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Added 12-11-09
Daly City Documents -
Set # 3, Cont'd
2009
Appeal Decision - People v. Lopez
This case is
an example of a foundational defense (see Defect # 10 -
B on the Home page).
To my
knowledge this is only the third favorable Appellate Division 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. 10,
2009 the City of South San Francisco may have
removed cost-neutrality from its
contract, on Nov. 16,
2009 the City of San Mateo removed cost-neutrality from its contract,
in early 2010 the City of Millbrae removed cost-neutrality from its
contract, and on Nov. 22, 2010 Redwood City removed cost-neutrality
from its
contract.
Click on
these links for the documents in the Lopez appeal
(chronological order):
Appellant's
Opening Brief
City's Brief
(not part of official record)**
Appellant's
Closing Brief (not part of official record)**
Appellate
Judge Mark Forcum's Decision
City's
Petition for Rehearing
Appellate Judge
Forcum's Decision to Re-Open
City's
Brief Filed after Re-Opening
Order
Confirming Decision
**The City's
brief - which they may have borrowed from a city in the East Bay
- was dated Nov. 30, well after the orals/hearing date of Nov. 13
(the hearing date is shown on the Decision document). As a
result, when the City attempted to file its brief with the court,
the court turned them away. The City also sent a copy of their
brief to
appellant, who generated a reply brief; when he attempted to file it
with the court, he too was turned away. Thus, neither the City's
brief nor appellant's reply brief were part of the official record
leading to the intitial decision to reverse -
those documents are presented here solely for their educational value.
This
is the compensation section from the Daly City contract (note that the
City is likely to amend the contract):
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FROM THE CONTRACT WITH
REDFLEX, SIGNED IN MARCH 2007
EXHIBIT "D"
COMPENSATION
& PRICING
Commencing on the
expiration of the Warning Period for
each Designated Intersection Approach, Customer shall be obligated to
pay
RedFlex a fixed fee of $6,000 per month for each Designated
Intersection
Approach (“Fixed Fee”) as full remuneration for performing all of the
services
contemplated in this Agreement.
Cost Neutrality
Cost neutrality is
assured to Customer. Cost neutrality
is assured to Customer using this methodology, as Customer will never
pay
RedFlex more than actual cash received.
The customer agrees to
pay RedFlex within thirty (30)
days after the invoice is received. City shall be obligated to pay the
cumulative balance invoiced by RedFlex, in accordance with terms set
forth
above, to the extent of gross cash received by the City from automated
red
light violations. In the event that a balance remains unpaid due to a
deficit
in gross cash received by the City compared to invoiced amounts, City
will
provide to RedFlex with each monthly payment, an accounting of such
gross
receipts supporting the amount withheld.
1. In the event that the
contract ends or is terminated
and an invoiced balance is still owed to RedFlex, all subsequent
receipts from
automated red light violations for a period of 12 months from date of
termination will be applied to such balance and paid to RedFlex.
2. Payment will only be
made by Customer up to the amount
of cash received by Customer from the County through the collection of
red
light citations up to the amount currently due.
3. Customer
shall open a separate revenue account and
payments to Redflex will come only from the available balance in that
account
up to the amount currently due, including any unpaid prior invoiced
amounts. |
These materials may be freely copied and distributed, so long
as credit is given
to highwayrobbery.net .
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