"I read the memo from Wright and I disagree with his conclusion. The mere presentation of a Power Point slide show to inform the City Council about an issue would not qualify as a "writing" in my opinion. It appears that what the Council voted on were the terms to be proposed to the Museum.
Further, a contract has to be accepted. Council only voted to approve making the proposal- they cannot accept it on behalf of the museum simply by passing a resolution to propose it.
I think that the interpretation that because the PPT presentation was incorporated into the minutes and that by voting to approve the proposal, the City created a valid contract is really a stretch and would set a terrible precedent. The closest case I could find that is similar to this issue is an unpublished opinion National Railroad Museum & Hall of Fame v. City of Hamlet, No. COA08-356 (N.C. App. 2009).
"In the case sub judice, as evidence of the purported contract or ratification, plaintiff first offers the minutes from defendant's city council meeting in which the city council unanimously adopted a resolution of support. In pertinent part, the resolution provided "that for the purposes of meeting the local match requirements for funding awards, the City of Hamlet pledges its financial support for the depot project." Plaintiff also offers a funding application by defendant to the Department of Transportation as evidence of the required contract or ratification.
However, neither the resolution of support nor defendant's application for funding are sufficient to constitute either an express contract or a duly ratified agreement between plaintiff and defendant for plaintiff's use of the restored depot. These documents merely provide some evidence that (1) the parties contemplated that some indefinite action would be taken regarding relocating or rebuilding the depot; (2) defendant would provide some unspecified amount of funding, and (3) defendant would seek funds from the Department of Transportation. Notwithstanding the fact that the parties preliminarily had discussed plaintiff's occupying some portion of the relocated, restored depot, the terms never were defined."
Again, the City Council only voted to approve WHAT would be proposed but that is NOT an offer nor is it a contract. Under state law the contract ITSELF must be in writing. Think about a corporate board casting a vote on what to propose to another entity. That vote would not create any contractual obligation between that board and the other entity- it is simply a vote on a course of action.
If this is a "contract", it does not contain all of the material terms, and I disagree that they are "implied". Under that theory, then the City could enforce provisions in the contract against the museum that are nowhere in the writing and simply state "you should have known that these terms are implied in all municipal contracts". It occurs to me that there is a reason that these contracts are required to be in writing, and this would be one of them.
The memo reads as if the author is trying to make the most of a weak position. Not that there is anything wrong with that, but in my opinion it is a stretch considering the strong, plain language of the statute (A contract made in violation is void and unenforceable) and what the vote of the Council actually was.
Reasonable minds can differ, but that is what court and mediation is for."
Samuel Spagnola
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