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HomeMy WebLinkAboutCity of Tamarac Resolution R-2016-073C Temp Reso #12813 Page 1 July 13, 2016 CITY OF TAMARAC, FLORIDA RESOLUTION NO. 2016 - 4-12 I I1 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF TAMARAC, FLORIDA, APPROVING THE RENEWAL AMENDMENT TO PROFESSIONAL SERVICES AGREEMENT WITH AMERICAN TRAFFIC SOLUTIONS, INC., ATTACHED HERETO AS EXHIBIT "A" AND INCORPORATED HEREIN; AUTHORIZING AND DIRECTING THE APPROPRIATE CITY OFFICIALS TO EXECUTE ALL DOCUMENTS NECESSARY TO EFFECTUATE THE INTENT OF THIS RESOLUTION; PROVIDING FOR CONFLICTS; PROVIDING FOR SEVERABILITY; PROVIDING FOR AN EFFECTIVE DATE WHEREAS, On November 14, 2012, the City and American Traffic Solutions, Inc. (ATS) entered into a Professional Services Agreement, which together with a First and Second Addendum to such Professional Services Agreement constitute the "Agreement" referred to herein; and, WHEREAS, On August 26, 2015, the City and ATS entered into the 2015 Amendment to the Professional Services Agreement to implement certain revised processes for its red light camera program; and, WHEREAS, On April 13, 2016, the City and ATS entered into an Initial Term Amendment to extend the initial term on a month to month basis up to a period of three months; and, WHEREAS, Section 2.0 of the Agreement provides for the right of the City to renew the term of the Agreement for two (2) additional, two (2) year periods following the expiration of the Initial Term; and, WHEREAS, The parties disagree on the receivables to which ATS is entitled during the Initial Term relating to the Revenue Neutrality formula associated with the BSO costs and invoices, and seek to resolve such disagreement through this Amendment; and, {00124356.1 2704-0501640 } 1 Temp Reso #12813 Page 2 July 13, 2016 WHEREAS, Section 13.0 of the Agreement states that no modification, amendment or alteration to the terms or conditions contained in the Agreement shall be effective unless in a written document executed with the same formality and equal dignity herewith; and WHEREAS, the City Commission of the City of Tamarac deems it to be in the best interest of the health, safety, and welfare of the citizens and residents of the City of Tamarac to accept and execute the Renewal Amendment to the Professional Services Agreement with ATS. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF TAMARAC: Section 1. The foregoing "WHEREAS" clauses are hereby ratified and confirmed as being true and correct and are hereby made a specific part of this Resolution upon adoption hereof. All exhibits attached hereto are incorporated herein and made a specific part hereof. Section 2. The City Commission of the City of Tamarac, Florida, hereby approves the Renewal Amendment to the Professional Services Agreement, attached hereto as Exhibit "A" and incorporated herein. Section 3. The City Commission of the City of Tamarac, Florida, hereby authorizes and directs the appropriate City officials to take any and all action necessary to effectuate the intent of this resolution. Section 4. All resolutions inconsistent or in conflict herewith shall be and are hereby repealed insofar as there is conflict or inconsistency. Section 5. If any section, sentence, clause, or phrase of this resolution is held to be invalid or unconstitutional by any court of competent jurisdiction, then said holding shall in no way affect the validity of the remaining portions of this resolution. (0012435&1 2704-0501640 1 2 J 1 Temp Reso #12813 Page 3 July 13, 2016 Section 6. This resolution shall become effective upon its passage and adoption by the City Commission. PASSED AND ADOPTED BY THE CITY COMMISSION OF THE CITY OF TAMARAC, FLORIDA THIS 1 DAY OF `. citi , 2016. CITY OF TAMARAC FLORIDA ATTEST: PATRICIA TEUFEL, MC CITY CLERK =J ..6 `2 DIANE GLAS VICE MAYOR RECORD OF COMMISSION VOTE: MAYOR DRESSLER DIST 1: COMM. BUSHNELL DIST 2: COMM. GOMEZ DIST 3: V/M GLASSER DIST 4: COMM. PLACKO I HEREBY CERTIFY THAT I HAVE APPROVED THIS RESOLUTION AS TO FORM: X 4� 71� jy� SAM EL S. GORE CITY ATTORNEY Temp Reso # 12813 Page 4 July 13, 2016 Exhibit "A" Renewal Term — Amendment to Professional Services Agreement C 1 C 2016 RENEWAL AMENDMENT TO PROFESSIONAL SERVICES AGREEMENT This 2016 Renewal Amendment to Professional Services Agreement ("Renewal Amendment") is dated effective this 19th day of July, 2016 and is entered into between American Traffic Solutions, Inc. ("ATS" or "Vendor"), a corporation duly registered under the laws of the State of Kansas with its principal place of business at 1150 N. Alma School Road, Mesa, AZ 85201 and the City of Tamarac, Florida ("City" or "Customer"), a municipal corporation of the State of Florida (each individually a "Party" and collectively the "Parties"). RECITALS WHEREAS, on November 14, 2012, the City and ATS entered into a Professional Services Agreement, which together with a First and Second Addendum to such Professional Services Agreement constitute the "Agreement" referred to herein; and WHEREAS, on August 26, 2015, the City and ATS entered into the 2015 Amendment to the Professional Services Agreement to implement certain revised processes for its Photo Red Light Enforcement Program; and WHEREAS, on April 13, 2016, the City and ATS entered into an Initial Term Amendment to extend the initial term on a month to month basis up to a period of three months; and WHEREAS, Section 2.0 of the Agreement provides for the right of the City to renew the term of the Agreement for two (2) additional, two (2) year periods following the expiration of the Initial Term; and, WHEREAS, the parties disagree on the receivables to which ATS is entitled during the Initial Term relating to the Revenue Neutrality formula associated with the BSO costs and invoices, and seek to resolve such disagreement through this Amendment; and, WHEREAS, Section 13.0 of the Agreement states that no modification, amendment or alteration to the terms or conditions contained in the Agreement shall be effective unless in a written document executed with the same formality and equal dignity herewith; and TERMS AND CONDITIONS NOW THEREFORE, Customer and ATS hereby agree as set forth below: 1. Pursuant to Section 2.0 of the Agreement, the City is hereby exercising its remaining two (2) two (2) year Renewal Terms, commencing on the date set forth above, which shall terminate July 19, 2020. 2. While the parties disagree that any sums are due and payable from the City to ATS for the Initial Term, in order to resolve such, ATS shall waive the outstanding accounts receivables of $352,485.05 it claims are due during the Initial Term relating to underbilling of contracted fees and the Broward County Sheriffs Office (BSO) costs in operating the City's Photo Red Light Enforcement Program. 3. The November 14, 2012 Addendum to the Agreement is hereby amended to read as follows: "The City of Tamarac and ATS agree that for purposes of this Agreement the Broward County Sheriffs Office annual cost is $214,133 (BSO Costs) to perform duties related to the 100137770.2 2704-08072501 2016 RENEWAL AMENDMENT TO PROFESSIONAL SERVICES AGREEMENT Page 2 City's Photo Red Light Enforcement Program. ATS's responsibility for the BSO Costs during the Renewal Term shall be pro -rated based upon the originally intended twenty (20) camera systems. By way of example, where twelve (12) Camera Systems are installed, seventy-five percent (75%) of the BSO Costs would factor into the Revenue Neutrality formula set forth in Section 8 of the Agreement. The pro -rated BSO costs shall be evenly allocated on a monthly basis to the monthly Vendor invoices. Pursuant to the procedures described in section 8.3 of the Agreement the Vendor will maintain an accounting of any net balance owed to Vendor. If the amount of funds collected by City during a monthly billing period exceeds the amount of Vendor invoices during the same period by the pro -rated BSO Costs for that month, City shall pay Vendor the total amount due as calculated by section 8.0 of the Agreement. If the amount of funds collected during a monthly billing period does not exceed the amount of Vendor invoices during the same period by the pro -rated BSO Costs for that month, City shall retain the revenue up to the amount of the pro -rated BSO Costs for that month and pay Vendor the remaining amount of funds collected and defer payment of the remaining balance. Payments due to Vendor shall be reconciled by applying future funds collected, first to the accrued balance owing pursuant to this subsection, and then to the invoice for the current monthly billing period. Accrued balances shall not include any interest charges. At any time that Vendor invoices, including any accrued balance, are fully repaid, City will retain all additional funds collected during that monthly billing period. Notwithstanding anything in the Agreement to the contrary, if at the end of any City fiscal year, with the City's fiscal year being defined as the period October 1st through September 30th, sufficient funds have not been collected by City to pay any balance due to Vendor pursuant to this subsection, Vendor agrees to waive its right to recovery of any outstanding balance. At no time shall ATS be responsible for BSO Costs that are not provided for by the funds collected by the City from the Photo Red Light Enforcement Program." Section 7.2 of the Agreement is amended to add the following Section 7.2.1: 7.2.1 Program Suspension: In the event of an adverse decision by a local City magistrate, traffic court hearing officer, judge, or appellate court, and notwithstanding further appeals or appellate rights, in lieu of termination pursuant to Section 7.2(A)(i) or (ii), the City may elect to suspend its Red Light Traffic Signal Enforcement Program while it determines whether modifications may be made to remedy the effects of such adverse decision and whether such modifications are possible without increasing costs to the City, or to appeal the adverse decision. In such event, the period of time of the City's suspension of the Program shall operate as a deferral of the term of the Program and the term of this Agreement shall be extended by the time of the suspension. In addition, the City will not be obligated to pay any fees or payments to CONTRACTOR during such time of the suspension. The times of the suspension is not a deferral of payment and the time period of the suspension shall be excluded from the compensation calculations in Section 8.0. Further, any revenue received by the City during the suspension shall be retained by the City and not be used in the compensation calculations in Section 8.0 of this Agreement. Finally, should the City undertake an appeal and a favorable decision is not rendered within eighteen months of the filing of the appeal, the City has the right to terminate the agreement pursuant to 7.2(A)(i) and/or (ii). 4. Section 7.3 and subsection 7.3.1 and 7.3.2 of the Agreement are hereby deleted in their entirety and are replaced with the following: "Procedures Upon Termination: Notwithstanding any provision in the Agreement to the contrary, upon Termination of this Agreement at the end of a term, and the Agreement is not renewed, if the City requests the Vendor to continue to provide services for an orderly wind -down of the City's Photo (00137770.2 2704-08072501 2016 RENEWAL AMENDMENT TO PROFESSIONAL SERVICES AGREEMENT Page 3 Red Light Enforcement Program ATS agrees the City shall be entitled to continue to retain the first $13,383 in monthly revenue not to exceed an additional 60 days, unless negotiated and mutually agreed to 45 days prior to the termination date of the Agreement. If the City requests that ATS not continue to provide services for the time period not to exceed 60 days after the termination of the Agreement, ATS shall cease all services immediately and shall not be entitled to any additional fees other than the fees earned under the Agreement. Upon the termination of this Agreement or upon the expiration of the time period after the termination of the Agreement, not to exceed 60 days (herein "Final Termination Date"), ATS shall: (i) provide the City all evidence package data and information for all violations currently maintained on the ATS Axsis System on behalf of the City within sixty (60) days of the Final Termination Date.; and (ii) terminate all use of the Axsis System for the City's Photo Red Light Enforcement Program and upon such termination the Axsis System and related lockbox shall no longer be capable of accepting payments. Upon the Final Termination Date the ownership, rights and all responsibility of installed equipment and infrastructure, with the exception of the cameras, camera housing and camera controller, controller housing, radar unit and radar unit housing will transfer from ATS to the Customer. ATS will maintain ownership and will remove at no cost to the Customer the cameras, camera housing and camera controller, controller housing, radar unit and radar unit housing at all sites. If FDOT does not allow the Customer to maintain the remaining equipment on a FDOT right-of-way ATS shall provide the City with an estimate of the cost of removal of the remaining equipment and City shall either pay ATS for removal of the remaining equipment or City shall remove the remaining equipment. Upon the Final Termination Date of this Agreement, ATS shall no longer have any obligation or liability in relation to the site and the Customer assumes ownership of the remaining equipment and infrastructure, including any and all benefits, obligations and liability that may arise from the site thereafter. Public Records: Upon completion of the contract, ATS may transfer, at no cost to the City, all public records in possession of the ATS or keep and maintain public records required by the City to perform the service. If ATS transfers all public records to the City upon completion of the contract, ATS shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If ATS keeps and maintains public records upon completion of the contract, 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 HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUES, TO ATS' DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS CONTRACT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS AT: CITY CLERK 7525 NW 88 AVENUE, ROOM 101 TAMARAC, FL 33321 (954) 597 3505 pat.teufel@tamarac.org 5. Exhibit E of the Agreement is hereby deleted in its entirety and replaced with the following: "EXHIBIT E (00137770.2 2704-0807250) 2016 RENEWAL AMENDMENT TO PROFESSIONAL SERVICES AGREEMENT Page 4 COMPENSATION AND PRICING 1.0 Description of Pricing Fees are based on per approach, per month and are as follows: Lane -based Pricing: FEE For 1 or 2 Lanes $3,250 For 3 or 4 Lanes $4,250 For 5+ Lanes $5,250 Lane -Based Pricing Includes: The Lane -based Pricing includes all costs required and associated with camera system installation, maintenance and on -going field and back -office operations. Includes red-light camera equipment with up to two (2) signal phases, installation, maintenance, violation processing services, DMV records access, mailing of Notice of Violation in color with return envelope, certified mail processing (no return receipt) of Traffic Citation, lockbox and e-payment processing services, call center support for general program questions and public awareness program support. Lane -Based Pricing does not include the certified mail costs associated with the issuance of Uniform Traffic Citations. The City shall pay Vendor a certified mail processing surcharge of $4 per piece metered (no return receipt)." 6. If an installed Camera System is removed due to road construction or is knocked -down and requires reinstallation, the Camera System shall only be reinstalled upon the mutual agreement of the parties. No fee shall be payable from the City to ATS for such Camera System while it is inoperable. 7. Section 16.0, entitled Notice, is amended to provide for ATS's updated address, as of November 2, 2015, as follows: Vendor: American Traffic Solutions, Inc. 1150 N. Alma School Road Mesa, AZ 85201 Attn: Legal Department 8. The provisions of the Agreement, as amended by this Renewal Amendment, including the recitals, comprise all of the terms, conditions, agreements, and representations of the parties with respect to the subject matter hereof. Except as expressly amended or modified by the terms of this Renewal Amendment, all terms of the Agreement shall remain in full force and effect. In the event of a conflict between the terms of this Renewal Amendment and the Agreement, the terms of this Renewal Amendment shall prevail and control. 9. This Renewal 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. Each party represents and warrants that the representative signing this Renewal Amendment on its behalf has all right and authority to bind and commit that party to the terms and conditions of this Renewal Amendment. (001377702 2704-0807250)