HomeMy WebLinkAbout231-10 RESOLUTIONRESOLUTION NO. 231-10
A RESOLUTION APPROVING A CONTRACT WITH THE WALTON ARTS
CENTER COUNCIL, INC. FOR THE PROVISION OF PARKING -RELATED
SERVICES IN THE DICKSON STREET ENTERTAINMENT DISTRICT
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
FAYETTEVILLE, ARKANSAS:
Section 1. That the City Council of the City of Fayetteville, Arkansas hereby approves a
contract with The Walton Arts Center Council, Inc. for the provision of parking -related services
in the Dickson Street Entertainment District. A copy of the contract is attached to this
Resolution as Exhibit "A."
PASSED and APPROVED this 21st day of December, 2010.
APPROVED:
Bv:
ATTEST:
By:
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SONDRA E. SMITH, City Clerk/Treasurer
CONTRACT FOR THE PROVISION OF PARKING -RELATED SERVICES BETWEEN
THE CITY OF FAYETTEVILLE, ARKANSAS
AND
THE WALTON ARTS CENTER COUNCIL, INC.
THIS CONTRACT, made and entered by and between the City of Fayetteville, Arkansas,
an Arkansas municipal corporation, (hereinafter "Fayetteville"), and The Walton Arts Center
Council, Inc., an Arkansas nonprofit corporation, (hereinafter "WAC"), WITNESSETH:
IN CONSIDERATION of the mutual promises and obligations of the parties contained
herein, and other good and valuable consideration, the parties hereby agree as follows:
1. Fayetteville desires to obtain customer -related services connected with the
parking of vehicles in its Dickson Street Entertainment District Parking Zone (hereinafter the
"District"), particularly customer service in parking lots adjacent to the WAC operated facility
located in the District (hereinafter "Center"), and. public relations and communication services
for persons parking in the District.
2. WAC desires to facilitate patron ease and convenience related to the parking of
patron's vehicles for performances or other programs at the Center.
3. Fayetteville requires educational assistance for patrons using gated parking lots
adjacent to the Center, the creation of a "pay in advance" feature for persons utilizing said lots,
customer service assistance for persons at entries and exits of the lots during performances at the
Center, staffing for reserved event parking, and communications services, particularly any
needed signage, internet website notifications, and development and printing of parking maps.
All services must be rendered to persons parking in lots adjacent to the Center, whether or not
the person is a patron of WAC, and shall be performed in coordination with Fayetteville's
parking management division.
Page 1 of 3
4. To accomplish both the goals of Fayetteville and WAC, Fayetteville agrees to pay
WAC, and WAC agrees to accept, a payment for services pursuant to the "annual operational
expenses" indicated on Schedule 1, attached hereto and incorporated herein as if set out word for
word for the term of this Contract. WAC agrees to provide the services noted in paragraph 3
above.
5. As further consideration, for the initial term of this Contract only, Fayetteville
agrees to pay WAC an amount, as listed in Schedule 1, for "startup" costs, as well as for services
provided by WAC to Fayetteville through the end of 2010. Said "startup" costs and operational
expenses incurred on behalf of Fayetteville as of the date of the signing of this Contract are noted
on Schedule 2, attached hereto and incorporated herein as if set out word for word. It is
specifically understood and agreed that all noted "startup" costs shall be paid once in relation to
the initial term of this Contract. Subsequent renewal terms shall only require Fayetteville to pay
WAC "annual operational expenses" as noted in Schedule 1 in exchange for services to be
provided herein.
6. The initial term of this Contract shall be one (1) year from its effective date. This
Contract shall automatically renew for successive one (1) year periods unless, within ninety (90)
days prior to expiration of the initial term or any successive term, written notice is provided by
the terminating party to the other party of its intention not to renew the Contract. For purposes
of notice required by this paragraph, notice shall be sent by the parties via first-class U.S. Mail to
the persons at the addresses indicated below:
To Fayetteville:
City of Fayetteville
Mayor's Office
113 W. Mountain St.
Fayetteville, AR 72701
To WAC: The Walton Arts Center Council, Inc.
Address:
7. WAC shall invoice Fayetteville quarterly for services provided herein. Payments
by Fayetteville shall be made within thirty (30) days of the receipt of the WAC invoice.
Page 2 of 3
8. Changes, modifications or amendments to the scope, price or fees dictated by this
Contract shall not be allowed without a prior formal Contract amendment approved by the
Mayor and the City Council of Fayetteville in advance of the change.
9. Freedom of Information Act: City contracts and documents prepared while
performing city contractual work are subject to the Arkansas Freedom of Information Act
(FOIA). If an FOIA request is presented to Fayetteville, WAC will do everything possible to
provide the documents in a prompt and timely manner as prescribed in the FOIA (Ark. Code
Ann. § 25-19-101, et seq). Only legally authorized photocopying costs pursuant to the FOIA
may be assessed for this compliance.
10. Jurisdiction: Legal jurisdiction and venue for the resolution of any legal or
equitable disputes arising under this Contract lies exclusively in the Circuit Court of Washington
County, Arkansas.
11. Effective date: The effective date shall be the date of the signature of the last
party to sign their acceptance on this Contract.
CITY OF FAYETTEVILLE, ARKANSAS THE WALTON ARTS CENTER
COUNCIL, INC.
By.
Lionel Jordan, May
Date: Aa/a 7/j0
Sondra E. Smith, City Clerk
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Page 3 of 3
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Walton Arts Center
Paid Parking Program Expenses
Startup
Website\Tessitura integration
Website back -end modification and testing
Communication
Signage, website, map development and printing
Customer service training
Transition period (4 months) staff time
$ 1,400
$ 3,200
$ 600
$ 7,200
TOTAL STARTUP $ 12,400
Annual operational expenses
Customer Service
Reserved event parking staff
Lot attendants
Major events
All other events
Box office problem resolution, validation
Credit card fees
Based on $18,500
Overhead
Communications, box office, technology, finance,
administration
$ 7,400
$ 8,400
$ 6,900
$ 1,456
$ 555
$ 9,360
ANNUAL OPERATING EXPENSE $ 34,071
Lost revenue
Customer service validations owed to City
TOTAL OPERATING EXPENSE
5cMEbtILE Z
$ 5,550
139,621
Walton Arts Center Parking Expenses
August through December (estimated) 2010
a,.
Signage & Maps
Sir Speedy
DOXA
Brooks Graphics
Brooks Graphics
Crew Equipment
Radio Shack
Sa-So
Uncle Sam's
signs for lot
parking map
signs for lot
signs for lot
$ 150.20
$ 318.75
$ 174.80
$ 87.40
adaptor to power validator $ 65.53
safety vests $ 99.49
rain gear .$ 39.17
Reservation system implementation
Commercial Media website modification $ 170.00
Commercial Media website modification $ 95.00
Personnel
Aug - Nov parking crew payroll $ 20,152.53
Dec estimated $ 4,615.82
TOTAL WAC Expenses $ 25,968.69
KIT WILLIAMS, CITY ATTORNEY
DAVID WHITAKER, ASST. CITY ATTORNEY
TO: Dan Coody, Mayor
City Council Members
FROM: Kit Williams, City Attorney
DA'I E: February 4, 2002
A I AI
LEGAL DEPARTMENT
RE: McGoodwin, Williams and Yates/ request for $578,918.24
(Legal considerations when the City receives benefits from a
contractor, even if the contract was breached or invalid)
Please read Greg Boettcher's analysis of the facts on this item as
well as the material from McGoodwin, Williams, and Yates, Inc.
(hereinafter "McGoodwin") and its subcontractors. This is a very
complex and important decision which must be based upon facts.
Please note that the contract entered into between the City and
McGoodwin expressly specified in Section XIII Changes :
"Changes, modifications or amendments in scope,
price or fees to this contract shall not be allowed
without a formal contract amendment approved by
the Mayor and the City Council in advance of the
change in scope, costs, or fees." (emphasis added).
Resolution 39-00, passed and approved by the City Council on
March 21, 2000, and signed by Mayor Hanna and attested to by City
Clerk Heather Woodruff stated:
"Section 1. That the City Council hereby approves
an agreement with McGoodwin, Williams and
Yates, in the amount of $955,302, for engineering
services in connection with the new west side
wastewater treatment plan. A copy of the agreement
is attached hereto marked Exhibit 'A' and made a
part hereof."
Attachment 6 to the Contract with McGoodwin is entitled
"Engineering Cost Summary". The last line reads:
"Total Project Costs $955,302." (emphasis in original)
As some of you might remember, the Departmental
Correspondence from Don Bunn through Mayor Hanna to the City
Council dated February 29, 2000 to present the contract with
McGoodwin (and request the resolution to authorize execution of the
contract) ended:
"Therefore, it is the recommendation of the Staff
that the Council approve the proposed contract
with McGoodwin, Williams and Yates in the
not -to -exceed amount of $955,302.00."
This memo showed the breakdown of the proposed "not -to -
exceed contract price (of) $955,302.00" as:
1. Salary Expense
2. Overhead Costs (155%)
3. Fixed Fee, 15 %
4. Expenses (includes subcontracts)
5. Total Cost (Not to Exceed)
$183,635.00
284,634.00
88,105.00
398,928.00
$955,302.00
I believe everyone is in agreement that McGoodwin exceeded
both the scope of the work and the "not -to -exceed contract price (of)
$955,302.00" by $578,918.24 "without formal contract amendment
approved by the Mayor and the City Council in advance of the change
in scope, costs or fees." So what can the City Council do now in
response to McGoodwin's after -the -fact request to be paid this
additional $578,918.24?
The City Council can legally pay this entire amount just as you
chose to pay the other three engineering firms in the Wastewater
Improvement Project when they exceeded their "not -to -exceed"
contract prices (although by significantly lesser amounts). The City
Council would in effect be waiving its right to enforce Section XIII
Changes and concluding that the value of the work beyond the scope
of the contract and all charges beyond the not -to -exceed price were
reasonable, necessary, and a fair value for the benefits received by the
City.
Although it may be argued that McGoodwin relied upon the
Assistant Public Works Director's requests to exceed the scope of work
and price constraints, the contract clearly places all such authority
solely with the City Council. No City employee was authorized to
change the contracted terms, scope of work or monetary compensation.
It is fundamental law that a city is not bound by unauthorized acts of
its employees.
"We have specifically held that a sovereign is not
bound by the unauthorized acts of its employees."
City of Russellville v. Hodges, 330 Ark. 716, 957
S.W. 2d 690 (1997).
Even though it is clear the contract was breached (violated) by
McGoodwin when it exceeded the scope of work and amount of money
specified, the City did receive benefits from at least some of this
additional work and must pay for the value of the benefit received by
the City. Otherwise the City would be unjustly enriched by the work
of McGoodwin and/or its subcontractors.
"We find that the unjust enrichment principle
is firmly embedded in Arkansas law in the context
of work performed pursuant to illegal contracts
made by political subdivisions such as cities and
counties." City of Damascus v. Bivens, 291 Ark.
600, 726 S.W. 2d 677, 679 (1987).
The major issue confronting the City Council is determining the actual
value of the benefit conferred upon the City by McGoodwin when it exceeded
its scope of work.
"When the recovery is based on unjust enrichment, as
opposed to damages for loss occasioned by breach of
contract, the award is measured by the value of the
benefit conferred upon the party unjustly enriched."
City of Damascus, supra.
The Supreme Court has held that "(t)he contract price is some evidence of
the value of the benefit conferred." Id. This means the City Council can look to
the fee structure set up within the contract as some measure of the appropriate
cost of additional engineering work done by McGoodwin and its subcontractors.
It is clear that when deciding the proper value of a benefit conferred upon a
city under an unjust enrichment theory, the benefit is "based upon the value to
the city and not the value to the (contractors)" McCuiston v. City of Siloam
Springs, 594 S.W. 2d 233, 235 (1980). (emphasis added).
Sometimes the Courts equate the theory of unjust enrichment as a contract
not agreed to by the parties, but created by the law.
4
"His claim must be grounded solely on a contract
created by the law in consideration of services
shown to have benefited the city, and for which it
ought, therefore in justice, to pay." Spearman v.
City of Texarkana, 58 Ark. 348, 24 S.W. 883 (1894).
"The contractor, Claughton, is not necessarily entitled to
receive the full contract price of $2,204 but is only entitled
to receive the fair value of his work and the labor and
materials furnished." Lykes v. City of Texarkana, 265
S.W. 2d 539, 541 (1954). (emphasis added).
The Bottom Line
Although McGoodwin breached the contract by not getting advance
permission from the City Council to exceed the scope of work and dollar
limitation of the contract, the City remains liable to at least pay the fair value of
the benefits conferred upon the City.
The City Council can even pay the full amount requested if you are
satisfied that the City has received benefits equal to the amount requested.
5
Terry Gulley
Submitted By
City of Fayetteville Staff Review Form
City Council Agenda Items
and
Contracts, Leases or Agreements
12/21/2010
City Council Meeting Date
Agenda Items Only
Parking Management
Division
Action Required:
Transportation Services
Department
A resolution to approve an agreement with Walton Arts Center for services provided for the Parking Program in the
Entertainment District.
25,969.00
Cost of this request
2130.9131.5719.00
Account Number
Project Number
Budgeted Item
X
144,500.00
Category / Project Budget
Transfers to Outside Agencies
Program Category / Project Name
Entertainment District Parking
Funds Used to Date Program / Project Category Name
144,500.00
Off Street Parking
Remaining Balance Fund Name
Budget Adjustment Attached
Departmen _i irec or
ttorney
Finance and Internal Services Director
Date
/2-7(I°
Date
Date
0-7-w
Date
Previous Ordinance or Resolution #
Original Contract Date:
Original Contract Number:
Received in City 1 2-03-1 0 P03
Clerk's Office
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Revised January 15, 2009
THE CITY OF FAYETTEVILLE, ARKANSAS
DEPARTMENT CORRESPONDENCE
CITY COUNCIL AGENDA MEMO
To: Mayor Jordan and City Council
Thru: Don Marr, Chief of Staff ��
From: Terry Gulley, Transportation Services Department Director 1 P
Date: December 3, 2010
Subject: A resolution to approve an agreement with Walton Arts Center for services provided for the Parking
Program in the Entertainment District.
PROPOSAL:
Staff recommends a resolution to approve an agreement with Walton Arts Center for services provided for the
Parking Program in the Entertainment District.
RECOMMENDATION:
In June an ordinance enacted a pay parking program in the Entertainment District Parking Zone. Prior to the
implementation of the new paid parking program, the Walton Arts Center submitted projected costs for services
associated with startup and operational expenses. Walton Arts Center provides customer service in adjacent
gated lots for patron entries and exits, educational assistance of the paid parking program, pay in advance
features, reserved event parking staff, and communication strategies such as signage, website, and map
development and printing.
BUDGET IMPACT:
Sufficient funds are budgeted in the Entertainment District Parking Program budget.
RESOLUTION NO.
A RESOLUTION APPROVING A CONTRACT WITH THE WALTON ARTS
CENTER COUNCIL, INC. FOR THE PROVISION OF PARKING -RELATED
SERVICES IN THE DICKSON STREET ENTERTAINMENT DISTRICT
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
FAYETTEVILLE, ARKANSAS:
Section 1. That the City Council of the City of Fayetteville, Arkansas hereby approves a
contract with The Walton Arts Center Council, Inc. for the provision of parking -related services
in the Dickson Street Entertainment District. A copy of the contract is attached to this
Resolution as Exhibit "A."
PASSED and APPROVED this 21st day of December, 2010.
APPROVED: ATTEST:
By: By:
LIONELD JORDAN, Mayor SONDRA E. SMITH, City Clerk/Treasurer