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ORIGINAL
CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
From: JAMES F. PENMAN
City Attorney
Subject: Motion to Set Hearing on Agreement with
Nestor Traffic Systems
Dept: CITY ATTORNEY
Date: April 8. 2005
Synopsis of Previous Council Action:
April 4. 2005 - Council adopted four motions on Agenda Item #26.
Recommended motion:
That a public hearing be set for May 2. 2005 at 4:00 p.m.
~nj Council Ch~bm.
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gnature
Contact person: James F. Penman
Phone:
5255
Supporting data attached: Staff ReDort
Ward:
All
FUNDING REQUIREMENTS: Amount:
Source:
Finance:
Council Notes: p"o. :J-ov<;>/o1./- CJ{J(JS~/07 A
Agenda Item No.
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STAFF REPORT
Council Meeting Date: April 18. 2005
TO:
FROM:
DATE:
AGENDA ITEM:
Mayor and Common Council
James F. Penman, City Attorney
April 8, 2005
Motion to Set Hearing on Agreement with Nestor Traffic Systems, Inc., for
a Traffic Signal Violation Video Enforcement System
At the April 4, 2005 City Council Meeting, Item Number 26, Resolution Approving a Lease and Services
Agreement with Nestor Traffic Systems, Inc., for a Traffic Signal Violation Video Enforcement System;
and a Resolution Approving an Addendum to the Maintenance Agreement for Traffic Signal Red Light
Enforcement Equipment in State Routes in the City of San Bernardino with Caltrans, was voted on by
the City Council. Negotiations with Nestor Traffic Systems, Inc. continued throughout the day on April
4. During the recess between the 5:00 and 7:00 p.m. hearings, City Administrator Fred Wilson joined
the negotiations in the City Attorney's conference room. We completed the telephone negotiations at
approximately 6:57 p.m.
The City Attorney's office has a review process in place for each agenda item that requires the City
Attorney's signature approving the resolution/agreement/other agenda item as to "form and legal
content." Because the negotiations did not end until minutes before the Council meeting resumed, we
were not able to complete our internal legal review process before the Council voted on April 4, 2005.
Because the legal review had not been completed, I declined to sign the document "approved as to form
and legal content." Although I decline to sign off on documents several times each year because the
documents fail to pass legal muster, or do not conform to city policies thus raising liability issues, it is
rare for a document to go forward for council action before the legal review has been completed. Over
the years, however, there have been several instances when contract negotiations have concluded shortly
before a council vote was taken. Usually, those instances have involved a situation such as the one on
April 4, 2005 where there is a desire to move the contract forward in order that work may commence.
In such instances, the City Attorney's office completes its legal research after the council vote. In most
of those previous cases no legal problems were encountered. In a few cases, however, issues have been
revisited by the Council when changes were made to documents or when a legal formality was not
complied with.
In this particular situation, it was requested that the vote be taken on April 4, 2005 because a portion of
the contract requires Nestor Traffic Systems, Inc. to perform an analysis (known as Violation
Intersection Profiling) ofthe intersections where the red light cameras will be installed. This must be
accomplished before the citation process can begin.
On Tuesday night AprilS, 2005, I took the finished agreement home to read it again in its entirety. The
next day, Wednesday, Sf. Assistant City Attorney Doug Calkins, who had been involved in negotiations
for several days up to and including the date of the Council meeting, began his review of the Vehicle
Code statute pertaining to red light camera traffic enforcement. I anticipated that I would read the final
document once again and review the form that is provided to me before I sign off on any agreement.
This form includes references to any legal issues that have been discovered. Before this form could be
completed, the Vehicle Code would be checked by at least two attorneys in ourreviewprocess. At 12:05
p.m. Mr. Calkins, after completing the legal analysis by reviewing the pertinent provisions of the Vehicle
Code, informed me that the Director of Facilities Management, Jim Sharer, had notified the City Clerk
that he had been asked by a representative of Nestor "when will the public hearing be held?".
Vehicle Code Section 21455.6(a) requires that a public hearing be held prior to entering into an
agreement for a red light camera program. Since we did not have the hearing, the City Council's action
on April 4, 2005 is a legal nullity. Consequently, the agreement was not signed off on by the City
Attorney's office, was not signed by the Mayor, and was not attested to by the City Clerk. Because the
agreement, by law, was void ab initio, the Council does not have to reconsider the item. Also, Charter
Section 31, providing that a resolution goes into effect without the Mayor's signature, ifthe Mayor does
not sign the document within five days, is also superseded.
It will be necessary at this Council meeting (April 18) for the Council to set a public hearing for the May
2, 2005 Council meeting. The City Clerk will then advertise the meeting in the newspaper. At the May
2,2005 Council meeting the public hearing will be held. If, at the conclusion of the May 2,2005 public
hearing, the Mayor and Common Council decide to approve the agreement, the program will proceed.
If the Mayor and Council decide, after the hearing, not to approve the agreement, the program will not
take place.
On Wednesday April 6, 2005 when the legal issue was discovered, Mr. Calkins discussed the matter by
telephone with Mr. Hebborn. Nestor Traffic Systems, Inc. agreed to Mr. Calkins' request that they
would commence the necessary intersection study forthwith even though the agreement has yet to be
approved and executed. Therefore, since the study will take about a month to complete, no time should
be lost by the delay. Nestor Traffic Systems, Inc. understands that if the Mayor and Council do not
approve the agreement on May 2,2005 the vendor will assume the cost of the study. It should be noted
that Nestor hopes to have the results of the study completed in time for the May 2, 2005 Council
meeting. Normally, it would be about one month after the Council meeting before the study is finished.
This incident demonstrates why complete legal review is so important and why the Mayor and Council
should not, except in unusual circumstances such as this one, take action on an item until the legal
review has been completed.
Respectively submitted
1-~
AMES F. PENMAN,
City Attorney
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(CQ)[Pl(
RESOLUTION NO.
RESOLUTION OF THE MA YOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO APPROVING A LEASE AND SERVICES AGREEMENT WITH
NESTOR TRAFFIC SYSTEMS, INC., FOR A TRAFFIC SIGNAL VIOLATION VIDEO-
ENFORCEMENT SYSTEM.
WHEREAS, on April 18, 2005, the City Council duly set a public hearing to be held on May
2, 2005, pursuant to Section 21455.6 of the Vehicle Code, by giving notice by publication in a
newspaper of general circulation, to consider entering into an agreement with Nestor Traffic
Systems, Inc. for a Traffic Signal Violation Video-Enforcement System.
WHEREAS, on May 2, 2005, the City Council held a public hearing pursuant to Section
21455.6 of the Vehicle Code to consider entering into an agreement with Nestor Traffic Systems,
Inc., for a Traffic Signal Violation Video-Enforcement Systems, and all persons who wished to
speak, were provided to do so at the public hearing.
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BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO AS FOLLOWS:
SECTION 1. Nestor Traffic Systems, Inc., is competent, experienced and able to install the
software, equipment and provide specified services for a Traffic Signal Violation Video-
Enforcement System pursuant to that Traffic Signal Violation Video-Enforcement Supplier Lease
and Services Agreement, a copy of which is attached hereto as Exhibit "A" and incorporated by
reference, for the amount of $40,120 per month for sixty (60) months. The Mayor is hereby
authorized and ordered to execute said Agreement on behalf of the City of San Bernardino. The
Finance Director is authorized and directed to issue Purchase Orders beginning in fiscal year 2005-
2006 as authorized by the Agreement.
SECTION 2. This contract and any amendment or modification thereto shall not take effect
or become operati ve until fully signed and executed by the parties and no party shall be obligated
hereunder until the time of such full execution. No oral agreements, amendments, modifications or
waivers are intended or authorized and shall not be implied from any act or course of conduct of any
26 party.
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SECTION 3. This resolution is rescinded if the parties to the contract fail to execute it
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within sixty (60) days of the passage of this resolution.
NJJd-74
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DHCljs[Neslor,Res]
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I RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
2 BERNARDINO APPROVING A LEASE AND SERVICES AGREEMENT WITH NESTOR
TRAFFIC SYSTEMS, INC., FOR A TRAFFIC SIGNAL VIOLATION VIDEO-
3 ENFORCEMENT SYSTEM.
4 I HE'REBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and
5 Common Council of the City of San Bernardino at a
meeting thereof, held
6 on the day of
7 COUNCIL MEMBERS: AYES
8 ESTRADA
9 LONGVILLE
10 MCGINNIS
II DERRY
12 KELLEY
13 JOHNSON
0 14 MCCAMMACK
, 2005, by the following vote, to wit:
NAYS
ABSTAIN ABSENT
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CITY CLERK
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The foregoing Resolution is hereby approved this _ day of
,2005,
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JUDITH V ALLES, Mayor
City of San Bernardino
Approved as to form and
22 legal content:
23 JAMES F. PENMAN,
City Attorney
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25 By:
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DHCljs[Ncstor.Res] 2
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NESTOR TRAFFIC SYSTEMS, INC.
MUNICIPALITY OF
SAN BERNARDINO, CALIFORNIA
TRAFFIC SIGNAL VIOLATION VIDEO-ENFORCEMENT SYSTEM
LEASE & SERVICES AGREEMENT
This AGREEMENT (the "Agreement") made this _ day of May, 2005 by and between Nestor
Traffic Systems, Inc., a Delaware corporation having a place of business at 400 Massasoit Avenue, Suite 200,
East Providence, RI 02914 ("Nestor"), and the City of San Bernardino, a municipal corporation of the State of
California, having an address of 300 North D Street, San Bernardino, CA 92418 (the "Municipality" and
together with Nestor, the "Parties" and each singularly a "Party").
WHEREAS, the Municipality has issued a request for proposals dated January 12, 2005 (the "Request
for Proposals");
WHEREAS, Nestor submitted on February 8, 2005, a Proposal (the "Proposal") in response to the
Request for Proposals; and
WHEREAS, the Parties desire to enter into this Agreement, whereby Nestor will (i) install and assist
the Municipality in the administration and operation of a traffic signal violation detection system (the
"System") at the intersections located within the Municipality indicated on Exhibit A attached to this
Agreement, and provide to the Municipality the services (the "Services"), all as more fully described on Exhibit
A, and (ii) in connection with the Services, license certain software and lease certain equipment to the
Municipality; and
WHEREAS, on April 18, 2005, the City Council duly set a public hearing to be held on May 2, 2005,
pursuant to Section 21455.6 ofthe Vehicle Code, by giving notice by publication in a newspaper of general
circulation, to consider entering into an agreement with Nestor Traffic Systems, Inc. for a Traffic Signal
Violation Video-Enforcement Systems; and
WHEREAS, on May 2, 2005, the City Council held a public hearing pursuant to Section 21455.6 of the
Vehicle Code to consider entering into an agreement with Nestor Traffic Systems, Inc., for a Traffic Signal
Violation Video-Enforcement Systems, and all persons who wished to speak, were provided to do so at the
public hearing.
NOW, THEREFORE, the Parties, intending to be legally bound, agree as follows:
1. SERVICES
1.1 Nestor shall provide to the Municipality the Services, as more fully described in Exhibit A. If
and to the extent set forth in Exhibits A, B, and C, the Services shall include:
(i) the equipment (the "Equipment") and software (the "Software") to be supplied and installed by
Nestor in accordance with Exhibit A;
(ii)
citation preparation processes that assist the Municipality in complying with current applicable
law;
NYDOCS:293879.8
(iii)
training of Municipality personnel involved with the operation of the System and/or the
disposition of citations; and
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(iv)
other support services for the System.
1.2 If and to the extent the Municipality has or obtains during the Term (as hereinafter defined)
custody, possession or control over any of the Equipment or Software, the Municipality agrees:
(i) such Software, if manufactured by Nestor, is supplied under the license set forth in Exhibit
B (the "License") to which the Municipality agrees;
(ii) such Software, if manufactured by third parties, is supplied under third-party licenses
accompanying the Software, which licenses the Municipality acknowledges receiving and to which it
hereby agrees; and
(iii) such Equipment is supplied under the lease terms set forth in Exhibit C (the "Lease") to
which the Municipality hereby agrees.
1.3 The Municipality understands and agrees that (i) Nestor may subcontract with third parties for
the provision or installation of part or parts of the System or Services and (ii) installation of the System requires
. the Municipality's cooperation and compliance with Nestor's instructions (including but not limited to
Municipality's provision of the personnel, equipment, engineering plans, and other resources as described in
Exhibit A or as otherwise reasonably requested by Nestor) and access by Nestor (or such third parties) to
Municipality premises and systems and the Municipality agrees to provide all of the foregoing to Nestor. The
Municipality further agrees that the estimated dates of installation and activation of the System set forth in
Exhibit A (or incorporated therein) are subject to conditions beyond the control of Nestor and are not
guaranteed.
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1.4 The Municipality understands and agrees that the System will be owned by Nestor (or its
designees). The Municipality agrees to reimburse Nestor for costs incurred to repair any damage to the System
caused by the Municipality or any of the Municipality's employee's, agents, or independent contractors (other
than Nestor). The Municipality agrees that it will use its best efforts to assist Nestor to identify and obtain
compensation from any third-party who is responsible for damage to the System or any part thereof.
1.5 If and to the extent this Agreement incorporates by reference any provision of the Request for
Proposals or the Proposal, such provision shall be deemed a part of this Agreement. Nevertheless, ifthere is
any conflict among the terms and conditions of this Agreement and those of any such provision or provisions so
incorporated by reference, this Agreement shall govern over both the Proposal and the Request for Proposals
and the Proposal shall govern over the Request for Proposals.
1.6 Nestor is acting hereunder as an independent contractor and not as an agent or employee of the
Municipality. Nestor shall not represent or otherwise hold out itself or any of its directors, officers, partners,
employees, or agents to be an agent or employee of the Municipality.
2. TERM
The initial term of this Agreement, the License and the Lease shall begin upon the date of this
Agreement and shall continue until the fifth (5th) anniversary of the Installation Date (the "Initial Term").
Thereafter, this Agreement and the License may be extended by up to two thirty-six month terms, with
negotiated modifications (the "Renewal Term" and together with the Initial Term, the "Term"). The
"Installation Date" shall be the latest date that the System becomes installed and operational at any of the
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intersections described in Sections 1.1 or 1.2 of Exhibit A.
TERMINATION AND EXPIRATION
3.1 This Agreement may be tenninated by either Party if the other Party defaults in the
perfonnance of any obligation under this Agreement and such default continues for more than thirty (30) days
after notice thereof to the defaulting Party.
3.2 Except as prohibited by court of competent jurisdiction, or by written agreement of the parties,
upon tennination or expiration ofthis Agreement, the Municipality shall immediately cease using the Software
and the Equipment in its possession, custody or control and shall (a)(i) immediately deliver to Nestor such
Equipment and (ii) immediately deliver to Nestor or irretrievably destroy, or cause to be so delivered or
destroyed, any and all copies of the Software in whatever fonn and any written or other materials relating to the
Software in the Municipality's possession, custody or control and within thirty (30) days deliver to Nestor a
certification thereof or (b) allow Nestor access to the system(s) on which the Software is loaded and grant
pennission to Nestor to remove the Equipment and Software.
3.3 Tennination or expiration of this Agreement shall not relieve the Municipality of any
obligation to pay fees or other amounts due or accrued prior to such installation or tennination. This Section
3.3, as well as Sections 3.2,4.3, 6.2, 6.3, 6.4, 7 and 9 of this Agreement, Sections 4,7,8 and 9 (but only to the
extent Section 9 corresponds to Sections of the Agreement which survive) of the License and Sections 3, 4, 5, 6,
7 and 9 (but only to the extent Section 9 corresponds to Sections of the Agreement which survive) of the Lease
shall survive any expiration or tennination of this Agreement, the License or the Lease.
3.4 Notwithstanding anything to the contrary contained herein, or in the License or the Lease, but
except as provided in the last sentence of Section 3.3, the License and the Lease shall tenninate upon the
tennination or expiration of this Agreement.
4. FEES AND PAYMENT
4.1 The Municipality shall pay Nestor a monthly fee equal to
a.) $975.00 for each Installed Approach for the installed equipment in accordance with
the Lease Agreement attached as Exhibit C hereto, and
b.) $4,040.00 for each Installed Approach for the Services and Software as described
in Exhibits A & B hereto.
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4.2 "Installed Approach" shall mean a signalized direction of travel on an individual access road or
street to any intersection that is monitored by the System. Ifand to the extent that (I) an Installed Approach
subject to a Monthly Fee is not capable of detecting violations or (2) NTS is unable to print and/or mail
Citations, in either case, for more than three (3) consecutive business days in any calendar month as a result of
system malfunctions not caused by Municipality or an event described in Section 9.9 of the Agreement
(collectively and each individually, an "Event"), NTS will allow a credit against the monthly fee for Services
and Software for such Installed Approach for that month equal to: such Installed Approach's monthly fee for
Services and Software multiplied by: (a) the total number of days the approach was incapable of detecting
violations, and/or printing and mailing Citations (as applicable) in the month as a result of the Event, divided by
(b) thirty (30) days.
NYDQCS:293879.8
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4.3 This program will be operated as a safety program. In addition, most communities regularly
look for ways to create efficiencies and control spending. For these reasons, NTS will perform an initial annual
financial review of the program, and every six months after the first annual review, and agrees to renegotiate its
service fees (down or up, but not to exceed the service fees in Section 4.1) ifit is determined that program-
operating costs exceed net program revenues being realized. If the parties are unable to agree on a renegotiated
fee, the City will have the right to terminate the agreement.
4.4 In the event of termination of this Agreement due to a breach by the Municipality, the
termination and cancellation fee for each Installed Approach shall equal the product of (a) $975.00 multiplied
by (b) the Remaining Term. The "Remaining Term" shall equal sixty (60) minus the number of whole months
from the date that the Installed Approach in question became operational to the date of termination.
4.5 Payment of all fees and other charges owed pursuant to this Agreement is due within ninety
(90) days after invoice date for the first twelve invoice months, and thereafter, thirty (30) days after invoice
date. Invoices will be sent to the Municipality at:
The City of San Bernardino
Atto: Finance Director
300 North "D" Street
San Bernardino, CA 92418
4.6 At the time of execution of this Agreement, it is the understanding of the parties that Nestor's
services provided hereunder are not subject to federal or state excise, sales, use, property, or other similar taxes
or charges. The Municipality agrees to reimburse Nestor for any such tax or charge if charged against Nestor.
If incurred, such taxes or charges may be invoiced at any time.
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5.
Responsibilities of the Municipality
5.1 The Municipality shall provide Nestor with such "as built" drawings in AutoCad electronic
format as Nestor, in Nestor's reasonable discretion, may require for the preparation of drawings for the
installation of the System and shall approve Nestor's engineering drawings without unusual or unreasonable
cost or delay.
5.2 The Municipality shall not levy any permit fees or, if municipal ordinance requires the
assessment of fees, the Municipality shall waive or be responsible for such fees associated with the installation
of the System.
5.3 Subject to the Municipality's right of prose cut oria I discretion, the Municipality shall diligently
prosecute each citation and defend any challenge in any court to the use of the System or validity of its results
and/or the use of the U.S. Mails to deliver the citation. Nestor may, at its own expense, intervene in any
proceeding challenging the use of the System or validity of its results and/or use of the U.S. Mails to deliver the
citation.
5.4 The Municipality shall provide all necessary electrical connections at the roadside and pay for
power required by the System.
5.5 To allow for proper operation of the System, the Municipality shall provide Nestor with
advance written notice of any modifications proposed to intersections, including traffic signal operations, after
installation of a System. In the event any such intersection modification requires a material change to the
System, the Municipality shall pay the costs reasonably incurred by Nestor to adapt the affected Installed
Approach(es) to make such Installed Approach(es) compatible therewith. Notwithstanding the above, Nestor
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makes no guarantee that it will be able to make any such adaptation. In addition, Nestor does not, and will not,
make recommendations or otherwise manage the configuration or operation of the intersection traffic light
system.
5.6 The Municipality shall provide such assistance as may be required for Nestor to obtain any
information and approvals from the Court(s), other governmental instrumentalities, or entities necessary or
desirable for Nestor to provide the Services.
5.7 During the term of this Agreement, except as expressly permitted by this Agreement the
Municipality shall not use the System, or allow the System's use by a third party, without the prior written
permission of Nestor.
6. LIMITED WARRANTY AND LIMIT A nON ON DAMAGES
6.1 Nestor warrants that the System's functionality will conform in all material respects to the
description of the System set forth on Exhibit A. This warranty does not apply if the Municipality has failed to
niake all payments to Nestor required by this Agreement or as set forth in, and is subject to the conditions of,
Section 6.4.
6.2 Except as specifically provided herein, the services and system are not error free and are being
provided "as is" without warranty of any kind and Nestor hereby disclaims all other warranties, whether express
or implied, oral or written, with respect to the services and system, including, without limitation, all implied
warranties of accuracy, merchantability or fitness for any particular purpose and all warranties implied from
any course of dealing or usage of trade. Municipality acknowledges that except as expressly provided herein no
other warranties have been made to Municipality by or on behalf of Nestor or otherwise form the basis for the
bargain between the Parties.
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6.3 Regardless of whether any remedy set forth herein fails of its essential purpose, in no event will
Nestor be liable to the Municipality for indirect, incidental, consequential, special, punitive or other similar
damages (including damages for loss of information, profits, or savings, or business interruption) arising out of
the system, the services or the use or inability to use the system or the services. In no event will Nestor be
liable to Municipality for any reason for any amount in excess of the fees actually paid by Municipality to
Nestor in accordance with Sections 4.1 or 4.2 during the twelve months immediately preceding the event(s) or
circumstance(s) giving rise to Nestor's liability to Municipality.
6.4 The Municipality acknowledges and agrees that:
(a) The System may not detect every red light violation;
(b) Since the System may flag as a violation conduct that is in fact not a violation;-the output of the
System will require review, analysis and approval by personnel appropriately qualified and authorized by the
Municipality under applicable law prior to the issuance of any citation;
(c) The System may not detect every event for which it is desirable to recommend extension of the red
light phase, if such feature is used;
(d) The System has no control over, and relies on the proper functioning of Municipality supplied
equipment for signal light changes;
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(e) The warranty set forth in section 6.1 is not intended to, and shall not, be construed as a warranty of
the level of performance of the System;
NYDOCS:293879.8
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(1) The proper functioning of the System requires the Municipality's full and complete compliance with
the Systems' operating instructions, which it hereby agrees to do; and
(g) The Municipality shall be responsible for the configuration and/or operation of all intersection
traffic light systems and Nestor shall have no liability or obligations with respect thereto.
7, INDEMNITY
7.1 Nestor agrees to indemnify, defend, and hold harmless the Municipality from any claim of
damages (including the payment of reasonable attorneys' fees) by a third party arising solely from either (a) a
finding that the System infringes any validly issued United States patent or (b) Nestor's negligence, provided
that such claim of damages is not attributable to (i) any act or omission set forth in Section 7.2 or (ii) any third-
party software or other third-party products used with, required for use of, or supplied under their own names
with or as part of the System. If, as a final result of any litigation of which Nestor is obligated to indemnify, the
use of the System by Municipality is prevented, in whole or in part, by an injunction, Nestor's sole obligation to
the Municipality as a result of such injunction shall be, at Nestor's option, either to (i) replace such part as has
been enjoined, or (ii) procure a license for Nestor or the Municipality to use same, or (iii) remove same at no
additional cost to the Municipality and terminate this Agreement. The rights of the Municipality seeking
protection under this Section 7 shall be conditioned upon (i) the Municipality notifying Nestor promptly upon
receipt of the claim or action for which protection is sought (but the failure to do so shall not relieve Nestor of
its obligations under this Section 7 unless it is, and then only to the that extent it is materially prejudiced
thereby) and (ii) the Municipality's full cooperation with Nestor in the settlement or defense of such claim or
action at no cost to the Municipality (except for reasonable out-of-pocket traveling expenses). Such cooperation
shall include, but not be limited to, the Municipality providing access for, and permission to, Nestor for the
purpose of the replacement of such part or parts of System as Nestor may deem necessary or desirable. The
Municipality may participate in the defense of any matter through counsel of its own choice and at its own
expense provided that Nestor shall remain in, and responsible for, control of the matter.
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7.2 Anything to the contrary notwithstanding, Nestor assumes no obligation or liability for, and the
Municipality will be responsible for any claim of damages (including the payment of reasonable attorneys'
fees) by a third party arising from or related to (i) Nestor's compliance with any designs, specifications, or
instructions of the Municipality, (ii) any modification of the System made by the Municipality, (iii) the
negligence or intentional act of Municipality, (iv) failure of the Municipality to use the System in the manner
described by Nestor, (v) the failure to function properly of any hardware, software or equipment of any kind
used by, in or on behalf of the Municipality (other than that supplied by Nestor), (vi) the review and analysis of
the System data output by Municipality personnel for citation preparation, (vii) the Municipality's use and/or
administration of the System and/or any traffic signal, and (viii) an allegation regarding the permissibility under
the law of the use of photo citation systems or the System. The rights of Nestor seeking protection under this
Section 7 shall be conditioned upon (i) Ne~tor notifying the Municipality promptly upon receipt of the claim or
action for which protection is sought (but the failure to do so shall not relieve the Municipality of its obligations
under this Section 7 unless it is, and then only to the that extent it is materially prejudiced thereby) and (ii) the
Nestor's full cooperation with the Municipality in the settlement or defense of such claim or action at no cost to
Nestor (except for reasonable out-of-pocket traveling expenses). Nestor may participate in the defense of any
matter through counsel of its own choice and at its own expense provided that the Municipality shall remain in,
imd responsible for, control of the matter.
7.3 This Section 7 states the entire liability and obligation and the exclusive remedy of the Parties
with respect to any actions or claims (i) of alleged infringement relating to or arising out of the subject matter of
this Agreement or (ii) otherwise the subject of this paragraph.
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8.
INSURANCE
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Nestor shall obtain, and represents that it has obtained, and will maintain insurance for itself and, as
applicable, its employees and the Municipality as follows:
a. Comprehensive general liability insurance with a combined single limit of $1 ,000,000 per
occurrence;
b. Workers Compensation as required by applicable state law; and
c. Comprehensive Automobile Liability Insurance for all owned, non-owned and hired automobiles
and other vehicles used by Nestor with a minimum $1,000,000 per occurrence combined single
limit bodily injury and property damage.
All insurance required by express provision of this Agreement shall be carried only in responsible
insurance companies licensed to do business in the State of California and shall name as additional insured the
Municipality, its elected officials, officers, employees, agents and representatives. Nestor will furnish
Municipality with Certificates of Insurance and applicable endorsements for all such policies promptly upon
receipt of them. Nestor may effect for its own account insurance not required under this Agreement. The
Municipality is self insured for its exposures under the program.
9. MISCELLANEOUS
9.1 Except as speci fically provided in this Agreement, this Agreement may not be assigned, nor
may performance be delegated, by either Party without the express written consent of the other Party, except
that Nestor may assign or otherwise encumber this Agreement (a) for the purpose of financing the costs of the
System contemplated to be implemented hereby, (b) to any entity owned or controlled by Nestor or (c) to any
third party that acquires all or substantially all of Nestor's business relating to the System.
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9.2 The headings and captions used in this Agreement and the Exhibits are for convenience only
and are not to be used in the interpretation of this Agreement.
9.3 The failure of either Party to require performance of any provision of this Agreement shall not
affect the right to subsequently require the performance of such provision or any other provision of this
Agreement. The waiver of either Party of a breach of any provision shall not be taken or held to be a waiver of
any subsequent breach of that provision or any subsequent breach of any other provision of this Agreement.
9.4 If any covenant or provision of this Agreement is, or is determined to be, invalid, illegal or
unenforceable, all remaining covenants and provisions ofthis Agreementshall nevertheless remain in full force
and effect, and no covenant or provision of this Agreement shall be deemed to be dependent upon any covenant
or provision so determined to be invalid, illegal or unenforceable unless otherwise expressly provided for
-- herein.
9.5 This Agreement has been entered into, delivered and is to be governed by, construed,
interpreted and enforced in accordance with the laws of the State of California. Any dispute, controversy, or
claim arising out of or in relation to this agreement, or any breach or alleged breach of this agreement, as
between the parties shall be resolved in the Superior Court of the State of California, County of San
Bernardino.
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9.6 Except as set forth in this Agreement and the Exhibits hereto, no representation, statement,
understanding or agreement, whether written or oral, has been made and there has been no reliance on anything
done, said or any assumption in law or fact with respect to this Agreement for the duration, termination or
renewal of this Agreement other than as expressly set forth in this Agreement and there has been no reliance
upon anything so done or said that in any way tends to change or modifY the terms or subject matter of this
Agreement or to prevent this Agreement from becoming effective. This Agreement supersedes any agreements
and understandings, whether written or oral, entered into by the Parties hereto prior to the effective date of this
Agreement.
9.7 This Agreement may be modified or amended from time to time by the Parties, provided,
however, that no modification or amendment hereto shall be effective unless it is stated in writing, specifically
refers to this Agreement and is executed on behalf of both Parties hereto.
9.8 Except as otherwise specified, all notices, payments and reports hereunder shall be deemed
given and in effect as of the date of mailing or transmission, as the case may be, when sent by next day delivery
or courier service, postage pre-paid), or three days after the date of mailing when sent by first class mail,
postage pre-paid, addressed in all such cases to the Parties as set forth in the preamble to this Agreement
directed in each case to the President of Nestor or the Finance Director at the Municipality or to such other
addresses as the Parties may from time to time give written notice of as herein provided.
9.9 Except for the obligation to make any payment of money, neither Party shall be liable to the
other for failure or delay in meeting any obligations hereunder which arises in whole or in part from causes
which are unforeseen by, or beyond the control of, such Party, including without limitation, acts of God or of a
public enemy, acts of the Government (other than the Municipality in the case of the Municipality) in either its
sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes,
acts or omissions of subcontractors and other third-parties and unusually severe weather. When any such
circumstance(s) exist, Nestor shall have the right, in its sole discretion, to allocate its available production,
deliveries, services, supplies and other resources among any and all buyers (whether or not including the
Municipality), as well as among departments and affiliates of Nestor, without any liability to the Municipality.
/ / /
/ / /
/ / /
/ / /
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IN WITNESS WHEREOF, the Parties hereto have set their hands by their duly authorized
repre'sentatives as of the day and year first above written.
Nestor Traffic Systems, Inc.
By: // '~)
Nf(me: Nigel P. Hebborn
Title: President & CEO
City of San Bernardino, CA
By:
Name:
Title:
Judith Valles
Mayor, City of San Bernardino
Approved as to
form and legal content:
JAMES F. PENMAN
City Attorney
City Attorney
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Exhibit A
SERVICES
Nestor shall provide the Municipality with the following Services, each of which is more fully described below:
I. Site Installation Planning; Design and Equipment Installation
2. User Training and Support
3. Citation Preparation and Processing Services
4. Maintenance and Support
5. Public Education Campaign
6. Expert Witness Testimony and Court Training
7. Violation Review Station
8. Reporting
9. Meetings
I. Site Installation Planning. Design and Equipment Installation
1.1 The Svstem. Video monitoring systems shall be installed initially, monitoring a minimum of
eight (8) approaches at up to four (4) intersections to be designated in writing by mutual agreement of City and
Nestor. Additional video monitoring systems may be added at the option of the Municipality. The System
shall be comprised of equipment capable of monitoring the following traffic approaches at the following
intersections:
Intersections
TBD
Approaches Enforced
TBD
1.2 Substitution or Addition of an Intersection. If Nestor or the Municipality determines that one
or more of the above intersections is not for any reason appropriate for the System (and such determination is
made at least fifteen (15) days prior to the commencement of installation of the System at any such
intersection), then alternate intersection(s) may be substituted by written consent of the Municipality and
Nestor.
After the commencement of installation activities, the Parties may mutually agree to relocate any
existing and operating System for an individual intersection to an alternate location (to be mutually agreed to by
the Municipality and Nestor) in the event that the number of citations issued at the intersection is less than one
hundred and twenty (120) citations per Installed Approach at that intersection per month, averaged over a three
month or longer period.
1.3 Timeframe for Installation of the Svstem. The above intersections will be installed and
activated in phases in accordance with an Implementation Plan to be mutually agreed to by Nestor and the
Municipality. Nestor shall install the System in accordance with the schedule set forth in the Implementation
Plan. The Municipality agrees that the estimated dates of installation and activation of the System set forth in
the Implementation Plan are subject to conditions beyond the control of Nestor and are not guaranteed.
1.4 Installation/Ownership of the Svstem. Nestor will procure, install and provide support of
traffic signal violation detection equipment (computer hardware, software, cameras, camera housing and
mounts, communications equipment and roadside controller cabinets) as specified in the Proposal at each of the
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designated intersections provided for above. As between Nestor and the Municipality, all components for the
System will remain the property of Nestor.
1.5 Installation
1.5.1 Nestor shall submit plans and specifications to the Municipality for review and
approval, which review and approval will not be unreasonably withheld, delayed or conditioned.
Nestor shall provide at least three sets of drawings of the wiring for the System circuitry.
1.5.2 If commercially reasonable and if capacity exists, all wiring shall be internal to
equipment (not exposed) and underground in existing traffic signal conduits, except where required to
directly interface with the traffic signals and electrical service. Separate conduits or overhead wiring
may be used by Nestor if existing conduit(s) are at capacity. If existing conduits are used, the
Municipality will not unreasonably withhold, delay or condition consent to such use.
1.5.3 The System shall be electrically isolated from the traffic signal system using industry-
standard practice and methods. In the event that Nestor and the Municipality cannot agree on the
method of isolation, the Municipality shall procure, at its own expense, such equipment or means to
accomplish the isolation or to meet the requirements of such.
1.5.4 The System may be mounted on or utilize support of existing traffic signal poles, arms
or other intersection structures where possible, subject to Municipality review and approval, such
review and approval not to be unreasonably withheld, delayed or conditioned.
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1.5.5 The System poles, foundations and new infrastructure, as required, shall conform to
applicable law. The Municipality shall be solely responsible for remediation that may be required with
respect to such poles, foundations and new infrastructure if such remediation is required due to
conditions not caused by Nestor.
1.5.6 Nestor shall notify the Municipality at least 48 hours prior to interfacing with traffic
signal equipment. Nestor shall be responsible for installing all its wiring into Municipality cabinets.
1.5.7 To the maximum extent permitted by law, the Municipality shall waive any permit and
licensing fees for any System construction and installation, and to the extent such fees are not waivable,
Municipality shall reimburse Nestor for such fees. Nestor shall apply for any and all permits that may
be required from the California department of Transportation (CALTRANS) relating to installation of
the System at intersections requiring such permits.
1.6 Production of Video Files. Nestor shall produce digital video files of red light violations,
capable of identifying vehicles traveling through the intersection during the red light phase. The violation video
shall capture a view of the traffic signal from the direction in which the driver is approaching, the approaching
vehicle as viewed from the intersection, an image of the driver, and a front and rear view of the vehicle's
license plates.
1.7 Restoration of Intersections. Upon termination or expiration of the Agreement, Nestor will use
commercially reasonable efforts to remove the System and restore the affected public facilities including returning the
intersections to their original condition; provided, however, that Nestor shall not be required to remove any conduit,
in-ground fixture, underground wiring or other infrastructure that will require excavation or demolition, which shall
become the property of the Municipality upon termination. All costs incurred by Nestor thereby will be the
C responsibility of Nestor.
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2. User Training and Support.
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2.1 Training of Municipalitv Personnel. After System installation, Nestor will provide up to eight
(8) hours of training for up to ten (10) persons at two (2) sessions at the Municipality's facilities to acquaint
Municipality personnel with System operation. Training shall consist of instruCtional and operational training
as well as hands-on equipment exercises with an instructor. All neeessary training materials and doeumentation
will be provided by Nestor. If the Municipality requests additional courses or training, Nestor will provide
these on a fully cost reimbursable basis.
3. Citation Preparation and Processing Services
3.1 Citation Preparation and Processing. Nestor will process approved violations utilizing a
computerized traffic citation program ("Citation Composer"). In processing violations, Nestor shall print and
mail citation forms. Nestor shall pay all mailing and postage costs, and such other miscellaneous costs and
expenses as may be reasonably necessary to issue a citation and deliver it by U.S. mail. To the extent required
by applicable law, Nestor will obtain a certification of mailing issued by the Post Office. Notwithstanding
anything to the contrary in the foregoing provisions of this Section 3.1, Nestor will not process nor support any
citations not captured by the System and/or approved by the Municipality.
3.\.1 Mailing of Citations. Citations shall be mailed to the violator as soon as is practical
after being approved by the Municipality and transmitted to the processing center (managed by Nestor
or such third party, to whom Nestor has delegated such operation, on behalf of the Municipality) but in
no event later than the time required by law. The form of citation shall be subject to the approval of the
Municipality, which approval may not be unreasonably delayed, conditioned or withheld.
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3.1.2 Cooperation With Police and the Courts. Nestor shall cooperate with the
Municipality's Police Department and the Courts in the issuance of violations. Nestor shall submit
mutually agreed information necessary to issue violation notices to the Police Department. All citations
shall be reviewed and approved by the Municipality's Police Department prior to mailing. In addition,
Nestor will cooperate with the Courts to set up the necessary communications and procedures that will
enable Nestor to send delinquent notices to those registered owners/drivers for whom such notices are
appropriate.
3.2 Access to Drivers License Information. To the extent Nestor is able, Nestor shall access
directly the drivers license information and the registered owner residence address from the State department
that regulates the use and operation of motor vehicles (the "DMV"). If Nestor is unable to access such
information, Nestor shall provide the license plate number of violators to the Municipality, which will provide
such information to Nestor within a reasonable period of time.
3.3 Numbering Svstem. Nestor, in coordination with the Courts, will develop and implement an
independent numbering system for automated red light citations.
3.4 Transmission of Information. Nestor will download all citation information via an electronic
file into the Court database not later than twenty four (24) hours after mailing of the citation. Nestor shall
maintain a documented chain of custody for all electronically transmitted information while the information is
under Nestor's control.
3.5 Customer Service. Nestor will provide an automated customer service telephone number to the
public. Customer Service Representatives will be available Monday through Friday, from 9:00 a.m. to 5:00
p.m. local time (of the Municipality), excluding holidays, in order to schedule violation video viewing
appointments for the Police Department and to answer basic questions regarding the Municipality's program.
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4. Maintenance
4.1 Maintenance of Svstem. Except as provided herein, Nestor shall Maintain the System (as
defined below); provided however, that Nestor shall not be responsible for any maintenance, repair or
replacement required as a result of (i) the negligence or intentional act of the Municipality, its employees,
agents or independent contractors (other than Nestor) and/or (ii) any equipment or software not provided by
Nestor. Nestor shall maintain a maintenance log that documents all service issues. To "Maintain the System"
shall mean to keep the System in such a state of operation such that the System's functionality conforms in all
material respects to the description of the System set forth in this Exhibit.
4.2 Equipment Checks. Nestor shall perform remote camera and PC equipment checks on a daily
basis to confirm proper operation of computers, cameras and communications network. Routine in-field camera
equipment inspection will be done as needed.
5. Public Education Campaign
5.1 Public Awareness Program. Nestor shall assist the Municipality with a Public Awareness
Program. Such assistance shall consist of:
a) Reasonable assistance for a media event to launch the community education program
b) A reasonable amount of training for a Municipality staffed speaker's bureau
c) The production of warning signs (as described in section 5.2) for installation by Municipality
d) Preparation of warning notices to violators for the first 30 days of the program
e) A toll-free customer service hotline as described in section 3.5
5.2 Warning Signs. Nestor shall provide one (I) warning sign per Installed Approach. The signs
shall be in compliance with applicable law. The Municipality will be responsible for installation and Nestor
wi II recommend appropriate installation locations.
6. Expert Witness Testimonv and Court Training
6. I Expert Witness Testimonv. Nestor will provide expert witness testimony, as reasonably
necessary, to testify regarding the accuracy and technical operation of the System.
6.2 Court Training. Nestor will conduct a one-day workshop-orientation session for Court judges
(and/or their designees), other appropriate court officials and the Municipality prosecutor.
7. Violation Review Station
7.1 ProvisIOn of EauIPment. Nestor will provide one (I) laptop workstation, printer, and
connectivity (which shall remain the property of Nestor) to be used by the Municipality for citation approval,
violation video viewing appointments and court hearings.
8. Reporting
8. I Weeklv Report. Nestor shall provide a weekly report to the Municipality's Police Department
and the Court during the Warning Period. The report shall include the number of violations recorded per
Installed Approach.
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8.2 Monthlv Report. Nestor shall submit to the Municipality a Monthly Report on project results
within thirty (30) days of the end of each calendar month. To the extent reasonably commercially practical, the
Monthly Report shall include information for each violation recorded by the System as well as the following
items:
a) Number of violations recorded
b) Number of non-issued violations
c) Breakdown of reasons for non-issuance
d) Number of citations issued
e) Court hearings scheduled and held
f) Number of calls for information
g) Number of violation video viewing appointments scheduled
8.3 Additional Reports or Information. Any other reports and information are not part of the
Agreement and the preparation and delivery of any other such reports or information may result in additional
fees.
8.4 Database. Nestor shall maintain a database with the following information (if available to
Nestor) per violation:
a) Location, date and time
b) Number of seconds of red traffic signal
c) Type of violation
d) Vehicle description including license plate state and number
e) Applicable vehicle code section violated
f) Citation prepared or reason for not preparing citation
g) Registered vehicle owner's name and address, driver's license number and related information
required to prepare citations where violation is made by a drivf:r other than registered owner
(Affidavit of Non-Liability) --
h) Status of citation (outstanding, cancelled, reissued, paid, bail forfeited, traffic school, warrants
issued, etc.)
9. Meetings
Nestor representative(s) shall be made reasonably available to meet with the Police
Department, and other representatives of the Municipality as determined by the Municipality, on a bi-weekly
basis during program implementation and at a minimum on a monthly basis onee the program is fully
operational. Subject to approval and agreement by both parties, telephonic or other acceptable means may be
used to conduct such meetings.
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10.
Additional Services (at the Municipality's reauest):
a) CrossingGuard VIP Program - Nestor will generate a video-based analysis of an intersection
designed to evaluate the frequency of red-light violations for up to four approaches at the targeted
intersection. The video media will contain up to 16 hours of VIP monitoring assuming the equipment
remains installed at the intersection during the course of monitoring, but not to exceed three
consecutive calendar days. A report summarizing the results, along with the media generated will be
provided to the Municipality. The VIP Program Fee is $850 for each intersection approach evaluated
and includes 16 hours of evaluation. Additional16-hour evaluation blocks may be ordered at 50% of
the VIP Program Fee for each block, assuming equipment remains installed at the intersection between
blocks. The VIP Program Fee for an intersection is due upon ordering the service. If the Municipality
selects the intersection for a full CrossingGuard System installation within one month of delivery of the
VIP report, Nestor will allow a credit equal to 100% of the intersection's VIP Program Fee paid against
the initial Ticket Processing Fees charged for the intersection.
To order a CrossingGuard VIP analysis, the Municipality should provide a written request
for the analysis to Nestor, including a description of the intersection(s) selected, and a check
for the ordered VIP Program Fee.
b) Collision Avoidance services and connections, no additional cost.
c) Intersection Video Monitoring Services utilizing current fixed overview camera positions, or
dedicated camera subject to customer control, fee to be determined.
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EXHIBIT B
LICENSE AGREEMENT FOR CROSSING GUARD SOFTWARE
This License Agreement (the "License") is a legal agreement between you (the contracting counter-
party in an agreement (the "Agreement") to which a copy of this License is attached as an Exhibit) and Nestor,
Inc. ("Nestor") for the Nestor software product identified above, which includes computer software and may
include associated media, printed materials, and "online" or electronic documentation (the "SOFTWARE
PRODUCT"). The SOFTWARE PRODUCT also includes any updates and supplements to the original
SOFTWARE PRODUCT provided to you by Nestor. Any software provided along with the SOFTWARE
PRODUCT that is associated with a separate license agreement is licensed to you under the terms of that
license agreement. By executIOn of the Agreement, you have agreed to be bound by the terms of this License.
Such agreement by you is a express condition to your ability to use the SOFTWARE PRODUCT.
1. GR......NT OF LICENSE. The SOFTWARE PRODUCT is licensed, not sold. This License grants you
only the following rights: You may install and use one copy of the SOFTWARE PRODUCT on a single
computer, including a workstation, terminal or other digital electronic device ("COMPUTER"). You may also
store or install a copy of the SOFTWARE PRODUCT on a storage device, such as a network server, used only
to install or run the SOFTWARE PRODUCT on your other COMPUTERS over an internal network; however,
you must acquire and dedicate a license for each separate COMPUTER on or from which the SOFTWARE
PRODUCT is installed, used, accessed, displayed or run. A license for the SOFTWARE PRODUCT may not be
shared or used concurrently on different COMPUTERS.
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2. DESCRIPTION OF OTHER RIGHTS AND LIMITATIONS. You may not reverse engineer,
decompile, or disassemble the SOFTWARE PRODUCT, except and only to the extent that such activity is
expressly permitted by applicable law notwithstanding this limitation. The SOFTWARE PRODUCT is licensed
as a single product. Its component parts may not be separated for use on more than one computer. You may not
rent, lease, transfer or lend the SOFTWARE PRODUCT. This License does not grant you any rights in
connection with any trademarks or service marks of Nestor. Without prejudice to any other rights, Nestor may
terminate this License if you fail to comply with the terms and conditions of this License. In such event, you
must destroy all copies of the SOFTWARE PRODUCT and all of its component parts.
3. SUPPORT SERVICES AND UPGRADES. Nestor may provide you with support services related to
the SOFTWARE PRODUCT ("Support Services"). Use of Support Services is governed by the Agreement.
Any supplemental software code provided to you as part of the Support Services shall be considered part of the
SOFTWARE PRODUCT and subject to the terms and conditions of this License. With respect to technical
information you provide to Nestor as part of the Support Services, Nestor may use such information for its
business purposes, including for product support and development. Nestor will not utilize such technical
information in a form that personally identifies you. If the SOFTWARE PRODUCT is labeled as an upgrade,
you must be properly licensed to use a product identified by Nestor as being eligible for the upgrade in order to
use the SOFTWARE PROOUCT. A SOFTWARE PRODUCT labeled as an upgrade replaces and/or
supplements the product that formed the basis for your eligibility for the upgrade. You may use the resulting
upgraded product only in accordance with the terms of this License. If the SOFTWARE PRODUCT is an
upgrade of a component of a package of software programs that you licensed as a single product, the
SOFTWARE PRODUCT may be used and transferred only as part of that single product package and may not
be separated for use on more than one computer.
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4. COPYRIGHT. All title and intellectual property rights in and to the SOFTWARE PRODUCT
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(including but not limited to any images, photographs, animations, video, audio, music, text, and "applets"
incorporated into the SOFTWARE PRODUCT), the accompanying printed materials, and any copies of the
SOFTWARE PRODUCT are owned by Nestor or its suppliers. All title and intellectual property rights in and to
the content which may be accessed through use of the SOFTWARE PRODUCT is the property of the respective
content owner and may be protected by applicable copyright or other intellectual property laws and treaties.
This License grants you no rights to use such content. All rights not expressly granted are reserved by Nestor.
5. DUAL-MEDIA SOFTWARE. You may receive the SOFTWARE PRODUCT in more than one
medium. Regardless of the type or size of medium you receive, you may use only one medium that is
appropriate for your single computer. You may not use or install the other medium on another computer. You
may not loan, rent, lease, lend or otherwise transfer the other medium to another user.
6. BACKUP COPY. After installation of one copy of the SOFTWARE PRODUCT pursuant to this
License, you may keep the original media on which the SOFTWARE PRODUCT was provided by Nestor
solely for backup or archival purposes. If the original media is required to use the SOFTWARE PRODUCT on
the COMPUTER, you may make one copy of the SOFTWARE PRODUCT solely for backup or archival
purposes. Except as expressly provided in this License, you may not otherwise make copies of the SOFTW AR E
PRODUCT or the printed materials accompanying the SOFTWARE PRODUCT.
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7. U.S. GOVERNMENT RESTRICTED RIGHTS. If you are acquiring the SOFTWARE PRODUCT
(including the related documentation) on behalf of any part of the United States Government, the following
provisions apply. The SOFTWARE PRODUCT and documentation are provided with RESTRICTED RIGHTS.
The SOFTWARE PRODUCT is deemed to be "commercial software" and "commercial computer software
documentation," respectively, pursuant to DFAR Section 227.7202 and FAR 12.212, as applicable. Any use,
modification, reproduction, release, performance, display or disclosure of the SOFTWARE PRODUCT
(including the related documentation) by the U.S. Government or any of its agencies shall be governed solely
by the terms of this License and shall be prohibited except to the extent expressly permitted by the tcrms of this
License. Manufacturer is Nestor; its address is set forth in the Agreement.
8. COMPLIANCE WITH LAW AND EXPORT RESTRICTIONS. You represent and agree that you do
not intend to and will not use, disseminate or transfer in any way the SOFTWARE PRODUCT in violation of
any applicable law, rule or regulation of the United States, or any State of the United States or any foreign
country of applicable jurisdiction. Without limiting the foregoing, you agree that you will not export or
re-export the SOFTWARE PRODUCT to any country, person, entity or end user subject to U.S. export
restrictions. You specifically agree not to export or re-export the SOFTWARE PRODUCT: (i) to any country to
which the U.S. has embargoed or restricted the export of goods or services, which currently include, but are not
necessarily limited to Cuba, Iran, Iraq, Libya, North Korea, Sudan and Syria, or to any national of any such
country, wherever located, who intends to transmit or transport the products back to such country; (ii) to any
end-user who you know or have reason to know will utilize the SOFTWARE PRODUCT or portion thereof in
the design, development or production of nuclear, chemical or biological weapons; or (iii) to any end-user who
has been prohibited from participating in U.S. export transactions by any federal ag:ncy of the U.S.
government.
9. OTHER PROVISIONS. Sections 2, 3, 6, 7 and 9 of the Agreement are hereby incorporated by
reference as if herein set forth in full.
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EXHIBIT C
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LEASE AGREEMENT FOR CROSSINGGUARD SYSTEM
This Lease Agreement (the "Lease") is part of an agreement (the "Agreement") (to which a copy of this
Lease is attached as an Exhibit) between the Municipality and Nestor. The Parties hereto agree as follows:
I. LEASE. Nestor hereby leases to Municipality and Municipality hereby leases from Nestor,
subject to the terms and conditions of this Lease, the such items of System equipment (together with all
attachments, replacements, parts, additions, substitutions, repairs, accessions and accessories incorporated therein
and/or affixed thereto, the "Equipment") that Municipality obtains possession, custody or control pursuant to the
Agreement.
? USE AND LOCATION. The Equipment shall be used and operated by Municipality only in
connection with the operation of the System by qualified employees of Municipality and in accordance with all
applicable operating instructions, and applicable govemmentallaws, rules and regulations. Municipality shall not
part with control or possession of the Equipment without Nestor's prior written consent.
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3. CONDITION. Municipality shall keep the Equipment in good condition and working order,
ordinary wear and tear from proper use excepted. Municipality shall not make any alterations, additions or
improvements to the Equipment without Nestor's prior written consent unless such alterations, additions or
improvements do not impair the commercial value or the originally intended function or use of the Equipment and
are readily removable without causing material damage to such Equipment so as to return the Equipment to its
original state, less ordinary wear and tear. Any alteration, addition or improvement not removed prior to the return
of the Equipment shall without further action become the property of Nestor, provided, however, that any
alterations, additions and improvements which would reduce the value of the Equipment must be removed prior to
the return of such Equipment.
4. RETURN. Upon the expiration or earlier termination of the Agreement, Municipality shall return
the Equipment in the same condition as when delivered to Municipality, ordinary wear and tear excepted, to Nestor
at the location specified by Nestor.
5. OWNERSHIP. LIENS. The Equipment is and shall at all times be the property of Nestor.
Municipality agrees to take all action necessary or reasonably requested by Nestor to ensure that the Equipment
shall be and remain personal property. Nothing in this Lease, the Agreement or any Exhibit shall be construed as
conveying to Municipality any interest in the Equipment other than its interest as a Municipality. If at any time
during the term hereof, Nestor supplies Municipality with labels, plates Qf_other markings evidencing ownership,
security or other interest therein, Municipality shall affix and keep the same displayed on the Equipment.
Municipality shall, at its expense, keep the Equipment free and clear of all liens, charges, claims and other
encumbrances.
6. NO MUNICIPALITY SUBLEASE; ASSIGNMENT. MUNICIPALITY SHALL NOT
ASSIGN OR IN ANY WAY DISPOSE OR OTHERWISE RELINQUISH POSSESSION OR CONTROL
OF ALL OR PART OF ITS RIGHTS OR OBLIGATIONS UNDER THIS LEASE OR ENTER INTO ANY
SUB-LEASE OF ALL OR ANY PART OF THE EQUIPMENT WITHOUT THE PRIOR WRITTEN
CONSENT OF NESTOR.
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7. FINANCING STATEMENTS: FURTHER ASSURANCES. Nestor and Municipality intend this
transaction to be a leasing transaction only, but to the extent, at any time or from time to time, this Lease is
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construed to be a transaction intended as security, Nestor retains and Municipality hereby grants a security interest
in all the Equipment, the proceeds of any sale, assignment, lease or sublease thereof, any insurance proceeds, and
any other rights of Municipality in and to the Equipment, this Lease and/or their proceeds. Municipality, at the
request of Nestor and at Municipality's expense, agrees to execute and deliver to Nestor any financing statements,
fixture filings or other instruments necessary for perfecting the interests and title of Nestor in the Equipment, and
Municipality agrees that Nestor may, in Nestor's sole discretion, file a copy of the Agreement, this Lease and any
Exhibits in lieu of a financing statement. Municipality agrees, at Nestor's expense, to promptly execute and deliver
such further documents and take any and all other action reasonably requested by Nestor from time to time, for the
purpose of fully effectuating the intent and purposes of this Lease, and to protect the interests of Nestor, its
successors and permitted assignees.
8. OTHER PROVISIONS. Sections 2, 3, 6, 7 and 9 of the Agreement are hereby incorporated by
reference as if herein set forth in full.
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I RESOLUTION NO.
2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO APPROVING AN ADDENDUM TO MAINTENANCE AGREEMENT
3 FOR TRAFFIC SIGNAL RED LIGHT ENFORCEMENT EQUIPMENT IN STATE
ROUTES IN THE CITY OF SAN BERNARDINO WITH CAL TRANS.
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II
WHEREAS, the City of San Bernardino is entering in a Lease and Services Agreement with
Nestor Traffic Systems, Inc., for a Traffic Signal Violation Video-Enforcement System; and,
WHEREAS, the systems will be installed in areas under the jurisdiction of the California
State Department of Transportation ("CaITrans"); and,
WHEREAS, prior to installing such equipment, CalTrans will require the City to enter into
that agreement entitled Traffic Signal Violation Video-Enforcement Supplier Lease and Services
Agreement ("Agreement"); and,
WHEREAS, on April IS, 2005, the City Council duly set a public hearing to be held on May
2, 2005, pursuant to Section 21455.6 of the Vehicle Code, by giving notice by publication in a
12
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newspaper of general circulation, to consider entering into an agreement with Nestor Traffic
14
Systems, Inc. for a Traffic Signal Violation Video-Enforcement System; and,
15
16
17
IS
19
20
21
WHEREAS, on May 2, 2005, the City Council held a public hearing pursuant to Section
21455.6 of the Vehicle Code to consider entering into an agreement with Nestor Traffic Systems,
Inc., for a Traffic Signal Violation Video-Enforcement Systems, and all persons who wished to
speak, were provided to do so at the public hearing; and,
WHEREAS, it is in the best interests of the City and to its benefit to enter into the
Agreement.
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COMMON
22 COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS:
23 SECTION 1. The Mayor is hereby authorized and directed to execute said Agreement on
24 behalf of the City, a copy of which is attached hereto as Exhibit "A" and incorporated by reference.
25 SECTION 2. This contract and any amendment or modification thereto shall not take effect
26 or become operative until fully signed and executed by the parties and no party shall be obligated
o 27 hereunder until the time of such full execution. No oral agreements, amendments, modifications or
28
wai vers are intended or authorized and shall not be implied from any act or course of conduct of any
#~1f3
/) J 1-/!lI!~
DHC/js[Nestor2.Res]
1
J
c
o
o
I party.
2 SECTION 3. This resolution is rescinded if the parties to the contract fail to execute it
3 within sixty (60) days of the passage of this resolution.
4 /II
5 /II
6 III
7 /II
8 /II
9 /II
10 /II
11 1/1
12 /II
13 /II
14 11/
15 /II
16 /II
17 11/
18 1/1
19 11/
20 1/1
21 /II
22 /II
23 1/1
24 11/
25 1/1
26 11/
27 1/1
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DHCljs[Nestor2.ResJ 2
o
I RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
2 SAN BERNARDINO APPROVING AN ADDENDUM TO MAINTENANCE AGREEMENT
FOR TRAFFIC SIGNAL RED LIGHT ENFORCEMENT EQUIPMENT IN STATE
3 ROUTES IN THE CITY OF SAN BERNARDINO WITH CAL TRANS.
4 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and
5 Common Council of the City of San Bernardino at a
meeting thereof, held
6 on the day of
7 COUNCIL MEMBERS: AYES
8 ESTRADA
9 LONGVILLE
10 MCGINNIS
II DERRY
12 KELLEY
13 JOHNSON
0 14 MCCAMMACK
15
16
17
, 2005, by the following vote, to wit:
NAYS
ABSTAIN ABSENT
CITY CLERK
18
19
20
21
The foregoing Resolution is hereby approved this _ day of
,2005.
JUDITH V ALLES, Mayor
City of San Bernardino
Approved as to form and
22 legal content:
23 JAMES F. PENMAN,
City Attorney
24
25 By:
26
0 27
28
DHC/js[Nestor2.Res] 3
,
o
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ADDENDUM TO MAINTENANCE AGREEMENT FOR TRAFFIC SIGNAL RED LIGHT
ENFORCEMENT EQUlPMENT L'i STATE ROUTES IN THE CITY OF SAN BERNARDINO
THIS ADDENDUM to Maintenance Agreement is made and entered into
effective thIS 4"' day of Apnl, 2005, by and between the State of CalIfornia, acting by and through
its Department ofTransp0l1ation, hereinafter referred to as "STATE" and the City of San Bernardino
hereinafter refelTed as the "CITY."
\. RECITALS
CITY desires to install and maintain red light photo enforcement Equipment on existing
traffic signal facilities within a State Highway right of way and within City limits.
B. DEGREE OF MAINTENANCE
The degree or extent of Equipment maintenance work to be performed and the standard
thereof shall be solely determined by City.
C. CITY AGREES:
In consideration of the mutual covenants and promises herein contained, CITY agrees:
1.
The installation of red light enforcement Equipment shall be at no additional cost to
State.
2. CITY shall design and install Equipment so as not to interfere with the signal timing
and no input shall be allowed to the traffic controller.
3. CITY will maintain al] new Equipment on the State Route within City limits (see
Exhibit "A")
4. When planned maintenance of Equipment is required, the CITY will apply for an
encroachment permit for such maintenance.
-Y If for any reason CITY is unable to maintain the Equipment in a manner satisfactflry
to STATE, as defined in this Agreement, STATE will not accept any responsibility
of maintaining the Equipment.
6. CITY agrees to pay all costs associated with operation and maintenance of this
Equipment.
D. STATE AGREES:
1.
When planned maintenance of Equipment is required at a location shown on Exhibit
DHC/Js [Rt'dLighIEnforceEqUlpAgr]
Exhibit "A"
o
o
o
A, STATE will issue an encroachment permit free of charge to CITY.
,
STATE's Electrical Maintenance Superintendent for this area shall make random
inspections and may request additional maintenance activities of the CITY.
E. LEGAL RELATIONS AND RESPONSIBILITIES:
I. Nothing in the provisions of this Agreement is intended to create duties or
obligations to or rights in third parties not parties to this contract or affect the legal
liability of either party to the contract by imposing any standard of care with respect
to the maintenance of State highways different from the standard of care imposed by
law.
,
It is understood and agreed that neither STATE nor any officer or employee thereof
is responsible for any damage or liability occurring by reason of anything done or
omitted to be done by STATE under or in connection with any work, authority or
jurisdiction delegated to STATE under this Agreement. It is understood and agreed
that, pursuant to Govemment Code section 895.4, STATE shall defend, indemnify
and save harmless CITY and all of its officers and employees from all claims, suits
or actions of every name, kind and description brought for or on account of injUlies
to or death of any person or damage to property resulting from anything done or
omitted to be done by STATE under or in connection with any work, authority or
jurisdiction delegated to STATE under this Agreement.
3. It is understood and agreed that neither CITY nor any officer or employee thereof is
responsible for any damage or liability occurring by reason of anything done or
omitted to be done by STATE under or in connection with any work, authority or
jurisdiction delegated to STATE under this Agreement. It is understood and agreed
that, pursuant to Govemment Code section 895.4, STATE shall defend, indemnify
and save harmless CITY and all of its officers and employees from all claims, suits
or actions of every name, kind and description brought for or on account of injuries
to or death of any person or damage to property resulting from anything done or
omitted to be done by STATE under or in connection with any work, authority or
jurisdiction delegated to STATE under this Agreement.
F TERM OF AGREEMENT:
This Addendum shall be effective on April 4, 2005. This Agreement may be further
amended or terminated by either party upon sixty (60) days notice to the other party. Failure to
comply with provisions set f0l1h in this Agreement would be grounds for Notice of Termination by
STATE.
DHC/Js [RedLlghtEnforccEquip.Agr)
2
Exhibit "A"
o
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L"i WITNESS WHEREOF, the panies hereto have set their hands and seals the day and year fi' it
above written.
CITY OF SAN BERNARDINO
By:
J\fayor
City of San Bernardino
ST A TE OF CALIFORNIA
DEPARTMENT OF TRANSPORTATION
By:
Approved as to forn1
and legal content
JAMES F. PENMAN,
City Attorney
By:
City Attorney
City of San Bernardino
Df~C!Js IRedLightEnforceEqUlp.Agr}
3
Exhibit "A"
t
o
EXHIBIT "A"
Red Light Enforcement Equipment in the Citv of San Bernardino
Route/PM
Location
SBD 18/T6.15
SBD 18/T7.55
SBD 210(30)/27.28
30'h Street
40" Street
Arden A venue
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Exhibit "A"
** FOR OFFICE USE ONLY - NOT A PUBLIC DOCUMENT **
RESOLUTION AGENDA ITEM TRACKING FORM
Meeting Date (Date Adopted): S /' ;A, () 5 Item # J 1 A
Vote: Ayes ~ Nays Abstain
Change to motion to amend original documents 7 Companion Resolutions
Null/VoidAfter: laD..-daYSI 11110~
Resolution # On Attachments: D Note on Resolution of attachment stored separately: D
Resolution #
J-t;oS'-loi
Absent
PUBLISH D
POST D
RECORD W/COUNTY D
By:
Date Sent to Mayor:
Date of Mayor's Signature:
Date of ClerklCDC Signature:
Reso. Log Updated: ~/
Seal Impressed: d
.;..
Date Memo/Letter Sent for Signature:
I" Reminder Letter Sent:
Date Returned:
2nd Reminder Letter Sent:
Not Returned: D
.-j
"
~
~
I
....
y" 7 NJL- By_
Yes_ NO~.BY_
Yes No By_
Yes No~y
Yes NoL By_
Request for Council Action & Staff Report Attached:
Updated Prior Resolutions (Other Than Below):
Updated CITY Personnel Folders (6413, 6429, 6433, 10584, 10585, 12634):
Updated CDC Personnel Folders (5557):
Updated Traffic Folders (3985, 8234, 655, 92-389):
Copies Distributed to: <'
Animal Control
1Y
EDA V Ioformation Services D
Facilities Parks & Recreation ~
Finance Police Department
Fire Department D Public Services D
Human Resources D Water Department D
City Administrator
City Attorney
Code Compliance D
Development Services D
Others:
Notes:
Ready to File:
Revised 12/18/03
.
--
..
** FOR OFFICE USE ONLY - NOT A PUBLIC DOCUMENT **
RESOLUTION AGENDA ITEM TRACKING FORM
M,,"o, """ "'''' ^"r( 6> b< os' 1_ # ?7,~ 13 I<<oohilioo # JiJ 0'>, (0 7 A
Vote: Ayes Nays Abstain Absent
Change to motion to amen~ original documentrCompanion Resolutions
NulVVoidAfter: ~daYSI 1/1/ )
Resolution # On Attachments: D Note on Resolution of attachment stored separately: D
PUBLISH D
POST D
RECORD W/COUNTY D
By:
Date Sent to Mayor:
Date of Mayor's Signature:
Date of ClerklCDC Signature: 19
./
Date Memo/Letter Sent for Signature: ,6, ) "77 OS Date Returned:
I" Reminder Letter Sent: 2nd Reminder Letter Sent:
Reso. Log Updated:
Seal Impressed:
f
Not Returned: D
a
>
~
~
,"
Request for Council Action & Staff Report Attached:
Updated Prior Resolutions (Other Than Below):
Updated CITY Personnel Folders (6413, 6429, 6433, 10584, 10585, 12634):
Updated CDC Personnel Folders (5557):
Updated Traffic Folders (3985, 8234, 655, 92-389):
Yes /
No By_
~
No By_
No / By
No ---:Z. By =
NO~BY_
Yes
Yes
Yes
Yes
Copies Distributed to: H
Animal Control
Others'
D
EDA ~ Information Services V
Facilities Parks & Recreation
Finance Police Department
Fire Department Public Services
;;,
~
~
City Administrator
City Attorney
Notes:
Ready to File:'_
Date:~~
Revised 12/18/03
.
CITY OF SAN BERNARDINO
Interoffice Memorandum
CITY CLERK'S OFFICE
Records and Information Management (RIM) Program
DATE:
May 23, 2005
TO:
Mark Lancaster, Deputy Director/City Engineer
FROM:
Eileen Gomez, Senior Secretary
RE:
Transmitting Documents for Signature - Resolution 2005-107 A
At the Mayor and Common Council meeting of May 2, 2005, the City of San Bernardino
adopted Resolution No. 2005-107A - Resolution approving an Addendum to Maintenance
Agreement for Traffic Signal Red Light Enforcement Equipment in State Routes in the City of
San Bernardino with CalTrans.
Attached is one (I) original agreement and two (2) duplicate original agreements. Please obtain
signatures in the appropriate location and return the ORIGINAL addendum to the City Clerk's
Office as soon as possible, to my attention. Please keep the fully executed copies for your
records and for the other party.
If you have any questions, please do not hesitate to contact me at ext. 3206. Thank you.
Eileen Gomez
Senior Secretary
e mentioned documents.
Signed:
Date:
Please sign and return