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R17-130 1 RESOLUTION NO. R17 - 130 2 3 4 A RESOLUTION OF THE CITY OF BOYNTON BEACH, FLORIDA, 5 AUTHORIZING THE MAYOR TO SIGN A PILOT AGREEMENT FOR 6 AUTOMATED LICENSE PLATE RECOGNITION SOLUTION 7 SERVICES WITH AMERICAN TRAFFIC SOLUTIONS, INC; AND 8 PROVIDING AN EFFECTIVE DATE. 9 10 11 WHEREAS, American Traffic Solutions, Inc (hereinafter "ATS") and the City 12 entered into a Professional Services Agreement dated August 9,2009 and such agreement has 13 been amended from time to time which term currently expires May 14, 2021; and 14 WHEREAS,City staff and ATS have discussed and have agreed to commence a pilot 15 program whereby ATS will subcontract to Cintel,LLC.,for delivering an Automated License 16 Plate Recognition solution; and 17 WHEREAS,staff has recommended that the City Commission approve and authorize 18 the Mayor to sign the Pilot Agreement for Automated License Plate Recognition Solution 19 Services with American Traffic Solutions, Inc. 20 NOW,THEREFORE,BE IT RESOLVED BY THE CITY COMMISSION OF 21 THE CITY OF BOYNTON BEACH,FLORIDA, THAT: 22 Section 1. The foregoing "Whereas" clauses are hereby ratified and confirmed as 23 being true and correct and are hereby made a specific part of this Resolution upon adoption 24 hereof. 25 Section 2. The City Commission of the City of Boynton Beach, Florida, hereby 26 authorizes and directs the Mayor to sign the Pilot Agreement for Automated License Plate 27 Recognition Solution Services with American Traffic Solutions,Inc,a copy of which is attached 28 hereto and made a part hereof as Exhibit"A". C:\Users\StanzioneTWppDatakLocal\Microsoft\Windows\Temporary Internet Files\Content.IE5\52FYTEOE\Agreement_with_ATS_for License_Plate_recognition_Services_-_Reso.doc 29 Section 3. This Resolution shall become effective immediately upon passage. 30 PASSED AND ADOPTED this 19th day of December, 2017. 31 CITY OF BOYNTON BEACH, FLORIDA 32 33 YES NO 34 Mayor—Steven B. Grant 35 36 Vice Mayor—Justin Katz 37 38 Commissioner—Mack McCray 39 40 Commissioner—Christina L. Romelus ✓ 41 42 Commissioner—Joe Casello ✓ 43 44 �— 45 VOTE 46 ATTEST:, 47 48 Cl 49 Judith A. yle, CMC 50 City Clerk 51g3 5 e . 52 53 (City Seal) b a a C:\Users\StanzioneT\AppData\Local\Microsoft\Windows\Temporary Internet Files\Content.IE5\52FYTEOE\Agreement_with_ATS_for_License_Plate_recognition_Services_-_Reso.doc PILOT AGREEMENT FOR AUTOMATED LICENSE PLATE RECOGNITION SOLUTION SERVICES This Pilot Agreement for Automated License Plate Recognition Solution Services ("Pilot Agreement") is made by and between American Traffic Solutions, Inc. ("ATS"), with its principal place of business at 1150 N. Alma School Road, Mesa, AZ 85201, the City of Boynton Beach, Florida ("Customer"), a municipal corporation of the State of Florida (with ATS and Customer each a "Party" and cumulatively, the "Parties"). This Pilot Agreement sets forth the terms, conditions and obligations of the Parties, and is effective as of the last signature date hereto (the "Effective Date"). Recitals WHEREAS, Customer and ATS entered into a Professional Services Agreement dated August 9, 2009 and such agreement has been amended from time to time (the "Photo Enforcement Agreement"), which currently has a term that expires May 14, 2021; WHEREAS, Customer has indicated a desire to obtain certain Automated License Plate Recognition ("ALPR") services and use of equipment as described herein as the"ALPR Solution"; and WHEREAS, Customer and ATS have agreed to commence a pilot program whereby ATS will subcontract to Cintel, LLC ("Cintel") for delivering the ALPR Solution pursuant to the terms and conditions contained herein (the "Pilot Program"); NOW, THEREFORE, for good and valuable consideration, the sufficiency of which is hereby acknowledged, the Parties agree as follows: Terms 1. Term and Termination of the Agreement This Pilot Agreement shall commence on the Effective Date and shall terminate on the earlier of (a) May 14, 2021; (b) any earlier termination or suspension of the Photo Enforcement Agreement; (c) termination of the EULA, as defined below; or (d) by mutual written consent of the Parties (the "Pilot Term"). In the event of a termination under subsection (b) or subsection (c) where the termination of the EULA resulted from a material breach of the EULA by Customer, Customer agrees to pay ATS an early termination fee of $10,000.00 (ten thousand dollars), which right ATS may assign directly to Cintel (and Customer hereby consents to such assignment). Notwithstanding the foregoing, if ATS informs Customer that Cintel is not able to provide the ALPR Solution (as defined herein) required for this Pilot Agreement under terms acceptable to ATS, this Pilot Agreement will terminate immediately at no cost to either Party and the Parties agree to negotiate in good faith a new Pilot Agreement, if so desired by the Parties. Upon the termination of this Pilot Agreement, ATS and Cintel shall have no further obligations to Customer regarding the ALPR Solution, and ATS (or its designated subcontractor) may uninstall and/or retrieve all ALPR Equipment from Customer. However, Customer may negotiate directly with Cintel for the continued use of the ALPR Solution and with ATS for the continued use of any ALPR Equipment(as defined herein) installed on ATS infrastructure. 2. Services The ALPR Solution consists of ALPR surveillance cameras and related processors, communications devices that transfer the captured and processed data(the"ALPR Data")to a server that is maintained on the Customer's premises, back-end software (Clarity TM) that facilitates the retrieval, processing and use of the ALPR Data with other databases maintained or utilized by the Customer, including ALPR capture data, white-lists, hotlists, data sharing alerts and investigative capability (which, along with the ALPR Data, constitutes Customer Data). As more fully set forth in Section 3, the ALPR Solution includes installation of the camera(s) and processor on infrastructure, power and communication commissioning (as applicable), repair and replacement of equipment (as applicable), technical support, training, and related services. 3. ATS' Responsibilities ATS has the following responsibilities (some or all of which may be carried out by its subcontractor Cintel): 3.1 Provide Customer with up to 23 ALPR fixed and mobile surveillance cameras (minimum of 2 per site) and required processors ("ALPR Camera"), associated ALPR hardware, a server to operate and/or store the ALPR Data on the Customer's site (if requested by Customer) and use of CLARITYTM software (herein together the "ALPR Solution"), provided Customer executes and complies with the End User Licensing Agreement(the"EULA")with Cintel,which shall be incorporated into this Agreement as Exhibit 1. All ALPR hardware shall be referred to collectively as "ALPR Equipment". 3.2 Within 90 days after a permit is obtained, or if no permit is required, within 120 days of the date the Customer provides ATS a Notice to Proceed as indicated in Exhibit 2 of this Agreement, provide and, if required, install the ALPR Cameras at locations mutually agreed to by the Customer and ATS. Installation may occur on existing permitted ATS infrastructure in the City, or on non-ATS infrastructure (provided all required permits are obtained by the Customer and Customer pays for construction costs, if applicable). If installation is not performed on existing ATS infrastructure, Customer may use preexisting Customer infrastructure or may contract with ATS (or its subcontractor) for the construction and installation of new infrastructure. Any new infrastructure constructed or non-ATS infrastructure shall be the sole property and responsibility of the City. 3.3 Assist the Customer with obtaining any permits required for the installation and use of the ALPR Solution. 3.4 For ALPR Cameras installed on existing ATS infrastructure, ATS shall use preexisting power sources to operate the ALPR Camera (for ALPR Cameras on all non-ATS infrastructure, the City shall be responsible for providing power). For all installed ALPR Cameras, ATS shall provide the communications hardware and communications service(if required), provided that ATS shall not provide communications services on any non-ATS Infrastructure to any non- ALPR Equipment (for example, if other City devices that share the infrastructure also require communications services). ATS shall determine the method of communication services required for the operation of the ALPR Equipment. 3.5 Provide training and post-installation support as set forth in Exhibit 3. 3.6 No Customer Data is or shall be hosted, stored, accessed or available to ATS (other than with respect to Cintel, who shall have limited access in accordance with the terms of the EULA as may be required for maintenance and upgrades). 3.7 ATS shall repair and replace all ALPR Equipment as set forth in Exhibit 3, and shall be responsible for Cintel's provision of updates to ALPR software as set forth in the EULA. 3.8 Provide the ALPR Solution to the Customer at no cost during the Pilot Term, except for costs as described in Section 4 below, which are the sole responsibility of Customer. 4. Customer's Responsibilities Customer has the following responsibilities: 3.1 Provide feedback to ATS when requested during the first 6 months of the term of this Agreement on the usability and viability of the ALPR Solution provided by ATS to Customer and then once per year thereafter, if requested. Such feedback should not include the sharing of any Customer Data. 3.2 Allow ATS to (i) use Customer as a reference for future potential customers considering the ALPR Solution, and (ii) identify Customer as a current user of the ALPR Solution. 3.3 Customer expressly acknowledges that ATS will not have access to any Customer Data. 3.4 For locations where ATS infrastructure is not available for installation of the ALPR Camera, the Customer shall be responsible for providing the pole, power and any other infrastructure necessary for the installation and operation of the ALPR Camera other than the communications services required to operate the ALPR Equipment, which shall be provided by ATS. ATS or Cintel will install the ALPR Camera and provide necessary communications services once the infrastructure and power is made available by the Customer. 3.5 Customer shall execute and at all times comply with the EULA. 3.6 Customer shall be directly responsible for all costs and liabilities associated with construction, installation, and any ongoing repair and maintenance of any non-ATS infrastructure used for the ALPR Equipment, and the cost of all data hosting, data retrieval or data storage or for any other usage-based or storage based costs other than the cost of the ALPR Solution. 3.7 Customer is responsible for the repair or replacement costs of any ALPR Equipment which is not the responsibility of ATS or Cintel, as set forth on Exhibit 3. 5. ATS as Independent Contractor and Use of Subcontractor For purposes of this Pilot Agreement, ATS is an independent contractor providing services to Customer. Employees, contractors, agents and servants of ATS shall in no event be considered to be the employees, agents, contractors or servants of the Customer. This Pilot Agreement does not create an agency relationship between ATS and Customer. Customer recognizes and approves the use of Cintel as a subcontractor of ATS for the provision of the ALPR Solution and other services, as required, to support the ALPR Solution, and that Cintel is a third-party beneficiary of this Pilot Agreement. 6. Ownership of Results; Use of Data 6.1 Notwithstanding anything else to the contrary in the Photo Enforcement Agreement or this Pilot Agreement, Customer agrees it is solely responsible for the housing and security of the Customer Data, and all such data is the property of the Customer, and ATS may not use the data for any purpose without the express written consent of the Customer and only as permitted by law. 6.2 Nothing in this Section 6. of the Pilot Agreement shall be construed as to replace or conflict with Section 5. "Data Management" of the EULA. 7. Warranty Disclaimer, Indemnification and Liability 7.1 Warranty Disclaimer. The Parties acknowledge that the ALPR Solution and related services are provided by ATS"AS IS"and without warranty of any kind. ATS EXPRESSLY DISCLAIMS ALL WARRANTIES RELATING TO THE ALPR SOLUTION, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES AGAINST INFRINGEMENT OF THIRD-PARTY RIGHTS, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. 7.2 Indemnification. Subject to the provisions herein, Customer hereby agrees to hold harmless, indemnify, and defend ATS and Cintel and its affiliates, shareholders or other interest holders, managers, officers, directors, employees, agents, representatives and successors, permitted assignees and all persons acting by, through, under or in concert with them (individually an "ATS Party" and "Cintel Party" and collectively, the "ATS Parties" and "Cintel Parties") to the fullest extent then contemplated by the governing and applicable law, as defined herein, against any and all liabilities, obligations, losses, damages, penalties and judgments including attorneys' fees and related defense costs and expenses, (collectively, "Losses") which may be imposed on or incurred by any ATS or Cintel Party arising out of or related to: (a)the willful or negligent misconduct of the Customer, its employees, contractors or agents which result in death or bodily injury to any natural person (including third parties) or any damage to any real or tangible personal property (including the personal property of third parties), except to the extent caused by the negligence or willful misconduct of ATS or Cintel; (b) Customer's misuse of or failure to maintain the security of Customer Data; (c) Customer's breach of this Agreement or violation of any laws; (d) Customer's misuse or misappropriation of Cintel's products or services, (e)any representation by Customer about the Cintel products or services not authorized by Cintel; (f) any breach of this Pilot Agreement by Customer related to Customer's receipt and use of the Customer Data or the EULA. 7.3 Limited Liability. EXCEPT FOR THE LOSSES, NEITHER PARTY SHALL BE LIABLE TO THE OTHER, BY REASON OF ANY REPRESENTATION OR EXPRESS OR IMPLIED WARRANTY, CONDITION OR OTHER TERM OR ANY DUTY AT COMMON OR CIVIL LAW, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, LOST PROFITS OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT. ATS'S ENTIRE LIABILITY TO CUSTOMER UNDER THIS AGREEMENT, REGARDLESS OF WHETHER THE CLAIM FOR SUCH DAMAGES IS BASED IN CONTRACT OR TORT(INCLUDING NEGLIGENCE)OR MISREPRESENTATION OR BREACH OF STATUTORY DUTY OR ANY DUTY UNDER GENERAL LAW OR ANY OTHER LEGAL THEORY, WILL NOT EXCEED ANY PAYMENT THAT THE CUSTOMER MAKES TO ATS UNDER THIS PILOT AGREEMENT, NOT TO EXCEED THE SUM OF TEN THOUSAND DOLLARS. 8. Confidentiality 8.1 Proprietary Information. Customer acknowledges that, in the course of Pilot Program, it may obtain or have access to information relating to the ALPR Solution or ATS and/or Cintel business ("Proprietary Information"). Such Proprietary Information shall belong solely to ATS and/or Cintel, and includes, but shall not be limited to the following:the ALPR Solution features, software, and modes of operation, and any trade secrets, know-how, inventions (whether or not patentable), techniques, processes, programs, ideas, algorithms, schematics, testing procedures, internal documentation, design and function specifications, product requirements, problem reports, analysis and performance information and other technical, business, product, marketing and financial information, plans and data. 8.2 Exclusions. Proprietary Information shall exclude any Customer Data (excluding, for the avoidance of doubt, any licensed software or proprietary components of the ALPR Equipment) and any information that is or becomes part of the public domain through no act or failure to act on the part of the Customer or which has been independently developed by Customer(as shown by Customer's written records) without reference to or use of, in whole or in part, any Proprietary Information. If disclosure of the Proprietary Information is required by any court order or similar order to which Customer must comply, Customer shall take precautions to protect the confidentiality of the Proprietary Information to be disclosed and promptly notify ATS in time to allow ATS or Cintel to object to the disclosure and to take additional confidentiality precautions with respect to the Proprietary Information subject to such order. In any dispute between the Parties with respect to the exclusions in this section, the burden of proof shall be on Customer and such proof shall be by clear and convincing evidence. 8.3 Restrictions. Customer shall not use Proprietary Information except as authorized under this Agreement and shall not disclose Proprietary Information, directly or indirectly, to any third party without the express written consent of ATS and/or Cintel, as applicable. All Proprietary Information shall remain the sole property of ATS and/or Cintel. Upon request, the Customer shall promptly return to ATS all items and material in Customer's possession or control which contain any Proprietary Information. Any copies of such items or material shall also be returned. Customer understands and agrees that this Agreement does not protect any information provided to ATS by Customer related to the ALPR Solution or the Pilot Program and ATS shall be free to use or disclose information provided by Customer about or related to the ALPR Solutions or the Pilot Program in the course of their discussions, including any feedback provided to ATS pursuant to Section 4.1. Customer represents and warrants to ATS that Customer's discussions will not breach any third party obligations or restrictions binding on Customer and Customer agrees not to disclose or provide to ATS any third party confidential information. 8.4 Nothing in this Section 8. of the Pilot Agreement shall be construed as to replace or conflict with Section 3. "Confidential Information and Content" of the EULA. 9. Compliance with Laws Customer will comply with all federal, state, and local laws, ordinances, regulations and orders (collectively, "Laws"), including without limitation Criminal Justice Information Services (CJIS) requirements, Florida Department of Law Enforcement requirements, and any Laws relating to data privacy or the use of ALPR with respect to its access to and use of the ALPR Solution, and data captured and produced by the ALPR Solution. 10. State Law to Apply This Pilot Agreement shall be construed under and in accordance with the laws of the State of Florida. 11. Entire Agreement This Pilot Agreement constitutes the sole and only agreement of the Parties and supersedes any prior understanding, written or oral, between the Parties respecting the subject matter of this Pilot Agreement. No amendments, modifications, or alterations of the terms hereof shall be binding unless the same is in writing, dated subsequent to the date of this Pilot Agreement and duly executed by the Parties. 12. Legal Construction In case any one or more of the provisions contained in this Pilot Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision thereof and this Pilot Agreement shall be construed as if such invalid, illegal, or unenforceable provision had not been contained herein.This Pilot Agreement shall be enforced to the maximum extent possible so as to give effect to the intent of the Parties and shall be reformed without further action by the Parties to the extent necessary to make such provision valid and enforceable. [signature page to follow] IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the last date written below on this signature page. CITY OF BOYNTON BEACH AMERICAN TRAFFIC SOLUTIONS, INC. Signature: Signature: Name/Title: Name/Title: Date: Date: EXHIBIT 1 End User License Agreement CLARITY SOFTWARE END USER LICENSE AGREEMENT TO BE PROVIDED EXHIBIT 2 FORM OF NOTICE TO PROCEED Reference is made to the Pilot Agreement for Automated License Plate Recognition Solution Services by and between American Traffic Solutions, Inc. ("ATS") and the City of Boynton Beach, Florida ("Customer"), dated as of (the"Agreement"). Capitalized terms used in this Notice to Proceed shall have the meaning given to such term in the Agreement. Customer hereby designates the procurement and deployment or installation of ALPR cameras at the following designated locations. Execution of this Notice to Proceed by Customer shall serve as authorization for the procurement and deployment or installation of the ALPR cameras for all designated locations as follows: 1) 2) 3) 4) 5) Customer understands that implementation and installation of any location is subject to a feasibility of installation analysis, and if necessary, engineering results conducted by ATS and/or its subcontractor Cintel. IN WITNESS WHEREOF, Customer has executed this Notice to Proceed as of the date written below. CITY OF BOYNTON BEACH, FLORIDA By: Name: Date Title: ACKNOWLEDGED AND AGREED TO BY: AMERICAN TRAFFIC SOLUTIONS, INC. By: Elizabeth Caracciolo Date Senior Vice President/General Manager, Government Solutions EXHIBIT 3 Requirement Response Email Support Response 24 hours (within technical telephone help desk operating periods) Technical Telephone Help Desk 08.00— 16.30 Monday through Friday Note: Eastern Standard Time Response to reported faults 24 hours (within technical telephone help desk (Performance of remote operating periods) diagnostic tests and determination of remedy) On-site support(Inspection, All repairs must be completed within three (3) Service and Repair of ALPR Business Days after fault reported to Cintel. Equiment) Installation Completion 90 days from time of permit issuance 120 days from PO if no permit required ATS (or its designated subcontractor) shall repair or replace all ALPR Equipment(including components), which may be done with replacement parts, unless such damaged component has been the subject of(a) improper handling or installation and repairs made by unauthorized persons, including the City; (b)misuse, neglect, accident on behalf of the City(or persons acting on its behalf other than a party authorized by ATS or Cintel); or(c)the City's violation of any term of this Agreement or the EULA. Repair and replacement of poles and infrastructure shall be the responsibility of ATS for ATS owned infrastructure, and the City for all non ATS-owned infrastructure.