Agenda 10/20/16 PLEASE TURN OFF ALL CELL PHONES
AGENDA
WEST MEMPHIS CITY COUNCIL
OCTOBER 20,2016
PRAYER:
CALL TO ORDER:
ROLL CALL:
BID OPENING: WEST MEMPHIS UTILITIES—(1)REHAB OF PUMP STATION 21
(2)WEST MEMPHIS UTILITIES SEWER MAIN REPAIR
(S. 7T11)& (SEWER MAIN BEHIND 231 E. BROADWAY)
MINUTES: APPROVE OR CORRECT MINUTES OF OCTOBER 6, 2016
OLD BUSINESS:
NEW BUSINESS: 0-1 AN ORDINANCE TO AMEND CHAPTER 3.04 OF THE WEST
MEMPHIS MUNICIPAL CODE REGARDING THE COLLECTION
AND ENFORCEMENT OF THE ADVERTISING AND
PROMOTION TAX AND FOR OTHER PURPOSES.
0-2 AN ORDINANCE WAIVING COMPETITIVE BIDDING FOR
CONSULTING SERVICES FOR THE CITY OF WEST MEMPHIS
AND WEST MEMPHIS ECONOMIC DEVELOPMENT TO BE
PROVIDED BY ADVANCE ECONOMIC DEVELOPMENT
SERVICES, AND FOR OTHER PURPOSES
0-3 AN ORDINANCE WAIVING COMPETITIVE BIDDING FOR
CONSULTING SERVICES FOR THE CITY OF WEST MEMPHIS
AND WEST MEMPHIS ECONOMIC DEVELOPMENT TO BE
PROVIDED BY LOGISTICS CONSULTANTS, LLC, AND FOR
OTHER PURPOSES
0-4 AN ORDINANCE WAIVING COMPETITIVE BIDDING FOR
CONSULTING SERVICES FOR THE CITY OF WEST MEMPHIS
AND WEST MEMPHIS ECONOMIC DEVELOPMENT TO BE
PROVIDED BY STEVEN McLAWS,AND FOR OTHER PURPOSES
PERMISSION
REQUEST:
COMMITTEE
REPORTS:
A DDl1TATTAAL'ATTQ.
MEMO
To: All City Council Members
Date: October 18, 2016
There will be a Joint Meeting with the
West Memphis City Council and the
West Memphis Utilities Commissioners
on Thursday, November 3, 2016.
MINUTES
WEST MEMPHIS CITY COUNCIL
OCTOBER 6, 2016
A regular meeting of the West Memphis City Council was held on Thursday, October 6, 2016 at 1:30 p.m.
in the City Council Chambers at City Hall, 205 S. Redding, West Memphis, Arkansas.
Invocation was given by Pastor David Dobbs of the First Presbyterian Church. Mayor Johnson called the
meeting to order at 1:30 p.m. Cindy Greenwood, Sr. Deputy City Clerk, called the roll. Those present
were: Mayor William H. Johnson, City Attorney David Peeples, City Treasurer Frank Martin and
Councilors: James Holt, Lorraine Robinson, Tracy Catt, James Pulliaum, Ramona Taylor, Helen Harris,
and Marco McClendon (arrived after roll call). Absent were Councilors Willis Mondy, Melanie
Hutchinson, and Taz Tyrone.
MINUTES
Councilor Catt moved, seconded by Councilor Pulliaum to dispense with the reading of the Minutes of
September 15, 2016 City Council Meeting and approve them as submitted. Upon voice vote, the voting
was unanimous.
NEW BUSINESS None
OLD BUSINESS None
PERMISSION REQUESTS
Councilor Pulliaum made a motion, seconded by Councilor Catt to approve Southland Charity Day Funds
from Councilor Harris in the amount of$300.00 to the Susan G Komen Race for the Cure Fund. Upon
voice vote, the voting was unanimous.
COMMITTEE REPORTS
Public Works Committee—Councilor Taylor reported the Public Works Committee approved the low bid
from APAC for the Street Overlay Program, the signage requested on Mound City Road was installed,
and Southland Dr. West bound concrete has been poured and the east bound should be poured this
week. Planning & Development will be looking into having its own cutting crew and other avenues for
administrating the grass program. Recycling for September was 14860 lbs. and there were two e-waste
pickups.
A&P Commission —Councilor Taylor reported the 2% tax collections for August was $135,409.80. This
was a .09% increase from collections in August of 2015. They approved a request from Paul Luker,
Director of Planning & Development for$50,000 for Project Engineer for the Delta Regional Trail Grant.
The Welcome sign for the east end of town is in the bidding process and they are replacing the east side
sidewalk at the Civic Center. The Delta Flatland Bicycle Ride is this Saturday and the grand opening of
the Big River Crossing will be held October 22, 2016.
ANNOUNCEMENTS
Councilor Catt reported there will be an "out with the old and in with the new" fire truck ceremony
tomorrow at 10:00 am at Station No. 1.
Having no further business to come before the City Council, Councilor McClendon moved, seconded by
Councilor Catt to adjourn. Upon voice vote, the voting was unanimous. The meeting adjourned at
1:35 p.m.
PASSED and APPROVED this 20th day of October, 2016.
William H. Johnson, Mayor
ORDINANCE NO.
AN ORDINANCE TO AMEND CHAPTER 3.04 OF THE WEST
MEMPHIS MUNICIPAL CODE REGARDING THE COLLECTION AND
ENFORCEMENT OF THE ADVERTISING AND PROMOTION TAX
AND FOR OTHER PURPOSES.
WHEREAS, A.C.A. § 26-75-603 provides methods for the collection and enforcement
of the advertising and promotion tax as authorized by A.C.A. § 26-75-602 and as levied by
Section 3.04.020 of the West Memphis Municipal Code; and
WHEREAS, A.C.A. § 26-75-603 has been amended to add provisions regarding the
collection and enforcement of this tax and which are not presently included in the West Memphis
Municipal Code; and
WHEREAS, the West Memphis Advertising and Promotion Commission has considered
and recommended that the West Memphis Municipal Code be amended to include the provisions
as authorized in A.C.A. § 26-75-603;
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE
CITY OF WEST MEMPHIS, ARKANSAS, THAT:
SECTION 1. Section 3.04.010 of the West Memphis Municipal Code is hereby
amended to add the following definitions:
A. A&P Tax means the gross receipts tax levied by Section 3.40.020 of the West
Memphis Municipal Code, as amended from time to time.
B. Assessment means a tax is assessed when it is recorded as the liability of a taxpayer
on the Commission's records. The assessment becomes a first assessment following the decision
of the Commission or a hearing officer, if the assessment is protested.
C. Business entity means a corporation, association, partnership,joint venture, limited
liability company, limited liability partnership, trust or other legal business entity.
D. Commission means the city Advertising and Promotion Commission of West
Memphis, Arkansas, and any agent or representative designated by the Commission to perform
any function hereunder.
E. City means the City of West Memphis, Arkansas.
F. Delinquency date means the A&P Tax is delinquent and subject to penalty on the first
day of the month following the month it was due.
G. Due date means the A&P Tax is due no later than the twentieth calendar day of the
month following the month the tax is imposed on gross receipts.
H. Person means any natural person, firm, corporation or other business entity.
I. Taxpayer means any person liable to remit the A&P Tax.
SECTION 2. Section 3.04.040 of the West Memphis Municipal Code is hereby
amended to read as follows:
A. The tax so levied shall be paid by the persons, firms and corporations liable therefor
and shall be collected by the Advertising and Promotion Commission of the city or by a
designated agent of the Commission in the same manner and at the same time as the tax levied
by the Arkansas Gross Receipts Act of 1941, A.C.A. § 26-52-101 et seq.
B. The person paying the tax shall report and remit it upon forms provided by the
Commission, and as directed by the Commission. The rules, regulations, forms of notice,
assessment procedures, and the enforcement and collection of the tax under the Arkansas Gross
Receipts Act of 1941, A.C.A. § 26-52-101 et seq., shall, so far as practicable, be applicable with
respect to the enforcement and collection of the tax levied pursuant to the authority of A.C.A. §
26-75-601 et seq. However,the administration and enforcement, and all actions, shall be by, and
in the name of, the Commission through the proper Commission officials or agents.
C. In the administration of this Chapter, the Commission or its designated
representatives, for the purpose of determining the accuracy of a return or fixing any liability
hereunder, may make an examination or investigation of the place of business, the tangible
personal property, equipment, and facilities, and the books, records, papers, vouchers, accounts,
and documents of any taxpayer or other person. Every taxpayer or other person and his agents
and employees shall exhibit to the Commission its designated representative these places of
business and items and facilitate any examination or investigation.
D. No taxpayer shall be subjected to unnecessary examinations or investigations, and
only one (1) inspection of a taxpayer's books of account may be made for each taxable year
unless the taxpayer requests otherwise or unless the Commission or the executive director, after
investigation, notifies the taxpayer in writing that an additional inspection is necessary.
E. (1) When conducting an investigation or an audit of any taxpayer, the Commission
or its designated representatives may, in its discretion, examine the records and files of any
person, except where privileged by law, any other business, institution, financial institution, the
records of any state agency, agency of the United States Government, or agency of any other
state where permitted by agreement or reciprocity.
(2) The Commission or its designated representative may compel production of these
records by summons. A summons may be served directly by the Commission or its designated
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representatives.
F. In the administration of this Chapter, the Commission, the executive director or his
designated representatives may:
(1) Administer oaths, conduct hearings, and compel by summons the attendance of
witnesses, testimony, and the production of any books, records, papers, or other data of any
person or taxpayer; or
(2) a. Examine under oath any person regarding the business of any taxpayer
concerning any matter incident to the administration of this Chapter.
b. The fees of witnesses required by the Commission, the executive director or his
designated representatives to attend any hearing shall be the same as those allowed to the
witnesses appearing before circuit courts of this state. The fees shall be paid in the manner
provided for the payment of other expenses incident to the administration hereof.
G. (1) The investigation may extend to any person that the Commission or its
designated representative determines has access to information which may be relevant to the
examination or investigation.
(2) When any summons requiring the production of records as described in subsection
of this section is served on a third-party record keeper, written notice of the summons shall
be mailed to the taxpayer that his records are being summoned, at least fourteen (14) days prior
to the date fixed in the summons as the day for the examination of the records.
(3) Notice to the taxpayer required by this section is sufficient if it is mailed by certified
mail to the last address on record with the Commission.
H. When the Commission or its designated representatives have the power to issue a
summons for its own investigative or auditing purposes,then the Commission shall honor any
reasonable request by any taxpayer to issue a summons on the taxpayer's behalf.
I. (1) The Commission or the taxpayer may apply to a court of competent jurisdiction in
Crittenden County, Arkansas, for an order compelling the production of the summoned records.
(2) Failure to comply with the order of the court for the production of records may be
punished by the court as for contempt.
J. (1) The cost of producing records of a third party required by a summons shall be
borne by the taxpayer if he requests the summons to be issued.
(2) If the Commission or its designated representatives initiate the summons for
third-party records, the Commission shall bear the reasonable cost of producing the records. The
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Commission or its designated representatives may later assess the cost against any delinquent or
deficient taxpayer as determined by the records.
SECTION 3. Chapter 3.04 of the West Memphis Municipal Code is hereby amended to
add the following:
1. Time limitations for assessments, collection, refunds, and prosecutions.
A. Except as otherwise provided in this Chapter, no assessment of the A&P Tax shall be
made after the expiration of three (3) years from the date the return was required to be filed or
the date the return was filed, whichever period expires later. The Commission shall not begin
court proceedings after the expiration of the three-year period unless there has been a previous
assessment for the collection of the tax.
B. Upon written agreement of the Commission and the taxpayer, the time within which
the Commission may make a final assessment, as provided herein, may be extended to a date
mutually agreed upon in the written agreement.
C. Where, before the expiration of the time prescribed for the assessment of the tax or of
extensions thereof, both the Commission and the taxpayer have consented in writing to an
assessment after that time, then the A&P Tax may be assessed at any time prior to the expiration
of time agreed upon.
D. In the case of a fraudulent return or failure to file a report or return required
hereunder, the Commission may compute, determine, and assess the estimated amount of A&P
Tax due from any information in its possession or may begin an action in court for the collection
of the tax without assessment, at any time.
E. Whenever a taxpayer requests an extension of time for filing any return required
hereunder, the limitation of time for assessing any tax shall be extended for a like period.
F. Where the assessment of the A&P Tax has been made within the period of limitation
properly applicable thereto, the A&P Tax may be collected by levy or proceeding in court, but
only if the levy is made or the proceeding is begun within ten (10) years after the date of the
assessment of the tax.
G. No person shall be prosecuted, tried, or punished for any of the various criminal
offenses arising under the provisions of this Chapter, unless the indictment of the taxpayer is
instituted within six (6) years after the Commission of the offense.
2. Notice requirements.
A. (1) The Commission shall give a taxpayer notice of any assessment, demand,
decision, or hearing before the Commission or its designated representative which directly
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involves that taxpayer.
(2) All notices required to be given by the Commission to a taxpayer shall be either
served by personal service or sent by mail to the taxpayer's last address on record with the
Commission. If this mail is returned unclaimed or refused, then proper notice shall have been
served and given, and the Commission may take any action permitted by this Chapter, or
otherwise by law.
(3) All notices of final assessment hereunder shall be sent by certified mail, return
receipt requested.
B. The taxpayer, when giving notice to the Commission, shall give notice either by mail
or by personal service on the Commission. The notice the taxpayer gives shall be effective when
postmarked or, in case of personal service, when so served.
C. The Commission and any taxpayer may, by written agreement, provide for any other
reasonable means of giving notice.
D. All notices shall be in writing.
3. Assessment and collection of taxes generally.
A. 1. The Commission or its designated representatives are authorized and required to
make the inquiries, determinations, and assessments of the A&P Tax, including interest,
additions to taxes, and assessable penalties, imposed hereby.
2. The assessment shall be made by recording the liability of the taxpayer in the offices
of the Commission in accordance with rules or regulations prescribed by the Commission.
3. Upon request of the taxpayer, the Commission shall furnish the taxpayer a copy of the
record of the assessment.
B. 1. The Commission shall collect all A&P Taxes imposed by law.
2. As soon as practicable after the making of assessment of the A&P Tax, the
Commission shall give notice to each person liable for the unpaid tax, stating the amount and
demanding payment within ten(10) days.
3. Upon receipt of notice and demand from the Commission, the person liable for the
tax shall pay the stated amount including any interest, additions to tax, and assessable penalties
at the place and time stated in the notice and demand.
4. Proposed assessments.
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A. 1. If any taxpayer fails to file any return as required hereunder, the Commission,
from any information in its possession or obtainable by it, may determine the correct amount of
tax for the taxable period. If a return has been filed, the Commission or its designated
representatives shall examine the return and make any audit or investigation that is considered
necessary.
2. When no return has been filed and the Commission determines that there is an A&P
Tax due for the taxable period or when a return has been filed and the Commission determines
that the A&P Tax disclosed by the return is less than the tax disclosed by its examination, the
Commission shall propose the assessment of additional tax plus penalties, as the case may be,
and shall give notice of the proposed assessment to the taxpayer. The notice shall explain the
basis for the proposed assessment and shall state that a final assessment, as provided for herein,
will be made if the taxpayer does not protest such proposed assessment as provided hereby. The
taxpayer does not have to protest the proposed assessment to later be entitled to exercise the right
to seek a judicial review of the assessment.
B. Any demand for additional payment of the A&P Tax which is made as the result of a
verification of a mathematical error on the return shall not be deemed to be a proposed
assessment under the provisions of this section and shall not be subject to the hearing or appeal
provisions of this section.
5. Taxpayer relief.
A. Any taxpayer who wishes to seek administrative relief from any proposed assessment
of taxes or proposed notice of disallowance of a claim for refund by the Commission shall follow
the procedure provided by this section.
B. 1. A taxpayer may at his option either request the Commission to consider his
request for relief solely upon written documents furnished by the taxpayer or upon the written
documents and any evidence produced by the taxpayer at a hearing.
2. A taxpayer who requests the Commission to render its decision based on written
documents is not entitled by law to any other administrative hearing prior to the Commission's
rendering of its decision and, if necessary,the issuing of a final assessment and demand for
payment or issuing of a certificate of indebtedness.
C. Within thirty (30) days after service of notice of the proposed assessment, the
taxpayer may file with the Commission a written protest under oath, signed by himself or his
authorized agent, setting forth the taxpayer's reasons for opposing the proposed assessment.
D. The Commission may, in its discretion, extend the time for filing a protest for any
period of time not to exceed an additional ninety-day period.
6. Hearing on proposed assessments.
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A. 1. The executive director or his designee shall serve as hearing officer to review all
written protests submitted by taxpayers, hold all hearings, and make written findings as to the
applicability of the proposed assessment.
2. Decisions of the hearing officer shall be final unless revised by the Commission.
3. The hearing on written and oral protests and determinations made by the hearing
officer shall not be subject to the provisions of the Arkansas Administrative Procedure Act, §
25-15-201 et seq.
B. The actual hearing on the written protest shall be held in the Commission's offices.
C. 1. The hearing officer shall set the time and place for hearing on the written protest
and shall give the taxpayer reasonable notice thereof
2. At the hearing, the taxpayer may be represented by an authorized representative and
may present evidence in support of his position.
3. After the hearing, the hearing officer shall render his decision in writing and shall
serve copies upon both the taxpayer and the Commission.
4. a. If the proposed assessment is sustained, in whole or part, the taxpayer may request
in writing, within twenty (20) days of the mailing of the decision, that the Commission revise the
decision of the hearing officer.
b. If the Commission refuses to make a revision or if the taxpayer does not make a
request for revision, then a final assessment shall be made upon the final determination of the
hearing officer or the Commission.
c. A taxpayer may seek relief from the final decision of the hearing officer or the
Commission on a final assessment of a tax deficiency by following the procedure set forth in this
section.
d. 1. In addition to the hearing procedures set out in subsections a. - c. of this
subsection, the Commission or the hearing officer may hold administrative hearings by
telephone, video conference, or other electronic means if the Commission or the hearing officer
determines that conducting the hearing in such a manner:
(i) Is in the best interest of the taxpayer and the Commission;
(ii) Is agreed to by both parties;
(iii) Is not fiscally unsound or administratively burdensome; and
(iv) Adequately protects the confidentiality of the taxpayer's information.
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2. The Commission is authorized to contract with third parties for all services necessary
to conduct hearings by telephone, video, or other electronic means.
3. Any person who enters into a contract with the Commission to provide services
necessary to conduct hearings by telephone, video, or other electronic means shall be subject to
the laws providing for the confidentiality of taxpayer records.
7. Judicial relief.
A. Within thirty(30) days after the issuance and service on the taxpayer of the notice
and demand for payment of a deficiency in tax established by (1) an audit determination that is
not protested by the taxpayer, or (2) a final determination of the hearing officer or the
Commission, a taxpayer may seek judicial relief from the final determination by either:
1. Within thirty (30) days of the date of the final assessment, paying the entire amount
of the A&P Tax due, including any interest or penalties, for any taxable period or periods
covered by the final assessment and filing suit to recover that amount within one (1) year of the
date of payment. The Commission may proceed with collection activities, including the filing of
a certificate of indebtedness as authorized hereunder, within thirty (30) days of the issuance of
the final assessment for any assessed but unpaid A&P Taxes, penalties, or interest owed by the
taxpayer for other taxable periods covered by the final assessment, while the suit for refund is
being pursued by the taxpayer for other taxable periods covered by the final assessment; or
2. a. Within thirty (30) days of the issuance and service on the taxpayer of the notice
and demand for payment, filing with the Commission a bond in double the amount of the tax
deficiency due and by filing suit within thirty (30) days thereafter to stay the effect of the
Commission's determination.
b. The bond shall be subject to the condition that the taxpayer shall file suit within thirty
(30) days after filing the bond, shall faithfully and diligently prosecute the suit to a final
determination, and shall pay any deficiency found by the court to be due and any court cost
assessed against him.
c. A taxpayer's failure to file suit, diligently prosecute the suit, or pay any tax deficiency
and court costs, as required by subparagraph a. of this subsection, shall result in the forfeiture of
the bond in the amount of the assessment and assessed court costs.
B. Jurisdiction for a suit to contest a determination of the Commission under this section
shall be in a circuit court in Crittenden County, where the matter shall be tried de novo.
C. The methods provided in this section shall be the sole alternative methods for seeking
relief from a written decision of the Commission or the hearing officer establishing a deficiency
in the A&P Tax.No injunction shall issue to stay proceedings for assessment or collection of any
A&P Taxes.
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D. In any court proceeding under this section, the prevailing party may be awarded a
judgment for court costs.
8. Issuance of certificates of indebtedness and execution.
A. 1. Indebtedness.
a. If a taxpayer does not timely and properly pursue his remedies seeking relief from a
decision of the Commission or hearing officer and a final assessment is made against the
taxpayer, or if the taxpayer fails to pay the deficiency assessed upon notice and demand, then the
Commission through its authorized representatives shall, as soon as practicable thereafter, issue
to the circuit clerk of any county of the state in which the taxpayer's business is located a
certificate of indebtedness certifying that the person named therein is indebted to the
Commission for the amount of the tax established by the Commission as due.
b. If a taxpayer has a delinquent A&P Tax liability to the Commission of less than one
thousand dollars ($1,000.00), the Commission or its hearing officer may enter into an agreement
with the taxpayer to allow the taxpayer to pay the delinquency in installments. The Commission
or its hearing officer may choose not to issue a certificate of indebtedness during the period of
the installment agreement if it determines that it is in the best interest of the Commission.
2. The circuit clerk shall enter immediately upon the circuit court judgment docket:
a. The name of the delinquent taxpayer;
b. The amount certified as being due;
c. The name of the tax; and
d. The date of entry upon the judgment docket.
3. a. The entry of the certificate of indebtedness shall have the same force and effect as
the entry of a judgment rendered by the circuit court. This entry shall constitute the
Commission's lien upon the title of any real and personal property of the taxpayer in the county
where the certificate of indebtedness is recorded.
b. This lien is in addition to any other lien existing in favor of the Commission to secure
payment of taxes, applicable interest, penalties, and costs. The lien is superior to other liens of
any type or character attaching to the property after the date of entry of the certificate of
indebtedness on the judgment docket. This lien is superior to all claims of unsecured creditors.
c. The certificate of indebtedness authorized by this subsection shall continue in force
for ten(10) years from the date of recording and shall automatically expire after the ten-year
period has run. Actions on the lien on the certificate of indebtedness shall be commenced within
ten(10) years after the date of recording of the certificate, and not afterward.
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B. 1. After entry of the certificate, the circuit clerk shall issue a writ of execution
directed to the Commission, authorizing the Commission to levy upon and against all real and
personal property of the taxpayer.
2. The Commission shall have all remedies and may take all proceedings for the
collection of the tax which may be taken for the recovery of a judgment at law.
3. The writ shall be issued, served, and executed in the same manner as provided for in
the issuance and service of executions rendered by the circuit courts of this state, except the
Commission shall act in the place of the county sheriffs.
C. 1. Nothing in this chapter shall preclude the Commission from resorting to any other
means provided by law for collecting delinquent taxes.
2. The issuance of a certificate of indebtedness, entry by the clerk, and levy of execution
as provided in this section shall not constitute an election of remedies with respect to the
collection of the tax.
3. The taxes, fees, interest, and penalties imposed or levied hereby may be collected in
the same way as a personal debt of the taxpayer.
4. The Commission may sue to the same effect and extent as for the enforcement of a
right of action for debt.
5. All provisional remedies available in these actions are available to the Commission in
the enforcement of the payment of the A&P Tax.
D. 1. In addition to the remedies provided in subsections (b) and (c) of this section, the
Commission may direct the circuit clerk to issue a writ of execution directed to the sheriff of any
county authorizing the sheriff to levy upon and against all real and personal property of the
taxpayer. The writ shall be issued, served, and executed in the same manner as provided for in
the issuance and service of executions rendered by the circuit courts of this state.
2. The circuit clerks and sheriffs shall be entitled to receive the same fees provided by
law in these matters. These fees shall be collected from the taxpayer by either the Commission or
the sheriff in addition to the tax,penalties, and interest included in the certificate of indebtedness.
If the sheriff is unable, after diligent effort, to collect the tax, interest,penalties, and costs, the
Commission may pay such fees as are properly shown to be due to the clerk and sheriff.
3. The Commission may contract with persons inside or outside the state to help the
Commission collect delinquencies of resident or nonresident taxpayers.
9. Injunction proceedings.
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When a return required hereunder has not been filed or does not furnish all the
information required by the Commission or when the A&P Taxes imposed by law have not been
paid or when any required license or permit has not been secured,the Commission may institute
any necessary action or proceeding in a court of competent jurisdiction in Crittenden County to
enjoin the person or taxpayer from continuing operations until the report or return has been filed,
required licenses or permits secured, or taxes paid as required. The injunction shall be issued
without a bond being required from the Commission.
10. Settlement or compromise of liability controversies.
A. The Commission may enter into an agreement to compound, settle, or compromise
any controversy relating to the A&P Tax when:
1. The controversy is over the amount of tax due; or
2. The inability to pay results from the insolvency of the taxpayer.
B. The Commission may waive or remit the interest or penalty, or any portion thereof,
ordinarily accruing because of a taxpayer's failure to pay the A&P Tax within the statutory
period allowed for its payment:
1. If the taxpayer's failure to pay the tax is satisfactorily explained to the Commission;
or
2. If the failure results from a mistake by the taxpayer of either the law or the facts
subjecting him to such tax; or
3. If the inability to pay the interest or penalty results from the insolvency or bankruptcy
of the taxpayer.
C. In settling or compromising any controversy relating to the liability of a person for
the A&P Tax for any taxable period, the Commission is authorized to enter into a written closing
agreement concerning the liability. When the closing agreement is signed by the Commission, it
shall be final and conclusive, and except upon a showing of fraud or misrepresentation of a
material fact, no additional assessment or collection shall be made by the Commission, and the
taxpayer shall not institute any judicial proceeding to recover such liabilities as agreed to in the
closing agreement.
D. The Commission shall promulgate rules and regulations establishing guidelines for
determining whether a proposed offer in compromise is adequate and is acceptable to resolve a
tax dispute.
11. Release of property from lien.
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A. Upon written application by any person, the Commission may release any property
from the lien imposed by any assessment, order,judgment, or certificate of indebtedness
obtained by or from any levy made by it if:
1. Either full payment is made to the Commission of the sum it considers adequate
consideration for the release; or
2. Adequate security deposit is made with the Commission to secure the payment of the
debt evidenced by the lien.
B. When the Commission determines that its assessment, certificate of indebtedness, or
judgment is clouding the title of property because of an error in the description of properties or
similarity in names, the Commission may issue a release without the payment of any
consideration.
C. The Commission's release shall be given under its seal and filed in the office of the
circuit clerk in the county in which the lien is filed, or it shall be recorded in any office in which
conveyances of real estate may be recorded.
SECTION 4. Section 3.04.070 of the West Memphis Municipal Code is hereby
amended to read as follows:
Criminal penalties.
Sanctions for any taxpayer who willfully attempts to evade or defeat the payment of the
A&P Tax, or who assists a taxpayer to evade or defeat the payment, or otherwise fails to file a
report, fails to pay the tax, or makes a false or fraudulent report, return, statement, claim,
application or other instrument required by the Commission in connection with the A&P Tax, or
knowingly makes a false answer to any question from the Commission or its designated
representative concerning any A&P Tax, neglects to answer an subpoena to appear and answer
questions about records for the A&P Tax, or fails to obtain an A&P Tax permit as required, or
who acts, or fails to act, in conformance with the provisions of the Arkansas Tax Procedure Act,
as that Act applies to the A&P Tax, shall be subject to the penalties set forth in Ark. Code Ann.
§§ 26-18-101 to 26-18-105; 26-10-201 to 26-10-212, as they exist on the date of the passage of
this ordinance, or as they may be amended by the General Assembly and are in effect on the date
of any such violation.
SECTION 5. SEVERABILITY CLAUSE. If any section, subsection, sentence,
clause, or phrase of this ordinance or the application thereof to any person or circumstances is
held invalid, such decision shall not affect the validity of the remaining portions of this ordinance
or application of this ordinance which can be given effect without the invalid section, subsection,
sentence, clause, or phrase, and to this end the provisions of this ordinance are declared
severable.
12
SECTION 6. REPEALING CLAUSE. All ordinances or parts of ordinances in
conflict herewith are hereby repealed to the extent of any such conflict.
PASSED AND APPROVED this day of 20 .
WILLIAM H. JOHNSON. MAYOR
ATTEST:
PHILLIP PARA, CITY CLERK
SPONSORED BY:
cz-ezai;ce.-- —±
WI/a/7
RECEIVED
City Clerk's 011ie
Date/Time io r -1(�!i:oo
13
s
ORDINANCE NO.
AN ORDINANCE WAIVING COMPETITIVE BIDDING FOR
CONSULTING SERVICES FOR THE CITY OF WEST MEMPHIS AND
WEST MEMPHIS ECONOMIC DEVELOPMENT TO BE PROVIDED BY
STEVEN McLAWS,AND FOR OTHER PURPOSES.
WHEREAS, Arkansas Code Annotated Section 14-58-303 allows waiving of
competitive bidding in exceptional situations where such procedure is deemed not feasible or
practical; and
WHEREAS, there are many items necessary for the City's use where competitive bidding
is deemed not feasible or practical; and
WHEREAS,the City of West Memphis and West Memphis Economic Development is
in need of consulting services regarding advising and supporting the City and the Economic
Development Department on railroad issues relating to the TIGER IV Grant, as amended, and it
would not be feasible or practical to require competitive bidding for such services under the
present circumstances;
NOW, THEREFORE,BE IT ORDAINED BY THE CITY COUNCIL OF THE
CITY OF WEST MEMPHIS,ARKANSAS:
Section 1. That competitive bidding be waived for the following item to be used by the
City, described as follows:
Consulting services for the City of West Memphis and West Memphis Economic
Development to be provided by Steven McLaws,regarding advising and supporting the
City and the Economic Development Department on railroad issues relating to the TIGER
IV Grant, as amended.
Section 2. The agreement between the City of West Memphis and Steven McLaws,
subject to such incidental modifications and may be approved by the Mayor, is hereby approved
and the Mayor is hereby authorized to execute the final agreement on behalf of the City of West
Memphis.
PASSED AND APPROVED this day of 2016.
WILLIAM H. JOHNSON, Mayor
ATTEST:
PHILLIP PARA, City Clerk
SPONSORED BY:
RECEIVED
City Clerk's Office
Date/Time 10-11-lb 11: 00
By D w
Agreement between
Steven McLaws and the City of West Memphis, Arkansas
for
Railroad Consultant Services
This Agreement for Services will serve the West Memphis Economic Development Department in
advising and supporting the Department on railroad issues.
Services to be delivered include:
1. Provide general railroad consulting services (infrastructure, operations, capital planning, cost/benefit
assessments, program management, etc.) to support the Department's effort in promoting industrial
development to create new jobs and tax revenues.
2. Manage and direct the review and development of proposed railroad track layouts and provide
comments, recommendations and alternative layouts as appropriate.
3. Act as a liaison for the City in the review, assessment and optimization of third party railroad interactions.
4. Act as an advocate and program manager for the City, in the execution of the Tiger Federal Grant IVA
project, working in conjunction with John Youngbeck and Cheryl Garner. Services include participating
in monthly progress meetings to monitor project performance, schedule, budget and cash flow to meet
compliance requirements and any other related responsibilities.
5. Assist in the review, development and negotiation of the existing operating and lease agreements with
Class I and Class III Railroads.
6. Assist in the development, modifications and review of a Memorandum of Understanding (MOU)
between the City, Class I & Class III Railroads and rail-served customers for new manifest and unit
train services.
7. Act as a liaison to assist, the Economic Development Department, in the assertive recruitment of new
rail-served industry and developers to promote job creation and revenue for the City.
Timing & Fee Schedule
Timing: The Agreement shall begin upon execution and duration shall be related to the development of a
rail asset lease/sale transaction, and, to the execution of the U.S. DOT TIGER IV amended project. This
Agreement may be terminated by either party upon 90 days written notice.
Fee: Work to be invoiced monthly at $2,750/month plus travel and expenses. Monthly invoices exceeding 32
hours per month will be billed at $75 per hour. Travel and expenses will be reimbursed as part of the monthly
invoice with detail receipts.
No claim for alcohol will be paid; meal claims will include a detailed receipt of the order and receipt of payment.
Before any services, that will include travel and expenses claims, a brief outline stating why the travel and
expenses will be required including estimates of expected travel (airline, hotel charges and car rental, and meals
with prospects)will be submitted for review and approval by the Mayor's designee. Daily meal charges, per
person, should not exceed $80 ($20 for breakfast, $20 for lunch, and not more than $40 for dinner).
Date:
Steven McLaws
Date:
William Johnson, Mayor
ORDINANCE NO.
AN ORDINANCE WAIVING COMPETITIVE BIDDING FOR
CONSULTING SERVICES FOR THE CITY OF WEST MEMPHIS AND
WEST MEMPHIS ECONOMIC DEVELOPMENT TO BE PROVIDED BY
LOGISTICS CONSULTANT, LLC,AND FOR OTHER PURPOSES.
WHEREAS, Arkansas Code Annotated Section 14-58-303 allows waiving of
competitive bidding in exceptional situations where such procedure is deemed not feasible or
practical; and
WHEREAS, there are many items necessary for the City's use where competitive bidding
is deemed not feasible or practical; and
WHEREAS,the City of West Memphis and West Memphis Economic Development is
in need of consulting services relating to the development of the RiverRail Logistics Industrial
Park as envisioned in the TIGER IV Grant, as amended, and for grant agreement project
administration services and it would not be feasible or practical to require competitive bidding
for such services under the present circumstances;
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE
CITY OF WEST MEMPHIS,ARKANSAS:
Section 1. That competitive bidding be waived for the following item to be used by the
City, described as follows:
Consulting services for the City of West Memphis and West Memphis Economic
Development to be provided by Logistics Consultant, LLC, in the development of the
RiverRail Logistics Industrial Park as envisioned in the TIGER IV Grant, as amended,
and for grant agreement project administration aervices.
Section 2. The agreement between the City of West Memphis and Logistics Consultant,
LLC, subject to such incidental modifications and may be approved by the Mayor, is hereby
approved and the Mayor is hereby authorized to execute the final agreement on behalf of the City
of West Memphis.
PASSED AND APPROVED this day of , 2016.
WILLIAM H. JOHNSON, Mayor
ATTEST:
PHILLIP PARA, City Clerk
SPONSORED BY:
RECEIVED
City Clerk's mice
Uaterlfine 117-17-,j,
John M. Youngbeck
Logistics Consultant LLC
Contract Agreement-for Grant Agreement Project Administration Services
U.S. Department of Transportation, TIGER IV Discretionary Infrastructure Grant
Agreement No: FR-TII-0013-03-01-00 as Amended
I. The Parties
This Agreement(the"Agreement")is entered into this_Day of 2016 by and between John M.
Youngbeck Logistics Consultant LLC,a State of Florida Limited Liability Company("Contractor"),and The
City of West Memphis,Arkansas, Department of Economic Development, (the"City") with offices located at 205
S. Redding,West Memphis,Arkansas, 72303. For purposes of this Agreement,when reference is made to the
"Parties", it shall mean Contractor and The City. The City under the TIGER IV Grant is also lawfully referred to as
"Grantee"and such terms may be used interchangeably.
II. Definition of The Project and Purpose
The City was awarded Federal funding to complete a project commenced by the City of West Memphis in 2013
when it received a TIGER IV grant to build improvements to railroad, roadway and utility infrastructure to support
increased access by manifest and bulk unit train shipments to City and privately owned facilities using the Port of
West Memphis and environs, "The Project". The original Grant Agreement was enacted by Signature of The
Federal Railroad Administration(FRA)and adoption by The City in May Of 2013. An amended Scope of Work with
revised project Scope of Work,Schedule and Budget, is expected to be signed by FRA and accepted by The City
of West Memphis not later than October 30,2016.
The Grant Agreement Amendment divides the Project Scope of Work into two phases,defined as Phase la and
lb. Elements of the Project's manifest train solution for the rehabilitation of the City's Friday Graham line and
design-build of a new bulk transfer site pad off the Friday Graham line, is defined in the Grant Amendment as
Phase la, and may proceed to conclusion of construction as defined as Task 4 in the Grant Agreement
Amendment,and as approved by The Federal Railroad Administration.
Additional design and construction on a new element or industrial lead track to provide separate bulk unit train
access via a newly defined Right of Way corridor,known by the Parties as"the Western Wye"is defined in the
Agreement Amendment as Phase lb. Engineering and Environmental approvals may proceed under Phase lb,
but The City may not proceed to construction phase until additional and adequate funding is secured by the City to
complete the construction phase. Funding to perform the environmental and engineering services for Phase lb is
provided for in the Grant Amendment.
III. Contractor's Services.Contractor shall be available and shall provide to the City and to The Federal Railroad
Administration as the US Department of Transportation's designated"Modal Administration"as overseer and
administrator of the City's TIGER IV Grant and its Amendment, services as defined in Paragraph A:
A. Scope of Services
Contractor shall direct its efforts to perform all Grant Project Administration duties as defined in the original Grant
Agreement and its Amendment. These duties shall include:
1. Grant Legal Compliance. Contactor shall serve as Monitor and administrator for Grant
Compliance with all Federal Grant procurement regulations Including'Buy America"; Davis-
Bacon Act; US DOT's Disadvantaged Business Enterprise(DBE)program,and all other
Federal Laws and General Legislation as applicable to the Grantee as defined in Section 3.
"Applicable Federal Laws and Regulations", and Section 5"Assurances and Certifications", of
The Grant Agreement
2. Grant Financial Management Services. Contractor shall provide Financial Management
Services for the City for procurement, administration and payment for products and services for
The Project as procured under the Grant and its Amendment, including assisting the
City/Grantee in contract bid solicitation in accordance with the City's Procurement policies, and
to assure Project contractor/subcontractor compliance with Federal Grant"flow down"
requirements.. Contractor shall review all Project invoices for compliance with the amended
Grant Agreement budget and revised project Schedule, prior to submission to Grant Solutions
for processing. Contractor shall coordinate with City's finance department for processing of all
payments and reimbursement of same via DOT's authorized central disbursement source,
Grant Solutions. Contractor shall be an"Authorized User"by the City with Grant Solutions for
this purpose.
3. Grant Schedule Compliance. Contractor shall work with the City and its design engineering
and construction contractors and authorized subcontractors,for adherence to the Project
Schedule as contained in Sections 5 and 6 of the Grant Agreement Amendment. Contractor
shall furthermore report on all schedule maintenance and deviations with the FRA as required
by the Grant Agreement and its Amendment.
4. Grant Reporting and Field Audits. Contractor shall assure that Grantee is fully compliant with
all Reporting requirements as contained in Section 10 of the Grant Agreement and Task 5.0 of
The Grant Amendment, Specifically, Contractor is responsible for preparation and filing of the
following reports: Project Progress and Monitoring Reports(Quarterly); Project Federal
Financial Report SF 425(Quarterly); Project Annual Budget Review and Program Plan; Project
Outcomes and Performance Measurement Reports; Project Management Plan and Project
Closeout Report. Contractor shall further act as City's designated representative and
respondent to the FRA in its annual Field Monitoring visits and reports as required.
5. Additional Services. Contractor shall interact and coordinate with FRA and City's designated
and selected environmental engineer for completion of FRA's NEPA Preliminary Environmental
Re-Examination Consultation to determine whether any further Class of Action review is
needed on the Phase lb"western wye"corridor. Contractor shall also consult and provide
services on behalf of the City as needed in its efforts to secure the balance of funding needed
to construct the rail industrial lead for the western wye corridor and shall interact as necessary
with private"Transload Facility"private partners for compliance and fulfillment of Grant and
Grant Amendment requirements(supply of pre-engineering and Stakeholder Agreement)for
release of the Special Conditions as contained in Section 5.B. of the Grant Agreement
Amendment.
IV. Consideration and Fee Schedule
In consideration for the Services to be performed by Contractor under this Agreement,the City will pay
Contractor a monthly fee of$4,500.00(four thousand five hundred U.S. dollars)plus a reimbursable
monthly travel allowance for onsite project and grant administration of$1,400.00 per month.
Allowable expenditures for travel and transportation shall be properly itemized and documented
and supplied to The City on a monthly basis. Monthly expenditures shall not exceed a combined
total of$5,900.00 per month which covers all services listed in Paragraph Ill of this Agreement.
Said fees are currently budgeted in the approved revised Federal budget as contained in The Grant
Agreement Amendment and are fully reimbursable to the City via US GrantSolutions.
V.Term
The Term of this Agreement shall commence as of the Date the City accepts and signs the FRA Grant
Agreement Amendment,and shall continue to the end of the Project period of performance as defined in
the Grant Agreement Amendment,which is September, 2018. Should the Grant Agreement Amendment
be terminated prior to the stated period of performance in the Grant Agreement Amendment,the City
shall have the right to terminate its Agreement with Contractor upon 30 day's notice to Contactor.
VI. Independent Contractor. Nothing herein shall be construed to create an employer-employee relationship
between the City the Contractor, or Contractor's subcontractors.Contractor is an independent contractor and not
an employee of the City any of its subsidiaries or affiliates.The consideration set forth in Section IV shall be the
sole consideration due Contractor for the services rendered hereunder. It is understood that the City will not
withhold any amounts for payment of taxes from the compensation of Contractor hereunder. Contractor will not
represent to be or hold himself out as an employee of the City.
VII. Subcontracting. Should the City require services outside the scope or in addition to those defined in this
Agreement,the Contractor shall have the right to provide recommendations for additional contracts or subcontracts
to the City. Contractor shall NOT enter into supplementary agreements and subcontracts with other entities
"subcontractors"as may be needed for specific functions and additional services without the prior review and
approval of The City.
VIII. Confidentiality. In the course of performing services listed in this Agreement,the Parties recognize that
Contractor may come in contact with or become familiar with information that the City or its subsidiaries or affiliates
may consider confidential.This information may include, but is not limited to, information pertaining to City
contracts, services,commodity types and traffic volumes,or confidential Project details,which information may be
sensitive or of value to a competing entity. Contractor and contractor's subcontractors(where applicable),agree to
keep all such information confidential,within the bounds of a specified Non-Disclosure Agreement(NDA)
acceptable to the City, and not to discuss or divulge it to anyone other than appropriate Contractor and/or City of
West Memphis(TIGER Grantee)personnel or their designees,for the term of this contract and for a period of one
year following the termination of this Agreement by whatever means. The Contractor and City understand that
confidential information shared under this Agreement shall be subject to Freedom of Information Act(FOIA)
requests and be subject to release or recognition under terms and conditions of The National Environmental Policy
Act(NEPA),and other releases that may apply under law as affects The City of West Memphis,The State of
Arkansas or The U.S. Department of Transportation and U.S. Federal Railroad Administration.
IX. Intellectual Property. Contractor and City agree that all designs,files, patents and intellectual property
developed under this Agreement shall remain the exclusive property of the City of West Memphis,Arkansas. The
City shall be provided access to work product and results generated as the result of this Agreement.
X.. Notice. Any notice or communication permitted or required by this Agreement shall be deemed effective when
personally delivered or deposited, postage prepaid, in the first class mail of the United States properly addressed
to the appropriate party at the address set forth below:
1. Notices to Contractor: P.O. Box 611526, Rosemary Beach, FL 32461
2. Notices to the City: 205 S. Redding St.,West Memphis AR 72301
Xl.. Miscellaneous.
11.1 Entire Agreement and Amendments. This Agreement constitutes the entire agreement of
the Parties with regard to the subject matter hereof, and replaces and supersedes all other
agreements or understandings,whether written or oral. No amendment or extension of the
Agreement shall be binding unless in writing and signed by both Parties.
11.2 Binding Effect,Assignment. This Agreement shall be binding upon and shall inure to the
benefit of Contractor and The City of West Memphis and to the Contactor's and City's
successors and assigns. Nothing in this Agreement shall be construed to permit the assignment
by Contractor of any of its rights or obligations hereunder,and such assignment is expressly
prohibited without the prior written consent of The City of West Memphis,Arkansas.
11.3 Governing Law, Severability. This Agreement shall be governed by the laws of the State
of Arkansas.The invalidity or unenforceability of any provision of the Agreement shall not affect
the validity or enforceability of any other provision.
WHEREFORE,the Parties have executed this Agreement as of the date first written above.
By: Date:
John M.Youngbeck Logistics Consultant LLC
CONTRACTOR
By: Date:
The City of West Memphis
ORDINANCE NO.
AN ORDINANCE WAIVING COMPETITIVE BIDDING FOR
CONSULTING SERVICES FOR THE CITY OF WEST MEMPHIS AND
WEST MEMPHIS ECONOMIC DEVELOPMENT TO BE PROVIDED BY
ADVANCE ECONOMIC DEVELOPMENT SERVICES,AND FOR
OTHER PURPOSES.
WHEREAS, Arkansas Code Annotated Section 14-58-303 allows waiving of
competitive bidding in exceptional situations where such procedure is deemed not feasible or
practical; and
WHEREAS, there are many items necessary for the City's use where competitive bidding
is deemed not feasible or practical; and
WHEREAS,the City of West Memphis and West Memphis Economic Development is
in need of consulting services relating to the development of the RiverRail Logistics Industrial
Park as envisioned in the TIGER IV Grant, as amended; and it would not be feasible or practical
to require competitive bidding for such services under the present circumstances;
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE
CITY OF WEST MEMPHIS,ARKANSAS:
Section 1. That competitive bidding be waived for the following item to be used by the
City, described as follows:
Consulting services for the City of West Memphis and West Memphis Economic
Development to be provided by Advance Economic Development Services in the
development of the RiverRail Logistics Industrial Park as envisioned in the TIGER IV
Grant, as amended.
Section 2. The agreement between the City of West Memphis and Advance Economic
Development Services, subject to such incidental modifications and may be approved by the
Mayor, is hereby approved and the Mayor is hereby authorized to execute the final agreement on
behalf of the City of West Memphis.
•
PASSED AND APPROVED this day of , 2016.
WILLIAM H. JOHNSON, Mayor
ATTEST:
PHILLIP PARA, City Clerk
SPONSORED BY:
RECEIVED
City Clerk's Office
Date/Time_ 1017-1 k
ADVANCE
__ r i':D etc: <i&t;'t 5>Lluti _,_
Agreement between
Advance Economic Development Services and the City of West Memphis
for Economic Development Services
for West Memphis including the RiverRail Logistics Industrial Park
This Agreement is for Advance Economic Development Solutions to provide economic development services
for the City of West Memphis including the development of the West Memphis RiverRail Logistics Industrial
Park in the targeted areas of development of a rail asset operating lease or sale transaction, and, the U.S.
DOT TIGER IV Amended Grant.
SCOPE OF SERVICES
1. Lead and direct the promotion, evaluation and development of a potential lease and/or sale transaction
of the City's rail assets.
2. Act as an advocate and program manager for the City, in the execution of the U.S. DOT TIGER IV
Amended Project, working with John Youngbeck and Steven McLaws with services including monthly
progress meetings monitoring project performance, schedule, budget and cash flow and other related
activities and duties including serving to transition the position of Economic Development Director with
seamless support to meet compliance requirements and any other related responsibilities pertaining to
the West Memphis RiverRail Logistics Industrial Park.
3. Lead and manage the project planning and development of the "western wye" (as it relates to the U.S.
DOT TIGER IV Amended Grant") supporting the West Memphis Megasite and other related duties as
requested.
TIMING AND FEE SCHEDULES
Timing: The Agreement shall begin upon execution and duration shall be related to the development of a rail
assets lease or sales transaction, and, to the execution of the U.S. DOT TIGER IV Amended Project. The
new Economic Development Director shall have the right to review and confirm the Agreement for a period
of up to 60 days of the new director position start date. This Agreement may be terminated by either party
upon 90 days written notice.
Fee: Work to be invoiced monthly at$4,000/month plus travel and expenses. Monthly invoices exceeding 32
hours per month will be billed at$100 per hour. No claim for alcohol will be paid; meal claims must include a
detailed receipt of the order, in addition to the payment receipt. Before any services that will include travel
and expenses claims, a short outline of why the travel and expenses will be needed including estimates of
expected travel (airline and car rental), hotel charges, and meals with prospects. This is to be reviewed with
and approved by the Mayor or the Mayor's designee beforehand. Daily meal charges, per person, should not
exceed $80 ($20 for hotel breakfast, $20 for lunch, and not more than$40 for dinner).
9/8/16
Cheryl B. arner, President&CEO Date
William Johnson, Mayor Date