HomeMy WebLinkAboutReso 35-2010RESOLUTION NO. 35-2010
CITY COUNCIL, CITY OF SOUTH SAN FRANCISCO, STATE OF CALIFORNIA
A RESOLUTION APPROVING AN AGREEMENT BETWEEN
THE SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN
MATEO AND THE CITY OF SOUTH SAN FRANCISCO
WHEREAS, the City instituted ared-light photo enforcement program, and began issuing
citations on August 14, 2009 as part of that program; and
WHEREAS, the People of the State of California, on behalf of the City, in the furtherance of
justice and equity, filed motions requesting dismissal of the citations; and
WHEREAS, on March 25, 2010, the Superior Court of California, San Mateo ordered that all
citations be dismissed, and motorists be refunded all fines and fees paid on citations issued from
August 14, 2009 through January 27, 2010. On March 29, 2010, the Superior Court of California,
San Mateo ordered that all citations be dismissed, and motorists be refunded all fines and fees paid
on citations from January 28, 2010 through February 28, 2010; and
WHEREAS, staff recommends that the City Council approve the attached agreement between
the City and the Superior Court of California, San Mateo concerning the processing of refunds for
fines and fees paid on citations under the red-light photo enforcement program.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of South San
Francisco that the City Council hereby approves the agreement with the Superior Court of California,
San Mateo attached hereto as Exhibit A.
BE IT FURTHER RESOLVED that funding for this agreement shall be appropriated from
the Undesignated Reserve. Upon receipt of the reimbursement of the Advance Payment, these funds
shall be placed into the Undesignated Reserve.
* * ~
I hereby certify that the foregoing Resolution was regularly introduced and adopted by the
City Council of the City of South San Francisco at a special meeting held on the 21St day of April,
2010 by the following vote:
AYES: Councilmembers Pedro Gonzalez, Richard A. Garbarino, and Karyl Matsumoto,
Vice Mayor Kevin Mullin and Mayor Mark Addieg_o
NOES: None
ABSTAIN: None
ABSENT: None
T:
it Clerk
Agreement Concerning Traffic Refunds
Related to Red-Light Photo Enforcement
This Agreement Concerning Traffic Refunds Related to Red-Light Photo Enforcement (the
"Agreement") is made by, and entered into between, the Superior Court of California, County of
San Mateo (the "Court") and City of South San Francisco, a political subdivision of the State of
California, (the "City") (each, a "Party" and both collectively the "Parties"), on Apri122, 2010
(the "Effective Date").
Recitals
City instituted ared-light photo enforcement program at the intersections of (1) Hickey
Boulevard and El Camino Real, and (2) Westborough Boulevard/Chestnut Avenue and El
Camino Real. As part of that program, on August 14, 2009, City began issuing citations to
motorists for allegedly violating Vehicle Code section 21453 by failing to stop for a red traffic
light.
Subsequently City determined that its contract with the red-light photo enforcement
vendor, American Traffic Solutions, Inc. ("ATS"), had not been formally ratified by the City
Council as required by State law. The City Council ratified City's contract with ATS at a public
meeting on January 27, 2010.
By January 27, 2010, however, City's red-light photo enforcement program had
generated over 6,000 citations to motorists. Since these citations had been issued before the City
Council formally ratified the ATS Contract, the People of the State of California, on behalf of
City, filed a motion requesting their dismissal in furtherance of justice. On March 25, Court
granted that motion and ordered dismissal of the citations. Court also ordered that motorists be
refunded all fines and fees paid under the red-light photo enforcement program for citations
issued from August 14, 2009 through January 27, 2010.
On March 29, 2010, the People of the State of California, on behalf of City, filed a
second motion requesting dismissal of more than 800 red-light photo enforcement citations that
were issued between January 28, 2010 through February 28, 2010. The Motion sought dismissal
in the furtherance of justice on equity grounds because City's police department had decided to
stop issuing citations and, instead issue warning notices pending a City hearing on whether to
continue the red light photo enforcement program, and in light of alleged legal deficiencies
concerning the program. Court granted the second motion on March 29, 2010 and ordered that
motorists be refunded all fines and fees paid on citations issued under the red-light photo
enforcement program from January 28, 2010 through February 28, 2010.
1 Agreement Concerning Traffic Refunds Related to Red-Light Photo Enforcement
Court, however, does not retain fine and fee revenues for more than a month. By law,
those fine and fee revenues must be distributed to designated recipients in local and state
government. Court therefore does not have sufficient funds available to make the requested
refunds.
In addition, the Parties acknowledge that the work that will be required of Court to
process the dismissals and issue refunds will create a significant financial and administrative
burden, at a time when its resources already are severely stretched from recent statewide funding
cuts to the judicial branch budget and related staff lay-offs. Preliminarily, Court has had to
invest considerable personnel time in (1) communicating with City, to evaluate the scope of the
problems and discuss the steps needed to remedy them, (2) communicating with county and state
officials to arrange the return of distributions of citation payments that Court made to those
entities or reach agreement about offsetting Court's distributions against future distributions, and
(3) responding to members of the public, who have called, written, and visited Court with
questions about the status of their traffic citations.
To process the dismissals and related refunds, Court will have to incur (1) vendor
programming costs to identify affected traffic cases and delay their processing so that further
financial charges are not assessed and there is no further impact on motorists' driving records,
and (2) staff costs, including overtime and possible part-time temporary work, to, among other
things, identify affected cases, retrieve case files, enter dismissals in Court's case management
system, generate and mail dismissal letters as necessary, create and provide reports and updated
abstracts to the Department of Motor Vehicles (DMV), manually update certain DMV records,
determine and verify refund amounts (including the amounts of the citation payments and any
application fees or bank financial charges incurred as a result of on-line or credit card payments),
and generate and mail refund checks. In addition, issuance of the unauthorized citations caused
Court unnecessary expense, in the amount of a $4.81-per-citation financial charge, which it paid
the vendor that ordinarily processes its traffic citations.
The Parties now seek to ensure that necessary dismissals are entered and refunds
provided as promptly as possible, and that Court is properly compensated for the described
financial and administrative burdens that result from City's decision to seek dismissal of the
citations issued under the program from August 14, 2009 through February 28, 2010.
Agreement
In consideration of the recitals above, and the mutual promises contained in this
Agreement, and for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Parties agree, voluntarily and with the advice of counsel, as
follows:
1. Defined Terms. The following defined (capitalized) terms in this section 1 apply to
the performance obligations of the Parties as set forth in section 2 ("Obligations of the
2 Agreement Concerning Traffic Refunds Related to Red-Light Photo Enforcement
Parties"). All other capitalized terms in this Agreement have the meanings set forth in
the respective provisions in which they first appear.
a. "Advance Payment" means City's payment of $1,500,000 to Court to enable
Court to refund to motorists that portion of Distributed Funds that currently
are in the possession of County and the state.
b. "ATS" means American Traffic Solutions, Inc., City's red-light photo
enforcement vendor.
c. "County" means the County of San Mateo.
d. "Court Administrative Costs" means all actual and necessary administrative
costs, described above in paragraphs 6-7 of the Recitals, that the Court or its
payment/processing agents actually incurred with respect to the Dismissed
Citations and associated refunds, including, but not limited to, all vendor
programming/processing costs and court personnel costs. "Court
Administrative Costs" does not include Court's actual refund payments to
motorists but only any actual and necessary administrative costs.
e. "Dismissed Citations" means citations that City issued to motorists between
August 14, 2009 and February 28, 2010 as part of its Program (see definition
below in paragraph lh), collectively dismissed by Court orders issued on
March 25 and 29, 2010.
f. "Distributed Funds" means fine and fee distributions that motorists paid Court
on Dismissed Citations, which Court distributed to local and state government
recipients as required by law.
g. "Effective Date" means the date on which the Parties entered into this
Agreement.
h. "Program" means the red-light photo enforcement program implemented by
City at the intersections of (1) Hickey Boulevard and El Camino Real, and
(2) Westborough Boulevard/Chestnut Avenue and El Camino Real, pursuant
to which City issued citations to motorists between August 14, 2009 and
February 28, 2010.
2. Obligations of the Parties
a. City has provided to the Court lists of citations that City issued as part of its
Program between August 14, 2009 and February 28, 2010, with the following
information: citation numbers; citation dates; and the names and addresses of
the cited motorists. These lists are contained in Exhibit A to the Motions To
Dismiss filed under seal on March 1.5, 2010 and March 29, 2010. Court
acknowledges that it has copies of the exhibits filed with said Motions to
Dismiss. In the event there are discrepancies between the City's lists and the
Court's records regarding the citations at issue, the parties will cooperate to
3 Agreement Concerning Traffic Refunds Related to Red-Light Photo Enforcement
provide each other sufficient information to ensure all eligible cases are
dismissed and any related refunds are made.
b. City shall provide a financial statement showing all Distributed Funds that it
received from Court for the Dismissed Citations.
c. Within five (5) business days of execution of this Agreement, City shall return
to Court the Distributed Funds that it received from Court, because the law
does not permit City to retain those funds following dismissal of the
underlying citations. Additionally, Court shall hold any current or future fine
and fee payments that it receives on the Dismissed Citations, and will not
distribute those payments to the City. The Court shall pay to the City its share
of any future fine and fee payments that the Court receives on future citations
other than the Dismissed Citations.
d. To assist Court in refunding to motorists that portion of Distributed Funds
currently held by the County and the state, City shall transfer the Advance
Payment to Court within five (5) business days of execution of this
Agreement. Court agrees that it will return the full Advance Payment to City
after Court has withheld fine and fee distributions corresponding to that portion
of the Distributed Funds that originally was forwarded to the County and the
state. The parties acknowledge and agree that the City transfer of the Advance
Payment to the Court shall not constitute, and shall not be interpreted or
implied as, any admission by the City that it is financially responsible for the
refund of the Distributed Amounts in any amount greater than the One
Hundred and Thirty-Nine Dollars and Seventy-five Cents ($139.75) per each
Dismissed Citation for which funds have been distributed by the Court to the
City.
e. City agrees that it will be financially liable for, and will directly pay to the
motorists, any interest payments required by law on any Court-refunded bail
forfeiture/fine, penalties, fees and assessments including traffic administrative
fee distributions, including interest that is payable under Vehicle Code
section 42201.6(c). Court shall not be responsible for making any such
interest payments. However, Court shall provide City, on not less than a
monthly basis, a list of each refunded amount, the date of the refund, the name
of the person receiving the refund and the applicable citation number.
f. City shall, following City's receipt of the executed release form from the
affected motorist, reimburse motorists who were issued Dismissed Citations
for any fee or tuition that the motorists paid directly to a traffic school, plus
4 Agreement Concerning Traffic Refunds Related to Red-Light Photo Enforcement
interest at seven percent per annum for the period between the date of the
original payment to the traffic school and the date of the City refund.
g. Finally, City agrees to reimburse Court for all Court Administrative Costs.
Within five (5) business days of the Effective Date, City shall advance
$250,000 to Court as partial reimbursement for initial Court Administrative
Costs incurred prior to the Effective Date of this Agreement and during the
first month of the term of this Agreement. Within forty-five (45) business
days of the Effective Date, Court shall provide a written accounting to City of
Court Administrative Costs incurred by that date, with sufficient detail, and
any supporting documentation, to substantiate the costs. Court shall hold any
remaining portion of the advance payment of $250,000 paid by City for Court
Administrative Costs, to be applied as payment to Court Administrative Costs
accrued after the first month of this Agreement and shall provide to the City a
monthly written accounting of such costs in accordance with the above
provision. If the total Court Administrative Costs under this Agreement are
less than $250,000, Court shall reimburse City an amount equal to the
difference between $250,000 and the Court Administrative Costs. To the
extent that City's initial advance payment of $250,000 has been depleted and
there are further Court Administrative Costs, Court shall provide City an
invoice each month listing the Court Administrative costs that Court incurred
in the prior month. Court shall ensure that each such invoice provides
sufficient detail and attaches any supporting documentation to substantiate
included costs. City agrees to pay such invoiced costs within thirty (30)
calendar days of receiving Court's invoice. City's liability for any invoiced
but unpaid Court Administrative Costs shall survive the expiration or
termination of this Agreement.
h. Court will be responsible for requesting reimbursement of the Distributed
Funds or withholding future distributions in amounts equal to the total of the
Distributed Funds that it paid to the state and County and will provide an
accounting to City of such received reimbursements thirty days prior to the
expiration of this Agreement.
i. City, and all its departments and divisions (including but not limited to the
City's Police Department), shall obtain Court's written consent before issuing
any public statement, correspondence directed to motorists, or press release
that mentions the Court. City shall provide Court with any such draft text at
least three (3) business days before the communication is to be released, for
Court's review and written approval. Court's written approval or disapproval
5 Agreement Concerning Traffic Refunds Related to Red-Light Photo Enforcement
will only address the acceptability of the communication's reference to the
Court, and shall not constitute legal advice.
j. Court shall use all reasonable efforts to issue refunds to motorists of all
payments made under the Dismissed Citations within sixty (60) days of
receipt of the Advance Payment, the initial Court Administrative Costs
payment, and reimbursement of Distributed Funds (under Section 2.c.) from
the City.
3. General Terms and Conditions
a. Term. This Agreement has a term commencing on the Effective Date, and
expiring on Apri123, 2011. This Agreement maybe terminated by Court,
without cause, upon thirty days prior written notice, provided however that
any termination without cause shall not relieve the Court of its obligation to
issue refunds of all payments made under the Dismissed Citations pursuant to
Court order and return the Advanced Funds to the City in accordance with
Section 2.d. A party may terminate this Agreement for cause, in whole or in
part, if the other party materially breaches any provision of this Agreement
and does not cure such breach within thirty days after receipt of a notice of
breach stating the party's intent to terminate. The Parties agree to use all
reasonable efforts to fulfill their respective obligations under this Agreement,
within the term.
b. Indemnification. City shall, and hereby does, protect, defend, indemnify and
hold harmless Court and the Administrative Office of the Courts (AOC), and
their officers, agents, and employees (collectively "Indemnitees") from and
against any and all loss, cost, damage, expense, and liability of any and every
kind or nature, including without limitation, attorney fees and court costs
(herein "Claims") arising from or in any way connected with the subject
matter of this Agreement and the performance or nonperformance by City of
its obligations under this Agreement except to the extent that such claims arise
out of or relates to the gross negligence or willful misconduct of the
Indemnitees. In the event any legal action(s) or any other proceeding(s) may
be brought against the Indemnitees by reason of any such Claims, City, upon
written notice from Court, shall promptly defend Indemnitees at City's sole
cost and expense, subject to the requirements of rule 10.201-10.203 of the
California Rules of Court.
The foregoing indemnity obligations shall survive the expiration or
termination of this Agreement.
6 Agreement Concerning Traffic Refunds Related to Red-Light Photo Enforcement
c. Dispute Resolution
i. Continued Performance. Whenever City and Court disagree as to
any matter governed by this Agreement, the dispute resolution process
set forth herein shall govern. While the dispute is pending, the Parties
shall continue to perform their respective obligations as set forth
herein.
ii. Request for Meeting. The Parties shall cooperate and use their best
efforts to promptly resolve any dispute. If, after seven (7) days, Court
and City cannot informally resolve any dispute, either Party may give
the other Party a written request for a meeting between Court's
designated representative and City's designated representative for the
purpose of resolving a disagreement between the Parties. Such
meeting shall be held within ten (10) days of the receipt of such
request. If the meeting fails to resolve the disagreement, nothing in
this Agreement shall preclude the Parties from exercising their legal
remedies.
d. Jurisdiction and Venue. Any legal proceeding commenced by either party
shall be filed and heard in the Superior Court of California, County of San
Mateo.
e. Entire Agreement. This Agreement, including any exhibits, schedules or
attachments to this Agreement, contains the entire and complete
understanding of the Parties hereto and supersedes any and all other previous
agreements, negotiations or discussions oral or written.
f. Amendment. No addition to or alteration of the terms of this Agreement
shall be valid unless made in the form of a written amendment to this
Agreement, approved and executed by the Parties' Designated
Representatives, as provided in section 3.s.
g. Time of Performance. Unless specifically stated to the contrary, all
references to days herein shall be deemed to refer to calendar days. If the
final date for payment of any amount or performance of any act falls on a
Saturday, Sunday or Court holiday, such payment shall be made or act
performed on the next-succeeding business day.
h. Further Assurances. Each Party hereto agrees to cooperate with the other,
and to execute and deliver, or cause to be executed and delivered, all such
other instruments and documents, and to take all such other actions as may be
reasonably requested of it from time to time, in order to effectuate the
provisions and purposes of this Agreement.
7 Agreement Concerning Traffic Refunds Related to Red-Light Photo Enforcement
i. Time of the Essence. Time is of the essence in each and all of the provisions
of this Agreement.
j. Assignment. City and Court agree that neither party shall assign any interest
in this Agreement, or subcontract any of the obligations that either is to
perform hereunder without the prior written consent from the other Party.
k. Notices. Any notices required or permitted hereunder shall be in writing and
maybe (a) personally delivered; (b) mailed by depositing such notice in the
United States mail, first class postage prepaid; or (c) sent by overnight
delivery service; addressed as follows or to such other place as each Party
hereto may designate by subsequent written notice to the other Party:
If to City:
City of South San Francisco
Attention: City Manager
Address: 400 Grand Avenue
City of South San Francisco, CA 94080
Phone: 650-877-8500
With a copy to: Steven T. Mattas, City Attorney, 400 Grand
Avenue, City of South San Francisco, CA 94080
If to Court:
Superior Court of California, County of San Mateo
Attention: Mr. John Fitton, Court Executive Officer
Address: 400 County Center
Redwood City, CA 94063
Phone: 650-599-1763
With a copy to: Ms. Rodina Catalano, Deputy Court Executive
Officer of Court Operations, 400 County Center,
Redwood City, CA 94063
Phone: 650-363-4863
8 Agreement Concerning Traffic Refunds Related to Red-Light Photo Enforcement
1. Waiver. Any waiver by either Party hereto of a breach of any of the terms of
this Agreement shall not be construed as a waiver of any succeeding breach of
the same or other term of this Agreement.
m. Binding. This Agreement shall be binding upon the successors and permitted
assigns of Court and City.
n. Counsel and Drafting. Each Party hereto, by its due execution of this
Agreement, represents to the other Party that it has reviewed each term of this
Agreement with its counsel, or has had the opportunity for such review with
its counsel. No Party shall deny the validity of this Agreement on the ground
that such Party did not have the advice of counsel. Each Party hereto has had
the opportunity to participate in drafting and preparation of this Agreement.
The provisions and terms of this Agreement shall be interpreted in accordance
with the plain meaning thereof, and shall not be construed in favor or against
either Party.
o. Counterparts. This Agreement maybe executed in one or more
counterparts, all of which together shall constitute one and the same
Agreement.
p. Severability. In the event any provision of this Agreement is held by a court
of competent jurisdiction to be invalid, void, or unenforceable, or is otherwise
inconsistent with the Governing Law (as that term is defined in the next
paragraph), then upon the request of either Party, the Parties shall promptly
meet and confer to determine how to amend the affected term or terms of this
Agreement in a manner consistent with the Governing Law, but in any event,
all parts of this Agreement not affected shall remain in full force and effect.
q. Governing Law. This Agreement shall be construed under the laws of the
State of California, without regard to its conflict of law provisions.
r. Certification, Representation and Warranty of Authority to Execute this
Agreement. City and Court each certifies, represents and warrants that the
individual(s) signing below on its behalf, has authority to execute this
Agreement on behalf of the Party, and may legally bind the Party to the terms
and conditions of this Agreement and any attachments hereto.
s. Designated Representatives. Court and City shall each identify and appoint
a designated representative who shall have the authority to bind Court and
City, respectively, for all matters and approvals related to this Agreement. As
of the Effective Date of this Agreement, the designated representative for
Court is:
9 Agreement Concerning Traffic Refunds Related to Red-Light Photo Enforcement
John Fitton
Court Executive Officer
Superior Court of California, County of San Mateo
("Court Designated Representative")
and the designated representative for City is:
Name: Barry M. Nagel
Title: City Manager
("City Designated Representative")
Court and City each may change its respective Designated Representative
by written notice to the other in accordance with the notice provisions set
forth in this Agreement.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the day and
year first above written.
SUPERIOR COURT OF CALIFORNIA,
COUNTY OF SAN MATED
By:
Name: John Fitton
CITY OF SOUTH SAN FRANCISCO,
apolitical subdivision of the State of California
By:
Name: Barry M. Nagel
Title: Court Executive Officer
1410536.1
Title: City Manager
10 Agreement Concerning Traffic Refunds Related to Red-Light Photo Enforcement