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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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