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RESOLUTION NO. R18-033
A RESOLUTION OF THE CITY OF BOYNTON BEACH,
FLORIDA, REPLACING RESOLUTION R17-130 AND APPROVING
A PILOT AGREEMENT FOR AUTOMATED LICENSE PLATE
RECOGNITION SOLUTION SERVICES WITH AMERICAN
TRAFFIC SOLUTIONS, INC AND AUTHORIZING THE MAYOR
TO SIGN; AND PROVIDING AN EFFECTIVE.
WHEREAS, at its December 19, 2017, meeting, the City Commission adopted
Resolution R17-130 which authorized the Mayor to sign a Pilot Agreement for Automated
License Plate Recognition Solution Services with American Traffic Solutions, Inc. (hereinafter
"ATS"); and
WHEREAS, the Pilot Agreement requires additional approval since ATS requires that the
City enter into an agreement with Cintel, LLC., for the software services for the Automated
License Plate Recognition system for which the City is contracting with ATS; and
WHEREAS, staff has recommended that the City Commission approve and authorize the
Mayor to sign the attached Agreement.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE
CITY OF BOYNTON BEACH, FLORIDA, THAT:
Section 1. The foregoing "Whereas" clauses are hereby ratified and confirmed as
being true and correct and are hereby made a specific part of this Resolution upon adoption
hereof.
Section 2. The City Commission of the City of Boynton Beach, Florida, hereby
authorizes and directs the Mayor to sign the Pilot Agreement for Automated License Plate
Recognition Solution Services with American Traffic Solutions, Inc, a copy of which is attached
hereto and made apart hereof as Exhibit "A". Resolution R17-130 is replaced by this
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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
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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 CLARITYrM 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 BOYTON BEACH AMERICAN TRAFFIC SOLUTIONS,INC.
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EXHIBIT 1
End User License Agreement
CLARITY SOFTWARE END USER LICENSE AGREEMENT
THIS END USER LICENSE AGREEMENT("EULA") is made on the date ("Effective
Date") by and between Cintel, LLC"(Company"), with offices located at 420 Dividend Drive, Suite B, Peachtree
City, GA and the City of Boynton Beach, Florida("Customer"), a municipal corporation of the State of Florida
("Customer") located at 100 E. Boynton Beach Blvd., PO Box 310, Boynton Beach, FL 33425.
WHEREAS, Cintel is a premier license plate recognition("LPR")technology solutions provider and
offers LPR hardware and commercial LPR software products and services; and
WHEREAS, Customer entered into a Pilot Agreement for Automated License Plate Recognition Solution
Services with American Traffic Solutions, Inc. ("ATS") on or around (the "Pilot Agreement"), pursuant to
which Cintel is an authorized subcontractor of ATS to provide certain services described therein; and
WHEREAS. in connection with the Pilot Agreement, Customer desires to use certain Cintel developed
or distributed software as defined herein;and
WHEREAS, Company desires to grant Customer a limited, non-exclusive, non-transferable license to
use such software under the terms of the Pilot Agreement and this EULA.
NOW THEREFORE, in consideration of the covenants by and between the parties hereto, the parties,
intending to be bound, hereby agree as follows:
1. DEFINITIONS:
"Content" means: (i) information obtained or developed by Company related to the Service and provided to
Customer, including all Products specified and agreed upon pursuant to this EULA; (ii) the Documentation, as
defined within this EULA;and(iii)Updates. Content does not include the video footage captured by LPR cameras
or the license plate data recovered therefrom.
"Customer Data" means any data, information or material provided or submitted by Customer or Users to the
Service in the course of using the Service.
"Documentation" means, collectively, technical information and materials, in written or electronics form,
delivered with the Service by Company to Customer and that are intended for Use in connection with the Service.
""Delivered" or "Delivery" shall mean the software and service as transmitted by Company to Customer
electronically and in accordance with security measures agreed upon by both parties as described in the
Specifications.
"Content" means: i) information obtained or developed by Company related to the Service and provided to
Customer, including all products specified and agreed upon pursuant to this EULA; (ii) the Documentation, as
defined within this EULA; and (iii) Updates.
"Products" shall mean any Software, code, data, graphics or other materials or resources transmitted to
Customer in order to provide any of the Services under this EULA.
"Services" shall mean the provision of Software, Updates, Documentation and Products provided by Company
to Customer under this EULA and in accordance with the requirements of the Pilot Agreement.
"Software"shall mean the Cintel software to be provided by Company(as a subcontractor to ATS)to Customer
under the Pilot Agreement.
"Source Code"shall mean the readable forms together with make and build files.
"Updates" means all upgrades, modified versions, updates, additions to the products and Service, whether
provided to the Customer by Company through maintenance and support services or otherwise at any time.
"Use"means to directly or indirectly load, execute, access, employ, utilize,store,or display the Service.
"User(s)" means Customer employees who are authorized to Use the Service and have been supplied user
identifications and passwords by Customer(or by Company at Customer's request).
2. TERMS AND CONDITIONS.
2.1 Term. Customer agrees to a contractual term of service("Term")in accordance with the Pilot Agreement
between ATS and the Customer. The term of this contract will run concurrently with the term (including any
renewal terms) set forth in the Pilot Agreement. In the event Customer desires, and the Company agrees, to
continue providing Services following the Term(as provided for in Section 1 of the Pilot Agreement), the parties
shall enter into a new EULA.
2.2 Limited Use of License. Subject to the terms and conditions of this EULA, Company hereby grants
Customer a non-exclusive, non-transferable,worldwide right to use the Software(including the right to download,
install and access the Software), solely for Customer's internal business purposes, subject to the terms and
conditions of this EULA and the Pilot Agreement. All rights not expressly granted to Customer are reserved by
Company and its licensors. Under this EULA,Customer shall not be granted any rights or license to the Software
beyond that which is specifically and expressly provided for herein. Customer acknowledges that it is granted
access to the Software only through the Pilot Agreement and this EULA. Customer further acknowledges that at
no time shall it be entitled to download, distribute, install, transfer, reverse engineer, redistribute, or otherwise
manipulate the Software in any form or manner not explicitly authorized or covered by this EULA. At no time will
Customer hold title to or ownership of any of product, service, documentation,data(excluding Customer Data)
or the Products, Software, Services, Documentation, or Source Code provided to Customer pursuant to this
EULA.
2.3 Acknowledgement. Customer acknowledges that the Service and Software;;incruding its structure,
organization and Source Code, constitute valuable trade secrets of Company and/or its licensor(s).Accordingly,
Customer agrees, subject to and so long as not contrary to Client duties and obligations under public record laws:
(a) Not to modify, adapt, alter, translate, or create derivative works from the Software or Service (except as
expressly permitted by the Documentation);
(b)Other than as specified herein, neither the Software nor any tools licensed with or included in the Service may
be copied, in whole or in part,without the express written consent of Company.
(c) Not to merge the Software with other services or software; or sublicense, lease, rent, loan, or otherwise
transfer the Software or the Service to any third party;
(d)To not reverse engineer, decompile, disassemble, decode, decompose or otherwise attempt to derive the
Source Code for the Software or any other Company program,code,or technology installed or Delivered to
Customer;
(e) Not to provide services to third parties using the Software or Service (e.g. business process outsourcing,
Service Bureau applications or third party training)or otherwise Use or copy the Service for third parties;
(f)To notify Company immediately of any unauthorized Use of any password or account or any other known or
suspected breach of security or unauthorized use of the Software or Services;
(g)To report to Company immediately and use reasonable efforts to stop immediately any copying or distribution
of Content that is not expressly authorized by Company and that is known or suspected by Customer or
Customer's Users;
(h) To not remove, alter, or obscure any proprietary notices (including copyright notices) of Company and/or its
licensors incorporated into or with the Service; and
(i) Not provide false identity information to gain access to or Use the Service.
2.4 Restrictions. Customer shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or
otherwise commercially exploit or make available the Services to any third party in any way; or (ii) "frame" or
"mirror"any Content on any other server or wireless or Internet-based device;or(iii) reverse engineer or access
the Service in order to:
(a) build a competitive product or service;
(b)build a product using similar ideas,features, functions or graphics of the Service; or
(c)copy any ideas, features, functions or graphics of the Service.
Customer understands that this EULA and access to the Service immediately terminates and ends when one of
the following events takes place:
(i) Customer or its payee(ATS)fails to make a subscription payment;
(ii) Customer's Use of the Service violates Section 2.2;
(iii) Customer's material breach of this Agreement;
(iv) Customer's violation, or threatened, or apparent/intended, violation of law; or
(v) This EULA terminates pursuant to Section 6.
2.5 Software/Service Customization. Customer acknowledges that Products and Services are provided"as
is"and"as delivered"and cannot be construed as being able to be customized or modified in any way. Customer
assumes all responsibility to review all features included prior to signing this EULA.
2.6 Software/Service Support.All support for the Products and Services shall be provided pursuant to the terms
of the Pilot Agreement.
The Customer will provide Company with access to the its database or server(including backup databases)on
which the Software is utilized for service support from time to time in accordance with any applicable laws or
compliance standards,or as may be necessary for Company to provide service or maintenance to any Company
provided hardware to the extent required by the Pilot Agreement.
3. CONFIDENTIAL INFORMATION AND CONTENT
3.1 Confidential Information. During the term of this EULA, each party(the"Receiving Party") may be
provided with or otherwise learn confidential and/or proprietary information of the other party (the"Disclosing
Party") that is of substantial value to the Disclosing Party, which is identified as confidential at the time of
disclosure or which ought in good faith to be considered confidential ("Confidential Information"). This
information shall include, but is not limited to Product and Services information, materials, software,code,or any
other materials transmitted to Customer under this EULA. All Confidential Information remains the property of
the Disclosing Party. The Receiving Party may disclose the Confidential Information of the Disclosing Party only
to its employees and contractors who need to know the Confidential Information for purposes permitted under
this EULA and who are bound by written confidentiality agreements with terms at least as restrictive as those
provided in this EULA. The Receiving Party will not use the Confidential Information without the Disclosing Party's
prior written consent except in performance under the Pilot Agreement and this EULA. The Receiving Party will
take measures to maintain the confidentiality of the Confidential Information similar to those measures the
Receiving Party uses to maintain the confidentiality of its own confidential information of like importance but in no
event less than reasonable measures.The Receiving Party will give immediate notice to the Disclosing Party of
any unauthorized use or disclosure of the Confidential Information and agrees to assist the Disclosing Party in
remedying such unauthorized use or disclosure. The confidentiality obligations do not extend to Confidential
Information which(a)becomes publicly available without the fault of the Receiving Party; (b)is rightfully obtained
by the Receiving Party from a third party with the right to transfer such information without obligation of
confidentiality; (c)is independently developed by the Receiving Party without reference to or use of the Disclosing
Party's Confidential Information;(d)was lawfully in the possession of the Receiving Party at the time of disclosure,
without restriction on disclosure; or (e) is not exempt from public record laws. The obligations set forth in this
Confidential Information section will be effective from the Effective Date until 3 years from the termination or
expiration of this EULA.
3.2 Customer Content. Company does not exercise any control whatsoever regarding the Customer Data,which
passes through or utilizes the Company's Software, hardware, network, email or web site.
4. WARRANTIES AND DISCLAIMERS
4 1 Company Representations. Company represents and warrants that
(a) it has title to the Service or has acquired the right to license portions of the Service from third parties and
Company.has full power and authority to grant to Customer the rights granted hereunder;
(b) it has not placed, nor is Company aware of, any disabling code or any viruses in the Service which would
alter,destroy, or inhibit the Service, or its Use by Customer;
(c)to its knowledge,the Service does not infringe upon any US copyright, registered patent, trademark, software
mark or trade name owned by a US third party;
(d)Company personnel will exercise due care in the provision of the Services; and
(e) neither this EULA nor the performance of or exercise of rights under this EULA will violate, conflict with, or
result in the breach of any term, condition, or provision of any agreement or legal obligation (whether or not
existing at the effective date)to which Company is a party or by which it may be bound, or constitute a default
thereunder.
4.2 Customer Representations. Customer represents,warrants and covenants to Company as follows:
(a) Customer exists under the laws of its own jurisdiction and is not under any contractual obligation that would
preclude it from entering into this EULA or would interfere with its use of the Customer Data provided under this
EULA;
(b) Customer owns(or has the legal right to obtain and use) or has properly licensed all rights in the Customer
Data at all times during the Term;
(c)the Customer Data is not, nor will be, in violation of any laws or third party intellectual property rights;
(d)Customer's Use of the Service does and will comply with all applicable laws,including applicable privacy laws;
and
(e) neither this EULA nor the performance of or exercise of rights under this EULA will violate, conflict with, or
result in the breach of any term, condition, or provision of any agreement or legal obligation (whether or not
existing at the effective date) to which Customer is a party or by which it may be bound, or constitute a default
thereunder.
4.3 THE EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS SECTION ARE LIMITED
WARRANTIES AND ARE THE ONLY WARRANTIES MADE BY COMPANY WITH RESPECT TO THE SERVICE
AND ANY PART THEREOF. COMPANY MAKES NO OTHER REPRESENTATIONS OR WARRANTIES,
WHETHER EXPRESS, IMPLIED OR STATUTORY, AND EXPRESSLY DISCLAIMS ALL OTHER
WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS
FOR A PARTICULAR PURPOSE. COMPANY DOES NOT REPRESENT OR WARRANT THAT THE SERVICE
WILL OPERATE CONTINUOUSLY OR WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ANY
ERRORS WILL BE CORRECTED.
4.4 The representations and warranties set forth in the EULA hereto shall not apply: (i) if the Service is not used
in accordance with the Documentation or the Pilot Agreement; or(ii) if Customer or a third party acting on behalf
of Customer is granted administrative access to the Service;or(iii)if Customer's internal system does not employ
industry standard latency levels; or(iv) to the extent that a defect is caused by or is contributed to by Customer
or a Customer third party; or (v) if the defect is caused by a third party database or other third party software
malfunction.
4.5 The parties expressly acknowledge that there are no intended or incidental third party beneficiaries to
this EULA other than ATS.
5. DATA MANAGEMENT
5.1 Company alone (and its licensors, where applicable) shall own all right, title and interest, including all
related intellectual property rights, in and to the Service (specifically excluding all Customer Data) and any
suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by
Customer or any other party relating to the Service provided to Company. This EULA is not a sale and does not
convey to Customer any rights of ownership in or related to the Service or the intellectual property rights owned
by Company. The Company name, logo, and product names associated with the Service are trademarks of
Company or third parties, and no right or license is granted to use them.
5.2 Company, in its sole discretion, reserves the right to supply new application Source Code for the Service and
all copies thereof in Customer's possession or control whenever a future Update provides for like functionality in
an object code format.
5.3 Customer Data Backups. For purposes of a local onsite server database solution, the Customer is
responsible for maintaining a backup of Customer Data, and for all security requirements related to the storing,
accessing and use of the Customer Data. For purposes of an offsite, cloud-based or hosted database solution,
the Company is responsible for maintaining a backup of Customer Data and for an orderly and timely recovery
of such data in the event that the use of the Service may be interrupted. Unless otherwise agreed between the
parties in writing,Company shall maintain daily backups of all Customer Data that can be recovered within twenty-
four (24) hours. Additionally, Company shall use commercially reasonable efforts to maintain the security of
Customer Data.
5.4 Loss of Data. In the event of any act, error or omission, negligence, misconduct, or breach that
compromises or is suspected to compromise the security, confidentiality, or integrity of Customer Data or the
physical, technical, administrative, or organizational safeguards put in place by Company that relate to the
protection of the security, confidentiality, or integrity of Customer Data ("Data Breach°), Company shall, as
applicable: (a)notify Customer as soon as practicable but no later than twenty-four(24)hours of becoming aware
of such occurrence; and (b) reasonably cooperate with Customer in investigating the occurrence, including
making available all relevant records, logs, files, data reporting, and other materials required to comply with
applicable law or as otherwise required by Customer; (c)perform or take any other actions reasonably required
to comply with applicable law as a result of the occurrence; (d), indemnify,defend, and hold harmless Customer
for any and all losses which may be suffered by, accrued against, charged to, or recoverable from Customer in
connection with the occurrence of a Data Breach that is caused directly and exclusively by Company; (e) use
commercially reasonable efforts to be responsible for recreating lost Customer Data in the manner and on the
schedule set by Customer without charge to Customer; and, (f)provide to Customer a detailed plan within ten
(10) calendar days of the occurrence describing the measures Company will undertake to prevent 'a future
occurrence.
5.5 Access. Use.&Legal Compulsion.Unless it receives Customer's prior written consent, Company: (i)will
not access or use Customer Data other than as necessary to facilitate the Service; and(ii)will not give any third
party access to Customer Data. Notwithstanding the foregoing, and only to the extent.Company has custody or
control of any Customer Data,Company may disclose Customer Data as required by applicable law or by proper
legal or governmental authority. Company will give Customer prompt notice of any such legal or governmental
demand and reasonably cooperate with Customer in any effort to seek a protective order or otherwise to contest
such required disclosure, at Customer's expense.
The Customer will be responsible for compliance with all applicable local, state, and federal laws governing the
security, management, retention, access&control of Customer Data.
5.6 Customer's Rights. Customer possesses and retains all right,title, and interest in and to Customer Data,
and Company's access thereto is solely as Customer's agent and is expressly limited as set forth herein.
5.7 Retention, Deletion, & Request for Data. Customer is responsible to make internal backups of all data
used by or hosted on any software/service-based server. Upon termination of this EULA, Customer is responsible
for retaining all Customer Data and shall permanently remove all such Customer Data from any Company
provided hardware or servers that are required to be returned to the Company at the termination of the Pilot
Agreement.
6. TERMINATION
6.1 This EULA shall terminate on the earlier of:
(a) the expiration of the Term as defined in Section 2.1;
(b) upon the mutual agreement of the parties; or
(c)e,upon written notice by either party, if the other party materially breaches any term of this EULA and
fails to cure such breach within thirty(30)days after receipt by the breaching party of written notice from the non-
breaching party describing such breach.
6.2 Upon termination or expiration of this EULA, (a) all use, rights and licenses granted to Customer
hereunder will immediately cease and forever terminate; and(b)each party will promptly return the other party's
Confidential Information.
6.4 Except as specifically provided herein or in the Pilot Agreement, if either party is entitled under local law
or otherwise for any special payment or termination indemnity as a consequence of termination or expiration of
this EULA, such party hereby waives and disclaims to the fullest extent permitted by law, any right to such
payment or indemnity.
7. LIABILITY
7.1 :.Liability. Except as set forth in the Pilot Agreement and for the indemnification obligations set forth in this
EULA, and/or actions involving or related to either party's gross negligence neither party shall be liable to the
other for any incidental,consequential, special,or punitive damages or lost or imputed profits or royalties arising
out of this EULA or its termination,whether for breach of warranty or any obligation arising there from or otherwise,
whether liability is asserted in contract or tort(including negligence and strict product liability) and irrespective of
whether a party has advised or has been advised of the possibility of any such loss or damage.Each party hereby
waives any claims that these exclusions deprive it of an adequate remedy.
7.2 Indernnilication. Customer agrees to hold harmless,indemnify and defend Company, to the fullest extent
then contemplated by the governing and applicable law for any administrative, legal or quasi-judicial action,
threatened or realized ("action"), including, but not limited to allegations, claims, judgments, awards, costs,
expenses, damages and liabilities of whatsoever kind and nature, including attorneys'fees and related defense
costs and expenses, which may be asserted, granted,or imposed against Company directly or indirectly arising
from or in connection with Customer's misuse or misappropriation of Company's Products or Services or
unauthorized representation of the Products or Service or any breach of this EULA.by Customer related to
Customer's receipt and use of the Software.
7.3 COMPANY'S ENTIRE LIABILITY TO CUSTOMER UNDER THIS EULA, 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 THE TOTAL FEES PAID TO COMPANY BY CUSTOMER
IN CONNECTION WITH SECTION 1 OF THE PILOT AGREEMENT.
7.4 Company will not be responsible under this EULA for: (i)any alteration of the Service made by Customer
to fit a particular requirement of Customer not intended by Company;or(ii)the correction of any defects resulting
from Customer modifications; or (iii) the results of misuse of the Service by Customer or its affiliates; or (iv)
preparation or conversion of data into the form required for Use with the Service. COMPANY AND/OR ITS
LICENSORS SHALL NOT BE LIABLE FOR ANY CLAIMS OR DAMAGES ARISING FROM INHERENTLY
DANGEROUS USE OF THE SERVICE, CUSTOMER'S USE OF THE SERVICE IN VIOLATION OF
APPLICABLE LAW,AND/OR ANY THIRD-PARTY SERVICE LICENSED HEREUNDER.
8. GENERAL PROVISIONS:
8.1 Notices. Any notice to be given hereunder by either party to the other may be effected by personal
delivery in writing or by mail, registered or certified,postage prepaid with return receipt requested. Mailed notices
shall be addressed to the respective party at the address appearing in the introductory paragraph of this EULA.
Notices delivered personally shall be deemed communicated at the time of actual receipt; mailed notices shall be
deemed communicated as of the third day following deposit in the United States mail.
8.2 Entire Agreement. This EULA, inclusive of the Pilot Agreement to which this is expressly incorporated
therein by reference, contains the entire agreement and understanding between the parties hereto with respect
to the subject matter hereof,and supersedes any and all other agreements, either oral or in writing, between the
parties hereto with respect to the subject matter hereof. Any modification of this EULA will be effective only if
such modification is in writing signed by the party against whom enforcement of such modification is sought.
8.3 Severability. If any provision of this EULA is invalid, illegal or unenforceable under any applicable statute
or applicable law, it is to that extent to be deemed omitted. The remainder of the EULA shall be valid and
enforceable to the maximum extent possible.
8.4 Governing Law. The laws of the State of Florida shall govern all questions relative to the interpretation,
construction,and enforcement of this EULA,without giving effect to the principles of conflict of laws thereof. The
parties agree that any relief commenced and deemed necessary in furtherance of the protections afforded within
this EULA, including any injunctive relief,shall be instituted in Palm Beach County, Florida and the United States
District Court for the Southern District of Florida.
8.5 Assignment. This EULA shall not be assignable or transferable by Customer without the prior written
consent of Company. Company reserves the right to assign this EULA to a successor or affiliate in its sole
discretion. The rights and obligations of Company under this EULA shall inure to the benefit of and shall be
binding upon the successors and assigns of Company.
8.6 Force Majeure. Neither party shall be responsible for delays or failure of performance resulting from acts
beyond the reasonable control of such party. Such acts shall include, but not be limited to, acts of God,strikes,
walkouts,riots,acts of war,terrorism,epidemics,failure of suppliers to perform,governmental regulations,power
failure, earthquake, or other disasters. If the anticipated or actual delay or non-performance exceeds thirty(30)
calendar days, the other party may immediately terminate the EULA by giving notice of termination and such
termination will be in addition to the other rights and remedies of the terminating party under the EULA,at law or
in equity.
•
8.7 Waiver. The waiver by either party of a breach of any provisions of this EULA by the other party shall
not operate or be construed as a waiver of any subsequent breach by such party.
8.8 Compliance with Laws. By accessing the Service, Customer confirms that this EULA and the
performance of any rights and obligations hereof:
(a)are not restricted by or contrary to any law or regulation applicable to the Customer;
(b)do not require registration or approval under the applicable laws governing Customer;and
(c)will not require termination payments or compulsory licensing under the applicable laws of Customer.
8.9 Counterparts. This EULA may be executed in counterparts, each of which may be original or electronic
and shall together constitute one and the same binding instrument.
All parties represent and warrant that, on the date first written above, they are authorized to enter into this
EULA in its entirety and duly bind their respective principals by their signatures below:
.x
"144—
EXECUTED as of the Effective Date:
CINTEL,LLC BOYNTON BEACH, FL
4i
BY. #7/20/8— By:
—� '
Name:Ala Farash Name: LONLIA
Title:Chief Executive Officer Title: C.
APPRO 4./ OM
City rorney
•
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 operatin�a periods)
diagnostic tests and determination
of remedy)
On-site support(Inspection, All;repairs iiiust be;,:c'onipleted ivitli n three(3)
;Service and Repair of ALPR Business Days atter, fault reported to Cintel.
Equiment)
Installation Completion 90.days lroen tit ie of: Milt"issuance
.120 days from,t' ,ifno.iperinit 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.
j
1 RESOLUTION NO. R18-033
2 1
3
4 E j A RESOLUTION OF THE CiTY OF BOYNTON BEACH,
5 ' FLORIDA,REPLACING RESOLUTION R17-130 AND APPROVING
6 ; A PILOT AGREEMENT FOR AUTOMATED LICENSE PLATE
7 RECOGNITION SOLUTION SERVICES WITH AMERICAN
8 ; TRAFFIC SOLUTIONS, INC AND AUTHORIZING THE MAYOR
9 TO SIGN; AND PROVIDING AN EFFECTIVE.
10 ;
11
12 ' WHEREAS, at its December 19. 2017, meeting, the City Commission adopted
13 Resolution R17-130 which authorized the Mayor to sign a Pilot Agreement for Automated
14 License Plate Recognition Solution Services with American Traffic Solutions,Inc.(hereinafter
15 "ATS");and
16 WHEREAS,the Pilot Agreement requires additional approval since ATS requires that the
17 • City enter into an agreement with Cintel, LLC., for the software services for the Automated •
18 ; . License Plate Recognition system for which the City is contracting with ATS;and
19 '' WHEREAS.staff has recommended that the City Commission approve and authorize the
20 Mayor to sign the attached Agreement.
21 , . NOW,THEREFORE,BE iT RESOLVED BY THE CiTY COMMISSION OF THE
22 CITY OF BOYNTON BEACH, FLORIDA,THAT:
23 Section 1. The foregoing "Whereas" clauses arc hereby ratified and confirmed as
24 being true and correct and are hereby made a specific part of this Resolution upon adoption
25 hereof.
26 Section 2. The City Commission of the City of Boynton Beach, Florida, hereby
27 authorizes and directs the Mayor to sign the Pilot Agreement for Automated License Plate
•
28 Recognition Solution Services with American Traffic Solutions,Inc,a copy of which is attached
29 hereto and made a part hereof as Exhibit"A". Resolution R17-130 is replaced by this
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34 Section 3. This Resolution shall become effective immediately upon passage. ;
35
36 PASSED AND ADOPTED this 20'11day of February. 2018. :
.
37 CITY OF BOYNTON BEACH, FLORIDA
38
39 i YES NO
40 i Mayor—Steven B. Grant f
41 i '• •
42 Vice Mayor—Justin Katz
43 1 I
44 Commissioner—Mack McCray i.---
45
45
46 Commissioner—Christina L. Romelus
47
48 Commissioner—Joe Casello
49
50 i
51 f{j{ VOTE '0
52 I f ATTEST:
53 , a
54
55 4iii iL 6:e—- - :-•- 4--- .- '..4 ..„-v.,
56 JuditViA. Pyle, CMCsofsr1 t
57 ! Cit/Clerk `�,,, ctt
58 Lt. ".."
:k�V
60 I= (City Seal) :_ o :yr
I
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Resolution.
Section 3. This Resolution shall become effective immediately upon passage.
PASSED AND ADOPTED this 201h day of February, 2018.
ATTEST:
JuditYA Pyle, CMC
Ci Jerk
(City Seal)
CITY OF BOYNTON BEACH, FLORIDA
YES NO
Mayor — Steven B. Grant
Vice Mayor — Justin Katz V—
Commissioner — Mack McCray v
Commissioner — Christina L. Romelus
Commissioner — Joe Casello
VOTE :J �
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