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HomeMy WebLinkAboutExhibit 1 SUBcoA FIRST AMENDMENT TO CONTRACT BY AND BETWEEN THE CITY OF MIAMI AND AMERICAN TRAFFIC SOLUTIONS, INC. TO FURNISH, INSTALL, OPERATE, AND MAINTAIN A TRAFFIC INFRACTION DETECTOR PROGRAM This First Amendment ("Amendment") to the Contract By and Between The City of Miami ("City") and American Traffic Solutions, Inc. ("Contractor") to Furnish, Install, Operate, and Maintain a Traffic Infraction Detector Program ("Contract") dated September 21, 2010 is made and entered into this day of July, 2011. Recitals WHEREAS, on September 21, 2010, Contractor and City entered into the Contract, whereby Contractor and City agreed to the provision by Contractor of services to City in connection with the enforcement of red light violations using traffic infraction detectors; WHEREAS, Contractor and City have agreed, pursuant to the terms, provisions, conditions and considerations hereinafter set forth, to supplement and amend the Contract. Terms and Conditions NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein and for other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Contractor and City agree that the Contract is hereby amended and modified as follows: 1. Section 4 of the Contract is hereby amended by the addition of the following language : Section 4. Scope of Work. The parties agree to the installation of up to forty (40) additional cameras at mutually agreeable locations as confirmed by a written document signed by authorized personnel Page 1 of 7 of both parties. If the City subsequently chooses to move a camera system to a new approach after the initial installation, it shall pay the direct costs to relocate the camera system. 2. Section 5 of the Contract is hereby deleted in its entirety and replaced with the following: Section 5. Contract Term The Contract is hereby extended to a ten (10) year term beginning with its commencement date of the Notice of Award of September 22, 2010. Providing there is not a Default/Event of Default, as set forth in Section 30 of the Contract, at the time of renewal the Contract shall renew automatically for up to two (2), two-year additional terms unless either party provides written notice to the other party at least thirty (30) days prior to the expiration of the then -current term. 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. Such extension shall be for the sole purpose of closing out the Contract in accordance with the requirements of the Contract. Either party may terminate the Contract for convenience in accordance with the terms of Section 33 after the fifth anniversary of the execution of this Amendment by providing written notice to the other party at least sixty (60) days in advance. Other than payments due under the Contract neither party shall have any recourse against the other from a termination for convenience under this Section. In addition to the termination for convenience provided above, the City may at anytime terminate for convenience in accordance with Section 33 in the event that the Program is held invalid by ultimate judicial action or binding legislative action. Page 2 of 7 3 Section 13 of the Contract is hereby deleted in its entirety and replaced with the following : Section 13. Indemnification Contractor shall indemnify, defend, 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,. This obligation shall also extend to any civil action, any proceeding, or claim alleging the Contract was awarded in violation of any applicable law or ordinance or that this Amendment or any amendment to the Contract is in violation of any applicable law, rule, regulation , resolution 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 325/Chapter 2010-80 codified as § 316.0083, Fla. Stat. ("The Mark Wandall Traffic Safety Program"). "Performing this Contract " as used above 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 shall in no way limit the responsibility to indemnify, keep and save harmless and defend the City or its officers, Page 3 of 7 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. 4. Section 28 of the Contract is hereby deleted in its entirety and replaced with the following: Page 4 of 7 Section 28. Payments Payments shall be made on a monthly basis for the Work performed in the previous month. The amount of payment shall be a monthly fee per camera not to exceed the revenue generated by that camera in that month. Subject to the foregoing, the monthly fee for each intersection with an Active Traffic Infraction Detector System, is as detailed below: Cameras per intersection Monthly Per Camera Fee One Camera $ 4,750 Two Cameras $ 4,500 Three Cameras $4,350 Four Cameras $ 4,250 Where an Active Traffic Infraction Detector System is in operation for less than the full month being invoiced, the Contractor shall invoice the flat monthly per camera fee on a pro rata basis for the month. Payment of an approved Application for Payment shall be made within forty-five (45) days after receipt of Contractor's proper 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. Proper invoice means as the term is defined in § 218.72, Fla. Stat. ("The Local Government Prompt Payment Act"). 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). The total fee paid to Contractor in each month shall not exceed a maximum of forty percent (40%) of the total revenue generated by the program, less the amount paid to the State of Florida pursuant to § 316.0083(1)(b)3, Fla. Stat., during that month. The attached exhibit entitled "Contract Illustration" ,which is incorporated by reference, provides an Page 5 of 7 example of how total fee is to be calculated. Total revenue means the total amount of money collected pursuant to this Contract and any Amendments to it. The City agrees to bring its payments current within 60 days of Amendment execution and, at such time, shall receive a one-time credit in the amount of $157,000.00, reflecting an adjustment to the Contractor's cost neutral invoices from January 2011 through May 2011. Said credit to the City is based upon the Payment provisions as amended herein. 5. Except as expressly amended or modified by the terms of this Amendment, all terms of the Contract shall remain in full force and effect. In the event of an express conflict between the terms of the Contract and the terms of this Amendment, the terms of this Amendment shall prevail and control. Page 6 of 7 IN WITNESS WHEREOF, the parties have executed this First Amendment as of the date set forth above. "CITY" ATTEST: City of Miami, a municipal corporation of the State of Florida By: By: Priscilla A. Thompson, City Clerk Johnny Martinez, P.E., City Manager APPROVED AS TO INSURANCE APPROVED AS TO LEGAL FORM REQUIREMENTS AND CORRECTNESS By: By: Calvin Ellis, Director Julie O. Bru Risk Management Department City Attorney "CONTRACTOR" American Traffic Solutions, Inc., a Kansas corporation ATTEST: By: By: Print Name: Adam E. Tuton, EVP/COO Title: Corporate Secretary Affix Corporate Seal Page 7 of 7 Authorized Corporate Officer Red Light Safety Program Contract Illustration Hypothetical Month Step 1: ATS invoice will be calculated as per the original contract term. Camera "Notice of Violation" Paid Payments Received ($158 each) Payments to State ($83 each) Revenue (Net $75) ATS Per Camera Fee • ATSAdlusted Fee Based on: Per Camera Revenue Clause Netto City 1 40 $ 6,320 $ 3,320 $ 3,000 $ 4,750 $ 3,000. $ - 2 45 $ 7,110 $ 3,735 $ 3,375 $ 4,500 $.:: 3 375: $ - .. 3 50 $ 7,900 $ 4,150 $ 3,750 $ 4,350 $ 3,750 $ 4 130 $ 20,540 $ 10,790 $ 9,750 $ 4,750 $,;':' :' _ _ 47;507 '$ 5;0.00 5 60 $ 9,480 $ 4,980 $ 4,500 $ 4,500 $-. 4,500: $' - 6 70 $ 11,060 $ 5,810 $ 5,250 $ 4,500 $ .. ; . - 4,500- " $ :750 7 30 $ 4,740 $ 2,490 $ 2,250 $ 4,750 $ .r 2,2501 $ - 8 25 $ 3,950 $ 2,075 $ 1,875 $ 4,500 $ 1,875.. $ .. - 9 240 $ 37,920 $ 19,920 $ 18,000 $ 4,500 $ ; 4,500.. $:;, . 13,500 10 50 $ 7,900 $ 4,150 $ 3,750 $ 4,350 $ . 3,750'. $ Totals 55,500 Step 2: If Step 1 yields that ATS Revenue is greater than 40%, then the new contract amendment applies and their invoice amount is reduced accordingly:'. • 653% • 19,250 34.7% 60% 33:;300 • FIRST AMENDMENT TO CONTRACT BY AND BETWEEN THE CITY OF MIAMI AND AMERICAN TRAFFIC SOLUTIONS, INC. TO FURNISH, INSTALL, OPERATE, AND MAINTAIN A TRAFFIC INFRACTION DETECTOR PROGRAM This First Amendment ("Amendment") to the Contract By and Betw6en The City of Miami ("City") and American Traffic Solutions, Inc. ("Contractor") to Furnis,, Install, Operate, and Maintain a Traffic Infraction Detector Program ("Contract") dated Se tember 21, 2010 is made and entered into this day of July, 2011. Recitals WHEREAS, on September 21, 2010, Contractor a d City entered into the Contract, whereby Contractor and City agreed to the provision y Contractor of services to City in connection with the enforcement of red light violations sing traffic infraction detectors; WHEREAS, Contractor and City have a , eed, pursuant to the terms, provisions, conditions and considerations hereinafter set fort , to supplement and amend the Contract. Terms a . Conditions NOW, THEREFORE, in consideratJ n of the mutual covenants and agreements set forth herein and for other valuable consl a ation, the receipt and sufficiency of which are hereby acknowledged, Contractor and Citygree that the Contract is hereby amended and modified as follows: 1, following: Payments Payments shall be made on a monthly basis for the Work performed in the previous month. The amo nt of payment shall be a monthly fee per camera, for each intersection with an Active Trafficraction Detector System, as detailed below: 7z-s& Section 28 of the Contract is hereby deleted in its entirety and replaced with the Cameras per intersection Monthly Per Camera Fee One Camera $ 4,750 Two Cameras $ 4,500 Three Cameras $4,350 Four Cameras $ 4,250 • / Where an Active Traffic Infraction Detector System is in operation for less than the full month being invoiced, the Contractor shall invoice the flat monthly pgf camera fee on a pro rata basis for the month. Payment of an approved Application for Payment s days after receipt of Contractor's invoice by the City, whic 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. 2. The monthly per camera fee shall onsist of the total compensation for furnishing installing, operating and maintaining the Pfogram inclusive of any/all direct and indirect expenses (including cost of regular and ,certified mail associated with issuance of warnings, citations and/or violations). The total fee paid to Contractor in each month shall not exceed forty percent (40%) of the total revenue generated by the program, less the revenue paid to the State of Florida pursuant to § 316.00,83(1)(b)2, Fla. Stat., during that month. Said change shall be in effect retroactively as of January 1, 2011. 3, The City igrees to bring its payments current and, at such time, shall receive a i one-time credit in the'amount of $157,000.00, 4, Section 5 of the Contract is hereby deleted in its entirety and replaced with the following: 2 di be made within forty-five (45) Termination for Convenience Either party may terminate the Contract for convenience after the fifth anniversary of the execution of this Amendment by providing written notice to the other party at least sixty (69) days in advance. 5. Section 7 of the Contract is hereby deleted in its entirety and replaced with the following; Contract Term The Contract is hereby extended to a ten (10) year term. The ontract shall renew automatically for up to two (2), two-year additional terms unless eith party provides written notice to the other party at least thirty (30) days prior to the expirati n of the then -current term, In addition, the City Manager may extend the term of the Contr t for a period of up to ninety (90) days should the City decide not to exercise an option to reew, Such extension shall be for the sole purpose of closingout the Contract in accord hce with the requirements of the p p � Contract. 6. The parties agree to the installation f up to forty (40) additional cameras at mutually agreeable locations, , If the City subse ently chooses to move a camera system to a new approach after the initial installation, it ssh, II pay the costs to relocate the camera system, 7, Except as' expressly amended or modified by the terms of this Amendment, all terms of the Contract shall remain in f 11 force and effect. In the event of a conflict between the terms of the Contract and the ter s of this Amendment, the terms of this Amendment shall prevail and control. IN WITNESS WHEREO, the parties have executed this Agreement as of the date set forth above, 3 r "CITY" ATTEST: City of Miami, a municipal corporation of the State of Florida By: Priscilla A. Thompson, City Clerk By: i Johnny Martinez, P/E., City Manager APPROVED AS TO INSURANCE APPROVED AS TO LEGAL FORM REQUIREMENTS AND CORRECrtNESS By: By: Calvin Ellis, Director Julie O. Bru Risk Management Department City A torney • ATTEST: By: Print Name: Title: CONTRACTOR" American Traffic Solutions, Inc., a Kansas corporation By: Adam E. Tuton, EVP/COO