CC Resolution 7884RESOLUTION NO. 7884
A RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF CAMPBELL, CALIFORNIA, AUTHORIZING
THE EXECUTION OF AN AGREEMENT WITH TRAFFIC
COMPLIANCE SYSTEMS FOR A "PHOTO RADAR"
SPEED ENFORCEMENT PROGRAM
WHEREAS, the major source of traffic complaints and
accidents in the City of Campbell is associated with vehicles
exceeding posted speed limits, and
WHEREAS, the City of Campbell desires to control vehicles
exceeding posted speed limits, and
WHEREAS, Traffic Compliance Systems has submitted a
proposal to the City to provide a "Photo Radar" Speed Enforcement
Program designed to reduce the number of vehicles exceeding posted
limits, and
WHEREAS, the terms and conditions of said proposal are
agreeable to the city of Campbell.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the
City of Campbell does hereby authorize the Mayor to execute an
agreement with Traffic Compliance Systems to provide a "Photo Radar"
Speed Enforcement Program to the City of Campbell.
PASSED AND ADOPTED this 6th day of February, 1990, by the
following roll call vote:
AYES: COUNCILMEMBERS: KOTOT►WSKI, WATSON, ASHWORTH
NOES: COUNCILMEMBERS: CONANT, BURR
ABSENT: COUNCILMEMBERS: NONE
J n J. Ashworth, Mayor
ATT
Barbara Olsasky, City C
ORIGINAL
AGREEMENT
THIS AGREEMENT is made between the CITY OF CAMPBELL (the
"City"), a California municipal corporation, and TRAFFIC COMPLIANCE
SYSTEMS, INC., a California corporation ("TCS").
BACKGROUND
TCS desires to operate the TCS System (as defined below) in
the City of Campbell and the City desires to have TCS operate the TCS
System. The parties have entered into this Agreement to provide for
the operation of the TCS System in the City of Campbell.
NOW, THEREFORE, the City and TCS agree as follows:
1. Definitions. For purpose of this Agreement:
1.1 "Citation" means a Citation issued by a court or
competent jurisdiction or the City police department relating to a
Violation documented by a Unit.
1.2 "Final Disposition" means (a) payment of bail or
fines assessed with respect to a Violation whether or not in
connection with an admission of guilt; (b) conviction of a Violation
as determined by a court of competent jurisdiction; (c) plea of
guilty or nolo contendere with respect to a Violation; or (d) any
disposition including, with limitations, dismissals as a result of
successful completion of a driving course. It shall not constitute a
Final Disposition if there is (a) a finding of innocence with respect
to a Violation or (b) dismissal due to imperfections in a Citation or
elements of proof of a Violation giving rise to a Citation resulting
solely and directly from the actions of TCS. If any Final
Disposition is overturned or otherwise reversed subsequent to payment
to TCS of the processing fee, such processing fee shall not be
refundable to the City.
1.3" TCS System" means the operation of one or more
Units as provided for in this Agreement and all ancillary services to
be provided by TCS pursuant to Section 2.
1.4 "Unit" means a photo/traffic speed monitoring
device comprised of a camera and a traffic radar device (or other
device capable of equivalent functions) designed to measure the speed
of motor vehicles to determine whether or not a Violation is
occurring, and obtain photographic documentation of any Violation,
including, without limitation, the date and time of the Violation and
the speed of the motor vehicle at the time of the Violation if the
Violation is one for exceeding safe or posted speed limits.
-1-
1.5 "Violation" means operation of a motor vehicle in
a manner contrary to the terms of the California or Santa Clara
County ("County") Vehicle Codes or the Campbell Municipal Code,
including, without limitation, operating a motor vehicle in excess of
the safe or posted speed limit and operating a motor vehicle without
displaying a valid license plate or proof of current registration
pursuant to Vehicle Code registration requirements.
2. Covenants of TCS. During the term of this
Agreement, TCS shall provide the following equipment and services at
its sole expense.
2.1 Provision of Units. Upon commencement of this
Agreement, TCS shall provide the number of Units, with or without a
vehicle, as set forth on Schedule 1 to this Agreement as amended from
time to time.
2.2 Citation Program. TCS shall create a traffic
citation program for Unit -generated Citations which shall include the
following components: operation of the Unit (to be operated by City
personnel), compilation of Violation evidence including photographic
evidence, preparation of Citations in City approved format, issuance
of Citations with appropriate court or police department
authorization, mailing costs, and other related miscellaneous costs
and expenses. TCS shall mail each Citation to the address of the
individual charged with the Violation no later than three (3) working
days after the date of the Violation; provided, however, the
three-day time period shall be extended on a day -for -day basis for
each day that the City fails to cooperate with TCS for the delivery
of film to TCS.
2.3 Film and Processing. TCS shall provide all
photographic film and related processing required for preparation of
Citations and prosecution of Violations to Final Dispositions,
including one (1) photograph with related documentation for each
Unit -generated Citation.
2.4 Training. TCS shall provide reasonable and
necessary training for the City personnel that will operate a Unit,
at location to be provided by the City. TCS shall be obligated to
provide training to no more than eight (8) persons during each
six-month period of this Agreement.
2.5 Witnesses. TCS shall provide upon reasonable
notice, expert witnesses as are reasonably necessary to establish the
accuracy, technical capabilities and effectiveness of a Unit for such
purposes as may be reasonable and necessary in the event
Unit -generated Citations are contested.
-2-
2.6 Repair and Maintenance. TCS shall maintain and
repair the Unit, and shall replace any Unit within thirty (30) days,
or earlier if reasonably possible, if the Unit fails to operate as
contemplated pursuant to this Agreement and cannot be timely
repaired.
2.7 Reports. Upon receipt from the City of necessary
information, TCS shall provide to the City monthly reports on each of
the subjects set forth in Section 3.4.
2.8 Compliance with Laws. TCS shall at all times
observe and comply with all federal, state and local laws, ordinances
and regulations.
3. Covenants of the City. During the term of this
Agreement, the City shall undertake the following obligations at its
sole expense:
3.1 Personnel. The City shall provide all personnel
necessary for operation of each Unit such that all Units shall be
operated on a regular basis to identify Violations that result in the
issuance of Citations.
3.2 Motor Vehicles. The City shall pay all operating,
repair and maintenance costs associated with any motor vehicles into
which a Unit may be mounted and shall provide insurance for such
Vehicle as provided in Section 9.4. The City shall pay all costs of
repair and maintenance for a Unit, if a Unit is damaged as a result
of the action of the City in operation of a Unit or the vehicle in
which a Unit is installed.
(a) Ownership of Motor Vehicle. Upon execution
of this contract, TCS shall deliver to the
City a motor vehicle as describe by the
City. This vehicle shall become the sole
property of the City, except as noted in
Section 3.2(b).
(b) Ownership of Vehicle on Termination. Upon
termination of this agreement, the City
shall have the following options regarding
the motor vehicle:
1) Return the vehicle to TCS in good
working order, reasonable wear and tear
excepted;
-3-
2) Keep the vehicle and pay TCS the Kelley
Blue Book wholesale value of the
vehicle.
3) Keep the vehicle and pay the list price
that TCS paid, less $.75 per citation
collected excluding tickets that result
in traffic school.
(i) TCS will keep a record that shall
be applied toward the purchase of
the vehicle, the value being
calculated every six-month period.
(c) Replacement of Vehicle. TCS shall replace
the vehicle with one as described by the
City at the following intervals:
1) When the vehicle renders 60,000 miles,
or
2) When the vehicle is five (5) years old.
3.3 Prosecution. The City shall have
sole responsibility to prosecute all Citations and shall use its best
efforts to obtain Final Dispositions.
3.4 Information. The City shall provide information
as is reasonable and necessary to enable TCS to create reports
regarding the following matters:
(a) total number of Citations;
(b) total number of Final Dispositions resulting
from uncontested payment of bail and fines;
(c) total number of Final Dispositions resulting
from dismissal for successful completion of
driving school;
(d) total number of Final Dispositions resulting
from prosecution by the City in courts of
competent jurisdiction;
(e) total amounts actually collected by the City
from Final Dispositions during each calendar
month.
4. Term. The term of this Agreement shall be one (1) year
and shall automatically be extended for successive one (1) year terms
on the anniversary of the delivery of the first Unit or the previous
extension date if the Agreement has been previously extended (the
"Anniversary Date"), absent written notice of termination by the City
to TCS at least ninety (90) days prior to the Anniversary Date.
-4-
4.1 Termination. Either party may terminate this
Agreement with at least ninety (90) days written notice to the other
party.
4.2 Six -Month Review. Either party may open this
Agreement for review of conditions (excluding fees) at the conclusion
of six (6) months after execution, provided, however, that no
conditions may be changed or modified except by the written agreement
of the City and TCS pursuant to Section 9.12.
4.3 Other Termination. Should the Courts of Santa
Clara determine their Citations issued by the TCS System are
non -enforceable in total, the City may immediately terminate this
Agreement.
5. Fees and Payment.
5.1 Processing Fee. The City shall pay TCS a
processing fee as provided below. The processing fee shall be
payable on the tenth (loth) day of each month for the Collected
Citations as determined in the previous calendar month.
(a) $15.00 per Collected Citation.
(b) $ 8.50 per Collected Citation going to
traffic school.
5.2 Other Fees. All amounts not payable pursuant to
Section 5.1 shall be payable to TCS pursuant to this Agreement within
fifteen (15) business days after receipt by the City of an invoice
from TCS setting forth the amounts payable.
6. Communication of Information. TCS agrees that all
information relating to the matters specified in this Agreement
obtained by TCS through operation of the TCS System shall be made
available to the City at any time during TCS's normal working hours.
7. Confidential Information. TCS shall not use any
information developed as a result of operation of the TCS System for
the City for any purpose other than the program; provided, however,
TCS may use statistical information developed as a result of the
program for any purpose.
8. Additional Units. TCS shall provide to City, within a
reasonable time period after written request by the City, additional
Units to be used by the City pursuant to the terms of this Agreement,
if at the time of the request each Unit in use by the City at the
date of the request is then producing, and for the immediately
preceding calendar month has produced, at least two thousand (2,000)
-5-
Unit -generated Citations per month resulting in a Final Disposition.
In addition, additional Units may be placed in operation under this
Agreement upon written agreement of TCS and the City. The City
agrees that it shall not hire Units or substantially similar
equipment from any other individual or entity during the term of this
Agreement.
9. General Terms and Conditions.
9.1 Independent Contractor: No Authority. The parties
acknowledge and agree that TCS shall at all times act as and be an
independent contractor, and that the City shall have no right to, and
shall not exercise any supervision or control over TCS or the
employment, direction, compensation and discharge of all persons
assisting TCS in the performance of the services hereunder, except
for such City employees as are involved in operation of the TCS
System. Except as the City may specify in writing, TCS and its
subcontractors shall have no authority, expressed or implied, to act
on behalf of the City in any capacity whatsoever as agents or
otherwise.
9.2 Indemnity. TCS shall indemnify, hold harmless,
release and defend the City from any and all liability, loss, suits,
claims, damages, costs, and expenses (including attorneys' fees and
costs of litigation) which result from or arise out of the negligence
or willful misconduct of TCS. The City shall indemnity, hold
harmless, release and defend TCS from and against any and all
liability, loss, suits, claims, damages, costs, and expenses
(including attorneys' fees and costs of litigation) which result from
or arise out of the operation of the Unit, including operation of any
vehicle in which the Unit may be installed, or operation of the TCS
System for the benefit of the City.
9.3 Insurance. Commencing on the date of the delivery
of the Unit to the City, the City shall at all times maintain at its
own expense, comprehensive general and automobile liability insurance
coverage for each Unit and vehicle, if any, as may be customary for
police vehicles, but in no event less than $500,000 per occurrence,
$500,000 aggregate, naming TCS as an additional insured. The City
shall provide TCS proof of insurance prior to operation of the Unit.
TCS shall at all times maintain Workers' Compensation insurance
coverage in such amounts as is required by law.
9.4 Ownership of Work. All reports and field data,
computer tapes and printouts, photographs, processed film and
transparencies, studies, memoranda, correspondence, computation
sheets and other documents assembled or prepared by or for, or
M
furnished to, the City under this Agreement shall be the sole
property of the City and shall be delivered to the City whenever
requested. TCS shall maintain and store the following property for
City at TCS's own expense for the following periods of time,
beginning from the date of creation:
Property
Elapse Time
All reports and field data, Three Years
studies, memoranda, correspondence
and computations
Computer tapes, printouts, One Year
photographs, processed film and
transparencies
Not later than the end of the above -elapsed time, the City shall
specify in writing to TCS a location to which TCS shall deliver such
property. TCS may maintain its own copies of all such reports and
property in its sole discretion.
9.5 Default. In the event either party defaults by
failing to fulfill its material obligations hereunder, the other
party may declare a default and termination of this Agreement by
written notice to the defaulting party, which default and termination
shall be effective on a date stated in the notice, which date shall
not be less than thirty (30) days after the first class mailing or
personal service of such notice, unless such default is cured before
the effective date of termination stated in such notice. Upon
termination of this Agreement, TCS shall provide all reasonable
assistance and use reasonable efforts to deliver to the City, or its
designees, in an orderly and expedient manner, all records and
documentation prepared for or belonging to City. Upon termination of
this Agreement, the City shall return to TCS the Unit or Units, if
more than one Unit has been delivered to the City, in good working
order, reasonable wear and tear excepted.
9.6 Waiver. The City's waiver or TCS's waiver of one
term or condition of this Agreement shall not be deemed a waiver of
breach of others, nor of a subsequent breach of the one waived.
9.7 Assignment. TCS shall not assign or transfer this
Agreement or any rights hereunder without prior written consent of
the City. Any unauthorized assignment or transfer shall be null and
void.
9.8 Conflict. TCS certifies that no member, officer
or employee of TCS is an officer or employee of the City, or a member
of any of its boards, commissions or committees.
-7-
9.9 Attorney's Fees. If any action at law or in
equity or an arbitration is brought to enforce or interpret the terms
of this Agreement, the prevailing party shall be entitled to
reasonable attorneys fees, costs and necessary disbursements in
addition to any other relief to which such party may be entitled.
9.10 Counterparts. This Agreement may be executed in
two (2) or more counterparts, each of which shall be deemed an
original.
9.11 Interpretation. This Agreement, and the rights
and duties of the parties hereunder (both procedural and
substantive), shall be governed by the laws of the State of
California applicable to contracts entered into and wholly to be
performed within the State of California by California residents.
9.12 Entire Agreement. This Agreement constitutes the
entire Agreement and understanding between the parties regarding its
subject matter and supersedes all prior or contemporaneous
negotiations, representations, understandings and agreements, written
and oral. This Agreement may only be changed by written amendment
signed by TCS and the Mayor or other authorized representative of the
City.
9.13 Maintenance and Inspection of Records. The City
and any other federal, state or local governmental agency, and any of
their authorized auditors or representatives, shall have access to,
and the right to audit and reproduce, any of the TCS's records to the
extent the City or such governmental agency deems necessary to ensure
that the City is paying only the amounts to which TCS is properly
entitled or for other purposes relating to the Agreement. TCS shall
maintain and preserve all such records for at least three (3) years
after termination of the Agreement or until an audit has been
completed and accepted in writing by the City. TCS or their auditors
or representatives, shall have access to, and the right to audit and
reproduce, any of the City's records to the extent TCS or its
auditors or representatives deems necessary to ensure that the City
is paying all amounts owed by the City to TCS relating to this
Agreement.
9.14 Limitation of Liability. TCS shall not be
responsible to the City for any consequential, special or indirect
damages, however caused, whether by TCS's negligence and whether
asserted in contract tort or otherwise (including strict liability),
including without limitation damages asserted or claimed because of
any Unit failure, Unit design defect or Unit production defect.
9.15 Notices. All notices, requests, demands and other
communications required by, or made in connection with, this
Agreement or the transactions contemplated by this Agreement shall be
in writing and shall be deemed to have been duly given on the date of
delivery, if delivered in person, upon receipt if sent by recognized
overnight courier, or three (3) days after mailing if mailed by
certified or registered mail, postage prepaid, return receipt requested,
addressed as follows:
If to City: Campbell Police Department
70 North First Street
Campbell, CA 95008
If to TCS: Traffic Compliance Systems, Inc.
300 Orchard City Drive, Suite 102
Campbell, CA 95008
ATTN: President
Such addresses may be changed, from time to time, by means of a notice
given in the manner provided in this Section.
DATED:
ATT
By:
CITY OF CAMPBELL
John X:�'Ashworth
Mayor
TRAFFIC COMPLIANCE SYSTEMS, INC.
By: t6� I P"� �
Michael E. Phi ps//
President
Robert C. Gregg
Chief Operating Officer