25 per notice of violation and in total the gross amount pai the contractor. The ratio shall be calculated across all operational cameras. Timeframes have been established and are hereby incorporate s Attachment A, for the installation of the Traffic Infraction Detector System and fo he Program to become fully operational subsequent to the award of the Contract. ntractor shall be assessed liquidated damages in the amount of $10000 per cafe ar day per camera for each day the Contractor is late in meeting the establishe timelines unless such delays are entirely attributable to acts beyond the cont of the Contractor. Assessments will be made on a quarterly or semi-annual basi at the discretion of the City. The calculation of this liquidated damage assessment sh not include any delays related to any permit or other required governmental app al associated with the construction that stands in front of the Contractor's ability to m t Traffic Infraction Detector Program Page 30 SUBSTITUTED its own delivery time line. In other words, the Contractor shall warrant its ability to install its Intersection Safety Cameras and Axsis" VPS system, but cannot be held liable for approvals needed by governmental parties not under Contractor's direct control. City shall pay Contractor $50.DD per camera, per day for any camera .b stalled prior to the thirty (30) days as noted above for installation, after permits ng granted and power delivered for each agreed upon approach. 59. Sutktit Contr for as part of its RFP Response identified specific equipment, software, materia and other items that are to be used in the performance of this Contract. The spe\will ipments were identified by either, the name of the manufacturer, model nuechnological capabilities or similar manner. If Contrahes to substitute or upgrade ar�y item of material, equipment, or technoloctor shall submit a written request to the Project Manager. Such request the basis, including benefite, for the substitution, upgrade, or replacemst ulate that the acceptance of the proposed substitute, upgrade, or replacwill t adversely af�ect the Program. The Project Manager may require tractor furnish at Contractor's expense additional data about the proposedute, upg de or replacement. The City shall be allowed a asonable time %vkhln which to evaluate each proposed substitute, upgrade or reply The The Project Manager and the City shall be the sole judges of the acceptabil. any substitute, upgrade, or replacement. No substitute shall be ordered, inst� ,d. or utilized without the Project Manager's prior written acceptance which shall -b evidenced by either a Change Order or an approved submittal. 60. Change Orders Changes in the quantity or ±character of fh Program, including ail changes resulting in changes in the Contract.`Fee to be pari t Contractor shall be authorized only by Chang._ptde:rs approved in advance and psi ed in accordance with the provisions ald procdtdures of the,Contract and the City- hange Orders shall be required to -add, delete or modify the list of intersections which Traffic Infraction Detector Sy:;1em are installed: The Ci#y reserves the- right to: -order changes which ay result in additions to or reductions from the amount, type or value of the rk shown in the Contract Documents.and_which_ar� within the general scope.of the ontract Documents. - The value of any Work tet be covered by a Change Order s II be determined in one of the following ways: • Where the Work involved is covered by fees contain in the Contract Documents, such as the fees to add a Traffic Infraction Dete or System to an intersection. • By mutual acceptance of a lump sum which Contractor and Ci\theCh e contains a component for overhead and profit. • On the basis of the "cost of Work," determined as provided in thia proportional rate for the Contractor's overhead and profit. The term "cost of work" means the sum of all costs to be incurredy Contractor in the proper performance of the Extra Work describede Order. Traffic Infraction Detector Program Page 31 SUBSTITUTED Maintenance Contractor shall be required to maintain all equipment and software on an ongoing basis in accordance with the requirements established in the Contract Documents. he Program Manager shall notify the Project Manager within two (2) hours of any i tante where any component of the System or Traffic Infraction Detector System is no orking or is not working in accordance with normal operation capacity. 62, Trai The\requ tor shall provide training of ail appropriate City employees or personnel empy the City as stipulated in the Contract Documents. The Project and Progager shall jointly develop a training program based on the requirements of tht Documents, which will include the training necessary for the City to fulfilli ents under this Contract and with the applicable Florida Statutes and equ ments. The Project Manager _and Program Manager shall also estache a for training to ensure that#raining dapportunities are periodically offerongoi basis during the term �f this Contract, as needed. 63. RemEaulorne 64. Where an Active TraffiInfraction Detector System has been. removed from the Program or the Contract as been terminated before completi+af3 for any cause whatsoever, Contractor sh\reme ly remove Con traetbr's Traffic Infraction Detector Systems and any other eqor materials.' If'the Contractor fails to do so the City shall have the right tosuch equipment and supplies at the expense of Contractor. The Program may linvo've,the use of cess, procedures, intellectual information, which the Contractor may consider fidential information, trade secret, or intellectual or proprietary property, tradem s or patents. The City will makes its reasonably best efforts:#o ensure that no nfidential information, trade secrets, Intellectual. Property rights, copyright,. tradem or patent, as defined by Florida Statute, are maintained in a secure manner an re not provided to member of the public, private company cr any unauthorized I\ ' ual without the express written consent of the Contractor or sunless required by a ourt of competent jurisdiction. Failure of the City to -comply wi this requirement s II result in the City being in default -of the Contract. The Contractor at its discretion ay terminate this Contract for said defau7�upon providing -the City with""ninety (90 days wri#ten notice of its intent to terminate. Contractor shall when providing information, documentation, ata, etc., or access thereto, to the City that it believes falls within the tate ry of Confidential Information, Trade Secret, or Inteliectuai Property shall clearly ratify such to the Project Manager or other City representatives being provided with access to such information or documentation. The Contractor may take any necessary and appropriate actions avails\he r this Contract or in law to protect its rights. Contractor shall pay all royalties and license fees, shall defend all suitsr infringement of any copyright, patent, trademark, or other rights, and City, and any City's representative, harmless from loss on account thery, at its sole discretion may elect to defend itself against any suit or clh Traffic Infraction Detector Program Page 65. SUBSTITUTED instance, the Contractor shall be liable for all cost incurred by the City in the defense of such suit or claim. Where either party to this Contract has been notified of any suit or claim for infringement of a patent the party receiving the notification must notify e other party within ten (10) business days of receipt of such nottification. The City Y. at its sole discretion, terminate this Contract for convenience in accordance wit the terms of the Contract should the Contractor be in breach of any copyright, pate trademark, or other similar right. Contra r may at is sole discretions procure the rights to continue to the any infringing ' em, modify the items to mitigate the alleged infringement, or replace the items with n -infringing items, all at no cost to the City, In the event Co Tactor and any other public agency execute a more favorable term, condition or pi i n in a contract for this same Program then the Contractor shall automatically and\dis tly, by giving a written notice under Section 6 to the City Manager, the samcondition or provision which the City shall have the option to accept at its owetion within thi�y (30) days of receipt of such notice. 66. Licensing Agreement Contractor hereby warrants Nd stipulates that it has ownership rights, licenses, titles or other rights of usage toall quipment and software provided under this Contract. Contractor hereby grants to the ity a non-exclusive, non -transferable license during the term of the Contract autho -'rig the City access to the System. Contractor agrees to provide the City with the propriate levels of access to the System for the Project Manager, Traffic Enforcerne Officer, and othe.r'appropriate City personnel designated by the Direjctor or Pro*pct anager, to.. perform their responsibilities as part of the Proom. Across, at a mini m shall include the ability for the City to review, approve, or reject" violations an o have access to view and print any information related to any violations in the stem. The City shall also have the capability to review and print. any and all re rts related to the Program if such information is available tin the -System, The fic sing agreement shall also include the website provided by the Contractor for use by e public as part of this Program. The City hereby acknowledges -,that the Contractor is e owner of the System, Traffic Infraction Detector System, and all other non City o ned or provided equipment provided as part of the Program,,and that the City has right, title or claim to said System, Traffic Infraction Detector System, and equipme . The City shall not, by exercising -any rights or interest pursuant to this Contrac gain any right, title or interest in the System, Traffic Infraction Detector System, or quipment. However, the City shall does have right of ownership of the data col ted as part of the Program, as specified by this Contract, whether or not the data re 'des in the System or other equipment of the Contractor. The City shall not alter, modify, disassemble, or take any other simil\action. to the System, Traffic Infraction Detector System, or equipment at any tiut the prior written consent of the Contractor. Should the City desire anns or modifications to the System, Traffic Infraction Detector System, ornt the Project Manager shall request in writing that the Contractor take such The Contractor may take any necessary and appropriate actions available to itder this Contract or in law to protect the rights stipulated in this Article. Traffic Infraction Detector Program Page 33 SUBSTITUTED Availability of Contract Stare -ride Any governmental, not-for-profit or quasi -governmental entity in the State of Florida, may avail itself of this contract and purchase any and all goods/services, specified erein from the successful bidder(s)lproposer(s) at the contract price(s) established ein, when permissible by federal, state, and local laws, rules, and regulations. Ea governmental, not-for-profit or quasi -governmental entity which uses this formal solic tion and resulting bid contract or agreement will establish its own contra agreement, place its own orders, issue its own purchase orders, be invoiced there fro and make its own payments, determine shipping terms and issue its own exemption ertificates as required by the successful bidder(s)Iproposer(s). This clause does of apply to governmental, not -far -profit or quasi -governmental entity in the State of F ida that already has a contract with the Contractor. Traffic Infraction Detector Program Page 34 SUBSTITUTED IN WITNESS WHEREOF, the parties have set their hands and seals on the day year first above written. ATTEST: "C i Ly" City of Miami, a municipal corporation of the State of Florida By: - Prisciila A. ThompsoNityClerk Carlos A. Migoya, City Manager APPROVED AS TO M AND APPROVED AS TO INSURANCE CORRECTNESS: REQUIREMENTS. Julie 0. Bru Risk Management Administrator City Attorney tractor" AT- EST: Ameri Traffic Solutions, Inc., a Kansa orporation By. Print Name: --- Adam E. Tuton Title: Chief Operating C THE CITY REQUIRES FOUR (4) FULLY -EXECUTED AGREEMENTS FOR DISTRIBUTION. Traffic Infraction Detector Program Page 35 SUBSTITUTED Traffic Infraction Detector Program Page 36 SUBSTITUTED ATTACHMENT B ATS will prXvide ongoing assistance to the City in promoting the City's safety program, ATS will supN the City with the content from the many resources of ATS' Public Awareness Too it, including a collection of: press re aces for all phases of deployment, expansion, and program milestones website cont t radio and TV p lic service announcements (PSAs) public educatio flyers and brochures in English__ Spanish and other languages system images and g hies program taglines and I examples • talking points regarding' City's photo enforcement program • engaging and educational t3sdte content for the City's website. materials for media events • commonly requested media ate such as sample video clips and images of our camera system L,4= ATS will provide a website that is independa from the municipal website which will contain relevant proactive information in suppo of the road safety program. In addifion, each month ATS will contact CrEy with i as and themes for outreach and education and media pitches such as Stop air Red eek, extreme violation videos, and end -of -year results to name a few. ATS will also p City informed about state- sps4c as well as key photo enforcement industry new from Florida opinion polls to national court rulings and major study findings. The S team will support City staff a ad`iailor a community awareness and media campaig that fits City's program and--levet-of:desired -outreach.- Traffic outreach. Traffic Infraction Detector Program Page 37 SUBSTITUTED ATTACHMENT "A" TLMELIN-E SCHEDULE or agrees to provide the tasks and schedule as outlined below. I, Von Notice to Proceed — Contractor Plans: ■ Task 1- Deliver Project Implementation Plan Task 2- Submit Site Plans for Review & Permits The tas bove will be completed within forty-five (45) days after Notice to ceed is provided to the Contractor in writing from the City. H. Upon Permit ■ Task I - ■ Task 2- ■ Task 3- a Task 4 - oval — Installation of Camera(s) omplete Site Construction Nplete Equipment Installation Co rm Power Delivered Instal tion of Live Camera The Contractor agrees to in 11 a camera system within thirty (30) days of 0 required Permits ted and Power delivered for each agreed upon approach.