HomeMy WebLinkAbout2022-049-3762_-_American_Traffic_Solutions_Sixth_Amendment_-_Adopted_-_PdfRESOLUTION NO. 2022-049-3762
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
MIAMI GARDENS,FLORIDA, AUTHORIZING THE CITY
MANAGER AND CITY CLERK TO EXECUTE AND ATTEST
RESPECTIVELY, THAT CERTAIN SIXTH AMENDMENT TO THE
AGREEMENT BETWEEN THE CITY OF MIAMI GARDENS AND
AMERICAN TRAFFIC SOLUTIONS, A COPY OF WHICH IS
ATTACHED HERETO AS EXHIBIT “A”; PROVIDING FOR
INSTRUCTIONS TO THE CLERK;PROVIDING FOR THE
ADOPTION OF REPRESENTATIONS;PROVIDING FOR AN
EFFECTIVE DATE.
WHEREAS, on November 14, 2007, the City Council Adopted Ordinance No.
2007‐26‐132 entitled Dangerous Intersections, providing for the enforcement of red light
violations using traffic infraction detectors, and
WHEREAS, on December 12, 2007, the City entered into a contract with American
Traffic Solutions, Inc., doing business as Verra Mobility (“Verra Mobility”) for the
installation and maintenance of red light cameras and accessories, and
WHEREAS, that certain agreement was amended on July 1, 2010, October 1,
2011, December 10, 2014, June 29, 2016, and June 28, 2018, and
WHEREAS, Section seven (7) of the Fifth Amendment To The Agreement
Between The City of Miami Gardens and American Traffic Solutions, Inc., (“Agreement”),
provided that Verra Mobility would provide the City with an Automatic License Plate
Recognition (“ALPR”) Solution consisting of up to twenty-eight (28) ALPR Cameras, and
WHEREAS, in accordance with the Agreement, Verra Mobility would retain
ownership of the ALPR Cameras and the City has the option of directing Verra Mobility
to install the ALPR Cameras on existing permitted Verra Mobility infrastructure or to install
the ALPR Cameras on City-owned infrastructure at the City’s expense, and
WHEREAS, upon execution of Sixth Amendment to the Agreement between the
City of Miami Gardens and American Traffic Solutions, Inc. (“Sixth Amendment”),
attached hereto as Exhibit “A”, the City and Verra Mobility agree that any and all
obligations of each party found in Section seven (7) of the Fifth Amendment are waived
in their entirety and Verra Mobility would no longer be required to provide the City with an
ALPR Solution, and
WHEREAS, upon execution of the Sixth Amendment, Verra Mobility agrees to
provide, and upon delivery, the City shall accept sole ownership of, twenty-eight (28)
ALPR Cameras and shall assume all responsibility for the ALPR Cameras, and
Resolution No. 2022-049-3762
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WHEREAS, City Staff recommends that the City Council authorize the City
Manager to execute that certain Sixth Amendment to the Agreement Between the City of
Miami Gardens and American Traffic Solutions, a copy of which is attached hereto as
Exhibit “A”,
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF MIAMI GARDENS, FLORIDA AS FOLLOWS:
Section 1: ADOPTION OF REPRESENTATIONS: The foregoing Whereas
paragraphs are hereby ratified and confirmed as being true, and the same are hereby
made a specific part of this Resolution.
Section 2: AUTHORIZATION: The City Council of the City of Miami Gardens
hereby authorizes the City Manager and City Clerk to execute and attest respectively,
that certain Sixth Amendment to the Agreement Between the City of Miami Gardens and
American Traffic Solutions, a copy of which is attached hereto as Exhibit “A.”
Section 3: INSTRUCTIONS TO THE CITY CLERK: The City Clerk is hereby
directed to obtain two (2) fully executed copies of the subject Agreement with one to be
maintained by the City and with one to be delivered to American Traffic Solutions, Inc.,
doing business as Verra Mobility.
Section 4: EFFECTIVE DATE: This Resolution shall take effect immediately upon
its final passage.
PASSED AND ADOPTED BY THE CITY COUNCIL OF THE CITY OF MIAMI
GARDENS AT ITS REGULAR MEETING HELD ON APRIL 27, 2022.
________________________________
RODNEY HARRIS, MAYOR
ATTEST:
________________________________
MARIO BATAILLE, CMC, CITY CLERK
PREPARED BY: SONJA KNIGHTON DICKENS, CITY ATTORNEY
SPONSORED BY: CAMERON BENSON, CITY MANAGER
Moved by: Councilman Stephens
Seconded by: Councilwoman Julien
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VOTE: 6-0
Mayor Harris Yes
Vice Mayor Leon Absent
Councilwoman Campbell Yes
Councilwoman Ighodaro Yes
Councilwoman Julien Yes
Councilman Stephens, III Yes
Councilwoman Wilson Yes
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SIXTH AMENDMENT TO THE PROFESSIONAL SERVICE AGREEMENT BETWEEN
THE CITY OF MIAMI GARDENS AND AMERICAN TRAFFIC SOLUTIONS, INC.
D/B/A VERRA MOBILITY
THIS SIXTH AMENDMENT (“Sixth Amendment”) to that certain Professional
Services Agreement between the City of Miami Gardens (“City”) and American Traffic
Solutions, Inc., doing business as Verra Mobility (“Verra Mobility”) dated December 12,
2007, (“Agreement”), is made and effective as of this _____ day of _______, 2022.
1. Section 7 shall be stricken in its entirety and replaced with the following:
ALPR Solution. The City and Verra Mobility agree that any and all
obligations found in section 7 of the Fifth Amendment to the Agreement
are waived in their entirety upon the signature of this Addendum and Verra
Mobility shall no longer be contractually required to provide the City with
an Automatic License Plate Recognition (“ALPR”) Solution.
The City accepts and understands any and all ALPR Cameras provided to
the City by Verra Mobility are being delivered “as-is” and without warranty
of any kind, and Verra Mobility expressly disclaims all other warranties
relating to the ALPR Cameras, express or implied, including, but not
limited to, any warranties against infringement of third-party rights,
merchantability and fitness for a particular purpose.
The City agrees that upon delivery of the ALPR Cameras the City shall
hold Verra Mobility harmless from any and all use of the ALPR Cameras
by the City and the City shall work directly with InsightLPR on integrating
the ALPR Cameras with the current ALPR solution currently provided to
the City by InsightLPR through a separate contract or other arrangement
between the City and InsightLPR.
2. INCONSISTENCY. In the event of an inconsistency or contradiction
between the terms hereof and the terms of the Agreement, to which this Addendum is
attached, the terms hereof shall control.
3. EFFECT OF ORIGINAL AGREEMENT. All terms of the Agreement not
affected by this Addendum shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals
the day and year set forth below their respective signatures.
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CITY OF MIAMI GARDENS
___________________________Date:__________________________
CAMERON BENSON, CITY MANAGER
ATTEST:
_____________________________
City Clerk,
MARIO BATAILLE
Approved As To Form
Sufficiency:
_____________________________________
SONJA K. DICKENS, CITY ATTORNEY
AMERICAN TRAFFIC SOLUTIONS, INC.
By: ________________________
Date:________________________
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AMENDMENT NO.5 TO THE AGREEMENT BETWEEN
THE CITY OF MIAMIGARDENS AND AMERICAN TRAFFIC SOLUTIONS
This Amendment No.5 (the "FifthAmendment")to the Professional Services Agreement,as amended,
between the City of Miami Gardens and American Tr ffic Soluti ns,In (the “Agreement")dated as of
December 12,2007 is made and effective as of this t?fdayof Ll/V\Q,2018 by and between the
City of Miami Gardens,Florida (herein “Customer"or "City"),a municipal corporation and American Traffic
Solutions,Inc.(herein “ATS”or “Contractor“),a Kansas,corporation (as the authorized and approved
assignee of American Traffic Solutions,LLC),with ATS and Customer individually a “Party"or collectively
the “Parties”.Capitalized terms used in this Fifth Amendment shall have the meaning given to such term in the
Agreement.
RECITALS
WHEREAS,on December 12,2007,the City and ATS entered into a Professional Services Agreement
for the City's use of the AxsisTMSystem to enforce traffic violations;and
WHEREAS,on July 1,2010,the City and ATS amended the Agreement (the "First Amendment”);and
WHEREAS,on October 1,2011,the City and ATS amended the Agreement (the “Second Amendment”);
and
WHEREAS,on July 1,2013,the City and ATS agreed to an addendum to the First Amendment to the
Agreement;and
WHEREAS,on December 10,2014,the City and ATS amended the Agreement (the “Third
Amendment”);and
WHEREAS,on June 29,2016,the City and ATS amended the Agreement (the “Fourth Amendment");
and
WHEREAS,Section 18 of the Agreement requires any amendments,modifications,or alterations of the
Agreement to be in writing and duly executed by the parties;and
WHEREAS,the City and ATS mutually desire to amend,modify or alter certain terms and conditions of
the Agreement.
TERMS AND CONDITIONS
NOW THEREFORE,in consideration of the mutual covenants and promises contained in this Fifth
Amendment,the City and ATS do hereby agree as set forth below:
1.The above recitals are true and correct and are incorporated herein.
2.Term.The term of the Agreement as provided for in Section 4.b of the Agreement shall be modified to
extend the term of the Agreement for five (5)years beginning on January 21,2019.This Agreement shall
automatically extend for consecutive five (5)year terms unless one of the Parties elects to terminate this
Agreement at the expiration of any term by providing written notice of its intent not to extend the
Agreement one hundred twenty (120)days prior to the expiration of the then-current term.
3.Termination.Sections 4.c and 4.d of the Agreement are hereby deleted in their entirety and replaced
with the following:
‘'40.Contractor’s services may be terminated:
(i)By mutual written consent of the Parties;or
(ii)For Cause,by either party where the other party fails in any material way to perform its
obligations under this Agreement.Termination under this subsection is subject to the condition
that the terminating party notifies the other party of its intent to terminate,stating with reasonable
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specificity the grounds therefor,and the other party fails to cure the default within forty~five (45)
days after receiving notice.
For Legal Reasons by either Party in the event the City’s use of red light safety Camera Systems
is rendered unlawful pursuant to applicable state or federal law and after the exhaustion of all
legal action by the City and Contractor seeking to overturn the court order or state or federal
legislation that rendered the use of red light safety cameras unlawful.However,the City shall
have no obligation to pay Contractor a fee for any period when it is unlawful to issue Citations,
unless a Court places a stay of implementation on the legal action or new law.The term of the
Agreement shall be suspended during any period in which the City is not obligated to pay
Contractor and such time period shall be added to the term of the Agreement once it becomes
lawful for the City to issue Citations.In the event of termination pursuant to this Subsection
4.c.(iii),the Parties shall take the following actions set forth in Subsection 4.d below,which
survive termination during the wind—downperiod.This subsection 4.c.(iii)shall not apply to this
Agreement or any Camera Systems grandfathered under state or federal legislation.
4.d.Upon termination of this Agreement,including because it has reached the end of its term,the Parties
recognize that City will have to process Events in the “pipeline",and that ATS accordingly must assist
City in this regard.Accordingly,the Parties shall take the following actions and shall have the
following obligations,which survive termination during the wind—downperiod:
(i)
(ii)
City shall cease using the Axsis""System to capture Events.
Unless it is unlawful to do so,ATS shall,for a period of ninety (90)days,continue to process all
Events captured before termination and provide all services associated with processing in
accordance with this Agreement and shall be entitled to a monthly fee of $4,750 per Camera
System.After such ninety (90)day period,ATS shall terminate all use of the Axsism System for
City's Program and upon such termination,the Axsisw‘System,including vio|ationinfo.com
website,and related lockbox shall no longer be capable of accepting payments.
Except as provided for in Sections 9 and 15.2(iv)related to the Systems,City shall return or allow
ATS to recover all provided equipment within a reasonable time not to exceed ninety (90)days.
Upon City’s request or if otherwise required by law,regulation,or administrative agency,and
subject to the limitations set forth herein,ATS shall remove any and all Systems ATS installed in
connection with ATS's performance of its obligations under this Agreement.Such removal shall
include but not be limited to housings,poles and Camera Systems.ATS shall restore the surface
of City’s property to substantially the same condition as such property was in immediately prior to
this Agreement,except for foundation removal,which shall be left approximately flush with grade
with no exposed bolts,or other hazards.Installed underground conduit,foundations,and other
equipment shall not be required to be removed.City shall accept and observe any and all duties,
obligations,or liabilities associated with the remaining foundation,conduit,or other below—grade
Infrastructure.
ExpansionlPricing.Pursuant to Subsection 1.24 of Exhibit A “Scope of Work"of the Agreement,the
Parties will identify locations for the installation of additional Camera Systems and the pricing for both
current and additional Camera Systems shall remain at $4,250 per Camera System per month.
Enhanced Video Services.For all locations where a Camera System is currently installed and a FDOT
permit was not required for the installation and operation of the red light Camera System,ATS agrees to
make available to Customer such video system enhancements that permit Customer to perform remote
video retrieval and video streaming for the Camera Systems should Customer provide ATS with written
notice of its desire to implement such enhancements.For those locations where an FDOT permit was
required for the installation of a red light Cameras,ATS will provide the Enhanced Video Services when
the Customer obtains an FDOT permit for the use of such services.ATS agrees to provide the Enhanced
Video Services at no cost to the Customer.
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a.The Parties agree that the Enhanced Video Sen/ices shall be subject to the following provisions:
i.Historical video is stored at the Camera site for a time period of at least 30 days pursuant to
the Customer's direction to retain the video for the period specified in the State of Florida
General Records Schedule GS1—SL,Section 302,after which time the video is overwritten.
ii.Requested video files pursuant to the Enhanced Video Services will be available for
Customer download within 1 business day of request and will be available for retrieval for 30
days,consistent with State of Florida General Records Schedule GS1—SL,Section 302.
iii.Customer acknowledges that once it obtains a requested video file,it is responsible for any
preservation,and associated storage requirements that may be required by law for said video
file.Consistent with Section 6.of this Fifth Amendment below,Customer agrees that since
the requested video file is not required by ATS to continue to perform the service outlined in
this Agreement,the video file and any resulting public records shall be transferred to
Customer prior to the termination of the Agreement and Customer shall serve as the records
custodian for any said public records created.Customer agrees to assume responsibility to
respond to,and if appropriate defend,any requests for data or information obtained through
the Enhanced Video Service,whether by formal public records request or otherwise.ATS
shall not be responsible for any storage,storage costs or public records requests pertaining
to the historical video beyond maintaining public records consistent with the records retention
schedule specified by the Customer in the Agreement and consistent with the process
outlined in Section 6.of this Fifth Amendment below.
iv.Video file requests from historical video are limited to 30 minutes.If additional footage is
required,additional requests may be made by Customer.
v.Customer agrees that if for any reason it is determined that Customer has improperly used
video gathered through any video enhancement described herein,such that Customer's
permits for its red light camera detection system are compromised or revoked,Customer
agrees that it will remain responsible for the monthly service fees set forth in Section 1.0,of
Exhibit A,Service Fee Schedule,of the Agreement,and such revocation shall not be grounds
for terminating Customer's contractual obligations to ATS.
vi.Streaming video is limited to 10-minute sessions.After 10 minutes,users will be prompted to
reconnect.
vii.Customer understands they are solely responsible for the proper use of video gathered
through any video enhancement.
6.Public Records.Section 8.“Communication of |nformation"of the Agreement is hereby revised to
include the following subsections:
“8.1 Public Records.
ATS shall comply with all applicable requirements contained in the Florida Public Records Law
(Chapter 119,Florida Statutes),including but not limited to any applicable provisions in Section
119.0701,Florida Statutes.To the extent that ATS and this Agreement are subject to the
requirements in Section 119.0701,Florida Statutes,ATS shall:
(a)Keep and maintain public records required by the City to perform the services
provided hereunder.
(b)Upon request from the City's custodian of public records,provide the City with a copy
of the requested records or allow the records to be inspected or copied within a
reasonable time at a cost that does not exceed the cost provided in Chapter 119,
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Florida Statutes,or as otherwise provided by law
(c)Ensure that public records that are exempt or confidential and exempt from public
records disclosure requirements are not disclosed,except as authorized by law for
the duration of the term of this Agreement and following completion of this Agreement
ifthe Contractor does not transfer the records to the City.
(d)Upon completion of the Agreement,transfer,at no cost,to the City all public records
in the possession of ATS or keep and maintain public records required by the City to
perform the sen/ice.If ATS transfers all public records to the City upon completion of
the Agreement,ATS shall destroy any duplicate public records that are exempt or
confidential and exempt from public records disclosure requirements.If the
Contractor keeps and maintains public records upon completion of the Agreement,
ATS shall meet all applicable requirements for retaining public records.All records
stored electronically must be provided to the City,upon request from the City's
custodian of public records,in a format that is compatible with the information
technology systems of the City.
If ATS fails to comply with the requirements in this Section 8.1,the City may enforce these
provisions in accordance with the terms of this Agreement.If ATS fails to provide the public
records to the City within a reasonable time,it may be subject to penalties under Section 119.10,
Florida Statutes.
IF ATS HAS QUESTIONS REGARDING THE APPLICATION OF
CHAPTER 119,FLORIDA STATUTES,TO ATS‘DUTY TO
PROVIDE PUBLIC RECORDS RELATING TO THIS AGREEMENT,
ATS SHOULD CONTACT THE CITY’S CUSTODIAN OF PUBLIC
RECORDS:THE CITY CLERK,Mario Bataille BY TELEPHONE
(305I622-8000 x 2810),E-MAIL
(MBATAILLE@MIAMIGARDENS.GOV OR MAIL (CITY OF MIAMI
GARDENS,OFFICE OF THE CITY CLERK,18605 NW 27”‘
AVENUE,MIAMIGARDENS,FL 33056.
7.ALPR Solution.ATS,through its subcontractor Cintel,LLC,agrees to provide the Customer with an
ALPR Solution as defined herein.As part of the ALPR Solution,ATS will provide up to twenty—eight(28)
ALPR Cameras and one (1)additional ALPR Camera for each additional red light Camera System
installed subsequent to the Effective Date of this Fifth Amendment.Each ALPR Camera willcover 1 to 2
lanes depending on the angle of the installation or deployment.Prior to the procurement and installation
or deployment of ALPR Cameras,Customer shall execute the End User Licensing Agreement (EULA)
with Cintel,LLC,which is attached as Exhibit 1 to this Fifth Amendment.Currently no ALPR Cameras
may be installed or othenrvise deployed on an FDOT rights of way (FDOT ROW),therefore any
installation or deployment shall be limited to non»FDOT ROW until FDOT begins to issue permits for
installation or deployment of ALPR Cameras on FDOT ROW.The Customer shall be responsible for any
costs related to the installation or deployment of the ALPR Cameras,except when the installation is on
an existing ATS pole currently installed within the City,in which case ATS shall be responsible for the
installation costs.
Upon the termination of the Agreement between ATS and the Customer,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.
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b.
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,bacl<»end software (“CLAR|TY”"")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—|ists,hotlists,data sharing alerts and investigative
capability (which,along with the ALPR Data,constitutes “Customer Data”).As more fully set forth in
Subsection b.below,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.
ATS’Responsibilities.
ATS has the following responsibilities (some or all of which may be carried out by its subcontractor
Cintel):
vii.
Provide Customer with ALPR fixed or mobile surveillance cameras (monitors 1 to 2 lanes
depending on angle of installation or deployment)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 CLARITYW‘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.AllALPR
hardware shall be referred to collectively as “ALPR Equipment".
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—ATSinfrastructure (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—ATSinfrastructure shall be at the sole cost,and the sole
property and responsibility,of the Customer.
Assist the Customer with obtaining any permits required for the installation and use of the ALPR
Solution.
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—ATSinfrastructure,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 sen/ices on any non—ATS Infrastructure to any non—ALPR
Equipment (for example,if other City devices that share the infrastructure also require
communications sen/ices).ATS shall determine the method of communication services required
for the operation of the ALPR Equipment.Customer shall be responsible for the cost of any new
power source or communication services that is required.
Provide training and post~installation support as set forth in Exhibit 3.
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).
ATS shall repair and replace all ALPR Equipment as set forth in Exhibit 3,and shall be
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responsible for Cintel’s provision of updates to ALPR software as set forth in the EULA.
viii.Provide the ALPR Solution to the Customer at no cost,except for costs as described in
Subsection c.below,which are the sole responsibility of Customer.
c.Customer'sResponsibilities.
Customer has the following responsibilities:
i.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.
ii.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.
iii.Customer expressly acknowledges that ATS will not have access to any Customer Data.
iv.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.
v.Customer shall execute and at all times comply with the EULA.
vi.Customer shall be directly responsible for all costs and liabilities associated with construction,
installation,and any ongoing repair and maintenance of any non—ATSinfrastructure 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.
vii.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.
d.Ownership of ALPR Results;Use of ALPR Date.
I.Notwithstanding anything else to the contrary in the 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.
ii.Nothing in this Subsection d.of shall be construed as to replace or conflict with Section 5.
“Data Management”of the EULA.
e.Warranty Disclaimer,Indemnification and Liability.
i.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 LIMITEDTO,ANY WARRANTIES AGAINST INFRINGEMENT OF
THIRD-PARTY RIGHTS,MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE.
ii Indemnification.Customer will give ATS prompt written notice of actions or claims,whether
threatened or pending,against Customer,its officers,directors,employees agents and
6
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representatives (“Customer Indemnified Parties")alleging the patents,trademarks,copyrights,
trade secrets or other intellectual property (“Intellectual Property”)provided by ATS,including
its suppliers,pursuant to this Agreement,infringes or violates the Intellectual Property of other
persons.If such a claim is made and Customer,in the exercise of its sole discretion,
determined that infringement may exist,Customer may request ATS procure for Customer
either the right to keep using the allegedly infringing items,modify them to avoid the alleged
infringement,replace them with non»infringing items,or reduce the monthly fees paid pursuant
to Section 1.0 of Schedule “Service Fee Schedule”of Exhibit A of the Agreement by two-
hundred fifty dollars ($250)per Camera System per month if ATS is unable to provide a non»
infringing ALPR Solution.ATS will indemnify and defend the Customer Indemnified Parties
against any third—party actions or claims against the Customer Indemnified Parties alleging the
ATS Intellectual Property,infringes or violates the Intellectual Property of such other persons.
To the extent that the alleged infringement relates to the Intellectual Property of Cintel provided
pursuant to the EULA,Customer agrees to seek indemnification from Cintel prior to seeking
any remedy from ATS.
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;(of)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 Agreement by Customer related to Customers
receipt and use of the Customer Data or the EULA.NOTHING CONTAINED HEREIN SHALL
BE DEEMED A WAIVER OF SOVEREIGN IMMUNITY BY THE CITY.
Limited Liability.EXCEPT FOR THE LOSSES,NEITHER PARTY SHALL BE LIABLETO THE
OTHER,BY REASON OF ANY REPRESENTATION OR EXPRESS OR IMPLIED
WARRANTY,CONDITIONOR OTHER TERM OR ANY DUTYAT COMMON OR CIVILLAW,
FOR ANY INDIRECT,INCIDENTAL,SPECIAL,LOST PROFITS OR CONSEQUENTIAL
DAMAGES,HOWEVER CAUSED AND ON ANY THEORY OF LIABILITYARISING OUT OF
OR RELATING TO THIS AGREEMENT.ATS’ENTIRE LIABILITYTO 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 AGREEMENT,NOT TO EXCEED THE SUM OF TEN
THOUSAND DOLLARS.
f.Confidentiality.
Proprietary Information.Customer acknowledges that,during the term of this Agreement,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,
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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.
ii 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 clearand convincing evidence.
iii.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 and ATS shall be free
to use or disclose information provided by Customer about or related to the ALPR Solutions in
the course of their discussions,including any feedback provided to ATS pursuant to Subsection
c.i.of this Fifth Amendment.Customer represents and warrants to ATS that Customers
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.
iv.Nothing in this Subsection f.shall be construed as to replace or conflict with Section 3.
“Confidential information and Content"of the EULA.
g.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.
8.Notices.Section 22.“Notices”of the Agreement is hereby deleted in its entirety and replaced as follows:
“22.Notices.
In order for a notice to a Party to be effective under this Agreement,notice must be sent via U.S.
certified mail,overnight delivery,or hand delivery to the addresses listed below,and shall be effective
upon mailing ifsent by certified mail or overnight delivery and effective upon receipt if hand delivered.
The addresses for notice shall remain as set forth herein unless and until changed by providing notice
of such change in accordance with the provisions of this Section.
Ifto Contractor,to:American Traffic Solutions,Inc.
‘I150 N.Alma School Road
Mesa,AZ 85201
Attn:Legal Department
Ifto City,to:City of Miami Gardens,Florida
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Page 13 of 25Resolution No. 2022-049-3762
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10.
11.
12.
13.
18605 NW 27th,Avenue
Miami Gardens,FL 33056
Attn:City Manager
Notwithstanding any provision in the Agreement to the contrary,ATS retains the right to use all meta-data,
business intelligence,or other analytics obtained,gathered,or mined by ATS through the use of its systems.
Except as expressly amended or modified by the terms of this Fifth Amendment,all terms of the Agreement
as amended by the First,Second,Third and Fourth Amendments,and the Addendum to the First
Amendment,shall remain in full force and effect.In the event of a conflict between the terms of this Fifth
Amendment and the Agreement,as amended by the First,Second,Third and Fourth Amendments,and the
Addendum to the First Amendment,the terms of this Fifth Amendment shall prevail and control.
The provisions of the Agreement,as amended by the First,Second,Third,Fourth and Fifth Amendments,
and the Addendum to the First Amendment,including the recitals,comprise all of the terms,conditions,
agreements,and representations of the parties with respect to the subject matter hereof.
This Fifth Amendment may be executed in one or more counterparts,each of which shall constitute an
original,but all of which taken together shall constitute one and the same instrument.
ing this Fifth Amendment on its behalf has
d conditions of this Fifth Amendment.
Each party represents and warrants that the represen
all right and authority to bind and commit that party t
INWITNESS WHEREOF,the parties hereto have executed thi F h Amendment.
cm OF MIAMI
@ at-;::}‘t‘
mm
By‘a la;/1X
City Cl k
AMERICAN TRAFFIC SOLUTIONS,INC.
Elizabeth Caracciolo
Senior Vice PresidentIGM SLGS
Page 14 of 25Resolution No. 2022-049-3762
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EXHIBIT 1
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 Miami Gardens,Florida (“Customer"),a municipal corporation of the State of Florida
located at 18605 NW 27th,Avenue,Miami Gardens,FL 33056.
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 an Agreement for Automated License Plate Recognition Solution
Services with American Traffic Solutions,Inc.(“ATS”)on or around (the “Agreement"),pursuant to which
Cintel is an authorized subcontractor of ATS to provide certain services described therein;and
WHEREAS,in connection with the 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 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 Agreement.
“Software"shall mean the Cintel software to be provided by Company (as a subcontractor to ATS)to Customer
under the Agreement.
"Source Code”shall mean the readable forms together with make and build files
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“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 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 Agreement.In the event Customer desires,and the Company agrees,to continue
providing Services following the Term (as provided for in Section 4.b of the 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—exc|usive,non—transferable,worldwide right to use the Software (including the right to download,
install and access the Software),solely for Customers internal business purposes,subject to the terms and
conditions of this EULA and the 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 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,including 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;
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(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 Sen/ice.
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 |nternet—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 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 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 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
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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 rightfullyobtained
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 willexercise 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 Sen/ice 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
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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 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 8.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
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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.
57 Retention,Deletion &Request for Data.Customer is responsible to make internal backups of all data
used by or hosted on any software/sen/ice—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 sen/ers that are required to be returned to the Company at the termination of the
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)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 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 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
othen/vise,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 Indemnification.
(a)COMPANY AGREES TO AND SHALL RELEASE AND DEFEND,INDEMNIFY,AND HOLD HARMLESS
THE CUSTOMER,ITS AGENTS,EMPLOYEES,OFFICERS,AND LEGAL REPRESENTATIVES
(COLLECTIVELY THE “CITY")FROM ALLCLAIMS OR CAUSES OF ACTION BROUGHT AGAINST THE
CITY BY ANY THIRD PARTY,INCLUDING CONTRACTOR,ALLEGING THAT THE CITY'S USE OF ANY
EQUIPMENT,SOFTWARE,PROCESS,OR DOCUMENTS CONTRACTOR FURNISHES DURING THE
TERM OF THIS AGREEMENT INFRINGES ON A PATENT,COPYRIGHT,OR TRADEMARK,OR
MISAPPROPRIATES A TRADE SECRET OF SUCH THIRD PARTY.CONTRACTOR SHALL PAY ALL
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COSTS (INCLUDING,WITHOUT LIMITATION,ATTORNEYS’FEES,COURT COSTS,AND ALL OTHER
DEFENSE COSTS,AND INTEREST)AND DAMAGES AWARDED.CONTRACTOR SHALL NOT SETTLE
ANY CLAIM ON TERMS WHICH PREVENT THE CITY FROM USING THE EQUIPMENT,SOFTWARE,
PROCESS,AND DOCUMENTS WITHOUT THE CITY'S PRIOR WRITTEN CONSENT.WITHIN 60 DAYS
AFTER BEING NOTIFIED OF THE CLAIM OR IMMEDIATELY AFTER ANY INJUNCTION OR OTHER
RULING IS ISSUED PROHIBITING,PREVENTING,OR OTHERWISE LIMITINGTHE CITY'S USE OF THE
EQUIPMENT,SOFTWARE,PROCESS,OR DOCUMENTS,CONTRACTOR SHALL,AT ITS OWN
EXPENSE,EITHER (1)OBTAIN FOR THE CITY THE RIGHT TO CONTINUE USING THE EQUIPMENT,
SOFT\NARE,PROCESS,AND DOCUMENTS OR,(2)IF BOTH PARTIES AGREE,REPLACE OR MODIFY
THEM WITH COMPATIBLE AND FUNCTIONALLY EQUIVALENT PRODUCTS.IF NONE OF THESE
ALTERNATIVES IS REASONABLY AVAILABLE,THE CITY MAY RETURN THE EQUIPMENT,
SOFTWNARE,OR DOCUMENTS,OR DISCONTINUE THE PROCESS,AND CONTRACTOR SHALL
REFUND THE ENTIRE PURCHASE PRICE.
THE FOREGOING SHALL NOT APPLY TO THE EXTENT THAT ANY ALLEGED INFRINGEMENT DERIVES
FROM:(I)ANY USE OF EQUIPMENT OR SOFTWARE SUPPLIED BY CONTRACTOR DURING THE
TERM OF THIS AGREEMENT THAT IS NOT APPROVED,RECOMMENDED OR AUTHORIZED BY
CONTRACTOR;(II)ANY COMBINATION OF EQUIPMENT OR SOFTWARE THAT IS NOT SUPPLIED,
RECOMMENDED OR AUTHORIZED BY CONTRACTOR;(III)ANY MODIFICATION OR CUSTOMIZATION
OF EQUIPMENT OR SOFTWARE SUPPLIED BY CONTRACTOR DURING THE TERM OF THIS
AGREEMENT THAT IT NOT APPROVED,RECOMMENDED OR AUTHORIZED BY CONTRACTOR;OR,
(IV)THE CITY'S FAILURE TO PROMPTLY INSTALL OR FOLLOW ANY INSTRUCTIONS,UPDATES OR
UPGRADES TO ANY EQUIPMENT OR SOFTWARE SUPPLIED BY CONTRACTOR DURING THE TERM
OF THIS AGREEMENT.
(b)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 LIABILITYTO 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 SCHEDULE 1 "SERVICE FEE SCHEDULE"OF THE AGREEMENT.
7.4 Company will not be responsible under this EULAfor:(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—PARTYSERVICE 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
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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 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.
8.8 Force Maeure.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.
9.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.
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EXECUTEDas 0!the Effective Date‘
CINTEL,LLC
Name.Alan J.Farash
Tine:Chief Executive Officer
MIAMIGARDEN
Name
me
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EXHIBIT 2
FORM OF NOTICE TO PROCEED
Reference is made to the Agreement for Automated License Plate Recognition Solution Services by and
between American Traffic Solutions,Inc.(“ATS")and the City of Miami Gardens,Florida ("Customer"),dated as
of (the "Agreement")‘Capitalized terms used in this Notice to Proceed shall—havethemeaning—
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:
_;l\)O)A
)
)
)
)
)
0'1
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.
as executed this Notice to Proceed as of the date written below.
Name:Date
Title:/kmmf(7/(77/%WA6_EQ_
ACKNOWLEDGED AND AGREED TO BY:
AMERICAN TRAFFIC SOLUTIONS,INC.
By:
W Elizabeth Caracciolo Date
Senior Vice President/General
Manager,Government Solutions
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EXHIBIT3
ALPR SOLUTION SCOPE OF SERVICES
Requirement Response
Email Support Response 24 hours (within technical telephone help desk
pperatingperiods)
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 diagnostic tests operating periods)
and determination of remedy)
On—sitesupport (Inspection,Service and Allrepairs must be completed within three (3)
Repair ofALPR Equipment)Business Days after fault reported to Cintel.
Installation Completion 90 days from time of permit issuance
120 days from P0 ifno 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—ownedinfrastructure.
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