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ORIGINAL
CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
Dept: Police Department
Subject: Resolution of the City of San
Bernardino authorizing an amendment to the
Lease and Services Agreement with Nestor
Traffic Systems, Incotporated.
From: Michael A. Billdt, Chief of Police
Date: January 5,2009
M/CC DATE: January 20,2009
Synopsis of Previous Council Action:
5-4-2006
5-4-2006
Resolution No. 2008-135 - Contract Expansion Amendment with Nestor Traffic
Systems.
Motion to set a public hearing for April 7, 2008 to authorize an amendment to the
Lease and Services Agreement with Nestor Systems, Inc.
Resolution No. 2005-107 - Contract with Nestor Traffic Systems
Resolution No. 2005-107 A - Contract with Cal- Trans for State Signal Access
4-21-2008
3-24-2008
Recommended Motion:
Adopt Resolution.
~~
MIrnAEL A. BILLDT, o-JIEF OF POLICE
Contact person:
Captain Theodis Henson
Phone: 384-5609
Supporting data attached: Yes Staff Report/Resolution
Ward: All
FUNDING REQUIREMENTS: Amount: None
Source:
Finance
Council Notes:
&d
2-009- 7
Agenda Item No. 2-"
I, 20,6"
CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
Staff Report
Subiect
Resolution of the City of San Bemardino authorizing an amendment to the Lease and Services
Agreement with Nestor Traffic Systems, Incorporated.
Background
On May 4, 2005, the Mayor and Common Council approved Resolution No. 2005-107,
authorizing a Lease and Services Agreement with Nestor Traffic Systems, Inc., for a Traffic
Signal Violation System. The goal of this program is to improve our traffic safety program to
reduce the number of tratTlc accidents caused by red light violations. We do this by following
the Federal Highway Administration's (FHA) suggestion to train against aggressive driving
habits and inattention by using red light camera systems as a force multiplier to enforce red light
laws. Exhibit A ofthc Lease specified that video monitoring systems would monitor a minimum
of eight (8) approaches at the following four (4) intersections selected by mutual agreement of
City and Nestor.
On April 21, 2008, the Mayor and Common Council approved Resolution No. 2008- 135 that
amended the Lease and Services Agreement with Nestor Traffic Systems, Inc., to include seven
new enforcement locations and add supporting staff to the Police Department's Traffic Bureau.
On November 21, 2008, the Appellate Division of the Orange County Superior Court issued a
local (Orange County) decision voiding the contract between the City of Fullerton, Califomia,
and Nestor Traffic Systems, Inc., because of a "cost neutral" clause in their Lease and Services
Agreement. In their decision, (Orange County Superior Court Case 30-2008-93057), Judge
Robert J. Moss reversed the local tratTlc court's conviction on a Red Light Camera Enforcement
System citation because of a cost neutral clause allowing the City of Fullerton and Nestor Traffic
Systems, Inc., to negotiate down on the cost of the services agreement. Currently, the Orange
County Superior Court decision applies only to their jurisdiction. However, the same "cost
neutral" language exists in our Lease and Services Agreement with Nestor Traffic Systems, Inc.
The ruling could be used by a San Bemardino County Superior Court judge to invalidate our
agreement and halt our Red Light Camera Video Enforcement safety project.
It is recommended that the City of San Bernardino and Nestor TratTle Systems amend the
existing contract by removing the "cost neutral" paragraph. The removal of this paragraph is
justiticd for two reasons. First, the "cost neutral" adjustment feature has never been used by the
City of San Bernardino. In the spirit of California Vehicle Code Section 21455, the City has
never looked to lower costs of this safety project based on the number of citations issues or the
amount of revenue produced by the project. Second, while not tested at the State level. the
decision of the Orange County Superior Court suggests that removing the option provides
another safeguard against inappropriate actions by our system vendor (Nestor Traffic Systems).
Financial Impact
None. This is a no cost change to the existing contract.
Recommendations
Adopt Resolution.
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RESOLUTION NO.
RESOLlTIO'i OF THE CITY OF SAN BERNARDINO AUTHORIZING AN
AMEl'iD'\IENT TO THE LEASE AND SERVICES AGREEMENT WITH NESTOR
TRAFFIC SYSTEMS, Il"CORPORA TED.
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE
CITY OF SAN BERNARDll'\O AS FOLLOWS:
SECTION 1:
The Mayor of San Bernardino is hereby authorized and directed
to e"ecute the "Amendment to Agreement" of the Tramc Signal Violation Video-Enforcement
System Lease and Seryices Agreement approyed May 4. 2005. with Nestor Traffic Systems. a
copy of \\hich is attached as bhibit "A". and incorporated herein by reference. All other terms
and conditions of the Lease and Seryices Agreement will remain in etIect and unchanged.
SECTION 2:
This amendment shall not take effect or become operative until
fully signed and e"ecuted by the parties and no party shall be obligated hereunder until the time
of such full ewcution. 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 party.
SECTION 4:
This Resolution is rescinded if the parties to the contract fail to
e"ecute it \\ithin si"ty (60) days of the passage of this Resolution.
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RESOLUTlO,," :"10.
RESOLL'TlO:"l OF THE CITY OF SAN BER.c'lARDINO AUTHORIZING A:'i
A:\IE:"ID:\IE:"IT TO THE LEASE AND SERVICES AGREEMENT WITH NESTOR
TRAFFIC SYSTDIS. I:"ICORPORATED.
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor
and Coml11on Council of the City of San Bernardino at a
meeting thereof, held
on the
day of
. 2009. by the following vote. to wit:
Council 'v!embers:
AYES
NAYS
ABST AIN ABSENT
ESTR.....D.....
BAXTER
BRI:\KER
VACA:\T
KELLEY
JOH:\SO:\
\KCAM\1ACK
Rachel G. Clark. City Clerk
The foregoing Resolution is hereby approved this
day of
,2009.
Patrick 1. Morris. Mayor
City of San Bernardino
Appro,'ed as to
Forn1:
1-.
,I es F. Penman. City Attorney
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AMENDMENT TO AGREEMENT
This Amendment to Agreement is entered this
day of
,2009
by and between Nestor Traffic Systems, Inc., ("Nestor") and the City of San Bernardino
("Municipality").
RECITALS
Whereas, on May 4, 2005, the Municipality and Nestor entered into a written contract entitled
"Traffic Signal Violation Video-Enforcement Agreement ("Original Agreement") for the installation
and assistance in the administration and operation of traffic video monitoring systems; and
Whereas, on April 21, 2008, the Agreement was amended in writing by Municipality and
Nestor ( Agreement as amended is hereinafter referred to as "Agreement"); and
Whereas, Nestor and Municipality have agreed to amend the Agreement to address concerns
created by an adverse legal interpretation of paragraph 4.3 of the Agreement.
Now, therefore, in consideration of the mutual covenants contained in the Agreement, Nestor
and Municipality agree as follows:
1. Section 3.3 of the Agreement is hereby amended by deleting therefrom the reference to
Section 4.3 of the Agreement.
2. Section 4.3 of the Agreement is hereby amended by deleting the language of that Section
from the Agreement in its entirety. That section shall now read "Deleted."
3. All other provisions of the Agreement are reaffirmed as originally adopted.
III
III
III
III
AMENDMENT TO AGREEMENT
1'\ \\'IT'\ESS THEREOF, the parties hereto have executed this Amendment to
Agreement on the day and date tirst above written,
Dated:
,2009,
Dated:
.2009.
ATTEST:
Rachel Clark, City Clerk
Appro"ed as to Form:
Penman. City ,.\ttol11ey
II
Nestor Traftic Systems Inc.
By:
Clarence Davis, President and CEO
CITY OF SAN BERNARDINO.
By:
'vlark F. Weinberg, City 'vtanager
FILED
Sl,PERIQR COURT OF CAUFORNIA
COUNTY OF ORANGE
CENTRAL JUSTICE CENTER
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APPELLATE DIVISION
SUPERIOR COURT OF CALIFORNIA
l_flV 2 1 2008
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COUNTY OF ORANGE
ALAN CARLfWoIlIioCcut
BY G GAlON
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I THE PEOPLE OF THE STATE
6 ,OF CALIFORNIA,
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Plaintiff and Respondent,
vs.
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FRANCO,
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Defendant and Appellant.
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Case No. 30.2008.93057
JUDGMENT ON APPEAL
from the
SUPERIOR COURT
COUNTY OF ORANGE
NORTH JUSTICE CENTER
HON. ALLEN KELLEY STONE,
COMMISSIONER
15 Appellant contends evidence from the City of Fullerton's Automated
16 Enforcement System was inadmissible because the City's contract with the camera
17 operator contains a provision tying payment to the operator to revenue generated
18 by the system. This court agrees, and orders the judgment reversed.
19 Vehicle Code section 21455.5{g) provides that a contract between a
20 governmental agency and a manufacturer or supplier of automated enforcement
21 equipment may not include a provision for payment of compensation to the
22 manufacturer or supplier based on the number of citations generated or
23 I, percentage of revenue generated as a result of use of the equipment. The purpose
24 II of the statute is to avoid an incentive to the camera operator, as a neutral evaluator
25 I of evidence, to increase the number of citations issued and paid through use of the
26 equipment.
27 The contract at issue provides for payment of a flat monthly fee, but also
28 provides that service fees can be negotiated "down or up, but not to exceed" the
monthly rate "if it is determined that fees paid to NTS exceed net program
revenues being realized." The provision that fees can be negotiated "up," is
2 meaningless in light of the provision that fees are "not to exceed" the stated
3 monthly rate. However, the possibility that fees could be negotiated "down" if it is
4 determined fees paid to NTS exceed "net program revenues being realized,"
5 indirectly ties fees to NTS to the amount of revenue generated from the program. If
6 insufficient revenue is generated to cover the monthly fee, the fee could be
7 "negotiated down." As such, NTS has an incentive to ensure sufficient revenues
8 are generated to cover the monthly fee.
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9 Because the City's contract with NTS violated Vehicle Code section
10 21455.5(g), the trial court erred in admitting evidence from the automated
11 enforcement system.
The judgment of the trial court is reversed, with instructions to dismiss the
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citation. People v. Kriss (1979) 96 Cal.App.3d 913, 921. Because the judgment is
reversed for the reason discussed above, this court need not consider the other
arguments raised by appellant.
Presiding Judge
NESTOR TR-\FFIC SYSTEi\lS, I:"iC.
MFNICIPALITY OF
SA.'J BERl'lARDI:-IO, CALIFORNIA
TR-\FFIC SIGNAL VIOLATION VIDEO-ENFORCEME:"iT 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 Propos,ls");
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 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 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 heanng.
NOW, THEREFORE, the Parties, intendmg to be legally bound, agree as follows:
I. SER\1CES
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 wlth Exhibit A;
(ii) citation preparation processes that assist the Municipality in complying with current applicable
law;
NYCOCS;293379.8
(iii) training of Municipality personnel involved with the operation of the System andlor the
disposition of citations; and
(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 Sofrn;are, if manufactured by Nestor, is supplied under the license set forth in Exhibit
B (the "L,cense") 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 (il) 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.
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, if there is
any conflict among the terms and conditions of this Agreement and those of any such provision or prmlsions 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. TER:VI
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
N'fOOCS: 2931379.8
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intersections descnbed in Sections 1.1 or 1.2 of Exhibit A.
3. TEIUlINATIO:'\ A:'iD EXPIRUION
3.1 ThiS Agreement may be terminated by either Party if the other Party defaults in the
perfoIl11ance 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 "mtten agreement of the parties,
upon termination or expiration of this 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 form 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
permission to Nestor to remove the Equipment and Software.
3.3 Termination 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 termination. This Se,ction
3,3, as well as Sections 3,2,4.3, 6.2, 6,), 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 termination of this Agreement, the License or the Lease.
3.4 Notwithstanding anj1hing to the contrary contained herein, or in the License or the Lease, but
except as provided in the last sentence of Section 3,), the License and the Lease shall terminate upon the
termination or expiration of this Agreement.
4. FEES A:'iD PAnIENT
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.
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. If and to the extent that (I) an Installed Approach
subject to a Monthly Fee is not capable of detectmg 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 oftlie Event, divided by
(b) thirty (30) days.
N'fDOCS:293873.8
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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
financi.1 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) if it 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. Invoices will be sent to the Municipality at:
The City of San Bernardino
Ann: 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 [axes
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.
5. Responsibilities of the Municipality
5.1 The Municipality shall provide Nestor with such "as built" drawings in AutoCad electronic
fonnat 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 <lelay.
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 prosecutoria! discretion, the Municipality shall diligently
prosecute each citation and defend any challenge in any COllrt to the use of the System or validity of its results
and/or tile 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
NYDCX:S: 293879.8
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Approach(es) to make such Installed Approach(es) compatible therewith. Notwithstanding the above, Nestor
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 Senices.
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 WARR.\.NTY AND LI)lITATION ON DAMAGES
6.1 Nestor warrants that the System's functionality will confonn 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
make 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.
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;
(e) The warranty set forth in section 6.1 is not intended to, and shall not, be construed as a warranty of
NYDOCS 293879.8
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the level of performance of the System;
(f) 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 1vlunicipality 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. L'iDEMNITY
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.
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) Nestor 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, and 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
NYOGCS:293819.8
6
ofihis Agreement or (ii) otherwise the subject of this paragraph.
8. INSUR~NCE
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. \Vorkers 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 specifically 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.
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 of this Agreement shall 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.
NYDCCS: 293879.8
7
9.6 Exceptas 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, tennination 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 IVay tends to change or modifY the tenns 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 wTiting, 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 de lay in meeting any obligations hereunder which anses in whole or in part from causes
which are unforeseen by, or beyond the control of, such Party, including without limitation, ~cts 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.
/ / /
/ / /
/ / /
/ / /
NYDCCS:293879.8
8
IN WITNESS WHEREOF, the Parties hereto have set their hands by their duly authorized
representatives as of the day and year first above written.
Nestor Traffic Systems, Inc.
J~)le~
Nigel P. Hebbom
President & CEO
By:
Nt!fii e :
Title:
.'.:~
dl! Valles
ayor, City of San Bernardino
----
Approved as to
form and legal content:
JAc'v!ES F. PE?-<').lAN
City Attorney
t;'
!.e..,.~
NYDOCS:2938-:'9.8
9
Exhibit A
SER\1CES
Nestor shall provide the Municipality with the following Services, each of which is more fully described below:
I. Site Installation Plannmg; 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 (1 S) days prior to the commencement of installation of the System at any such '.
intersection), then alternate intersection(s) may be substituted by written consent oflhe 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 SYstem. 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
NYDOCS: 2939,9. 8
10
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 ovm 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.
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
responsibility of Nestor.
NYDOCS:293879.3
11
2. User Training and Supoort.
2.1 Traininl! of Municipality Personnel. After System installation, Nestor will provide up to eight
(8) hours of training for up to ten (10) persons at t'.vo (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 necessary training materials and documentation
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 Preoaration and Processinl! 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.
3.1.1 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.
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 oftime.
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 do\mload 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.
NYDOCS:293879.8
12
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 sofrware not provided by
Nestor. Nestor shall mamtatn 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 functlOnalir; conforms in all
matenal respects to the description of the System set forth in this Exhibit.
4.2 EqulOment 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 mspection will be done as needed.
5. Publ1c Education Campal[11
5.1 Publ1c Awareness ProlITam. 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 Wammg 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
will recommend appropriate installation locations.
6. Expert Witness Testimonv and Court Training
6.1 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 Equipment. 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
8.1 Weekly Report Nestor shall provide a weekly report to the l\!unicipality's Police Department
and the Court during the Warning Period. The report shall include the number of violations recorded per
Installed Approach.
NYDCCS:293879.3
13
8.2 Monthlv Reoort. Nestor shall submit to the Municipality a Monthly Report on projecCresults
within thirty (30) days of the end of each calendar month. To the extent reasonably co.mmercially practical, the
Monthly Report shall indude information for each violation recorded by the System as well as the following
items:
a) Number of vio13l1ons recorded
bJ Number of non-Issued violatIons
c) Breakdown of reasons for non-Issuance
d) Number of citatIons issued
e) Court heanngs scheduled and held
f) Number of calls for information
gJ Number of violation video viewing appointments scheduled
8.3 Additional Reoorts or Information. Any other reports and information are not part of the
Agreement and the preparation and delivery of any other such reports or informal1on 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 trafiic signal
c) Type ofvio13tion
dJ Vehicle description including license plate state and number
eJ Applicable vehicle code section violated
f) Citation prepared or reason for not preparing cital10n
g) Registered vehicle owner's name and address, driver's license number and related information
required to prepare cital10ns where violation is made by a driver other than registered owner
(AffIdavit of Non-Liability)
h) Status ofcital1on (outstanding, cancelled, reissued, paId, bail forfeited, traffic school, warrants
issued, etc.)
9. MeetinQs
Nestor representative(s) shall be made reasonably available to meet with the Police
Department. and other representatives of the Municipality as determmed by the Municipality, on a bi-weekly
baSIS during program implementation and at a minimum on a monthly basis once 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.
N'{OOCS: 29387 9. g
14
10. Additional Services (at the Municioalitv's request):
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
mtersectlOn. The Video media will contain up to 16 hours of VIP mom to ring assuming the equipment
remains installed at the intersectIOn during the course of mOnitoring, but nor to exceed three
consecutIve calendar days. A report summarizing the results, along with the media generated will be
prOVIded to the Munlcipaltty. The VIP Program Fee is $850 for each mtersectlOn 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 mtersection between
blocks. The VIP Program Fee for an intersection is due upon ordering the service. If the Municipality
selects the intersectIOn for a full CrossmgGuard System installation wi thin 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 ll1Jtial TIcket Processmg Fees charged for the intersection.
To order a CrossingGuard VIP analysis, the Municipality should provide a 'Hilten 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 uhlizing current fixed overview camera positions, or
dedicated camera subject to customer control, fee to be determined.
NYDCCS:2938i9.8
15
EXHIBIT B
LICE;\"SE AGREE;\IENT FOR CROSSI."GGUARD SOFTWARE
This License Agreement (the "License") is a legal agreement ber\veen 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 mcludes any updates and supplements to the original
SOFTWARE PRODUCT prOVided to you by Nestor. Any software provided along with the SOFTWARE
PRODUCT thar is associated wIth a separare license agreement is licensed to you under the terms of that
license agreement. By execullon 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. GRANT 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, includmg 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.
2. DESCRIPTION OF OTHER RIGHTS AND LIMIT A nONS. You may not reverse engineer,
decompile, or disassemble the SOFTWARE PRODUCT, except and only to the extent that such activity is
expressly pemlitted 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 ternlS and conditions of this License. With respect to technical
information you provide to Nestor as part of the Support Services, Nestor may use such informallon for its
business purposes, including for product support and development. Nestor w,ill not utilize such technical
information in a form that personally identifies you. If the SOFTWARE PRODUCT is labeled as an upgrade,
you must 1:e properly licensed to use a product identified by Nestor as being eligible for the upgrade in order to
use the SOfTWARE PRODUCT. A SOFTWARE PRODUCT labeled as an upgrade replaces and/or
supplemenlS the product that formed the basis for your eltgibility for the upgrade. You may use the resulting
upgraded ]1"oduct 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
SOFTW AItE 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.
4. COP"rlUGHT. All title and intellectual property rights in and to the SOFTWARE PRODUCT
N".:'DOC3: 293.H9 _ 9
16
(indudi,,!! but not limited to any images, photographs, animations, video, audio, music, text, and "applets"
incorponted 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 contttlt which may be accessed through use of the SOFTWARE PRODUCT is the property of the respective
conknt ,",vner and may be protected by applicable copyright or other intellectual property laws and treaties.
This 'Lic:nse grants you no rights to use such content. All rights not expressly granted are reserved by Nestor.
5. Dl'.-\L-l\lEDl-\ SOFTWARE. You may receive the SOFTWARE PRODUCT in more than one
med ium. Regardless of the type or size of medium you receive, you may use only one medIUm that is
approprine 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 SOFTW!\RE PRODUCT pursuant to this
License, JOU 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 COlvIPUTER, 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 SOFTWARE
PRODUCT or the printed materials accompanying the SOFTWARE PRODUCT.
7. US. GOVERN1"fENT RESTRiCTED RiGHTS. If you are acquiring the SOFTWARE PRODUCT
(includir.g the related documentation) on behalf of any part of the United States Government, the following
provi.sio" apply The SOFTWARE PRODUCT and documentation are prOVided with RESTRiCTED RiGHTS.
The SO; TW ARE PRODUCT is deemed to be "commercial software" and "commercial computer software
documentation," respectively, pursuant to OF AR Section 227.7202 and FAR 12.212, as applicable. Any use,
modi.fication, 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 terns of thiS License and shall be prohibited except to the extent expressly permitted by the tenns of this
License. Manufacturer is Nestor; its address is set forth in the Agreement.
8. COMPLL"u'\[CE WITH LAW !\NIl 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
coun.try of applicable jurisdiction. Without limiting the foregoing, you agree that you will not exportQr
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 mtends to transmit or transport the products back to such country; (ii) to any
end-user whoyou 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 agency 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.
N'fDCCS:293B,9,8
17
EXHIBIT C
LEASE AGREE:\IENT FOR CROSSINGGl'ARD SYSTEM
This Lease Agreement (the "Lease") is part of an agreement (the "Agreement") (to which a copy of thIS
Lease is attached as an Exhiblt) between the Municipality and Nestor. The Parties hereto agree as follows:
I. LEASE. Nestor hereby leases to Municipality and Municipaltty hereby leases from Nestor,
SlbJect to the terms and condltions of this Lease, the such items of System equipment (together with all
attachments, replacements, parts, addltions, substitutions, repairs, accessions and accessories incorporated therem
and/or affixed thereto, the "EquIpment") that Municipality obtains possession, custody or control pursuant to the
Agreement.
2 USE AND LOCATION. The Equipment shall be used and operated by Municipality only in
connection with the operation of the Sys:em by qualtfied employees of Municipality and in accordance with all
'9plicable operating instructions, and applicable governmental laws, rules and regulations. Municipality shall not
plrt with control or possession of the Equipment without Nestor's prior \vritten consent.
3. COi'iDlTlON. Municipality shall keep the Equipment in good condition and working order,
crdinary wear and tear from proper use excepted. Municipality shall not make any alteratIOns, additions or
inprovements 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
",e readily removable without causing material damage to such Equipment so as to return the Equipment to its
criginal 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
a',terations, addItIOns and improvements which would reduce the value of the Equipment must be removed prior to
ue return of such Equipment.
4. RETIJRN. Upon the expiration or earlier termination of the Agreement, Municipality shall return
tlIe 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
si1all 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
a...ring the term hereof, Nestor supplies Municipality with labels, plates or other markings evidencing ovmership,
9'cUlity 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 tvlUNICIPALITY SUBLEASE: ASSIGNMENT. l\lUl'HCIPALITY SHALL NOT
ASSIGN OR IN A;."'Y "VA Y DISPOSE OR OTHER"'lSE RELINQUISH POSSESSION OR CONTROL
OF ALL OR PART OF ITS RIGHTS OR OBLIGATIONS UNDER TillS LEASE OR ENTER Il';TO AJ."IY
SUB-LEASE OF ALL OR ANY PART OF THE EQUPMENT '''lTHOUT THE PRIOR WRITTEN
CONSENT OF NESTOR.
7. FINANCING STATEMENTS: FURTHER ASSURANCES. Nestor and Municipality intend this
tansaction to be a leasing transaction mly, but to the extent, at any time or from time to time, this Lease is
JYDOCS;293879.8
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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
ar.y other rights of MuniCIpality in and to the Equipment, this Lease andior their proceeds. Municipality, at the
request of Nestor and at MunicipalIty's expense, agrees to execute and deliver to Nestor any financing statements,
fIxture fihngs or other Instruments necessary for perfecting the interests and title of ~estor in the Equipment, and
MUnlclpallty agrees that Nestor may. in Nestor's sole discretion, file a copy of the Agreement, this Lease and any
Exh,bits in lieu of a financmg statement. Municipality agrees, at I'estor'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 mterests of Nestor, its
successors and permiaed 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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