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HomeMy WebLinkAboutCC RESO 16,376RESOLUTION NO. 16,376 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY AUTHORIZING THE MAYOR TO EXECUTE A CONTRACT WITH U.S. PUBLIC TECHNOLOGIES, INC. FOR PHOTO RADAR SERVICES BE IT RESOLVED by the City Council of the City of National City that the Mayor is hereby authorized to execute a contract with U.S. Public Technologies, Inc. for Photo Radar Services for the purpose of traffic violation enforcement. Said Contract is on file in the Office of the City Clerk. PASSED and ADOPTED this llth day of December, 1990. aters ATTEST: (i-1t ,,� PL-C Lo i Anne Peoples,C!ity Clerk APPROVED AS TO FORM: George H. Eiser, III City Attorney George H. , Mayor CITY OF NATIONAL CITY PHOTORADAR SERVICE CONTRACT This PhotoRadar Service Contract (the "Agreement") is made and entered into, as of the last date shown next to the parties' signatures below, by and between U.S. Public Technologies, Inc. ("USPT") and the City of National City, a political subdivision of the State of California (the "City"). 1. RECITALS 1.1. USPT, through its Traffic Services Group, has the ability and expertise to furnish to the City equipment and services for the purposes of detecting certain traffic violations and issuing citations to the alleged violators. 1.2. The City desires to use the system, equipment and services of USPT all as shown below. 2. DEFINITIONS Certain words and phrases used in this Agreement shall have the specific meanings shown in this Article 2. Unless otherwise specifically defined herein, all other words shall have their usual and customary meanings. 2.1. "Complaint" means the initial pleading in a criminal or traffic action relating to a Violation documented or evidenced by the USPT SYSTEM. 2.2. "Person" means an individual, partnership, joint venture, corporation, trust, unincorporated association, any governmental authority, political subdivision, thereof or any other form or entity. 4-t6f 37Co 2.3. "Final Disposition" means, as to the Complaints: (a) payment or partial payment of the assessed Fine (hereinafter defined) with respect to a Violation (hereinafter defined); (b) plea of guilty or no contest with respect to a Violation; (c) conviction with respect to a Violation; (d) diversion to traffic school. Final Disposition does not mean a dismissal for any reason nor a finding of innocence with respect to a Violation. 2.4. "Fine" means a monetary sum assessed for a Violation which is actually received by the City, including bail forfeitures actually received; but "Fine" does not include suspended or unpaid fines. 2.5. "Unit" means a photo/traffic speed monitoring device consisting of a camera and a traffic radar (or other device) capable of accurately measuring the speed of motor vehicles, and which records such speed on a photograph of such vehicle. "Unit" shall also include the vehicle in which the photo radar equipment will be used. 2.6. "Violation" means any traffic violation contrary to the California Vehicle Code or the City of National City Municipal Code, including without limitation, operating a motor vehicle in excess of safe or posted speed limit, and operating a motor vehicle without displaying a valid license plate or registration. 2.7. "USPT SYSTEM" means the USPT service and equipment furnished to the City of National City pursuant to this Agreement. 2 2.8. "Processing Fee" means an amount in the sum of Twenty -One Dollars ($21.00) for each Complaint which Complaint results in a Final Disposition, payable as described in Section 5.1 herein. 3. SCOPE OF SERVICE USPT shall provide the following equipment and services: 3.1. ONE (1) Unit; 3.2. A computerized traffic complaint program for the City, including printed forms as requested by the City, mailing of forms, mailing and postage costs, and such other miscellaneous costs and expenses as may be reasonably necessary to issue a Complaint and deliver it by U.S. mail. 3.3. All photographic film required by the USPT SYSTEM. 3.4. Reasonable and necessary training for persons designated by the City and for persons who are designated to operate the Unit. 3.5. Expert witnesses reasonably necessary to testify as requested by the City regarding the accuracy and technical operation of the USPT SYSTEM for contested Complaints. 3.6. Reports of the results of operation of the USPT SYSTEM as may be required herein, or as are otherwise reasonably necessary to the City. 3.7. Maintenance and repair of the Unit, including the obligation to replace the Unit within sixty days, or earlier if reasonably possible, if the Unit cannot be repaired; provided, however, the City shall be responsible for all routine maintenance of the motor vehicle in which the photo radar system is 3 mounted, including but not limited to all gasoline, oil, lubricants, points, spark plugs, filters and the like. 4. TERM The term of this Agreement shall be three (3) years, commencing on the date the Unit is placed in operation. The Term shall be available for renewal at the option of the parties. 5. FEES AND PAYMENT 5.1. During the initial three (3) year Term, the City shall pay to USPT a processing fee (the "Processing Fee") of Twenty -One Dollars ($21.00) for each Complaint which Complaint results in a Final Disposition. In the event the amount of a Fine collected by the City, as a result of a Complaint, is less than Twenty -One Dollars ($21.00), then in any such event the Processing Fee shall be eighty percent (80%) of the Fine actually received by the City. In no event shall the processing fee in any renewal Term be less than the Processing Fee fee charged for the immediately preceding Term, nor shall the processing fee exceed the Fine collected by the City. 5.2. The processing fee shall be paid by the City to USPT within thirty (30) business days following receipt by the City of any Fine. 6. MAIL 6.1. USPT agrees that each Complaint will be mailed to the alleged Violator not later than 72 hours after the date of receipt by USPT of the exposed film. 4 6.2. The City agrees it shall diligently prosecute each Complaint and shall defend any challenge in any court of competent jurisdiction to the use of the Unit and/or the use of the U.S. mails to deliver the Complaint. USPT shall pay to the City up to Ten Thousand Dollars ($10,000.00) over the term of this contract, to reimburse the City for legal services performed in the defense of the USPT SYSTEM in court, and for appeals of convictions obtained via the USPT SYSTEM. In the event a court of last resort (the United States Supreme Court or the California Supreme Court, as the case may be) or the California State Legislature, shall determine that the Complaint must be served other than by U.S. mail, then the City shall perform such service of the Complaint provided, however, USPT shall deduct from the Processing Fee an amount equal to the mailing cost, including postage, incurred by it per Violation during the month immediately proceeding the discontinuance of mailing as a method of service of the Violation. 6.3. USPT shall submit to the City a monthly report on USPT SYSTEM results within twenty (20) business days of the end of each calendar month. The report shall include the following information. 6.3.1. Total number of Complaints issued using the USPT SYSTEM; 6.3.2. Percentage of Complaints paid without prosecution; 6.3.3. Percentage of Complaints resulting in dispositions other than payment of Fine; 5 6.3.4. Total number and percentage of alleged violators prosecuted and results of each such prosecution; 6.3.5. Total revenue collected from Fines during each calendar month. 7. INDEMNITY 7.1. USPT shall indemnify, defend and save harmless the City against any liability, loss, damages, actions, or claims for injury, including defense costs, arising from USPT's failure to maintain the photo radar equipment pursuant to manufacturer recommendations for operation thereof and/or as a result of the negligent or willful misconduct of USPT, its employees and agents. 7.2. The City shall indemnify, defend and save harmless USPT for any and all other claims for death or injury or damages of any nature to person or property arising out of the City's negligent use or operation of the Unit excluding death or injury or damages arising from the negligence or willful misconduct of USPT, its employees and agents. 8. INSURANCE 8.1. USPT shall at all times, commencing upon execution of this Agreement maintain, at its own expense, liability insurance coverage pertaining to use of the Unit of not less than One Million Dollars ($1,000,000.00) per occurrence, and One Million Dollars ($1,000,000.00) in the aggregate. The limits of coverages required herein shall not in any way limit the liability of 6 USPT. USPT agrees to indemnify and hold harmless, and at its own risk, cost and expense, defend the City, its officers, agents, and employees from and against any and all liability expense, including defense costs, legal fees, and claims for damages arising from USPT's performance under this Agreement. The City, its officers, agents, and employees shall be additional insureds under this policy of insurance, said policy to constitute their primary insurance, so that any policies held by City shall not contribute to any loss under said insurance. 8.2. Said insurance policy shall provide for thirty (30) days prior written notice to City of cancellation or material change. 8.3. If any required insurance coverage is provided on a "claims made" rather than "occurrence" form, USPT shall maintain such insurance coverage for three years after the expiration of the term (and any extensions) of this Agreement. 8.4. The City shall be adequately self -insured for any and all claims for death or injury or damages of any nature to person or property arising out of the City's use or operation of the Unit excluding death or injury or damages arising from the negligence or willful misconduct of USPT, its employees and agents. 9. TERMINATION 9.1. USPT may terminate this Agreement upon thirty (30) days written notice to the City if the City fails to operate any Unit pursuant to the 7 Terms of the Agreement, or in the event the USPT SYSTEM generate Complaints at an average which is Tess than fifty percent (50%) of the Unit's maximum capacity of four hundred (400) per thirty (30) hour week during any calendar month. 9.2. The City may at its option terminate this Agreement upon fifteen (1 5) days written notice, if any court of last resort shall rule (other than dicta) that photo radar results are inadmissible or otherwise contrary to law. 10. MISCELLANEOUS 10.1. The City agrees to operate each Unit for a minimum of thirty (30) hours per week. Unit speed settings, and locations and times of operation, shall be at the sole discretion of the City. The City shall provide its own City personnel to operate the Unit(s) and drive the vehicle in which the photo radar equipment is located. 10.2. USPT shall pay to the City the amount of Twenty Thousand Dollars ($20,000.00) per year, over the term of this contract, to offset the cost of personnel assigned to man the Unit during its hours of operation. This amount to be paid in increments of Ten Thousand Dollars ($10,000.00) every six (6) months. The first payment will be due and payable six (6) months after the signing of the contract by the parties. 10.3. This Agreement contains the entire agreement of the parties hereto with respect to the matters set forth herein, and supersedes all prior arrangements and understandings between the parties, and no other agreement, 8 statements or promises made by either party hereto which is notcontained herein shall be binding or valid. 10.4. This Agreement may be modified or amended only by written document signed by each of the parties hereto. 10.5. This Agreement may be executed simultaneously, or in counterpart, each of which shall be deemed an original, but all of which together shall constitute one and the same Agreement. 10.6. This Agreement shall be binding upon and inure to the benefit of the successors in interest and to those expressly permitted assigns of the parties hereto. 10.7. Should any litigation be commenced between the parties concerning this Agreement, the party prevailing in such litigation shall be entitled, in addition to such other remedies as may be granted, to a reasonable sum as and for attorney's fees. 10.8. All notices, or other communications required or permitted to be given hereunder, shall be in writing, addressed as shown below, or to such other address as any party hereto may from time to time, designate in writing. Notices shall be deemed given at the earlier of when actually received or, if mailed, twenty-four (24) hours after such notice is fully deposited, properly addressed, postage prepaid, return receipt requested, via certified or registered U.S. mail. 9 To USPT: With a Copy to: To City: With a Copy to: Alan Viterbi, Vice President U.S. Public Technologies 9883 Pacific Heights Blvd. Suite F San Diego, California 92121 Daniel A. Bock, Esquire Cruse, Firetag & Bock 5611 North 16th Street Phoenix, Arizona 85016 City of National City Tom G. McCabe, City Manager 1243 National City Boulevard Nation& City, California 92050 George H. Eiser, III, Esquire City of National City Office of the City Attorney 1243 National City Boulevard National City, California 92050 10.9. During the term of this Agreement or any extension thereof, USPT shall be the sole and exclusive provider to City of services as defined in Article 3 hereof. This Agreement shall not be assigned without the prior written permission of City's City Council. THE CITY OF NATIONAL CITY U.S. PUBLIC.TECHNOLOGIES, iNC.•-__ By: f / . is w By: /y. Its: 0.Its: - e3156; 9t Date: 10 Date: ,)/ 6 c ,443&";X l ci`7 0