With Communities Minister Ronald Bulkan having issued an order to suspend the Georgetown metered parking by-laws, city councillors will be called on to make a decision on the way forward for the project at an extraordinary statutory meeting on Monday.
Town Clerk Royston King told Sunday Stabroek yesterday that while City Hall has received a copy of Bulkan’s order and has given written notice to contractor Smart City Solutions (SCS), no decision can be made until the full council meets.
“It is the council who voted to have the by-laws implemented and it is the council which must respond to the order from the minister. In my capacity as Town Clerk, I will advise based on the legal advice I receive,” King said.
Bulkan on Friday ordered the suspension of the by-laws for the city’s controversial metered parking project for 90 days as government effectively took the decision out of the hands of the Mayor and City Council (M&CC) on bringing the project to a halt.
The announcement was made by acting Mayor Sherod Duncan, who in a post on his Facebook page Friday evening said that the order, made by Bulkan under the Municipal and District Councils Act, would be gazetted shortly. It was not included in the March 18 Gazette.
The order, titled the Georgetown Metered Parking (Suspension) Order 2017, states, “It is declared that the Mayor and Councillors of the City of Georgetown are in default of their functions with respect to the Georgetown Metered Parking By-Laws and I hereby direct the Mayor and Councillors to suspend the Georgetown Metered Parking By-Laws for three months commencing on the 17th March, 2017.”
Attempts by Sunday Stabroek to contact Minister Bulkan to enquire when the order would be gazetted as well as for details on how the councillors were “in default of their functions” proved futile.
On Tuesday, Cabinet decided to recommend that the project be suspended, pending the review of the contract and to accommodate alterations in the interests of the citizenry. No official notice was given to City Hall and King wrote to Bulkan on Thursday seeking clarification on the government’s decision. Among his concerns were that there were no provisions in the contract to facilitate a suspension and that it would come at a cost to the city which it could not afford to bear.
In his letter to Bulkan seeking clarity on Thursday, King had warned that the suspension of the city’s metered parking system would amount to a breach of contract, for which the municipality would have to compensate the contractor, Smart City Solutions.
The contract between City Hall and SCS states at Article 14 that if the city unilaterally terminates the agreement, it would be bound to “pay the concessionaire a lump sum payment equivalent to (i) the total direct and indirect, hard and soft cost cumulative gross investment of the concessionaire in the project; plus (ii) an amount equal to 15% of the direct and indirect hard and soft cost cumulative gross investment of the concessionaire in the project; multiplied by the number of years (or fraction) remaining under the term…(iii) the reasonable out of pocket and documented costs and expenses incurred by the concessionaire as a direct result of such termination.”
Minister of State Joseph Harmon, during a post-Cabinet briefing on Friday, however, argued that a provision exists within the metered parking contract that allows for its suspension if circumstances beyond the control of the parties arise. “Of course there are two options. One is suspension and of course the other revocation and if the intervention of a party under what might be termed force majeure exists then certainly the parties to the contract can understand what needs to be done and the contract spells out itself in clear terms what force majeure is and what needs to be done,” Harmon stated.
“Force majeure,” according to a definition from ‘Contract Standards,’ is “a contract provision that allows a party to suspend or terminate the performance of its obligations when certain circumstances beyond their control arise, making performance inadvisable, commercially impracticable, illegal, or impossible.”
Article 13 of the contract spells out that “force majeure” shall be considered to have occurred for any event beyond the reasonable control of SCS that delays, interrupts or limits the performance of SCS obligations. Listed among these acts are civil commotion, interference by civil authorities and a stop work order or injunction issued by a Governmental Authority.
Harmon added that Cabinet had concluded that the contract should be suspended for 90 days to address issues such as the cost of parking, the financial arrangements of the project, stakeholder involvement, provision for parking for police, army, fire service vehicles and ambulances and the jurisdiction in which marking meter installations were allowed.
While the Ministry of Public Infrastructure and Harmon have claimed that parking meters were installed on public roads, including Water Street and Camp Street, a press release from City Hall has stated that no such permission was granted and no installations had been done on roads not controlled by the council. It specifically mentioned that Water Street, outside of the area between the Water Street-Sluice (by PM&HD Workshop) to Sea Wall, is a council road while Camp Street is a council road except for the section from Lamaha Street to the Sea Wall Road.
Meanwhile, the Movement Against Parking Meters (MAPM) pressure group, in a press statement issued yesterday, claimed that in spite of Central Government’s suspension of the parking meter by-laws, SCS was still requiring citizens to pay for parking. MAPM claimed that “the usual clamping exercises and intimidation tactics could be seen in full force on Saturday.”
The release did not identify a location where these exercises were taking place and in several trips around the city Sunday Stabroek did not observe any clamping.
While SCS workers were on the streets with their clamps, they explained that they were not clamping only offering advice and assistance to those using the parking meters. This newspaper visited Robb Street, Regent Street, Camp Street and Water Street and observed no drivers who had paid to park and no vehicles which were clamped.
