Red Light Running Pilot ProgramCITY OF DUBUQUE, IOWA
MEMORANDUM
May 30, 2001
TO:
FROM:
SUBJECT:
The Honorable Mayor and City Council Members
Michael C. Van Milligen, City Manager
Contract for Red Light Running Pilot Program
Chief of Police Kim Wadding is recommending that a contract be approved with Nestor
Traffic Systems to install and operate an automated red light running system as part of
the Red Light Running Pilot Program.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
Michael C. Van Milligen
MCVM/jh
Attachment
cc: Barry Lindahl, Corporation Counsel
Cindy Steinhauser, Assistant City Manager
Kim B. Wadding, Chief of Police
MEMORANDA
Date: May 17, 2001
To:
Michael C. Van Milligen
City Manager
From: Kim B. Wadding
Police Chief
Re: Contract for Red Light Running Pilot Program
BACKGROUND:
Since October 1999 the Dubuque Police Department has participated in md light running
research coordinated by the Iowa Center for Transportation Research & Education (CTRE). The
research was designed to review the benefits of installing an automated red light nmning system
in the City of Dubuque to detect motorists failing to stop when approaching a red light signal at
an intersection. As a result of those conversations, the city was awarded $74,500 from the Iowa
Department of Transportation in November 1999 to develop a pilot program for automated red
light enforcement.
During the spring of 2000 a Red Light Running RFP (Request for PropoSal) committee was
formed to design and formulated the pilot criteria regarding the Red Light Automated System.
Committee members included: Alan Burr (East Central Intergovernmental Association), Bill
Blum (City Solicitor), Merrill Crawford (Cable TV/Communication), Greg Kuhl (Street
Department), John Mauss (Police Chief- Retired), Terry Lambert (Assistant Police Chief), Dave
Ness (Engineering), Mike Rettenmeier (Police Department), Shane O'Brien (Police Department),
Gary Jorgenson (Engineering - Retired), Tim Moerman (Assistant City Manager - no longer
with the city), and Kim Wadding (Police Chief).
As a part of the project, cameras were installed at three different intersections for three to four
days to record the number of red light violators. The three intersections were 14th & Central,
Dodge & Locust, and JFK & Pennsylvania. Additionally, the cities of Bettendorf, Davenport,
Fort Dodge, Iowa City, Sioux City, and West Des Moines also took part of this data gathering.
As a result, JFK & Pennsylvania was selected as the pilot intersection. During the summer a
RFP was prepared and sent to solicit bids for the installation and purchase of equipment. Nestor
Traffic Systems of Providence, Rhode Island was awarded the bid.
DISCUSSION:
With the bid awarded, a contract agreement was initiated between the city and Nestor Traffic
Systems. Bill Blum, City solicitor, was the main contact for the negotiation. The contract
agreement allows for $62,500 to be paid to Nestor Traffic in two installments of $31,250. The
first installment is due upon issuance of the Notice to Proceed with the second due after the
equipment has been properly installed and is operational. Additionally, the agreement requires a
monthly payment of $2,800 during the initial term of the agreement for management of citation
review and analysis.
If after the pilot period of six months the system proves successful, a municipal infraction
ordinance will be proposed to assess those vehicles identified as falling to stop when required.
The violation is a civil penalty and carries no criminal consequence. The costs are estimated at
$75 per infraction to cover the ongoing maintenance costs and administration of the system.
ACTION REQUESTED:
Submit contract for final review and signature.
NESTOR TRAFFIC SYSTEMS, INC.
MUNICIPALITY OF
DUBUQUE, IOWA
TRAFFIC SIGNAL VIOLATION VIDEO-MONITORING SYSTEM
SERVICES AGREEMENT
This AGREEMENT (the "Agreement") made this day of May, 2001, by and between Nestor
Traffic Systems, Inc., a Delaware corporation having a place of business at One Richmond Square, Providence,
RI 02906 ('~Nestor"), and the City of Dubuque, a municipal corporation of the State of Iowa having an address of
Dubuque Police Department, 770 Iowa Street, Dubuque, Iowa 52001 (the "Municipality" and together with
Nestor, the "Parties" and each singularly a "Party").
WHEREAS, the Municipality has issued a request for proposals (the "Request for Proposals");
WHEREAS, Nestor submitted on July 28, 2000, a Proposal (the "Proposal") in response to the Request
for Proposals; and
WHE~S, the Parties desire to enter into this Agreement, whereby Nestor will (i) install mad operate 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"),
ali as more fully described on Exhibit A, and (ii) in connection with the Services, license certain so,are and sell
certain equipment to the Municipality.
NOW. THEREFORE, the Parties, intending to be legally bound, agree as follows:
1. SERVICES
1.1 Nestor agrees ro use commercially reasonable efforts m provide to the Municipality the
Equipment and 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:
0)
the equipment (the '%quipment") and software (the 'SoRware"), to be supplied and installed by
Nestor in accordance with Exhibit A;
(ii) limited citation review services for the purpose of gathering violation data;
(iii)
where appropriate, training of Mnnicipality personnel involved with the operation of the System;
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 Equipmenx or SoRware, the Municipality agrees:
(i) such Software, if manufactured by Nestor, is supplied under the license set forth in Exhibit B
(the "License") m which the Mun/cipal/ty agrees;
NYDOCS:293879.8
(ii) such Sole,rare, if manufactured by third parties, is supplied under third-parry licenses
accompanying the Sottmare. which licenses the Municipality acknowledges receiving and to which it
hereby agrees.
1.3 The Municipality understands and agrees that (i) Nestor may subcontmet 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 Munkfipality's cooperation and compliance with Nestor's inslractions (including but not limited to
Municipality's provision of the persounel, 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 irmtallation and activation of the System set forth ha
Exhibit A (or incorporated therein) are subject to conditions beyond the control of Nestor and are not guaranteed.
1.4 Ownership and risk of loss to each part or parts oftbe Equipment shall pass to the Municipality
upon installation and acceptance of such part or parts and payment of fees pursuant to Section 4.2.
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, ffthere 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.
2. TERM
The imtial term of this Agreement and the License shall begin upon the date of this Agreement and shall
continue until the last day of the sixth month following the Installation Date (the "Initial Term") upon which date
this Agreement shall terminate. The "Installation Date" shall be the date that the System becomes installed and
operational.
3. TERMINATION AND EXPIRATION
3.1 This Agreement may be terminated by either Party ffthe other Party defaults in the perforruance
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 If this Agreement is terminated by Nestor pursuant to Section 3.1, the Municipality shall be
responsible and pay to Nestor on demand the termination and cancellation fee set forth in Section 4.3.
Termination of this Agreemem pursuant to Section 3.1 shall not relieve the breaching Party of any liability it may
have under this Agreement or pursuara to law to the non-breaching Party.
3.3 Nestor may terminate this Agreement, or its provision of any Service or any part of the System,
without liability, on thirty (30) days advance notice if Nestor concludes in its sole discretion that potential or
actual liability of Nestor to third parties arising out of or in connection with the System makes the program
impractical, uneconomical or impossible to continue.
3.4 Upon termination or expiration of this Agreement, the Municipality shall immediately cease using
the Sof[ware in its possession, custody or control and shall (a) immediately deliver to Nestor or irretrievably
destroy, or cause to be so delivered or destroyed, any and all copies of such Sot~:are in whatever form and any
written or other materials relating to such Sotbvare 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 such
NYDOCS:293879.8
2
Sot~cware is loaded and permission to Nestor to remove such Sof/ware. 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 Section 3.4, as well as Sections 3.2, 6.2, 6.3, 6.4, 7 and 9 of this
Agreement, and Sections 4, 7, 8 and 9 (but only to the extent Section 9 corresponds to Sections of the Agreement
which surv/ve) of the License shall survive any expiration or termination of this Agreement or the License.
3.5 Notwithstanding anything to the contrary contained herein, or in the License, but except as
provided in the last sentence of Section 3.4, the License shall terminate upon the termination or exp/ration of this
4. FEES AND PAYMENT
4.1 The Municipality shall pay Nestor a citation fee equal to SN/A (the "Per Citation Fee") for each
citation issued by the System that receives a Final Disposition, As used herein, "Final Disposition" means, with
respect to an issued citation: (0 the payment, in full or part, of the assessed fme, inchiding bail forfeitures, with
respect to such citation, (ii) a plea of guilty or no contest with respect to such citation, (iii) conviction with respect
to such citation, or (iv) any other disposition, including dismissals as a result of successful completion of a traffic
violator school course; provided, _however, that Final Disposition shall not mean a finding of not guilty with
respect to such citation.
4.2 Vendor agrees to sell the Equipment, install said Equipment, provide training, and review and
analyze violation information as required and descr?oed in this Agreement. In consideration for the Equipment,
the City agrees m pay the Vendor for the performance required by this Agreemen% $62,500. The Vendor shall
submit invoices for payment for the equipment, installation and training services in the amount of $31,250 upon
the issuance of the Notice to Proceed, and $31,250 al/er the equipment bas been properly :installed and is
operational. During the initial term of this Agreement, the Vendor shall submit invoices for paymenx of the
management of citation review and analysis in the amount of $2,800 on a monthly basis.
4.3 Notwithstanding Section 4.1 above, from and after the issuance of the first citation issued under
the System, the Municipality shall pay Nestor a monthly fee equal to the greater of (a) the product of (i) the Per
Citation Fee, multiplied by (ii) the nmher of citations issued by the System that receive a Final Disposition in
such month and (b) the Monthly Minim~lm. The Monthly Minimum shall equal $ N/A times the number of
Installed Approaches monitored during the month in question (partial months shall be pro rated). '[installed
Approach" shall mcan any individual access road or street to any intersection that is monitored by the System.
4.4 Except for termination of this Agreement pursuant to Section 3.3, the termination and
cancellation fee shall equal the product of (a) the Monthly Minimum as calculated in Section 4.2, multiplied by
(b) the Remaining Term. The "Remaining Term" shall equal the number ofmontha in the Initial Term ofthis
Agreement from the Installation Date (i.e., 6 months) minus the number of whole months from the Installation
Date to the date of termination.
4.5 Except for any termination and cancellation fee and other charges owed pursuant to Sections 4.3
or 5.5, which is due on demand, payment of all fees and other charges owed pursuant to this Agreement is due
within th/ny O0) days after invoice date. Invoices will be sent to the Municipality ar:
Dubuque Police Department
770 Iowa Street
Dubuque, Iowa 52001
NYDOCS:293879.8
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Attn: Mr. Mike Rettenmeier
4.6 Unless the Municipality provides Nestor with evidence of an exemption there'from, prices do not
include federal or state excise, sales, use or other similar taxes or charges. The Municipality agrees to indemnify
and hold harmless Nestor fi.om any liability arising out of 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 as Nestor, in Nestor's sole
discretion, may require for the preparation of drawings for the installation of the System and shall process
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 The Municipality shall not use the System or its output to prosecute citations generated.
5.4 The Municipality shall provide all electrical power required by the System.
5.5 The Municipality shall not modify traffic signal operations in effect at the time of the Proposal
without advising Nestor in advance of such modification. In the evem of any such modffication of traffic signal
operations, 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. In the event any such modifmation
materially adversely effects any Installed Approach(es) and upon written notice fi.om Nestor, either; (i) the
Municipality may elect to relocate the affected Installed Approaches in accordance with Exhibit A, Section 1.2, or
if such election is not made within 60 days of notice, (ii) Nestor may terminate this Agreement with respect to
such Installed Approach(es) and the Municipality shall pay to Nestor on demand the termination and cancellation
fee set forth in Section 4.3 pro rated by the ratio of the number of such terminated Installed Approach(es) to the
total of all Installed ApproacJaes.
5.7 During the term of th/s 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 WARRA. NIY AND LIMITATION 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
make all payments to Nestor required by tlfis .Agreement or as set forth in, and is subject to the conditions of,
Section 6.4.
6.2 Nestor warrants that the Equipment, if properly used, shall be flee fi.om defects in material or
workmanship for a period of one ( 1 ) year fi'om the date of installation. Nestor's sole and exclusive liability under
this warranty will be, at Nestor's option, to repak or replace, or credit the Municipality with the price paid for,
any component which fails during the warranty period provided (i) the Maninipality has promptly notified in
writing Nestor with a description of the deficiency and (ii) Nestor has, upon verification, found such component to
be defective and under warranty. All replaced Equipmerrr parts will become Nestor's property. This warranty does
not cover any part of the Equipment which has been subjected to tmusual physical or electrical stress, or on which
NYDOCS:293879.8
4
the original identification marks have been removed or altered, or which is damaged due to accident, misuse,
neglect, alteration, repair,/mproper installation or testing or unauthorized modification: This warranty also does
not apply (i) ffEquipment is installed in or at placements and approaches to be monitored which have not been
approved in writing by Nestor or (ii) if any hardware, software or equipment of any kind used with or in
connection with the Equipment fails to function properly or be fit for its or their intended purposes or (iii) if the
Municipality does not subscribe to Support Services or (iv) as set forth in, and is subject to the conditions of,
section 5.5. TIlE RIGHTS CONTAINED IN THIS PARAGRAPH EXTEND ONLY TO THE
MUNICIPALITY. THESE RIGHTS ARE THE MUNICIPALITY'S SOLE AND EXCLUSIVE REMEDY,
WHETHER IN TORT, CONTRACT, OR OTHERWISE, AND TI-IEY ARE IN LIEU OF, AND NESTOR
EXPRESSLY DISCLAIMS, ANY AND Al,I, OTHER WARRANTIES, EXPRESS OR I1V[PI,1F, D,
INCLUDING THE IMPLIED WARRANTIES OF 1VEERCHANTABIJLtTY OR FITNESS FOR A
PARTICULAR PURPOSE.
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 IM~PLIED WARRANrmS OF TITLE, NON-~RINGEMENT, NON-INTERFERENCE
WITH ENJOYMENT, ACCURACY, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR
PURPOSE AND ALL WARRANt'LES IMPLIED FROM ANY COURSE OF DEALING OR USAGE OF
TRADE. MUNICIPALITY ACKNOWLEDGES THAT EXCEPT AS EXPRESSLY PROVIDED HEaREIN
NO OTHER WARRANTIES HAVE BEEN MADE TO ~CIPALITY 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 ANY B.~/IAGES FOR LOSS OF INFORMATION, PROFITS, OR SAVINGS, OR BUSINESS
INTERRUPTION) ARISING OUT OF THE SYSTEM, THE SERVICES OR THE USE OF OR INABILITY
TO USE THE SYSTEM OR THE SERVICES, EVEN IE NESTOR OR AN AUTHORIZED NESTOR
REPRESENTATIVE IS AWARE, OR SHOULD HAVE BEEN AWARE, OF THE POSSIBILITY OF SUCH
DAMAGES. IN NO EVENT WII J, 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 FOR THE TWELVE MONTHS IMMEDIATELY
PRECEDING THE EVENT(S) OR CIRCUMSTANCE(S) GIVING RISE TO NESTOR'S LIABILITY TO
6.4 The Municipaiily acknowledges and agrees that:
(a) The System may not detect every red light violation;
(b) Since the System may flag as a violation conduct which is in fact not a violation, the output of the
System will require review, analysis and approval by personnel appropriately qualified by the Municipality under
applicable law prior to the issuance of any citation;
lc) The System may not detect every event for which it is des'nable to recommend extension of the red
light phase;
(d) The System bas no control over. and relies on the proper functioning of Municipality supplied
equvpment for signal light changes;
NYDOCS:293879.8
5
(e) The warranty set forth in section 6.1 is not intended te, and shall not, be construed as a warranty of
the level of performance oftbe System; and
(f) Tbe proper functioning of the System requires the Municipality's full and complete compliance with
Nestor instructions, which it hereby agrees re do.
7. INDEM/~I'rY
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 (a) a finding
that the System infringes any validly issued United States patent or (b) Nestor's negligence, provided that such
liability is not atm'butable 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 indeamify, the use of the System by
Mtmicipality is prevented, in whole or in parr, by an injunction, Nestor's sole obligation to the Municipality as a
result of such injunction shall be, at Nestor's option, either to (0 replace such part as has been enjoined, or (ii)
procure a license for Nestor or the Municipality to use same, or (ii0 remove same at no additional cost to the
Municipality and terminate this Agreement.
7.2 Anytb/ng to the contrary notwithstanding, Nestor assumes no obligation or liability for, and the
Municipality will indemnify, defend, and hold harmless Nestor, its officers, directors, shareholders, agents, and
employees fi'om any claim of damages (including the payment of reasonable a~orneys' fees) by a third party
arising fi'om 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 amy 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 (viii) an allegation regarding the permiss~ility under the law of the use of photo citation systems or the
System.
7.3 The rights of a Party seeking indemnification under this Section 7 shall be conditioned upon (i)
the indemnified Party notif~g the/ndemm/fying Party promptly upon receipt of the clakn or action for which
indemnification is sought (but the failure to do so shall not relieve the indemnifying Party of its obligations under
this Section 7 unless and then only to the exteatt it is materially prejudiced thereby) and (iN the indemnified Party's
full cooperation with the indemnifying Party in the settlement or defense of such claim or action at no cost to the
indemnifying Party (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. An indemnified Party
may participate in the defense of any indemnified matter through counsel of its own choice and at its own expense
provided that the indemnifying Party shall remain in, and responsible for, control of the matter. 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 krfifngement relating to or arising out of the subject matter of this Agreement or iii) otherwise
the subject of this paragraph.
8. 12~SURANCE
Nestor represents that it and its employees are protected against the risk of luss by the following
insurance coverage:
~YDOCS:293879.8
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a. Comprehensive general liability insurance with a combined single limit of $3,000,000 per
occurrence;
b. Workers Compensation as required by applicable state law; and
Comprehensive Automobile Liability Insurance for all owned, non-owned and hired automobiles
and other vehicles used by Nestor with a minimum $3,000,000 per occurrence combined single
lhm/t bodily injury and property damage.
9. MISCELLANEOUS
9. t 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 thkd 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 ember Party m requJre 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 in which the Municipality is located (without giv'mg
reference to choice-of~law provisions) from time to time in effect.
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 anyttfing
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 tiffs 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 ro prevent this Agreement from becoming effective. This Agreement supersedes any agreements and
understandings, whether written or ora[ entered into by the Parties hereto prior to the effective date of this
Agreement.
9.7 This Agreement may be modified or mended 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 ~ven
and in effect as of frae date of mailing or u'ansmission, 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 fu'st class mail, postage
NYDOCS:293879.8
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 Chief of Police 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 Mun/cipality in the case of the Municipality) in either its sovereign
or contractual capacity, f~res, 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.
9.10 Any dispute, controversy or claim arising out of or relating to this Agreement or a breach thereof
or the use of the System, shall be settled by arbitration before three neutral arbitrators (selected from a panel of
persons having experience with and knowledge of the computer business, provided at least one of which
arbitrators shall be an attorney, and administered by the American Arbitration Association in accordance with its
Commercial Arbitration Rules in Iowa. Any provisional or equitable remedy which would be available from a
court of law shall be available from the arbitrators to the Parties. Judgment upon the award of the arbRrators
may be enforced in any court having jurisdiction thereof. The Parties hereby consent to the non-exclusive
jurisdiction of the courts of the State of Iowa or to any Federal Court located within the State of Iowa for any
action (i) to compel arbitration, (ii) to enforce the award of the arbitrators or (iii) prior to the appointment and
confirmation of the arbitrators, for temporary, interim or provisional equitable remedies and to service of process
in any such action by registered mail, return receipt requested, or by any other means provided by law.
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.
Name: Nigel P. Hebborn
Title: Chief Financial Officer
City of Dubugne. Iowa
Name:
Title:
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Exhibit A
SERVICES
Nestor shall provide the Municipality with the following Services, each of which is more fully described belov~.
1. Site Installation Planning; Design and Equipment Installation
2. User Troining and Support
3. Limited Citation Preparation and Processing Services
4. Maintenance, Sell-test and Support
5. Reporting
6. Meetings
1. Site Installation Plannin~ Design and Equipment Installation
1.1 The System. The System shall be comprised of equipment capable of monitoring the following traffic
approaches at the following intersections:
John F. Kennedy & Pennsylvania Avenue
Approaches Enforced - One
1.2 Substitution or Addition of Intersection. If Nestor or the Municipality reasonably determines that
one or more of the above intersections is not for any reason appropriate for ~ 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. [fthe Parties
fail to agree on any such alternate intersection, Nestor may, at its op~on, either continue this Agreement in full
force and effect (with the exception of the intersection in question, which shall be deleted berefrom) or terminate
the Agreement without liability of either Party to the other.
After the commencement of installation activities, the Municipality may request that Nestor 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 sixty
(60) citations per Installed Approach at that intersection per month, averaged over a three month or longer period.
The Relocation Fee to be paid by the Municipality is subject to determination by Nestor based, in part, on the
alternate intersection agreed to, but in any event will not exceed $75,000 per Dual Approach System if existing
conduit is available at the new intersection, or $95,000 if new conduit is required.
1.3 Timeframe for Installation of the System. Tlie above intersection will be installed and activated
in phases in accordance with an Implementation Plan to be mutually agreed to by Nestor and the Municipality.
Nestor will use reasonable commercial efforts to install the System in accordance with the schedule set forth in the
Implementation Plan. The Muni(~pality agrees that the estimated dates of installation and activation of the System
set f~th in the Implementation Plan are subject to conditions beyond the control of Nestor and are not guaranteed.
t.4 Installation/Ownership of the Syszem. Nestor will procure and install traffic signal violation
detection equipment (computer hardware, cameras, eamem housing and mounts, communications equipment and
roadside controller cabinets) as specified in the Proposal at each of the designated intersections provided for
above. Upon payment by the Municipality of the fees pursuan~ to Section 4.2 of the Agreement, ownership of the
Equipment sbmll pass to the Municipality,
NYDOCS:293879.8
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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. These plans and
specifications shall be signed and stamped as approved by a professional engineer licensed to practice in
the State in which the Municipality is located. 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
eqnipment (not exposed) and underground in existing traffic signal conduits, except where requked to
directly interface with the traffic signals and electrical service. Separate conduits may be used by Nestor
if existing conduit(s) are au 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.
1.5.4 The System may be mounted on existing traffic signal poles 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 and foundations shall conform to applicable law. The Municipality
shall be solely respons~le for remediation that may be required with respect to such pole and
foundations if such remedlation 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 pulling all its wiring into Municipality cabinets.
1.5.7 To the maximum extent permitted by law, the Municipality shall waive any permit or
licensing fees for uny construction and installation being done.
1.6 Production of Video Files. Nestor shall produce die,at video files of a select nunaber of red light
violations, capable of identifying vehicles traveling through the intersection during the red light phase. The
violation video shall caprare the driver's view of the Waffic signal, and either a front or rear view of the vehicle
license plate. The digital video will be encrypted at the roadside location prior to being electronically transferred
to the processing center.
2, User Training and Support.
2.1 Training of Municipality Personnel. N/A
3. Citation Preparation and Processing Services
3.1 Citation Preparation and Processing. Nestor will process a select number of violations utilizing a
computer/zed traffic citation program ("Citation Manager"). In processing violations, Nestor shall print citation
forms. A representative sample of violations, including violation video evidence and sample citations will be
saved to a CD disk and sent to the Municipality for review monthly.
3.1.1 Mailing of Citations. N/A
3.1.2 Cooperation With Police and Court. N/A
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3.2 Access to Drivers License Information. N/A
3.3 Numbering System. N/A
3.4 Transmission of Information. Monthly CD disk containing sample violation video and citation
forms (excluding DMV information)
3.5 Customer Service. N/A
3.6 Notification of Failure to Appear. N/A
4. Maintenance and Self-test
4. t Maintenance of System. Except as provided herein, Nestor shall use commercially reasonable
efforts to Maintain the System (as defined below); provided however, that Nestor shall not be respons~le 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 and under warranty coverage. 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 mater/al respects to the description of the System set forth in this Exhibit.
4.2 Equipment Checks. Nestor shall use commercially reasonable efforts ro perform remote camera
and PC equipment checks on a daily basis to confn-m proper operation of computers, cameras and
commtmications network. Routine in-field camera equipment inspection x~411 be done as needed.
5. Public Education Campai~m
a) 5.1 Public Awareness Pro~ran~ N/A
5.2 Warning Signs. N/A
6. Expert Witness Testimony and Court Training
6.1 Expert Witness Testimony. N/A
6.2 Court Training. N/A
7. Violation Review Station
7.1 Provision of Equipment. N/A
8. Reportin~
8.1 Weekly Report. N/A
8.2 Monthly Report. Nestor shall submit to the Municipality a Monthly Report on project results
within thirty O0) 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
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8.3 Additional Reports or Information. Any other reports and ~formation are not part of the
Agreement and the preparation and delivery of any other such reports or information may result in additional tees.
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 stare and number
9. Meetings_
Nestor representative(s) shall be made reasonably available to meet with the Police Department,
and other representatrves of the Mtmicipality as determined by the Municipality, on a quarterly basis once the
program is fully operational.
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12
EXHIBIT B
LICENSE AGREEMENT FOR CROSSINGGUARD SOFI~VARE
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 Ey2n'bit ) and Nestor, Inc.
("Nestor") for the Nestor soft, rare product identified above, which includes computer software and may include
associated media, printed materials, and "online" or electronic documenta45on (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 ~s
a express condition to your ability to use the SOFTWARE PRODUCT.
l. 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, 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 nm the SOFTWARE PRODUCT on your other COMi°LrlERS 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 nm. A license for the SOFTWARE PRODUCT may not be
shared or used concurrently on different COMPUTERS.
2. DESCRIFIJON 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 PRODUCT. A SOFTWARE PRODUCT labeled as an upgrade replaces and/or supplements the
product that formed the basis for your elig~bility 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 ora component
of a package of sofc~tre programs that you licensed as a singie 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.
4. COPYRIGHT. All title and intellectual property rights in and to the SOFTWARE PRODUCT
(including but uot 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
NYDOCS:293879.8
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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,
rear. lease, lend or otherwise transfer the other medium to another user.
6. BACKUP COPY. After hastallation 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 urigtnal 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 SOFTWARE
PRODUCT or the printed materials accompanying the SOFTWARE PRODUCT.
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 Govesmnent, 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. Gov~ament 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 terms 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 nor 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 m which the U.S.
has embargoed or restricted the export of goods or services, which currently incinde, 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
prohihited 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.
NYDOCS:293879.8
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