Loading...
08/01/2019 MINUTES WEST MEMPHIS CITY COUNCIL AUGUST 1, 2019 A regular meeting of the West Memphis City Council was held on Thursday, August 1, 2019, at 1:30 p.m. in the City Council Chambers at City Hall, 205 S. Redding, West Memphis, Arkansas. Invocation was given by Pastor Gary Hair, followed by the Pledge of Allegiance led by Council Member Wayne Croom, Mayor Marco McClendon called the meeting to order at 1.30 p.m. Deputy City Clerk, Patricia Lane, called the roll Those present were. Mayor Marco McClendon, LCity Attorney Michael Stephenson, City Treasurer Frank Martin and Council Members. Tracy Cart Wayne Croom, James Holt, Helen Hams, Melanie Hutchinson, Willis Mondy, David Murray, James Pulliaum, Lorraine Robinson and Charles Wheeless. Quorum being present, Mayor McClendon proceeded with the meeting Council Member Catt made a motion, seconded by Council Member Robinson to add a couple of items back on the agenda from the June 18, 2019 Council Meeting that no action was taken on, specifically, the Bid Openings for the Community Development— Roof Project- M Head and under Permission request to allow the Mayor McClendon to sign the Agreement with Barnes and Bower At the last Council Meeting Council approved the Amendment but did not vote on giving Mayor McClendon permission to pay $4,500.000.00 dollars to build the New Library. Upon voice vote, the voting was unanimous BID OPENING: FIRE DEPARTMENT- FIREFIGHTER PERSONAL PROTECTIVE ENSEMBLE (PANTS, COATS & BOOTS) COMMUNITY DEVELOPMENT— ROOF PROJECT- M. HEAD (ADDED TO AGENDA) Council Member Catt made a motion, seconded by Council Member Robinson to add the Community Development Roof Project to the agenda. Upon voice vote, the voting was unanimous Council Member Catt made a motion, seconded by Council Member Wheeless to refer the bids as amended back to Administration for distribution. Upon voice vote, the voting was unanimous PRESENTATIONS: Mayor Marco McClendon said they would wait until the next Council Meeting on August 15, 2019 to recognize Roy Davis, Brian Bedinger with the West Memphis Police Department and Josh Bell, Anthony Miller and Steve Welsh with the West Memphis Fire Department. MINUTES: Council Member Pulhaum moved, seconded by Council Member Harris to dispense with the reading of the minutes of July 18, 2019 City Council Meeting and approve them as submitted. Upon voice vote, the voting was unanimous to approve. Council Member Catt said that there was no motion to read the New Business from the last Council Meeting by title only on July 18, 2019, but that they had been added back on the agenda and that should correct that action. OLD BUSINESS 2n^ READING AN ORDINANCE GRANTING A SPECIAL USE PERMIT FOR THE PROPERTY LOCATED AT 825 N. COLLEGE BLVD. PERMITTING COMMUNICATIONS TOWER IN A R-1 r SINGLE FAMILY RESIDENTIAL DISTRICT. ! City Attorney Stephenson read the Ordinance by title only Council Member Croom made. A 4 motion, seconded by Council Member Holt to suspend the rules and place the Ordinance on its third reading Upon voice vote the motion was approved. City Attorney Stephenson read the Ordinance for the THIRD and final time by title only. Council Member Croom made a motion, seconded by Council Member Holt to approve the Ordinance. Upon voice vote, the voting was unanimous to approve The Ordinance was adopted and assigned No. 2511. NEW BUSINESS: Council Member Pulliaum made the motion, seconded by Council Member Catt to read R-1, 0- 1, 0-2, 0-3, 0-4 and 0-5 by title only. Upon voice vote, the voting was unanimous. Council Member Pulliaum made the motion, seconded by Council Member Catt to add R-2 to the agenda. Upon voice vote, the voting was unanimous R-1 AN RESOLUTION APPROVING A REVISION TO THE 2019 BUDGET. City Attorney Stephenson read the Resolution by title only. Council Member Croom made the motion, seconded by Council Member Mondy to approve the Resolution Council Member Pulhaum made a motion, seconded by Council Member Robinson to amend the Resolution giving the Paramedics an 9.5% increase, Captain's and above a 5% increase, and allother j police and fire a 7.5 % increase. Discussion followed: Human Resource, Director, Mrs. Coleman J explained that the proposal was for Paramedics to receive a 9.5% increase, officers below the rank of Captain to receive a 7.5 % increase and Captains and above would receive a 3% increase. Council Member Pulliaum made a motion, seconded by Council Member Croom to amend the resolution giving Captains and above a 5% increase. There being no further discussion: Upon voice vote, the voting was unanimous to accept the amendment. Discussion continued: Council Member Robinson made a motion, seconded by Council Member Pulliaum to amend the Purchasing Agent salary from the original proposal of $55,000.00 dollars as proposed to $60,000.00 Dollars. Mayor McClendon asked for a roll call vote. Deputy City Clerk, Patricia Lane called roll. The roll call vote was as follows: Yes, Council Member Croom, Harris, Holt, Hutchinson, Mondy, Murray, Pulhaum, Robinson, Wheeless No: Council Member Catt Abstention: Council Member None Absent. Council Member None With 9 yes votes, 1 No vote 0 Abstentions and 0 Absent votes the motion to accept the amendment to the salary for the Purchasing Agent from $55,000.00 to $60,000.00 dollars passed. Discussion continued Council Member Catt stated that his reason for voting no was because it was his understanding that the conditions for the Purchasing Agent to receive an increase was dependent upon him completing his certification and to his knowledge this condition had not been met. Council Member Hutchinson disputed that not receiving his certification prevented the Purchasing Agent from being considered for a salary increase. Council Member Robinson said that upon receiving his certification, they would revisit increasing the Purchasing Agent salary an additional $5,000 dollars, which would put him in the salary range for the Purchasing Agent position. There being no further discussion Council Member Pulliaum made a motion, seconded by Council Member Robinson to approve both amendments to R-1. Upon voice vote, the voting was unanimous to approve the raises. The Mayor said they would be retroactive back to July 1, 2019 The Resolution was adopted and assigned No.2205. R-2 A RESOLUTION TO ADOPT THE "GROW WEST MEMPHIS 2040" PLAN AS THE WEST MEMPHIS COMPREHENSIVE PLAN City Attorney Stephenson read the Resolution by title only Council Member Catt made a motion, seconded by Council Member Croom to approve the Resolution. Upon voice vote, the voting was unanimous to approve. The Resolution was adopted and assigned No. 2206. 0-1 AN ORDINANCE MAKING THE OFFICE OF THE MAYOR OF THE CITY OF WEST MEMPHIS, ARKANSAS FULL TIME AND ESTABLISHING A SALARY FOR THE POSITION THEREFORE AND FOR OTHER PURPOSES (TABLED ON JULY 18, 2019). City Attorney Stephenson read the Ordinance for the FIRST time by title only. Council Member Croom made a motion seconded by Council Member Wheeless to amend the Ordinance to read to adjust the salary from $87,000.00 to $85.000.00 dollars. Council Member Robinson made a motion, seconded by Wheeless to amend Council Member Groom's amendment for the salary of the Mayor to read $85,500 00 dollars. Council Member Robinson said that the amount being recommended was in line with other Mayor's salaries for Cities of the size of West Memphis. Council Member Catt said $85,500.00 was in the mid-range. Council Member Wheeless was in agreement to pay the Mayor $85,500.00. dollars. Mayor McClendon called for a roll call vote. Deputy City Clerk Patricia Lane called roll. The vote was as follows. Yes: Council Member Catt, Harris, Holt, Hutchinson, Mondy, Murray, Robinson, Wheeless No' Council Member Croom Abstention Council Member Pulhaum Absent Council Member None With 8 yes votes, 1 No vote 1 Abstentions vote and 0 Absent votes. The motion to approve the amendment passed. Council Member Holt made a motion, seconded by Council Member Mondy to suspend the rules and place the Ordinance on its second reading approving the salary for the Mayor. City Attorney Stephenson read the Ordinance for the SECOND time by title only. The Ordinance will be on the August 15, 2019 Council Meeting for its third reading to approve the Mayors salary. 0.2 AN ORDINANCE TO ESTABLISH COMPENSATION FOR ALDERMAN OF THE CITY OF WEST MEMPHIS, AND FOR OTHER PURPOSES (TABLED ON JULY 18, 2019) City Attorney read the Ordinance for the FIRST time by title only. Council Member Robinson made a motion, seconded by Council Member Hutchinson to suspend the rules and place the Ordinance on its second reading. Upon voice vote, the vote was 9 to 1 with Council Member Catt being opposed to reading the Ordinance for the second time. City Attorney Stephenson read the Ordinance for the Second time by title only. The Ordinance will be on the August 15, 2019 Council Meeting for the third reading. 0-3 AN ORDINANCE TO AMEND SECTION 5 OF ORDANANCE 2361 AND SECTION 1 OF ORDINANCE 2402 REGARDING THE SALARY FOR THE OFFICE OF CITY CLERK AND TO AMEND THE SALARY FOR THE OFFICE OF CITY TREASURER FOR THE CITY OF WEST MEMPHIS, ARKANSAS, AND FOR OTHER PURPOSES City Attorney Stephenson read the Ordinance for the FIRST time Council Member Robinson made a motion, seconded by Council Member Hutchinson to suspend the rules and place the Ordinance on its second reading. Upon voice vote, the vote was 9 to 1 with Council Member Catt being opposed to reading the Ordinance for a second time. City Attorney Stephenson read the Ordinance for the Second time The Ordinance will be on the August 15, 209 Council Meeting for its third reading. 0-4 AN ORDINANCE ADOPTING REGULATIONS TO GOVERN THE CONSTRUCTION, INSTALLATION, MAINTENANCE AND REMOVAL OF SMALL WIRELESS COMMUNICATION FACILITIES IN THE RIGHT-OF-WAY, DECLARING AN EMERGENCY AND FOR OTHER PURPOSES (TABLED JULY 18, 2019) City Attorney Stephenson read the Ordinance for the FIRST time. Council Member Catt made a motion seconded by Council Member Holt to suspend the rules and place the Ordinance on its second reading. Upon voice vote, the voting was unanimous. City Attorney Stephenson read the Ordinance for the SECOND time by title only. Council Member Catt made a motion, seconded by Council Member Croom to further suspend the rules and place the Ordinance on its third reading. Upon voice vote, the voting was unanimous. City Attorney Stephenson read the Ordinance for the THIRD and final time by title only. Council Member Croom made a motion, seconded by Council Member Harris to approve the Ordinance Council Member Robinson asked for an explanation for reading the Ordinance out for the third time Discussion followed: City Attorney Stephenson said the Federal Communications Commission has established a regulation which puts a lot of cost and expense on Municipalities and other Government agencies for the purpose of putting small cell wireless communication devices on our poles that the City owns and right of ways. If we do not have an Ordinance or regulations in place by September 1, 2019 the people that put the small cellular devices in place will be able to put them any where they want without any aesthetic regulations whatsoever. We need to have regulations in place prior to September 1, 2019 City Attorney Stephenson said they are needing to put it on an Emergency Clause in order to have the regulations in place prior to September 1, 2019. Upon voice vote, the voting was unanimous to approve the Ordinance. Council Member Robinson made a motion, seconded by Council Member Monday to accept the Emergency Clause Section 5 Upon voice vote, the voting was unanimous to approve the Emergency Clause. The Ordinance was adopted and assigned NO. 2512 0-5 AN ORDINANCE WAIVING COMPETITIVE BIDDING FOR THE PURCHASE OF FIVE POLICE VEHICLES, AND FOR OTHER PURPOSES City Attorney Stephenson read the Ordinance for the FIRST time by title only. Council Member Harris made motion, seconded by Council Member Holt to suspend the rules and place the Ordinance on its second reading. Upon voice vote, the voting was unanimous. City Attorney Stephenson read the Ordinance for the SECOND time by title only. Council Member Catt made the motion, seconded by Council Member Harris to further suspend the rules and place the Ordinance on its third reading. Upon voice vote, voting was unanimous. City Attorney Stephenson read the Ordnance for THIRD and final time. Council Member Catt made a motion, seconded by Council Member Robinson to approve the Ordinance Upon voice vote, the voting was unanimous. The Ordinance was adopted and assigned No. 2513. PERMISSION REQUEST: R-2 A RESOLUTION APPROVING THE SELECTION OF AN ARCHITECTURAL FIRM TO PROVIDE DESIGN SERVICES REQUIRED TO PREPARE PLANS, SPECIFICATIONS AND BID DOCUMENTS TO ASSIST WITH THE PROPOSED REMODELING AND TO PROVIDE TYPICAL CONSTRUCTION ADMINISTRATIVE SERVICES FOR HIGHTOWER PARK, ROBERTA JACKSON CENTER (HIGHTOWER PROJECT), AND FOR OTHER PURPOSES (ADOPTED JULY 18, 2019 AND ASSIGNED No. 2204) Council Member Call made a motion, seconded by Council Member Pulhaum to correct an action from the July 18, 2019 Council Meeting. Council failed to make a motion to read R-2 by title only. Upon voice vote, the voting was unanimous. City Attorney Stephenson read the R-2 by title only from Council Meeting on July 18, 2019. Council Member Harris made a motion, seconded by Council Member Croom to approve the Resolution. Upon voice vote, the voting was unanimous. The Resolution was adopted on July 18, 2019 and assigned No. 2204. PERMISSION TO DISTRIBUTE FUNDS FROM SOUTHLAND CASINO-RACING FOR DISASTER RELIEFE AND CHARITY DAYS (SEE MATERIAL IN PACKET) Mayor McClendon asked for permission to distribute the Southland Disaster Relief Funds in the amount of$12,865 26 dollars with 70% being distributed to the Good Neighborhood Center and 30% being distributed to the Delta Neighborhood Action Council. Mayor McClendon asked for a roll call vote. Deputy City Clerk, Patricia Lane called role. The roll call vote was as follows, Yes: Council Member Catt, Harris, Holt, Hutchinson, Murray, Croom, Pulhaum and Wheeless No: Council Member None Abstention: Council Member Robinson Absent: Council Member Mondy With 8 yes votes, 0 No vote 1 Abstention vote and 1 Absent vote. permission to distribute Southland Disaster Relief funds passed. PERMISSION FOR MAYOR MCCLENDON TO SIGN CONTRACT WITH QUALITY FLOORING FOR THE RENOVATION TO THE ROBERTA JACKSON NEIGHBORHOOD CENTER Council Member Call made the motion, seconded by Council Member Croom to give Mayor McClendon permission to sign the contract with Quality Flooring. Upon voice vote, the voting was unanimous. PERMISSION FOR MAYOR TO SIGN A CONTRACT WITH BARNES AND BOWER TO BUILD A NEW LIBRARY NOT TO EXCEED 4.500,000.00 Council Member Catt made a motion, seconded by Council Member Halt to correct an action from the July 18, 2019 Council Meeting and accept the permission to sign the request as amended. Discussion followed: Council Member Catt said under permission request permission was given to change the name from Hoshall of Arkansas PLLC to Barnes and Bower, but permission was not given to sign the agreement with Barnes and Bower as amended. Upon voice vote, the voting was unanimous to approve. COMMITTEE REPORTS. PUBLIC WORKS: Council Member Robinson reported that the Public Works Committee met on Wednesday, July 24, 209. Mayor McClendon requested a meeting with Public Works to discuss concerns with trash pickup. Mayor McClendon presented a proposal for the Public Works Department Titled Operation Clean City for approval The curbside trash pickup schedule will be as follows: Monday Ward 1, Tuesday Ward 2, Wednesday Ward 3, Thursday Ward 4 and Friday Ward 5. Curbside garbage carts were also discussed and funds to purchase carts for each resident at the cost of$275,000.00 dollars for 6,500 garbage cans. Funds will be coming from Capital Outlay by the end of the year or first of the next year. The Public Works Commission approved the proposal BUDGET COMMITTEE: Council Member Catt presented the Budget Committee report. Budget presentations were made to the Council and were amended and approved. They will meet the fourth Thursday of August with an update information from Human Resource until completed. Council Member Call:thanked Council for their support. UTILITY COMMISSION: Council Member Pulliaum presented the Utility Commission report. The west Memphis Utility Commission met in regular session on July 11, 2019 at 8:30am. Safety Director Brett Sims reported that there was 17 days since last recordable injury, 639 days since last lost time injury and 3 recordable injuries year to date. General Manger Todd Pederson presented the personnel update. There have been no resignations and no new hires for the month of May. The utility office currently has 15 open positions. The next item was approval of vehicle pricing for Engineering Department. Mr. Pederson recommended the Bale Chevrolet bid in the amount of $21, 290.00 dollars. The motion passed unanimously. The Commission also approved to refer Small Wireless Communication Facility Regulation Ordinance for the City Council. AIRPORT COMMISSION: Council Member Croom presented the Airport Commission report. Cleaning of the Airport runway has been completed, The run way remarking is scheduled to begin the week of July 22, 2019 and it will require the runway to be closed for two days. The Commission agreed to offer a five-year lease to McNeely Air for hangar number 1. APPOINTMENTS: None ANNOUNCEMENTS: Council Member Catt announced that there will be a Fire Commission meeting immediately following the Council Meeting. Council Member Mondy announced that he has been on the Police Commission for approximately four years and the Chairman for three years, Council Member Mondy said that he and the Police Commission have done everything in their power to try and give the Police Department everything they need and realized that they are essential to the City of West Memphis. Council Member Mondy said that the Police Department has done a great lob and he appreciates them for their hard work. Council Member Mondy felt it was the Commissions responsibility to recommend raises for the Police Department and the Fire Department in order to retain them. Council Member Mondy thanked them again for their hard work Council Member Pulliaum said he would like Council to look into the contract for security for the School District and Southland Gaming Security. Council Member Pulliaum questioned why officers Captain and above were not permitted to work overtime. Mayor McClendon announced the 171h annual Senior Citizen Day Program. The Theme will be. "Let the Good Times Roll. "The event will be Wednesday August 7, 2019 from 10:00 am to 3:30 pm at the Eugene Civic Center headed by Mr. Maurice Blair. Mayor McClendon announced that there would be a Back to School Rally at Mount Olive Church and the Wonder City Boy's Club Saturday August 10, 2019 from 1000 am to 3'30 pm CITIZEN REQUEST: Mr James Stokes a resident of 2014 E. Jackson West Memphis, Arkansas came before Council to address concerns with the interaction between the West Memphis Police Department and Church leadership. It was suggested to Mr. Stokes that he meet with City Attorney, Stephenson and Mayor McClendon to address his concerns. Having no further business to come before the City Council, Council Member Pulliaum moved, seconded by Council Member Croom to adjourn. Upon voice vote, the voting was unanimous. The meeting adjourned at 2:40 p m. PASSED and APPROVED this 15" day of August 2019 yfv � o�— ATTEST: - � MARCO MCCLENDON, MAYOR J C GRAY, CITY CL RK i Minutes prepared by, Patricia Lane, Sr. Deputy City Clerk J J MUNICIPAL LEASE PURCHASE r DEVELOPMENT AGREEMENT LTHIS DEVELOPMENT AGREEMENT ("Development Agreement") entered into by and between Public Private Partnership Corp. dba The P3 Group IV("P3G") and City of West Memphis, AR ("Agency"), on the last date set forth below by the authorized representatives of the parties hereto (the "Parties'), upon their execution of this Agreement. RECITALS WHEREAS, the Agency desires to enter into a lease purchase agreement with a Special Purpose Entity ("SPE") established by P3G that will acquire land, design, build, and finance a municipal court house; a police substation; and (2) two fire stations (the "Project") on land that shall be acquired by the SPE which shall be subject to approval by the Agency (the "Sites"). WHEREAS, it is anticipated that the Project will be financed through a lease (the "Lease")and lease-purchase structure utilizing tax exempt bonds(the"Bonds")whereby the SPE will enter into a development agreement with P3G to design, build, and finance the Project The SPE will lease purchase the Site and all improvements thereon to the Agency (the "Lessee"), The Agency will retain the right, among other rights, to consent to the design and cost of the Project (in such capacity. P3G shall be hereinafter referred to as the "Developee'); WHEREAS,P3G agrees to contract with CORE.Construction Services, LLC (CORE) as its Program Manager - Construction Manager (PMCM) and CORE's PMCM fee shall be added �Y to the total project cost and financed with all other Project costs. CORE shall receive a 5%PMCM fee plus a 1% pre-construction services fee that shall be paid at the closing of the financing from the project fund for pre-construction services; and the balance prorated and paid consistent with the construction draw schedule; WHEREAS, the construction costs of the Project shall be approved by the Agency (the "Costs'); WHEREAS, it is anticipated that the Project costs will be paid from bond financing proceeds procured by 1`3G; WHEREAS, the Project will be leased back to the Agency upon completion. and at the end of the term of such Lease, the Project will be conveyed to the Agency for$1 (One Dollar); WHEREAS, in consideration for such services to be provided by P3G as provided for herein, the Agency has agreed to cause to be paid to P3G certain fees and reimburse certain expenses which shall be included in the project financing. NOW, THEREFORE, in consideration of the mutual covenants and conditions set forth herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: Section 1. Defined Terms. I I - MUNICIPAL LEASE PURCHASE DEVELOPMENT AGREEMENT Section 1.1 Terminology. Unless the context of this Agreement clearly requires otherwise, (a) pronouns, wherever used herein, and of whatever gender, shall include natural persons and corporations and associations of every kind and character, (b) the singular shall include the plural wherever and as often as may be appropriate; (c) the word "includes or"including"shall mean"including without Imitation% (d) the word"or'shall have the inclusive meaning represented by the phrase"and/or"; (e) the words "hereof," "herein," "hereunder," and similar terms in this Agreement shall refer to this Agreement as a whole and not to any particular section or article in which such words appear. 'l he section, article and other headings in this Development Agreement are for reference purposes and shall not control or affect the construction of this Development Agreement or the interpretation hereof in any respect Artiele, section and subsection and exhibit references are to this Development Agreement unless otherwise specified All exhibits attached to this Agreement constitute a part of this Agreement and are incorporated herein All references to a specific time of day in this Agreement shall be based upon Central Standard Time (or the other standard of measuring time recognized in Jackson, Mississippi). Section 1.2 Definitions The following terms shall have the following meanings "Affiliate" means with respect to a designated Person, any other Person that, directly or indirectly,controls, is controlled by or is under common control with such designated Person. For purposes of this definition, the term `control" (including the correlative meanings of the terms "controlled by"and"under common control with").as used with respect to any Person,means the possession, directly or indirectly, of the power to direct or cause the direction of the management policies of such Person, whether [lurough ownership of voting securities or by contract or otherwise. "Agreement" means this Development Agreement "Anolicable Laws means all present and future laws, statutes, regulations, ordinances, codes, resolutions and orders of any Governmental Authority, other than Agency Regulations. "Bond Documents" means the Indenture, the Lease Agreement and such other documents executed and delivered in connection therewith. "Bonds" are defined in the Preamble to this Agreement. "Agency"means as defined in the Preamble ` "Agency Rte' means all present and future rules, policies, procedures and *`1r regulations of Agency pertaining to Agency facilities and property as amended from time to time, 21 - MUNICIPAL LEASE PURCHASE ( DEVELOPMENT AGREEMENT jr and all other regulations as set forth in Agency's publications or otherwise disseminated as official Agency rules or policies pertaining to such matters "Construction Contract" means that the construction contract to be entered into by and between P3G, and/or Lessee and/or the G/C. "Developer.Functions" means the payment of the Development Costs and any acts necessary and appropriate to be undertaken on behalf of the Agency or the Lessee for the (i) development, design and construction of the Project in accordance with the terms of the Project Documents, (ii) obtaining of financing for the development, design and construction of the Project, and (iii) the supervision of the development, design and construction of the Project and the performance of the GC and AE. "Pre-Development Costs"means any and all costs and expenses incurred by the Developer in connection with planning the construction project before the actual construction begins, including, but not limited to; architectural, engineering, legal, consultants, and underwriting services. "Development Costs" means any and all costs and expenses incurred by Developer in EE connection with (i) ground lease of the Land upon which the Project will be developed; (ii) L issuance of all permits required for the development and construction of the Project, (iii) all hard and soft costs incurred in the construction of the Project in accordance with the Plans and Specifications, (iv) equipping the Project with all necessary and appropriate fixtures, furniture, equipment and articles of personal property (v) obtaining all required certificates of occupancy for the residence hall units and other space in the Project, (vi) payment of the Development Fee, (vii) financing the construction of the Project accordance with the provisions of the Project Documents, (including the interest and all other costs associated with the temporary construction financing), and (viii) payment of any other costs or expenses necessary to achieve Project Completion. "Force Ma'eure" means any (a) act of God, landslide, lightning, earthquake, hurricane, tornado, blizzard and other unusual or unseasonable adverse and inclement weather, fire, explosion, flood, act of a public enemy, war, blockade. insurrection, riot or civil disturbance; (b) labor dispute, strike, work slowdown or work stoppage; (c) order or judgment of any Governmental Authority or delay by any Governmental Authority to issue building or occupancy permits within the time frame normally required by such Governmental Authority,if not the result of willful or negligent action of P3G; (d) adoption of or change in any Applicable Laws after the date of execution of this Agreement; (e) any wrongful acts or omissions by Agency or Lessee which cause delay or other damage; or (f) any other similar cause or similar event beyond the reasonable control of P3G. "G/C" or "General Contractor" means the general contractor selected by P3G and consented to by the Agency to construct The Project. 31 MUNICIPAL LEASE PURCHASE DEVELOPMENT AGREEMENT "Governmental Authority" means any and all jurisdictions, entities, courts, boards, agencies, commissions, offices,divisions, subdivisions, departments,bodies or authorities of any nature whatsoever of any governmental unit other than Agency (federal, state, county, district, municipality,city or otherwise) whether now or hereafter In existence. "Project"means as defined in the Recitals. "Project Costs" means as defined in the Recitals "_Project Completion" means the date the Project Substantially Completed. "Project Documents" means collectively this Agreement, the Management Agreement, Construction Contract, Project Plans and Specifications, the Project leases and other such documents developed in the scope of the Project reasonably necessary to carry out the development, construction, financing and management of the Project. "_Lease Agreement" means that the Lease Agreement to be executed the Agency and the Lessee. [ "Lessee' means as defined in the Recitals L 'Plans and Specifications" means the final plans. specifications and working drawings approved by Agency and Owner for the construction of the Project. "Projects"means as defined in the Preamble. "Substantially Completed" means Developer and the General Contractor have signed and issued to the Agency and Lessee a certificate of completion for the Project confirming that (a) construction and installation of the facilities and facility equipment on the Land have been substantially completed in accordance with the Plans and Specifications and all Applicable Laws, subject only to minor punch-list items that do not materially interfere with the use of the Project for its intended use and that can reasonably be completed within two (2) weeks after the date of such certificate; (b) all utilities are connected and services are being famished to the facilities: (c) pedestrian and vehicular access to the facilities are available in accordance with the Plans and Specifications. (d) all final inspections have been made and all final certificates, licenses and approvals required under Applicable Laws have been issued by applicable Governmental Authorities; provided, however, that Agency's Representative shall have the right, prior to the issuance of such certificate of completion, to perform a final walkthrough of the Project with Lessee,Developer and the General Contractor and to participate in the preparation of the punchlist of items to be completed and the determination of the time period for completion of such items. Section 2. Obligation to Complete Construction of the Project and to Pay Development Costs in connection with The Project. 41 PI I MUNICIPAL LEASE PURCHASE L DEVELOPMENT AGREEMENT jr The Developer shall commence and prosecute the Developer Functions,including without limitation, complete the construction of the Project or cause the same to be completed in a good and workmanlike manner, free and clear of all mechanics', materialmen's or similar liens in accordance with the Plans and Specifications and shall furnish and equip the Project or cause the same to be furnished and equipped with all necessary and appropriate fixtures, equipment and articles of personal property, including without limitation, those provided for in the Project Documents. The prosecution of Developer is subject to the timely payment when due of each of the Construction Draws (hereafter defined). The Developer shall cause Substantial Completion of the Project to occur within a mutually agreeable timeframe; unless its inability to do so is the result of(i)an event constituting Force Majeure. (ii) delay in construction attributable to failure of the Agency to promptly issue any required approvals under or with respect to the Project Documents or Bond Documents or (iii) any delay in payment of any of the Construction Draws resulting in a slow down or stoppage of work (individually or collectively, the "Excused Delays"). Section 3. Development and Consulting Services. Section 3.1 General Development and Consulting Service. P3G will perform certain services relating to the development of the Project and shall continue to oversee the design, construction and development of the Project, and shall perform the services and carry out the responsibilities with respect to the Project as set forth herein, and such additional duties and responsibilities as are reasonably within the general scope of such services and responsibilities and which are designated from time to time by the Agency. Section 3.2 Development Services for the Pro'ect. The Developer Functions shall consist of the Developer Functions and the duties set forth in this Agreement, including those set forth in subparagraphs (a)-(k) below of this Section 3.2; provided, however, that if the performance of any duty of the Developer set forth in this Agreement is beyond the reasonable control of the Developer, the Developer shall nonetheless be obligated to(i)use its reasonable commercial efforts to perform such duty and(ii)promptly notify Lessee and Agency that the performance of such duty is beyond its reasonable control provided that the Developer shall in any event use its reasonable commercial efforts to cause The Project Completion to occur within the cost and time requirements specified in Section 2 or as otherwise agreed upon by the Parties The Developer has performed or shall perform the following: (a) Negotiate and cause to be executed on behalf of the Agency or the Lessee any agreements for the leasing of the real property, architectural, engineering, testing or consulting services for the Project, and any agreements for the construction of any improvements or tenant improvements to be constructed or installed by the G/C or the furnishing of any supplies, materials, machinery or equipment therefor, or any amendments. 51 MUNICIPAL LEASE PURCHASE DEVELOPMENT AGREEMENT (b) Perform or caused to be performed appropriate administrative and financial controls for the design, development and construction of the Project, including but not limited to: A. coordination and administration of the construction of the Project through the use of the ASE,the GSC,and other contractors, professionals and consultants employed in connection with the design or construction of the Project; B administration of the Construction Contract and enforcement of all obligations of the A/E, G/C and such other consultants, contractors and subcontractors under their respective contracts; C. participation in conferences and the rendering of such advice and assistance as will aid in developing economical, efficient and desirable design and construction procedures, D. the selection of subcontractors and suppliers; h. the submission of any suggestions or requests for changes which could in any reasonable manner improve the design, efficiency or cost of the Project; F. applying for and maintaining in full force and effect any and all governmental permits and approvals required for the lawful construction of the Project; G. complying with all terms and conditions applicable to the Project contained in any governmental permit or approval required or obtained for the lawfid construction of the Protect, or in any insurance policy affecting or covering the Project, or in any surety bond obtained in connection with the Project. H. furnishing such consultation and advice relating to the Project as map be reasonably requested from time to time by the Lessee or Agency within the scope of the services described herein; 1. keeping the Lessee and Agency fully informed on a regular basis of the progress of the design and construction of the Project, including the preparation of such reports as are provided for herein or as may reasonably be requested by the either and which are of a nature generally requested or expected of construction managers or similar owners representatives on similar projects; I giving or making instructions, requirements, approvals and payments provided for in the Project Documents and agreements with the A/E, G/C, and other contractors, professionals and consultants retained for the Project; and K. filing on behalf of and as the attomey-in-fact for the Agency any notices of completion required or permitted to be filed upon the completion of any improvements 61 _ . Te MUNICIPAL LEASE PURCHASE t DEVELOPMENT AGREEMENT ■`✓ and taking such actions as may be required to obtain any, certificates of occupancy or equivalent documents required to permit the occupancy of the Project (e) Inspect the progress of the course of the construction of the Project including verification of the materials and labor being furnished to and on such construction so as to be fully competent to approve or disapprove requests for payment based upon work completed from time to time (the "Construction Draws') made by the A/E and the G/C, or by any other parties with respect to the design or construction of the Project, and, in addition,to verify that the construction is being carried out substantially in accordance with the Project Documents or, in the event that the construction is not being so carried out, to promptly notify Lessee and Agency; (d) Perform on behalf of the Agency all of Developer's obligations with respect to the development, financing, design and construction of the Project contained in the Project Documents. (e) To the extent requested to do so by the Lessee or Agency prepare and distribute a critical path construction schedule, and periodic updates thereto as necessary to reflect any material changes or other design or construction cost estimates, including monthly progress reports on the quality, progress and cost of the construction and recommendations as to the drawing of funds from any loans or bond funds arranged by the Lessee in coordination with P3G to cover the cost of design and construction of the Project. (f) Obtain and maintain insurance coverage for the Project, the Lessee and the Agency, at all times until final completion of the construction of the Project, in accordance with the insurance requirements of the Management Agreement,which insurance shall include general public liability insurance covering claims for personal injury, including but not limited to bodily injury, or property damage, occurring in or upon the Project (g) Comply with all applicable present and future laws, ordinances, orders, rules, regulations and requirements (hereinafter in this subparagraph (vii) called -laws") of all, federal, state and municipal governments, courts, departments, commissions, boards and offices, any national or local Board of Fire Underwriters or Insurance Services Offices having jurisdiction in the county in which the Projects located or any other body exercising functions similar to those of any of the foregoing, or any insurance carriers providing any insurance coverage for the Developer or the Project, which may be applicable to the Project or any part thereof. The Developer shall likewise ensure that all agreements between the Developer and independent contractors performing work in connection with the Project shall include the agreement of said independent contractors to comply with all such applicable laws and insurance requirements. ` (h) Assemble and retain all contracts, agreements and other records and data as may be necessary to carry out the Developer Functions hereunder. (i) Use its reasonable commercial efforts to accomplish the timely completion of the Project accordance with the Plans and Specifications of the Project. 71 - MUNICIPAL LEASE PURCHASE DEVELOPMENT AGREEMENT L �) Perform and administer any and all other services and responsibilities which are reasonably requested to be performed by the Agency which are within the general scope of the services described herein. (k) Upon receipt of monthly invoices or proper draw requests from the contractors, materialmen and providers of furniture, fixtures and equipment,prepare and submit to the Trustee on behalf of the Agency(with a copy to the Lease and Agency)monthly applications for payment pursuant to the Bond Documents. With each application for payment. Developer shall submit such other evidence reasonably required to demonstrate the amounts claimed are then payable. At the same time as Developer submits a monthly application for payment to the contractors and materialmen, Developer shall also submit (with a copy to the Lessee and Agency) an application for payment of other The Project costs consistent with the Project budget which the Project has incurred for the previous month including architect and engineering fees, legal fees, reimbursable costs and expenses and other similar The Project expenditures. Section 4. Developer Fee and Other Compensation. Section 4.1 The Proiect. (a) The developers fee (the "Developer Fee") on the Project shall be equal to (S%) Eight Percent of the actual Project Costs which shall be included with the Project financing and become due and payable as follows 1% is due at the closing of the Project financing for pre- construction services and the balance of such fee being paid out of the project fund in a prorated amount consistent with the construction draw schedule. In addition to the Developer Fee, P3G shall be reimbursed for all pre-development legal, consultants, and travel costs related to the respective project, not to exceed $30,000, and such expenses shall be included in 'I he Project's budget, financed into the Project Costs,and paid in frill from the project fund at the Project closing. Agency agree to reimburse all pre-development costs if the project is canceled after being approved to commence by Agency. Section 5. Limitations and Restrictions. Notwithstanding any provisions of this Agreement, the Developer shall not take any action, expend any sum, make any decision, give any consent, approval or authorization,or incur any obligation with respect to any of the following matters unless and until the same has been approved or waived by Lessee and Agency as applicable. (a) Change in the scope of the Projects, material changes in the Plans and Specifications for the Project without the express written consent of the Agency. (b) Any proposed material change in the work of the construction of the Project,in the ! Project Documents, or in the Developer Function therefore as previously approved by Owner and (L Agency, or any other change which would affect the design, cost, value or quality of the Project, 81 MUNICIPAL LEASE PURCHASE DEVELOPMENT AGREEMENT except for such matters as may be expressly delegated in writing to the Developer by Lessee and Agency, at such party's expense (c) Approval of the Project Lease Agreement and any modification or amendment thereto, without the express written consent of the Agency. Section 6. Accounts and Records. (a) The Developer, shall cooperate and take the necessary steps to execute and file when due all reports required by the Project Documents and keep such books of account and other records as may be required by the Agency or the Agency, including, but not limited to, records relating to the costs of construction and construction advances. Copies of all Construction Draws shall be mailed to the Lessee and Agency within Z business days of their receipt by Developer. The Developer shall keep vouchers, statements, recerpted bills and invoices and all other records, in the form approved by the Lessee and the Agency.covering all collections,if any,disbursements and other data in connection with the Project prior to the Completion. All accounts and records relating to the Project, including all correspondence, shall be surrendered to the Agency, within a reasonable time upon demand. (b) Prior to The Project Completion the Developer shall cooperate with the Agency to facilitate the timely preparation by the Agency of such reports and financial statements as the Agency is required to furnish pursuant to the Lease All books and records prepared or maintained by the Developer shall be kept and maintained at all times at the Developer's principal place of business as set forth below in Section 19. Section 7. P3G Representations and Warranties. Developer hereby represents and warrants and covenants to Agency that. (a) The execution, delivery and performance of this Agreement has been duly and validly authorized by all necessary action, corporate or otherwise, on the part of Developer; (b) The execution, delivery and performance of this Agreement will not result in a breach or violation of or a default under Developer's articles of incorporation or under any other agreement or instrument by which Developer is bound, or of any law, order or regulation; (c) Developer is a corporation duly organized, validly existing and in good standing under the laws of the State of Arkansas and the and is duly qualified to do business in the state in which the Projects are located; (d) There is no claim, action, litigation,judgment, ruling, suit or proceeding,pending, or to the best of Developer's knowledge,threatened, including, without limitation, bankruptcy or other insolvency proceedings, by or against Developer which, if determined adversely to Developer, would adversely affect Developer's ability to perform its obligations hereunder; 91 : - ` MUNICIPAL LEASE PURCHASE DEVELOPMENT AGREEMENT (e) Neither Developer nor any affiliate of Developer will purchase any of the bonds issued under the Bond Documents; Section 8. Applicable Law. 'This Agreement, and the application in interpretation hereof, shall be go�emed by and construed in accordance with the laws of the State of Arkansas. Section 9. Binding Agreement, 'I his Agreement shall be binding on the parties hereto, their heirs, executors, personal representatives, successors and assigns. Section 10. Beadings. All section headings in this Agreement are for convenience of reference only and are not intended to qualify the meaning of any section. Section 11. Terminology. All personal pronouns used to this Agreement, whether used in the masculine, feminine or neuter gender, shall include all other genders, the singular shall include the plural, and vice versa as the context may require Section 12. Benefit of Agreement. The obligations and undertakings of the P3G set forth in this Agreement are made for the benefit of the Agency and shall not inure to the benefit of any creditor of the Projects, notwithstanding any pledge or assignment of this Agreement or any rights hereunder. Section 13. No Other Contractual Relationship. Nothing herein shall create a contractual relationship between the Lessee or Agency and any person or entity other than the P3G. Section 14. Limitation on Developer Authority. Notwithstanding anything herein to the contrary,any authority given to P3G to act as agent or on behalf of Lessee shall be limited such that under no circumstances shall P3G have the authority to obligate the Agency for any liability beyond its interest in the Projects or the Bonds. 4 Section 15. Indemnity Agreement. M 101 MUNICIPAL LEASE PURCHASE DEVELOPMENT AGREEMENT The P3G will defend, indemnify and hold the Agency harmless from any and all liability, claim of liability, damages, injuries, costs(including reasonable attorney's fees)or expense in the event of any breach of P3G's representations hereunder or any breach of its obligations hereunder. Section 16. Other Agreements. [This section intentionally left blank] Section 17. Confidentiality. For the purposes of this Agreement,"Confidential Information"shall mean all information or data,in whatever form,transmitted by the one Party to the other Party(either directly or through representatives)in connection with the Projects,whose confidential status is identified by the clear labeling as such, or is otherwise obvious in nature; provided that it shall not be deemed to include information for which it can be demonstrated by written record (i) is or subsequently becomes publicly available without the breach of an obligation of confidentiality owed to the disclosing party, (ii) was disclosed to the recipient by a third party; provided such third party is not bound by or in breach of a confidentiality agreement relating to such Confidential Information, or (iii) was already in the possession of the recipient prior to its receipt from the disclosing party or is developed by the recipient independent of any disclosure hereunder as evidenced by written records Agency Information: P3G acknowledges and accepts that, in performance of its services under the terms of this Agreement, P3G may have access to Proprietary Information or Confidential Information which may be owned or controlled by the Agency and that the disclosure of such data or information may be damaging to the Agency or third parties. As such, P3G agrees that all information provided or otherwise disclosed by the Agency to P3G be held in confidence and used only in the performance of its obligations under this Agreement; provided that P3G may disclose Confidential Information to (i) its agents, employees, shareholders, directors, any P3G- Related Entity,consultants,lenders and other financing parties and their consultants and the P3G's team members who need to know the Confidential Information for purposes of its or their work in connection with the Projects,or(ii) if required by law, any court,tribunal, authority,regulatory body or stock exchange, to any regulators or examiners P3G shall exercise the same standard of care to protect such information as a reasonably prudent P30 would to protect its own proprietary or confidential data. P3G's Information: The Agency shall hold and treat all Confidential Information in confidence and shall ensure that it, its employees and agents use any Confidential Information only in connection with the Project. The Parties understand that all the material provided or produced under this Agreement may be subject to the Open Records Act, and that in the event of a request to the Agency for disclosure of such information, the Agency shall advise P3G of such r request in order to give P3G the opportunity to object to the disclosure of any of its proprietary or L confidential material. In the event of the filing of a lawsuit to compel such disclosure,the Agency will tender all such material to the court for judicial determination of the issue of disclosure and 11l ; - MUNICIPAL LEASE PURCHASE DEVELOPMENT AGREEMENT P3G agrees to intervene in such lawsuit to protect and assert its claims of privilege and against disclosure of such material or waive the same. P3G further agrees to defend, indemnify and save and hold hairiness the Agency, its officers, agents and emplovees, from any claim, damages, expense, loss or costs arising out of P3G's intervention to protect and assert its claim of privilege against disclosure under this Section including, but not limited to, prompt reimbursement to the Agency of all reasonable attorney fees, costs and damages that the Agency may incur directly or may be ordered to pay by such court Section 18. Notices. Notices, bills, invoices or reports required by this Agreement shall be sufficiently delivered if sent in the United States mail, postage prepaid, to the Parties at the following addresses: To: Arm Dee Brown, President & CEO Public Private Partnership Corp. P3 Group IV 2670 Union Ave Extended, Suite 915 Memphis, 1'N 38112 to: Attn: Mayor Marco McClendon City of West Memphis, Arkansas 205 South Redding Street West Memphis, AR 72301 Section 19. Survival of Certain Contract Provisions. the parties understand and agree that all terms mid conditions of this Agreement, together with the exhibits and attachments hereto, which, by reasonable implication, contemplate continued performance or compliance beyond the termination of this Agreement,(by expiration of the Term or otherwise), shall survive such termination and shall continue to be enforceable as provided herein 'Che Agency's payment obligations shall survive until such obligations have been satisfied. Section 20. Disputes All disputes between the Agency and P3G regarding this Agreement, or the breach thereof,shall be settled by arbitration administered by the American Arbitration Association under its Construction Industry Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. 12 MUNICIPAL LEASE PURCHASE DEVELOPMENT AGREEMENT Signature Page IN WITNESS WHEREOF, the parties, intending to be legally bound, have caused their proper and duly authorized Officers to execute and deliver this agreement as of the day and year listed below. Public Private Partnership Corp. City of West Memphis, AR The P3 Group IV ee Brown, A D e Marco McClendon Date Presiden'C ' Mayor 131 MST"* ST MEMPHIS '' • ARKANSAS WEST MEMPHIS PLANNING & DEVELOPMENT 205 South Redding-P.O. Box 1728-West Memphis, Arkansas •72303-1728•(870)732-7620 PLANNING COMMISSION RECOMMENDATIONS Wednesday, lune 26, 2019,at 3:30 PM City Council Chambers 205 South Redding Street,West Memphis, Arkansas 1. SUBDIVISIONS: A. Lot Split Plat Steve Lackey, 605 Roosevelt- Application Case#SD-05.19—This case is being presented by Steve Lackey. represented by Jim Smith. This is a two-lot subdivision containing 1.08 acres. It is zoned R-1, Single Family Residential. After review and discussion, the Planning Commission recommended to approve with conditions the Subdivision Plat for 605 Roosevelt. 11. SPECIAL USE PERMIT: A. Special Use Permit Tower Ventures 825 N College Blvd. Application CS# SUP-01-19—This case is being presented by the property owner The City of West Memphis, represented by Lou Katzerman of Tower Ventures, LLC, for the property located at 825 N. College Blvd, and contains 49.32 acres. The property is zoned R-1 Single Family Residential. After review and discussion, the Planning Commission recommended to approve with conditions the Special Use Permit for 825 N. College Blvd. RECEIVED City Clerk's Off'Ce B �� � Michael, I have attached the revised agreement with the following revisions Section 4.1 provides that in addition to the 8%fee, "P3G shall he reimbursed for all legal,consultants and travel costs related to the respective project." Do we have an approximate amount of these costs?Can those costs be capped?(Changed to:P3G shall be reimbursed for II pre-development I gal consultants,and travel costs related to the respective poi ct not to exceed$30,1100— Section 30 000.....Section 7(e)ends with"and" ...I was not sure if there was more language in that particular section ""`TYPO (removed) Section 8.The City will require Arkansas as the applicable law."'AGREE(chaff) Section 18:We probably need a person listed for notices on behalf of the City whether it is the Mayor or someone he designates "'AGREE(listed Mayor McClendonl. Dee Brown,Affiliate Broker, MBA,LEED GA President/CEO M (901)461-3248 P:(800)896-5502 F-(901)297-4132 www thep3g rouoinc com www commeraalspacea ny I�_com REALTORS ) DEVELOPERS I CONSULTANTS 10 MISSISSIPPI The P3 Group Inc Realtors' 460 Briarwood Or,Suite 400 lackson,MS 39206 TENNESSEE The P3 Group It, Inc., Realtors° 2670 Union Ave Extended,Suite 915 Memphis,TN 38112 GEORGIA The P3 Group Realtors®, Inc. 3620 Piedmont Rd NE,Suite B Atlanta,GA 30305 ARKANSAS Public Private Partnership Corp The P3 Group Realtors® 301 President Clinton Avenue B Little Rock,AR 72201 LOUISIANA The P3 Group III, Inc 41 201 Saint Charles Ave New Orleans, LA 70170 * CITY OF WEST MEMPHIS '• , A R K A N S A S WEST MEMPHIS PLANNING & DEVELOPMENT 205 South Redding-P.O. Box 1728-West Memphis, Arkansas-72303-1728•(870)732-7620 PLANNING COMMISSION RECOMMENDATIONS Wednesday, July 31,2019, at 3:30 PM City Council Chambers 205 South Redding Street, West Memphis, Arkansas 1. SUBDIVISIONS: A. Subdivision- Replat of Lot 2 Mid-America Center Subdivision-Family Dollar Dr: Application Case#SD-06-19- This case is being presented by The Cay of West Memphis, represented by Jim Smith. It is zoned 1-1, Limited Industrial District Approval is subject to the following criteria: 1. Proper execution of all Certificates; 2. Installation of grading and drainage improvements as required by Department of Public Works; 3. Approval of the improvement plans by the West Memphis Utility Department, as to easements; 4. Installation of storm water management requirements and other improvements, as required by the City Engineer. After review and discussion, the Planning Commission recommended to approve with conditions the Replat of Lot 2, Mid America Center Subdivision. 11. SPECIAL USE PERMIT: �, IV Special Use Permit- Tobia Fuller,802 Auburn Application CS #SUP-02-19 � i This case is being presented by the property owner Tobia Fuller, for the property located at 802 Auburn, and contains 1.12 acres.The property is zoned R-1 Single Family Residential. After review and discussion, the Planning Commission unanimously recommended to refect the Special Use Permit for 802 Auburn. RECEIVED City Clerk's Office Date/Timeq q lrl 9.3c)prJ�; kd c�