HomeMy WebLinkAboutRESOLUTION - 50-07 - 9/25/2007 - REDSPEED ILLINOIS LLCRESOLUTION NO. 50-07
A RESOLUTION AUTHORIZING THE MAYOR AND VILLAGE CLERK
TO EXECUTE AN AGREEMENT BETWEEN REDSPEED ILLINOIS, LLC
AND THE VILLAGE OF ELK GROVE VILLAGE FOR A TRAFFIC LAW
ENFORCEMENT SYSTEM
NOW, THEREFORE, BE IT RESOLVED by the Mayor and Board of Trustees of the
Village of Elk Grove Village, Counties of Cook and DuPage, State of Illinois as follows:
Section 1: That the Mayor be and is hereby authorized to sign the attached document
marked:
REDSPEED ILLINOIS LLC
a copy of which is attached hereto and made a part hereof as if fully set forth and the Village
Clerk is authorized to attest said document upon the signature of the Mayor.
Section 2: That this Resolution shall be in full force and effect from and after its
passage and approval according to law.
VOTE: AYES: 6 NAYS: 0 ABSENT: 0
PASSED this 25th day of September 2007.
APPROVED this 25th day of September 2007.
APPROVED:
Mayor Craig B. Johnson
Village of Elk Grove Village
ATTEST:
Ann I. Walsh, Village Clerk
ResAoreeRF.DSPFF,D.
AGREEMENT BETWEEN REDSPEED ILLINOIS, LLC
AND THE VILLAGE OF ELK GROVE VILLAGE FOR
TRAFFIC LAW ENFORCEMENT SYSTEM
TABLE OF CONTENTS
PARAGRAPH
NO. PAGE
1. Recitals........................................................................................................................... 2
2. Services Provided.............................................................................................--.......... 2
3. Term............................................................................................................................... 3
4. Compensation................................................................................................................. 3
5. Termination................................................................................................................... 3
6. License............................................................................................................................ 4
7. Limited Warranty.......................................................................................................... 5
8. Representations............................................................................................................. 5
RedSpeed Representations and Warranties ............................................ .......... 5
9. Municipality Representations..... ................................. ......................................... ...... 5
10. Confidentiality................................................................................................................ 6
11. Indemnification and Liability ...................................................................................... 6
12. Violation Processing...................................................................................................... 7
13. Dispute Resolution......................................................................................................... 8
14. Notices............................................................................................................................. 8
15. Relationship between RedSpeed and the Municipality ............................................. 9
16. Assignment .... ....:.................................................................................................. ..........9
17. Injunctive Relief; Specific Performance................................................................... 10
18. Audit............................................................................................................................. 10
19. Force Majeure............................................................................................................. 10
20. Miscellaneous...............................................................................................................10
a. Definitions..... ................... z ...................................................................................... 10
b. Entire Agreement.................................................................................................... 14
c. Construction.......................................................................................................... 14
d. Severability............................................................. ............. 14
e. Waiver..............................................................................:..................................... 14
f. Headings.................................................................................................................14
g. Execution and Counterparts................................................................................ 14
h. Binding Effect.......................................................................................................... 15
i. Compliance with Laws.......................................................................................... 15
j. Remedies Cumulative........................................................................................... 15
k. Applicable Law...................................................................................................... 15
1. Jurisdiction and Venue....................................:................................................... 15
ExhibitA................................................................................................................................ 16
.Designated Intersections ................................ .......................... :.................................. 16
Construction and Installation ............
Maintenance................................................................................................................. 16
ExhibitB................................................................................................................................ 17
Compensation.............................................................................................................. 17
CostNeutrality............................................................................................................. 19
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AGREEMENT BETWEEN REDSPEED ILLINOIS, LLC
AND THE VILLAGE OF ELK GROVE VILLAGE FOR
TRAFFIC LAW ENFORCEMENT SYSTEM
This Automated Traffic Law Enforcement System Agreement (hereinafter referred to as
"Agreement") is made as of this 25th day of September, 2007 by and between RedSpeed Illinois,
LLC located at 400 Eisenhower Lane North, Lombard, Illinois 60148 ("RedSpeed"), and the
(Village of Elk Grove Village), an Illinois municipal corporation, (hereinafter referred to as the
"Municipality").
RECITALS
WHEREAS, RedSpeed is in the business of providing an automated traffic law
enforcement system and the collection of any citations issued pursuant thereto;
WHEREAS, the Municipality desires to engage the services of RedSpeed to provide
equipment cameras hardware, software and technicians to identify and enforce violations of the
traffic control signals {Red light violations only) within the Municipality.
WHEREAS, the Municipality and RedSpeed desire to enter into this Agreement for the
implementation of an automated traffic law enforcement system and collection of citations for
violations thereto, for certain intersections within the Municipality pursuant to this Agreement.
WHEREAS, on September 25, 2007 the Corporate Authorities of the Municipality
adopted a Resolution (No. 50-07), authorizing the execution of this Agreement.
NOW THEREFORE, in consideration of the mutual covenants contained herein, the
above recitals which are by this reference incorporated herein, and for other valuable
consideration received, the receipt and sufficiency of which is hereby acknowledged, the
Municipality and RedSpeed agrees as follows:
1. Recitals. All recitals set forth above shall be deemed a part of this Agreement.
2. Services Provided. RedSpeed shall provide an automated traffic law enforcement
system and program to the Municipality by:
a. Installing and maintaining the system at designated Intersections as set forth and
described in Exhibit "A" attached hereto and incorporated herein.
b. The Municipality may from time to time request changes to the services required
to be performed or the addition of products or services to those required pursuant to the
terms of this Agreement by providing written notice thereof to RedSpeed. Upon
RedSpeed's receipt of the requested change, RedSpeed shall deliver a written statement
describing the effect, if any, the proposed changes would have on the pricing of this
Agreement. Following the Municipality's receipt of the new pricing,. the Parties shall
negotiate to implement the proposed changes, the time, manner and amount of payment
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or price increases or decreases, as the case may be, and any other matters relating to the
proposed changes. If the Municipality and RedSpeed fail to reach an agreement with
respect to any of the proposed changes, it shall not be deemed to be a breach of this
Agreement, but would not preclude the municipality from proceeding with termination
pursuant to the provisions of paragraph 5(a).
3. Term. The term of this Agreement shall commence as of the day of , 2007
and shall continue for a period of six (6) years after the Installation Date of the equipment is
installed ("Installation"). The Municipality shall have the right, to extend the term of this
Agreement for up to two (2) additional consecutive and automatic three (3) year periods
following the expiration of the initial six (6) year term. The Municipality may exercise the right
to extend the term of this Agreement for the three (3) year extensions by providing written notice
to RedSpeed not less than sixty (60) days prior to the last day of the existing term.
4. Compensation. Compensation as set forth in Exhibit "B".
5. Termination.
a. Either Party -shall have the right to terminate this Agreement, without cause, with
Sixty (60) days written Notice to the other Party.
b. Either Party shall have the right to terminate this Agreement immediately by
written notice to the other if (i) the Illinois Statutes are amended to prohibit or
substantially change the operation of Automated Traffic Law Enforcement
Systems, as defined in the Illinois Vehicle Code; or (ii) any court having
jurisdiction over the Municipality rules, or state or federal statute declares, the
results from RedSpeed's Automated Traffic Law Enforcement Systems are
inadmissible in evidence; or (iii) the other Party commits any material breach of
any of the provisions of this Agreement which breach is not remedied within sixty
(60) calendar days after written notice from the Party setting forth in reasonable
detail their reasons for the alleged breach.
C. The termination of this Agreement shall not relieve either Party of any liability
that accrued prior to such termination and in conjunction with the Cost Neutrality
clause of Exhibit "B".
The Municipality shall immediately cease using the Automated Traffic Law
Enforcement System provided pursuant to this Agreement and also immediately
stop using any other Intellectual Property of RedSpeed, deliver to RedSpeed any
and all Proprietary Property of RedSpeed provided to the Municipality pursuant to
this Agreement and promptly approve payment of any and all fees, charges and
amounts due to RedSpeed for services performed prior to the termination.
RedSpeed shall remove any and all equipment; hardware and software RedSpeed
installed in connection with RedSpeed's performance of its obligations under this
Agreement, and shall restore the Designated Intersections to substantially the
same condition they were in prior to this Agreement.
d. Notwithstanding the termination, the following shall survive the termination of
this Agreement:
i. Reservation of Rights, Representations and Warranties of RedSpeed;
ii. Representations and Warranties of Municipality;
iii. Limited Warranties;
iv. Confidentiality;
V. Indemnification;
vi. Dispute Resolution;
vii. Assignment;
viii. Applicable Law;
ix. Injunctive Relief, and
X. Jurisdiction and Venue;
6. License.
a. Subject to the terms and conditions of this Agreement, RedSpeed hereby grants to
the Municipality, upon the terms and conditions herein specified, a non-exclusive,
non -transferable license during the Term of this Agreement to: (i) solely within
the Municipality, access and use of the RedSpeed Automated Traffic Law
Enforcement System for the sole purpose of reviewing Potential Violations and
authorizing the issuance of Citations pursuant to the terms of the Violations
Processing Agreement as hereinafter set forth in Paragraph 12, and (ii) use the
name RedSpeed, with the approval by RedSpeed, on or in marketing, public
awareness or education, or other publications or materials relating to the
Automated Traffic Law Enforcement System.
b. The Municipality hereby acknowledges and agrees that RedSpeed is the sole and
exclusive owner of the Automated Traffic Law Enforcement System provided by
RedSpeed, the name RedSpeed, the mark and any and all Intellectual Property
arising from or relating to the System.
C. The Municipality hereby covenants and agrees that it shall not make any
. modifications to the Automated Traffic Law Enforcement System provided by
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RedSpeed, alter, remove or tamper with any RedSpeed trademarks, or any other
Intellectual Material; use any trademarks or other Intellectual Material in
connection without first obtaining the prior written consent of RedSpeed, or
perform any type of reverse engineering to the RedSpeed Automated Traffic Law
Enforcement System.
d. RedSpeed shall have the right to take whatever action it deems necessary or
desirable to remedy or prevent the infringement of any Intellectual Property of
RedSpeed, including without limitation the filing applications to register as
trademarks in any jurisdiction any of the RedSpeed Marks, the filing of patent
application for any of the Intellectual Property of RedSpeed, and making any
other applications or filings with appropriate Governmental Authorities. The
Municipality shall not take any action to utilize its own name or make any
registrations or filings with respect to any of the RedSpeed Marks or the
Intellectual Property of RedSpeed without the prior written consent of RedSpeed.
7. Limited Warranty. Except as otherwise provided in this Agreement, RedSpeed makes
no warranties of any kind, express or implied, including, but not limited to, the warranties of
merchantability and fitness for a particular purpose, with respect to the RedSpeed Automated
Traffic Law Enforcement System or any Related Equipment or with respect to the results of the
Municipality's use of any of the foregoing. Notwithstanding anything to the contrary set forth
herein, RedSpeed does not warrant that any of the designated intersection equipment or the
Automated Traffic Law Enforcement System will operate in the way the Municipality selects for
use or that the operation or use thereof will be uninterrupted. The Municipality hereby
acknowledges that the RedSpeed Photo Automated Traffic Law Enforcement may malfunction
from time to time, and subject to the terms of this Agreement, RedSpeed shall diligently attempt
to correct any such malfunction in a timely manner.
8. Representations.
RedSpeed Representations and Warranties.
a. RedSpeed hereby warrants and represents that it has all right, power and authority
to execute and deliver this Agreement and perform its obligations hereunder.
b. RedSpeed hereby warrants and represents that any and all services provided by
RedSpeed pursuant to this Agreement shall be performed in a professional and
workmanlike manner and, the installation and operation shall be in compliance with all
specifications provided to RedSpeed.
9. Municipality Representations.
a. The Municipality hereby warrants and represents that it has all right, power and
authority to execute and deliver this Agreement and perform its obligations
hereunder.
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b. The Municipality hereby warrants and represents that any and all services
provided by the Municipality pursuant to this Agreement shall be performed in a
professional and workmanlike manner.
10. Confidentiality. During the term of this Agreement and for a period of two (2) years
thereafter, neither Party shall disclose to any third person, or use for itself in any way for
pecuniary gain, any Confidential Information obtained from the other Party during the course of
the negotiations for this Agreement or during the Term of this Agreement, unless otherwise
provided by law or the other parties express written consent to such disclosure.
Each Party shall not disclose to any third party any Confidential Information without the other
Party's express written consent. Excluded from disclosure provisions are employees who are
reasonably required to have the Confidential Information, agents, representatives, attorneys and
other professional advisors that have a need to know such Confidential Information.
Upon termination of this Agreement, each Party shall return to the other all tangible Confidential
Information of such party.
11. Indemnification and Liability.
a. Municipality hereby agrees to defend and indemnify and hold harmless RedSpeed
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 (including but
not limited to the supplies of equipment and installers), or any of them against,
and to protect, save and hold them harmless from, and to pay on behalf of or
reimburse as and when incurred, any and all Losses which may be imposed on or
incurred by RedSpeed, or equipment provider and/or installer arising out of or in
any way related to:
i. any material representation, inaccuracy or breach of any covenant,
warranty or representation of the Municipality contained in this
Agreement;
ii. the willful misconduct of the Municipality, its employees contractors or
agents which result in 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), unless such willful misconduct is
caused or induced by willful misconduct on the part of RedSpeed or any
agent thereof.
iii. any claim, action or demand unrelated to RedSpeed's performance
obligations under this Agreement; or,
iv. any claim, action or demand challenging the Municipality's use of the
Automated Traffic Law Enforcement System or any portion thereof,
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unless such claim is attributed to RedSpeed or the Automated Traffic Law
Enforcement System.
b. RedSpeed, hereby agrees to defend and indemnify and hold harmless the
Municipality, its managers, officers, directors, employees; agents, representatives
and . successors, permitted assignees and each of their affiliates, and all persons
acting by, through, under or in concert with them, or any of them against, and to
protect, save and hold harmless the Municipality Parties from, and to pay on
behalf of or reimburse the Municipality Parties as and when incurred, any and all
liabilities, obligations, losses, damages, penalties, demands, claims, actions, suits,
judgments, settlements, costs, expenses and disbursements (including reasonable
attorneys' fees and court costs) of whatever kind and nature, which may be
imposed on or incurred by any Municipality Party arising out of or related to:
any material misrepresentation, inaccuracy or breach of any covenant,
warranty or representation of RedSpeed contained in this Agreement;
ii. the willful misconduct of RedSpeed, its employees 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), unless such willful misconduct is
caused or induced by willful misconduct on the part of the Municipality or
any of its agents; or,
iii. any claim, action or demand unrelated to Municipality's performance
obligations under this Agreement; or,
C. Notwithstanding anything to the contrary in this Agreement, 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 lost profits;
indirect, incidental, or consequential damages, however caused.
d. In the event any claim, action or demand in respect of which any Party hereto
seeks indemnification from the other, the Party seeking indemnification shall give
the Party from whom indemnification is being sought written notice of such
Claim promptly after the Indemnified Party first becomes aware of the claim. The
Party from whom indemnification is being sought shall have the right to choose
counsel to defend such Claim, and to control, and settle such Claim. The Party
seeking the indemnification being sought shall have the right to participate in the
defense at its sole expense.
12. Violation Processing. Under this Agreement, Violations shall be processed as follows:
a. All Violations Data shall be stored on the RedSpeed Automated Traffic Law
Enforcement System.
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b. RedSpeed shall process the Violation Data gathered from the Designated
Intersection(s) into a format capable of review by the Authorized Officer
(designated by the municipality).
C. RedSpeed shall provide the Authorized Officer with access to the RedSpeed
System for the purposes of reviewing the pre-processed Violations Data within
seven (7) days of the gathering of the Violations Data from the applicable
Designated Intersection(s).
Thereafter, the Municipality shall cause the Authorized Officer to review the
Violations Data and to determine whether a citation shall be issued with respect to each Potential
Violation captured within such Violation Data, and transmit to RedSpeed each such
determination using the software or other applications or procedures provided by RedSpeed on
the RedSpeed Automated Traffic Law Enforcement System.
RedSpeed hereby acknowledges and agrees that the decision to issue a citation
shall be the sole, unilateral and exclusive decision of the Authorized Officer and shall be made in
such Authorized Officer's sole discretion (a "Citation Decision"), and in no event shall
RedSpeed have the ability or authorization to make a citation decision.
13. Dispute Resolution. Upon the occurrence of any dispute or disagreement between the
Parties hereto arising out of or in connection with any terms or provision of this Agreement, the
subject matter hereof, or the interpretation or enforcement hereof (the "Dispute"), the Parties
shall engage in informal, good faith discussions and attempt to resolve the Dispute. In
connection therewith, upon written notice of either Party, each of the Parties will appoint a
designated officer whose task it shall be to' meet for the purpose of attempting to resolve such
Dispute. The designated officers shall meet as often as the Parties shall deem it to be reasonably
necessary. Such officers will discuss the Dispute. If the Parties are unable to resolve the Dispute
within ninety (90) calendar days, and in the event that either of the Parties concludes in good
faith that amicable resolution through continued negotiation with respect to the Dispute is not
reasonably likely, then either party may commence litigation in a court of competent jurisdiction.
14. Notices. Any notices to be given hereunder shall be in writing, and shall be deemed to
have been given (a) upon delivery, if delivered by hand, (b) three (3) days after being mailed first
class, certified mail, return receipt requested, postage and registry fees prepaid, or (c) one
Business Day after being delivered to a reputable overnight courier service, excluding the U.S.
Postal Service, prepaid, marked for the next day delivery, if the courier service obtains a
signature acknowledging receipt, in each case addressed or sent to such Party as follows:
a. Notices to RedSpeed:
RedSpeed Illinois, LLC
Attn. Robert Liberman, Manager
400 Eisenhower Lane North
Lombard, IL 60148
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With a copy to:
Martin S. Korey
STONE, POGRUND & KOREY
221 N. La Salle Street, 32ND Floor,
Chicago, IL 60601
b. Notices to the Municipality:
Raymond R. Rummel
Village Manager
Village of Elk Grove
901 Wellington Avenue
Elk Grove Village, IL 60007
With a copy to:
Stephen F., Schmidt
Chief of Police
Village of Elk Grove
901 Wellington Avenue
Elk Grove Village, IL 60007
15. Relationship between RedSpeed and the Municipality. Nothing in this Agreement
shall create, or be deemed to create a partnership, joint venture or the relationship of principal
and agent or employer and employee between the parties. The relationship between the Parties
shall be that of independent contractors, and nothing contained in this Agreement shall permit
either Party to incur any debts or liabilities or obligations on behalf of the other Party (except as
specifically provided herein). Further, it shall also not create a revenue sharing agreement
between parties, but instead payment for services rendered, as set forth in paragraph 4 above.
16. Assignment. Neither Party may assign all or any portion of this Agreement without the
prior written consent of the other. Provided, however, that the Municipality hereby
acknowledges and agrees that delivery and performance of RedSpeed's rights pursuant to this
Agreement shall require a significant investment by RedSpeed, and that in order to finance such
investment, RedSpeed may be required to enter into certain agreements or arrangements with
equipment lessors, banks, financial institutions or other similar persons or entities. The
Municipality hereby agrees that RedSpeed shall have the right to assign, pledge, hypothecate or
otherwise transfer its rights to the equipment but not the service provided under this Agreement,
to any of the aforesaid subject to the Municipality's prior written approval, which approval shall
not be unreasonably withheld or delayed. The Municipality further acknowledges and agrees
that in the event that RedSpeed provides written notice to the Municipality that it intends to
Transfer all or any of RedSpeed's rights pursuant to this Agreement, and in the event that the
Municipality fails to provide such approval or fails to object to such Transfer within thirty (30)
calendar days after its receipt of such notice from RedSpeed, for the purposes of this Agreement,
the Municipality shall be.deemed to have consented to and approved such Transfer.
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17. Iniunetive Relief; Specific Performance. The Parties hereby agree and acknowledge
that a breach of License, or breach of the Restricted Use Confidentiality of this Agreement would
result in severe and irreparable injury to the other .Party, which injury could not be adequately
compensated by an award of money damages, and the Parties therefore agree and acknowledge
that they shall be entitled to injunctive relief in the event of any breach of any material term,
condition, or provision of this Agreement, or to join or prevent such a breach, including without
limitation, an action for specific performance hereof.
18. Audit. Each of the Parties hereto shall have the right to audit the books and records of
the other Party hereto solely for the purpose of verifying the payments, if any, payable pursuant
to this Agreement. Any such audit shall be conducted upon not less than three business days
prior notice, at mutually convenient times and during the normal business hours. In the event
any such audit establishes any underpayment of any payment payable pursuant to this
Agreement, the Audited Party shall promptly pay the amount of the shortfall. In the event any
such audit establishes any overpayment by refund to the amount of the excess shall be promptly
paid. Each Party shall solely pay the expenses for any audit they request.
19. Force Maieure. Neither Party will be liable to the other or be deemed to be in breach of
this Agreement for any failure or delay in rendering performance arising out of causes beyond its
reasonable control and without its fault or negligence. Said causes may include but are not
limited to, acts of God, or the public enemy, terrorism, significant fires, floods, earthquakes,
epidemics, quarantine restrictions, strikes, freight embargoes, or Governmental Authorities
approval delays which are not caused by any act or omission by Red5peed. The Party whose
performance is affected agrees to notify the other promptly of the existence and nature of any
delay.
20. Miscellaneous.
a. Definitions. In this Agreement, the words and phrases below shall have the
following meanings:
i. "Administrative Hearing Officer" means the person hired by the
Municipality to act as an impartial judge for all requests for an
Administrative Appeals Hearing.
ii. "Authorized Officer" means the designated employee from the Police
Department of the Municipality, the Traffic Control Administrator or such
other individual(s) as the Municipality shall designate to review Potential
Violations and to authorize the Issuance of Citations.
iii. "Authorized Violation" means each Potential Violation in the Violation
Data for which authorization to issue a citation in the form of an
Electronic Signature is given by the Authorized Officer by using the
RedSpeed.
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iv. "Citation" means the notice of Violation, which is mailed or otherwise
delivered by RedSpeed to the violator on the appropriate Enforcement
Documentation in respect of each Authorized Violation.
V. "Confidential or Private Information" means, with respect to any
Person, any information, matter or thing of a secret, confidential or private
nature, whether or not so labeled, which is connected with such Person's
business or methods of operation or concerning any of such Person's
suppliers, licensors, licensees, Municipalities or others with whom such
Person has a business relationship, and which has current or potential
value to such Person or the unauthorized disclosure of which could be
detrimental to such Person, including but not limited to:
Matters of a business nature, including but not limited to information
relating to development plans, costs, finances, marketing plans; data,
procedures, business opportunities, marketing methods, plans and
strategies, the costs of construction, installation, materials, or components,
the prices such Person obtains or has obtained from its clients or
Municipalities, or prices at which such Person sells or has sold its
services; and
Matters of a technical nature, including but not limited to product
information, trade secrets, know-how, formulae, innovations, inventions,
equipment, discoveries, techniques, formats, processes, methods,
specifications, designs, patterns, schematics, data, access or security
codes, compilations of information, test results and research and
development projects. For purposes of this Agreement, the term "trade
secrets" shall mean the broadest and most inclusive interpretation of trade
secrets.
vi. "Designated Intersection" means the Intersections set forth in Exhibit A
attached hereto, and such additional Intersections as RedSpeed and the
Municipality shall mutually agree from time to time.
vii. "Enforcement Documentation" means the necessary and, appropriate
documentation related to the Automated Traffic Law Enforcement
System, including but not limited to Citation notices (using the
specifications required by the Illinois Vehicle Code, and by (Village)
ordinance, a numbering sequence for use on all Citation notices (in
accordance with applicable court rules), instructions to accompany each
issued Citation, chain of custody records, criteria regarding operational
policies for processing Citations (including with respect to coordinating
with the Department of Motor Vehicles), and technical support
documentation for applicable court and judicial officers.
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viii. "Equipment" means any and all cameras, sensors, equipment,
components, products, software and other tangible and intangible property
relating to the Automated Traffic Law Enforcement System(s), including
but not limited to all camera systems, housings, radar units, and poles.
ix, "Fine" means monetary sums assessed for Citation(s), including but not
limited to bail forfeitures, but excluding License suspension fins.
X. "Governmental Authority" means any domestic or foreign government,
governmental authority, court, tribunal, agency or other regulatory,
administrative or judicial agency, commission or organization, and any
subdivision, branch or department of any of the foregoing.
xi. "Installation Date of the Automated Traffic Law Enforcement
System" means the date on which RedSpeed completes the construction
and installation of at least one (1) Intersection in accordance with the
terms of this Agreement so that such Intersection is operational for the
purposes of functioning with the Automated Traffic Law Enforcement
System Program.
xii. "Intellectual Property" means, with respect to any Person, any and all
now known or hereafter known tangible and intangible rights associated
with works of authorship throughout the world, including but not limited
to: (a) copyrights, (b) trademark and trade name rights and similar rights,
(c) trade secrets rights, (d) patents, designs, algorithms and other property
rights, (e) all other intellectual and property rights (of every kind and
nature however designated), whether arising by operation of law, contract,
license, or otherwise, and (f) all registrations, initial applications,
renewals, extensions, continuations, divisions or reissues hereof now or
hereafter in force.
xiii. "Intersection" means a conduit of travel (e.g., northbound, southbound,
eastbound or westbound) on which at least one (1) system has been
installed by RedSpeed for the purposes of facilitating Automated Traffic
Law Enforcement System by the Municipality.
xiv. "Operational Period" means the period of time during the Term,
commencing on the Installation Date, during which the Automated Traffic
Law Enforcement System is functional in order to permit the identification
and prosecution of Violations at the Designated Intersection Approaches
and the issuance of Citations for such approved Violations using the
Automated Traffic Law Enforcement System.
xv. "Person" means a natural individual or a company, Governmental
Authority, partnership, firm, corporation, legal entity or other business
association.
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xvi. "Potential Violation" means the data collected by the Automated Traffic
Law Enforcement System with respect to any motor vehicle passing
through a Designated Intersection, which data shall be processed by the
Automated Traffic Law Enforcement System for the purposes of allowing
the Authorized Officer to review such data and determine whether a Red
Light (Traffic Control) Violation has occurred.
xvii. "Proprietary Property" means, with respect to any Person, any written
or tangible property owned or used by such Person in connection with
such Person's business, whether or not such property is copyrightable or
also qualifies as Confidential Information, including without limitation
products, samples, equipment, files, lists, books, notebooks, records,
documents, memoranda, reports, patterns, schematics, compilations,
designs, drawings, data, test results, contracts, agreements, literature,
correspondence, spread sheets, computer programs and software,
computer print outs, other written and graphic records and the like,
whether originals, copies, duplicates or summaries thereof, affecting or
relating to the business of such Person, financial statements, budgets,
projections and invoices.
xviii. "RedSpeed Marks" means all trademarks registered in the name of
RedSpeed or any of its affiliates, such other trademarks as are used by
RedSpeed or any of its affiliates on or in relation to the Automated Traffic
Law Enforcement System at any time during the Term this Agreement,
service marks, trade names, logos, brands and -other marks owned by
RedSpeed,. and all modifications or adaptations of any of the foregoing.
xix. "Automated .Traffic Law Enforcement System" means, collectively, all
of the other equipment, applications, back office processes and digital red
light traffic enforcement cameras, sensors, components, and products,
software and other tangible and intangible property relating to and
including, but not limited to, the process by which the monitoring,
identification and enforcement of Violations is facilitated by the use of
certain equipment, applications and back office processes of RedSpeed,
including but not limited to cameras, flashes, central processing units,
signal controller interfaces and detectors (whether loop, radar or video
loop) which, collectively, are capable of measuring Violations and
recording such Violation data in the form of photographic images of motor
vehicles for automated Traffic law enforcement.
xx. "Violation" means an automated traffic law violation as defined by
Section 11-208.6 of the Illinois Vehicle Code.
xxi. "Violation Criteria" means the standards and criteria by which Potential
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Violations will be evaluated by the Authorized Officer and/or sworn
police officers of the Municipality, which standards and criteria shall
include, but are not limited to, the duration of time that a traffic light must
remain red prior to a Violation being deemed to have occurred, whether
the vehicle .in question entered an intersection in violation of a red light
signal in order to yield the right of way to an emergency vehicle or as part
of a funeral procession, and the location(s) in an intersection which a
motor vehicle must pass during a red light signal prior to being deemed to
have committed a Violation, all of which shall be in compliance with all
applicable laws, rules and regulations of Governmental Authorities.
xxii. "Violations Data" means the images and other Violations data gathered
by the Automated Traffic Law Enforcement System at the Designated
Intersection(s).
xxiii. "Traffic Control Administrator" means the Traffic Control
Administrator designated by the Village.
b. Entire Agreement. This Agreement represents the entire Agreement between the
Parties, and there are no other agreements (other than invoices and purchase orders),
whether written or oral, which affect its terms. This Agreement may be amended only by
a subsequent written agreement signed by both Parties.
C. Construction. Except as expressly otherwise provided in this Agreement, this
Agreement shall be construed as having been fully and completely negotiated and neither
the Agreement nor any provision thereof shall be construed more strictly against either
Party.
d. Severability. If any provision of this Agreement is held by any court or other
competent authority to be void or unenforceable in whole or party, this Agreement shall
continue to be valid as to the other provisions thereof and the remainder of the affected
provision.
e. Waiver. Any waiver by either Party of a breach of any provision of this
Agreement shall not be considered as a waiver of any subsequent breach of the same or
any other provision thereof.
f. Headings. The headings of the sections contained in this Agreement are included
herein for reference purposes only, solely for the convenience of the parties hereto, and
shall not in any way be deemed to affect the meaning, interpretation or applicability of
this Agreement or any term, condition or provision hereof.
g. Execution and Counterparts. This Agreement may be executed in any number
of counterparts, each of which when so executed and delivered shall be deemed an
original, and such counterparts together shall constitute only one instrument. Any one of
such counterparts shall be sufficient for the purpose of proving the existence and terms of
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this Agreement, and no Party shall be required to produce an original or all of such
counterparts in making such proof.
h. Binding Effect. This Agreement shall incur to the benefit of and be binding
upon all of the Parties hereto and their respective executors, administrators, successors
and permitted assigns.
i. Compliance with Laws. Nothing contained in this Agreement shall be construed
to require the commission of any act contrary to law, and whenever there is a conflict
between any term, condition or provision of this Agreement and any present or future
statute, law, ordinance or regulation contrary to which the Parties have no legal right to
contract, the latter shall prevail, but in such event the term, condition or provision of this
Agreement affected shall be curtailed and limited only to the extent necessary to bring it
within the requirement of the law, provided that such construction is consistent with the
intent of the Parties as expressed in this Agreement.
j. Remedies Cumulative. Each and all of the several rights and remedies provided
for in this Agreement shall be construed as being cumulative and no one of them shall be
deemed to be exclusive of the others or of any right or remedy allowed by law or equity,
and pursuit of any one remedy shall not be deemed to be an election of such remedy, or a
waiver of any other remedy.
k. Applicable Law. This Agreement shall be governed by and construed in all
respects solely in accordance with the laws of the State of Illinois.
1. Jurisdiction and Venue. Any dispute arising out of or in connection with this
Agreement shall be submitted to the exclusive jurisdiction and venue of the State Courts
of the State of Illinois located in the County the Municipality resides, and both Parties
specifically agree to be bound by the jurisdiction and venue thereof.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the day and
year set forth above.
"Municipality"
VILLAGE OF ELK GROVE VILLAGE
By: Craig B. Johnson
Craig B. Johnson
Title: Mayor
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"RedSpeed"
RedSpeed Illinois, LLC
.00
Robert Liberman
Title: Manager
EXHIBIT "A"
Designated Intersections
RedSpeed and the Municipality will mutually agree upon the Identification of enforced
intersection, which agreement will be based on community safety and traffic needs as warranted.
The Designated Intersections shall be as mutually agreed between the municipality and
RedSpeed in writing.
Construction and Installation
RedSpeed will have designated intersections installed and activated in accordance with an
implementation plan to be mutually agreed to by RedSpeed and the Municipality.
RedSpeed will use reasonable commercial efforts to install the system in accordance with the
schedule set forth in the implementation plan that will be formalized upon project
commencement.
RedSpeed will use reasonable commercial efforts to install and activate the first specified
intersection within the first ninety (90) days. The Municipality agrees that the estimated
timeframe for installation and activation is not guaranteed.
The Municipality will assist with providing timely approval of Municipal permit(s). The
Municipality will provide engineers to review RedSpeed permit requests and all documentation
and said review should be within two (2) business days of receipt. RedSpeed will also attempt to
review and correct, if necessary, any requested changes within two business days.
Further RedSpeed shall provide training for up to four (4) personnel of the Municipality,
including but not limited to the persons who Municipality shall appoint as Authorized Officers
and other persons involved in the administration of the Automated Traffic Law Enforcement
System. Training shall include training with respect to the RedSpeed Automated Traffic Law
Enforcement System and its operations, presenting Violations Data in court and judicial
proceedings and a review of the Enforcement Documentation. Training for more then four (4)
personnel shall be an extra cost to be agreed to by the Parties before training shall be provided.
Maintenance
All repair and maintenance of the Automated Traffic Law Enforcement System shall be the sole
responsibility of RedSpeed.
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EXHIBIT "B"
Compensation
The Parties agree that all citations shall be paid to a lock box which shall be maintained by
RedSpeed.
RedSpeed shall remit to the Municipality the balance of all payments it collects for the
Municipality after deducting therefrom the compensation due to RedSpeed as determined below:
1. A monthly fee of $1,499.00 for each Active Camera. This cost includes the maintenance of
the camera.
If a camera is Inactive (including but not limited to vandalism, acts of God, road sensor
damage, and equipment malfunction), except if the electricity to the intersection is non-
operational and/or the traffic control signals are non -operational in which case no credit shall
be given, the following shall be applicable.
• A $50.00 credit shall be given to the Municipality for every day the camera is inactive
up to fourteen (14) calendar days; and
• If more than fourteen (14) calendar days, then the entire monthly fee of $1,499.00
shall be waived
Further, if the electricity and/or traffic control signal is not operational, RedSpeed will
assist the Municipality at no cost with all repairs and also, there will be no additional
charges for the power outage.
2. A service fee of $5.99 shall be. charged for each of the following services listed in
subparagraphs (a) and (b) below, where applicable, even if there is no Citation issued:
(a) For digital capture, download and manual review of a violation evidence package
(including three pictures and a 12 second video clip), performed by RedSpeed operators,
excluding funeral processions, emergency and police vehicles.
(b) For registered owner name and address retrieval associated with processing a
citation (utilizing Secretary of State, United States Postal Service or other third party
database);
3. After a citation has been authorized by a municipality, a service fee of $5.99 shall be charged
for each of the following services listed in subparagraphs (a), (b), (c) and (d) below, where
applicable:
(a) For ALL letter handling services, including postage and color printing;
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(b) For payment processing service, including check and credit card processing at the
lock box, online or during administrative hearings;
(c) For ALL customer services offered by RedSpeed, including: municipality -specific
toll free number, call center hearing scheduling, live operator violation status and
payment support.
(d) For digital evidence archival (storage of evidence for 7 years) service;
4. All prices will be increased each year by the Consumer Price Index (CPI) published in
the U.S. Department of Labor's. Consumer Price Index for U.S. City Average. Also the
municipality agrees to pay RedSpeed within thirty (30) days after the invoice is received.
The Parties agree that all payments due accrue late fees and interest pursuant to the Local
Government Prompt Payment Act (Illinois Compiled Statutes: 50 ILCS 505/14 et. seq.).
5. Included in the compensation are the following items and responsibilities:
■ Collection of delinquent payments will be the sole responsibility and expense of the
Municipality.
■ RedSpeed will be able to utilize existing conduit for installation where space is
available, at no cost to RedSpeed;
■ All necessary electrical services" to the Designated Intersections will be the sole
responsibility and expense of the Municipality;
■ RedSpeed will be able to utilize existing internet connections at the Municipality's
Police Department and other locations where RedCheck (back-office processing
software) will be installed and used, and
■ RedSpeed will be responsible for installation and maintenance of a high-speed
Internet connection at each designated intersection approach.
Further, the Municipality shall receive a statement and invoice by the 15`h of every month stating
the amount collected and the amount of compensation to RedSpeed for the prior month. The net
amount owed to the Municipality shall be included with the statement.
RedSpeed shall collect all citation payments and all collection work shall be monitored by
RedSpeed, and approved by the Police Department of the Municipality. After citations are
collected, RedSpeed shall be paid all of its compensation as set forth in this Exhibit `B" and then
the balance shall be promptly paid to the Municipality. The Municipality acknowledges that it
shall have access to all records on the computer terminal provided by RedSpeed pursuant to this
Agreement. If for some reason it is not available RedSpeed shall provide a paper copy of any
monthly statement upon written request.
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Cost Neutrality. Notwithstanding any other provision of this Agreement to the contrary, if any
invoice for compensation owed to RedSpeed from Municipality is higher than the amount
collected, the balance owed to RedSpeed will be carried over and paid by the Municipality in the
following month. Payment will only be made by Municipality up to the amount of cash received
by Municipality through the collection of Red Light Citations up to the amount currently due.
Cost neutrality is assured to Municipality as the Municipality shall never have to pay RedSpeed
more than the actual cash received.
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