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Added
10-18-09
San
Mateo Documents - Set # 2, Cont'd
2009 Appeals
Decision - People v. Bullock
This
case is an example of a foundational defense (see Defect
# 10 - B on the Home page).
To my
knowledge this is only the second favorable appellate
decision, anywhere in California, regarding the
legality of a cost-neutral contract.
This decision is final but has not been
published, so cannot be cited as precedent in other
cases, except possibly
in San Mateo County "cost-neutral" cities such as
Redwood City*, Millbrae*, South San Francisco, Daly
City, Menlo Park, and San Mateo*. The general
issue of which decisions get published, and which don't,
is under study. See nonpublication.com
for more information.
*On Nov.
16, 2009 the City of San Mateo removed cost-neutrality
from its contract, sometime between Dec. 31, 2009 and Feb.
4, 2010, Millbrae removed cost-neutrality from its
contract, and Redwood City removed cost-neutrality from
its contract on Nov. 22, 2010.
Click on
these links for the documents in the Bullock appeal
(chronological order):
Appellate
Judge
Mark Forcum's Decision
Daily
Post
Article about Decision
Atty.
Frank Iwama's Request for Publication
Court
Notice: Non-Publication of Decision
Daily
Post
Article
about
Non-Publication
of Decision
TheNewspaper.com
Article
about
Non-Publication
of
Decision
This is the compensation section from
the original San Mateo contract (note that the City has
amended the contract):
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FROM THE CONTRACT SIGNED
WITH REDFLEX ON 5-27-04, RECEIVED FROM CITY CLERK
ON 10-4-05
6.5.
Cost Neutrality After an initial twelve (12) month
period, if the total compensation paid to RedFlex
pursuant to this agreement exceeds that portion of
Fines received by Customer for Citations issued
during the same twelve (12) month period, then
RedFlex agrees to absorb, eliminate, or reimburse
Customer for the excess expense thereby covering
the cost for system operation so that the Customer
achieves cost neutrality in accordance with the
representation that the system(s) shall pay for
themselves. This cost neutrality provision shall
be applied for each twelve (12) month period for
which the agreement is in effect in order to
ensure cost neutrality throughout the Term of this
agreement.
EXHIBIT “D”
COMPENSATION
&
PRICING
Fixed
Fee of $6,030 Per Month Per Enforced Approach.
Cost
Recovery
The Customer and
the vendor agree to implement each red light photo
enforcement system utilizing a controlled and
phased methodology. Initial implementation will
include up to 2 systems that will be deployed in
the City. These systems will be utilized to (1)
evaluate the economic feasibility of wide scale
program deployment and (2) to develop surplus
revenue that may be, at the Customer’s discretion
be utilized to for sufficient cost recovery of
additional systems. The initial systems will be
subject to an introductory billing cycle that
includes the acceptance, without penalty of
invoiced payments for a period of 65 days past due
not to exceed a total of three months.
At any point, upon
mutual agreement between the City and the vendor,
this phased methodology can include the
implementation of additional systems and which are
outlined in the terms of section 6.3 [sic] Cost
Neutrality. |
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