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If you haven't already done so, please read Defect # 10 - B on the Home page


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):

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 .

Many other cases and /or transcripts are available - see the Index to Transcripts, Briefs, and Court Decisions.

For more details about Daly City, see Daly City's entry on the Camera Towns page.



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