01q101NAL - Supreme Court of Ohio and the Ohio … IN THE SUPREME COURT OF OHIO STATE OF OHIO EX...

01q101NAL

IN THE SUPREME COURT OF OHIO

STATE OF OHIO EX REL.CITY OF CHILLICOTHEJoseph P. Sulzer, Mayor35 South Paint StreetChillicothe, Ohio 45601

-v-

Relators,

ROSS COUNTY BOARDOF ELECTIONS475 Western Ave., Suite DChillicothe, Ohio 45601

Respondent.

CASE NO. 2009-1746

Original Action in Mandamusand Prohibition

Expedited Election MatterUnder S.Ct. Prac. R. X, Sec. 9

RELATOR'S EVIDENCE TO MERIT BRIEF

James L. Mann (0007611)City of Chillicothe, Asst. Law Director20 East Second StreetChillicothe, Ohio 45601P. (740) 774-4175F. (740) [email protected]

Counsel for Relator

Michael M. Ater (0063517)Ross County Prosecuting AttorneyRichard W. Clagg (0080578)Assistant Prosecuting Attorney72 North Paint StreetChillicothe, Ohio 45601P. (740) 702-3115F. (740) [email protected]

Counsel for Respondent

CL.i..RK s)I COURTSUPREtV1E t;UUR-f OF OHIO


STATE OF OHIO EX REL. CASE NO. 2009-1746CITY OF CHILLICOTHEJoseph P. Sulzer, Mayor35 South Paint Street Original Action in MandamusChillicothe, Ohio 45601 and Prohibition

Relators,Expedited Election Matter

-v- Under S.Ct. Prac. R. X, Sec. 9

ROSS COUNTY BOARDOF ELECTIONS475 Western Ave., Suite DChillicothe, Ohio 45601

Respondent.

INDEX TO RELATOR'S EVIDENCE

Affidavit of James L. Mann

A. Ordinance No. 151-07 passed by Chillicothe City Council on December 10, 2007.

B. Contract with Redflex signed February 14, 2008.

C. Ordinance No. 62-08 passed by Chillicothe City Council on June 9, 2008.

D. Petition filed with Board of Elections.

E. Protest filed with the Board of Elections on August 14, 2009.

F. Minutes approved by the Board of Elections on October 6, 2009.

es L. Mann (0007611)Assistant Law Director20 East Second StreetChillicothe, Ohio 45601Phone: 740-774-4175Fax: [email protected] for Relator City of Chillicothe

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing was served upon the following via facsimile,

or personal service this 8th day of October 2009 at the number or address set forth below:

Michael M. AterRoss County Prosecuting AttorneyRichard W. ClaggAssistant Prosecuting Attorney72 North Paint StreetChillicothe, Ohio 45601Facsimile: (740) 702-3106

U^M.t^^1,^^ames L. Mann (007611)

Assistant Law Director


STATE OF OHIO EX REL. CASE NO. 2009-1746CITY OF CHILLICOTHEJoseph P. Sulzer, Mayor35 South Paint Street Original Action in MandamusChillicothe, Ohio 45601 and Prohibition

Relators,Expedited Election Matter

-v- Under S.Ct. Prac. R. X, Sec. 9

ROSS COUNTY BOARDOF ELECTIONSAddressChillicothe, Ohio 45601

Respondent.

AFFIDAVIT OF JAMES L. MANN

STATE OF OHIOCounty ofRoss . ss.:

Now comes, James L. Mann, being first duly cautioned and sworn, and states that:

1. I am an attorney with the Chillicothe Law Director's Office, which is counsel for

the City of Chillicothe (Relators) opposed to the initiative petition known as the protest of the

initiative ordinance restricting the use of mobile speed enforcement vehicles and traffic law

photo monitoring devices. I have personal knowledge of the matters stated in this Affidavit and

am competent to testify on the matters set forth herein.

2. This Affidavit is subinitted with and in support of the above-titled action filed in

the Supreme Court of Ohio.

3. Attached hereto as Exhibit A is a true and correct copy of an Ordinance passed by

Chillicothe City Council on December 10, 2007, authorizing the Mayor ofthe City of Chillicothe

to enter into an Agreement with Redflex Traffic Systems.

4. Attached hereto as Exhibit B is a true and correct copy of the contract the City of

Chillicothe entered into with Redflex Traffic Systems on February 14, 2008.

5. Attached hereto as Exhibit C is a true and correct copy of Ordinance 62-08 passed

by Cbillicothe City Council on June 9, 2008 enacting Chapter 315 of the Codified Ordinances of

the City of Chillicothe, Ohio, to provide for the implementation of a photo traffic enforcement

system for the administrative enforcement of traffic control signals and speed limits.

6. Attached hereto as Exhibit D is a copy ofthe proposed petition that was filed at

the Ross County Board of Elections and received by the Chillicothe City Auditor on December

9, 2008.

7. Attached hereto as Exhibit E is a copy of the protest of the initiative ordinance

restricting the use of mobile speed enforcement vehicles and traffic law photo monitoring

devices that I prepared and was filed at the Ross County Board of Elections on August 14, 2009.

8. Attached hereto as Exhibit F is a copy of the minutes of the September 2, 2009

meeting of the Ross County Board of Elections wherein the Board addressed the Initiative

Petition and Protest thereof, we believe these minutes were approved on October 6, 2009,

however, the copy provided to the Law Director's Office via facsimile is unsigned.

Further, Affiant sayeth naught.

Sworn and subscribed before me on this the 0A'-day of October 2009.

TONI L. EDDYAttorney at Law

; Notary Public, State of OhioLifc-"'-nqCommissier+

Proposed by:Safciv Scrvice Committee

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ORDINANCENO.151-07 .--Tawed vmcon,rvm rioaa 12^b.

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AN ORDINANCE AUTI{ORIZING THE MAYOR TO ENTER INTO A CONTRACTW 3T11 REDPLEX'fRAFFIC SYSTEMS TO INSTALL RED LIGHT CAMERAS ATDESIGNATED HIGH ACCIDENT INTERSEC'I'IONS WI171IN TIIE CITY OFCIi 1 LL I COTH E.

WI-IEREAS, Council supports the placement of red liglrt canreras at designated higlraccident interscctions withiu (lie City of Chillicothc; now, thcrcforc,

IIL IT ORDAINED RY'I'HL C(IUNCIL OF THE CITY OF CHILLICOI'HE, STA'1'E OFOI110:

SECTION I. Council hereby authorizes the Mayor to enter into a contract with Redflex TrafficSystems to install red light cameras at designated high accident inlerseations within the City ofChillicothc. The ternis of said agrccmcnt shall be substantially as set forth in Exhibit A, attaehedhereto and incorporated by reference.

SECTION 2 This Ordinance shall be in full force and effect from and invnediately foltowingIhe earliest date provided for by law.

Passed: nec 10 ,2007

Attest:

PRESIDENT OF COUNCIL

proved: Dec 10 , 2007 FILED WITEI THE MAYOR

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AAVOR

Dec 10

Votina'`yea" were the (ollowing metnbets ofCouncil: Arftes,Henderson, Lester, Malone, Patrick and

D:\tcmp\Teinpm'ary Inlernet Piles\Content.lBS\OQDH69IM\Rcdllex (277).doc

,2007

AGREEMENT BETWEEN THE CITY OF CHILLICOTHEAND REDFLEX TRAFFIC SYSTEMS, INC. FOR

AUTOMATED PHOTO SPEED AND PHOTO RED LIGHT ENFORCEMENTPROGRAM

This Agreement (this "Agreement") is made as of this - day of , 2007 by andbetween Redflex Traffic Systems, Inc., a Delaware corporation with offces at 6047Bristol Parkway 15t Floor, Culver City, California 90230 ("Redflex"), and The City ofChillicothe Ohio, a municipal corporation, witli offices at 35 S. Paint St. Chillicothe,Ohio 45601(the "Customer").

RECITALSWHEREAS, Redflex has exclusive knowledge, possession and ownership of certainequipment, licenses, applications, and citation processes related to digital photo speedand photo red light enforcement systems; and

WHEREAS, the Customer desires to engage the services of Redflex to provide certainequipment, processes a1d back office services so that sworn police officers of theCustomer are able to monitor, identify and enforce speed and red light running violations;and

WHEREAS, it is a mutual objective of both Redflex and the Customer to reduce theincidence of vehicle collisions at the traffic intersections and city streets that will bemonitored pursuant to the terms of this Agreement.

NOW THEREFORE, in consideration of the niutual covenants contained herein, and forother valuable consideration received, the receipt and sufficiency of which are herebyacknowledged, the parties agree as follows:

AGREEMENT1. DEFINITIONS. In this Agreement, the words and phrases below shall have the

following meanings:1.1. "Authorized Officer" means the Police Project Manager or such other

individual(s) as the Custotner shalI designate to review Potential Violations andto authorize the Issuance of Citations in respect tliereto, and in any event. asworn police officer.

1.2. "Authorized Violation^' means each Potential Violation in the Violation Data forwliich authorization to issue a citation in the fortn of an Electronic Signature isgiven by the Authorized Officer by using the Redflex System.

1.3. "Citation" means the notice of a Violation, which is mailed or otherwisedelivered by Redflex to the violator on the appropriate EnforcementDocumentation in respect ot'eacl-i Authorized Violation.

1.4. "Confidential Information^" means. with respect to any Person. any informatirni.matter or thing of a sect-et, confidential ot- pi-ivate nature. whetlter or not solabeled. which is connected wiih such Person's business or methods of'operationor concerning any of such Person's suppliers, licensors, licensees. customers or

others with whom such Person has a business relationship, and which has currentor potential value to such Person or the unauthorized disclosure of which couldbe detrimental to such Person, including but not limited to:1.4.1. 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 pricessuch Person obtains or has obtained from its clients or customers, or atwhich such Person sells or has sold its services; and

1.4.2. Matters of a technical nature, including but not limited to productinforniation, trade secrets, know-how, formulae, innovations, inventions,devices, discoveries, techniques, formats, processes, methods, specifications,designs, patterns, schematics, data, access or security codes, compilations ofinfonnation, test results and research and developtnent projects. Forpuiposes of this Agreement, the temi "trade secrets" shall mean the broadestand most inclusive interpretation of trade secrets.

1.4.3. Notwithstanding the foregoing, Confidential Information will not includeinformation that: (i) was generally available to the public or otherwise partof the public domain at the time of its disclosure, (ii) became generallyavailable to the public or otherwise part of the public domain after itsdisclosure and other than through any act or oinission by any party hereto inbreach of this Agreement, (iii) was subsequently lawfully disclosed to thedisclosing party by a person other than a party hereto, (iv) was required by acourt of competent jurisdiction to be described, or (v) was required by

applicable state law to be described.1.5. "Designated Intersection Approaches" nleans the Intersection Approaclies set

forth on Exhibit A attached hereto, and such additional Intersection Approachesas Redflex and the Customer shall mutually agree front time to time.

I.6. "Designated Vehicle" means the vehicle supplied and equipped by Redflex for

the purpose of n-iobile photo Speed Enforcement1.7. "Electronic Si nature"' means the method through which the Authorized Officer

indicates his or her approval of the issuance of a Citation in respect of a PotentialViolation using the Redflex System.

1.8. "Enforcement Documentation" means the necessary and appropriatedocumentation related to the Photo Speed and Red Light Enforcement Program,including but not limited to warning letters, citation notices (using thespecifications of the Judicial Council and the Chillicothe Police Departtnent), anumbering sequence for use on all Citations (in accordance with applicable courtrules), instructions to accompany each issued Citation (including in suclainstructions a description of basic court procedures, paynient options andinformation regarding the viewiug of images and data collected by the RedflexSystem), cliain of custody records, criteria regarding operational policies forprocessing Citations (inchiding with respect to coordinating w'ith the Departmentof Motor Vehicles). and teclvtical support documentation for applicable court andjudicial officers .

1.9. °EquipmenP' means any and all cameras, sensors, equipment, components,products, software and other tangible and intangible property relating to theRedflex Photo Speed and Photo Red Light Systern(s), including but not limited toall caniera systems, housings, radar units, severs and poles.

1.10. "`Fine" means a monetary sum assessed for Citations as defined herein,including but not limited to bail forfeitures, but excluding suspended fines.

1.11. "Goverrunental Authority" means any domestic or foreign government,governmental authority, court, tribunal, agency or other regulatory,administrative or judicial agency, comniission or organization, and anysubdivision, branch or department of any of the foregoing.

1.12. "Installation Date of Combined Photo Red Light & Speed Program"means the date on which Redflex completes the construction and installation ofat least one (1) Intersection Approach in accordance with the terms of thisAgreement so that such Intersection Approach is operational for the purposes offunctioning with the Combined Photo Red Light & Speed Enforcement Program.

1.13. "Installation Date of Mobile Photo Speed Program" means the date onwhich Redflex cotnpletes the construction and installation of at least one mobileunit (van) or Designated Vehicle in accordance with the terms of this Agreementso that such mobile speed unit or Designated Vehicle is operational for thepurposes of fimctioning with the Photo Speed Enforcement Program

1.14. "Intellectual Property" means, with respect to any Person, any and all nowknown or hereafter known tangible and intangible (a) rights associated withworks of authorship throughout the world, including but not limited tocopyrights, moral rights and mask-works, (b) trademark and trade name rightsand similar rights, (c) trade secrets rights, (d) patents, designs, algorithms andotlier industrial property rights, (e) all other intellectual and industrial propertyrights (of every kind and nature throughout the universe and howeverdesignated), 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 (including any Tights in anyof the foregoing), of such Person.

1.15. "Intersection Approach" nieans a eonduit of travel with up to four (4)contiguous lanes from the curb (e.g., northbound, southbound, eastbound orwestbound) on which at least one (1) digital, rear shot multiple image colorcamera has been installed by Redflex for the put-poses of facilitating combinedPhoto Red Light & Speed Enforcement by the Customer.

1.16. "Operational Period" means the period of time during the Ternn,cotmnencing on the Installation Date of Combined Photo Red Light & SpeedProgram. during which the Photo Red Light & Speed Enforcement System isfunctional in order to permit the identification and enforcement of AuthorizedViolations at the Designated Intersection Approaches by a sworn police officer oftlie Customer and the issuance of Citations for such Authorized Violations usingtlie Redtlex System.

1.17. "Person" means a natural individual. company; Governmental Authority,paruiership. tirm. corporation. legal entity or other business association.

1.18. "Police Project Manager" means the project manager appointed by theCustomer in accordance with this Agreement, which shall be a sworn policeofficer and shall be responsible for overseeing the installation at the DesignatedIntersection Approaches and the implementation of the Redflex Photo Red Light& Speed Fixed System, and which manager shall have the power and authority tomake management decisions relating to the Customer's obligations pursuant tothis Agreement, including but not limited to change order authorizations, subjectto any limitations set forth by Ohio law or otlier organizational documents of theCustomer or by the city council or other governing body of the Customer.

1.19. "Administrative Hearing Officer" means, the person hired by the City toact as an inlpartial judge for all requests for an Administrative Appeals Hearing.

1.20. "Potential Violation" tneans, with respect to any motor vehicle passingthrough a Designated City Street and/or Intersection Approach, the data collectedby the Redflex System with respect to such motor vehicle, wbieh data shall beprocessed by the Redflex Systeni for the purposes of allowing the AuthorizedOfficer to review such data and determirie whether a Speed and/or Red LightViolation has occurred.

1.21. "Proprietary Property" means, with respect to any Person, any written ortangible property owned or used by such Person in connection with suchPerson's business, whether or not such propeity is copyrightable or also qualifiesas Confidential Information, including without limitation products, samples,equipment, files, lists, books, notebooks, r-ecords, documents, memoranda,reports, patterns, schematics, compilations, designs, drawings, data, test results,contracts, agreements, literature, correspondence, spread sheets, computerprograms and.software, computer print outs, other written and graphic recordsand the like, whether originals, copies, duplicates or summaries thereof, affectingor relating to the business of such Person, financial statements, budgets,projections and invoices.

1.22. "Redflex Marks" means all tradetnarks registered in the name of Redflexor any of its affiliates, such other trademarks as are used by Redflex or any of itsaffiliates on or in relation to Photo Speed aud Photo Red Light Enforcement atany time during the Term this Agreement, service marks, trade names, logos,brands and other marks owned by Redflex. and all modifications or adaptationsof any of the foregoing.

1.23. "Redflex Project Manager" means the project manager appointed byRedflex in accordance with this Agreement, which project manager shall initiallybe Carl Bootlt, or such person as Redflex sltall designate by providing writtennotice thereof to the Customer firom time to time, xvlio shall be responsible foroverseeing the construction and installation of the Designated IntersectionApproaclies and the impletnentation the Photo Combined Red Light and SpeedEnforcement Program, and who sltall have the power and authority to makemanagement decisions relating to Redflex's obligations ptrsuant to thisAgreenient, including but not limited to change-order autliorizations.

1.24. "Combined Redflex Photo Red Liuht & Speed Fixed S stem- rneans.collectkely, the SmartCamrM System, the SmartOpsTM System. the RedlightPhoto L-nforcement and Speed Enforcement Prouram. and all of the other

equipment, applications, back office processes and digital red light trafficenforcement cameras, sensors, components, products, software and other tangibleand intangible property relating thereto.

1.25. "Combined Photo Red Light & Speed Enforcement Program" means theprocess by which the monitoring, identification and enforcement of Violations isfacilitated by the use of certain equipment, applications and back office processesof Redflex, including but not linilted to cameras, flashes, central processing units,signal controller interfaces and detectors (whether loop, radar or video loop)which, collectively, are capable of ineasuring Violations and recording suchViolation data in the form of photograpliic images of motor vehicles.

1.26. "Photo Redlight Violation Criteria" means the standards and criteria bywhich Potential Violations will be evaluated by sworn police officers of theCustomer, which standards and critetia shall include, but are not limited to, theduration of time that a traffic light must remain red prior to a Violation beingdeemed to have occurred, and the location(s) in an intersection which a motorvehicle must pass during a red light signal prior to being deemed to havecommitted a Violation, all of which shall be in compliance with all applicablelaws, rules and regulations of Governmental Authorities.

1.27. "Redflex Photo Speed S stem" means, collectively, the SmartCamTMSystem, the SmartOpsTM System, the Photo Speed Enforcement Program, and allof the other equipment, applications, back office processes and digital speedtraffic enforcement cameras, radar units, components, products, software andotlier tangible and intangible property relating thereto.

1.28. "Photo Speed Enforcement Prograrn" means the process by which themonitoring, identification and enforcement of Violations is facilitated by the useof certain equipment, applications and back office processes of Redflex,including but not limited to cameras, flashes, central processing units, interfacesand detectors which, collectively, are capable of ineasuring Violations andrecording such Violation data in the foim of photographic images of motor

velucles.1.29. "Photo Speed Violation Criteria" means the standards and criteria by

which Potential Violations will be evaluated by sworn police officers of theCustomer, which standards and criteria sliall include. but are not limited to. thevehicle speed, the location(s) in which a motor veliicle must exceed posted speedlimits prior to being deented to have committed a Violation, all of whicli shall bein compliance with all applicable laws. rules and regulations of Goveinn-ientalAuthorities.

1.30. "SmartCamTM System" means the proprietary digital speed and redlightphoto enforcement system of Redflex relating to the Photo Speed and Red LightEnforcement Program.

1.31. '-SmartOpsT"' System' means the proprielary back-office processes ofRedf]ex relating to the Photo Speed and Red Light Enforcement Progrant.

1,32. ''SmartSceneTM SyStem" means the proprietary digital video camera unit,ltardware and software required for providing supplen ental violation data.

1.33. "Traffic Signal Controller Boxes" means the signal controller interfaceand detector, including but not limited to the radar or video loop, as the case maybe.

1.34. "Violation" means any traffic violation contrary to the temts of the TrafficCode or any applicable rule, regulatlon or law of any other GovernmentalAuthority, including but not limited to operating a motor vehicle contrary totraffic signals, and operating a motor vehicle without displaying a valid license

plate or registration.1.35. "Violations bata" means the images and other Violations data gathered by

the Redflex System at the Designated City Streets andlor Intersection

Approaches.

2. TERM. The tenn of this Agreement shall conmience as of the date hereof and shallcontinue for a period of five (5) years after the Installation Date (tlre "Initial Term").The Customer shall have the right, but not the obligation, to extend the term of thisAgreement for up to two (2) additional consecutive and automatic one (1) yearperiods following the expiration of the Initial Term (each, a "Renewal Term" andcollectively with the Initial Term, the "Term"). The Customer may exercise the rightto extend the temi of this Agreement for a Renewal Term by providing written noticeto Redflex not less than thirty (30) days prior to the last day of the Initial Term or theRenewal Term, as the case may be.

3. SERVICES. Redflex shall provide the Photo Red Light and Speed EnforcementProgram and the Photo Speed Enfol•cement Program to the Customer, in each case inaccordance with the terms and provisions set forth in this Agreement.I.I. INSTALLATION. With respect to the construction and installation of (1) the

Designated Intersection Approaches and the installation of the Redflex System atsuch Designated Intersection Approaches and (2) installation of the RedflexPhoto Speed System in Designated Vehicles, the Customer and Redflex shallhave the respective rights and obligations set forth on Exhibit B attached hereto.

3.2. MAINTENANCE. With respect to the maintenance of the Redflex System at (1)the Designated Intersection Approaches and (2) in Designated Vehicles, theCustomer and Redflex shall have the respective rights and obligations set forthon Exhibit C attached hereto.

3.3. VIOLATION PROCESSING. During the Operational Period, Violations shall

be processed as follows:3.3.1. All Violations Data shall be stored on the Redflex System:3.3.2. The Redflex System shall process Violations Data gathered from the

Designated Intersection Approaches and Designated Vehicles into a formatcapable of review by the Authorized Offcer via the Redflex System;

3.3.3. The Redflex System shall be accessible by the Autliorized Ofticer througha virtual private network in ennypted format by use of a confidentialpass word on any computer equipped with a high-speed internet connection

and a web browser:3.3.4. Redflex shall provide the Authorized Officer with access to the Redflex

Systeni for tlte purposes of reviewing tlte pre-processed Violations Data

within five (5) days of the gathering of the Violation Data from theapplicable Designated Intersection Approaches and Designated Vehicles

3.3.5. The Customer shall cause the Authorized Officer to review the ViolationsData and to detennine whether a citation shall be issued with respect to eachPotential Violation captured within such Violation Data, and transmit eachsuch determination in the form of an Electronic Signature to Redflex usingthe software or other applications or procedures provided by Redflex on theRedflex System for such purpose, and REDFLEX HEREBYACKNOWLEDGES AND AGREES THAT THE DECISION TO ISSUE ACITATION SHALL BE THE SOLE, UNILATERAL AND EXCLUSIVEDECISION OF THE AUTHORIZED OFFICER AND SHALL BE MADEIN SUCH AUTHORIZED OFFICER'S SOLE DISCRETION (A"CITATION DECISION"), AND IN NO EVENT SHALL REDFLEXHAVE THE ABILITY OR AUTHORIZATION TO MAKE A CITATIONDECISION;

3.3.6, With respect to each Authorized Violation as determined by theAuthorized Officer, Redflex shall print and mail a Citation within six (6)days after Redflex's receipt of such authorization; provided, however, duringthe Warning Period as defined by local ordinance of the Customer, warningviolation notices shall be issued in respect to all Authorized Violations.

3.3.7. Redflex has developed and will maintain a system for the collection,accounting and reporting of all citation payments made as a result of thephoto enforcement program. At any time and during normal business hours,the Customer shall be entitled to inspect, review and copy such accountingand reporting documents maintained by Redflex at a location chosen by theCustomer. Redflex shall also forward to the Customer its entitled portion ofthe fines collected, minus any contractual subtractions, under this agreementat the end of each month in which the fines were collected.

3.3.8. Redflex shall provide a toll-free telephone nu nber for the purposes ofanswering citizen inquiries and schedule viewing of Violations with theAuthorized Officer or Customer, on behalf of the recipient of the citation.

3.3.9. Redflex shall pennit the Authorized Officer to generate nionthly reportsusing the Redflex Standard Repot-t System.

33.10. Upon Redflex's receipt of a written request from the Customer and inaddition to the Standard Reports, Redflex shall provide, witliout cost to theCustomer, reports regarding the processing and issuance of Citations. themaintenance and dowzitime records of the Designated IntersectionApproaches and the functionality of the Redflex System with respect theretoto the Customer in such format and for such periods as the Customer n-iayreasonably request; provided, however, Redilex sliall not be obligated toprovide in excess of six (6) such reports in any given twelve (12) month

period without cost to the CustOmer;33.I 1. Upon the Customer's receipt of a written request fl'om Redflex, the

Customer shall provide, without cost to Redflex, reports regardin_ theprosecution of Citations and the collection of tines, fees and other monies inrespect thereof in such format and for such periods as Redflex may

reasonably request; provided, however. the Customer shall not be obligatedto provide in excess of six (6) such reports in any given twelve (12) monthperiod without cost to Redflex;

3.3.12. During the six (6) month period following the Installation Date as definedin Sections 1.12 or 1.13, whichever is applicable, andlor upon Redflex'sreceipt of a written request from the Customer at least ten (10) calendar daysin advance of court proceeding or adtninistrative hearing, Redflex shallprovide expert witnesses for use by the Customer in prosecuting Violations;provided, however, the Customer shall use reasonable best efforts to seekjudicial notice in lieu of requiring Redflex to provide such expert witnesses;and

3.3.13. During the three (3) month period following the Installation Date definedin Section 1.12 or 1.13, whiclrever is applicable, Redflex shall provide suchtraining to police personnel as shall be reasonably necessary in order toallow such personnel to act as expert witnesses on behalf of the Customerwith respect to the Photo Red Light & Speed Enforcentent Program or PhotoSpeed Enforcement Program.

3.4. PROSECUTION AND COLLECTION; COMPENSATION. The Customer shalldiligently prosecute Citations and the collection of all Fines as a result thereof.Redflex shall have the right to receive, and the Customer shall be obligated topay, the compensation set forth on Exhibit D attached hereto.

3.5. OTHER RIGHTS AND OBLIGATIONS. During the Tenn, in addition to all ofthe other rights and obligations set forth in this Agreement, Redflex and theCustomer shall have the respective rights and obligations set forth on Exhibit Eattached hereto.

3.6. CHANGE ORDERS. The Customer may from time to time request changes tothe work required to be performed or the addition of products or services to thoserequired pursuant to the terms of this Agreement by providing written noticethereof to Redflex, setting forth in reasonable detail the proposed changes (a"Change Order Notice"). Upon Redflex's receipt of a Change Order Notice,Redflex shall deliver a written statement describing the effect, if any, theproposed changes would have on the pricing tenns set forth in Exhibit D(the"Change Order Proposal"), which Change Order Proposal shall include (i) adetailed breakdown of the charge and schedule effects, (ii) a description of anyresulting changes to the specifications and obligations of the parties, (iii) aschedule for the delivery and other performance obligations, and (iv) any otherinformation relating to the proposed clianges reasonably requested by theCustomer. Following the Custonier's receipt of the Cliange Order Proposal, theparties shall negotiate in good faith and agree to a plan and schedule forimplementation of the proposed changes, the time, manner and amount ofpayment or price increases or decreases, as the case may be, and any othermatters relating to the proposed changes; provided, however, in the event thatany proposed change involves only the addition of equipment or services to theexisting Designated Intersection Approaches, Designated Vehicle, or theaddition of hltersection Approaches to be covered by the terms of thisAgreement. to the maxinnun extent applicable. the pricing terms set forth in

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Exhibit D shall govern. Any failure of the parties to reach agreement withrespect to any of the foregoing as a result of any proposed changes shall not bedeemed to be a breach of this Agreement, and any disagreement shall be resolvedin accordance with Section 10.

4. License• Reservation of Rights.4.l . License. Subject to the tem-is and conditions of this Agreement, Redflex hereby

grants the Customer, and the Customer hereby accepts from Redflex upon theterms and conditions herein specified, a non-exclusive, non-transferable licenseduring the Term of this Agreement to: (a) solely within the City of Chillicothe orits properties, access and use the Redflex Systetns for the sole purpose ofreviewing potential Violations and authorizing the issuance of Citations pursuantto the terms of this Agreetnent, and to print copies of any content posted on theRedflex System in connection therewith, (b) disclose to the public (includingoutside of the City of Chillicothe) that Redflex is providing services to theCustomer in connection with Photo Red Light and Speed Enforcement Programpursuant to the terms of this Agreement, and (c) use and display the RedflexMarks on or in marketing, public awareness or education, or other publications ormaterials relating to the Photo Red Light aud Speed Enforcement Program, solong as any and all such publications or materials are approved in advance byRedflex.

4.2. RESERVATION OF RIGHTS. The Customer hereby acknowledges and agreesthat: (a) Redflex is the sole and exclusive owner of the Redflex Systeni, theRedflex Marks, all Intellectual Property arising from or relating to the RedflexSystem, and any and all related Equipment, (b) the Customer neither has normakes any claim to any right, title or interest in any of the foregoing, except asspecifically granted or authorized under this Agreement, and (c) by reason of theexercise of any such rights or interests of Customer pursuant to this Agreement,the Customer shall gain no additional right, title or interest therein.

4.3. RESTRICTED USE. The Custonier hereby covenants and agrees that it shall notknowingly (a) make any inodifications to the Redf7ex Systeni, includiiag but notlimited to any Equipinent, (b) alter, remove or tamper with any Redflex Marks,(c) use any of the Redflex Marks in any way which ntight prejudice theirdistinctiveness, validity or the goodwill of Redflex therein, (d) use anytrademarks or other marks other than the Redflex Marks in coiuiection with theCustomer's use of the Redflex Systetn pursuant to the terms of this Agreementwitliout first obtaining the prior consent of Redflex. or (e) disassemble, de-conipile or otherwise perform any type of reverse engineering to the RedflexSystem, the Redflex System, including but not limited to any Equipment,Intellectual Property or Proprietai-y PropeiTy of Redflex, or cause any other

Person to do any of the foregoing.4.4. PROTECTION OF RIGHTS. Redflex shall Itave the rieht to take whatever

action it deems necessary or desirable to remedy or prevent the infringenient ofany Intellectual Property of Redflex. including Nvitliout limitation the filing ofapplications to i-egister as trademarks in anv jurisdiction any of the RedflexMarks, the filing of patent application for any of the Jntellectual Property ofRedflex. and malcing any other applications o' filings with appropriate

Governtnental Authorities. The Customer shall not take any action to rentedy orprevent such infringing activities, and shall not in its own name make anyregistrations or filings with respect to any of the Redflex Marks or theIntellectual Property of Redflex without the prior written consent of Redflex.

4.5. INFRINGEMENT. The Customer shall use its reasonable best efforts to giveRedflex prompt notice of any activities or threatened activities of any Person ofwhich it becomes aware that infringes or violates the Redflex Marks or any ofRedflex's Intellectual Property or that constitute a misappropriation of tradesecrets or act of unfair competition that might dilute, damage or destroy any ofthe Redflex Marks or any other Intellectual Property of Redflex. Redflex shallhave the exclusive right, but not the obligation, to take action to enforce suchrights and to make settlements with respect thereto. In the event that Redflexconunences any enforcement action against any Person other than Customer orits employees, officials or agents under this Section 4.5, then the Customer shallrender to Redflex such reasonable cooperation and assistance as is reasonablyrequested by Redflex, and Redflex shall be entitled to any damages or othermonetary amount that might be awarded after deduction of actual costs;provided, that Redflex shall reimburse the Customer for any reasonable costsincurred in providing such cooperation and assistance.

4.6. INFRINGING USE. The Customer sltall give Redflex prompt written notice ofany action or claim, whether threatened or pending, against the Customeralleging that the Redflex Marks, or any other Intellectual Property of Redflex,infringes or violates any patent, trademark, copyright, trade secret or otherIntellectual Property of any other Person, and the Customer sball render toRedflex such reasonable cooperation and assistance as is reasonably requested byRedflex in the defense tlaereof; provided that Redflex shall reimburse theCustomer for any reasonable costs incurred in providing such cooperation andassistance. If such a claim is ntade and Redflex deterntines, in the exercise of itssole discretion, that an infringement niay exist, Redflex shall have the right, butnot the obligation, to procure for the Custonier the right to keep using theallegedly infi•inging itetns, modify them to avoid the alleged infringement orreplace theni with non-infringing items.

5. Representations and Warranties.5.1. Redflex Representations and Warranties.

5.1.1. Authority. Redflex liereby warrants and represents that it has all right,power and authority to execute and deliver this Agreement aud perfonn its

obligations hereunder.5.1.2. Professional Setvices. Redflex hereby wan-ants and represents that any

and all services provided by Redflex pursuant to this Aereement shall beperformed in a professional and workmanlike mamter and, witlt respect tothe installation of the Redflex System, subject to applicable law. incompliance witlt all specifications provided to Redflex by the Customer.

5.2. Customer Representations and Warranties.5.2.1. Autltority. The Customer hereby warrants and represents that it has all

rigltt, power and authority to execute and deliver this Agreement andpej form its oblioations hereunder.

5.2.2. Professional Services. The Customer hereby warrants and represents thatany and all services provided by the Custonier pursuant to this Agreementshall be performed in a professional and workrnanlike manner.

5.3. LIMITED WARRANTIES. THE CUSTOMER HEREBY ACKNOWLEDGESTHAT THE REDFLEX SYSTEM MAY MALFUNCTION FROM TIME TOTIME, AND SUBJECT TO THE TERMS OF THIS AGREEMENT, REDFLEXSHALL DILIGENTLY ENDEAVOR TO CORRECT ANY SUCHMALFTJNCTION IN A TIMELY MANNER.

6. Termination.6.1. TERMINA'I'iON FOR CAUSE: Either party shall have the right to tersninate

this Agreement immediately by written notice to the other if (i) state statutes areainended to prohibit or substantially change the operation of photo speed andphoto red light enforcement systems; (ii) any court having jurisdiction over Cityordinances, or Ohio or federal statute declares, that results from the RedflexSystem of Photo Red Light and Speed Enforcement are inadmissible in evidence;or (iii) the other party commits any material breach of any of the provisions ofthis Agreement which breach is not remedied within forty-five (45) calendar days(or within such other time period as the Customer and Redflex shall mutuallyagree, which agreement shall not be unreasonably withheld or delayed) afterwritten notice from the non-breaching party setting forth in reasonable detail theevents which caused the breach.

6.2. The rights to terminate this Agreement given in this Section 6.1 shall be withoutprejudice to any other right or remedy of either party in respect of the breachconcerned (if any) or any other breach of this Agreement.

6.3. PROCEDURES UPON TERMINATION. The tennination of this Agreementshall not relieve either party of any liability that accrued prior to suchtemtination. Except as set forth in Section 6.3, upon the termination of thisAgreetnent, all of the provisions of this Agreement shall tenninate and:

6.3.1. Redflex shall (i) immediately cease to provide services, including but notlimited to work in connection with the construction or installation activitiesand services in coimection witli the Photo Red Light & Speed EnforcementProgram, (ii) promptly deliver to the Customer any and all ProprietaryProperty of the Customer provided to Redflex pursuant to this Agreement(iii) promptly deliver a final report to the Customer regarding the collectionof data and the issuance of Citations in such fonnat and for such periods asthe Customer may reasonably request, and which final report Redflex shallupdate or supplement from time to time when and if additional data orinformation becomes available, (iv) promptly deliver to Customer a finalinvoice statinv all fees and charges properly owed by Custoiner to Redflexfor work perfornied and Citations issued by Redflex prior to the termis-lation,and (v) provide such assistance as the Customer may reasonably requestfrom time to time in connection with prosecutine and enforcing Citations ortraFtic citations issued prior to the terntination of this Agreement.

6.3.2. The Customer shall (i) immediately cease using the Photo Speed and)orPhoto Red Light Enforcement Program, accessing the Redflex System andusing any other Intellectual Property of Redflex, (ii) promptly deliver toRedflex auy and all Proprietary Property of Redflex provided to theCustomer pursuant to this Agreement, and (iii) promptly pay any and allfees, charges and amounts properly owed by Customer to Redflex for workperformed and Citations issued by Redflex prior to the termination.

6.3.3. Unless the Customer and Redflex have agreed to enter into a newagreement relating to the Photo Red Light and Speed Enforcement Programor have agreed to extend the Term of this Agreement, Redflex shall removeany and all Equipment or other materials of Redflex installed in connectionwith Redflex's performance of its obligations under this Agreement,including but not limited to housings, poles, camera systems, and DesignatedVehicles and Redflex shall restore the Designated Intersection Approachesto substantially the same condition such Designated Interseotion Approacheswere in immediately prior to this Agreement.

6.4. SURVIVAL. Notwithstanding the foregoing, the definitions and each of thefollowing shall survive the termination of this Agreement: (a) Sections 4.2(Reservation of Rights), 5.1 (Redflex Representations and Warranties), 5.2(Customer Representations and Warranties), 5.3 (Limited Warranty), 7(Confidentiality), 8(Indemnification and Liability), 9 (Notices), 10 (DisputeResolution), 11.1 (Assigmnent), 11.17 (Applicable Law), 11.16 (InjunctiveRelief; Specific Performance) and 11.18 (Jurisdiction and Venue), and (b) thoseprovisions, and the rights and obligations therein, set forth in this Agreementwltich either by their terms state, or evidence the intent of the parties, that theprovisions survive the expiration or termination of the Agreenient, or nluststtrvive to give effect to the provisions of this Agreenient.

7. CONF'IDENTIALITY. During the tenn of this Agreement and for a period of three(3) years thereafter, neither party shall disclose to any tliird person, or use for itself inany way for pecuniary gain, any Confidential Information learned frotn the otherparty during the course of the negotiations for this Agreement or during the Term ofthis Agreenient. Upon temiination of this Agreenient, each party shall return to theother all tangible Confidential Information of such party. Each party shall retain inconfidence and not disclose to any third party any Confidential Infortnation withoutthe other patty`s express written consent, except (a) to its employees who arereasonably required to have the Confidential Infomiation. (b) to its agents,representatives, attorneys and other professional advisors that have a need to kuowsuch Confidential Inforn-tation, provided that such parties undertake in writing (or areotherwise bound by rules of professional conduct) to keep such information strictlycontidential, and (c) pursuant to, atid to the extent of, a request or ordet- by anyGovernmental Autliority, including laws relating to public records.

8. Indemnification and Liability.8.1. Indemnification by Redflex. Subject to Section 8.3. Redflex hereby agrees to

delend and indemnify the Custome- and its affiliates, shareholders or otherinterest liolders, managers, elected oFficials, officers. directors, employees.

a.gents, representatives and successors, permitted assignees and each of their

affiliates, and all persons acting by, through, under or in concert with thetn, orany of them (individually a "Customer Party" and collectively, the "CustomerParties") against, and to protect, save and keep hannless the Customer Partiesfrom, and to pay on behalf of or reimburse the Custonter Parties as and whenincurred for, any and all liabilities, obligations, losses, damages, penalties,demands, claims, actions, suits, judgments, settlements, costs, expenses anddisbursements (including but not limited to reasonable attorneys', accountants'and expert witnesses' fees) of whatever kind and nature (collectively, "Losses"),which may be imposed on or incurred by any Customer Party arising out of orrelated to (a) any material misrepresentation, inaccuracy or breach of anycovenant, warranty or representation of Redflex contained in this Agreement, or(b) the willful or negligent misconduct of Redflex, its employees, shareholders,officers, assignees, or agents which result in death or bodily injury to any naturalperson (including third parties) or any dantage to any real or tangible personalproperty of any Person (including the personal property of third parties), exceptto the extent caused by the willful misconduct of any Customer Party.

8.2. Indemnification by Customer. Subject to Section 8.3, the Customer liereby agreesto defend and indemnify Redflex and its affiliates, shareholders or other interestholders, managers, officers, directors, employees, agents, representatives andsuccessors, peimitted assignees and all persons acting by, through, under or inconcert witb them, or any of them (individually a "Redflex Party" andcollectively, the "Redflex Parties") against, and to protect, save and keephamtless the Redflex Parties from, atid to pay on behalf of or reimburse theRedflex Parties as and when incurred for, any and all Losses which may beimposed on or incurred by any Redflex Party arising out of or in any way relatedto (a) any material misrepresentation, inaccuracy or breach of any covenant,waazranty or representation of the Customer contained in this Agreement, (b) thewillful misconduct of the Custorner, its employees, Redflexs contractors oragents whiclt result in death or bodily injury to any natural person (includingthird parties) or any damage to any reat or tangible personal property of anyPerson (including the personal property of third parties), except to the extentcaused by the willful txiisconduct of any Redflex Party, or (c) any claim, action ordemand not caused by Redflex's failure to perforni its obligations under thisAgreement.

8.3. lndemnification Procedures. In the event any clainr, action or demand (a"Claitn°) in respect of which any party hereto seeks indemnification from theother, the party seeking indemnification (the "Indemnifled Pai-ty") shall give theparty 6om whom indenviification is sought (the "Indemnifying Party") writtennotice of such Claim promptly after the Indemnified Party first becoines awarethereof; provided, however. that failure so to give such notice shall not precludeindemnification witli respect to such Claim except to the extent of any additionalor inereased Losses orother actual prejudice directly caused by such failure. TheIndemnifying Party shall have the right to clioose counsel to defend such Claim(subject to the approval of such counsel by the h demnified Party. whichapproval sliall not be unreasonably withheld, conditioned or delayed). and tocontrol. coinpromise and settle sucli Claim, and the Indentnitied Party shall have

1.;,,r :

the right to participate in the defense at its sole expense; provided, however, theIndemnified Party shall have the right to take over the control of the defense orsettlement of such Claim at any time if the Indemnified Party irrevocably waivesall rights to indeinnification from and by the Indemnifying Party. TheIndemnifying Party and the Indenuiified Par[y shall cooperate in the defense orsettlement of any Claim, and no party shall have the right enter into anysettlement agreemeut that materially affects the other party's material rights ormaterial interests without sucb party's prior written consertt, which consent willnot be unreasonably withheld or delayed.

8.4. LIMITED LIABILITY. Notwithstanding anything to the contrary in thisAgreement, neither party shall be liable to the otber, by reason of anyrepresentation or express or implied warranty, condition or other term or any dutyat conmion or civil law, for any indirect, incidental, special, lost profits orconsequential damages, however caused and on any theory of liability arising outof or relating to this Agreement.

9. NOTICES. Any notices to be given hereunder shall be in writing, and shall bedeemed to have been given (a) upon delivery, if delivered by hand, (b) three (3) daysafter being mailed first class, certified mail, return receipt requested, postage andregistry fees prepaid, or (c) one Business Day after being delivered to a reputableovetnight courier service, excluding the U.S. Postal Service, prepaid, marked for nextday delivery, if the courier service obtains a signature acknowledging receipt, in eachcase addressed or sent to such party as follows:9.1. Notices to Redflex:

Redflex Traffic Systems, Inc.15020 North 741h StreetScottsdale, AZ 85260Attention: Ms. Karen FinleyFacsimile: (480) 607-0752

9.2. Notices to the Customer:City of Chillicothe OhioAttention: Safety/Setvice Director35 Soutll Paint StreetChillicotlte, Ohio 45601Facsimile: 740-773-8004

With a copy to:

City of ChillicotlieAttention: City Law Director20 East Second StreetChillicothe. Ohio 45601Facsimile: 740-773-6081

10. DISPUTE RESOLUTION. Upon the occurrence of any dispute or disagreeroentbetween the parties hereto arising out of or in connection witli any term or provisionof this Agreement. the subject matter liereof, or the interpretation or enforcement

^^i<d,1,

hereof (the "Dispute"), the parties shall engage in infonnal, good faith discussionsand attentpt to resolve the Dispute. In connection therewith, upon written notice ofeither party, each of the parties will appoint a designated officer whose task it shall beto tneet for the purpose of attempting to resolve such Dispute. The designatedofficers shall meet as often as the parties shall deent to be reasonably necessary. Suchofficers will discuss the Dispute. If the parlies are unable to resolve the Dispute inaccordance with this Section 10, and in the event that either of the parties concludesin good faith that amicable resolution through continued negotiation with respect tothe Dispute is not reasonably likely, then the parties may mutually agree to submit tobinding or nonbinding arbitration or mediation.

11. Miscellaneous.11.1. Assignment. Neither party tnay assign all or any portion of this

Agreement without the prior written consent of the other, which consent shall notbe unreasonably withheld or delayed; provided, however, The Custoiner herebyacknowledges and agrees that the execution (as outlined in Exhibit F), deliveryand perfonnance of Redflex's rights pursuant to this Agreement shall require asignificant investment by Redflex, and that in order to finance such investment,Redflex may be required to enter into certain agreements or arrangements("Financing Transactions") with equipment lessors, banks, financial institutionsor other similar persons or entities (each, a "Financial htstitution" andcollectively, "Financial Institutions"). The Customer hereby agrees that Redflexshall have the right to assign, pledge, hypothecate or otherwise transfer("Transfer") its rights, or any of them, under this Agreement to any FinancialInstitution in connection with any Financing Transaction between Redflex andany such Financial Institution, subject to the Customer's prior written approval,which approval shall not be unreasonably withheld or delayed. The Customerfurther acknowledges and agrees that in the event that Redflex provides writtennotice to the Customer that it intends to Transfer all or any of Redflex's rightspursuant to this Agreement, and in the event that the Customer fails to providesuch approval or fails to object to such Transfer witltin forty-five (45) businessdays after its receipt of such notice from Redflex, for the purposes of thisAgreement, the Customer shall be deemed to have consented to and approvedsuch Transfer by Redflex. Notwithstanding the above, this Agreement shallinure to the benefit of, and be binding upon, the parties hereto, and their

respective successors or assigns.11.2. RELATIONSHIP BETWEEN REDFLEX AND THE CUSTOMER.

Nothing in this Agreement shall create, or be deemed to create, a partnership.joint venture or the relationship of principa) and agent or employer and employeebetween the parties. The relationship between the parties shall be that ofindependent contractors, and nothing contained in this Agreement shall create therelationsltip of principal and agent or othetwise perinit either party to incur anydebts or liabilities or obligations on behalf of the otlier pa -ty (except as specifically

providecl herein).1 1.3. AUDIT RIGHTS. Each of parties hereto shall ltave the eight to auclit the

books and records of the other party hereto (the "Audited Party") solely for theptirpose of verifyino the payntents. if any. payable pursuant to this Agreement.

Atry such audit shall be conducted upon not less than forty-eight (48) hours' priornotice to the Audited Party, at nlutuall.y convenient tinzes and during the AuditedParty's normal business hours. Except as otherwise provided in this Agreement,the cost of any such audit shall be bome by the non-Audited Party. In the eventany such audit establishes any underpayment of any payment payable by theAudited Party to the non-Audited Party pursuant to this Agreement, the AuditedParty shall promptly pay the amount of the shortfall, and in the event that anysuch audit establishes that the Audited Party has underpaid any payment by morethan twenty five percent (25%) of the amount of actually owing, the cost of suchaudit shall be borne by the Audited Party. In the event any such audit establishesany overpayment by the Audited Party of any payment naade pursuant to thisAgreement, non-Audited Party shall promptly refimd to the Audited Party theamount of the excess.

11.4. FORCE MAJEURE. Neither party will be liable to the other or bedeetned to be in breach of this Agreement for any failure or delay in renderingperformance arising out of causes beyond its reasonable control and without itsfault or negligence. Such causes may include but are not limited to, acts of Godor the public enemy, terrorism, significant fires, floods, earthquakes, epidemics,quarantine restrictions, strikes, freight embargoes, or Governmental Authoritiesapproval delays which are not caused by any act or omission by Redflex, andunusually severe weather. The party whose performance is affected agrees tonotify the other promptly of the existence aud nature of any delay.

11.5. ENTIRE AGREEMENT. This Agreement represents the entireAgreement between the parties, and there are no other agreernents (otber thaninvoices and purchase orders), whetber written or oral, which affect its tertns.This Agreement may be amended only by a subsequent written agreement signed

by both parties.11.6. SEVERABILITY. If any provision of this Agreement is held by any court

or other conipetent authority to be void or unenforceable in whole or part, thisAgreement shall continue to be valid as to the other provisions thereof and theremainder of the affected provision.

11.7. WAIVER. Any waiver by either pat4y of a breach of any provision of thisAgreement shall not be considered as a waiver of any subsequent breach of thesame or any other provision thereof.

11.8. CONSTRUCTION EXCEPT as expressly otltetwise provided in thisAgreement, this Agreement shall be co3tstrued as having been fully andcompletely negotiated and neither the Agreement nor any provision thereof shallbe construed more strictly against either party.

11.9. HEADINGS. The headings of the sections contained in this Agreementare included herein for reference purposes only, solely for the convenience of theparties hereto, and shall not in any way be deenied to affect the meaning_intet-pretation or applicability of this Agreement or any term, condition orprovision hereof.

11.10. EXECUTION AND COUNTERPARTS. This Agreement mav beexecuted in any nurnber of counterparts; eacli of Nadticlt when so executed anddelivered siiall be deemed au original, and such counterparts together shall

constitute only one instrument. Any one of such counterparts shall be sufficientfor the purpose of proving the existence and terms of this Agreement, and noparty shall be required to produce an original or all of such counterparts inmaking such proof.

11.11. COVENANT OF FURTHER ASSURANCES. All parties to thisAgreement shall, upon request, perform any and all acts and execute and deliverany and all certificates, instruments and other documents that may be necessaryor appropriate to carry out any of the tet-ms, conditions and provisions hereof orto carry out the intent of tltis Agreement.

11.12. REMEDIES CUMULATIVE. Each and all of the several rights andremedies provided for in this Agreement shall be construed as being cumulativeand no one of them shall be deemed to be exclusive of the others or of any rightor remedy allowed by law or equity, and pursuit of any one remedy shall not bedeemed to be an election of such remedy, or a waiver of any other remedy.

11.13. BINDING EFFECT. This Agreement shall inure to the benefit of and bebinding upon all of the parties hereto and their respective executors,administrators, successors and permitted assigns.

11.14. COMPLIANCE WITH LAWS. Nothing contained in this Agreementshall be construed to require the commission of any act contrary to law, andwhenever there is a conflict between any term, condition or provision of thisAgreetnent and any present or future statute, law, ordinance or regulationcontr-ary to which the parties have no legal right to contract, the latter shallprevail, but in such event the term, condition or provision of this Agreementaffected shall be curtailed and limited only to the extent necessary to bring itwithin the requirement of the law, provided that such construction is consistentwith the intent of the Parties as expressed in this Agreemetit. Redflex, in theexecution of duties and obligations under this Agreement, agrees to comply withall applicable federal, state and local laws, rules, regulations and ordinances.

11.15. NO THIRD PARTY BENEFIT. Nothing contained in this Agreernentshall be deemed to confer any right or benefit on any Person who is not a party tothis Agreement.

11.16. INJUNCTIVE RELIEF; SPECIFIC PERFORMANCE. The partieshereby agree aud acknowledge that a breach of Sections 4.1 (License), 4.3(Restricted Use) or 7 (Confidentiality) of this Agreement would result in severeand irreparable injury to the other party, which injury could not be adequatelycotnpensated by an award of ntoney damages, and the parties therefore agree andacknowledge that they shall be entitled to injunctive relief in the event of anybreach of any material term, condition or provision of this Agreement, or toenjoin or prevent such a breach, including without limit.ation an action forspecific performance hereof.

11.17. APPLICABLE LAW. This Agreement shall be governed by andconstrued in all respects solely in accordance witli the laws of the State of Ohio,United States.

11.15. JURISDICTION AND VENUE. Anv disptde arisinQ out of or inconnection witli this Ag-eemeit shall be submitted to the exclusive jurisdiction

and venue of the courts located in the County of Ross, Ohio and both partiesspecifically agree to be bound by the jurisdiction and venue thereof.

11.19. CAMPAIGN FINANCE COMPLIANCE. Redflex hereby certifies that allapplicable parties listed in division (I)(3) or (1)(3) of Ohio Revised Code Section3517.13 are in full compliance witli divisions (I)(I) and (J)(1) of Ohio RevisedCode Section 3517.13.

11,20. OHIO ANTI-TERRORISM ACT COMPLIANCE. Redflex represents andwarrants that it has not provided any material assistance, as that term is defined inO.R.C. Section 2909.33(C), to an organization that is identified by, and included on, tlieUnited States Department of State Terrorist Exclusion List and that it has truthfullyanswered "no" to every question on the "Declaration Regarding MaterialAssistanca/Non-assistance to a Terrorist Organization ("DMA")." Redflex furtherrepresents and warrants that it has registered with the Ohio Business Gateway ("OBG")to file for DMA pre-certification and has provided or shall provide its DMA to theCustomer prior to execution of this Agreement. If these representations and warrantiesare found to be false, the Agreement is void and Redflex shall immediately repay to theCustonier any funds paid under tltis Contract.

11.21. NON-DISCRIMINATION OF EMPLOYMENT.11.21.1. Pursuant to O.R.C. Section 125.111, Redflex agrees that Redflex,

any subcontractor of Redflex, and any person acting on behalf of Redflex ora subcontractor of Redflex, shall not discriminate, by reason of race, color,religion, sex, age, national origin, or disability against any citizen of thisstate in the employment of any person qualified and available to perform thework under this Agreement.

11.21.2. Redflex further agrees that Redflex, any subcontractor of Redflex,and any person acting on behalf of Redflex or a subcontractor of Redflexshall not, in any manner, discriminate against, intirnidate, or retaliate againstany eniployee bired for the performance of work under this Agreement onaccount of race, color, religion, sex, ag(^, national origin, or disability.

11.21.3. Redflex represents that it has a written affinnative action programfor the employment and effective utilization of economically disadvantagedpersons and shall file a description of the affitmative action program and aprogress report on its implementation with the equal employtnentopportunity office of the Department of Administrative Services.

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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the dayand year first set forth above.

"Customer"

CITY OF Chillicothe

By:

Mayor

"Redflex"

REDFLEX TRAFFIC SYSTEMS, INC.,a Delaware corporation

By:Name:Title:

APPROVED AS TO CONTENT:

By:

City Attomey

EXHIBIT "A"Designated Areas of Enforcement

The Agreement is for the delivery and deployment of one mobile speed enforcement van.Citywide photo enforcement by this mobile van will be based upon mutual agreementbetween Redf7ex and the Customer as warranted by cotnmunity safety and traffic needs.

The Agreement also includes red light and Speed-On-Green enforcement at no less than5 intersections unless otherwise agreed to in writing by the parties. These locations are tobe considered and based on accident history and dangerous violations observed.Identification of enforced intersection will be based on mutual agreement betweenRedflex and the City as warranted by coxnmuuity safety and traffic needs.

EXHIBIT "B"Construction and Installation Obligations

Timeframe for Installation: Combined Fixed Photo Red Light & Speed SystetnRedflex will have each specified intersection installed azd activated in phases inaccordance with an implementation plan to be mutually agreed to by Redflex TrafficSystems and the Customer.

Redflex will use reasonable commercial efforts to install the system in accordance withthe schedule set forth in the implernentation plan that will be formalized upon projectconunencement.

Redflex will use reasonable comtnercial efforts to install and activate the first specifiedintersection within the first sixty (60) days subsequent to formal project kick-off. TheCustomer agrees that the estimated timeframe for installation and activation are subject toconditions beyond the control of Redflex and are not guaranteed.

In order to provide the client vvith timely completion of the photo enforcenient projectRedflex Traffic Systems requires that the city assist with providing timely approval ofCity permit requests. The City acknowledges the importance of the safety prograrn andundertakes that in order to keep the project on schedule the Customer is to provide cityengineers review of Reflex permit requests and all documentation within a five businessdays. Reflex will also review and correct if necessary any redlines with in five businessdays. Permits need to be received within seven business days of first subniittal in orderto implement the program in a timely maiuter.

1. Redflex Obligations. Redflex shall do or cause to be done each of the following (ineach case, unless otherwise stated below, at Redflex's sole expense):1.1. Appoint the Redflex Project Manager and a project implementation team

consisting of between one (1) and four (4) people to assist the Redflex ProjectManager;

1.2. Request current "as-built" electronic engineeting drawings for the DesignatedIntersection Approaehes (the "Drawings") from the city traffic engineer;

1.3. Develop and submit to the Customer for approval construction and installationspecifications in reasonable detail for the Designated Intersection Approaches,including but not limited to specifications for all radar sensors, pavement loops,electrical coauiections and traffic controller comiections, as required; and

1.4. Seek approval froni the relevant Governmental Authorities having authority orjurisdiction over the construction and installation specifications for theDesignated Intersection Approaches (collectively, the "Approvals"), which willinclude compliance with City permit applications.

1.5. Fiualize the acquisition of the Approvals;1.6. Submit to the Cttstomer a public awareness strategy for the Customer's

consideration and approval, wAiich strate_y shall include media and educationalmaterials for the Customer's approval or amendment (the "Awareness Strategy");

1.7. Develop the Redlight/Speed Violation Criteria in consultation with the Customei;

i^

1.8. Develop the Eiiforcement Documentation for approval by the Customer, whicliapproval shall not be unreasonably witlilield;

1.9. Complete the installation and testing of all necessary Equipment, includinghardware and software, at the Designated Intersection Approaches (under thesupervision of the Customer);

1.10. Cause an electrical sub-contractor to complete all reasonably necessaryelectrical work at the Designated Intersection Approaches, including but notlimited to the installation of all related Equipment and other detection sensors,poles, cabling, telecomtnunications equipment and wiring, which work shall beperformed in compliance with all applicable local, state and federal laws andregulations;

1.11. Install and test the fiuictionality of the Designated Intersection Approacheswith the Redflex Systeni and establish fully operational Violation processingcapability with the Redflex System;

1.12. Implement the use of the Redflex System at each of the DesignatedIntersection Approaches;

1.13. Deliver the Equipment and Materials to the Customer; and1.14. Issue Citations for Authorized Violations;1.15. Redflex shall provide training (i) for up to fifteen (15) personnel of the

Customer, including but not limited to the persons who Customer shall appoint asAuthorized Officers and other persons involved in the administration of thePhoto Red Light and Speed Enforcement Program, (ii) for at least sixteen (16)hours in the aggregate, (iii) regarding the operation of the Redflex System andthe Redlight Photo Enforcenient Program, which training shall include trainingwith respect to the Redflex System and its operations, strategies for presentingViolations Data in court and judicial proceedings and a review of theEnforcement Documentation;

1.16. Interact with court and judicial personnel to address issues regarding theimplementation of the Redflex System, the development of a subpoenaprocessing tinieline that will permit the offering of Violations Data in couit andjudicial proceedings, the establishment of a court hearing schedule foradjudicating upon Citations, and coordination between Redflex, the Customerand juvenile court persoiuiel; and

1.17. P'rovide reasonable public relations resources and media materials to theCustomer in the event that the Customer elects to conduct a public launch of the

Redlight Photo Enforcenient Program.1.18. Citation processing and citation re-issuance

2. CUSTOMER OBLIGATIONS. The Customer shall do or cause to be done each ofthe following (in each case, unless otherwise stated below, at Customer's soleexpense):

2.1.1. Appoint the Police Prqfect Manager; Provide an Administrative HearingOfficer to preside over Appeals Heai-ing for the City.

2.1.2. Assist Redflex in obtainina the Drawings from the relevant GovernmentalAutliorities:

2.1.3. Notify Redflex of any specific requirements relating to the constructionand installation of any Intersection Approaches or the implementation of theRedlight Photo Enforcement Program;

2.1.4. Provide assistance to Redflex in obtaining access to the records data of theDepartment of Motor Vehicles in Redflex's capacity as an independentcontractor to the Customer; and

2.1.5. Assist Redflex in seeking the Approvals2.1.6. Provide reasonable access to the Customer's properties and facilities in

order to permit Redflex to install and test the functionality of the DesignatedIntersection Approaches and the Redlight Photo Enforcement Program;

2.1.7. Provide reasonable access to the persotmel of the Custoiner and reasonableinforntation about the specific operational requirements of such persoiuielfor the purposes of performing training;

2.1.8. Seek approval or amendment of Awareness Strategy and provide writtennotice to Redflex with respect to the quantity of tnedia and programmaterials (the "Materials") that the Customer will require in order toimplement the Awareness Strategy during the period commencing on thedate on which Redflex begins the installation of any of the DesignatedIntersection Approaches and ending one (1) month after the InstallationDate;

2.1.9. Assist Redflex in developing the Redlight Violation Criteria; and2.1.10. Seek approval of the Enforcement Docuntentation.

Mobile Photo Speed System

Redflex shall, upon mutual agreement with the City, provide a fully equipped vehicle formobile photo speed enforcement. The vehicle shall comply with all applicable Ohio lawsincluding those with respect to law enforcement vehicles.

Redflex will acquire and equip the vehicle within one hundred days of the effective dateof the Agreenient...

1. Redflex Obligations.

a. Supply a fully equipped vehicle for mobile photo speed enforcement.b. Provide teclmical support for all SmartOps systems and Redflex

supplied equipment in the vehicle.c. ]mage viewing and processing.

2. Cit), Obligations.

a. Coordinate a vehicle deployment strateg;F«'ith Redflex to maximizeeducation. awareness and speed N iolation reduction.

b. Deploy the vehicle at a minimunt of fifty (50) hours per month duringthe first six months of its availability, and deploy the vehicle onehundred (100) hours per month thereafter.

c. Provide Administrative Hearing Officer for any appeals.d. Support customary fine collection.

EXI-IIBIT "C"

Maintenance

1. All repair and maintenance of Photo Speed and Plioto Red Light Enforcemeiitsysterns and related equipment will be the sole responsibility of Redflex, includingbut not limited to maintaining the casings of the cameras included in the RedflexSystem and all other Equipment in reasonably clean and graffiti-free condition.

2. Redflex shall not open the Traffic Signal Controller Boxes without a representative ofcity Traffic Engineering present.

3. The provision of all necessary communication, broadband and telephone services tothe Designated Intersection Approaches will be the sole responsibility of Redflex.

4. The provision of all necessary electrical services to the Designated IntersectionApproaches will be the sole responsibility of the Customer.

5. In the event that images of a quality suitable for the Authorized Officer to identifyViolations cannot be reasonably obtained without the use of flash units, Redflex shallprovide and install such flash units.

6. The Redflex Project Manager (or a reasonable alternate) shall be available to thePolice Project Manager each day, on a reasonable best efforts basis.

7. Redflex shall insure and license the Mobile Speed Van during the life of theAgreement.

Redflex shall provide for all maintenance of the Designated Vehicle or Mobile SpeedVan, other than oil changes and fluid replacements which shall be provided by theCustomer.

EXHIBIT''D"COMPENSATION & PRICING

Mobile Speed Van

$50 per paid Citation to Redflex

Partial payments calculated at 53% to Redflex

Red Light and Fixed Speed Camera

0 to 1000 Notices paid per month 65% to Redflex

1001-2000 Notices paid per month 55% Redflex

Red Light Enforcement Only

0-1000 Notices Paid per month 70% Redflex

1001 -2000 Notices Paid per month 60% Redflex

BUSINESS ASSUMPTIONS FOR ALL PRICING OPTIONS:

Redflex construction will be able to utilize existing conduit for installation where space isavailable subject to approval of City Engineer. Since paid Citations are currentlyprocessed by a central "Lock Box" application of Sky Bank, Cleveland, Ohio, Redflexwill remit to the City monthly the Fines collected and shall bill the City for the portion ofFines which are owed to Redflex pursuant to the above outline for reimbursement. TheCity shall retnit payment to Redflex within five (5) business days. Initial pricing assumesa civil penalty of at least $95.

Exhibit "E"Additional Rights and Obligations

1. Redflex and the Customer shall respectively have the additional rights and obligationsset forth below:

2. Redflex shall assist the Customer in public information and education efforts,including but not limited to the developtnent of artwork for utility bill inserts, pressreleases and schedules for any public launch of the Redlight/Speed PhotoEnforoement Program (actual print and production costs are the sole responsibility ofthe Customer).

3. Redflex shall be solely responsible for installing Signage. The Customer shall besolely responsible for the fabrication of any signage, notices or other postingsrequired pursuant to any law, rule or regulation of any Governmental Authority("SipnaRe"), including but not limited to the Ohio Traffic Code, and shall assist indeterniinin.g the placement of such Signage.

4. The Redflex Project Manager and the Police Project Manager shall meet on a weektybasis during the period conunencing as of the date of execution hereof and ending onthe Installation Date as defined in Section 1.12 of the Agreement, and on a monthlybasis for the remainder of the Tenn, at such times and places as the Redflex Managerand the Customer Manager shall mutuakly agree.

5. The Customer shall not access the Redflex System or use the Redliglit/Speed PhotoEnforcement Program in any niaimer other than prescribed by law and wliich restrictsor inhibits any other Persort from using the Redflex System or the Redflex PhotoEnforcement Program with respect to any Intersection Approaches constructed ormaintained by Redflex for sucli Person, or which could damage, disable, impair oroverburden the Redflex System or the Redflex Photo Enforcement Program, and theCustotner shal3 not attempt to gain unauthorized access to (i) any account of any otherPerson. (ii) any computer systems or networks connected to the Redflex Systen , or(iii) any materials or information not intentionally made available by Redflex to theCustomer by means of backing, password mining or any other method whatsoever.nor shall the Customer cause any other Person to do any of the foregoing.

6. The Customer shall maintain the confidentiality of any ruername, password or otherprocess or device for accessing the Redflex Systein or using the Redlight PliotoEnforcetnent Program.

7. Each of Redflex and the Customer shall advise eacl otlier in writing with respect toany applicable rules or regulations governing the conduct of the other on or witlirespect to the property of sucli other party, including but not limited to rules andregulations relating to the safeguardino of confidential or proprietary inforniation, andwhen so advised. each of Redtlex and tlie Custon-ier shall obey any and all such rulesand regulations.

8. The Customer shall promptly reimburse Redflex for the cost of repairing or replacingany portion of the Redflex System, or any property or equipment related thereto,datnaged directiy or indirectly by the Customer, or any of its employees, contractorsor agents.

9. Insurance . During the Terin, Redflex shall procure and maintain at Redflex's solecost and expense the following insurance coverage with respect to claims for injuries topersons or damages to property which may arise from or in connection with theperformance of work or services pursuant to this Agreeinent by Redflex, and each ofRedflex's sub contractors, agents, representatives and employees:

9.1.Commercial General Liability Insurance. Commercial General LiabilityInsurance with coverage of not less than One Million Dollars ($1,000,000)combined single limit per occurrence for bodily injury and property damage;

9.2.Cotmnercial Automobile Liability Insurance. Commercial Automobile LiabilityInsurance with coverage of not less than One Million Dollars ($1,000,000)combined single limit per occurrence for bodily injury or property damage,including but not limited to coverage for all autotnobiles owned by Redflex, hiredby Redflex, and owned by third parties;

9.3.Professional Liability (Errors and Omissions) Insurance. Redflex will use itscommercial best efforts to procure and maintain Professional Liability (Errors andOmissions) Insurance with coverage of not less than One Million Dollars($1,000,000) per occurrence and in the aggregate.

9.4.Workers' Compensation and Employer's Liability Insurance. Workers'Compensation Insurance with coverage of not less than the limits required by theLabor Code of the State of Ohio, Employer's Liability Insurance with coverage ofnot less than One Million Dollats ($1,000,000) per occurrence.

9.5.With respect to the insurance described in this Section 9 of this Exhibit E, anydeductibles or self-insured retentions tnust be declared to and approved by theCustotner, and any changes to such deductibles or self-insured retentions duringthe Term must be approved in advance in writing by the Customer.

9.6.With respect to the Conmiercial General Liability Insurance the followingadditional provisions shall apply:

9.7.The Chillicothe Pai-ties shall be covered as additional insureds with respect to anyliability arising from any act or omission of any Redflex Parties on the premisesupon which any sucli Redflex Parties may perform services pursuant to thisAgreenient, and such coverage shall contain no special limitations on the scope ofprotection afforded to such additional insured.

9.8.The insurance coverage procured by Redflex and described above shall be theprimary insurance with respect to the Chillicothe Parties in connection Xvith thisAgreement, and any insurance or self-insurance maintained by any of theChillicothe Parties shall be in excess. and not in contribution to, sucli insurance.

9.9.Any failure to comply with the reporting provisions of the various insurancepolicies described above sliall not affect the coverage providecl to the ChillicotheParties, and such insurance policies sliall state that such insurance coverage shallapply separately vith respect to each additional insured against whom any claim

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is made or suit is brought, except with respect to the limits set forth in suchinsurance policies.

9.10. With respect to the insurance described in this Section 9 of this Exhibit E,each such insurance policy shall be endorsed to state that the coverage providedthereby shall not be cancelled except after thirty (30) calendar days' prior writtennotice to the Customer. If any of the Redflex Parties are notified by any insurerthat any insurance coverage will be cancelled, Redflex shall immediately providewritten notice thereof to the Customer and shall take all necessary actions tocorrect such cancellation in coverage limits, and shall provide written notice tothe Custoiner of the date and nature of such correction. If Redflex, for anyreason, fails to maintain the insurance coverage required pursuant to thisAgreement, such failure shall be deemed a niaterial breach of this Agreement, andthe Customer shall have the right, but not the obligation and exercisable in its solediscretion, to either (i) terminate this Agreement and seek daniages from Redflexfor such breach, or (ii) purchase suoh required insurance, and without furthernotice to Redflex, deduct from any amounts due to Redflex pursuant to thisAgreement, any premium costs advance by the Customer for such insurance. Ifthe premium costs advanced by the Customer for such insurance exceed anyaniounts due to Redflex pursuant to this Agreement, Redflex shall promptly remitsuch excess amount to the Customer upon receipt of written notice thereof.

9.11. Redflex sliall provide certificates of insurance evidencing the insurancerequired pursuant to the terms of this Agreement, which certificates shall beexecuted by an authorized representative of the applicable insurer, and whichcertificates shall be delivered to the Customer prior to Redflex commencing anywork pursuant to the terms of this Agreement.

Exhibit FFORM OF ACKNOWLEDGMENT AND CONSENT

THIS ACKNOWLEDGMENT AND CONSENT is entered into by andbetween the City of (the "City") and RedflexTraffic Systems, Inc. ("Redflex"), dated , related to that certainAgreement dated , by and between the City andRedflex (the "Agreement") wluch hereby acknowledges, consents and agrees to thefollowing (the "Consent"):

1. Redflex has financed certain operations and equipment related to its business,including but not linrited to canera systems, housing and poles (the "Equipment")through certain lenders (the "Lenders"). Redflex has granted to Lenders a securityinterest in the Equipment, related property including software and proceedsthereto as collateral for the perfonnance when due of its obligations to Lenders.Redflex desires to assign all of its rights, but none of its liabilities or obligationsunder the Agreement (the "Assignment") to [Insert Nan-ie], as collateral agent forthe Lenders (the "Collateral Agent"). Redflex will not, by virtue of theAssignment, be relieved of any liability or obligation under the Agreement orotherwise, and neither Collateral Agent nor Lenders are assuming any liabilitiesor obligations under the Agreement.- City hereby acknowledges notice of theAssigiunent axid hereby consents thereto and to assignment to any similarsubsequent financing party of Redflex, and fiu-ther ackuowledges that CollateralAgent or Lenders, and their respective successors and assigns, aud any othersubsequent future lender, may assign the rights received from Redflex.

2. Redflex hereby authorizes City upon Collateral Agent's written request to makeany payments due to Redflex under the Agreement directly to Collateral Agent,c/o [Insert Address], or to whomever Collateral Agent may from time to timedirect in writing.

3. City acknowledges that the attached Exhibit A. is a true, correct and completecopy of the Agreement.

4. City agrees that City shall not asse-t against Collateral Agent and Lenders anyright or claim of set off, recoupment, counterclaim or other defense in respect ofamounts or obligations owed by Collateral Agent and Lenders to City againstamounts or obhgations that City owes to Collateral Agent and Lenders under theAgreement.

In accordance with Section 20 (f) of the Agreement, this Cousent shalf be deemedto be notice to City. In the eveut that City fails to provide such approval or objectto this Consent witltin a reasonable time which shall include at least three iveeksprior to the next Cit), Council meeting; including this City Council ineeting; andthree days following the meeting afler its i-eceipt of such notice tl•om Redflex. for

the purposes of this Agreement, the City shall be deemed to have consented toand approved this Consent.

IN WITNESS THEREOF, each of the undersigned has caused thisAcknowledgment and Consent to be executed by its duly elected officers duly authorizedas of the date first above written.

City of Chillicothe, Ohio Redflex Traffic Systems

By: By:

Print Naazne: Print Name:

Title: Title:

Date: Date:

Address: Address:

AGREEMENT BETWEEN THE CITY OF CHILLICOTHEAND REDFLEX TRAFFIC SYSTEMS, INC. FOR

AUTOMATED PHOTO SPEED AND PHOTO RED LIGHT ENFORCEMENTPROGRAM

This Agreement (this "AQreement") is made as of this (*̂ day of f=F,P^iu4&2007 by andbetween Redflex Traffic Systems, Inc., a Delaware corporation with offices at 6047Bristol Parkway 1g' Floor, Culver City, Califomia 90230 ("Redflex"), and The City ofChillicothe Ohio, a municipal corporation, with offices at 35 S. Paint St. Chillicothe,Ohio 45601(the "Customer").

RECITALSWHEREAS, Redflex has exclusive knowledge, possession and ownership of certainequipment, licenses, applications, and citation processes related to digital photo speedand photo red light enforcement systems; and

WHEREAS, the Customer desires to engage the services of Redflex to provide certainequipment, processes and back office services so that swonr police officers of theCustomer are able to monitor, identify and enforce speed and red light running violations;and

WHEREAS, it is a mutual objeotive of both Redflex and the Customer to reduce theincidence of vehicle collisions at the traffic intersections and city streets that will bemonitored pursuant tu the terms of this Agreement.

NOW THEREFORE, in consideration of the mutual covenants contained herein, and forother valuable consideration received, the receipt and sufficiency of which are herebyacknowledged, the parties agree as follows:

AGREEMENT1. DEFINITIONS. In this Agreement, the words and phrases below shall have the

following meanings:1.1. "Authorized Officer" means the Police Project Manager or such other

individual(s) as the Customer shall designate to review Potential Violations andto authorize the Issuance of Citations in respect thereto, and in any event, asworn police officer.

1.2. "Authorized Violation" means each Potential Violation in the Violation Data forwhich authorization to issue a citation in the form of an Electronic Signature isgiven by the Authorized Officer by using the Redflex System.

1.3. "Citation" means the notice of a Violation, which is mailed or otherwisedelivered by Redflex to the violator on the appropriate EnforcementDocumentation in respect of each Authorized Violation.

1.4. "Confidential Information" means, with respect to any Person, any information,matter or thing of a secret, confidential or private nature, whether or not solabeled, which is connected with such Person's business or methods of operationor conceming any of such Person's suppliers, licensors, licensees, customers or

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others with whom such Person has a business relationship, and which has currentor potential value to such Person or the unauthorized disclosure of which couldbe detrimental to such Person, including but not limited to:1.4.1. 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 pricessuch Person obtains or has obtained from its clients or customers, or atwhich such Person sells or has sold its services; and

1.4.2. Matters of a technical nature, including but not limited to productinformation, trade secrets, know-how, formulae, innovations, inventions,devices, discoveries, techniques, formats, processes, methods, specifications,designs, patterns, schematics, data, access or security codes, compilations ofinformation, test results and research and development projects. Forpurposes of this Agreement, the term "trade secrets" shall mean the broadestand most inclusive interpretation of trade secrets.

1.4.3. Notwithstanding the foregoing, Confidential Information will not includeinfonnation that: (i) was generally available to the public or otherwise partof the public domain at the time of its disclostire, (ii) became generallyavailable to the public or otherwise part of the public domain after itsdisclosure and other than through any act or omission by any party hereto inbreach of this Agreement, (iii) was subsequently iawfully disclosed to thedisclosing party by a person other than a party hereto, (iv) was required by acourt of competent jurisdiction to be described, or (v) was required byapplicable state law to be described.

1.5. "Designated Intersection Approaches" means the Intersection Approaches setforth on Exhibit A attached hereto, and such additional Intersection Approachesas Redflex and the Customer shall mtttually agree from time to time.

1.6. "Designated Vehicle" means the vehicle supplied and equipped by Redflex forthe purpose of mobile photo Speed Enforcement

1.7. "Electronic Sianature" means the method through which the Authorized Officerindicates his or her approval of the issuance of a Citation in respect of a PotentialViolation using the Redflex System.

1.8. "Enforcement Documentation" means the necessary and appropriatedocumentation related to the Photo Speed and Red Light Enforcement Program,including but not limited to warning letters, citation notices (using thespecifications of the Judicial Council and the Chillicothe Police Department), anumbering sequence for use on all Citations (in accordance with applicable courtrules), instructions to accompany each issued Citation (including in suchinstructions a description of basic court procedures, payment options andinformation regarding the viewing of images and data collected by the RedflexSystem), chain of custody records, criteria regarding operational policies forprocessing Citations (including with respect to coordinating with the Departmentof Motor Vehicles), and technical support documentation for applicable court andjudicial officers.

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1.9. "Eguiument" means any and all cameras, sensors, equipment, components,products, software and other tangible and intangible property relating to theRedflex Photo Speed and Photo Red Light System(s), including but not limited toall camera systems, housings, radar units, severs and poles.

1.10. "`Fine" means a monetary sum assessed for Citations as defined herein,including but not limited to bail forfeitures, but excluding suspended fines.

1.11. "Governmental Authority" means any domestic or foreign government,govemmental authority, court, tribunal, agency or other regulatory,administrative or judicial agency, commission or organization, and anysubdivision, branch or department of any of the foregoing.

1.12. "Installation Date of Combined Photo Red Lipht & Sneed Program"means the date on which Redflex completes the construction and installation ofat least one (1) Intersection Approach in accordance with the terms of thisAgreement so that such Intersection Approach is operational for the purposes offunctioning with the Combined Photo Red Light & Speed Enforcement Program.

1.13. "Installation Date of Mobile Photo Sneed Proeram" means the date onwhich Redflex completes the construction and installation of at least one mobileunit (van) or Designated Vehicle in accordance with the terms of this Agreementso that such mobile speed unit or Designated Vehicle is operational for thepurposes of functioning with the Photo Speed Enforcement Program

1.14. "Intellectual Pronerey" means, with respect to any Person, any and all nowknown or hereafter known tangible and intangible (a) rights associated withworks of authorship throughout the world, including but not limited tocopyrights, moral rights and mask-works, (b) trademark and trade name rightsand similar rights, (c) trade secrets rights, (d) patents, designs, algorithms andother industrial property rights, (e) all other intellectual and industrial propertyrights (of every kind and nature throughout the universe and howeverdesignated), 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 (including any rights in anyof the foregoing), of such Person.

1.15. "Intersection Auproach" means a conduit of travel with up to four (4)contiguous lanes from the curb (e.g., northbound, southbound, eastbound orwestbound) on which at least one (1) digital, rear shot multiple image colorcamera has been installed by Redflex for the purposes of facilitating combinedPhoto Red Light & Speed Enforcement by the Customer.

1.16. "Operational Period" means the period of time during the Term,commencing on the histalIation Date of Combined Photo Red Light & SpeedProgram, during which the Photo Red Light & Speed Enforcement System isfunctional in order to permit the identification and enforcement of AuthorizedViolations at the Designated Intersection Approaches by a sworn police officer ofthe Customer and the issuance of Citations for such Authorized Violations usingthe Redflex System.

1.17. "Person" means a natural individual, company, Governmental Authority,partnership, firm, corporation, legal entity or other business association.

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1.18. "Police Proiect Manager" means the project manager appointed by theCustomer in accordance with this Agreement, which shall be a sworn policeofficer and shall be responsible for overseeing the installation at the DesignatedIntersection Approaches and the implementation of the Redflex Photo Red Light& Speed Fixed System, and which manager shall have the power and authority tomake management decisions relating to the Customer's obligations pursuant tothis Agreement, including but not limited to change order authorizations, subjectto any limitations set forth by Ohio law or other organizational documents of theCustomer or by the city council or other goveming body of the Customer.

1.19. "Administrative Hearing Officer" means, the person hired by the City toact as an impartial judge for all requests for an Administrative Appeals Hearing.

1.20. "Potential Violation" means, with respect to any motor vehicle passingthrough a Designated City Street and/or Intersection Approach, the data collectedby the Redflex System with respect to such motor vehicle, which data shall beprocessed by the Redflex System for the purposes of allowing the AuthorizedOfficer to review such data and determine whether a Speed and/or Red LightViolation has occurred.

1.21. "Proprietary Propert y" means, with respect to any Person, any written ortangible property owned or used by such Person in connection with suchPerson's business, whether or not such property is copyrightable or also qualifiesas 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, computerprograms and software, computer print outs, other written and graphic recordsand the like, whether originals, copies, duplicates or summaries thereof, affectingor relating to the business of such Person, financial statements, budgets,projections and invoices.

1.22. "Redflex Marks" means all trademarks registered in the name of Redflexor any of its affiliates, such other trademarks as are used by Redflex or any of itsaffiliates on or in relation to Photo Speed and Photo Red Light Enforcement atany time during the Term this Agreement, service marks, trade names, logos,brands and other marks owned by Redflex, and all modifications or adaptationsof any of the foregoing.

1.23. "Redflex Project Manager" means the project manager appointed byRedflex in accordance with this Agreement, which project manager shall initiallybe Carl Booth, or such person as Redflex shall designate by providing writtennotice thereof to the Customer from time to time, who shali be responsible foroverseeing the construction and installation of the Designated IntersectionApproaches and the implementation the Photo Combined Red Light and SpeedEnforcement Program, and who shall have the power and authority to makemanagement decisions relating to Redflex's obligations pursuant to thisAgreement, including but not limited to change-order authorizations.

1.24. "Combined Redflex Photo Red Light & Sueed Fixed Svstem" means,collectively, the SmartCanaTM System, the SmartOpsTM System, the RedlightPhoto Enforcement and Speed Enforcement Program, and all of the other

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equipment, applications, back office processes and digital red light trafficenforcement cameras, sensors, components, products, software and other tangibleand intangible property relating thereto.

1.25. "Combined Photo Red Lieht & Sneed Enforcement Program" means theprocess by which the monitoring, identification and enforcement of Violations isfacilitated by the use of certain equipment, applications and back office processesof Redflex, 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 suchViolation data in the form of photographic images of motor vehicles.

1.26. "Photo Redlight Violation Criteria" means the standards and criteria bywhich Potential Violations will be evaluated by swom police officers of theCustomer, which standards and criteria shall include, but are not limited to, theduration of tirne that a traffic light must remain red prior to a Violation beingdeemed to have occurred, and the location(s) in an intersection which a motorvehicle must pass during a red light signal prior to being deemed to havecommitted a Violation, all of which shall be in compliance with all applicablelaws, rules and regulations of Govemmental Authorities.

1,27. "Redflex Photo Speed System" means, collectively, the SmartCamTMSystem, the SmartOpsTM System, the Photo Speed Enforcement Program, and allof the other equipment, applications, back office processes and digital speedtraffic enforcement cameras, radar units, components, products, software andother tangible and intangible property relating thereto.

1.28. "Photo Speed Enforcement Program" means the process by which themonitoring, identification and enforcement of Violations is facilitated by the useof certain equipment, applications and back office processes of Redflex,including but not limited to cameras, flashes, central processing units, interfacesand detectors which, collectively, are capable of measuring Violations andrecording such Violation data in the form of photographic images of motorvehicles.

1.29. "Photo Speed Violation Criteria" means the standards and criteria bywhich Potential Violations will be evaluated by sworn police officers of theCustomer, which standards and criteria shall include, but are not limited to, thevehicle speed, the location(s) in which a motor vehicle must exceed posted speedlimits prior to being deemed to have cornmitted a Violation, all of which shall bein compliance with all applicable laws, rules and regulations of GovernnrentaiAuthorities.

1.30. "SmartCatnTM System" means the proprietary digital speed and redlightphoto enforcement system of Redflex relating to the Photo Speed and Red LightEnforcement Program.

1.31. "SmartOnsTM System" means the proprietary back-office processes ofRedflex relating to the Photo Speed and Red Light Enforcement Program.

132. "SmartSceneTM System" means the proprietary digital video camera unit,hardware and software required for providing supplemental violation data.

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1.33. "Traffic Signal Controller Boxes" means the signal controller interfaceand detector, including but not limited to the radar or video loop, as the case maybe.

1.34. "Violation" means any traffic violation contrary to the tenns of the TrafficCode or any applicable rule, regulation or law of any other GovernmentalAuthority, including but not limited to operating a motor vehicle contrary totraffic signals, and operating a motor vehicle without displaying a valid licenseplate or registration.

1.35. "Violations Data" means the images and other Violations data gathered bythe Redflex System at the Designated City Streets and/or IntersectionApproaches.

2. TERM. The term of this Agreement sha11 commence as of the date hereof and shallcuntinue for a period of five (5) years after the Installation Date (the "lnitial Term").The Customer shall have the right, but not the obligation, to extend the term of thisAgreement for up to two (2) additional consecutive and automatic one (1) yearperiods following the expiration of the Initial Term (each, a "Renewal Term" andcollectively with the Initial Term, the "Term"). The Customer may exercise the rightto extend the term of this Agreement for a Renewal Term by providing written noticeto Redflex not less than thirty (30) days prior to the last day of the Initial Term or theRenewal Term, as the case may be.

3. SERVICES. Redflex shall provide the Photo Red Light and Speed EnforcementProgram and the Photo Speed Enforcement Program to the Customer, in each case inaccordance with the terms and provisions set forth in this Agreement.3.1. INSTALLATION. With respect to the construction and installation of (1) the

Designated Intersection Approaches and the installation of the Redflex System atsuch Designated Intersection Approaches and (2) installation of the RedflexPhoto Speed System in Designated Vehicles, the Customer and Redflex shallhave the respective rights and obligations set forth on Exhibit B attached hereto.

3.2. MAINTENANCE. With respect to the maintenance of the Redflex System at (I)the Designated Intersection Approaches and (2) in Designated Vehicles, theCustomer and Redflex shall have the respective rights and obligations set forthon Exhibit C attached hereto.

3.3. VIOLATION PROCESSING. Daring the Operational Period, Violations shallbe processed as follows;

3.3.1. All Violations Data shall be stored on the Redflex System;3.3.2. The Redflex Systern shall process Violations Data gathered from the

Designated Intersection Approaches and Designated Vehicles into a formatcapable of review by the Authorized Officer via the Redflex System;

3.3.3. The Redflex System shall be accessible by the Authorized Officer througha virtual private network in encrypted format by use of a confidentialpassword on any computer equipped with a high-speed intemet connectionand a web browser;

3.3.4. Redflex shall provide the Authorized Officer with access to the RedflexSystem for the purposes of reviewing the pre-processed Violations Data

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within five (5) days of the gathering of the Violation Data from theapplicable Designated Intersection Approaches and Designated Vehicles

3.3.5. The Customer shall cause the Authorized Officer to review the ViolationsData and to determine whether a citation shall be issued with respect to eachPotential Violation captured within such Violation Data, and transmit eachsuch determination in the form of an Electronic Signature to Redflex usingthe software or other applications or procedures provided by Redflex on theRedflex System for such purpose, and REDFLEX HEREBYACKNOWLEDGES AND AGREES THAT THE DECISION TO ISSUE ACITATION SHALL BE THE SOLE, UNILATERAL AND EXCLUSIVEDECISION OF THE AUTHORIZED OFFICER AND SHALL BE MADEIN SUCH AUTHORIZED OFFICER'S SOLE DISCRETION (A"CITATION DECISION"), AND IN NO EVENT SHALL REDFLEXHAVE THE ABILITY OR AUTHORIZATION TO MAKE A CITATIONDECISION;

3.3.6. With respect to each Authorized Violation as determined by theAuthorized Officer, Redflex shall print and mail a Citation within six (6)days after Redflex's receipt of such authorization; provided, however, duringthe Warning Period as defined by local ordinance of the Customer, wamingviolation notices shall be issued in respect to all Authorized Violations.

3.3.7. Redflex has developed and will maintain a system for the collection,accounting and reporting of all citation payments made as a result of thephoto enforcement program. At any time and during normal business hours,the Customer shall be entitled to inspect, review and copy such accountingand reporting documents maintained by Redflex at a location chosen by theCustomer. Redflex shall also forward to the Customer its entitled portion ofthe fines collected, minus any contractual subtractions, under this agreementat the end of each month in which the fines were collected.

3.3.8. Redflex shall provide a toll-free telephone number for the purposes ofanswering citizen inquiries and schedule viewing of Violations with theAuthorized Officer or Customer, on behalf of the recipient of the citation.

3.3.9. Redflex shall permit the Authorized Officer to generate monthly reportsusing the Redflex Standard Report System.

3.3.10. Upon Redflex's receipt of a written request from the Customer and inaddition to the Standard Reports, Redflex shall provide, without cost to theCustomer, reports regarding the processing and issuance of Citations, themaintenance and downtime records of the Designated IntersectionApproaches and the functionality of the Redflex System with respect theretoto the Customer in such format and for such periods as the Customer mayreasonably request; provided, however, Redflex shall not be obligated toprovide in excess of six (6) such reports in any given twelve (12) monthperiod without cost to the Customer;

3.3.11. Upon the Customer's receipt of a written request from Redflex, theCustomer shall provide, without cost to Redflex, reports regarding theprosecution of Citations and the collection of fines, fees and other monies inrespect thereof in such format and for such periods as Redflex may

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reasonably request; provided, however, the Customer shall not be obligatedto provide in excess of six (6) such reports in any given twelve (12) monthperiod without cost to Redflex;

3.3.12. During the six (6) month period following the Installation Date as definedin Sections 1.12 or 1.13, whichever is applicable, and/or upon Redflex'sreceipt of a written request from the Customer at least ten (10) calendar daysin advance of court proceeding or administrative hearing, Redflex shallprovide expert witnesses for use by the Ctistomer in prosecuting Violations;provided, however, the Customer shall use reasonable best efforts to seekjudicial notice in lieu of requiring Redflex to provide such expert witnesses;and

3.3.13. During the three (3) month period following the Installation Date definedin Section 1,12 or 1.13, whichever is applicable, Redflex shall provide suchtraining to police personnel as shall be reasonably necessary in order toallow such personnel to act as expert witnesses on behalf of the Customerwith respect to the Photo Red Light & Speed Enforcement Program or PhotoSpeed Enforcement Program.

3.4. PROSECUTION AND COLLECTION; COMPENSATION. The Customer shalldiligently prosecute Citations and the collection of all Fines as a result tbereof.Redflex shall have the right to receive, and the Customer shall be obligated topay, the compensation set forth on Exhibit D attached hereto.

3.5. OTHER RIGHTS AND OBLIGA.TIONS. During the Term, in addition to all ofthe other rights and obligations set forth in this Agreement, Redflex and theCustomer shall have the respective rights and obligations set forth on Exhibit Eattached hereto.

3.6. CHANGE ORDERS. The Customer may from time to time request changes tothe work required to be performed or the addition of products or services to thoserequired pursuant to the ten-ns of this Agreement by providing written noticethereof to Redflex, setting forth in reasonable detail the proposed changes (a"Change Order Notice"). Upon Redflex's receipt of a Change Order Notice,Redflex shall deliver a written statement describing the effect, if any, theproposed changes would have on the pricing terms set forth in Exhibit D (the"Change Order Proposal"), which Change Order Proposal shall include (i) adetailed breakdown of the charge and schedule effects, (ii) a description of anyresulting changes to the specifications and obligations of the parties, (iii) aschedule for the delivery and other performance obligations, and (iv) any otherinformation relating to the proposed changes reasonably requested by theCustomer. Following the Customer's receipt of the Change Order Proposal, theparties shall negotiate in good faith and agree to a plan and schedule forimplementation of the proposed changes, the time, manner and atnount ofpayment or price increases or decreases, as the case may be, and any othermatters relating to the proposed changes; provided, however, in the event thatany proposed change involves only the addition of equipment or services to theexisting Designated Intersection Approaches, Designated Vehicle, or theaddition of Intersection Approaches to be covered by the terms of thisAgreement, to the maximum extent applicable, the pricing terms set forth in

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Exhibit D shall govem. Any failure of the parties to reach agreement withrespect to any of the foregoing as a result of any proposed changes shall not bedeemed to be a breach of this Agreement, and any disagreement shall be resolvedin accordance with Section 10.

4. License: Reservation of Riehts.4.I . License. Subject to the terms and conditions of this Agreement, Redflex hereby

grants the Customer, and the Customer hereby accepts from Redflex upon theterms and conditions herein specified, a non-exclusive, non-transferable licenseduring the Term of this Agreement to: (a) solely within the City of Chillicothe orits properties, access and use the Redflex Systems for the sole purpose ofreviewing potential Violations and authorizing the issuance of Citations pursuantto the terms of this Agreement, and to print copies of any content posted on theRedflex System in connection therewith, (b) disclose to the public (includingoutside of the City of Chillicothe) that Redflex is providing services to theCustomer in connection with Photo Red Light and Speed Enforcement Programpursuant to the terms of this Agreement, and (c) use and display the RedflexMarks on or in marketing, public awareness or education, or other publications ormaterials relating to the Photo Red Light and Speed Enforcement Program, solong as any and all such publications or materials are approved in advance byRedflex.

4.2. RESERVATION OF RIGHTS. The Customer hereby acknowledges and agreesthat: (a) Redflex is the sole and exclusive owner of the Redflex System, theRedflex Marks, all Intellectual Property arising from or relating to the RedflexSystem, and any and all related Equipment, (b) the Customer neither has normakes any claim to any right, title or interest in any of the foregoing, except asspecifically granted or authorized under this Agreement, and (c) by reason of theexercise of any such rights or interests of Customer pursuant to this Agreement,the Customer shall gain no additional right, title or interest therein.

4.3. RESTRICTED USE. The Customer hereby covenants and agrees that it shall notknowingiy (a) make any modifications to the Redflex System, including but notlimited to any Equipment, (b) alter, remove or tamper with any Redflex Marks,(c) use any of the Redflex Marks in any way which might prejudice theirdistinctiveness, validity or the goodwill of Redflex therein, (d) use anytrademarks or other marks other than the Redflex Marks in connection with theCustomer's use of the Redflex System pursuant to the terms of this Agreementwithout first obtaining the prior consent of Redflex, or (e) disassemble, de-compile or otherwise perform any type of reverse engineering to the RedflexSystem, the Redflex System, including but not limited to any Equipment,Intellectual Property or Proprietary Property of Redflex, or cause any otherPerson to do any of the foregoing.

4.4. PROTECTION OF RIGHTS. Redflex shall have the right to take whateveraction it deems necessary or desirable to reinedy or prevent the infringement ofany Intellectual Property of Redflex, including without limitation the filing ofapplications to register as trademarks in any jurisdiction any of the RedflexMarks, the filing of patent application for any of the Intellectual Property ofRedflex, and making any other applications or filings with appropriate

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Governmental Authorities. The Customer shall not take any action to remedy orprevent such infi-inging activities, and shall not in its own name make anyregistrations or filings with respect to any of the Redflex Marks or theIntellectual Property of Redflex without the prior writteu consent of Redflex.

4.5. INFRINGEMENT. The Customer shall use its reasonable best efforts to giveRedflex prompt notice of any activities or threatened activities of any Person ofwhich it becomes aware that infringes or violates the Redflex Marks or any ofRedflex's Intellectual Property or that constitute a misappropriation of tradesecrets or act of unfair competition that might dilute, damage or destroy any ofthe Redflex Marks or any other Intellectual Property of Redflex. Redflex shallhave the exclusive right, but not the obligation, to take action to enforce suchrights and to make settlements with respect thereto. In the event that Redflexcommences any enforcement action against any Person other than Customer orits employees, officials or agents under this Section 4.5, then the Customer shallrender to Redflex such reasonable cooperation and assistance as is reasonablyrequested by Redflex, and Redflex shall be entitled to any damages or othermonetary amount that might be awarded after deduction of actual costs;provided, that Redflex shall reimburse the Customer for any reasonable costsincurred in providing such cooperation and assistance.

4.6. INFRINGING USE. The Customer shall give Redflex prompt written notice ofany action or claim, whether threatened or pending, against the Customeralleging that the Redflex Marks, or any other Intellectual Property of Redflex,infringes or violates any patent, trademark, copyright, trade secret or otherIntellectual Property of any other Person, and the Customer shall render toRedflex such reasonable cooperation and assistance as is reasonably requested byRedflex in the defense thereof; provided that Redflex shall reimburse theCustomer for any reasonable costs incurred in providing such cooperation andassistance. If such a claim is made and Redflex determines, in the exercise of itssole discretion, that an infringement may exist, Redflex shall have the right, butnot the obligation, to procure for the Customer the right to keep using theallegedly infringing items, modify them to avoid the alleged infiingement orreplace them with non-infringing items.

5. Renresemtations and Warranties.5.1. Redflex Representations and Warranties.

5.1.1. Authoritv. Redflex hereby warrants and represents that it has all right,power and authority to execute and deliver this Agreement and perform itsobligations hereonder.

5.1.2. Professional Services. Redflex hereby warrants and represents that anyand all services provided by Redflex pursuant to this Agreement shall beperformed in a professional and workmanlike manner and, with respect tothe installation of the Redflex System, subject to applicable law, incon7pliance with all specifications provided to Redflex by the Customer.

5.2. Cust.omer Representations and Warranties.5.2.1. Authority. The Customer hereby warrants and represents that it has all

right, power and authority to execute and deliver this Agreement andperform its obligations hereunder.

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5.2.2. Professional Services. The Customer hereby warrants and represents thatany and all services provided by the Customer pursuant to this Agreementshall be performed in a professional and workmanlike manner.

5.3. LIMITED WARRANTIES. THE CUSTOMER HEREBY ACKNOWLEDGESTHAT THE REDFLEX SYSTEM MAY MALFUNCTION FROM TIME TOTIME, AND SUBJECT TO THE TERMS OF THIS AGREEMENT, REDFLEXSHALL DILIGENTLY ENDEAVOR TO CORRECT ANY SUCHMALFUNCTION IN A TIMELY MANNER.

6. Termination.6.1. TERMINATION FOR CAUSE: Either party shall have the right to tenninate

this Agreement immediately by written notice to the other if (i) state statutes areamended to prohibit or substantially change the operation of photo speed andphoto red light enforcement systems; (ii) any court having jurisdiction over Cityordinances, or Ohio or federal statute declares, that results from the RedflexSystem of Photo Red Light and Speed Enforcement are inadmissible in evidence;or (iii) the other party commits any material breach of any of the provisions ofthis Agreement which breaoh is not remedied within forty-five (45) calendar days(or within such other time period as the Customer and Redflex shall mutuallyagree, which agreement shall not be unreasonably withheld or delayed) afterwritten notice from the non-breaching party setting forth in reasonable detail theevents which caused the breach.

6.2. The rights to terminate this Agreement given in this Section 6. 1 shall be withoutprejudice to any other right or remedy of either party in respect of the breachconcerned (if any) or any other breach of this Agreement.

6.3. PROCEDURES UPON TERMINATION. The tennination of this Agreementshall not relieve either party of any liability that accrued prior to suchtermination. Except as set forth in Section 6.3, upon the tennination of thisAgreement, all of the provisions of this Agreement shall terminate and:

6.3.1. Redflex shall (i) immediately cease to provide services, including but notlimited to work in connection with the construction or installation activitiesand services in connection with the Photo Red Light & Speed EnforcementProgram, (ii) promptly deliver to the Customer any and all ProprietaryProperty of the Customer provided to Redflex pursuant to this Agreement,(iii) promptly deliver a final report to the Customer regarding the collectionof data and the issuance of Citations in such format and for such periods asthe Customer may reasonably request, and which final report Redflex shallupdate or supplement from time to time when and if additional data orinformation becomes available, (iv) promptly deliver to Custorner a finalinvoice stating all fees and charges properly owed by Customer to Redflexfor work performed and Citations issued by Redflex prior to the termination,and (v) provide such assistance as the Customer may reasonably requestfrom tinre to time in connection with prosecuting and enforcing Citations ortraffic citations issued prior to the termination of this Agreement.

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6.3.2. The Customer shall (i) immediately cease using the Photo Speed andlorPhoto Red Light Enforcement Program, accessing the Redflex System andusing any other Intellectual Property of Redflex, (ii) promptly deliver toRedflex any and all Prroprietary Property of Redflex provided to theCustomer pursuant to this Agreement, and (iii) promptly pay any and allfees, charges and amounts properly owed by Customer to Redflex for workperformed and Citations issued by Redflex prior to the termination.

6.3.3. Unless the Customer and Redflex have agreed to enter into a newagreement relating to the Photo Red Light and Speed Enforcement Programor have agreed to extend the Term of this Agreement, Redflex shall removeany and all Equipment or other materials of Redflex installed in connectionwith Redflex's perfonnance of its obligations under this Agreement,including but not limited to housings, poles, camera systems, and DesignatedVehicles and Redflex shall restore the Designated Intersection Approachesto substantially the same condition such Designated Intersection Approacheswere in immediately prior to this Agreament.

6.4. SURVIVAL. Notwithstanding the foregoing, the definitions and each of thefollowing shall survive the termination of this Agreement: (a) Sections 4.2(Reservation of Rights), 5.1 (Redflex Representations and Warranties), 5.2(Customer Representations and Warranties), 5.3 (Limited Warranty), 7(Confidentiality), 8 (Indemnification and Liability), 9 (Notices), 10 (DisputeResolution), 11.1 (Assignment), 11.17 (Applicable Law), 11.16 (InjunctiveRelief; Specific Performance) and 11.18 (Jurisdiction and Venue), and (b) thoseprovisions, and the rights and obligations therein, set forth in this Agreementwhich either by their terms state, or evidence the intent of the parties, that theprovisions survive the expiration or termination of the Agreement, or mustsurvive to give effect to'the provisions of this Agreement.

7. CONFIDENTIAL,iTY. During the term of this Agreement and for a period of three(3) years thereafter, neither party shall disclose to any third person, or use for itself inany way for pecuniary gain, any Confidential Information learned from the otherparty during the course of the negotiations for this Agreement or during the Term ofthis Agreement. Upon termination of this Agreement, each party shall retum to theother all tangible Confidential Information of such party. Each party shall retain inconfidence and not disclose to any third party any Confidential Information withoutthe other party's express written consent, except (a) to its employees who arereasonably required to have the Confidential Information, (b) to its agents,representatives, attorneys and other professional advisors that have a need to knowsuch Confidential Information, provided that such parties undertake in writing (or areotherwise bound by rules of professional conduct) to keep such information strictlyconfidential, and (c) pursuant to, and to the extent of, a request or order by anyGovernmental Authority, including laws relating to public records.

8. Tndenmification and Liability.8.1. Indemnification by Redflex. Subject to Section 8.3, Redflex hereby agrees to

defend and indemnify the Customer and its affiliates, shareholders or otherinterest holders, managers, elected officials, officers, directors, employees,agents, representatives and successors, peimitted assignees and each of their

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affiliates, and all persons acting by, through, under or in concert with them, orany of thein (individually a "Customer Party" and collectively, the "CustomerParties") against, and to protect, save and keep harmless the Customer Partiesfrom, and to pay on behalf of or reimburse the Customer Parties as and whenincurred for, any and all liabilities, obligations, losses, damages, penalties,demands, claims, actions, suits, judgments, settlements, costs, expenses anddisbursements (including but not limited to reasonable attorneys', accountants'and expert witnesses' fees) of whatever kind and nature (collectively, "Losses"),which may be imposed on or incurred by any Customer Party arising out of orrelated to (a) any material misrepresentation, inaccuracy or breach of anycovenant, warranty or representation of Redflex contained in this Agreement, or(b) the willful or negligent misconduct of Redflex, its employees, shareholders,officers, assignees, or agents which result in death or bodily injury to any naturalperson (including third parties) or any damage to any real or tangible personalproperty of any Person (including the personal property of third parties), exceptto the extent caused by the willful misconduct of any Customer Party.

8.2. Indemnification by Customer. Subject to Section 8.3, the Customer hereby agreesto defend and indenmify Redflex and its affiliates, shareholders or other interestholders, managers, officers, directors, employees, agents, representatives andsuccessors, permitted assignees and ail persons acting by, through, under or inconcert with them, or any of them (individually a "Redflex Party" andcollectively, the "Redflex Parties") against, and to protect, save and keephartnless the Redflex Parties from, and to pay on behalf of or reimburse theRedflex Parties as and when incurred for, any and all Losses which may beimposed on or incurred by any Redflex Party arising out of or in any way relatedto (a) any material misrepresentation, inaccuracy or breach of any covenant,warranty or representation of the Customer contained in this Agreement, (b) thewillful misconduct of the Customer, its employees, Redflexs contractors oragents which result in death or bodily injury to any natural person (includingthird parties) or any damage to any real or tangible personal property of anyPerson (including the personal property of third parties), except to the extentcaused by the willful misconduct of any Redflex Party, or (c) any claim, action ordemand not caused by Redflex's failure to perform its obligations under thisAgreement.

8.3. Indemnification Procedures. In the event any claim, action or demand (a"Claim") in respect of which any party hereto seeks indemnification from theother, the party seeking indemnification (the "Indemnified Party") shall give theparty from whom indemnification is sought (the "Indemnifying Party") writtennotice of such Claim promptly after the Indemnified Party first becomes awarethereof; provided, however, that failure so to give such notice shall not precludeindemnification with respect to such Claim except to the extent of any additionalor increased Losses or other actual prejudice directly caused by such failure. TheIndemnifying Party shall have the right to choose counsel to defend such Claim(subject to the approval of such counsel by the Indemnified Party, whichapproval shall not be unreasonably withheld, conditioned or delayed), and tocontrol, compromise and settle such Claim, and the Indemnified Party shall have

13nfJ2

the right to participate in the defense at its sole expense; provided, however, theIndemnified Party shall have the right to take over the control of the defense orsettlement of such Claim at any time if the Indemnified Party irrevocably waivesall rights to indernuification from and by the Indemnifying Party. TheIndemnifying Party and the Indemnified Party shall cooperate in the defense orsettleinent of any Claim, and no party shall have the right enter into anysettlement agreement that materially affects the other party's material rights ormaterial interests without such party's prior written consent, which consent willnot be unreasonably withheld or delayed,

8.4. LIMITED LIABILITY. Notwithstanding anything to the contrary in thisAgreement, neither party shall be liable to the other, by reason of anyrepresentation or express or implied warranty, condition or other term or any dutyat common or civil law, for any indirect, incidental, special, lost profits orconsequential damages, however caused and on any theory of liability arising outof or relating to this Agreement.

9. NOTICES. Any notices to be given hereunder shall be in writing, and shall bedeemed to have been given (a) upon delivery, if delivered by hand, (b) three (3) daysafter being mailed first class, certified mail, return receipt requested, postage andregistry fees prepaid, or (c) one Business Day after being delivered to a reputableovernight courier service, excluding the U.S. Postal Service, prepaid, marked for nextday delivery, if the courier service obtains a signature acknowledging receipt, in eachcase addressed or sent to such party as follows:9.1. Notices to Redflex:

Redflex Traffic Systems, Inc.15020 North 74°i StreetScottsdale, AZ 85260Attention: Ms. Karen FinleyFacsimile: (480) 607-0752

9.2. Notices to the Customer:City of Chillicothe OhioAttention: Safety/Service Director35 South Paint StreetChillicothe, Ohio 45601Facsimile: 740-773-8004

With a copy to:

City of ChillicotheAttention: City Law Director20 East Second StreetChillicothe, Ohio 45601Facsimile: 740-773-6081

10. DISPUTE RESOLUTION. Upon the occurrence of any dispute or disagreementbetween the parties hereto arising out of or in connection with any term or provisionof this Agreement, the subject matter hereof, or the interpretation or enforcement

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hereof (the "Dispute"), the parties shall engage in informal, good faith discussionsand attempt to resolve the Dispute. In connection therewith, upon written notice ofeither party, each of the parties will appoint a designated officer whose task it shall beto meet for the purpose of attempting to resolve such Dispute. The designatedofficers shall ineet as often as the parties shall deem to be reasonably necessary. Suchofficers will discuss the Dispute. If the parties are unable to resolve the Dispute inaccordance with this Section 10, and in the event that either of the parties concludesin good faith that amicable resolution through continued negotiation with respect tothe Dispute is not reasonably likely, then the parties may mutually agree to submit tobinding or nonbinding arbitration or mediation.

11. Miscellaneous.11.1. AssiQmnent. Neither party may assign all or any portion of this

Agreement without the prior written consent of the other, which consent shall notbe unreasonably withheld or delayed; provided, however, The Customer herebyacknowledges and agrees that the execution (as outlined in Exhibit F), deliveryand performance of Redflex's rights pursuant to this Agreement shall require asignificant investment by Redflex, and that in order to finance such investment,Redflex may be required to enter into certain agreements or arrangements("Financing Transactions") with equipment lessors, banks, financial institutionsor other similar persons or entities (each, a "Financial Institution" andcollectively, "Financial Institutions"). The Customer hereby agrees that Redflexshall have the right to assign, pledge, hypothecate or otherwise transfer(`°Transfer") its rights, or any of them, under this Agreement to any FinancialInstitution in connection with any Financing Transaction between Redflex andany such Financial Institution, subject to the Customer's prior written approval,which approval shall not be unreasonably withheld or delayed. The Customerfurther acknowledges and agrees that in the event that Redflex provides writtennotice to the Customer that it intends to Transfer all or any of Redflex's rightspursuant to this Agreement, and in the event that the Customer fails to providesuch approval or fails to object to such Transfer within forty-five (45) businessdays after its receipt of such notice from Redflex, for the purposes of thisAgreement, the Customer shall be deemed to have consented to and approvedsuch Transfer by. Redflex. Notwithstanding the above, this Agreement shall inureto tha benefit of, and be biiiding upon, the parties hereto, and their respectivesuccessors or assigns.

11.2. RELATIONSHIP BETWEEN REDFLEX AND THE CUSTOMER.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 employeebetween the parties. The relationship between the parties shall be that ofindependent contractors, and nothing contained in this Agreement shall create therelationship of principal and agent or otherwise permit either party to incur anydebts or liabilities or obligations on behalf of the other party (except as specificallyprovided herein).

11.3. AUDIT RIGHTS. Each of parties hereto shall have the right to audit thebooks and records of the other party hereto (the "Audited Partv") solely for thepurpose of verifying the payments, if any, payable pursuant to this Agreement.

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Any such audit shall be conducted upon not less than forty-eight (48) hours' priornotice to the Audited Party, at mutually convenient times and during the AuditedParty's normal business hours. Except as otherwise provided in this Agreement,the cost of any such audit shall be borne by the non-Audited Party. In the eventany such audit establishes any underpayment of any payment payable by theAudited Party to the non-Audited Party pursuant to this Agreement, the AuditedParty shall promptly pay the amount of the shortfall, and in the event that anysuch audit establishes that the Audited Party has underpaid any payment by morethan twenty five percent (25%) of the amount of actually owing, the cost of suchaudit shall be bome by the Audited Party. In the event any such audit establishesany overpayment by the Audited Party of any payment made pursuant to thisAgreement, non-Audited Party shall promptly refund to the Audited Party theamount of the excess.

11.4. FORCE MAJEURE. Neither party will be liable to the other or bedeemed to be in breach of this Agreement for any failure or delay in renderingperformance arising out of causes beyond its reasonable control and without itsfault or negligence. Such causes may include but are not limited to, acts of Godor the public enemy, terrorism, significant fires, floods, earthquakes, epidemics,quarantine restrictions, strikes, freight embargoes, or Govemmental Authoritiesapproval delays which are not caused by any act or omission by Redflex, andunusually severe weather. The party whose performance is affected agrees tonotify the other promptly of the existence and nature of any delay.

11.5. ENTIRE AGREEMENT. This Agreement represents the entireAgreement between the parties, and there are no other agreements (other thaninvoices and purchase orders), whether written or oral, which affect its terms.This Agreement may be amended only by a subsequent written agreement signedby both parties.

11.6. SEVERABILITY. If any provision of this Agreement is held by any courtor other competent authority to be void or unenforceable in whole or part, thisAgreement shall continue to be valid as to the other provisions thereof and theremainder of the affected provision.

11.7. WAIVER. Any waiver by either party of a breach of any provision of thisAgreement shall not be considered as a waiver of any subsequent breach of thesame or any other provision thereof.

11.8_ CONSTRUCTION EXCEPT as expressly otherwise provided in thisAgreement, this Agreement shall be construed as having been fully andcompletely negotiated and neither the Agreement nor any provision thereof shallbe construed more strictly against either party.

11.9. HEADINGS. The headings of the sections contained in this Agreementare included herein for reference purposes only, solely for the convenience of theparties hereto, and shall not in any way be deemed to affect the meaning,interpretation or applicability of this Agreement or any term, condition orprovision hereof.

11.10. EXECUTION AND COUNTERPARTS. This Agreement may beexecuted in any number of counterparts, each of which when so executed anddelivered shall be deemed an original, and such counterparts together shall

16o1"3«

constitute only one instrument. Any one of such counterparts shall be sufficientfor the purpose of proving the existence and terms of this Agreement, and noparty shall be required to produce an original or all of such counterparts inmaking such proof.

11.11. COVENANT OF FURTFIER ASSURANCES. All parties to thisAgreement shall, upon request, perform any and all acts and execute and deliverany and all certificates, instruments and other documents that may be necessaryor appropriate to carry out any of the terms, conditions and provisions hereof orto carry out the intent of this Agreement.

11.12. REMEDIES CUMULATIVE. Each and all of the several rights andremedies provided for in this Agreement shall be construed as being cumulativeand no one of them shall be deemed to be exclusive of the others or of any rightor remedy allowed by law or equity, and pursuit of any one remedy shall not bedeemed to be an election of such remedy, or a waiver of any other remedy,

11.13. BINDING EFFECT. This Agreement shall inure to the benefit of and bebinding upon all of the parties hereto and their respective executors,administrators, successors and permitted assigns.

11.14. COMPLIANCE WITH LAWS. Nothing contained in this Agreementshall be construed to require the commission of any act contrary to law, andwhenever there is a conflict between any tenn, condition or provision of thisAgreement and any present or future statute, law, ordinance or regulationcontrary to which the parties have no legal right to contract, the latter shallprevail, but in such event the term, condition or provision of this Agreementaffected shall be curtailed and limited only to the extent necessary to bring itwithin the requirement of the law, provided that such construction is consistentwith the intent of the Parties as expressed in this Agreement. Redflex, in theexecution of duties and obligations under this Agreement, agrees to comply withall applicable federal, state and local laws, rules, regulations and ordinances.

11.15. NO THIRD PARTY BENEFIT. Nothing contained in this Agreementshall be deemed to confer any right or benefit on any Person who is not a party tothis Agreement.

11.16. INJUNCTIVE RELIEF: SPECIFIC PERFORMANCE, The partieshereby agree and acknowledge that a breach of Sections 4.1 (License), 4.3(Restricted Use) or 7 (Confidentiality) of this Agreement would result in severeand irreparable injury to the other party, which injury could not be adequatelycompensated by an award of money damages, and the parties therefore agree andacknowledge that they shall be entitled to injunctive relief in the event of anybreach of any material term, condition or provision of this Agreenxent, or toenjoin or prevent such a breach, including without limitation an action forspecific performance hereof.

11.17. APPLICABLE LAW. This Agreement shall be governed by andconstrued in all respects solely in accordance with the laws of the State of Ohio,United States.

11.18. JURISDICTION AND VENUE. Any dispute arising out of or inconnection with this Agreement shall be submitted to the exclusive jurisdiction

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and venue of the courts located in the County of Ross, Ohio and both partiesspecifically agree to be bound by the jurisdiction and venue thereof.

11.19. CAMPAIGN FINANCE COMPLIANCE. Redflex hereby certifies that allapplicable parties listed in division (I)(3) or (J)(3) of Ohio Revised Code Section3517.13 are in full compliance with divisions (1)(1) and (J)(1) of Ohio RevisedCode Section 3517.13.

11.20. OHIO ANTI-TERRORISM ACT COMPLIANCE. Redflex represents andwarrants that it has not provided any material assistance, as that term is defined inO.R.C. Section 2909.33(C), to an organization that is identified by, and included on, theUnited States Department of State Terrorist Exclusion List and that it has truthfullyanswered "no" to every question on the "Declaration Regarding MaterialAssistance/Non-assistance to a Terrorist Organization ("DMA")." Redflex furtherrepresents and warrants that it has registered with the Ohio Business Gateway ("OBG")to file for DMA pre-certification and has provided or shall provide its DMA to theCustomer prior to execution of this Agreement. If these representations and warrantiesare found to be false, the Agreement is void and Redflex shall immediately repay to theCustomer any funds paid under this Contract.

11.21. NON-DISCRIMINATION OF EMPLOYMENT.11.21.1. Pursuant to O.R.C. Section 125.111, Redfiex agrees that Redflex,

any subcontractor of Redflex, and any person acting on behalf of Redflex ora subcontractor of Redflex, shall not discriminate, by reason of race, color,religion, sex, age, national origin, or disability against any citizen of thisstate in the employment of any person qualified and available to perform thework under this Agreement.

11.21.2. Redflex farther agrees that Redflex, any subcontractor of Redflex,and any person acting on behalf of Redflex or a suboontractor of Redflexshall not, in any manner, discriminate against, intimidate, or retaliate againstany employee hired for the performance of work under this Agreement onaccount of race, color, religion, sex, age, national origin, or disability.

11.21.3. Redflex represents that it has a written affirmative action prograrnfor the employment and effective utilization of economically disadvantagedpersons and shall file a description of the affirmative action program and aprogress report on its implementation with the equal employmentopportunity office of the Department of Administrative Services.

(The remainder of this page is left intentionally blank)

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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the dayand year first set forth above.

"Customer" "Redflex"

REDFLEX TRAFFIC SYSTEMS, INC.,a Delaware corporation

By:Name: jLgtiaxr•+Title;̂ ^.JES 10)

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EXHIBIT "A"Designated Areas of Enforcement

The Agreement is for the delivery and deployment of one mobile speed enforcement van,Citywide photo enforcement by this mobile van will be based upon mutual agreementbetween Redflex and the Customer as warranted by commuuity safety and traffic needs,

The Agreement also includes red light and Speed-On-Green enforcement at no Iess than5 intersections unless otherwise agreed to in writing by the parties. These locations are tobe considered and based on accident history and dangerous violations observed.Identification of enforced intersection will be based on mutual agreement betweenRedflex and the City as warranted by community safety and traffic needs.

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EXHIBIT "B"Construction and Installation Obligations

Timeframe for Installation: Combined Fixed Photo Red Light & Speed SystemRadflex will have each specified intersection installed and activated in phases inaccordance with an implementation plan to be mutually agreed to by Redflex TrafficSystems and the Customer.

Redflex will use reasonable commercial efforts to install the system in accordance withthe schedule set forth in the implementation plan that will be formalized upon projectcommencement.

Redflex will use reasonable commercial efforts to install and activate the first specifiedintersection within the first sixty (60) days subsequent to formal project kick-off. TheCustomer agrees that the estimated timeframe for installation and activation are subject toconditions beyond the control of Redflex and are not guaranteed.

In order to provide the client witb timely completion of the photo enforcement projectRedflex Traffic Systems requires that the city assist with providing timely approval ofCity permit requests. The City acknowledges the importance of the safety program andundertakes that in order to keep the project on schedule the Customer is to provide cityengineers review of Reflex permit requests and all documentation within a five businessdays. Reflex will also review and correct if necessary any redlines with in five businessdays. Permits need to be received within seven business days of first submittal in orderto implement the program in a timely manner.

1. Redflex Oblieations. Redflex shall do or cause to be done each of the following (ineach case, unless otherwise stated below, at Redflex's sole expense):1.1. Appoint the Redflex Project Manager and a project implementation team

consisting of between one (1) and four (4) people to assist the Redflex ProjectManager;

1.2. Request current "as-built" electronic engineering drawings for the DesignatedIntersection Approaches (the "Drawings") from the city traffic engineer;

1.3. Develop and submit to the Customer for approval construction and installationspecifications in reasonable detail for the Designated Intersection Approaches,including but not limited to specifications for all radar sensors, pavement loops,electrical connections and traffic controller connections, as required; and

1,4. Seek approval from the relevant Governmental Authorities having authority orjurisdiction over the construction and installation specifications for theDesignated Intersection Approaches (collectively, the "Approvals"), which willinclude compliance with City permit applications.

1.5. Finalize the acquisition of the Approvals;1.6. Submit to the Customer a public awareness strategy for the Customer's

vonsideration and approval, which strategy shall include media and educationalmaterials for the Customer's approval or amendment (the "Awareness Strategy");

1.7. Develop the Redlight/Speed Violation Criteria in consultation with the Cttstomer;

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1.8. Develop the Enforcement Documentation for approval by the Custonier, whichapproval shall not be unreasonably withheld;

1.9. Complete the installation and testing of all necessary Equipment, includinghardware and software, at the Designated Intersection Approaches (under thesupervision of the Customer);

1.10. Cause an electrical sub-contractor to complete all reasonably necessaryelectrical work at the Designated Intersection Approaches, including but notlimited to the installation of all related Equipment and other detection sensors,poles, cabling, telecommunications equipment and wiring, which work shall beperfotmed in compliance with all applicable local, state and federal laws andregulations;

1.11. Install and test the functionality of the Designated Intersection Approacheswith the Redflex System and establish fully operational Violation processingcapability with the Redflex System;

1.12. hnplement the use of the Redflex System at each of the DesignatedIntersection Approaches;

1.13. Deliver the Equipment and Materials to the Customer; and1.14. Issue Citations for Authorized Violations;1.15. Redflex shall provide training (i) for up to fifteen (15) personnel of the

Customer, including but not limited to the persons who Customer shall appoint asAuthorized Offioers and other persons involved in the administration of thePhoto Red Light and Speed Enforcement Program, (ii) for at least sixteen (16)hours in the aggregate, (iii) regarding the operation of the Redflex System andthe Redlight Photo Enforcement Program, which training shall include trainingwith respect to the Redflex System and its operations, strategies for presentingViolations Data in court and judicial proceedings and a review of theEnforcement Documentation;

1.16. Interact with court and judicial personnel to address issues regarding theimplementation of the Redflex System, the development of a subpoenaprocessing timeline that will permit the offering of Violations Data in court andjudicial proceedings, the establishment of a court hearing schedule foradjudicating upon Citations, and coordination between Redflex, the Customerand juvenile court personnel; and

1.17. Provide reasonable public relations resources and media materials to theCustomer in the event that the Customer elects to conduct a public launch of theRedlight Photo Enforcement Program.

1.18. Citation processing and citation re-issuance2. CUSTOMER OBLIGATIONS. The Customer shall do or cause to be done each of

the following (in each case, unless otherwise stated below, at Customer's soleexpense):

2.1.1. Appoint the Police Project Manager; Provide an Administrative HearingOfficer to preside over Appeals Hearing for the City.

2.1.2. Assist Redflex in obtaining the Drawings fi•om the relevant GovermnentalAuthorities;

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2.1.3. Notify Redflex of any specific requirements relating to the constructionand installation of any Intersection Approaches or the implementation of theRedlight Photo Enforcement Program;

2.1.4. Provide assistance to Redflex in obtaining access to the records data of theDepartment of Motor Vehicles in Redflex's capacity as an independentcontractor to the Customer; and

2.1.5. Assist Redflex in seeking the Approvals2.1.6. Provide reasonable access to the Customer's properties and facilities in

order to permit Redflex to install and test the functionality of the DesignatedIntersection Approaches and the Redlight Photo Enforcement Program;

2.1.7. Provide reasonable access to the personnel of the Customer and reasonableinformation about the specific operational requirements of such personnelfor the purposes of performing training;

2.1.8. Seek approval or amendment of Awareness Strategy and provide writtennotice to Redflex with respect to the quantity of media and programmaterials (the "Materials") that the Customer will require in order toimplement the Awareness Strategy during the period commencing on thedate on which Redflex begins the installation of any of the DesignatedIntersection Approaches and ending one (1) month after the InstallationDate;

2.1.9. Assist Redtlex in developing the Redlight Violation Criteria; and2.1.10. Seek approval of the Enforcement Documentation.

Mobile Photo Speed System

Redflex shall, upon mutual agreement with the City, provide a fully equipped vehicle formobile photo speed enforcement. The vehicle shall comply with all applicable Ohio lawsincluding those with respect to law enforcement vehicles.

Redflex will acquire and equip the vehicle within one hundred days of the effective dateof the Agreement...

1. Redflex Obligations.

a. Supply a fully equipped vehicle for mobile photo speed enforcement.b. Provide technical support for all SmartOps systems and Redflex

supplied equipment in the vehicle.c. Image viewing and processing.

2. City ObliQations.

a. Coordinate a vehicle deployment strategy with Redflex to maximizeeducation, awareness and speed violation reduction.

23 ot3:

b. Deploy the vehicle at a minimum of fifty (50) hours per month duringthe first six months of its availability, and deploy the vehicle onehundred (100) hours per month thereaftei-.

c. Provide Administrative Hearing Officer for any appeals.d. Support customary fine collection.

EXHIBIT "C"

Maintenance

1. All repair and maintenance of Photo Speed and Photo Red Light Enforcementsystems and related equipment will be the sole responsibility of Redflex, includingbut not limited to maintaining the casings of the cameras included in the RedtlexSystem and all other Equipment in reasonably clean and graffiti-free condition.

2. Redflex shall not open the Traffic Signal Controller Boxes without a representative ofcity Traffic Engineering present.

3. The provision of all necessary communication, broadband and telephone services tothe Designated Intersection Approaches will be the sole responsibility of Redflex.

4. The provision of all necessary electrical services to, the Designated IntersectionApproaches will be the sole responsibility of the Customer.

5. In the event that images of a quality suitable for the Authorized Officer to identifyViolations cannot be reasonably obtained without the use of flash units, Redflex shallprovide and install such flash units.

6. The Redflex Project Manager (or a reasonable altemate) shall be available to thePolice Project Manager each day, on a reasonable best efforts basis.

7. Redflex shall insure and license the Mobile Speed Van during the life of theAgreement.

Redflex shall provide for all maintenance of the Designated Vehicle or Mobile SpeedVan, other than oil changes and fluid replacements which shall be provided by theCustomer.

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EXHIBIT "D"COMPENSATION & PRICING

Mobile Speed Van

$50 per paid Citation to Redflex

Partial payments calculated at 53% to Redflex

Red Li¢ht and Fixed Speed Camera

0 to 1000 Notices paid per month 65 % to Redflex

1001-2000 Notices paid per month 55% Redflex

Red L32ht Enforcement Onlv



BUSINESS ASSCJMPTIONS FOR ALL PRICING OPTIONS:

Redflex construction will be able to utilize existing conduit for installation where space isavailable subject to approval of City Engineer. Since paid Citations are currentlyprocessed by a central "Lock Box" application of Sky Bank, Cleveland, Ohio, Redflexwill remit to the City monthly the Fines collected and shall bill the City for the portion ofFines which are owed to Redflex pursuant to the above outline for reimbursement. TheCity shall remit payment to Redflex within five (5) business days. Initial pricing assumesa civil penaity of at least $95.

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Exhibit "E"Additional Rights and Obligations

1. Redflex and the Customer shall respectively have the additional rights and obligationsset forth below:

2. Redflex shall assist the Customer in public information and education efforts,including but not limited to the development of artwork for utility bill inserts, pressreleases and schedules for any public launch of the Redlight/Speed PhotoEnforcement Program (actual print and production costs are the sole responsibility ofthe Customer).

3. Redflex shalI be solely responsible for installing Signage. The Customer shall besolely responsible for the fabrication of any signage, notices or other postingsrequired pursuant to any law, rule or regulation of any Governmental Authority("Silia ), including but not limited to the Ohio Traffic Code, and shall assist indetennining the placement of such Signage.

4. The Redflex Project Manager and the Police Project Manager shall meet on a weeklybasis during the period commencing as of the date of execution hereof and ending onthe Installation Date as defined in Section 1.12 of the Agreement, and on a monthlybasis for the remainder of the Term, at such times and places as the Redflex Managerand the Customer Manager shall mutually agree.

5. The Customer shall not access the Redflex Systein or use the Redlight/Speed PhotoEnforcement Program in any manner other than prescribed by law and which restrictsor inhibits any other Person from using the Redflex System or the Redflex PhotoEnforcement Program with respect to any Intersection Approaches constrvcted ormaintained by Redflex for such Person, or which could damage, disable, impair oroverburden the Redflex System or the Redflex Photo Enforcement Program, and theCustomer shall not attempt to gain unauthorized access to (i) any account of any otherPerson, (ii) any computer systems or networks connected to the Redflex System, or(iii) any materials or information not intentionally made available by Redflex to theCustomer by rneans of hacking, password mining or any other method whatsoever,nor shall the Customer cause any other Person to do any of the foregoing,

6. The Customer shall maintain the confidentiality of any username, password or otherprocess or device for accessing the Redflex System or using the Redlight PhotoEnforcement Program.

7. Each of Redflex and the Customer shall advise each other in writing with respect toany applicable rules or regulations governing the conduct of the other on or withrespect to the property of such other party, including but not limited to rules andregulations relating to the safeguarding of confidential or proprietary infotmation, andwhen so advised, each of Redflex and the Customer shall obey any and all such rulesand regtilations.

2fiof32

S. The Customer shall promptly reimburse Redflex for the cost of repairing or replacingany portion of the Redflex System, or any propetty or equipment related thereto,damaged directly or indirectly by the Customer, or any of its employees, contractorsor agents.

9. Insurance . During the Term, RedfIex shall procure and maintain at Redflex's solecost and expense the following insurance coverage with respect to claims for injuries topersons or damages to property which may arise from or in connection with theperformance of work or services pursuant to this Agreement by Redflex, and each ofRedflex's sub contractors, agents, representatives and employees:

9.1.Commercial General Liability Insurance. Commercial General LiabilityInsurance with coverage of not less than One Million Dollars ($1,000,000)combined single limit per occurrence for bodily injury and property damage;

9.2.Connnercial Automobile Liability Insurance. Commercial Automobile LiabilityInsurance with coverage of not less than One Million Dollars ($1,000,000)combined single limit per occurrence for bodily injury or property damage,including but not limited to coverage for all automobiles owned by Redflex, hiredby Redflex, and owned by third parties;

9.3.Professional Liability (Errors and Omissions) Insurance. Redflex will use itscommercial best efforts to procure and maintain Professional Liability (Errors andOmissions) Insurance with coverage of not less than One Million Dollars($1,000,000) per occurrence and in the aggregate.

9.4.Workers' Compensation and Employer's Liability Insurance. Workers'Compensation Insurance with coverage of not less than the limits required by theLabor Code of the State of Ohio, Employer's Liability Insurance with coverage ofnot less than One Million Dollars ($1,000,000) per occurrence.

9.5.With respect to the insurance described in this Section 9 of this Exhibit E, anydeductibles or self-insured retentions must be declared to and approved by theCustomer, and any changes to such deductibles or self-insured retentions duringthe Term must be approved in advance in writing by the Customer.

9.6.With respect to the Commercial General Liability Insurance the followingadditional provisions shall apply:

9.7.The Chillicothe Parties shall be covered as additional insureds with respect to anyliability arising from any act or omission of any Redflex Parties on the premisesupon which any such Redflex Parties may perform services pursuant to thisAgreement, and such coverage shall contain no special limitations on the scope ofprotection afforded to such additional insured.

9.8.The insurance coverage procured by Redflex and described above shall be theprimary insurance with respect to the Chillicothe Parties in connection with thisAgreement, and any insnrance or self-insurance maintained by any of theChillicothe Parties shall be in excess, and not in contribution to, such insurance.

9.9.Any failure to comply with the reporting provisions of the various insurancepolicies described above shall not affect the coverage provided to the ChillicotheParties, and such insurance policies shall state that such insurance coverage shallapply separately with respect to each additional insured against whom any claim

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is made or suit is brought, except with respect to the limits set forth in suchinsurance policies.

9.10. With respect to the insurance described in this Section 9 of this Exhibit $,each such insurance policy shall be endorsed to state that the coverage providedthereby shall not be cancelled except after thirty (30) calendar days' prior writtennotice to the Customer. If any of the Redflex Parties are notified by any insurerthat any insurance coverage will be cancelled, Reditex shall immediately providewritten notice thereof to the Customer and shall take all necessary actions tocorrect such cancellation in coverage limits, and shall provide written notice tothe Customer of the date and nature of such correction. If Redflex, for anyreason, fails to maintain the insurance coverage required pursuant to thisAgreement, such failure shall be deemed a material breach of this Agreement, andthe Customer shall have the right, but not the obligation and exercisable in its soiediscretion, to either (i) terminate this Agreement and seek damages from Redflexfor such breach, or (ii) purchase such required insurance, and without furthernotice to Redflex, deduct from any amounts due to Redflex pursuant to thisAgreement, any premium costs advance by the Customer for such insurance. Ifthe premium costs advanced by the Customer for such insurance exceed anyamounts due to Redflex pursuant to this Agreement, Redflex shall protnptly remitsuch excess amount to the Customer upon receipt of written notice thereof.

9,11. Redflex shall provide certificates of insurance evidencing the insurancerequired pursuant to the terms of this Agreement, which certificates shall beexecuted by an authorized representative of the applicable insurer, and whichcertificates shall be delivered to the Customer prior to Redflex commencing anywork pursuant to the terms of this Agreement.

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Exhibit FFORM OF ACKNOWLEDGMENT AND CONSENT

THJS ACKNOWLEDGMENT AND CONSENT is entered into by andbetween the City of L u-1- f r- vTftE (the "City") and RedflexTraffic Systems, Inc. ("Redflex"), dated Fc.R , r+l .IQ 8', related to that certainAgreement dated /^ep,, icj by and between the City andRedflex (the "Agreement") which hereby acknowledges, consents and agrees to thefollowing (the "Consent"):

Redflex has financed certain operations and equipment related to its business,including but not limited to camera systems, housing and poles (the "Equipment")tbrough certain lenders (the "Lenders"). Redflex has granted to Lenders a securityinterest in the Equipment, related property including software and proceedsthereto as collateral for the performance when due of its obligations to Lenders.Redflex desires to assign all of its rights, but none of its liabilities or obligationsunder the Agreement (the "Assignment") to [Insert Name], as collateral agent forthe Lenders (the "Collateral Agent"). Redflex will not, by virtue of theAssignment, be relieved of any liability or obligation under the Agreement orotherwise, and neither Collateral Agent nor Lenders are assuming any liabilitiesor obligations under the Agreement.- City hereby acknowledges notice of theAssignment and hereby consents thereto and to assignment to any similarsubsequent financing party of Redflex, and further acknowledges that CollateralAgent or Lenders, and their respective successors and assigns, and any othersubsequent future lender, may assign the rights received from Redflex.

2. Redflex hereby authorizes City upon Collateral Agent's written request to makeany payments due to Redflex under the Agreement directly to Collateral Agent,c% [Insert Address], or to whornever Collateral Agent may from time to timedirect in writing.

3. City acknowledges that the attached Exhibit A is a true, correct and completecopy of the Agreement.

4. City agrees that City shall not assert against Collateral Agent and Lenders anyright or claim of set off, recoupment, counterclaim or other defense'in respect ofamounts or obligations owed by Collateral Agent and Lenders to City againstamounts or obligations that City owes to Collateral Agent and Lenders under theAgreement.

5. In accordance with Section 20 (f) of the Agreement, this Consent shall be deemedto be notice to City. In the event that City fails to provide such approval or objectto this Consent within a reasonable time which shall include at least three weeksprior to the next City Council meeting; including this City Council meeting; andthree days following the meeting after its receipt of such notice from Redflex, for

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the pLnposes of this Agreement, the City shall be deemed to have consented toand approved this Consent.

IN WITNESS THEREOF, each of the undersigned has caused thisAcknowledgment and Consent to be executed by its duly elected officers duly authorizedas of the date first above written.

Redflex Traffic Systems

By:

Date:

Address;

it Name: r.i

Title: -V^'k.ES1 nENT ^ ('{^7-)

Date: M-EC^ -

Address:

30 oF32

AGENOAN0.

Proposed by:Safety Services Committec

ORDINANCE NO. , 6 2- D 8

; A;^,irliM]

i y,nnn^

AN ORDINANCE ENACTING CHAPTER 315 OF THE CODIFIED ORDINANCES OFTHE CITY OF CHILLICOTHE, 0I110, TO PROVIDE FOR TIIE IMPLEMENTATIONOF A PHO'I'O'f'RAFFIC ENFORCEMENT SYSTEM FOR THE ADMINISTRATIVEENFORCEMENT OF TRAFFIC CONTROL SIGNALS AND SI'EED LIMITS.

WIIEREAS, disobedience to traffic control signals and speed limits occurs frequently within theCity of Chillicothe, sometimes resul(ing in rnolor vehicle crasho.s, which have resultcd in (Ieath,personal injury or substantial property damage; and

WHEREAS, dte freqticncy of running red lights and exceeding Ihe speed limils crcates asubstantial risk to thc safety of the citizens on the street and roadways within the City ofChillicothe; and,

WHEREAS, the City of Chillicothe seeks to increase compliance with traffic control devicesand speed limits, thereby decreasing the frequcncy with which disobedicnce to trnffic controlsignals and speed limits and the number of nlotor vehicle crashes that are caused by suchr failurc

to compty; and

WHEREAS, the use of Photo Traffic Enforcement Systcros will assist the City of Chillicothe inincreasing compliance with rraffic control devices without the disadvantages attendant. toconventional traffic enforcement, such as disruptions in the flow of traffic at heavily traveledintersections, and expenses associated with increased police manpower; and

WHEREAS, tlie Revised Ordinances of Chillicothe, Ohio, must be antended by enacting a newChapter 315 to enable the City to implement this system; now, lherefore,

BE IT ORDAiNED BY THE COUNCIL OF THE CITY OF CHILLICOTHE, STATE OF

OHIO:

SECTION 1. 7'hat new Chapter 315 of the Revised Ordinances of Chillicothe, Ohio, is hereby

enacted to read as follows:

Chapter 315 PHOTO TRAFFIC ENFORCEMENT SYSTEM

Seclion 315.01Definitions.

As used in this chaptcr:

(A) "Phnto Traffic Enforcement System" means any photographic equipment linkcd to aviolation detection system that synchronizas the taking of a photograph, video or digitalimagc with the occurrence of a traffic signal violation in accordance with Section 313.01,or a tnoving infraction in accordance wilh Section 333.03.

(B) "Photographic Equipment" means a system that may include, but is not limited to,devices which link a camera, computer, and traffic signal, alone or in cnmbination withother devices, to detect vehicles which have violated the traffic signal and to record animage of the inotor vehicle. "Photograpliic equipntent" tnay also include, but is notliinited to, doviccs Ihat combine a camera, and computer, alone or in conthination withother devices, to measure the speed of a motor vehicle or other object and to record animage of the motor vehicle, or other objects. Thc results of photographic, video or digitalimaging cquipment means the images, speed measurement, and any othcr data orinformation produced by the Photo Traffic Enforcement System.

RCAWNG SusP.OFnulE6

tet I_, )CaYrx.elpl

D:\tcmp\Temporary Inlcmet Piles\CanlcntJC5\GXQI381AV\EnnctChaptcr 315 (56).doc

(C) A"violation" means that a vehiclc ha.s crossed the stop line in a system location when the

traffic control signal for that vehicle's direction of travel is emitting a steady red light or a

vehicle has exceeded the speed limits set forth in Section 333.03.

315.02 Adoption and Enforcement.

(A) Tite City of ChillicoLhc herchy adopts a Pholo Traffic Enforcement Systetn for thepurpose of using photographic, video or digital imaging cquipmertt to record visualimages of vehicles entering inlersections in violation of Section 313.01 of Ihe ReviscdOrdinances, or operating a vehicle in excess of the limits set forth in Section 333.03 ofthe Revised Ordinances and using said images as the basis for issuing a Notice ofLiability to Qte owners of such vehicles within 30 days of the violation.

(B) The Service-Safety Director or his or her designee(s) in conjunction with the ChillicothePolice Department shall be responsihle for implementing tlte Photo Traffic EnforcementSystem for traffic signal and speod enforcement. The Dircctor or his or her designee inconjunction with the Police Department arc hereby einpowered to designate theintersections to be monitored by the Photo Traffic Enforcement System, to issue Noticesof Liability for persons who cotnmit violations at such inLersections, and to take all othermeasures necessary for the implementation of the system, including the power topromulgate any rules and regulations deemed to be necessary for the enforcement of this

Clrapter.

(C) The intersections selected 1'or photo enforcement under this Chapler must display ayellow traffic con[rol signal for a time that complies with the Ohio Departlnent ofTransportation's Manual of Uniforin Traffic Control Devices.

(D) The street locations chosen for photo enforcement under this Chapter must display aspeed limit sign in compliance with the Ohio Department of'fransportation's Manual ofUniform Traffic Control Devices Section 2B.11 and Section 213.15 and Ohio R.C.4511.21.

315.03 Notice of Liability.

(A) Prior to the activation of a Photo'l'raffic Enforcement System, the Scrvice-SafetyDirector or his or her designee shall erect a sign in a conspicuous location that providesnotice that a Photo Traffic Enforcement System is being used to nlonitor traffic.

(B) For the first 30 days afler the activation of a Photo Traffic Enforcclnent System, noNotices of Liability will be issued based upon tlle images produced by the system.Warnings may be issued during this 30-day period.

(C) A Police Of1'icer employed by the Chillicothe Police Departmcnt shall examine the imagerecorded by the Photo Traffic Enforcement SysLem to determine whether a violation asdefined in Section 315.01 of this Chapter has occurred. If the image recorded by thePhoto Traffic Fnforcement System shows a violation, contains a date ancl time of theviolation, and shows the vehicle's license plate number as well as the state in which tltclicense was issued, the officcr may use any lawful means to identify the vehicle's owner.

(D) The facl that a person is registered as [he owner of a vehicle with the vehicle registrationoffice of the sCate that issued Lhe license plate displayed on the vehicle shall be primafacie evidence that said person was operating the vehicle at the time of a violationrecorded by a Photo Traffic Enforcement System.

(E) Within 30 days of the violation and upon identification of thc registered owner of thevehicle, the Chief of Police or his or her designee may issue a Notice of Liability,charging the owner with a violation. The Notice of Liability shall be sent by regular U.S.mail and must state the date on which the Notice of Liability was issued, the date, time,and location of the violation, tlm time in which an answer must be made by the vehicleowner, and the tnanner in which the Notice of Liability may be appealed. In addition, acopy of the itnage(s) that served as a basis for the violation must accontpany the Notice

of Liability.

q :ltempll'emlmrary Inlernct Pile.c\Cnmmnt.lE5\3XQB81 AV1Enaet Cltapler 315 (56).doc

(F) A person who receives a Notice of Liability pursuant to this Seetion shall bc required torespond within 30 days of thc date the Noticc of Liability was issued in onc of the

following methods:

1) By paying the administrative fine as directcd on thc Notice of Liability; oc'2) By submitting evidence of one of thc excep(ions to liability listed in division (G)

of this section; or3) By submitting to the address ]istcd ml the Noticc of Liability, a request for a

hearing as set forth in Section 315.04.

(G) Notwithstanding subsection 315.03(D), thc owner of the vehicle shall not be liable for apenalty under this section if the Chief of Police or Iris or her designee determines thatsufficient evidence of either of the folfowing conditions exist:

(1) At [hc lime of the violation, the vehicle was in the custody of someone othcr thanits owncr pursuant to a written leasc or rental agreement and the owner subiniLs,to thc address listed on the tickct, a copy of thc lease or rental agrcentent alongwidi the namc antl address of the Icssee or renter.

(2) At the time of the violation, the vehicte or the license plate depictcd in lhc imagewhich served as the a basis for the Notice of Liability was slolen and the ownersubmits, to the address listed on the Notice of Liability, a copy of the police reportstating [Ite vehicle or licensc plate liad been reporte(1 stolen at the time.

(H) W ithin 10 business days of receiving evidence from the vchicle owner indicating that beor shc was not operating the vehiclc at thc time of the violation, lhe issuing Police Officermay issuc a No[ice of Liability to the person whom the evidence indicates was operatingthe vchicle at the time of the violation.

(I) Nothing in this Chapter shall be construed to limit the liability of an operator of a motorvehicle for any violation of the Ohio Revised Code or [he Chillicothe Traffic Code.

315.04 Appeal of Notice of Liability.

(A) A person who received a Notice of Liability pursuant to Section 315.03 may appeal theNotice of Liability by making a wri[ten request for a hearing to the address listed on thcNotice of Liability. Said request shall be accompanied by a inonetary deposil in anamount equal to the amount of the administrative fine listod on the Notice of Liability.

(B) Within thirty days of the receipt of the request for a hearing, a hcaring shall be hetdbefore a Hearing Officer appointed by the Mayor- The Flearing Officer shall determinewhether the City has demonstrated by a preponderancc of the evidence thal a violationoccurred and that the person who rccoived the Notice of Liability is liable for the penalty

set forth in Section 315.05 of this Chapter.

(C) A certified copy of the Notice of Liability alleging Lhe violation, along with a copy of theimage lhat served as a basis for the Notice of Liability, shall be prima facie evidence ofthe facts contained therein, and shall be admissible in a proceeding alleging a violationunder this Chapter.

(D) In considering whether the person is liable, Lhe I-Tearing Officer may consider any of thefollowing as an affirmative defense of a violation:

t) That the Notice of Liability was issued and sent by first class mail more, than 30days after the date of Lhe violation rccorded by the Photo Traffic Enforcement

Systeni.

2) That the driver of the vohicle passed through the intersection or had increasedspeed in order to yield the right of way to an emergency vehicle, in accordancewith R.C. 4511.45 or to a funeral procession, in accordance with R.C. 4511.451.

D:\temp\Teniporary Intcmct Piles\Conlent.IB5\GXQ1381 A Vll3nact Chxptvr 315 (56).dnc

3) That either the vehiclc or the liccnse plate depicted on the image, which served asU're basis for thc Notice of Liability, was stolen before the violation occurred andwas not in posscssion of lhe owner at the time of the violation. To qualify as anaffirmative defense under lhis provision, the owner niust submit proof that apolice report about the stolcn vehicle or license plate was filed prior to or within48 hours after the violation.

4) That this section is unenforecable bccause the Photo Traffic 13nforcemont Systemwas noi operating prnperty, nr the Photo Traffic Gnforecmenl System was not in aproper position, or that the image that scrved as thc basis for lhe Notice ofLiabikity is not legible enough to show the fetters and numbers or tho stale that.issued the tieense plate on the vchicle.

5) That the driver of the vchicle entered thc intcrsection as part of a funeralprocession or at (he direction of a police officer.

6) Substantial and convincing evidence that the owner or person named in the Noticeof Liability was not operating the vehicle at lhe time of the violation. 'I'o satisfy(hc evidentiary burden under this provision, the uwner or person named in theNotice of Liability shall providc the Hearing Officer wilh substanlial andconvincing evidence of the identity of the person who was operating tlte vehicle atthe time of the violalion, including, at a tninimum, the operator's name andcurrent address.

(C) The Hearing Officer shall issuc a written decision within 10 days of thc hcaring andscrvc the person named on the Notice of Liability and the Chief of Police or his or herdesignee with a copy of said decision. Tn addition, if the Hearing Officer concludes thatthe testimony and/or exhibiis pre.sented at the hcaring shows by a preponderance of theevidence Ihat someone other than the person named in lhc Notice of Liability wasoperating the vehicle at the litne of the violation, the Hearing Officer shall forward to theChief of Police or his or lter designee all evidence provided to hitn or her at the hearing asto the operator's identity and order the return of the deposit providcd in accordance withScction 315.04(A) to the person who appealed.

(F) Within 10 business days of recciving the evidence referred to in subsection (E) of thissection, the Police Departmcnl or its designee may issuc a°Notice of Liability" to theperson whom thc cvidence indicates was operating the vchicle at Lhe time of Lhe

violation.

(G) tf- the Hearing Officer determines that the City has demonstrated by a proponderance ofthe evidence that the person named in the Notice of Liability committed the violation, theHcaring Officer shall enlerjudgment against Lhe pcrson and the monetary deposit filed inaccordance with Section 345.04(A) shall be forfcited to the City of Chillicothe assatisfaction of the administrative fine set forth in Section 315.05(A). Such judgmcntshatl be entcrcd into the records of Lhe Chillicothe Department of Public Safety.

(H) Ef the Hearing Officcr does not deterininc, by a preponderance of the evidence, lhat thcperson named in the Notice of Liability coinmitted Lhe violation, the Hearing Officer

shall enterjudginent against the City of Chillicolhc, shall dismiss the Notice of Liability

against the person, shall cnter the judgment and dismissal into Lhe recnrds of theChillicothe Department of Public Safety, and order the return of the deposit providcd inaccordance with Section 315.04(A) to Lhe person who appealed.

315.05 Pcnalties.

(A) Unless the operator of a vchicle received a traffic citation from a police officer or lawenforcement officer at the time and Iocation the violation occurred, an administrativo finein the amount of $95.00 shall bc assessed against the vehicle owner for the commissionof a violation as defined in Section 315.01 of this Chapter.

(B) A violation for which an administrative finc is imposed under this Section shall not beconsidered a traffic offense or a moving violation for the purpose of assessing points

D:ltcmplTcniporary lnmmut PitcslContcnt.Il?5\G XQ13N1 AV\Gnnct Chaptcr 315 (56).rloc

under Ohio Revised Code 4507.021 and shall not be reported to the Burcau of MotorVchiclcs of any state.

(C) The failurc to respanrl to a°Notice of Liability" in accordancc wi0l Section 315.03(F)shall constitute a waiver of Ihe rigltt to contest liability for the violation as provided bySection 315.04.

(17) If the vehic[e owrter fails to respond to the Notice of Liability within the period set furihin 315.03(F), or the penalties provided in this Section remaiin unpaid for morc than 90days after the date on which the Notice of Liability was seot, the penalties shall be

collected rogethcr with any intcresL and pcnalties tt'icrr.in by civil suit or other appropriatemeans of collection.

SECTiON 2. The provisions of any ordinance inconsistent witb the provisions of thisOrdinance are hereby repealcd.

SECTION 3. 'I'his Ordinance shall be in full force and offect from and immediately following(he earliest date provided for by law.

Passcd: Jun 9 , 2008

CUb

Attest:

Approved: '10.° ' ,2008 FIL);DW[THTHHMAYOR

^^2Jun 9 , 2008

OrR

ca" were the fo[lowinkmembers of Council ^es, Bonner, Cross, Lester,

V (i "o ng yMa7one, Patrick, Proeli7., and mrutsclael. Hen ersoc a sent.

D:\templ'I'cmporary Intcrnet Pites\Content.lE5\GXQ68) A V\Enact Chapter 315 (56).doc

DEC 0 9 2008

(v CHILLICOTHE CITY AUUITOFr_ TITLE: AN ORDINANCE RESTRICTING USE OF MOBILE SPEED

Qv^ ENFORCEMENT VEHICLES AND TRAFFIC LAW PHOTO-MONITORINGDEVICES AND REPEALING ORDINANCE NUMBER 151-07 AND CHAPTER

^. , 315 OF THE REVISED ORDINANCES OF CHILLICOTHE, OHIO

TEXT: BE IT ORDAINED by the electors of the City of Chillicothe, as follows:

Section 1: The City of Chillicothe, including its various boards, agencies anddepartments, shall not use any traffic law photo-monitoring device or mobilespeed enforcement vehicle for the enforcement of a qualified traffic law violation,unless a law enforcement officer is present at the location of the device orvehicle and personally issues the ticket to the alleged violator at the time andlocation of the violation.

Section 2: Definitions. As used in this Ordinance:

a. "Law enforcement offiCer" means any law enforcement officer employed bythe City of Chillicothe or by Ross County.

b. "Quaiified traffic law violation" means a violation of any of the foliowing: (1)any state or local law relating to compliance with a traffic control signal or arailroad crossing sign or signal; or (2) any state or locai law limiting the speed ofa motor vehicle.

c. "Ticket" means any traffic ticket, citation, summons, or other notice of iiability,whether civil, criminat, or administrative, issued in response to an allegedqualified traffic law violation detected by a traffic law photo-monitoring device.

d. 'Traffic law photo-monitoring device" means any electronic, photographic,video, radar, laser or digital system used to produce evidence of an allegedtraftic violation and/or the identity of the operator of any motor vehicle.

e. "Mobile speed enforcement vehicle" means any vehicle that uses anyelectronic, photographic, video, radar, laser or digital system to produceevidence of the speed of motor vehicles or the identity of the operator of anymotor vehicle.

5ection 3: Chillicothe Ordinance Number 151-07, Chapter 315 of the RevisedOrdinances of Chillicothe, Ohio, and any ordinance implementing either that maybe enacted prior to the passage of this Ordinance, are hereby repealed, void,and of no effect. The City shall not hereafter enact or enforce any ordinance thatconflicts with this Ordinance. In the event that any provision of this Ordinance isfound to be unconstitutional or impermissibly in conflict with state or federal law,only such provision found to be unconstitutional or impermissible will be stricken,and the remainder of this Ordinance will remain in full force and effect.

Section 4: The City shall not be a party to any contract for the installation of anytrafwq law photo-monitoring device or mobile speed enforcement vehicle ifpayment to the vendor or installer is contingent on the number of tickets issuedor fees coiiected. Any such oontract is hereby declared to be void for illegality.

Section 5: In any civil proceeding for the enforcement of any traffic law vioiation,the alleged violator is entitled to the benefits of the procedures set forth in theOhio Rules of Civil Procedure, in Title 23 of the Ohio Revised Code, and in theOhio Rules of Evidence.

Section 6: In any administratlve proceeding for the enforcement of any traffic lawviolation, the alleged violator is entitied to the benefits of the procedures set forthin Titte 119 of the Ohio Revised Code and in the Ohio Rules of Evidence.

Section 1: Notwithstanding the provisions of Sections 4 and 5, alleged trafficviolators in any civil or administrative traffic proceeding are also entitled to thebenefils of such other sections of state, federal, or common law as may apply.

ATTESTATION

This is to certify and attest to the fact that the above and foregoing is atrue and exact reproduction of the originai proposed ordinance.

Chairperson: CAPE M'e7ttber, CAPEInitiative Pefftion Committee Initiative Petition Committee

07.^ ^^. ---ember, CAPE Member, CAPE

Initiative Petition Committee Initiative Petition Committee

Mbmber, APEInitiative Petition Committee

In the Ross County Board of Elections

Re: Initiative Ordinance Restricting the Use of Mobile Speed Enforcement Vehiclesand Traffic Law Photo Monitoring Devices

Protest

The City of Chillicothe, pursuant to Section 3501.39, Ohio Revised Code, protestsagainst the petition for the initiative petition for the reasons that portions of the petitionviolate existing state law, portions of the petition violate the Ohio and United StatesConstitution and the petition is confusing and misleading to the voting public.

The specific protests are as follows:

1. The proposed ordinance atternpts to limit the conduct of any law enforcementofficer employed by Ross County in the use of mobile speed enforcementvehicles and traffic law photo-monitoring devices. The City of Chillicothenor its citizens have any legal authority to regulate the conduct of lawenforcement officers employed by Ross County.

2. The proposed ordinance attempts to repeal Chillicothe Ordinance Number151-07 and Chapter 315 of the Revised Ordinances of Chillicothe, Ohio.Accordingly, it is directed at the cameras installed by RedFlex, which monitorred light and speed violations at various locations in the city. However, thedefinitions in the proposed ordinance of "traffic law photo-monitoring device"and "mobile speed enforcement vehicle" are so broad as to include any lawenforcement vehicle, which uses either a mounted canlera, radar or a lasersystem in the enforcenient of traffic violations. Accordingly, under the termsof the proposed ordinance, a Chillicothe police officer patrolling in his/herpolice cniiser and observing a vehicle violating a red light or speeding, couldnot radio the violation to another police cruiser and have that officer stop theoffender. Even if the officer that observed the violation then arrived at thescene of the arrest and attempted to issue the ticket personally, it would beinvalid because it would not be issued at the time and location of the violationas required by the proposed ordinance

3. The proposed ordinance not only indicates that it is repealing ChillicotheOrdinance Number 151-07, [The ordinance that authorized the mayor to enterinto a contract with RedFlex] and Chapter 315 the Revised Ordinances ofChillicothe, Ohio, [Which governs the use and enforcement of red lightcamera violations], but it also indicates that any future City Council isprohibited from acting or enforcing any ordiiiance that conflicts with theproposed ordinance. It is illegal to attempt to prohibit future councils fromexercising their legal powers.

4. The proposed ordinance is illegal and unconstitutional in that it attempts toimpait an existing contract between the City and RedF7ex.

5. The proposed ordinance incorrectly states that the benefits of the proceduresset forth in the Ohio Rules of Civil Procedure apply to the enforcement of anytraffic law violation. No proceedings for the enforcement of any traffic lawviolation, including those contained in Chapter 315 of the CodifiedOrdinances is a civil proceeding, and therefore the Rules of Civil Proceduredo not apply.

6. The proposed ordinance incorrectly indicates that in any administrativeproceeding for the enforcement of any traffic law violations, the allegedviolators are entitled to the benefits of the procedures set forth in Title 119 ofthe Ohio Revised Code, when title 119 of the Revised Code does not apply toany administrative proceeding for the enforcement of traffic law violations.

7. The actions of the Council of the City of Chillicothe in enacting Ordinance151-07 and Chapter 315 of the Codified Ordinances were administrative andnot legislative. Therefore those actions are not subject to initiativeproceedings.

Please schedule a hearing on these protests at your ear•liest opportunity.

ames LMan1)w W^^Assistant director of law

20 E. 2" St.Chillicothe, OH 45601(740) 774-4175(740) 773-6081 [email protected]

Certificateof Service

I hereby certify that I served a copy of the foregoing protests upon William C.Kaltenbach, chaiiperson, CAPE Initiative Petition Committee, by mailing it to him bycextified mail at 516 McKellar Road, Chillicothe, Ohio 45601 this 14#1 day of August,2009.

3' ^-,^Jamc`s L. Mann (0007611)Assistant director of law

ROSS COUNTY BOARD OF ELECTIONSRED LIGHT HEARING

September 2, 2009

RED LIGHTHEARING The rneetin.g was brought to order at 8:00 P. M. by Ron Fields. The

following were present:

Ron Fields, ChairmanSteve MadruDon FullerBeth NealNora Madru, DirectorMaralce Scheeler, Deputy DirectorJames Mann, Representing the C.ity of ChillicotheDavid Kastner, Representing C.A.P.EMike Ater, Ross County Prosecutor

HEARINGCONCERNINGRED LIGII'['CAMERAS Ron: We'd like to th.ank you for attending the hearing this evening. We're

here this evening because of a protest filed by the city of Chillicotheconcerning the initiative filed by C.A.P.E. initiative petition committee. Theprotest claims the initiative is unconstitutional and otherwise illegal. Theprotest asks the Board of Elections to remove this ioitiative frotu the ballot. Iwould like to start by saying that we believe-that substantive andconstitutional issues such as this are better addressed by the courts ratherthan through the Board of Elections. Further more, each of us on the Board.of Elections firmly believe that access to the ballot is one of the mostfundamental rights that any American would enjoy. I would appreciate it ifyou would let us conduct the meeting and your applause and cheers won'thelp or hurt your case, I pro.mise. Okay, having said that, the Board mustdetermine and wi,ll determine tbis petition on .its merits. First and foremost,this is not a courtroom. We're not going to conduct a hearing as if it were atrial. We're not going to take additional evidence, testimony, swom or un-swom, documents or affidavits at this hearing. But, it is our intention to letone representative, the ones we've named, ftro.m eacb, side, talk about thelegal merits of this case. And, I want to sttess that I mean legal merits of thiscase. With that, the city filed the protest and we will let tbem speak first.And then, the representative from the C.A.P.E. initiative may speak. Again,we will neither accept additional documentation, testimony of any kind,other than what the two representatives have to say and offer. So, with that,Jim would you like to use this microphone? Jim: If that will help. Ron: Iwould appreciate it because otherwise our recorder will not pick it up. Jim:Th.at'd be fine. May I pull this out so I can just lay my notebook on it?

September 2, 2009 MIN

Jim: We have filed these protests based. upon two basic legal principles. Weunderstand that some of those indicate that portions of this ordinance areunconstitutional and that they're in conflict with state law. However, weunderstand this not a court and we are not aski.ng this board to make adetermination as to whether these issues are unconstitutional or in conflictwith state law. However, this board does have the authority to rem.ove apetition from the ballot on two issues, which we will be presenting to you.The first is whether the language of th.e proposed ordinance is confusing andmisleading to the public and those are the subject of our first six protests andI'll go through those each and expl.ain why that is. The last is that initiative isnot available when, the ordinance has been passcd is an administrative asopposed to a legislative ordinance. And, that simply means, and that's ourprotest number seven, if the ordinance complained of, and in this case we allknow that was the ordinance authorizing the Mayor to enter into a contractwith Redflex, and a second ordinance that set up proccdural matters of howyou deal with tlte citations issued on the Redflex cameras. If that ordinancecreates a new power or. law, then it is a legislative ordinance. If all it does isadminister a law that is already in effect, then it is an administrativeordinance and. the right of initiative is not available, that's been firmlydecided by the Ohio Supreme Court in a number of decisions. Let me goback then and talk about our vari.ous protests. You have in front of you, i'msure, a protest and you probably have a copy of the ordinance, the proposedordinance of the initiative petition. Let's talk about our protests, I'm going tolump these into number one and two, and talk about them at the same time.The first one is that the proposed ordinance attempts to limit the conduct ofany law enforcement officer employed by Ross County, whether using radaror other speed detection equipment or traffic law plloto monitoring devicesand incidentally, those two phrases, as set foxth in the proposed ordinanceare very important to each of these c.h.allenges, The City of Chillicothe has noauthority whatsoever, to regulate the conduct of law enforcement officersemployed by Ross County. They simply do not. So, one, the ordinance ismisleading in that it tells the citizen voting for or against this ordinance thatthey're going to be able to regulate sheriff's deputies who are enforcing stateor city law within the limits of the corporation. Secondly, and this is oursecond protest, it is obvious that this is directed at the Redflex ordinancesbecause those are the ones that are challenged and the ones that it hasclaimed are going to be done away with and they're not going to existanymore. The problems in. that regard come from the definitions, which arein the ordinance itself. One of them defines traffic law photo monitoringdevice and the other one defines mobile speed enforcement vehicle. If you'rereading the ordinance, the proposed ordinance, you would assume that meansthe cameras and other equipment that have been erected by Redflex. But, thedefinitions are much broader than that, and if you have the proposedordinance in front of you follow along with me, it's on the very first page.First of all, it says that a traffic law photo monitoring device means: Anyelectronic, photographic, video, radar, I.aser, or digital system used toproduce evidence of an alleged traffic violation and/or the identity of theoperator of any motor vehicle. Mobile speed enforcement vehicle means:

9/2/09 minutes 2

Any vehicle that uses any electronic, photographic, video, radar, laser ordigital system to produce evidence of the speed of motor vehicles or theidentity of the operator of any motor vehicle. Ladies and gentlemen, youhave just described every law enforcement vchicle used by City ofChillicotbe, for that matter Ross County and the State Highway Patrol. Everyone of those vehicles has in it, caitteras to help identify people, They're usedon stops for OVI's. They're used at almost any stop to photograph it sothere's no claim of improper conduct by police officers. They have radar,they have lasers, and they're used. to monitor and stop those kinds ofviolations. The problem becomes that when you have a definition that is thatbroad, and you're describing every law enforcement vehicle used by thisCity, you go back up to section one of the proposed ordinance, which saysthat the City shall not use any traffic law photo monitoring device, or mobilespeed enforcement vehicle for the enforcement of a qualified traffic violationwhich is deflned to me, speed or running red light, unless a law enforcementofficer is present at the location of the devi.ce, or vehicle and pe.rsonallyissues the ticket to the alleged violator at the time and location of theviolation. This means very simply that under this ordinance, and this is whyit's so misleading to the public, and why I don't think the average voterwould understand this, that if the City parks a cruiser up at the north end oftown in. the morning, where the speed.litnit tums to 45 MPH on BridgeStreet and is clocking traf.fi.c witb radat and they're clocking peo.ple comingthrougb. there at 55 or whatever MPH, and it is very customary and permittedby Ohio Law, they radio ahead to another officer to stop those vehicles.Under this ordinance, that officer who gets the radio call, can't make a stopand can't issue the ticket, not only because he's not the one who saw theviolation, but the ticket is not given at the location of the violation. A.nofficer going north bound on Bridge Street who observes a car going southbound tun a red ligbt, and radios back so that before he can get tumedaround to stop the red Cadillac, because it just blew the light, at Bridge andMarietta, can't have that officer issue the ticket and in fact thcy would haveto bring the violator back to the scene of the crime to issue the ticket. That'swhat this ordinance says. .1 don't think that's what was intended. It iscertainly misleading to have that. On top of that, the Ohio Revised Codespecifically provides that law enforcement officers can use.radar, laser, anyother timing, speeding device that they want to clock vehicles and that theycan then stop it whether tliey've seen, the violation and clocked it, or whetherit has been radioed to them by another velxicle. That's section 4511.091 ofthe Ohio Revised Code. So, what we have is a proposed ordinance thatwould tell our police officers that they can't do what they are authorized todo by the Ohio Revised Code, That is, call ahead. and have another cruiserstop that vehicle if it's a speeding or a red light violation, They can't havethe ticket given there, they would .have to stop their surveillance, drive down,to wliere the person is apprehended and have that officer issue thetn a ticket,but wait, that's still not good because it says it has to be given at the locationof the violation. I don't think that the average citizen looking at this wouldimagine that that's what this is intended to do, but that is in fact what it says.And, it is therefore confusing. Let me move on to our protests three and four.

9/2/09 minates 3

Those have to do with the fact that the ordinance says that it is going to doaway with the contract with. Redflex. lt also says that any future City Councilis prohibited from passing any ordinance that is in conflict with this initiativeordinance. I think the average person voting for this ordinance, if theybelieve that's what they want, they would think no I'm going to stop itforever and that simply isn't true. Because what will happen is, if this passes,immediately Council's going to be asking the Law Director's office, well geedo we still have a contract with Redflex? Our answer's going to be; yes youdo, because it is unconstitutional to impair an existing contract. You've justtaken away rights that Redflex contracted to get and you've said to them,take your ca.me.ta out because we don't like that contract you made eventhough you've got another four years to run on it. There is also law, bothappellate and Supreme Court that says you cannot pass a law, an ordinancethat prevents a future council from exercising their rights to pass a law that'scontrary to it. So, to tell people that you can't do this, council in the futurecannot do anything to oppose this or pass anything i.n violation of it is notgoing to happen because it's against the Jaw and it's unconstitutional. So,what is being promised by this ordinance can't happen. Once again, it'smisleading. The ordinance has other deficiencies. In our protests five and sixit says it is going to give the benefits of the procedures set forth in the OhioRules of Civil Procedure to anybody who comes in front of the proceedingtegarding these Redflex cameras. The Rules of Civil Procedure simply donot apply. They apply to only civil proceedings. Let me give you an exampleof bow misleading that really could be and how disruptive it could be to lawenfo.rcement. Today, under the rules, traffic rules and criminal rules, if I'mcharged with a speeding ticket or running a red light, I don't have the right toissue interrogatories, requests for admissions to the City, or request the rightto take the deposition of the citing officer. If the Rules of Civil Procedureapplied to these provisions, you would. The ordinance incorrectly indicatesthat in any administrative proceeding for the en.forcement of a traffic lawviolation, the alleged violator is entitled to the benefits of the procedure setforth, entitled 119 of the Ohio Revised Code. That chapter doesn't set uprights and provisions it sets up the terrns under which administrativeprovisions can be passed. So once again, if the voter tllinks that they're goingto get some benefit from Title 119, that's not going to happen. Finally, let meaddress our last protest, and that is that fact that this is an administrative andnot a legislative ordinance. The ordinance simply gave the Mayor power toenter into a contract with Redf.lex to essentially buy or contract for speedenforcement equipment. It did not give any rights to Council, who passed it,Council already had the rights as set forth in Section 715.05 of the OhioRevised Code and this has been in effect since 1953 that all municipalcorporations may organize and maintain police and fire department, erect thenccessary buildings, and purcltase and hold all implements and apparatusrequired there. Council alrea.dy had that power, they can buy any piece ofequipment they want, to help their law enforcement personnel enforce thelaw. They can buy the radar guns that go i.n the police vehicles. They can buythem laptop computers. We just issued a new contract to bu.y new serviceweapons for the police department. The power to do that didn't come from

9/2/09 minutes 4

that ordinance. The power to do that came from this statute that has beenthere since at least 1953. So, when Council made the decision that we'regoing out to buy some electronic equipment to help our police force enforcethe law, they weren't creating any new right, they were simply exercising aright that they already had. And therefore, the ordinance that they areattacking and trying to do away with is administrative as opposed tolegislative. There is one Supreme Court decision after another, after anotherthat says if the ordinance complained of is administrative as opposed tolegislative, that it is, it simply is administering an existing law and notcreating a new law, but there is no right of either initiative or referendum.So, in this case, there is no right from the beginning of right of initiativebecause it is simply an administrative ordinance. We think that there are thetwo bass for this Board to determine that this issue should not be on theballot. One, as I've discussed, is that it i.s incredibly misleading andconfusing to the public, based upon the in.fo.rmation that I had just presentedto you. Those are our protests one through six. Protest number seven isthere's no right of initiative anyway because it is an administrativeordinance. Thank you for your attention.

Ron: Thank you .Mr. Mann. Next we have David Kastncr, who represents theinitiative petition committee,

David: I love to see all your smiling faces. I want to thank the Board, first ofall, for holding this hearing and conducting it in this manner. Before I start, Iwant to remind everybody here of a great American, wbo in 1863 gave awonderfnl address that most of us were compelled to memorize in school.The Civil War literally could liave totn this country apart, this 87 year oldcountry, and we were in peril of falling back under the rule of the•powersthat colonized it before this union. I think we could translate AbrahamLincoln's desires and many of those of that day into terms we hear today liketransparency of government, the right to redress that's in the FirstAmendment, and the right of a citizen to take legislative action and the rightof a citizen to invalidate legislative action of their elected officials that'sagainst their interest. So, we're in similarly perilous times, right here in thisCity, in this moment. And, I applaud you for being here because obviously,you do not want Government of the people, by the people and for the peopleto perish on the face of the earth. Now, again, I appreciate the Board and Iappreciate you indulging me, but it's been said that these are purely legalissues, and yes they are. And, it is a purely legal question whetber or not thecitizenry have a right to redress against what's been done. As far as the legallanguage of the proposed amendment...First of all, Mr. Mann's argumentsare not really legal they're factual. And yes, it is obvious that it's directed atthe Redflex cameras, But, to say that mobile speed euforcement vehicle andthese definitions of devices apply to all of the equipment that policemenhave in their vehicle and it limits the way they use thein is simply notcorrect. First of all, the mobile speed enforcement vehicle is a van. thatRedflex and the City plan to use to en.force speed. And, their seriousquestion is to wbetlter• or not they have the proper license to operate it and it

9/2/09 minutes 5

has since disappeared, at least temporarily. But there's clear intension to usethat vehicle. So, that language must be in there and I think it's offensive totry to make legal conclusions and to conclude that the citizens can't read.Now, third, as far as the next two questions. Well, let me regress, theordinance does not attempt to limit Ross County law enforcement officerswithin the County, it does not say. But certainly, the legislative body has theright to say how anyone, no matter how they are or who they are employedby, how anyone conducts themselves within the city limits. It is absolntelywithin the purview of the legislative body. Whether it be the City Council orwhether it be the citizens acting as a.legislative body. You certainly have theright to limit how people conduct themselves, now that's a generalstatement. Obviously, there could be conflicts with other statutes, but thatdoesn't form a ground for a protest. There's no co.n.clusion here that thatlanguage here does just that. It could be interpreted in any kind of crazy andwild ways in order to make it sound as thougll that's what that does. We'renot trying, C.A.P.E. is not trying, the citizens are not trying to limit theauthority or change the way that law enforcements officers act, in any way,except for the use of these devices. The fact of the matter is, that the statutein section one says that it is any law enforceme.nt of6cer present at thelocation of the device or vehicle. And by the way, whether it's radar orwhether it's a p.icture, it's not a legal conclusion that that person broke thelaw. It's only evidence to be used. All the statute is saying, all the proposedlanguage is saying of the ordinance i.s that these photo monitoring devicesmust be used by an officer, not stationed on the comer and. then ticketremotely issued. That's all that it says. It doesn't limit any current or futureactivity of an officcr to radio ahead. You know, I can see a situation whereone officer radios ahead to another officer, and let's say it's a speedingviolation, they may still be speeding, then that officer witnessed it too. Itdoesn't in any way...you know Mr. Mann also mentioned, again these arefactual, these are not legal arguments, lie also mentioned something about atthe location. Many times there are accidents that cause obstructions orviolations that cause obstructions and the person who's pulled over...Now,where's the location? Where that happened? Or where lie was pulled over,because that's where he wrote the ticket. Nobody's arguing that he should becurtailed from that activity whatsoever, okay? No, he wants to interpret it sobroadly that it's confusing, but then, he turns around to the other side of hismouth and wants to say that it's narrow on this point of location. No.Absolutely not. There is nothing in there that says anything other than a lawenforcement officer; a law enforcement officer issues the ticket, okay? Andthat this equipment is used by that officer. Currently, and yes it's true that'swhat we're fighting against, these remote devices...Currently, an officer'snot there. The ticket is issued by some other office. It looks like it's frotn theCity of Chillicothe but it comes from Cleveland or somewhere else like that.That's not what the citi7ens want. Next, he makes a constitutional argument,that it's an interference with Redflex's contract. There are many reasons tobelieve, accor,dirng to contract law, that there has been no contract, that thecontract was illusory. That, especially the clause where they said that ifthere's a malfunction; Redflex will make all efforts as soon as possible to

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repair tl e device. There are many points of contention as to whether acontract was actually formed. And, there are many strange circumstancesabout this alleged contract. Again, a contract is a meeting of the mindsbetween two parties. The paper that it's written, on is actually thememorandum of contract. It's actually an evidence of that meeting of theminds, okay? So, other evidence, normally termed as parole evidence, can beused, in many cases, to deterttaine whether or not an actual contract, again alegal conclusion a meeting of the minds between two parties, supported byconsideration going in both directions, has occurred. The paper that it'swritten on is not the contract, okay? So, there's an issue as to whether or notan actual contract was even formed. Now, there's also an issue as to whetheror not it's an illegal type of incentive contract, where by they get paid basedupon a percentage of the tickets that they write. So, the tickets come out oftheir operation. So, you know, as far as the constitutional arguments ofinterference with Redflex's rights, courts always do balancing acts, thenwhose rights should be superior here, the citizens, who have major problemswith whether or not there's even a. contract formed? Or th,e .rights of onecompany? So, it's not just that simple as far as the constitutional question ofinterference with contract. It's not that simple at all. As far as proceduralrules, civil procedure rules that do not apply. Just because they don't now,doesn't mean that they can't, okay? The real issue here is, and there is plentyof case law on this also, that a traffic violation is a criminal offense. It's anoffense against statues written in the Ohio Revised Code. Now, there's justas rnuch citations out there, there's just as much law out there that talksabout whether or not, and under what circumstances, you can take somethingthat is the purvey of the state legislature and make it now, which says it'scriminal, and make it now civil, make it now administrative in nature, okay?I'm not saying that it can't be, okay? But at times those things have beensuccessfully challenged because in doing so, it has to be consistent with therules. ,.with the law, excuse me, in tbe Ohio Revised Code, with tbiscriminal code. So, often times, in implementing these civil proceedings,making traffic violations civil proceedings, and/or administrativeproceedings, what happens is, state laws are conflicted with it. And, if, theydo then the municipality's laws must yield to the State law, tliat's clear.That's absolutely clear. But at issue here, and what we all need tounderstand, is that the citizens have stronger rights in a criminaL fo!tn thanthey do in a civil and an administrative. The issue is the effort by the partiesinvolved to take it away, to take away those rights. That i,s what in effect isgoing on with this contractual, if you want to call it that, relationshipbetween. Redflex and the City with the implementation of the red lightcameras. And, as far as no benefit.ftom TitIe 19, that remai.ns to be seen. It'snot a proper issue of the protest. It's a proper issue for the courts to decide.There's nothing in the proposed language itself that makes it so misleadingas say that they would not bave those rights under Title 19 either. Lastly, it'shard to believe, on the issue of legialative or administrative action...Mr.Mann wants you believe that we have the right to hold and possess, he says,this 1953 code, the City has a right to hold and possess these things. I pauseat the question whether the City holds and possesses this equipment if it's

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not actually held and possessed by the contractor, especially the mobilespeed e.nforcement vehicle, wbich has since disappearcd. It's hard to believethat it's actually the City just purchasing equipment, because the contractor'sthe one that's operating it. And, the contractor's the one that has all controlof how it's tethered. and connected to the traffic signal. It's hard to believethat a legislative body like the City Council, is doing anything butlegislation, and changing the way that certain traffic laws at certain locationsare enforced, It's bard to believe that's anything but legislation. And, thereare constitutional issues there as far as equal protection, as far as how peopleare treated who happen to be at those intersecti.ons as opposed to the onesthat don't have cameras. So, there are a lot of issues that weren't evcnaddressed here. And, I agree that referendum is not an issue for anadministrative decision or an administrative action, only for legislative. And,there's a very simple test for that, whether their executing or administratingexisting law, or whether they're creating something different. It's clear fromthe statutory scheme at the state level. It's clear from the arguments that goon and on in. case law about it. But, this is a different scheme, And, it's alegislative act, purely and simply. It's also clear that...there were somecomments made about they cannot ban future pronouncements of legislature.Well, in Anchorage, Alaska, after red light cameras came down, the citizensvoted in a referendum to ban them. We don't want to go down that road. Infact, this very company that the City has entered into an agreement with hasbeen banned in several localities and completely banned from Italy altogetherbecause of their shenanigans and because of their improper dealings. This isa long, long bistory. There are many examples also of banning prospectively,banning future enactments of legislature. If you decide as a legislative bodythat something's illegal, there's nothing wrong with banning future illegalactivity. It seems redundant, doesn't it? But that's exactly what the crinvnalcode does, we ban and we set out penalties for illegal activity. None of theseconstitute proper,protests. None of these constitute the real issue. The realissue is that of transparency of government. The real issue is that of thecitizens' right to referendum on issues that affect their interest. Thank youvery much.

Ron: Thank you Mr. Kastner. Again, thank you Mr. Kastner. The Board hasheard presentations fro.m both parties and at this time I would. entertain amotion to vote oo whether or not to deny the protest. Don: If it would pleasethe Chairman, I would move that we go into an executive session with ourlegal counsel to discuss the pending imminent litigation before us at thistime. Ron: We have a motion. on the floor to go into executive session, do wehave a second? Beth.: I'll second. Ron: It's been seconded. Roll call vote. Isthere any other discussion on that? Hearing none. Steve? Steve: Yes, Don?Don: Yes. Beth? Beth:1'es. Ron: Okay, and Ron Fields, yes, so we will meetwith Mike in the conference room. We will return and recouvene shortly,hopefully.

Ron: Okay, let the record show that we went to executive session atapproximately 8:40pm. It is now 8:59. Steve: I'd like to .m.ake a motion that

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we come out of executive session. Don: I second. Ron: Roll call vote. Steve?Steve: Aye. Don? Don: Aye. Beth? Beth: Aye. Ron: Okay, we're out ofexecutive session. Mr. Ater, who is our legal counsel, bas infortnad us thatthe Ohio Supreme Court has rendered somewltat inconsistent opinions in thismatter. However, in the case of the State v, Cool, the court stated that adetermi.nation regarding the cozistitutionality or legality of an ordinancepassed via initiative is required to be made after the electorate passes theproposed ordinance, rather than before the voters have decided. It is hisopinion that given the state of the law, that if we're going to make a mistake,we should err on the side of giving the people the right to vote and thereforedeny the protest and allow this issue to go to the voters. At this time, I wouldentertain a motion of whether or not we would deny this protest, Don: Mr.Fields, to please this audience and yourself, based on the presentations thathave been made and the consultation with our counsel, that I would make amotion that the protest filed against the initiative ordinance be denied. Steve:I'll second that motion. Ron: Okay, the motion on the floor has beenseconded by Steve. Any other discussion or comments concerning themotion on the floor? Hearing none. I think we'll do a roll call vote if youwould. Well, all in favor of the motion on the floor, to deny the protestsignify by saying aye. (All Board mero.bers voice a simultaneous "Aye"vote.) Opposed, same sign. Motion catries, and the protest will be deniedand the initiative will remain on the ballot.

ADJOUl2NMENT Okay, a motion has been madc to adjoum this hearing and it's beenseconded? Don: I second that this protest hearing be adjounaed. Ron: Okay.All in. favor of the motion signify by saying aye. (All Board.member voice asimultaneous "Aye" vote.) Opposed, same sign. This meeting standsadjournad.

RON FIELDS, CHAIRMAN NORA MADRU, .DI.RECTOR

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01q101NAL - Supreme Court of Ohio and the Ohio … IN THE SUPREME COURT OF OHIO STATE OF OHIO EX...

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