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Added 12-11-08
Fullerton Documents -
Set # 3
2008
Appeals Decision - People v. Franco
This case is
an example of a foundational defense (see Defect # 6 and Defect # 10 -
B on the Home page).
To my
knowledge this is the first 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 Orange County "cost-neutral" cities such as
Fullerton, San Juan
Capistrano (tickets up to Feb. 2, 2009 only), and Laguna Woods.
The general issue of which
decisions get published, and which don't, is under study. See nonpublication.com
for more information.
The decision was under attack by the City; see the City's Petition and
Denial linked below.
Click on
these links for the documents in the Franco appeal
(chronological order):
Opening Brief
Appellate
Judge's Decision
TheNewspaper.com
Article
OC
Register Article, Feb. 2, 2009
Staff
Report - Proposed Contract Amendment
City's
Petition for Writ of Mandate
Around May 7, the District Court of Appeal decided: "The petition
is DENIED without
prejudice to petitioner first filing a motion to recall the remittur in
the lower court."
Contract
Terminated: OC Register Article, June 16, 2009
City's
Motion to Recall Remittur
Denial
of City's Motion to Recall Remittur, Aug. 14, 2009
This
is the compensation section from the Fullerton contract (note that on
Feb. 3, 2009 the Fullerton city council considered, but did not adopt,
an amendment to the contract - see staff report at link above):
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FROM ADDENDUM # 3 TO THE CONTRACT
SIGNED WITH NESTOR ON
1-16-07, RECEIVED AT HIGHWAYROBBERY.NET ON 11-28-07.
4.2. The
program will be operated as a safety program. In addition, most
communities
regularly look for ways to create efficiencies and control
spending. For
these reasons, NTS [Nestor] will perform an initial annual financial
review of
the program on the first anniversary of this Addendum, and every twelve
months
after the first annual review, and agrees to renegotiate its service
fees (down
or up, but not to exceed the service fees in Section 4.1) if it is
determined
that fees paid to NTS exceed net program revenues being realized.
If
requested by NTS, the CITY agrees to provide alternate intersection
approaches
and, subject to mutual agreement, support the relocation of poor
performing
approaches. If the parties are unable to
agree on a renegotiated fee, the City will have the right to terminate
the
agreement upon thirty (30) days written notice with no termination or
cancellation fee |
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