September 18, 2014 MINUTES
WEST MEMPHIS CITY COUNCIL
SEPTEMBER 18, 2014
A regular meeting of the West Memphis City Council was held on Thursday, September 18, 2014 at 1:30 p.m. in
the City Council Chambers at City Hall, 205 S. Redding, West Memphis, Arkansas.
Invocation was given by Reverend Michele Morris, Associate Pastor of the First United Methodist Church. Mayor
Johnson called the meeting to order at 1:35p.m. Phillip Para, City Clerk, called the roll. Those present were:
Mayor William H. Johnson, City Attorney David Peeples, City Treasurer Frank Martin and Councilors, Lorraine
Robinson, Tracy Catt, James Pulliaum, Herman Coleman, Ramona Taylor, Willis Mondy, James Holt, and
Melanie Hutchinson. Absent: Councilors: Marco McClendon and Taz Tyrone. Quorum being present, Mayor
Johnson proceeded with the meeting.
MINUTES
Councilor Catt moved, seconded by Councilor Pulliaum to dispense with the reading of the minutes of
September 4th, 2014 City Council meeting and approve them as submitted. Upon voice vote, the voting was
unanimous to approve.
NEW BUSINESS
Councilor Pulliaum made a motion, seconded by Councilor Taylor to suspend the rules and read R-1 by title only.
Upon voice vote, the voting was unanimous.
R-1 A RESOLUTION APPROVING THE TRANSFER OF THE DELTA REGIONAL AUTHORITY GRANT
NUMBER AR-10170(DELTA CUISINE KITCHEN INCUBATOR PROJECT)TO THE MID-SOUTH COMMUNITY
COLLEGE
City Attorney Peeples read the Resolution. Councilor Pulliaum made a motion, seconded by Councilor Taylor to
approve the Resolution. Upon voice vote, voting was unanimous to approve. The Resolution was adopted and
assigned number 2061.
PERMISSION REQUEST
Councilor Catt made a motion, seconded by Councilor Taylor to approve Mayor Johnson to sign an agreement for
Deed of Easements, Covenants& Restrictions with the Cal Ripken Sr. Foundation, Inc. Upon voice vote, voting
was unanimous to approve.
Frank Martin, City Treasurer requested permission to pay Fisher Arnold$58,474.28 and Water&Wastewater
Services, LL($69,530.00. Councilor Pulliaum moved, seconded by Councilor Taylor to approve the two
payments. Upon voice vote, the voting was unanimous to approve.
COMMITTEE REPORTS
Budget Committee—Councilor Catt reported the State Auditors asked that the City Council address an item of
appropriations of funds by amending the 2013 Budget. Councilor Catt made a motion, seconded by Councilor
Taylor to add R-2 to the agenda and read by title only. Upon voice vote, the voting was unanimous. City Attorney
Peeples read the Resolution. Councilor Catt made a motion, seconded by Councilor Taylor to approve. Upon
voice vote, the voting was unanimous. The Resolution was adopted and assigned No. 2062.
Fire Commission—Councilor Catt reported there were no dismissals, suspensions, promotions, hiring's, or citizen
complaints. There are 37 applicants to take the WMFD physical agility test scheduled for September 20, 2014.
EMS Collections as of September 8, 2014 are$233,245.88. The new billing clerk has been hired and started
September 15, 2014.
Airport Commission—Councilor Robinson reported the Commission ratified their decision to award the contract
for the Rehabilitation of the North Apron (AIP#25)to the lowest bidder, APAC-TN. Airport Engineer, Stacy Morris
reported that FAA approved the Airport's Construction Management Program and authorized issuance of a Notice
to Proceed to the contractor. Airport Manager, Lynda Avery updated the Commission on the progress of 6
maintenance/repair projects to various airport facilities. Commissioner Tandy Anthony presented the Airport
Commission with an engraved glass plaque which will be presented to the retiring Director of the State
Department of Aeronautics.
Insurance Committee—Councilor Coleman reported there will not be an insurance rate increased passed on to
City Employees.
ANNOUNCEMENTS
Council Catt invited the City Council to attend a luncheon honoring Mayor Johnson and Chief Gately at Fire
Station No.1, next Thursday from 11:30 to 1:00 for achieving ISO#1. He stated there is only two ISO's in the
State of Arkansas and 56 in the United States.
The West Memphis Chamber of Commerce Expo is today at the Holiday Plaza Mall with Business After Hours
following from 5 to 7.
Having no further business to come before the City Council, Councilor Pulliaum moved, second by Councilor
Taylor to adjourn. Upon voice vote, the voting was unanimous. The meeting adjourned at
1:50 p.m.
PASSED and APPROVED this_2nd_day of October, 2014.
WILLIAM H. JOHNS N, MAYOR
ATTEST:
H , CITY CLERK
Minutes prepared by Cindy Greenwood, Sr. Deputy City Clerk
DEED OF EASEMENTS,COVENANTS AND RESTRICTIONS
THIS DEED OF EASEMENTS, COVENANTS AND RESTRICTIONS (this
"Agreement") is made as of the day of September, 2014, by and between the CITY OF WEST
MEMPHIS, ARKANSAS, a municipal corporation located in Crittenden County, Arkansas,
organized and existing under the laws of the State of Arkansas, specifically, Arkansas Code Annotated
Section 14-38-101, et. seq. (the"City"), and CAL RIPKEN, SR. FOUNDATION,INC., a Maryland
nonprofit corporation (the "Foundation"). City and Foundation are sometimes referred to individually
as"Party"and collectively as"Parties."
WITNESSETH
WHEREAS, City is the owner of a fee simple interest in certain property known as Tilden
Rodgers Sports Complex located at 825 College Boulevard, in West Memphis, Arkansas, (the
"Property"), as more particularly described in Exhibit A hereto; and
WHEREAS, pursuant and subject to the terms and conditions of this Agreement, the City and
the Foundation desire for the Foundation to construct a special needs youth development baseball field
on the Property(the"Project"), and for the City to operate and manage the Project.
NOW THEREFORE, in consideration of the mutual covenants and agreements of the Parties,
and for other good and valuable consideration, the receipt and sufficiency of which are mutually
acknowledged,it is agreed as follows:
1. Term of Agreement. The initial term hereof(the "Initial Term") shall commence on
the date hereof(the "Commencement Date"), and shall end, unless earlier terminated pursuant to the
terms hereof, at midnight on the twentieth (20th) anniversary of the Completion Date (defined below)
(the "Expiration Date"). Subsequent to the Expiration Date, for so long as the Foundation (or an
affiliate of the Foundation) is conducting programs consistent with the mission of helping special
needs individuals through baseball-themed programs (the "Mission"), this Agreement shall
automatically renew on a year to year basis, effective as of the Expiration Date, and annually
thereafter. The foregoing notwithstanding, the Foundation or the City may terminate this Agreement
after the Expiration Date by written notice to the other party no later than six (6)months in advance of
the next succeeding renewal date.
2. Construction of Improvements.
(a) Adequate Funding. The Foundation's obligation to prepare the Plans and
construct the Improvements (each as hereinafter defined) is subject to the condition precedent that City
shall have obtained the portion it has agreed to fund for the construction of the Project, and the
Foundation shall have obtained the portion it has agreed to fund for the construction of the Project
(collectively, the "Funding") in such amount as the Foundation shall deem adequate to construct the
Project, based on the Foundation's construction cost estimates for the Improvements and all "soft
costs" related thereto, copies of which shall be provided to City. If the City and the Foundation have
not obtained the Funding by September 1, 2014, the Foundation may, at its sole option, terminate this
Agreement by giving written notice to the City, in which event the City and the Foundation shall have
no further rights or obligations under this Agreement except as set forth herein. The Foundation shall
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not commence the construction of the Improvements prior to the satisfaction of this condition
precedent, unless otherwise agreed to by the Foundation in writing.
(b) Plans. The City has previously approved the conceptual design plan (the
"Concept Plan") for the Project provided by the Foundation, a copy of which is attached hereto as
Exhibit B. Upon the City and the Foundation having obtained the Funding (or earlier in the
Foundation's sole discretion), the Foundation shall have prepared the architectural plans, construction
documents and drawings and such other documents for the Improvements (the "Plans"), substantially
consistent with the Concept Plan, and provide copies thereof to the City for its input. The City shall
have the right to review the Plans and to provide the Foundation with comments and suggested
changes thereto, however the City shall have no right to require the Foundation to make any changes to
the Plans.
(c) Permits. The City shall process, and as applicable, approve and issue all
licenses, permits and other approvals for the construction of the Improvements on the Property
(collectively, the "Permits") in accordance with the City's laws, regulations and ordinances. The
Foundation's obligation to construct the Improvements is subject to the condition precedent that the
City shall have issued the Permits. Additionally, the City shall, at its sole cost and expense, execute
and deliver any and all public utility easements and other such instruments that may be required to
construct the Improvements.
(d) Construction. Provided that the City and the Foundation obtain the Funding,
and the City issues the permits, the Foundation shall cause to be constructed upon the Property the site
improvements(including, but not limited to, grading, installation of storm water management facilities,
utilities, and other infrastructure work), buildings, structures, and other improvements comprising the
Project as shown in the Plans (collectively, the "Improvements"). Such construction shall commence
within ninety (90) calendar days after the later to occur of the date that the City has obtained all
Permits and the date that the City and the Foundation have obtained the Funding, and shall achieve
Substantial Completion (defined below) within one hundred and eighty (180) calendar days of the
commencement of construction, subject to force majeure. For purposes of this Agreement, "force
majeure" is defined as labor or materials shortages, work stoppages, strikes, and acts of God. As used
herein, the term "Substantial Completion" shall mean the stage in the progress of the Improvements
when the Improvements or designated portion thereof are sufficiently complete in accordance with the
Plans such that they may be utilized for their intended use. Should there exist any unknown subsurface
conditions, contamination, casualties or natural disasters that are not otherwise covered by the
Foundation's or its contractor's insurance proceeds ("Unexpected Events") which causes any delay of
the construction, the date for Substantial Completion shall be extended under the provisions of Force
Majeure for such period of time until the City has corrected the hindering condition.
(e) Construction Easement. The City does hereby grant and convey to the
Foundation, its agents, contractors, employees, successors and assigns, an easement and right of
ingress and egress to access the Property during the initial term of this Agreement or any renewal
thereof for the performance of the Foundation's obligations described in Section 2 above, and for the
performance of the Foundation's further obligations under this Agreement.
(f) Other Approvals. The City shall, at its sole cost and expense, and, in the City's
name, request and obtain any and all other approvals, consents, and other conditions precedent to the
development of the Project as contemplated by this Agreement, whether pursuant to any instrument of
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record or otherwise binding upon the Property, if any. The Foundation, as a part of its preparation of
the Plans, shall, at the Foundation's expense, prepare and provide the City with all documents and
drawings required in connection with obtaining such approvals and consents.
(g) Insurance. Prior to commencing any construction on the Property the
Foundation shall (a)deliver to City a statement of the names of all contractors and subcontractors and
the estimated cost of all labor and material to be furnished by them; (b) cause each contractor to carry
(i)workers' compensation insurance in statutory amounts covering all the contractor's and
subcontractor's employees, and (ii) Comprehensive General Liability Insurance coverage (bodily
injury and property damage) including automobile, with limits of$1,000,000 per each occurrence and,
if obtainable, either insuring both Parties as well as the contractors, or containing an appropriate clause
whereby the contractor agrees to indemnify and keep harmless the Parties from any and all liability,
damage or expense by reason of injury or loss to person or property occurring by reason of work
performed by the contractor, his employees, agents, subcontractors and others invited on the Property
by him; (c) cause the general contractor to carry Builder's Risk Insurance (including fire, extended
coverage, vandalism and malicious mischief); (d)deliver to City certificates of insurance evidencing
the above insurance (including the above-mentioned contractual, hold harmless agreement) which
certificates shall indicate limits and contain a waiver of subrogation clause and a clause giving City
thirty (30) days advance notice prior to the termination or modification of said insurance; and
(e) furnish at least fifteen (15) days before any such insurance expires or is canceled, appropriate
evidence of continuation of coverage.
(h) Removal of Liens. In the event any mechanic's or materialmen's lien shall at
any time be filed against the Property allegedly by reason of work, labor, services or materials
performed or furnished to the Foundation for work or materials performed or used with respect to the
Project,the Foundation shall within ten(10) business days cause the same to be discharged or bonded.
3. Representations and Warranties.
(a) By the City. The City hereby represents and warrants that:
(i) the City has the full right and legal authority to enter into and perform its
obligations under this Agreement;
(ii) the City owns good and marketable fee simple title to the Property, free
and clear of all contracts, agreements, leases, tenancies, occupancies, covenants, restrictions, liens,
violations,encumbrances or defects in title of any kind or nature whatsoever;
(iii) no easements are required for vehicular and pedestrian access to and
from the Property and the Property has a means of ingress and egress directly to and from each public
roadway abutting the Property;
(iv) there are no violations of any zoning or building laws which affect the
Property or the use thereof for the Project;
(v) neither the City nor any other person or entity, has caused or permitted
the generation, treatment, storage, disposal or release of Hazardous Materials in, on or under the
Property, and the City knows of no violation or alleged violation of any Environmental Laws (defined
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below), at, to, or from the Property. For purposes of this Agreement, the term "Hazardous Materials"
shall mean any oil, flammable explosives, asbestos, urea formaldehyde, radioactive materials or waste,
or other hazardous, toxic, contaminated or polluting materials, substances or wastes, including, without
limitation, any "hazardous substances," "hazardous wastes," "hazardous materials" or "toxic
substances" as defined under federal, state or local laws, ordinances and regulations relating to
environmental protection (collectively, "Environmental Laws"). The City shall, within five (5)
business days after full execution of this Agreement provide the Foundation with a copy of any and all
environmental reports, inspections, investigations, studies, audits, tests, reviews, governmental
communications or other analyses in the City's possession or control relating to the Property or any
portion thereof;
(vi) there are no underground storage tanks, active or abandoned, in, on or
under the Property;
(vii) there is no pending, nor, to the best of the City's knowledge, threatened,
litigation or other legal or administrative proceeding or investigation affecting or related to the
Property; and
(viii) the City has not received any notice and has no knowledge of the
commencement of eminent domain proceedings affecting the Property.
(b) By the Foundation. The Foundation hereby represents and warrants that:
(i) the Foundation has the full right and legal authority to enter into and
perform its obligations under this Agreement;
(ii) should the Foundation use the Project, such use shall be consistent with
the Foundation's Mission; and
(iii) once commenced the Project will be completed in a good and
workmanlike manner in accordance with the Plans.
4. Management and Operation Duties. Upon Substantial Completion of the
Improvements, or such earlier date as is provided below, the City shall, at its sole cost and expense, be
fully and solely responsible for the management, maintenance, and operation of the Project, and shall
carry out the duties as set forth below:
(a) Day to day management and operation of the Project, including, but not limited
to, the scheduling and management of events at the Project, in compliance with all applicable laws,
ordinances, rules and regulations, and this Agreement, and consistent with the mission of serving
special needs individuals, and for no other use or purpose without the prior written consent of the
Foundation.
(b) At all times keep and maintain the Project, and all features, aspects and
components thereof, clean and in good order and repair and operating condition, including, without
limitation:
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(i) routine cleaning and maintenance of the Improvements, provision of
security to the Project, the provision of utilities to the Project, and all other aspects of the day to day
management and operation of the Project and the programs conducted thereon; and
(ii) long term maintenance of the Improvements, including, but not limited
to, repairs,replacements and capital improvements. The Foundation shall have no maintenance, repair
or replacement responsibilities under this Agreement with respect to the Project or any aspect thereof,
except resulting from damages caused by the sole gross negligence or willful misconduct of the
Foundation or the Foundation's agents, contractors and employees.
(c) Maintaining insurance coverage with respect to the Project and Improvements,
issued by a program of self-insurance administered through the Arkansas Municipal League or one or
more insurance companies qualified or authorized by the State of Arkansas to issue such coverage and
an A.M. Best Company fmancial and performance rating of A-IX or better, including:
(i) a policy of property and casualty insurance insuring against loss or
damage by fire or other hazards, under a policy or policies covering such risks as are presently
included in "special form" (also known as "all risk") coverage, but in any event including fire,
lightning, windstorm, hail, explosion, riot, riot attending a strike, civil commotion, damage from
aircraft, smoke, vandalism, and malicious mischief, in an amount not less than the full replacement
value of the Improvements. No policy of insurance shall be written such that the proceeds thereof will
produce less than the minimum coverage required by this Section by reason of co-insurance provisions
or otherwise; and
(ii) The City shall not provide comprehensive general liability insurance
with regard to the Project, or any activities thereon. Subject to the provisions of Paragraph 20 of this
agreement, the City shall reimburse the Foundation for any legal costs incurred by the foundation in
defense of an action brought against the Foundation in connection with this Project if it is determined
that the Foundation is not liable.
With respect to all such policies or coverage, City shall obtain from the provider of such policies or
coverage a policy clause to the effect that the provider shall not cancel or change the terms of such
insurance policy, policies or coverage without first giving the Foundation at least thirty (30) days prior
written notice thereof. A certificate of insurance made by the issuer shall be delivered to the
Foundation within fifteen(15)days after the date of this Agreement.
(d) Development of appropriate written agreements governing the use of the
Improvements by parties other than the City and the Foundation, and the supervision of such use by
third parties(which use shall in any event be subject to Section 5,below).
(e) Promulgation of reasonable rules and regulations governing the use of the
Improvements by parties other than the City and the Foundation (which use shall in any event be
subject to Section 5,below).
(f) Preparation of an annual operating budget for the operation of the Project
consistent with the permitted uses of the Project. Budgets will be prepared on a fiscal year basis to
correspond with the City's fiscal year.
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(g) Collection of operating revenue generated by the Project and payment of
associated expenses.
(h) Consultation with the Foundation on a regular basis with regard to discretionary
decisions related to the operation and management of the Project. The Parties shall negotiate in good
faith to resolve any differences of opinion as to such decisions.
(i) Maintain accurate and complete books and records with regard to its
management of the Project, and provide the Foundation with access to such books and records upon
reasonable prior notice.
5. Use of the Improvements. The Parties agree that the Improvements shall be used
exclusively for the following uses, events and programs, unless otherwise agreed to in writing by the
Parties from time to time:
(a) Youth activities consistent with both the Foundation's Mission, and the City's
charitable mission.
(b) The Foundation's "Healthy Choices, Healthy Children", "Badges for Baseball"
and similar programs sponsored and conducted by the Foundation from time to time and related
activities, including, but not limited to, summer camps.
(c) Baseball and softball programs, and any other programs to be engaged in by
special needs and at risk children conducted and/or sponsored by the City.
(d) To the extent that scheduling permits, baseball and softball games and
tournaments conducted and/or sponsored by private leagues; provided, however, the same shall not
take precedence over, or otherwise conflict with, the scheduling of events and programs consistent
with subsections 5(a)-(c)above.
(e) The Foundation shall have the right to use the Project for a minimum of ten (10)
days and a maximum of twenty (20) days each calendar year for activities consistent with its Mission.
The Foundation and the City shall coordinate their schedules in order to avoid conflicts in dates of
usage of the Project.
6. Reports of Events. Annually during the term of this Agreement, prior to March 1 of
each calendar year, the City shall furnish to the Foundation a report which contains the number of
special needs and at risk children served during the previous calendar year with a summary of the
programs anticipated to be conducted by the City in the next calendar year.
7. Indemnification. To the fullest extent permitted by law, the Foundation and the
City (as applicable, the "Indemnitor") shall each indemnify and hold harmless the other (the
"Indemnitee") and its agents, contractors, employees, successors and assigns from and against any and
all liabilities, obligations, demands, causes of action, losses, expenses and damages, arising out of or
based upon (i) the Indemnitor's performance of (or failure to perform) its duties hereunder, (ii) the
conduct by the Indemnitor at the Project of its programs as specified herein, and (iii) the violation of
any laws or negligence or willful misconduct by the Indemnitor or its affiliates, agents, contractors or
employees. The provisions of this Section shall survive expiration or any termination of this
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Agreement. The Parties acknowledge that the City of West Memphis is entitled to certain immunities
provided by A.C.A. 21-9-301 and that nothing contained herein shall be construed as a waiver of any
such statutory immunities.
8. Condemnation. If, as a result of eminent domain proceedings,there should be a taking
of all or any material portion of the Property or the right of access to the Property, then this
Agreement, at the option of either party, shall terminate upon the giving of notice to the other. If
neither party so terminates this Agreement, then the City shall restore as far as is practicable the
Project to a condition permitting a resumption of its intended use. The City will advise the Foundation
immediately upon receipt of notice of the commencement of proceedings by any authority having
eminent domain powers to acquire any part of the area in the Property. In the event of a taking, or a
conveyance in lieu of a taking, resulting in the termination of this Agreement, the City and the
Foundation will cooperate in applying for and prosecuting a claim for that taking and agree that the
aggregate net award after deducting expenses and costs, including reasonable attorneys' fees, incurred
in connection therewith payable to both the City and the Foundation shall be paid to the Parties (or if
required, to any mortgagee) and distributed as follows: (i) the Foundation shall receive so much of the
net award as shall compensate it for the undepreciated value of the Improvements; and (ii) the City
shall receive the balance thereof.
9. Default.
(a) The failure of either Party to perform its duties hereunder, which default is not
cured within thirty(30) days of written notice thereof, shall constitute an"Event of Default"hereunder
and a breach of this Agreement by the defaulting Party; provided,however, that if the default is of such
a nature that it cannot be cured within such 30-day period, there shall be no Event of Default if a cure
is commenced within such 30-day period and thereafter is diligently pursued to completion.
(b) Any delay in performance hereunder by either Party due to force majeure shall
be excused and shall not be considered grounds to declare a default hereunder. Cure periods hereunder
shall extend in proportion to such delays.
10. Remedies upon Default. Upon an Event of Default by the Foundation hereunder, the
City's sole remedy shall be to terminate this Agreement by written notice to the Foundation. Upon an
Event of Default by the City hereunder, which default is of such a nature so as to legally or practically
deprive the Foundation, of the use of the Improvements for the conduct of its programs as
contemplated by this Agreement, the Foundation may terminate this Agreement by written notice to
the City, in which case the City shall be liable for liquidated damages equal to the
unamortized/undepreciated construction costs of the Improvements, based upon a twenty (20) year
amortization of such costs, computed as of the date of termination of the Agreement under this Section.
The Parties agree that based upon the contributions of the Foundation to the Project, the aforesaid sum
constitutes a reasonable estimate of the Foundation's damages in the event of the City's default
hereunder and is not a penalty. In lieu of terminating this Agreement, the Foundation shall have the
right (i) to institute an action as provided for in Section 11 hereof to specifically enforce the City's
obligations hereunder, and/or (ii) to cure the Event of Default (if susceptible to cure by a party other
than the City) and to charge the City for the out of pocket expenses incurred by the Foundation in
exercising such self help remedy. Neither Party shall be liable for any special, indirect, incidental or
consequential damages, of any nature, including, without limitation, loss of actual or anticipated profits
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or revenues, loss of use, cost of capital, incurred by a Party as the result of an Event of Default, other
than the damages specifically provided for herein.
11. Dispute Resolution. Any controversy, claim, cause of action or other dispute
("Dispute") relating to this Agreement or the interpretation thereof, which cannot be resolved by
negotiations amongst the Parties, shall be subject to the exclusive jurisdiction of the Circuit Court of
Arkansas in Crittenden County.
12. Assignment; Successors. Neither Party shall assign its duties and obligations
hereunder without the prior written consent of the other Party.
13. Effect of Agreement. This Agreement and the terms hereof shall encumber and run
with the title to the Property and shall be binding upon, and inure to the benefit of, the Parties
successors and permitted assigns.
14. Relationship of the Parties.
(a) Each Party shall be deemed to be an independent contractor in its performance
hereunder such that neither Party nor any employee or agent of either Party shall be deemed an agent
of the other Party,unless otherwise agreed in writing by the Parties.
(b) Except as specifically granted herein, no Party shall obtain any rights under this
Agreement to use, and shall not use,the names, marks, logos or other intellectual property of any other
Party in any manner without the express prior written approval of such other Party in each instance,
whether in connection with the subject matter of this Agreement or otherwise.
15. Notices. Any notice, request or demand or other communication required or permitted
to be given pursuant to this Agreement (each, a "Notice") shall be in writing and shall be deemed
sufficiently given if delivered by hand by messenger at the address of the intended recipient (set forth
below); sent by Federal Express or a comparable guaranteed overnight delivery service, prepaid, with
instructions to deliver on the next business day; or sent by United States first class mail, registered or
certified, postage prepaid, with return receipt requested; and addressed as follows (or to such other
address as may have been specified by the addressee party in a written notice previously given to the
sender party in accordance with this Section):
If to the City: _William H. Johnson
Mayor's Office
PO Box 1728
West Memphis,AR 72303
With a copy to:
Phillip Sorrell, City Engineer
PO Box 1728
West Memphis,AR 72303
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If to the Foundation: Cal Ripken, Sr. Foundation, Inc.
1427 Clarkview Road, Suite 100
Baltimore, Maryland 21209
Attn: President
With a copy to:
Lonnie M. Ritzer, Esq.
6 Dyson Dan Court
Reisterstown, MD 21136
Any Notice given in accordance with this Section shall be deemed to be given and delivered as of(i)
the date of actual delivery, if delivered by hand by messenger; (ii)the first(1st) business day following
deposit with Federal Express (or comparable guaranteed overnight delivery service), if sent by such
overnight delivery service, prepaid, with instructions to deliver on the next business day; or (iii) the
third (3rd) day following deposit with the United States Postal Service, if sent by United States first
class mail(registered or certified,postage prepaid, with return receipt requested).
16. No Waiver. The failure of a Party at any time to require performance hereunder by the
other Party of any provision hereof shall in no way affect the right of such Party to require such
performance at any time thereafter, nor shall any waiver by a Party of a breach hereof or default
hereunder by the other Party constitute a waiver of any succeeding breach of or default under the same
or any other provision hereof.
17. Entire Agreement. This Agreement and the exhibits attached hereto and forming a
part hereof set forth all the covenants, promises, agreements, conditions and understandings between
Parties related to this Agreement, and there are no covenants, promises, agreements, conditions or
understandings, either written or oral, between them other than as are set forth herein. No subsequent
alteration, amendment, change or addition to this Agreement shall be binding on the Parties unless
reduced to writing and signed by both Parties.
18. Headings and Section Numbers. The headings and section numbers herein are
inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or
intent of such sections hereof.
19. Partial Invalidity. If any term, covenant or condition of this Agreement or the
application thereof to any person or circumstances shall be held invalid or unenforceable, the
remainder of this Agreement or the application of such term, covenant or condition to persons or
circumstances other than those as to whom it is held invalid or unenforceable shall not be affected
thereby, and each term, covenant or condition hereof shall be valid and be enforceable to the fullest
extent permitted by law.
20. Termination Due to Unavailability of Funds. The payment of money by the City
under any provisions herein is contingent upon the availability of funds appropriated to pay the sums
pursuant to this contract. The City covenants that it shall include in the budget presented to the City
Council a request to fund the amount necessary to reimburse the Foundation under this Agreement. In
the event that such funds have been approved, the City covenants not to utilize those appropriated
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funds for other purposes until the Foundation has been reimbursed. In the event funds for this contract
become unavailable due to non-appropriation, the City and the Foundation shall each have the right to
terminate this contract without penalty with proper written notice to the other party. The Foundation
shall not commence construction until all City funding is appropriated and delivered by the City.
21. Miscellaneous.
(a) This Agreement may be signed in one or more counterparts, each of which will
constitute an original and all of which shall comprise the entire Agreement.
(b) This Agreement shall be governed by and construed in accordance with the laws
of the State of Arkansas.
(c) If any date for the occurrence of an event or act under this Agreement falls on a
Saturday or Sunday or legal holiday observed in the City of West Memphis, then the time for the
occurrence of such event or act shall be extended to the next succeeding business day.
SIGNATURES APPEAR ON THE FOLLOWING PAGE
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1N WITNESS WHEREOF, Parties have caused these presents to be executed and sealed as of
the day and year first above written.
THE CITY:
THE CITY OF WEST MEMPHIS, ARKANSAS, a
municipal corporation,by:
By: 4fis ,G
Date: x-1814 ,2014 0
STATE OF ARKANSAS
COUNTY OF CRITTENDEN, to-wit:
I hereby certify that on this 164" day of SE'p f' er , 2014, before me, the subscriber, a
Notary Public in and for the State and County aforesaid, personally appeared `Ujjf a }f tkiin6Ori
who acknowledged himself to be the Amor of THE CITY OF WEST MEMPHIS,
ARKANSAS, a municipal corporation, and he acknowledged the aforegoing instrument to be the act
of said City.
gTANpR`'%
Witness my hand and Notarial Seal. ;',�OP•••'Ne•+ai�•,.,:4,'�,
My Commission expires: tt k 15,202.1 • `•1..!P. i 0. ' 1;,,,'<.4 • q.
J
No . Pu. is % . B-
`.. .. .1
tteN
SIGNATURES CONTINUED ON THE FOLLOWING PAGE
11
THE FOUNDATION:
CAL RIPKEN,SR. FOUNDATION,INC.,
a Maryland nonprofit corporation
By:
Steve Salem
President
Date: , 2014
STATE OF MARYLAND
CITY/COUNTY OF BALTIMORE,to-wit:
I hereby certify that on this day of , 2014, before me, the subscriber, a
Notary Public in and for the State and County aforesaid, personally appeared Steve Salem, who
acknowledged himself to be the President of CAL RIPKEN, SR. FOUNDATION, INC., a Maryland
nonprofit corporation, and he acknowledged the aforegoing instrument to be the act of said
corporation.
Witness my hand and Notarial Seal.
My Commission expires:
Notary Public
12
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