THIS AGREEMENT dated ___________________________, 2002, is by and between the CITY OF SUNNYVALE, a municipal corporation ("CITY"), and BI TRAN SYSTEMS, INC, a California Corporation ("CONSULTANT").

WHEREAS, CONSULTANT possesses the skill and expertise to provide the required services;

NOW, THEREFORE, THE PARTIES ENTER INTO THIS AGREEMENT.

1.

Services by CONSULTANT

CONSULTANT shall provide services in accordance with the standards and requirements set forth in the Contract Documents. The Contract Documents include City of Sunnyvale Request For Proposals #F0203-49 For An Adaptive Traffic Signal System Integrator, Public Works Project No. TR-01/01-02 dated March 26, 2002, BI Trans' Response entitled "City of Sunnyvale Adaptive Traffic Signal System Implementation" dated April 26, 2002, and the letter from BI Trans dated June 24, 2002, modifying the proposal. All of these Contract Documents are incorporated into and part of this Agreement. CONSULTANT shall determine the method, details and means of performing the services.

2.

Time for Performance

This Agreement shall be in force up to and until CONSULTANT completes all services described in the Contract Documents, unless otherwise terminated. Services described in the Contract Documents shall be completed within nine months from the effective date of this Agreement. At CITY's discretion, the completion time may be extended to accommodate testing schedules. Extensions may be granted only by prior written authorization of CITY.

3.

Duties of CITY

CITY' shall supply any documents or information available to City required by CONSULTANT for performance of its duties. Any materials provided shall be returned to CITY upon completion of the work.

  4.

Compensation

CITY agrees to pay CONSULTANT, as full compensation for services rendered pursuant to this Agreement, the lump sum amount of One Hundred Twenty Nine Thousand Dollars and No/Cents ($129,000.00), subject to the terms and conditions provided for in the Contract Documents.

5.

Ownership of Documents

CITY shall have full and complete access to CONSULTANT's drawings and other documents ("Deliverables") during progress of the work. All documents of any description prepared by CONSULTANT shall become the property of the CITY at the completion of the project and upon payment in full to the CONSULTANT.

6.

Conflict of Interest

No officer or employee of CITY shall have any interest, direct or indirect, in this Agreement or in the proceeds thereof. During the term of this Agreement CONSULTANT shall not accept employment or an obligation which is inconsistent or incompatible with CONSULTANT's obligations under this Agreement.

7.

Confidential Information

permission; provided, however, that notwithstanding the foregoing, Consultant may disclose Confidential Information to the extent that it is required to be disclosed pursuant to a statutory or regulatory provision or court order.

8.

Compliance with Laws

a.

CONSULTANT shall strictly adhere to all state and federal laws with

respect to discrimination in employment and shall not discriminate against any individual on the basis of race, color, religion, gender, sexual orientation, marital status, national origin, age or disability..

b.

CONSULTANT shall comply with all federal, state and city laws, statutes,

ordinances, rules and regulations and the orders and decrees of any courts or administrative bodies or tribunals in any manner affecting the performance of the Agreement.

9.

Independent Contractor

CONSULTANT is acting as an independent contractor in furnishing the services or materials and performing the work required by this Agreement and is not an agent, servant or employee of CITY. Nothing in this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between CITY and CONSULTANT. CONSULTANT is responsible for paying all required state and federal taxes.

10.

Indemnity

CONSULTANT agrees to indemnify, defend and hold harmless CITY and its officers, officials, employees and volunteers from and against any and all claims, damages, losses and expenses, including attorney fees arising out of the performance of the work described herein, caused in whole or in part by any negligent act or omission of CONSULTANT, and its employees and subcontractors, except where caused by the active negligence, sole negligence or willful misconduct of CITY; provided, that CITY: (i) notifies Consultant within a reasonable time after City learns of any third party claim subject to indemnification hereunder, and (ii) gives full cooperation to Consultant for the defense of same.

11.

Insurance

CONSULTANT shall take out and maintain during the life of this Agreement policies of insurance as specified in the Contract Documents, and shall provide all certificates and endorsements as specified in the Contract Documents.

  12.

CITY Representative

Dennis Ng, P.E., Senior Traffic Engineer for the City, shall represent CITY in all matters pertaining to the services to be rendered under this Agreement. All requirements of CITY pertaining to the services and materials to be rendered under this agreement shall be coordinated through the CITY representative.

13.

CONSULTANT Representative

Jerry Bloodgood, Vice President, shall represent CONSULTANT in all matters pertaining to the services and materials to be rendered under this Agreement; all requirements of CONSULTANT pertaining to the services or materials to be rendered under this Agreement shall be coordinated through the CONSULTANT representative.

14.

Notices

All notices required by this Agreement shall be in writing, and shall be personally delivered, sent by first class with postage prepaid, or by sent by commercial courier, addressed as follows:

Nothing in this provision shall be construed to prohibit communication by more expedient means, such as by telephone or facsimile transmission, to accomplish timely communication. However, to constitute effective notice, written confirmation of a telephone conversation or an original of a facsimile transmission must be sent by first class mail or commercial carrier, or hand delivered. Each party may change the address by written notice in accordance with this paragraph. Notices delivered personally shall be deemed communicated as of actual receipt; mailed notices shall be deemed communicated as of two days after mailing, unless such date is a date on which there is no mail service. In that event communication is deemed to occur on the next mail service day.

15.

Assignment

Neither party shall assign or sublet any portion of this Agreement without the prior written consent of the other party.

 16.

Termination

Without limitation to such rights or remedies as CITY shall otherwise have by law, CITY also shall have the right to terminate this Agreement for any reason upon fifteen (15) days written notice to CONSULTANT. In the event of such termination, CONSULTANT shall be compensated in proportion to the percentage of services performed or materials furnished (in relation to the total which would have been performed or furnished) through the date of receipt of notification from CITY to terminate. Upon full and final payment, CONSULTANT shall present CITY with any work product completed at that point in time.

17.

Entire Agreement; Amendment

This writing and the Contract Documents constitute the entire agreement between the parties relating to the services to be performed or materials to be furnished hereunder. No modification of this agreement shall be effective unless and until such modification is evidenced by writing signed by all parties.

18.

Miscellaneous

  IN WITNESS WHEREOF, the parties have executed this Agreement.

ATTEST:

CITY OF SUNNYVALE ("CITY")

CITY CLERK

City Clerk

City Manager

APPROVED AS TO FORM:

BI TRAN SYSTEMS, INC

By 

Name/Title

By 

By 

City Attorney

Name/Title