03/17/2022 PLEASE TURN OFF CELL PHONES
AGENDA
WEST MEMPHIS CITY COUNCIL
MARCH 17,2022
PRAYER:
PLEDGE OF
ALLEGIANCE: V F W
CALL TO ORDER:
ROLL CALL:
BID OPENINGS: WEST MEMPHIS UTILITIES PUMP STATION #3 AND
PUMP STATION #4 REHABILITATION AND COMMON FORCE
MAIN
MINUTES: APPROVE OR CORRECT MINUTES OF MARCH 3,2022
OLD BUSINESS:
ST MEMPHIS
NEW BUSINESS: R-1 A FIRE DEPARTMERESOLUTIONNT TRAINING FACILITY U"HE EASON-LANG
TRAINING FACILITY OF WEST MEMPHIS"
0-1 AN ORDINANCE WAIVING COMPETITIVE BIDDING FOR
THE PURCHASE OF BODY CAMERAS FOR THE WEST
MEMPHIS POLICE DEPARTMENT TO BE PROVIDED BY
MOTOROLA SOLUTIONS AND AUTHORIZING THE MAYOR
TO SIGN THE MASTER CUSTOMER AGREEMENT,AND FOR
OTHER PURPOSES
PERMISSION
REQUEST:
COMMITTEE
REPORTS:
APPOINTMENTS: WEST MEMPHIS UTILITY COMMISSION
PRESENTATIONS: MAYOR MCCLENDON
ANNOUNCEMENTS:
CITIZEN REQUEST:
ADJOURNMENT:
MINUTES
WEST MEMPHIS CITY COUNCIL
March 17, 2022
A regular meeting of the West Memphis City Council was held on Thursday, March 17,
2022, at 5:00 p.m. in the City Council Chambers at City Hall 205 S. Redding. West
Memphis, Arkansas.
Invocation was given by Councilor Harris, followed by the Pledge of Allegiance led by
Councilor Croom. Mayor Marco McClendon called the meeting to order at 5:00 p.m. City
Clerk, James Pulliaum called the roll.Those present were Mayor Marco McClendon, City
Attorney Michael Stephenson, City Clerk, James Pulliaum, City Treasurer, Charlie
Suiter Jr., and Councilors:Tracy Catt,Wayne Croom, Helen Harris,James Holt. Melanie
Hutchinson, Lorraine Mohammed, Willis Mondy, David Murray, and Charles Wheeless
Present by Zoom was Gheric Bruce. Also present was City Finance Director, Tori Perry
and Evening Times Reporter, John Rech. Quorum being present Mayor, Marco
McClendon proceeded with the meeting.
BID OPENING: OPENING BIDS FOR PUMP STATION #3 AND #4
REHABILITATION AND COMMON FORCE MAIN
Councilor Mondy made the motion, seconded by Councilor Croom to accept the bids
as presented and to refer them back to administration for distribution. Upon voice
vote, voting was unanimous. Councilor Croom asked for Utility Manager, Todd
Pedersen to come forward. Councilor Croom asked if they had a time for when the
project would take place. Mr. Pedersen said if they look at the bids there is a big
discrepancy on the bids, and they are reviewing the two bids that they did receive
closely. They have scheduled a special called meeting of the Utility Commission for
next Tuesday March 22, 2022, if everything works out, they hope to be accepting the
lowest bid and they will be starting the process of getting the contracts together. Mr.
Pederson said he was not going to give a period on when they will be able to start
because supply chain and product availability can be questionable, but they are
hoping to have the project completed by the end of the year. Councilor Croom asked
what he thought the disruption would be in the neighborhoods. Mr. Pedersen said he
expected it would be minor, most of the work will be done along the ten-mile Bayou
and then they will be doing the pump stations once the force main is built. Potentially
there could be some minor disruption due to construction along Lehr Street from
Balfour down to Ross it is just dependent on how the contractor chooses to do the
work. Councilor Catt asked if this was one aspect of the plan. Mr. Pedersen said it
was. They are under the Administrative Order of ADQ they must comply by December
31, 2023, and if necessary, because of supply chain and availability of material they
might have to go back and ask for an extension they will be constantly monitoring it
and adjust the plan as need be.
MUNUTES: APPROVE OR CORRECT MINUTES OF March 3, 2022
Councilor Catt made the motion, seconded by Councilor Croom to dispense with the
reading of the minutes of the March 3, 2022, council meeting and to approve them as
submitted. Upon voice vote, voting was unanimous to approve the minutes.
OLD BUSINESS: NONE
NEW BUSINESS:
Councilor Mohammed made the motion, seconded by Councilor Catt to read R-1, 0-1,
by title only. Upon voice vote, voting was unanimous.
R-1 A RESOLUTION NAMING THE NEW WEST MEMPHIS FIRE DEPARTMENT
TRAINING FACILITY "THE EASON-LANG TRAINING FACILITY OF WEST MEPHIS
City Attorney Stephenson read the resolution by title only. Councilor Mohammed
made the motion seconded by Councilor Mondy to approve the resolution. There being
no discussion. Upon voice vote, voting was unanimous to approve. The resolution was
adopted and assigned No 2270. Mayor McClendon congratulated the Fire Department
and introduced the New Training Officer, Chief Robert Mabe.
0-1 AN ORDINANCE WAIVING COMPETITIVE BIDDING FOR THE PURCHASE OF
BODY CAMERAS FOR THE WEST MEMPHIS POLICE DEPARTMENT TO BE
PROVIDED BY MOTOROLA SOLUTIONS AND AUTHORIZING THE MAYOR TO SIGN
THE MASTER CUSTOMER AGREEMENT, AND FOR OTHER PURPOSES
City Attorney Stephenson read the ordinance by title only for the FIRST time. Councilor
Catt made the motion, seconded by Councilor Murray to suspend the rules, and place
the ordinance on its second reading. Upon voice vote, voting was unanimous. City
Attorney Stephenson read the ordinance by title only for the SECOND time. Councilor
Catt made the motion, seconded by Councilor Croom to further suspend the rules, and
place the ordinance on its third reading. Upon voice vote, voting was unanimous. City
Attorney Stephenson read the ordinance by title only for the THIRD and FINAL time.
Councilor Catt made the motion, seconded by Councilor Mondy to approve the
ordinance. Upon voice vote, voting was unanimous. Councilor Bruce asked if they knew
how many cameras they would be getting. Mayor McClendon said all the field officers
would have the body cameras. Joel Johnson explained That they will be purchasing a
total of 26 body cameras 12 will be operational and 12 will be charging, there will also
be 2 extra cameras in the event of damage or loss. Councilor Croom asked if they had a
maintenance agreement. Mr. Johnson said that they have a warranty agreement with
Motorola but when it comes to the body cameras that's kind of a new area and they
might have to expand the service agreement, but that has not been approached. They
have a three-year agreement warranty on the cameras. Councilor Wheeless asked what
happens if they update the system. Mr. Johnson said the cameras are a self-contained
unit and are both body and car cameras and will have an active server that will store all
the footage and they are the newest generation, but should something change, they
would have to reapproach it in the years to come. Councilor Croom asked about the
cost. Mr. Johnson said in his discussion he made it clear that it was imperative that
they come in under budget and they said they were able to do that. Mr. Johnson said
he has an updated quote and the quote received came in under what was budgeted the
issue that he sees right now would be supply issues and he is hoping that they will be
able to get them in a timely manner. Mayor McClendon said if council approves this
ordinance, it will bring our police officers and community together as well keep our
community safe and ensure that our officers are taking care of our citizens. There being
no further discussion the ordinance was approved and assigned No. 2600
Councilor Mohammed offered an explanation to Public Works Director, Michael Bonner.
Councilor Mohammed said originally the Public Works Commission had hoped to
present a proposed price increase for City Commercial Dumpsters to the agenda, but
since there is an ordinance in place that would need to be amended first, they have
decided not to add it to the agenda at this time.
Mayor McClendon asked for permission from council to add 5 items to the agenda. $2
million dollars for the Economic Development Project, $2 million dollars for Broadband,
$2 million dollars for AW1N Public Safety, permission to sign the MPO Agreement, and
Distribution of Charity Day money for Mayor Marco McClendon and Councilor Mondy.
Councilor Catt made a motion, seconded by Councilor Hutchinson to add the 5 items
to the agenda. Upon voice vote, voting was unanimous to add the 5 items to the agenda.
Mayor McClendon asked council for their time to fully explain what it is that he is
presenting to them. During the last three years he has placed several projects before
them for their consideration and with each project he and his staff have done their due
diligence to make sure that they can see that they can afford these projects, with each
of these projects they will have some historic things happen in the City of West Memphis
with public works, safety, job creation, eliminating blight and improving the quality of
life for our citizens. On yesterday in their two-hour work session, he placed before
council three projects that he feels would be great for the city these projects have been
well vetted and they met the criteria for this money. They have been blessed by the one-
time funds from ARCA The funds are not coming from the general fund they are federal
dollars, and these projects meet the criteria for their usage, and he is asking for their
support and vote to pass it.
The first item on the agenda is Economic Development and the immediate need to put
in infrastructure. Mayor McClendon said he is referring to the water and sewer at our
1800-acre mega site on the west end of the city of I-40 the investment from these funds
is $2 million dollars and this investment will position the city to land large industrial
projects. The Economic Development Department has been doing everything necessary
to get this site shovel ready this investment is the next essential step, and when you
vote for this investment we will be literally placing the city in the best possible position
to land a large Economic Development Project, perhaps the largest in our city as evident
from surrounding cities like Memphis and Osceola that have both shown us that when
local Government takes bold actions great things happen for the city and region and will
have a positive impact on our economy for decades. The mayor said If you are concerned
about improving Economic Development, Job Creation, and Generational Poverty this
vote can do that. Economic Development Director, Phillip Sorrell came forward to
answer questions. Mr. Sorrell thanked the council for all their past support and
consideration. Mr. Sorrell said this request is to extend the water and sewer to allow
them to develop the certified mega-site and is one of the largest sites in the state and
region, this is mostly due to the support that council has provided over the years in
helping them to do due diligence. They are gaining traction and a lot of interest in the
area, and they have several active projects in the works. Mr. Sorrell said when they are
competing for a project a company will make their decision, select the site and then they
are ready to go. Having water in a timely manner is critical to landing one of these large
projects, they do not want to wait. Mr. Sorrell said water is the most critical, you need
water for construction the sewer is not as critical on day one of the construction, but
sewer takes longer to construct, being able to narrow down the timing of getting water,
sewer and power to the site is critical. There being no further discussion. Mayor
McClendon asked for a roll call vote. City Clerk, James Pulliaum called the roll.The roll
call vote was as follows:
YES: Bruce, Catt, Croom, Harris, Holt, Hutchinson Mohammed
Mondy Murray, Wheeless
NO: None
ABSTENTION: None
ABSENT: None
With 10 yes votes, 0 No votes, 0 Abstention votes, 0 absent votes the motion to approve
Passed.
Mayor McClendon said that Assistant Utility Manager, Ward Wimbish has been running
point on the Broadband study for the city. The City of West Memphis was one of three
cities to receive a grant for Broadband. The results from the study are in and they made
the convincing case that we should use of these funds to transform the way Broadband
is delivered to our city and citizens. With this money we can use $2 million dollars of
these funds to build a backbone of Broadband systems that will do spectacular things
(' in our city , which include running our own system from our city offices, also it will
Limprove our water and wastewater infrastructure for our utility department. This move
alone has the potential to save money that we are spending elsewhere and give us better
control over our own destiny and makes sound fiscal since to run our own system.
However, by creating this broadband infrastructure we will be instilling the foundation
to create our own broadband system that will save every citizen that moves over to
broadband hundreds or in some cases thousands of dollars annually and setting
ourselves up to provide internet service to our entire county that will be profitable for
the city and the City of West Memphis will be become a smart city. Utility Manager,Todd
Pedersen said over a year ago Ward Wimbish and Dewayne Rose wrote a grant to do a
feasibility study of providing broadband to the city and the results came back favorable
and indicated that the citizens of West Memphis were receptive to the idea. Mr. Pedersen
said that this would be potentially helpful to the city in the future but also internally
with our city facilities being able to tie into system. What they are asking is to be able
to start out improving connectivity to the water and sewer system and to public area
sectors in city parks. One of the things that they are looking at is being able to provide
Wi-Fi at every city park so that if our citizens need to, they go to the park and use Wi-
n. Once they do that, they will then have put themselves in position once everything is
designed out to look at other grants to help citizens that need the service that do not
have access. They have not started this yet, but they are looking at the potential to bleed
over into the schools since so many of the schools are near parks in providing
Broadband Wi-Fi accessibility when students are outside the school building. There
being no further discussion. Mayor McClendon asked for a roll call vote. City Clerk,
James Pulliaum called the roll. The roll call vote was as follows:
YES: Bruce, Catt, Croom, Harris, Holt, Hutchinson Mohammed
Mondy Murray, Wheeless
NO: None
ABSTENTION: None
ABSENT: None
With 10 yes votes, 0 No votes, 0 Abstention votes, 0 absent votes the motion to approve
Passed.
Mayor McClendon said the next item was the AWIN radios. The mayor said this project
was critical for public safety. Mayor McClendon said that there are places in the city
where the police and first responders' radio's do not work, and they have complete radio
silence. This is a matter of public safety., if an officer is responding to a call from one of
our citizens and needs back up, the inability to use their radios becomes a matter of life
or death. A yes vote has the potential to save lives and upgrading the communication
system will virtually eliminate radio silence by placing the latest state of the art
communication technology that provides optimum coverage for our men and women
who protect us. These radios will also allow them to communicate with State and County
agencies in surrounding areas in the event of a critical emergency. Mr. Joe Gordon came
before the council to explain the system. Mr. Gordon said he met with the Emergency
Management Director, Dewayne Rose to identify the problems with the current radio's
in use, it was determined that the radios being used by the police department critical
key components were at the end of life, meaning that if you have a failure there are no
parts available to repair them or very few available, which is not the most optimal way
to run a public safety system. They conducted an engineering analysis who did a
portable base coverage of the geographical boundaries of the city there are currently two
sites one at the jail and the other is a new proposed site at the Entergy site, they are
proposing to use the Entergy Tower as the second site, but when you think about a
portable radio an officer wears it on their hip you get body loss, their body absorbs some
of the radio energy. Mr. Gordon said their radios will be able to give them good portable
coverage, also a good public safety grade system requires that they put in two sites. Mr.
Gordon said this is a long-detailed proposal. Mr. Gordon said regarding the financial
part they can use part of the ARCA money for the Public Safety side, and they have a
Municipal Lease Purchase Agreement that covers the rest of it, If the council votes yes
it will probably take one to two months before they can start and then there will be a
contract review, permitting, national environmental protection, state historical and site,
surveys, all police, fire, office of emergency management will all be involved. Once
everything is signed off on, they hope by June or July of next year to have the
infrastructure built and they will ship the radios around that period. Mr. Gordon said it
will be around a fourteen-month project. Councilor Catt said his concern is that they
are booking money that they do not have. Councilor Catt said they are booking money
for repayment off the prediction or projection from a provider. When you're talking about
$66,000 over a twelve month with no assurance that those revenue will come in. His
question to the finance director, treasurer and the mayor is what if the revenue does
not come in as expected and what are their options in bringing it back before council to
deal with the short fall we might expect or not and how would they alter a 5-year lease
agreement to get from under a financial strain and put it on a eight year 10 year based
off the data once it actually starts rolling in, or are we just going to go ahead and make
massive cuts in the 1.3 capital outlay plan to fund the project. Councilor Catt said he
just did not want to see them get into a binding situation. The last thing he wants to
see them do is tie the hands of the administration funding or the department heads to
get into bumping heads because they must cut another $,600,000 thousand out of the
budget to balance the books. He just wants to see them to be able to walk down a path
they are comfortable with. Mayor McClendon said starting at the beginning of the first
council meeting month Director, Rose will give them an update on what grants he has
written for these projects. Councilor Catt said that he would like to see some options on
the table should they get into a situation to deal with the debt structure. Mr. Gordon
said in the lease agreement there is a non-appropriation agreement under item 5 and
Motorola never write agreements where they box their customer into a corner. If they
get to that situation, they would be able to notify them and they will help them figure
out a solution and they will always have options. Mr. Gordon said since they first started
pricing has gone up by 10%, they have managed to accomplish three things. They are
fixing public safety problem, held over 2021 pricing, and hedged against future inflation.
Councilor Mohammed said she liked the fact they will be able interact quickly with
surrounding agencies in an emergency and she is 100%for the project. Councilor Harris
said she would hate for a catastrophe to happen at Southland and them not be able to
aid someone on the 219 floor and responders experience a delay because of
communication problems just to get some assistance. Finance Director, Tori Perry
addressed Councilor Catt's concerns. Ms. Perry said that the revenue from Southland
was a pre booked even not knowing if they were going to receive it or not there is 4.8
million in general fund. They also received additional funds from Southland that they
decided to dedicate it to the Capital Purchases and Debit Repayment even with Covid
going on and them not receiving funds for one month they still were able to meet their
budget amount plus and that was in 2020. In 2021 they exceeded both the 1.3 million
for capital and repayment by $350,000. In her opinion she does understand their
concern but worse case scenario they would have to reduce the capital outlay, but she
did need to inform them that as it stands it must stay at that number because there is
a cap for them to meet the lease agreement now. They did budget $920,000 for capital
purchases in general fund and it must stay that way for the next five years. Mayor
McClendon said that as the legislative body as whole they must make this decision
together and they are all in it together and he will do what is within his power to do to
make this happen. Councilor Catt said they booked $600,000 for next year for capital
outlay and they have spent $300,000 for 2023, that means that department heads need
to understand that if the revenue does not come in as projected, budgets will be
extremely tight to maintain a balanced budget. Councilor Catt said that they may need
to look at different financing or putting up collateral and stretching the debt over a
period of ten years, if necessary, but we must maintain a balanced budget. Treasurer
Suiter Jr. said this will put us at our max. Finance Director, Perry said in the long run
the radios would fall in the capital outlay plan. AWIN would be responsible for the
maintenance update they would only be responsible for the radios as they come up
damaged and there is a potential saving . Mayor McClendon said EMO, Director Rose is
already working on a grant that could possibly pay the for the entire amount of the
radios if it materializes. Mr. Gordon said they have been involved in a study of what is
the real cost in owning a radio system, currently the City of West Memphis owns three
different networks and is a public network safety operator and that is not really the
function of a city with a system like AWIN. Mr. Gordon is asking the city to let them take
on that function. The radios have a life cycle of at least fifteen years and there is a lot of
hidden cost that goes with the people dealing with radios and maintaining them.
Treasurer Suiter Jr. said it would be around 430 radios. Councilor Catt said it would be
roughly $133,000 dollars per year and you would need to set that aside each year for
the depreciation account and we would need to back out of getting rid of the other three
systems so it could end up being only$85,000 dollars a year, but we need to start setting
aside those funds now because they will have to replace the radios at some point and
time and he just wanted to make sure that they were projecting all those cost. Ms. Perry
said the radios would be issued city wide. Councilor Croom said this is a project that is
long overdue and although it is costly it is something that needs to be done.
YES: Bruce Catt, Croom, Harris, Holt Hutchinson, Mohammed
Mondy, Murray, Wheeless
NO: None
ABSTENTION: None
ABSENT: None
Councilor Wheeless originally voted no and later changed his vote to yes.
With 10 yes votes, 0 No votes, 0 Abstention votes, 0 absent vote the motion to approve
Passed.
Councilor Croom made the motion, seconded by Councilor Mohammed to approve the
Master Agreement with AWIN. Upon voice vote, voting was unanimous. Discussion
followed. City Attorney Stephenson said he did want to bring to Mr. Gordon's attention
that he did add a sentence to the agreement regarding service and equipment and
schedule of payment in Exhibit H that said that they would be able to prepay without
penalty. There being no further discussion. Upon voice vote, voting was unanimous to
approve.
PERMISSION REQUEST:
PERMISSION FOR THE MAYOR TO SIGN MPO AGREEMENT WITH PICKERING
FIRM
City Attorney Stephenson said he reviewed the agreement and requested some
changes be made and they have made the changes per his recommendations.
Councilor Croom made the motion, seconded by Councilor Catt to approve the
Mayor signing the MPO agreement. Upon voice vote, voting was unanimous to approve.
PERMISSION TO DISTRIBUTE CHARITY DAY MONEY FOR MAYOR MARCO
MCCLENDON AND COUNCILOR WILLIS MONDY
Councilor Croom made the motion, seconded by Councilor Murray to distribute Mayor
McClendon's Charity Day Funds in the amount of$750.00 to the LR Jackson Girls Club
and $500.00 to the JW Rich Girls Club. Councilor Willis Mondy would like to distribute
$750.00 of his Charity Day money to the LR Jackson Girls Club. Upon voice vote, voting
was unanimous.
COMMITTEE REPORTS:
FIRE COMMISSION: Councilor Lorraine Mohammed presented the Fire
Commission report. The Fire Commission met on Tuesday, March 15, 2022, at 12:00
p.m. The Personnel report: There are currently 2 positions open for firefighter. There
was 1 promotion, Chief Robert Made was promoted to Training Officer, there were no
resignations and no new hires. Vehicle Report: The Fire Department needs a new vehicle
to transport candidates to school the one that they were using broke down and is no
longer operational, currently the candidates are using their private vehicles and the city
is paying for the gas. Chief Derrick Clay said the Front-End Pump that they are using
is 18 years old and NIPA standards states that it cannot have a front-end loader in
operation beyond 15 years old. Engine # 3 is having a lot of maintenance issues and is
currently in the shop, the repairs could cost between $10,000 to $12,000 dollars. The
next oldest engine is 13 years old, and they are having problems with it. Councilor
Mohammed asked about the deadline of May 1, 2022. Chief Clay said Pierce is where
they purchase their front-end pumps from and starting May 1, 2022, the cost to
purchase new pumps will increase 15% to 20%. If they can get approval to purchase a
fire truck, they can eliminate having to pay that added interest, that is why it is so
important to try and get the fire truck approved. Councilor Croom asked about the cost.
Chief Clay it would be around $603,000 to purchase the truck. He did not have the
exact amount, they are working on the quote and when he gets the exact amount , he
will bring it back before council. Councilor Croom said that there are some smaller cities
that use older pumps, and they are still operational. Chief Clay said that is not in line
with NIPA standards and being in line with NIPA standards helps them to maintain their
ISO number 1 rating as well as the money that they spend to keep the apparatus
running every time they break down is throwing away money. Councilor Croom asked
what his expectation was in coming before council today. Chief Clay said they are getting
all the paperwork together and the final cost to purchase a new engine and present it to
council at the next scheduled council meeting, it takes 22 months to build a new pumper
and if they get it approved prior to May 1, 2022, they can avoid the added interest.
Councilor Croom asked about the financial commitment and if they had to pay
something down on it. Chief Clay said all they would need is a purchase order, they
would pay once they receive the pumper, which would be in 2024. Councilor Mohammed
said the Fire Department are also in need of a new ambulance since one was involved
in an accident and is possibly totaled. Building Maintenance: Station# 1 needs repairs
the roof is leaking and has been for a long time they are looking into renovations.
Training: 5 Firefighter attended EMT school, and they have all passed, there are 3
firefighters attending the academy. Eason-Lang building is projected to start this month
and Chief Mabe will be over the facility. EMS: There were 296 EMS calls and EMS
Collections year to date is $50,573.70. Updates: The Fire Department is waiting on their
trial balance budget update from Finance Director, Tori Perry. The West Memphis
promotional ceremony will be March 18, 2022, at 2:00 p.m. at the Eugene Woods Civic
Center. Fire Training at Southland has already begun. Fire Station #5 is scheduled to
open in Mid-April.
PARKS COMMISSION: Councilor Mohammed said the Parks Commission did not
meet because they did not have a quorum, however Parks Director, Lorenzo Parker
passed out quotes for the Hightower and Tilden Rogers Parks renovations, all council
members have a copy of the quotes in their packets
UTILITY COMMISSION: Councilor Murray presented the Utility Commission report.
The Utility Commission met on March 10, 2022, at 8:30 a.m. Safety Director Brett Sims
reported that there were 126 days since last recordable injury, 869 days since last lost
time injury and 0 recordable injuries for the year 2022. Personnel Update: There were
four new hires for the month of February, Utility currently has 7 open positions out of
79 budgeted positions. The commission approved the System Engineer job description
that was presented by Todd Pedersen.A special called meeting was scheduled for March
22 to discuss the Pump 3 station and Pump 4 station and Common Force Main bids
that were received.
POLICE COMMISSION: Councilor David Murray presented the Police Commission
report. The police Commission met on March 14, 2022, at 12:00 p.m. Police Chief
Campbell presented a proposal to the commission for raises for patrol officers for
retainment and recruitment . he said they are losing officers to surrounding areas, they
lost five officers in the month of February. The proposal is to increase wages by $4.00
to $4.50 an hour. He also presented a proposed benefit package for consideration that
is compatible with surrounding areas. His proposal also included a new facility,
upgraded equipment, hiring a grant writer, legal advisor, and crime software. Chief
Campbell estimated that these improvements will present an increased budget of $2
million dollars. Councilor Catt suggested that they sit down and start the budget process
now and create an overall plan to reach a long-term course of action for the city.
CITY TREASURER/CITY CLERK REPORT: City Clerk, James Pulliaum said the
financial report was placed in the Council Packets for them to review if you have any
questions, you can contact Finance Director, Tori Perry or the budget chair, Councilor
Croom. .
City Attorney Stephenson said he had one order of business that he would like council
to consider regarding a lawsuit that has been ongoing. The lawyer for the Municipal
League that is representing the city has received a settlement demand of$10,000. City
Attorney Stephenson said he and the Municipal League Attorney are recommending to
council that they reject the settlement demand and not make any counteroffer. There
being no discussion. Councilor Croom made the motion, seconded by Councilor
Wheeless to accept the City Attorney and Municipal League Attorneys recommendation
that they reject the settlement demand and not make a counteroffer. Mayor McClendon
asked for a roll call vote. City Clerk, James Pulliaum called the roll. The roll call vote
was as follows:
YES: Bruce Catt. Croom, Holt, Mohammed, Mondy, Murray,
Wheeless
NO: None
ABSTENTION: None
ABSENT: Harris, Hutchinson
Councilor Harris and Councilor Hutchinson were not present during the vote.
With 8 yes votes, 0 No votes, 0 Abstention votes, 2 absent vote the motion to approve
the City Attorneys and Municipal league recommendations Passed.
APPOINTMENTS: APPOINTMENT OF EMILY SCARBOROUGH TO THE UTILITY
COMMISSION
Mayor McClendon said if council votes to approve Ms. Emily Scarborough to the Utility
Commission, she will be finishing out Commissioner, Susan Marshall term, and then
she will have to be appointed at the end of the term. Councilor Croom made the motion,
seconded by Councilor Mohammed to approved Ms. Emily Scarborough to the Utility
Commission. Upon voice vote, voting was unanimous to approve. Councilor Catt said
he would like to sit down in the next couple of weeks and review the conditions of the
terms and review the responsibilities of the commission as they learn the over all aspects
of the city to get the highest return.
PRESENTATIONS: NONE
ANNOUNCEMENTS: NONE
CITIZENS REQUEST: NONE
Having no further business to come before the City Council, Councilor Wheeless made
the motion, seconded by Councilor Catt to adjourn. Upon voice vote, voting was
unanimous to adjourn. The meeting adjourned at 6:25 p.m.
PASSED and APPROVED this 7th day of APRIL 2022. ,�,,//
ICWO
nE
MAR Co MCCLENDON, MAYOR
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ATTEST:
4)th 'SPU LIA ITY CLERK
Minutes prepared by, Patricia Lane, Sr. Deputy City Clerk
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Agenda
David Goacher <dgoacher@westmemphisar.gov>
Mon 3/2120221.44 PM
To: Patricia Lane <plane@westmemphisar.gov>
Please put us on the April 7,2022 City Council meeting agenda for Tree Trimming Bids
Thanks
David
XWEST MEMPHIS UTILITIES
David Goacher
Plant and Purchasing Manager
Business:870-735-3355 ext 5139
Direct:870-702-5139
604 East Cooper Fax:870-732-7621
P O Box 1868 Cell:870-225-0010
West Memphis,AR 72303 Email:dgoacher@wesenemphisar gov
www.westmemphisar.gov
RECEIVED
a
X WEST MEMPHIS UTILITY COMMISSION
P O Box 1868 604 EastCooper
Phone:870-735-3355 Fax:870-732-7621
West Memphis,AR 72301
4/6/2022 TREE TRIMMING BIDS FOR 2022
ABC TREE SERVICE $466,544.00
WEST TREE SERVICE $519,467.43
WOLF TREE INC. NO BID
AWIN contract with exhibits
Michael Stephenson
Thu 3/17/2022 10:31 AM
To: Patricia Lane<plane@westmemphisar.gov>
Cc Tori Perry<tperry@westmemphisar.gov>; DeWayne Rose <drose@westmemphisar.gov>; Marco McClendon
<mmcclendon @westmemphisar.gov>
3 attachments(806 KB)
Lease CSSA Communications System Services Agreement_WMemphis_cj mod 031422 03162022-jg.doc;
currentwestmemphis038grev.pdt westmemphismarch2022.pdt
Patricia: Attached are 3 documents which I need printed to potentially add to today's agenda. There should be a
permission request to sign a communication service agreement and equipment lease with Motorola solutions.
The 3rd document is a tax form which should not require authorization to sign. Let me know if you have
questions. Thank you.
Mike
J. Michael Stephenson
City Attorney
205 S Redding
PO Box 1728
West Memphis,AR 72303
IDSffiphenson Cdf westmentphisar,gpy
870-7P2-7515
n CAYOF
WEST
. LL„ MEMPHIS
•
RECEIVED
/3� .em
Ferm8038-G Information Return for Tax-Exempt Governmental Bonds
le Under Internal Revenue Code section 149(e) OMB No.1545-0]20
(Rev.September2018) ►See separate Instructions.
oeputnrent of the TreasuryCaution:li the issue PHce is under$100,000,use Fenn8038-GC.
Internal Revenue Service ►Go to www.es.gov/180380 for Instructions and the latest Information.
Lail Reporting Authority If Amended Return,check here ► ❑
1 Issuer's name 2 Issuers employer identification number(PM
City of West Memphis
3e Name of person(Other than issuer)with whom the IRS may communicate about this return bee intuitions) 9b Telephone number of other person shown on 3e
4 Number and street for P.O.box if mail is not delivered to street address) Room/suite a Report number(For IRS Use(Wy)
205 South Redding 3
City,town,or post office,state,and ZIP code 1 Date of issue
West Memphis AR 25248 4/1/22
8 Name of Issue a CUSIP number
Equipment Lease-Purchase Agreement 25248
10a Name and title of officer or other employee of the issuer whom the IRS may cell for more information(see 106 Telephone number of officer or other
instructions) employee shown on 10a
Part II Type of Issue(enter the issue price).See the instructions and attach schedule.
11 Education 11
12 Health and hospital 12
13 Transportation 13
14 Pudic safety 14 4,019,993.00
15 Environment(Including sewage bonds) 15
16 Housing 16
17 Utilities 97
18 Other. Describe► 18
19a If bonds are TANs or RANs,check only box 19a ► ❑ T; :TT'?
b It bonds are BANs,check only box 19b ► ❑
20 If bonds are in the form of a lease or installment sale,check box ► 0 '
•art Description of Bonds.Complete for the entire issue for which this form is being filed.
($Rnal maturity date lb)Issue pipe Iq Stated redemptionIdl Weighted lel Yield
price at maturity average maturay
21 4/1/2027 $ 4,019,993.00 $ 4,019,993.00 5 years 2.638 %
Part IV Uses of Proceeds of Bond Issue(including underwriters'discount)
22 Proceeds used for accrued interest 22
23 Issue price of entire issue(enter amount from line 21,column(b)) 23 4,019,993.00
24 Proceeds used for bond issuance costs(Including underwriters'discount) 24
25 Proceeds used for credit enhancement 25 '
26 Proceeds allocated to reasonably required reserve or replacement fund 26
27 Proceeds used to refund prior tax-exempt bonds.Complete Part V . . 27 -
28 Proceeds used to refund prior taxable bonds.Complete Part V . . . . 28
29 Total(add lines 24 through 28) 29
30 Nonrefunding proceeds of the issue(subtract line 29 from line 23 and enter amount here) . 30 4,019,993.cm
Inn Description of Refunded Bonds.Complete this part only for refunding bonds.
31 Enter the remaining weighted average maturity of the tax-exempt bonds to be refunded . . . ► years
32 En:a the remaining weighted average maturity of the taxable bonds to be refunded . . . . ► years
33 Enter the last date on which the refunded tax-exempt bonds will be coiled(MM/DD/W VV) . . ►
34 Enter the date(s)the refunded bonds were issued (MM/DD/V1'r)
For Paperwork Reduction Act Notice,see separate instructions. cat.No.63773S Form 8038-G(Rev.9-2018)
a
•
Form 3038-0(Rev.9-2018) Page 2
Part VI Miscellaneous
35 Enter the amount of the state volume cap allocated to the Issue under section 1410)(5) . . . . 35
38a Enter the amount of gross proceeds invested or to be invested in a guaranteed investment contract ._
(GIC).See instructions 38a
b Enter the final maturity date of the GIC►(MM/DDNYYY)
c Enter the name of the GIC provider
37 Pooled financings: Enter the amount of the proceeds of this issue that are to be used to make loans
to other governmental units 37
38a If this issue is a loan made from the proceeds of another tax-exempt issue,check box le ❑ and enter the following Information:
b Enter the date of the master pool bond►(MM/DDNYYY)
c Enter the EIN of the issuer of the master pool bond►
d Enter the name of the issuer of the master pool bond►
39 If the issuer has designated the issue under section 26528(3)(B)i(III)(small issuer exception),check box . . ► ❑
40 If the issuer has elected to pay a penalty in lieu of arbitrage rebate,check box ► ❑
41a If the issuer has identified a hedge,check here► ❑and enter the following information:
b Name of hedge provider►
c Type of hedge►
d Term of hedge►
42 If the issuer has superintegrated the hedge,check box ► ❑
43 If the issuer has established writtan procedures to ensure that all nonqualified bonds of this issue are remediated
according to the requirements under the Code and Regulations(see Instructions),check box ► ❑
44 If the Issuer has established written procedures to monitor the requirements of section 148,check box ► ❑
45a If some portion of the proceeds was used to reimburse expenditures,check here► ❑and enter the amount
of reimbursement P.
b Enter the date the official intent was adopted (MM/DDNYYY)
Under ties of penury,I dealers th ave examined this return and accompanying schedules and statements,and to the best of my knowledge
Signature and bah ,they are hue,correct, -e.I further declare that l consent to.a IRS's disclosure of the issuers return information,as necessary to
end ° m,to thy person fir authorized above. 3
Consent '- , 1`l 21 1 IU
Signature of issuer's authorized representative Date 'Type�print name andltie
Paid Print/Typepreparees name Preparer. alure Date Check ❑ if PuN
Preparer sea-employed
Use Only Fnn'"acne • Fern's EIN
Finis address e• Phone no.
Form 8038-G(Rev.9-2018)
1 .
QMOTOROLA SOLUTIONS
3/16/22
City of West Memphis
205 South Redding
West Memphis AR 72301
RE:Municipal Lease#25248
Enclosed for your review,please find the Municipal Lease documentation in connection with the
solution to be leased from Motorola.Tl._interest rate and payment streams outlined in Equipment Lease-
Purchase Agreement#25248 are valid for contracts that are executed and returned to Motorola on or
before March 29,2022.After 3/29/22,the Lessor reserves the option to re-quote and re-price the
transaction based on current market interest rates.
Please have the documents executed where indicated and forward the documents to the following address:
Bill Stancik/Motorola
681 Tanager Lane
West Chicago IL 60185
Should you have any questions,please contact me at 847-538-4531.
Thank You,
MOTOROLA SOLUTIONS CREDIT COMPANY LLC
Bill Stancik
RECIEMID
CLEAN SHORT FORM SIMPLIFIED LEASE rev 7.28.16 BY 7
LESSEE FACT SHEET
Please help Motorola provide excellent billing service by providing the following information:
1. Complete Billing Address City of West Memphis
E-mail Address:
Attention:
Phone:
2. Lessee County Locatica:
3. Federal Tax I D.Number
4. Purchase Order Number:_be referenced on invoice(if necessary)or other"descriptions"that may
assist in determining the applicable cost center or department:
5. Equipment description that you would like to appear on your
invoicing:
Appropriate Contact for Documentation/System Acceptance Follow-up:
6. Appropriate Contact&
Mailing Address
Phone:
Fax:
7. Payment remit to address: Motorola Solutions Credit Company LLC
P.O.Box 71132
Chicago IL 60694-/132
Thank you
CLEAN SHORT FORM SIMPLIFIED LEASE rev 7.28.16
EQUIPMENT Lr.ASE-PURCHASE AGREEMENT
Lease Number: 25248
LESSEE: LESSOR:
City of West Memphis Motorola Solutions,Inc.
205 South Redding 500 W.Monroe
West Memphis AR 72301 Chicago IL 60661
Lessor agrees to lease to Lessee and Lessee agrees to lease from Lessor,the equipment and/or software described in
Schedule A attached hereto("Equipment")in accordance with the following terms and conditions of this Equipment
Lease-Purchase Agreement("Lease").
1. TERM. This Lease will become effective upon the execution hereof by Lessor. The Term of this
Lease will commence on date specified in Schedule A attached heretoand unless terminated according to terms
hereof or the purchase option,provided in Section 18,is exercised this Lease will continue until the Expiration Date
set forth in Schedule B attached hereto("Lase Term").
2. RENT. Lessee agrees to pay to Lessor or its assignee the Lease Payments (herein so called),
including the interest portion,in the amounts specified in Schedule B. The Lease Payments will be payable without
notice or demand at the office of the Lessor(or such other place as Lessor or its assignee may from time to time
designate in writing),and will commence on the first Lease Payment Date as set forth in Schedule B and thereafter
on each of the Lease Payment Dates set forth in Schedule B. Any payments received later than ten(10)days from
the due date will bear interest at the highest lawful rate from the due date. Except as specifically provided in Section
5 hereof,the Lease Payments will be absolute and unconditional in all events and will not be subject to any set-off,
defense, counterclaim, or recoupment for any reason whatsoever. Lessee reasonably believes that funds can be
obtained sufficient to make all Lease Payments during the Lease Term and hereby covenants that a request for
appropriation for funds from which the Lease Payments may be made will be requested each fiscal period,including
making provisions for such payment to the extent necessary in each budget submitted for the purpose of obtaining
funding. It is Lessee's intent to make Lease Payment for the full Lease Term if funds are legally available therefor
and in that regard Lessee represents that the Equipment will be used for one or more authorized governmental or
proprietary functions essential to its proper,efficient and economic operation.
3. DELIVERY AND ACCEPTANCE. Lessor will cause the Equipment to be delivered to Lessee at
the location specified in Schedule A("Equipment Location"). Lessee will accept the Equipment as soon as it has
been delivered and is operational. Lessee will evidence its acceptance of the Equipment either(a)by executing and
delivering to Lessor a Delivery and Acceptance Certificate in the form provided by Lessor;or(b)by executing and
delivering the form of acceptance provided for in the Contract(defined below).
Even if Lessee has not executed and delivered to Lessor a Delivery and Acceptance Certificate or other form of
acceptance acceptable to Lessor,if Lessor believes the Equipment has been delivered and is operational,Lessor may
require Lessee to notify Lessor in writing(within five (5) days of Lessee's receipt of Lessor's request)whether or
not Lessee deems the Equipment (i) to have been delivered and (ii) to be operational, and hence be accepted by
Lessee. If Lessee fails to so respond in such five (5) day period, Lessee will be deemed to have accepted the
Equipment and be deemed to have acknowledged that the Equipment was delivered and is operational as if Lessee
had in fact executed and delivered to Lessor a Delivery and Acceptance Certificate or other form acceptable to
Lessor.
4. REPRESENTATIONS AND WARRANTIES. Lessor acknowledges that the Equipment leased
hereunder is being manufactured and installed by Lessor pursuant to contract (the "Contract") covering the
Equipment. Lessee acknowledges that on or prior to the date of acceptance of the Equipment,Lessor intends to sell
and assign Lessor's right,title and interest in and to this Agreement and the Equipment to an assignee("Assignee").
CLEAN SHORT FORM SIMPLIFIED LEASE rev 7.28.16
LESSEE FURTHER ACKNOWLEDGES THAT EXCEPT AS EXPRESSLY SET FORTH IN THE CONTRACT,
LESSOR MAKES NO EXPRESS OR IMPLIED W ARRANI'IES OF ANY NATURE OR KIND WHATSOEVER,
AND AS BETWEEN LESSEE AND THE ASSIGNEE, THE PROPERTY SHALL BE ACCEPTED BY LESSEE
"AS IS" AND "WITH ALL FAULTS". LESSEE AGREES TO SETTLE ALL CLAIMS DIRECTLY WITH
LESSOR AND WILL NOT ASSERT On SEEK TO ENFORCE ANY SUCH CLAIMS AGAINST THE
ASSIGNEE. NEITHER LESSOR NOR THE ASSIGNEE SHALL BE LIABLE FOR ANY DIRECT,INDIRECT,
SPECIAL,INCIDENTAL,OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER AS A RESULT OF THE
LEASE OF THE EQUIPMENT, INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS, PROPERTY
DAMAGE OR LOST PRODUCTION WHETHER SUFFERED BY LESSEE OR ANY THIRD PARTY.
Lessor is not responsible for, and shall not be liable to Lessee for damages relating to loss of value of the
Equipment for any cause or situation(including, without limitation, governmental actions or regulations or actions
of other third parties).
5. NON-APPROPRIATION OF FUNDS. Notwithstanding anything contained in this Lease to the
contrary, Lessee has the right to not appropriate funds to make Lease Payments required hereunder in any fiscal
period and in the event no funds are appropriated or in the event funds appropriated by Lessee's governing body or
otherwise available by any lawful means whatsoever in any fiscal period of Lessee for Lease Payments or other
amounts due under this Lease are insufficient therefor,this Lease shall terminate on the last day of the fiscal period
for which appropriations were received without penalty or expense to Lessee of any kind whatsoever, except as to
the portions of Lease Payments or other amounts herein agreed upon for which funds shall have been appropriated
and budgeted or are otherwise available. The Lessee will immediately notify the Lessor or its Assignee of such
occurrence. In the event of such termination,Lessee agrees to peaceably surrender possession of the Equipment to
Lessor or its Assignee on the date of such termination, packed for shipment in accordance with manufacturer
specifications and freight prepaid and insured to any location in the continental United States designated by Lessor.
Lessor will have all legal and equitable rights and remedies to take possession of the Equipment. Non-
appropriation of fluids shall not constitute a deault hereunder for purposes of Section 16.
6. LESSEE CERTIFICATION. Lessee represents,covenants and warrants that: (i)Lessee is a state or
a duly constituted political subdivision or agency of the state of the Equipment Location;(ii)the interest portion of
the Lease Payments shall be excludable from Lessor's gross income pursuant to Section 103 of the Internal Revenue
Code of 1986,as it may be amended from time to time(the"Code"); (iii)the execution,delivery and performance
by the Lesscc of this Lease have been duly authorized by all necessary action on the part of the Lessee; (iv) this
Lease constitutes a legal, valid and binding obligation of the Lessee enforceable in accordance with its terms; (v)
Lessee will comply with the information reporting requirements of Section 149(e)of the Internal Revenue Code of
1986(the "Code"), and such compliance shall include but not be limited to the execution of information statements
requested by Lessor; (vi)Lessee will not do or cause to be done any act which will cause,or by omission of any act
allow,the Lease to be an arbitrage bond within the meaning of Section 148(a)of the Code;(vii) Lessee will not do
or cause to be done any act which will cause, or by omission of any act allow, this Lease to be a private activity
bond within the meaning of Section 141(a)of the Code;(viii)Lessee will not do or cause to be done any act which
will cause,or by omission of any act allow,the interest potion of the Lease Payment to be or become includible in
gross income for Federal income taxation purposes under the Code; and(ix)Lessee will be the only entity to own,
use and operate the Equipment during the Lease Term.
Lessee represents, covenants and warrants that: (i) it will do or cause to be done all things necessary to
preserve and keep the Lease in full force and effect, (ii) it has complied with all laws relative to public bidding
where necessary,and(iii)it has sufficient appropriations or other funds available to pay all amounts due hereunder
for the current fiscal period.
If Lessee breaches the covenant contained in this Section,the interest component of Lease Payments may
become includible in gross income of the owner or owners thereof for federal income tax purposes. In such event,
notwithstanding anything to the contrary contained in Section I I of this Agreement, Lessee agrees to pay promptly
after any such determination of taxability and on each Lease Payment date thereafter to Lessor an additional amount
determined by Lessor to compensate such owner or owners for the loss of such excludibihty(including, without
limitation, compensation relating to interest expense, penalties or additions to tax), which determination shall be
conclusive(absent manifest error). Notwithstanding anything herein to the contrary,any additional amount payable
by Lessee pursuant to this Section 6 shall be payable solely from Legally Available Funds.
CLEAN SHORT FORM SIMPLIFIED LEASE rev 7.28.16
It is Lessor's and Lessee's intention that this Agreement not constitute a"true"lease for federal income tax
purposes and,therefore,it is Lessor's and Lessee's intention that Lessee be considered the owner of the Equipment
for federal income tax purposes.
7. TITLE TO EQUIPMENT;SECURITY INTEREST. Upon shipment of the Equipment to Lessee
hereunder,title to the Equipment will vest in Lessee subject to any applicable license;provided,however,that(i)in
the event of termination of this Lease by Lessee pursuant to Section 5 hereof;(ii)upon the occurrence of an Event of
Default hereunder,and as long as such Event of Default is continuing;or(iii)in the event that the purchase option
has not been exercised prior to the Expiration Date,title will immediately vest in Lessor or its Assignee,and Lessee
shall immediately discontinue use of the Equipment, remove the Equipment from Lessee's computers and other
electronic devices and deliver the Equipment to Lessor or its Assignee. In order to secure all of its obligations
hereunder,Lessee hereby(i)grants to Lessor a first and prior security interest in any and all right,title and interest
of Lessee in the Equipment and in all additions, attachments, accessions, and substitutions thereto, and on any
proceeds therefrom; (ii) agrees that this Lease may be filed as a financing statement evidencing such security
interest; and (iii) agrees to execute and deliver all financing statements, certificates of title and other instruments
necessary or appropriate to evidence such security interest.
8. USE; REPAIRS. Lessee will use the Equipment in a careful manner for the use contemplated by the
manufacturer of the Equipment and shall comply with all laws, ordinances, insurance policies, the Contract, any
licensing or other agreement,and regulations relating to, and will pay all costs, claims, damages, fees and charges
arising out of the possession,use or maintenance of the Equipment. Lessee,at its expense will keep the Equipment
in good repair and furnish and/or install all parts,mechanisms,updates,upgrades and devices required therefor.
9. ALTERATIONS. Lessee will not make any alterations, additions or improvements to the
Equipment without Lessor's prior written consent unless such alterations,additions or improvements may be readily
removed without damage to the Equipment.
10. LOCATION;INSPECTION. The Equipment will not be removed from, [or if the Equipment
consists of rolling stock, its permanent base will not be changed from] the Equipment I oration without Lessor's
prior written consent which will not be unreasonably withheld. Lessor will be entitled to enter upon the Equipment
Location or elsewhere during reasonable business hours to inspect the Equipment or observe its use and operation.
11. LIENS AND TAXES. Lessee shall keep the Equipment free and clear of all levies, liens and
encumbrances except those created under this Lease. Lessee shall pay,when due,all charges and taxes(local, state
and federal)which may now or hereafter be imposed upon the ownership, licensing, leasing,rental, sale,purchase,
possession or use of the Equipment,excluding however,all taxes on or measured by Lessor's income. If Lessee fails
to pay said charges and taxes when due, Lessor shall have the right,but shall not be obligated,to pay said charges
and taxes. If Lessor pays any charges or taxes, Lessee shall reimburse Lessor therefor within ten days of written
demand.
12. RISK CrLOSS: DAMAGE;DESTRUCTION. Lessee assumes all risk of loss or damage to
the Equipment from any cause whatsoever, and no such loss of or damage to the Equipment nor defect therein nor
unfitness or obsolescence thereof shall relieve Lessee of the obligation to make Lease Payments or to perform any
other obligation under this Lease. In the event of damage to any item of Equipment,Lessee will immediately place
the same in good repair with the proceeds of any insurance recovery applied to the cost of such repair. If Lessor
determines that any item of Equipment is lost, stolen, destroyed or damaged beyond repair (an "Event of Loss") ,
Lessee at the option of Lessor will: either(a)replace the same with like equipment in good repair;or(b)on the next
Lease Payment date, pay Lessor the sum of: (i) all amounts then owed by Lessee to Lessor under this Lease,
including the Lease pa;aunt due on such date;and(ii)an amount equal to all remaining Lease Payments to be paid
during the Lease Term as set forth in Schedule B.
In the event that Lessee is obligated to make such payment with respect to less than all of the Equipment,
Lessor will provide Lessee with the pro rata amount of the Lease Payment and the Balance Payment(as set forth in
Schedule B)to be made by Lessee with respect to that part of the Equipment which has suffered the Event of Loss.
13. INSURANCE. Lessee will,at its expense,maintain at all times during the Lease Term,fire and
extended coverage,public Liability and property damage insurance with respect to the Equipment in such amounts,
CLEAN SHORT FORM SIMPLIFIED LEASE rev 7.28.16
covering such rsks,and with such insurers as shall be satisfactory to Lessor,or,with Lessor's prior written consent,
Lessee may self-insure against any or all such risks. All insurance covering loss of or damage to the Equipment
shall be carried in an amount no less than the amount of the then applicable Balance Payment with respect to such
Equipment. The initial amount of insurance required is set forth in Schedule B. Each insurance policy will name
Lessee as an insured and Lessor or it's Assigns as an additional insured, and will contain a clause requiring the
insurer to give Lessor at least thirty(30)days prior written notice of any alteration in the terms of such policy or the
cancellation thereof The proceeds of any such policies will be payable to Lessee and Lessor or it's Assigns as their
interests may appear. Upon acceptance of the Equipment and upon each insurance renewal date,Lessee will deliver
to Lessor a certificate evidencing such insurance. In the event that Lessee has been permitted to self-insure,Lessee
will famish Lessor with a letter or certificate to such effect. In the event of any loss, damage, injury or accident
involving the Equipment, Lessee will promptly provide Lessor with written notice thereof and make available to
Lessor all information and documentation relating thereto.
14. INDEMNIFICATION. Lessee shall,to the extent permitted by law, indemnify Lessor against,
and hold Lssor harmless from,any and all claims,actions,proceedings,expenses,damages or liabilities, including
attorneys'fees and court costs,arising in connection with the Equipment,including,but not limited to,its selection,
purchase, delivery, licensing, possession, use, operation, rejection, or return and the recovery of claims under
insurance policies thereon.
15. ASSIGNMENT. Without Lessor's prior written consent, Lessee will not either (i) assign,
transfer,pledge,hypothecate, grant any security interest in or otherwise dispose of this Lease or the Equipment or
any interest in this Lease or the Equipment or; (ii) sublet or lend the Equipment or permit it to be used by anyone
other than Lessee or Lessee's employees. Lessor may assign its rights, title and interest in and to this Lease, the
Equipment and any documents executed with respect to this Lease and/or grant or assign a security incest in this
Lease and the Equipment, in whole or in part. Any such assignees shall have all of the rights of Lessor under this
Lease. Subject to the foregoing, this Lease inures to the benefit of and is binding upon the heirs, executors,
administrators,successors and assigns of the parties hereto.
Lessee covenants and agrees not to assert against the Assignee any claims or defenses by way of
abatement, setoff counterclaim,recoupment or the like which Lessee may have against Lessor. No assignment or
reassignment of any Lessor's right,tide or interest in this Lease or the Equipment shall be effective unless and until
Lessee shall have received a notice of assignment,disclosing the name and address of each such assignee;provided,
however, that if such assignment is made to a bank or trust company as paying or escrow agent for holders of
certificates of participation in the Lease, it shall thereafter be sufficient that a copy of the agency agreement shall
have been deposited with Lessee until Lessee shall have been advised that such agency agreement is no longer in
effect. During the Lease Term Lessee shall keep a complete and accurate record of all such assignments in form
necessary to comply with Section 149(a)of the Code,and the regulations,proposed or existing, from time to time
promulgated thereunder. No further action will be required by Lessor or by Lessee to evidence the assignment,but
Lessee will acknowledge such assignments in writing if so requested.
After notice of such assignment, Lessee shall name the Assignee as additional insured and loss payee in
any insurance policies obtained or in force. Any Assignee of Lessor may reassign this Lease and its interest in the
Equipment and the Lease Payments to any other person who, thereupon, shall be deemed to be Lessor's Assignee
hereunder.
16. EVENT OF DEFAULT. The term"Event of Default",as used herein,means the occurrence of any
one or more of the following events: (i) Lessee fails to make any Lease Payment (or any other payment) as it
becomes due in accordance with the terms of the Lease when funds have been appropriated sufficient for such
purpose,and any such failure continues for ten(10) days after the due date thereof; (ii) Lessee fails to perform or
observe any other covenant,condition,or agreement to be performed or observed by it hereunder and such failure is
not cured within twenty (20) days after written notice thereof by Lessor; (iii) the discovery by Lessor that any
statement, representation, or warranty made by Lessee in this Lease or in writing delivered by Lessee pursuant
hereto or in connection herewith is false, misleading or erroneous in any material respect; (iv)proceedings under
any bankruptcy, insolvency, reorganization or similar legislation shall be instituted against or by Lessee, or a
receiver or similar officer shall be appointed for Lessee or any of its property,and such proceedings or appointments
shall not be vacated, or fully stayed, within twenty (2u) days after the institution or occurrence thereof; or(v) an
attachment,levy or execution is threatened or levied upon or against the Equipment.
CLEAN SHORT FORM SIMPLIFIED LEASE rev 7.28.16
17. REMEDIES. Upon the occurrence of an Event of Default,and as long as such Event of Default is
continuing,Lessor may, at its option, exercise any one or more of the following remedies: (i)by written notice to
Lessee,declare all amounts then due under the Lease,and all remaining Lease Payments due during the fiscal period
in effect when the default occurs to be immediately due and payable,whereupon the same shall become immediately
due and payable; (ii) by written notice to Lessee, request Lessee to (and Lessee agrees that it will), at Lessee's
expense, promptly discontinue use of the Equipment, remove the Equipment from all of Lessee's computers and
electronic devices, return the Equipment to Lessor in the manner set forth in Section 5 hereof, or Lessor, at its
option,may enter upon the premises where the Equipment is located and take immediate possession of and remove
the same;(iii)sell or lease the Equipment or sublease it for the account of Lessee,holding Lessee liable for all Lease
Payments and other amounts due prior to the effective date of such selling, leasing or sublr-sing and for the
difference between the purchase price,rental and other amounts paid by the purchaser,Lessee or sublessee pursuant
to such sale,lease or sublease and the amounts payable by Lessee hereunder; (iv)promptly return the Equipment to
Lessor in the manner set forth in Section 5 hereof; and(v)exercise any other right,remedy or privilege which may
be available to it under applicable laws of the state of the Equipment Location or any other applicable law or
proceed by appropriate court action to enforce the terms of the Lease or to recover damages for the breach of this
Lease or to rescind this Lease as to any or all of the Equipment. In addition, Lessee will remain liable for all
covenants and indemnities under this Lease and for all legal fees and other costs and expenses,including court costs,
incurred by Lessor with respect to the enforcement of any of the remedies listed above or any other remedy available
to Lessor.
18. PURCHASE OPTION. Upon thirty(30)days prior written notice from Lessee to Lessor,and
provided that no Event of Default has occurred and is continuing,or no event,which with notice or lapse of time,or
both could become an Event of Default, then exists, Lessee will have the right to purchase the Equipment on the
Lease Payment dates set forth in Schedule B by paying to Lessor,on such date,the Lease Payment then due together
with the Balance Payment amount set forth opposite such date. Upon satisfaction by Lessee of such purchase
conditions, Lessor will transfer any and all of its right, title and interest in the Equipment to Lessee as is, without
warranty,express or implied,except that the Equipment is free and clear of any liens created by Lessor.
19. NOTICES. All notices to be given under this Lease shall be made in writing and mailed by certified
mail, return receipt requested, to the other party at its address set forth herein or at such address as the party may
provide in writing from time to time. Any such notice shall be deemed to have been received five days subsequent
to such mailing.
20. SECTION HEAL NGS. All section headings contained herein are for the convenience of
reference only and are not intended to define or limit the scope of any provision of this Lease.
21. GOVERNING LAW. This Lease shall be construed in accordance with, and governed by the
laws of,the state of the Equipment Location.
22. DELIVERY OF RELATED DOCUMENTS. Lessee will execute or provide, as requested by
Lessor, such other documents aad information as are reasonably necessary with respect to the transaction
contemplated by this Lease.
23. ENTIRE AGREEMENT;WAIVER. This Lease,together with Schedule A Equipment Lease-
Purchase Agreement,Schedule B,Evidence of Insurance,Statement of Essential Use/Source of Funds,Certificate of
Incumbency,Certified Lessee Resolution(if any),Information Return for Tax-Exempt Governmental Obligations
and the Delivery and Acceptance Certificate and other attachments hereto,and other documents or instruments
executed by Lessee and Lessor in connection herewith,constitutes the entire agreement between the parties with
respect to the Lease of the Equipment,and this Lease shall not be modified,amended,altered,or changed except
with the written consent of Lessee and Lessor. Any provision of the Lease found to be prohibited by law shall be
ineffective to the extent of such prohibition without invalidating the remainder of the Lease.
The waiver by Lessor of any breach by Lessee of any term,covenant or condition hereof shall not operate
as a waiver of any subsequent breach thereof.
CLEAN SHORT FORM SIMPLIFIED LEASE rev 7.28.16
24. EXECUTION IN COUNTERPARTS.This Lease may be executed in several counterparts,either
electronically or manually,all of which shall constitute but one and the same instrument.Lessor reserves the right to
request receipt of a manually-executed counterpart from Lessee. Lessor and Lessee agree that the only original
counterpart for purposes of perfection by possession shall be the original counterpart manually executed by Lessor
and ide tified as "Original", regardless of whether Lessee's execution or delivery of said counterpart is done
manually or electronically.
IN WITNESS WHEREOF,the parties have executed this Agreement as of the day of March,2022.
LESSEE: LESSOR:
City of West Memphis MOTOROLA SOLUTIONS,INC.
By: `l�6ntte cz .. .._ By
Printed Name: to✓q made.— Uygar Gazioglu
Title: /f4yar' Title Treasurer
/ ///� CERTIFICATE OF INCUMBENCY
I, o/4/»hC$ t r U//y/U//n do hereby certify that lam the duly elected or
(Printed Name of Secretary/Clerk)
appointed and acting Secretary or Clerk of the City of West Memphis,an entity duly organized and existing
under the laws of the State of Arkansas that I have custody of the records of such entity,and that,as of the date
hereof,the individual(s)executing this agreement is/are the duly elected or appointed officer(s)of such entity
holding the office(s)below his/her/their respective name(s). I further certify that(i)the signature(s)set forth above
his/her/their respective name(s)and title(s)is/are his/her/their true and authentic signature(s)and(ii)such officer(s)
have the authority on behalf of such entity to enter into that certain Equipment Lease Purchase Agreement
number25248,between_City of West Memphis and Motorola Solutions,Inc. If the initial insurance requirement
on Schedule B exceeds$1,000,,,00,attached as part of the Equipment Lease Purchase Agreement is a Certified
Lessee Resolution adopted by the governing body of the entity.
IN WITNESS WHEREOF,I have executed this certificate and affixed the seal of City of West Memphis,hereto
this day of arch,2022.
By: ,._,q. i SEAL
ature of Secretary/Cr
OPINION OF COUNSEL
With respect to that certain Equipment Lease-Purchase Agreement 25248 by and between Motorola
Solutions,Inc. and the Lessee,l am of the opinion that:(i)the Lessee is,within the meaning of Section 103 of the
Internal Revenue Code of 1986,a state or a fully constituted political subdivision or agency of the State of the
Equipment Location described in Schedule A hereto;(ii)the execution,delivery and performance by the Lessee of
the Lease have been duly authorized by all necessary action on the part of the Lessee,(III)the Lease constitutes a
legal,valid and binding obligation of the Lessee enforceable in accordance with its terms;and(iv)Lessee has
sufficient monies available to make all payments required to be paid under the Lease during the current fiscal year of
the Lease,and such monies have been properly budgeted and appropriated for this purpose in accordance with State
law. This opinion may be relied upon by the Lessor and any assignee of the Lessor's rights under the Lease.
Attorney for City of West Memphis
CLEAN SHORT FORM SIMPLIFIED LEASE rev 7.28.16
SCHEDULE A
EQUIPMENT LEASE-PURCHASE AGREEMENT
Schedule A 25248
Lease Number:
This Equipment Schedule is hereby attached to and made a part of that certain Equipment
Lease-Purchase Agreement Number 25248("Lease"),between Lessor and Lessee.
Lessor hereby leases to Lessee under and pursuant to the Lease, and Lessee hereby
accepts and leases from Lessor under and pursuant to the Lease,subject to and upon the terms
and conditions set forth in the Lease and upon the terms set forth below,the following items of
Equipment
QUANTITY DESCRIPTION(Manufacturer,Model, and Serial Nos.)
Refer to attached Equipment List.
Equipment Location:
Initial Term: 60 Months Commencement Date: 4/1/2022
First Payment Due Date: 4/1/2023
5 Annual payments as outlined in the attached Schedule B,plus Sales/Use Tax of$0.00,
payable on the Lease Payment Dates set forth in Schedule B.
CLEAN SHORT FORM SIMPLIFIED LEASE rev 7.28.16
City of West Memphis (Schedule B)
Compound Period: Annual
Nominal Annual Rate: 2.638%
CASH FLOW DATA
Event Date Amount Number Period End Date
1 Lease 4/1/2022 $4,019,993.00 1
2 Lease Payment 4/1/2023 $ 868,731.23 5 Annual 4/1/2027
AMORTIZATION SCHEDULE-Normal Amortization,360 Day Year
Date Lease Payment Interest Principal Balance
Lease 4/1/2022 $4,019,993.00
1 4/1/2023 $ 868,731.23 $ 106,047.42 $ 762,683.81 $3,257,309.19
2 4/1/2024 $ 6,,8,731.23 $ 85,927.82 $ 782,80a.41 $2,474,505.78
3 4/1/2025 $ 868,731.23 $ 65,277.46 $ 803,453.77 $1,671,052.01
4 4/1/2026 $ 868,731.23 $ 44,082.35 $ 824,648.88 $ 846,403.13
5 4/1/2027 $ 868,731.23 $ 22,328.10 $ 846,403.13 $ -
Grand Totals $4,343,656.15 $ 323,663.15 $4,019,993.00
INITIAL INSURANCE REQUIREMENT: S4,019,993.00
Except as specifically provided in Section five of the Lease hereof,Lessee agrees to pay to Lessor o, its
assignee the Lease Payments,including the interest portion,in the amounts and dates specified in the
above payment schedule.
CLEAN SHORT FORM SIMPLIFIED LEASE rev 7.28.16
EVIDENCE OF INSURANCE
Fire,extended coverage,public liability and property damage insurance for all of the Equipment listed on
Schedule A number 25248 to that Equipment Lease Purchase Agreement number 25248 will be
maintained by the City of West Memphis as sta:ad in the Equipment Lease Purchase Agreement.
This insurance is provided by:
Name of insurance provider
Address of insurance provider
City,State and Zip Code
Phone number of local insurance provider
E-mail address
In accordance with the Equipment Lease Purchase Agreement Number 25248, City of West Memphis
,hereby certifies that following coverage are or will be in full force and effect:
Type Amount Elective Expiration Policy
Date Date Number
Fire and Extended Coverage
Property Damage
Public Liability
Certificate shall include the following:
Description: All Equipment listed on Schedule A number 25248 to that Equipment Lease Purchase
Agreement number 25248. Please include equipment cost equal to the Initial Insurance Requirement on
Schedule B to Equipment Lease Purchase Agreement number 25248 and list any deductibles.
Certificate Holder:
MOTOROLA SOLUTIONS,INC.and or its assignee as additional insured and loss payee
1303 E.Algonquin Road
Schaumburg,IL 60196
If self insured,contact Motorola representative for template of self insurance letter.
CLEAN SHORT FORM SIMPLIFIED LEASE rev 7.28.16
STATEMENT OF ESSENTIAL USE/SOURCE OF FUNDS
To further understand the essential governmental use intended for the equipment together with
an understanding of the sources from which payments will be made,please address the following
Questions by completing this form or by sending a separate letter:
1. What is the specific use of the equipment?
2. Why is the equipment essential to the operation of City of West Memohiv?
3. Does the equipment replace existing equipment?
If so,why is the replacement being made?
4. Is there a specific cost justification for the new equipment?
If yes,please attach outline ofjustification.
5. What is the expected source of funds for the payments due under the Lease for
the current fiscal year and future fiscal years?
CLEAN SHORT FORM SIMPLIFIED LEASE rev 7.28.16
EQUIPMENT LEASE PURCHASE AGREEMENT DELIVERY
AND ACCEPTANCE CERTIFICATE
The undersigned Lessee hereby acknowledges receipt of the Equipment described below("Equipment )and Lessee
hereby accepts the Equipment after full inspection thereof as satisfactory for all purposes of lease Schedule A to the
Equipment Lease Purchase Agreement executed by Lessee and Lessor.
Equipment Lease Purchase Agreement No.:25248 Lease Schedule A No. : 25248
EQUIPMENT INFORMATION
QUANTITY MODEL NUMBER EQUIPMENT DESCRIPTION
Equipment referenced in lease Schedule A#
25248. See Schedule A for a detailed Equipment
List.
LESSEE:
City of West Memphis
By:
Date:
CLEAN SHORT FORM SIMPLIFIED LEASE rev 7.28.16
CERTIFIED LESSEE RESOLUTION
At a duly called meeting of the Governing Body of the Lessee (as defined in the Lease #2524E)
held on March 17, 2022, the following resolution was introduced and adopted.
BE IT RESOLVED by the Governing Board of Lessee as follows:
1. Determination of Need. The Governing Body of Lessee has determined that a true and
very real need exists for the acquisition of the Equipment or other personal property
described in the Lease between City of West Memphis (Lessee) and Motorola Solutions,
Inc. (Lessor).
2. Approval and Authorization. The Governing body of Lessee has determined that the
Lease, substantially in the form presented to this meeting, is in the best interests of the
Lessee for the acquisition of such Equipment or other personal property, and the
Governing Board hereby approves the entering into of the Lease by the Lessee and
hereby designates and authorize the following person(s) referenced in the Lease to
execute and deliver the Lease on Lessee's behalf with such changes thereto as such
person deems appropriate, and any related documents, including any escrow agreement,
necessary to the consummation of the transactions contemplated by the Lease.
3. Adoption of Resolution. The signatures in the Lease from the designated individuals for
the Governing Body of the Lessee evidence the adoption by the Governing Body of this
Resolution.
CLEAN SHORT FORM SIMPLIFIED LEASE rev 7.28.16
Communications System and Services Agreement
(Lease)
Motorola Solutions, Inc. ("Motorola") and the City of West Memphis, AR ("Customer") enter into this
"Agreement," pursuant to which Customer will purchase and Motorola will sell the System and Services,
as described below. Motorola and Customer may be referred to individually as a "Party" and collectively
as the"Parties." For good and valuable consideration, the Parties agree as follows:
Section 1 ATTACHMENTS
1.1. EXHIBITS. The Exhibits listed below are exhibits related to the System sale and
implementation. These Exhibits are incorporated into and made a part of this Agreement.
Exhibit A "Motorola Software License Agreement"
Exhibit B "Payment"
Exhibit C Technical and Implementation Documents
C-1 "System Description" dated, November 4, 2022
C-2 "Pricing Summary& Equipment List"dated, November 4, 2022
C-3 "Implementation Statement of Work" dated, November 4, 2022
C-4 "Acceptance Test Plan" or"ATP" dated, November 4, 2022
C-5 "Performance Schedule"dated, TBD
Exhibit D "System Acceptance Certificate"
Exhibit E "Equipment Lease Purchase Agreement Delivery and Acceptance Certificate"
1.2. ADDENDUM (ADDENDA). Customer may elect to purchase professional or subscription
services in addition to the System and related services. Any such services will be governed by the terms
in the main body of the Agreement and an applicable Addendum containing terms specific to such
service. Such Addenda will be labeled with the name of the service being purchased.
1.3 ORDER OF PRECEDENCE. In interpreting this Agreement and resolving any ambiguities: 1) the
main body of this Agreement takes precedence over the exhibits (unless otherwise specified in an
exhibit), and any inconsistency between Exhibits A through E will be resolved in their listed order, and 2)
The applicable service Addendum will take precedence over the main body of the Agreement and the
Exhibits.
Section 2 DEFINITIONS
Capitalized terms used in this Agreement have the following meanings:
"Acceptance Tests" means those tests described in the Acceptance Test Plan.
"Addendum (Addenda)" is the title of the document(s) containing a specific set of terms and conditions
applicable to a particular service or other offering beyond the Communication System and System
implementation services. The terms in the Addendum are applicable only to the specific service or
offering described therein.
"Administrative User Credentials" means an account that has total access over the operating system,
files, end user accounts and passwords at either the System level or box level. Customer's personnel
with access to the Administrative User Credentials may be referred to as the Administrative User.
"Beneficial Use" means when Customer first uses the System or a Subsystem for operational purposes
(excluding training or testing).
"Confidential Information" means all information consistent with the fulfillment of this Agreement that is
Lease Communications System and Services Agreement v.2.9.2021
1
•
(i) disclosed under this Agreement in oral, written, graphic, machine recognizable, and/or sample form,
being clearly designated, labeled or marked as confidential or its equivalent or (ii) obtained by
examination, testing or analysis of any hardware, software or any component part thereof provided by
discloser to recipient. The nature and existence of this Agreement are considered Confidential
Information. Confidential Information that is disclosed orally must be identified as confidential at the time
of disclosure and confirmed by the discloser by submitting a written document to the recipient within thirty
(30) days after such disclosure. The written document must contain a summary of the Confidential
Information disclosed with enough specificity for identification purpose and must be labeled or marked as
confidential or its equivalent.
"Contract Price" means the price for the System and implementation Services, excluding applicable
sales or similar taxes and freight charges. Further, unless otherwise stated in Exhibit B, "Payment" or the
pricing pages of the proposal, recurring fees for maintenance, SUA, or subscription services are not
included in the Contract Price.
"Deliverables" means all written information (such as reports, specifications, designs, plans, drawings,
analytics, Solution Data, or other technical or business information) that Motorola prepares for Customer
in the performance of the Services and is obligated to provide to Customer under this Agreement. The
Deliverables, if any, are more fully described in the Statement of Work.
"Derivative Proprietary Materials" means derivatives of the Proprietary Materials that Motorola may
from time to time, including during the course of providing the Services, develop and/or use and/or to
which Motorola provides Customer access.
"Effective Date" means that date upon which the last Party executes this Agreement.
"Equipment" means the hardware components of the Solution that Customer purchases from Motorola
under this Agreement. Equipment that is part of the System is described in the Equipment List.
"Equipment Lease-Purchase Agreement" means the agreement by which Customer finances all or a
portion of the Contract Price.
"Feedback" means comments or information, in oral or written form, given to Motorola by Customer in
connection with or relating to Equipment or Services, during the term of this Agreement.
"Force Majeure" means an event, circumstance, or act that is beyond a Party's reasonable control,
such as an act of God, an act of the public enemy, an act of a government entity, strikes, other labor
disturbances, supplier performance, hurricanes, earthquakes, fires, floods, epidemics, embargoes, war,
riots, or any other similar cause.
"Motorola Software" means software that Motorola or its affiliated companies owns.
"Non-Motorola Software" means software that a party other than Motorola or its affiliated companies
owns.
"Open Source Software" (also called "freeware" or "shareware") means software with either freely
obtainable source code, license for modification, or permission for free distribution.
"Proprietary Materials" means certain software tools and/or other technical materials, including, but not
limited to, data, modules, components, designs, utilities, subsets, objects, program listings, models,
methodologies, programs, systems, analysis frameworks, leading practices and specifications which
Motorola has developed prior to, or independently from, the provision of the Services and/or which
Motorola licenses from third parties.
"Proprietary Rights" means the patents, patent applications, inventions, copyrights, trade secrets,
Lease Communications System and Services Agreement v.2.9.2021
2
trademarks, trade names, mask works, know-how, and other intellectual property rights in and to the
Equipment and Software, including those created or produced by Motorola under this Agreement and any
corrections, bug fixes, enhancements, updates or modifications to or derivative works from the Software
whether made by Motorola or another party.
"Services" means system implementation, maintenance, support, subscription, or other professional
services provided under this Agreement, which may be further described in the applicable Addendum
and/or SOW.
"Software" (i) means proprietary software in object code format, and adaptations, translations, de-
compilations, disassemblies, emulations, or derivative works of such software; (ii) means any
modifications, enhancements, new versions and new releases of the software provided by Motorola; and
(iii) may contain one or more items of software owned by a third party supplier. The term "Software" does
not include any third party software provided under separate license or third party software not licensable
under the terms of this Agreement.
"Software License Agreement" means the Motorola Software License Agreement(Exhibit A).
"Software Support Policy" ("SwSP") means the policy set forth at
https://www.motorolasolutions.com/content/dam/msi/secure/services/software policy.pdf
describing the specific technical support that will be provided to Customers under the Warranty Period
and during any paid maintenance support period for Motorola Software. This policy may be modified from
time to time at Motorola's discretion.
"Solution" means the combination of the System(s) and Services provided by Motorola under this
Agreement.
"Solution Data" means Customer data that is transformed, altered, processed, aggregated, correlated or
operated on by Motorola, its vendors or other data sources and data that has been manipulated or
retrieved using Motorola know-how to produce value-added content to data consumers, including
customers or citizens which is made available to Customer with the Solution and Services.
"Specifications" means the functionality and performance requirements that are described in the
Technical and Implementation Documents.
"SUA" means Motorola's Software Upgrade Agreement program.
"Subsystem" means a major part of the System that performs specific functions or operations.
Subsystems are described in the Technical and Implementation Documents.
"System" means the Equipment, including incidental hardware and materials, Software, and design,
installation and implementation services that are combined together into an integrated system; the
System(s) is (are)described in the Technical and Implementation Documents.
"System Acceptance" means the Acceptance Tests have been successfully completed.
"System Data" means data created by, in connection with or in relation to Equipment or the performance
of Services under this Agreement.
"Warranty Period" for System Hardware, Software, or services related to system implementation means
one (1) year from the date of System Acceptance or Beneficial Use, whichever occurs first. Unless
otherwise stated in the applicable Addendum, Warranty Period for other Services means ninety (90) days
from performance of the Service.
Section 3 SCOPE OF AGREEMENT AND TERM
Lease Communications System and Services Agreement v.2.9.2021
3
3.1. SCOPE OF WORK. Motorola will provide, install and test the System(s), and perform its other
contractual responsibilities to provide the Solution, all in accordance with this Agreement. Customer will
perform its contractual responsibilities in accordance with this Agreement.
3.2. CHANGE ORDERS. Either Party may request changes within the general scope of this
Agreement. If a requested change causes an increase or decrease in the cost or time required to
perform this Agreement, the Parties will agree to an equitable adjustment of the Contract Price or
applicable subscription fees, Performance Schedule, or both, and will reflect the adjustment in a change
order or Addendum. Neither Party is obligated to perform requested changes unless both Parties
execute a written change order.
3.3. TERM. Unless terminated in accordance with other provisions of this Agreement or extended by
mutual agreement of the Parties, the term of this Agreement begins on the Elective Date and continues
until the date of Final Project Acceptance or expiration of the Warranty Period, or completion of the
Services, whichever occurs last. The term and the effective date of recurring Services will be set forth in
the applicable Addendum.
3.4. ADDITIONAL EQUIPMENT OR SOFTWARE. For three (3) years after the expiration date of the
Agreement, Customer may order additional Equipment or Software, if it is then available. Each purchase
order must refer to this Agreement, the expiration date of the Agreement, and must specify the pricing
and delivery terms. The Parties agree that, notwithstanding expiration of the Agreement, the applicable
provisions of this Agreement (except for pricing, delivery, passage of title and risk of loss to Equipment,
warranty commencement, and payment terms) will govern the purchase and sale of the additional
Equipment or Software. Additional or contrary terms in the purchase order will be inapplicable, unless
signed by both parties. Title and risk of loss to additional Equipment will pass at shipment, warranty will
commence upon delivery, and payment is due within thirty (30) days after the invoice date. Motorola will
send Customer an invoice as the additional Equipment is shipped or Software is licensed. Alternatively,
Customer may register with and place orders through the Motorola Solutions Customer Portal
eCommerce Shop, and this Agreement will be the "Underlying Agreement" for those eCommerce
transactions rather than the eCommerce Shop Terms and Conditions of Sale. eCommerce Shop
registration and other information may be found at
https..//www.motorolasolutions.com/en us/registration and the shop support telephone number is
ih001 81 4-0601.
3.5. MOTOROLA SOFTWARE. Any Motorola Software, including subsequent releases, is licensed to
Customer solely in accordance with the Software License Agreement. Customer hereby accepts and
agrees to abide by all of the terms and restrictions of the Software License Agreement.
3.6. NON-MOTOROLA SOFTWARE. Any Non-Motorola Software is licensed to Customer in
accordance with the standard license, terms, and restrictions of the copyright owner on the Elective Date
unless the copyright owner has granted to Motorola the right to sublicense the Non-Motorola Software
pursuant to the Software License Agreement, in which case it applies and the copyright owner will have
all of Licensor's rights and protections under the Software License Agreement. Motorola makes no
representations or warranties of any kind regarding Non-Motorola Software. Non-Motorola Software may
include Open Source Software.
3.7. SUBSTITUTIONS. At no additional cost to Customer, Motorola may substitute any Equipment,
Software, or services to be provided by Motorola, if the substitute meets or exceeds the Specifications
and is of equivalent or better quality to the Customer. Any substitution will be reflected in a change order.
3.8. OPTIONAL EQUIPMENT OR SOFTWARE. This paragraph applies only if a "Priced Options"
exhibit is shown in Section 1, or if the parties amend this Agreement to add a Priced Options exhibit.
During the term of the option as stated in the Priced Options exhibit (or if no term is stated, then for one
(1) year after the Effective Date), Customer has the right and option to purchase the equipment, software,
Lease Communications System and Services Agreement v.2.9.2021
4
and related services that are described in the Priced Options exhibit. Customer may exercise this option
by giving written notice to Seller which must designate what equipment, software, and related services
Customer is selecting (including quantities, if applicable). To the extent they apply, the terms and
conditions of this Agreement will govern the transaction; however, the parties acknowledge that certain
provisions must be agreed upon, and they agree to negotiate those in good faith promptly after Customer
delivers the option exercise notice. Examples of provisions that may need to be negotiated are: specific
lists of deliverables, statements of work, acceptance test plans, delivery and implementation schedules,
payment terms, maintenance and support provisions, additions to or modifications of the Software
License Agreement, hosting terms, and modifications to the acceptance and warranty provisions.
Section 4 SERVICES
4.1. If Customer desires and Motorola agrees to continue Services beyond the Term, Customer's
issuance and Motorola's acceptance of a purchase order for Services will serve as an automatic
extension of the Agreement for purposes of the continuing Services. Only the terms and conditions
applicable to the performance of Services will apply to the extended Agreement.
4.2. During the Warranty Period, in addition to warranty services, Motorola will provide maintenance
Services for the Equipment and support for the Motorola Software pursuant to the applicable
maintenance and support Statements of Work. Support for the Motorola Software will be in accordance
with Motorola's established Software Support Policy. Copies of the SwSP can be found at
https://www.motorolasolutions.com/content/dam/msi/secure/services/software policv.pdf and will
be sent by mail, email or fax to Customer upon written request. Maintenance Services and support during
the Warranty Period are included in the Contract Price. Unless already included in the Contract Price, if
Customer wishes to purchase 1) additional maintenance or software support services during the Warranty
Period; or 2) continue or expand maintenance, software support, installation, and/or SUA services after
the Warranty Period, Motorola will provide the description of and pricing for such services in a separate
proposal document. Unless otherwise agreed by the parties in writing, the terms and conditions in this
Agreement applicable to maintenance, support, installation, and/or SUA Services, will be included in the
Maintenance and Support Addendum, SUA Addendum, the applicable Statements of Work, and the
proposal, (if applicable).These collective terms will govern the provision of such Services.
To obtain any such additional Services, Customer will issue a purchase order referring to this Agreement
and the separate proposal document. Omission of reference to this Agreement in Customer's purchase
order will not affect the applicability of this Agreement. Motorola's proposal may include a cover page
entitled "Service Agreement" or "Installation Agreement", as applicable, and other attachments. These
cover pages and other attachments are incorporated into this Agreement by this reference
4.3. PROFESSIONAL AND SUBSCRIPTION SERVICES. If Customer purchases professional or
subscription Services as part of the Solution, additional or different terms specific to such Service will be
included in the applicable Addendum and will apply to those Services. Customer may purchase
additional professional or subscription services by issuing a purchase order referencing this Agreement
and Motorola's proposal for such additional services.
4.4. Any information in the form of specifications, drawings, reprints, technical information or
otherwise furnished to Customer in providing Services under this Agreement or data viewed, accessed,
will remain Motorola's property, will be deemed proprietary, Confidential Information. This Confidential
Information will be promptly returned at Motorola's request.
4.5. TOOLS. All tools, equipment, dies, gauges, models, drawings or other materials paid for or
furnished by Motorola for the purpose of providing Services under this Agreement will be and remain the
sole property of Motorola. Customer will safeguard all such property while it is in Customer's custody or
control, be liable for any loss or damage to this property, and return it to Motorola upon request. This
property will be held by Customer for Motorola's use without charge and may be removed from
Customer's premises by Motorola at any time without restriction. Upon termination of the contract for any
Lease Communications System and Services Agreement v.2.9.2021
5
reason, Customer shall return to Motorola all equipment delivered to Customer.
4.6. COVENANT NOT TO EMPLOY. During the term of this Agreement and continuing for a period of
two (2) years thereafter, Customer will not hire, engage on contract, solicit the employment of, or
recommend employment to any third party of any employee of Motorola or its subcontractors without the
prior written authorization of Motorola. This provision applies only to those employees of Motorola or its
subcontractors who are responsible for rendering Services under this Agreement. If this provision is
found to be overly broad under applicable law, it will be modified as necessary to conform to applicable
law.
4.7. CUSTOMER OBLIGATIONS. If the applicable Statement of Work or Addendum contains
assumptions that affect the Services or Deliverables, Customer will verify that they are accurate and
complete. Any information that Customer provides to Motorola concerning the Services or Deliverables
will be accurate and complete in all material respects. Customer will make timely decisions and obtain
any required management approvals that are reasonably necessary for Motorola to perform the Services
and its other duties under this Agreement. Unless the Statement of Work states the contrary, Motorola
may rely upon and is not required to evaluate, confirm, reject, modify, or provide advice concerning any
assumptions and Customer-provided information, decisions and approvals described in this paragraph.
4.8. ASSUMPTIONS. It any assumptions or conditions contained in this Agreement, applicable
Addenda or Statements of Work prove to be incorrect or if Customer's obligations are not performed,
Motorola's ability to perform under this Agreement may be impacted and changes to the Contract Price,
subscription tees, project schedule, Deliverables, or other changes may be necessary.
4.9. NON-PRECLUSION. If, as a result of the Services performed under this Agreement, Motorola
recommends that Customer purchase products or other services, nothing in this Agreement precludes
Motorola from participating in a future competitive bidding process or otherwise offering or selling the
recommended products or other services to Customer. Customer represents that this paragraph does
not violate its procurement or other laws, regulations, or policies.
4.10. PROPRIETARY MATERIALS. Customer acknowledges that Motorola may use and/or provide
Customer with access to Proprietary Materials and Derivative Proprietary Materials. The Proprietary
Materials and the Derivative Proprietary Materials are the sole and exclusive property of Motorola and
Motorola retains all right, title and interest in and to the Proprietary Materials and Derivative Proprietary
Materials.
4.11. ADDITIONAL SERVICES. Any services performed by Motorola outside the scope of this
Agreement at the direction of Customer will be considered to be additional Services which are subject to
additional charges. Any agreement to perform additional Services will be reflected in a written and
executed change order,Addendum or amendment to this Agreement.
Section 5 PERFORMANCE SCHEDULE
The Parties will perform their respective responsibilities in accordance with the Performance Schedule.
By executing this Agreement, Customer authorizes Motorola to proceed with contract performance.
Section 6 CONTRACT PRICE, PAYMENT AND INVOICING
6.1. Customer affirms that a purchase order or notice to proceed is not required for contract performance
or for subsequent years of service, if any, and that sufficient funds have been appropriated in accordance
with applicable law. The Customer will pay all invoices as received from Motorola and any changes in
scope will be subject to the change order process as described in this Agreement. At the time of
execution of this Agreement, the Customer will provide all necessary reference information to include on
invoices for payment in accordance with this Agreement.
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6.2. CONTRACT PRICE. The Contract Price in U.S. dollars is $6,019,933.00 The Contract Price will
be paid via the disbursement of the financing proceeds pursuant to the Equipment Lease-Purchase
Agreement executed between the parties along with a down-payment of $2,000,000.00 to be paid via
milestones included in Exhibit B. Motorola has priced the Services, Software, and Equipment as an
integrated System. A change in Software or Equipment quantities, or Services, may affect the overall
Contract Price, including discounts it applicable. Fees for professional, SUA, and/or subscription services
which are not included in the Contract Price may be listed and invoiced according to the pricing pages of
the proposal, Exhibit B, or the applicable Addendum. Invoices will be mailed or emailed to Customer
pursuant to Section 6.4, Invoicing and Shipping Addresses. For Customer's reference, the Federal Tax
Identification Number for Motorola Solutions, Inc. is 36-1115800.
6.3. FREIGHT, TITLE, AND RISK OF LOSS. Motorola will pre-pay and add all freight charges to the
invoices. Unless otherwise stated in the Equipment Lease-Purchase Agreement, title and risk of loss to
the Equipment will pass to Customer upon shipment. Title to Software will not pass to Customer at any
time. Motorola will pack and ship all Equipment in accordance with good commercial practices.
6.4. INVOICING AND SHIPPING ADDRESSES. Invoices will be sent to the Customer at the following
address:
Name: Dewayne Rose
Address: 205 S Redding St, West Memphis, AR 72301
Phone: 901-647-2132
E-INVOICE.To receive invoices via email:
Customer Account Number:
Customer Accounts Payable Email: tperry@wesimemphisar.gov
Customer CC(optional) Email:
The address which is the ultimate destination where the Equipment will be delivered to Customer is:
Name: City of West Memphis, AR
Address: 205 S Redding St, West Memphis, AR 72301
The Equipment will be shipped to the Customer at the following address (insert if this information is
known):
Name: City of West Memphis, AR
Address: 205 S Redding St, West Memphis, AR 72301
Phone: 870-702-5159
Customer may change this information by giving written notice to Motorola.
Section 7 SITES AND SITE CONDITIONS
7.1. ACCESS TO SITES. In addition to its responsibilities described elsewhere in this Agreement,
Customer will provide a designated project manager; all necessary construction and building permits,
zoning variances, licenses, and any other approvals that are necessary to develop or use the sites and
mounting locations; and access to the worksites or vehicles identified in the Technical and
Implementation Documents as reasonably requested by Motorola so that it may perform its duties in
accordance with the Performance Schedule and Statement of Work. If the Statement of Work so
indicates, Motorola may assist Customer in the local building permit process.
7.2. SITE CONDITIONS. Customer will ensure that all work sites it provides will be safe, secure, and
in compliance with all applicable industry and OSHA standards. To the extent applicable and unless the
Statement of Work states to the contrary, Customer will ensure that these work sites have adequate:
physical space; air conditioning and other environmental conditions; adequate and appropriate electrical
power outlets, distribution, equipment and connections; and adequate telephone or other communication
lines (including modem access and adequate interfacing networking capabilities), all for the installation,
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use and maintenance of the System. Before installing the Equipment or Software at a work site, Motorola
may inspect the work site and advise Customer of any apparent deficiencies or non-conformities with the
requirements of this Section. This Agreement is predicated upon normal soil conditions as defined by the
version of E.I.A. standard RS-222 in effect on the Effective Date.
7.3. SITE ISSUES. If a Party determines that the sites identified in the Technical and Implementation
Documents are no longer available or desired, or if subsurface, structural, adverse environmental or
latent conditions at any site differ from those indicated in the Technical and Implementation Documents,
the Parties will promptly investigate the conditions and will select replacement sites or adjust the
installation plans and specifications as necessary. If change in sites or adjustment to the installation
plans and specifications causes a change in the cost or time to perform, the Parties will equitably amend
the Contract Price, Performance Schedule, or both, by a change order.
Section 8 TRAINING
Any training to be provided by Motorola to Customer will be described in the applicable Statement of
Work. Customer will notify Motorola immediately if a date change for a scheduled training program is
required. If Motorola incurs additional costs because Customer reschedules a training program less than
thirty(30) days before its scheduled start date, Motorola may recover these additional costs.
Section 9 SYSTEM ACCEPTANCE
9.1. COMMENCEMENT OF ACCEPTANCE TESTING. Motorola will provide to Customer at least ten
(10) days notice before the Acceptance Tests commence. System testing will occur only in accordance
with the Acceptance Test Plan.
9.2. SYSTEM ACCEPTANCE. System Acceptance will occur upon successful completion of the
Acceptance Tests. Upon System Acceptance, the Parties will memorialize this event by promptly
executing a System Acceptance Certificate. If the Acceptance Test Plan includes separate tests for
individual Subsystems or phases of the System, acceptance of the individual Subsystem or phase will
occur upon the successful completion of the Acceptance Tests for the Subsystem or phase, and the
Parties will promptly execute an acceptance certificate for the Subsystem or phase. If Customer believes
the System has failed the completed Acceptance Tests, Customer will provide to Motorola a written notice
that includes the specific details of the failure. If Customer does not provide to Motorola a failure notice
within thirty (30) days after completion of the Acceptance Tests, System Acceptance will be deemed to
have occurred as of the completion of the Acceptance Tests. Minor omissions or variances in the System
that do not materially impair the operation of the System as a whole will not postpone System Acceptance
or Subsystem acceptance, but will be corrected according to a mutually agreed schedule.
9.3. BENEFICIAL USE. Customer acknowledges that Motorola's ability to perform its implementation
and testing responsibilities may be impeded if Customer begins using the System before System
Acceptance. Therefore, Customer will not commence Beneficial Use before System Acceptance without
Motorola's prior written authorization, which will not be unreasonably withheld. Motorola is not responsible
for System performance deficiencies that occur during unauthorized Beneficial Use. Upon
commencement of Beneficial Use, Customer assumes responsibility for the use and operation of the
System.
9.4. FINAL PROJECT ACCEPTANCE. Final Project Acceptance will occur after System Acceptance
when all deliverables and other work have been completed. When Final Project Acceptance occurs, the
parties will promptly memorialize this final event by so indicating on the System Acceptance Certificate
(Exhibit D) and the Equipment Lease Purchase Agreement Delivery and Acceptance Certificate (Exhibit
E).
Section 10 REPRESENTATIONS AND WARRANTIES
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10.1. SYSTEM FUNCTIONALITY. Motorola represents that the System will perform in accordance
with the Specifications in all material respects. Upon System Acceptance or Beneficial Use, whichever
occurs first, this System functionality representation is fulfilled. Motorola is not responsible for System
performance deficiencies that are caused by ancillary equipment not furnished by Motorola which is
attached to or used in connection with the System or for reasons or parties beyond Motorola's control,
such as natural causes; the construction of a building that adversely affects the microwave path reliability
or radio frequency (RF) coverage; the addition of frequencies at System sites that cause RF interference
or intermodulation; or Customer changes to load usage or configuration outside the Specifications.
10.2. EQUIPMENT WARRANTY. During the Warranty Period, Motorola warrants that the Equipment
under normal use and service will be free from material defects in materials and workmanship. If System
Acceptance is delayed beyond six (6) months alter shipment of the Equipment by events or causes
beyond Motorola's control, this warranty expires eighteen (18) months after the shipment of the
Equipment.
10.3. SOFTWARE WARRANTY. Except as described in the SwSP and unless otherwise stated in the
Software License Agreement, during the Warranty Period, Motorola warrants the Software in accordance
with the warranty terms set forth in the Software License Agreement and the provisions of this Section
that are applicable to the Software. If System Acceptance is delayed beyond six (6) months after
shipment of the Motorola Software by events or causes beyond Motorola's control, this warranty expires
eighteen (18) months after the shipment of the Motorola Software. Nothing in this Warranty provision
is intended to conflict or modify the Software Support Policy. In the event of an ambiguity or
conflict between the Software Warranty and Software Support Policy,the Software Support Policy
governs.
10.4. EXCLUSIONS TO EQUIPMENT AND SOFTWARE WARRANTIES. These warranties do not
apply to: (i) defects or damage resulting from: use of the Equipment or Software in other than its normal,
customary, and authorized manner; accident, liquids, neglect, or acts of God; testing, maintenance,
disassembly, repair, installation, alteration, modification, or adjustment not provided or authorized in
writing by Motorola; Customer's failure to comply with all applicable industry and OSHA standards; (ii)
breakage of or damage to antennas unless caused directly by defects in material or workmanship; (iii)
Equipment that has had the serial number removed or made illegible; (iv) batteries (because they carry
their own separate limited warranty) or consumables; (v) freight costs to ship Equipment to the repair
depot; (vi) scratches or other cosmetic damage to Equipment surfaces that does not affect the operation
of the Equipment; and (vii) normal or customary wear and tear.
10.5. SERVICE WARRANTY. During the Warranty Period, Motorola warrants that the Services will be
provided in a good and workmanlike manner and will conform in all material respects to the applicable
Statement of Work. Services will be free of defects in materials and workmanship for a period of ninety
(90) days from the date the performance of the Services are completed. Customer acknowledges that
the Deliverables may contain recommendations, suggestions or advice from Motorola to Customer
(collectively, "recommendations"). Motorola makes no warranties concerning those recommendations,
and Customer alone accepts responsibility for choosing whether and how to implement the
recommendations and the results to be realized from implementing them.
10.6. WARRANTY CLAIMS. To assert a warranty claim, Customer must notify Motorola in writing of
the claim before the expiration of the Warranty Period. Upon receipt of this notice, Motorola will
investigate the warranty claim. If this investigation confirms a valid Equipment or Software warranty
claim, Motorola will (at its option and at no additional charge to Customer) repair the defective Equipment
or Motorola Software, replace it with the same or equivalent product, or refund the price of the defective
Equipment or Motorola Software. These actions will be the full extent of Motorola's liability for the
warranty claim. In the event of a valid Services warranty claim, Customer's sole remedy is to require
Motorola to re-perform the non-conforming Service or to refund, on a pro-rata basis, the fees paid for the
non-conforming Service. If this investigation indicates the warranty claim is not valid, then Motorola may
invoice Customer for responding to the claim on a time and materials basis using Motorola's then current
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labor rates. Repaired or replaced product is warranted for the balance of the original applicable warranty
period. All replaced products or parts will become the property of Motorola.
10.7. ORIGINAL END USER IS COVERED. These express limited warranties are extended by
Motorola to the original user purchasing the System or Services for commercial, industrial, or
governmental use only, and are not assignable or transferable.
10.8. DISCLAIMER OF OTHER WARRANTIES. THESE WARRANTIES ARE THE COMPLETE
WARRANTIES FOR THE EQUIPMENT AND MOTOROLA SOFTWARE PROVIDED UNDER THIS
AGREEMENT AND ARE GIVEN IN LIEU OF ALL OTHER WARRANTIES. MOTOROLA DISCLAIMS
ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED
WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR
PURPOSE.
Section 11 DELAYS
11.1. FORCE MAJEURE. Neither Party will be liable for its non-performance or delayed performance if
caused by a Force Majeure. A Party that becomes aware of a Force Majeure that will significantly delay
performance will notify the other Party promptly (but in no event later than fifteen days) after it discovers
the Force Majeure. If a Force Majeure occurs, the Parties will execute a change order to extend the
Performance Schedule or applicable Addenda for a time period that is reasonable under the
circumstances.
11.2. PERFORMANCE SCHEDULE DELAYS CAUSED BY CUSTOMER. If Customer (including its
other contractors) delays the Performance Schedule, it will make the promised payments according to the
Payment schedule as if no delay occurred; and the Parties will execute a change order to extend the
Performance Schedule and, if requested, compensate Motorola for all reasonable charges incurred
because of the delay. Delay charges may include costs incurred by Motorola or its subcontractors for
additional freight, warehousing and handling of Equipment; extension of the warranties; travel;
suspending and re-mobilizing the work; additional engineering, project management, and standby time
calculated at then current rates; and preparing and implementing an alternative implementation plan.
Section 12 DISPUTES
The Parties will use the following procedure to address any dispute arising under this Agreement (a
"Dispute").
12.1. GOVERNING LAW. This Agreement will be governed by and construed in accordance with the
laws of the State in which the System is installed.
12.2. NEGOTIATION. Either Party may initiate the Dispute resolution procedures by sending a notice
of Dispute ("Notice of Dispute"). The Parties will attempt to resolve the Dispute promptly through good
faith negotiations including 1) timely escalation of the Dispute to executives who have authority to settle
the Dispute and who are at a higher level of management than the persons with direct responsibility for
the matter and 2) direct communication between the executives. If the Dispute has not been resolved
within ten (10) days from the Notice of Dispute, the Parties will proceed to mediation.
12.3. MEDIATION. The Parties will choose an independent mediator within thirty (30) days of a notice
to mediate from either Party ("Notice of Mediation"). Neither Party may unreasonably withhold consent to
the selection of a mediator. It the Parties are unable to agree upon a mediator, either Party may request
that American Arbitration Association nominate a mediator. Each Party will bear its own costs of
mediation, but the Parties will share the cost of the mediator equally. Each Party will participate in the
mediation in good faith and will be represented at the mediation by a business executive with authority to
settle the Dispute.
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12.4. LITIGATION, VENUE and JURISDICTION. If a Dispute remains unresolved for sixty (60) days
after receipt of the Notice of Mediation, either Party may then submit the Dispute to a court of competent
jurisdiction in the state in which the System is installed. Each Party irrevocably agrees to submit to the
exclusive jurisdiction of the courts in such state over any claim or matter arising under or in connection
with this Agreement.
12.5. CONFIDENTIALITY. All communications pursuant to subsections 12.2 and 12.3 will be treated
as compromise and settlement negotiations for purposes of applicable rules of evidence and any
additional confidentiality protections provided by applicable law. The use of these Dispute resolution
procedures will not be construed under the doctrines of !aches, waiver or estoppel to affect adversely the
rights of either Party.
Section 13 DEFAULT AND TERMINATION
13.1. DEFAULT BY A PARTY. If either Party fails to perform a material obligation under this
Agreement, the other Party may consider the non-performing Party to be in default (unless a Force
Majeure causes the failure) and may assert a default claim by giving the non-performing Party a written
and detailed notice of default. Except for a default by Customer for failing to pay any amount when due
under this Agreement which must be cured immediately, the defaulting Party will have thirty (30) days
after receipt of the notice of default to either cure the default or, if the default is not curable within thirty
(30) days, provide a written cure plan. The defaulting Party will begin implementing the cure plan
immediately after receipt of notice by the other Party that it approves the plan. If Customer is the
defaulting Party, Motorola may stop work on the project until it approves the Customer's cure plan.
13.2. FAILURE TO CURE. If a defaulting Party fails to cure the default as provided above in Section
13.1, unless otherwise agreed in writing, the non-defaulting Party may terminate any unfulfilled portion of
this Agreement. In the event of termination for default, the defaulting Party will promptly return to the non-
defaulting Party any of its Confidential Information. If Customer is the non-defaulting Party, terminates
this Agreement as permitted by this Section, and completes the System through a third Party, Customer
may as its exclusive remedy recover from Motorola reasonable costs incurred to complete the System to
a capability not exceeding that specified in this Agreement less the unpaid portion of the Contract Price.
Customer will mitigate damages and provide Motorola with detailed invoices substantiating the charges.
In the event Customer elects to terminate this Agreement for any reason other than default, Customer
shall pay Motorola for the conforming Equipment and/or Software delivered and all services performed.
Section 14 INDEMNIFICATION
14.1. GENERAL INDEMNITY BY Motorola. Motorola will indemnify and hold Customer harmless from
any and all liability, expense, judgment, suit, cause of action, or demand for personal injury, death, or
direct damage to tangible property which may accrue against Customer to the extent it is caused by the
negligence of Motorola, its subcontractors, or their employees or agents, while performing their duties
under this Agreement, if Customer gives Motorola prompt, written notice of any claim or suit. Customer
will cooperate with Motorola in its defense or settlement of the claim or suit. This Section sets forth the
full extent of Motorola's general indemnification of Customer from liabilities that are in any way related to
Motorola's performance under this Agreement.
14.2. GENERAL INDEMNITY BY CUSTOMER. To the extent allowed by Arkansas law, Customer will
indemnify and hold Motorola harmless from any and all liability, expense, judgment, suit, cause of action,
or demand for personal injury, death, or direct damage to tangible property which may accrue against
Motorola to the extent it is caused by the negligence of Customer, its other contractors, or their
employees or agents, while performing their duties under this Agreement, if Motorola gives Customer
prompt, written notice of any the claim or suit. Motorola will cooperate with Customer in its defense or
settlement of the claim or suit. This Section sets forth the full extent of Customer's general
indemnification of Motorola from liabilities that are in any way related to Customer's performance under
this Agreement.
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14.3. PATENT AND COPYRIGHT INFRINGEMENT.
14.3.1. Motorola will defend at its expense any suit brought against Customer to the extent it is based on
a third-party claim alleging that the Equipment manufactured by Motorola or the Motorola Software
("Motorola Product") directly infringes a United States patent or copyright ("Infringement Claim").
Motorola's duties to defend and indemnify are conditioned upon: Customer promptly notifying Motorola in
writing of the Intringement Claim; Motorola having sole control of the defense of the suit and all
negotiations for its settlement or compromise; and Customer providing to Motorola cooperation and, if
requested by Motorola, reasonable assistance in the defense of the Infringement Claim. In addition to
Motorola's obligation to defend, and subject to the same conditions, Motorola will pay all damages finally
awarded against Customer by a court of competent jurisdiction for an Infringement Claim or agreed to, in
writing, by Motorola in settlement of an Infringement Claim.
14.3.2 If an Infringement Claim occurs, or in Motorola's opinion is likely to occur, Motorola may at its
option and expense: (a) procure for Customer the right to continue using the Motorola Product; (b)
replace or modify the Motorola Product so that it becomes non-infringing while providing functionally
equivalent performance; or (c) accept the return of the Motorola Product and grant Customer a credit for
the Motorola Product, less a reasonable charge for depreciation. The depreciation amount will be
calculated based upon generally accepted accounting standards.
14.3.3 Motorola will have no duty to defend or indemnify for any Infringement Claim that is based upon:
(a) the combination of the Motorola Product with any software, apparatus or device not furnished by
Motorola; (b) the use of ancillary equipment or software not furnished by Motorola and that is attached to
or used in connection with the Motorola Product; (c) Motorola Product designed or manufactured in
accordance with Customer's designs, specifications, guidelines or instructions, if the alleged infringement
would not have occurred without such designs, specifications, guidelines or instructions; (d) a
modification of the Motorola Product by a party other than Motorola; (e) use of the Motorola Product in a
manner for which the Motorola Product was not designed or that is inconsistent with the terms of this
Agreement; or (f)the failure by Customer to install an enhancement release to the Motorola Software that
is intended to correct the claimed infringement. In no event will Motorola's liability resulting from its
indemnity obligation to Customer extend in any way to royalties payable on a per use basis or the
Customer's revenues, or any royalty basis other than a reasonable royalty based upon revenue derived
by Motorola from Customer from sales or license of the infringing Motorola Product.
14.3.4. This Section 14 provides Customer's sole and exclusive remedies and Motorola's entire liability in
the event of an Infringement Claim. Customer has no right to recover and Motorola has no obligation to
provide any other or further remedies, whether under another provision of this Agreement or any other
legal theory or principle, in connection with an Infringement Claim. In addition, the rights and remedies
provided in this Section 14 are subject to and limited by the restrictions set forth in Section 15.
Section 15 LIMITATION OF LIABILITY
Except for personal injury or death, Motorola's total liability, whether for breach of contract, warranty,
negligence, strict liability in tort, indemnification, or otherwise, will be limited to the direct damages
recoverable under law, but not to exceed the price of the Equipment, Software, or implementation and
other one-time Services with respect to which losses or damages are claimed. With respect to all
subscription or other ongoing Services and unless as otherwise provided under the applicable Addenda,
Motorola's total liability will be limited to the direct damages recoverable under law, but not to exceed the
price of twelve (12) months of Services preceding the incident giving rise to the claim. ALTHOUGH THE
PARTIES ACKNOWLEDGE THE POSSIBILITY OF SUCH LOSSES OR DAMAGES, THEY AGREE
THAT MOTOROLA WILL NOT BE LIABLE FOR ANY COMMERCIAL LOSS, INCONVENIENCE, LOSS
OF USE, LOSS TIME, DATA, GOODWILL, REVENUES, PROFITS OR SAVINGS; OR OTHER
SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES IN ANY WAY RELATED TO OR
ARISING FROM THIS AGREEMENT, THE SALE OR USE OF THE EQUIPMENT OR SOFTWARE, OR
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THE PERFORMANCE OF SERVICES BY MOTOROLA PURSUANT TO THIS AGREEMENT. This
limitation of liability provision survives the expiration or termination of the Agreement and applies
notwithstanding any contrary provision. No action for contract breach or otherwise relating to the
transactions contemplated by this Agreement may be brought more than one (1) year after the accrual of
the cause of action, except for money due upon an open account.
Section 16 CONFIDENTIALITY AND PROPRIETARY RIGHTS
16.1. CONFIDENTIAL INFORMATION.
16.1.1. Each party is a disclosing party ("Discloser') and a receiving party ("Recipient") under this
Agreement. All Deliverables will be deemed to be Motorola's Confidential Information. During the term of
this Agreement and for a period of three (3) years from the expiration or termination of this Agreement,
Recipient will CO not disclose Confidential Information to any third party; (ii) restrict disclosure of
Confidential Information to only those employees (including, but not limited to, employees of any wholly
owned subsidiary, a parent company, any other wholly owned subsidiaries of the same parent company),
agents or consultants who must be directly involved with the Confidential Information for the purpose and
who are bound by confidentiality terms substantially similar to those in this Agreement; (Ili) not copy,
reproduce, reverse engineer, de-compile or disassemble any Confidential Information; (iv) use the same
degree of care as for its own information of like importance, but at least use reasonable care, in
safeguarding against disclosure of Confidential Information; (v) promptly notify Discloser upon discovery
of any unauthorized use or disclosure of the Confidential Information and take reasonable steps to regain
possession of the Confidential Information and prevent further unauthorized actions or other breach of
this Agreement; and (vi) only use the Confidential Information as needed to fulfill this Agreement.
16.1.2. Recipient is not obligated to maintain as confidential, Confidential Information that Recipient can
demonstrate by documentation CO is now available or becomes available to the public without breach of
this agreement; (u) is explicitly approved for release by written authorization of Discloser; (iii) is lawfully
obtained from a third party or parties without a duty of confidentiality; (iv) is known to the Recipient prior to
such disclosure; or (v) is independently developed by Recipient without the use of any of Discloser's
Confidential Information or any breach of this Agreement.
16.1.3. All Confidential Information remains the property of the Discloser and will not be copied or
reproduced without the express written permission of the Discloser, except for copies that are absolutely
necessary in order to fulfill this Agreement. Within ten (10) days of receipt of Discloser's written request,
Recipient will return all Confidential Information to Discloser along with all copies and portions thereof, or
certify in writing that all such Confidential Information has been destroyed. However, Recipient may retain
one (1) archival copy of the Confidential Information that it may use only in case of a dispute concerning
this Agreement. No license, express or implied, in the Confidential Information is granted other than to
use the Confidential Information in the manner and to the extent authorized by this Agreement. The
Discloser warrants that it is authorized to disclose any Confidential Information it discloses pursuant to
this Agreement.
16.2. PRESERVATION OF MOTOROLA'S PROPRIETARY RIGHTS. Motorola, the third party
manufacturer of any Equipment, and the copyright owner of any Non-Motorola Software own and retain
all of their respective Proprietary Rights in the Equipment and Software, and nothing in this Agreement is
intended to restrict their Proprietary Rights. All intellectual property developed, originated, or prepared by
Motorola in connection with providing to Customer the Equipment, Software, or related services remain
vested exclusively in Motorola, and this Agreement does not grant to Customer any shared development
rights of intellectual property. Except as explicitly provided in the Software License Agreement, Motorola
does not grant to Customer, either directly or by implication, estoppel, or otherwise, any right, title or
interest in Motorola's Proprietary Rights. Customer will not modify, disassemble, peel components,
decompile, otherwise reverse engineer or attempt to reverse engineer, derive source code or create
derivative works from, adapt, translate, merge with other software, reproduce, distribute, sublicense, sell
or export the Software, or permit or encourage any third party to do so. The preceding sentence does not
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apply to Open Source Software which is governed by the standard license of the copyright owner.
16.3 VOLUNTARY DISCLOSURE. Except as required to fulfill its obligations under this Agreement,
Motorola will have no obligation to provide Customer with access to its Confidential Information and/or
proprietary information. Under no circumstances will Motorola be required to provide any data related to
cost and pricing.
16.4 DATA AND FEEDBACK.
16.4.1 To the extent permitted by law, Customer owns all right, title and interest in System Data created
solely by it or its agents (hereafter, "Customer Data"), and grants to Motorola the right to use, host, cache,
store, reproduce, copy, modify, combine, analyze, create derivatives from, communicate, transmit,
publish, display, and distribute such Customer Data.
16.4.2 Motorola owns all right, title and interest in data resulting from System Data that is or has been
transformed, altered, processed, aggregated, correlated or operated on (hereafter, "Derivative Data").
16.4.3 Any Feedback given by Customer is and will be entirely voluntary and, even if designated as
confidential, will not create any confidentiality obligation for Motorola. Motorola will be tree to use,
reproduce, license or otherwise distribute and exploit the Feedback without any obligation to Customer.
Customer acknowledges that Motorola's receipt of the Feedback does not imply or create recognition by
Motorola of either the novelty or originality of any idea. The parties further agree that all fixes,
modifications and improvements made to Motorola products or services conceived of or made by
Motorola that are based, either in whole or in part, on the Feedback are the exclusive property of
Motorola and all right, title and interest in and to such fixes, modifications or improvements to the
Motorola product or service will vest solely in Motorola.
Section 17 GENERAL
17.1. TAXES. The Contract Price does not include any excise, sales, lease, use, property, or other
taxes, assessments or duties, all of which will be paid by Customer except as exempt by law. If Motorola
is required to pay any of these taxes, Motorola will send an invoice to Customer and Customer will pay to
Motorola the amount of the taxes (including any interest and penalties) within thirty (30) days after the
date of the invoice. Customer will be solely responsible for reporting the Equipment for personal property
tax purposes, and Motorola will be solely responsible for reporting taxes on its income or net worth.
17.2. ASSIGNABILITY AND SUBCONTRACTING. Except as provided herein, neither Party may
assign this Agreement or any of its rights or obligations hereunder without the prior written consent of the
other Party, which consent will not be unreasonably withheld. Any attempted assignment, delegation, or
transfer without the necessary consent will be void. Notwithstanding the foregoing, Motorola may assign
this Agreement to any of its affiliates or its right to receive payment without the prior consent of Customer.
In addition, in the event Motorola separates one or more of its businesses (each a "Separated Business"),
whether by way of a sale, establishment of a joint venture, spin-off or otherwise (each a "Separation
Event"), Motorola may, without the prior written consent of the other Party and at no additional cost to
Motorola, assign this Agreement such that it will continue to benefit the Separated Business and its
affiliates (and Motorola and its affiliates, to the extent applicable) following the Separation Event.
Motorola may subcontract any of the work, but subcontracting will not relieve Motorola of its duties under
this Agreement.
17.3. WAIVER. Failure or delay by either Party to exercise a right or power under this Agreement will
not be a waiver of the right or power. For a waiver of a right or power to be effective, it must be in a
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writing signed by the waiving Party. An effective waiver of a right or power will not be construed as either
a future or continuing waiver of that same right or power, or the waiver of any other right or power.
17.4. SEVERABILITY. II a court of competent jurisdiction renders any part of this Agreement invalid or
unenforceable, that part will be severed and the remainder of this Agreement will continue in full force and
effect.
17.5. INDEPENDENT CONTRACTORS. Each Party will perform its duties under this Agreement as an
independent contractor. The Parties and their personnel will not be considered to be employees or
agents of the other Party. Nothing in this Agreement will be interpreted as granting either Party the right
or authority to make commitments of any kind for the other. This Agreement will not constitute, create, or
be interpreted as a joint venture, partnership or formal business organization of any kind.
17.6. HEADINGS AND SECTION REFERENCES. The section headings in this Agreement are
inserted only for convenience and are not to be construed as part of this Agreement or as a limitation of
the scope of the particular section to which the heading refers. This Agreement will be fairly interpreted in
accordance with its terms and conditions and not for or against either Party.
17.7. NOTICES. Notices required under this Agreement to be given by one Party to the other must be
in writing and either personally delivered or sent to the address provided by the other Party by certified
mail, return receipt requested and postage prepaid (or by a recognized courier service, such as Federal
Express, UPS, or DHL), or by facsimile with correct answerback received, and will be effective upon
receipt.
17.8. COMPLIANCE WITH APPLICABLE LAWS. Each Party will comply with all applicable federal,
state, and local laws, regulations and rules concerning the performance of this Agreement or use of the
System. Customer will obtain and comply with all Federal Communications Commission ("FCC") licenses
and authorizations required for the installation, operation and use of the System before the scheduled
installation of the Equipment. Although Motorola might assist Customer in the preparation of its FCC
license applications, neither Motorola nor any of its employees is an agent or representative of Customer
in FCC or other matters.
17.9 FUTURE REGULATORY REQUIREMENTS. The Parties acknowledge and agree that this is an
evolving technological area and therefore, laws and regulations regarding Services and use of Solution
may change. Changes to existing Services or the Solution required to achieve regulatory compliance
may be available for an additional fee. Any required changes may also impact the price for Services.
17.10. AUTHORITY TO EXECUTE AGREEMENT. Each Party represents that it has obtained all
necessary approvals, consents and authorizations to enter into this Agreement and to perform its duties
under this Agreement; the person executing this Agreement on its behalf has the authority to do so; upon
execution and delivery of this Agreement by the Parties, it is a valid and binding contract, enforceable in
accordance with its terms; and the execution, delivery, and performance of this Agreement does not
violate any bylaw, charter, regulation, law or any other governing authority of the Party.
17.11. ADMINISTRATOR LEVEL ACCOUNT ACCESS. If applicable to the type of System purchased by
Customer, Motorola will provide Customer with Administrative User Credentials. Customer agrees to only
grant access to the Administrative User Credentials to those personnel with the training and experience to
correctly use them. Customer is responsible for protecting Administrative User Credentials from
Lease Communications System and Services Agreement v.2.9.2021
15
disclosure and maintaining Credential validity by, among other things, updating passwords when
required. Customer may be asked to provide valid Administrative User Credentials when in contact with
Motorola System support personnel. Customer understands that changes made as the Administrative
User can significantly impact the performance of the System. Customer agrees that it will be solely
responsible for any negative impact on the System or its users by any such changes. System issues
occurring as a result of changes made using the Administrative User Credentials may impact Motorola's
ability to perform Services or other obligations under the Agreement. In such cases, a revision to the
appropriate provisions of the Agreement, including the Statement of Work, may be necessary. To the
extent Motorola provides assistance to correct any issues caused by or arising out of the use of or failure
to maintain Administrative User Credentials, Motorola will be entitled to bill Customer and Customer will
pay Motorola on a time and materials basis for resolving the issue.
17.12. SURVIVAL OF TERMS. The following provisions will survive the expiration or termination of this
Agreement for any reason: Section 3.5 (Motorola Software); Section 3.6 (Non-Motorola Software); if any
payment obligations exist, Sections 6.2 and 6.3 (Contract Price and Invoicing and Payment); Subsection
10.8 (Disclaimer of Implied Warranties); Section 12 (Disputes); Section 15 (Limitation of Liability); and
Section 16 (Confidentiality and Proprietary Rights); and all of the General provisions in Section 17.
17.13. ENTIRE AGREEMENT. This Agreement, including all Exhibits, constitutes the entire agreement
of the Parties regarding the subject matter of the Agreement and supersedes all previous agreements,
proposals, and understandings, whether written or oral, relating to this subject matter. This Agreement
may be executed in multiple counterparts, and shall have the same legal force and effect as if the Parties
had executed it as a single document. The Parties may sign in writing, or by electronic signature,
including by email. An electronic signature, or a facsimile copy or computer image, such as a PDF or tiff
image, of a signature, shall be treated as and shall have the same effect as an original signature. In
addition, an electronic signature, a true and correct facsimile copy or computer image of this Agreement
shall be treated as and shall have the same effect as an original signed copy of this document. This
Agreement may be amended or modified only by a written instrument signed by authorized
representatives of both Parties. The preprinted terms and conditions found on any Customer purchase or
purchase order, acknowledgment or other form will not be considered an amendment or modification of
this Agreement, even if a representative of each Party signs that document.
The Parties hereby enter into this Agreement as of the Effective Date.
Motorola Solutions, Inc. Customer
tee(
By: _ - By y
By ( /'�^^^� ! e(
Name: Name:/ AR 48 Ms C/ed 0P
Title: Title: / 4/dt
Date: Date: //d f
Lease Communications System and Services Agreement v.2.9.2021
16
Exhibit A
MOTOROLA SOFTWARE LICENSE AGREEMENT
This Exhibit A Motorola Software License Agreement ("Agreement") is between Motorola Solutions, Inc.,
("Motorola'), and_ ("Licensee").
For good and valuable consideration,the parties agree as follows:
Section 1 DEFINITIONS
1.1 "Designated Products" means products provided by Motorola to Licensee with which or for which
the Software and Documentation is licensed for use.
1.2 "Documentation" means product and software documentation that specifies technical and
performance features and capabilities, and the user, operation and training manuals for the Software
(including all physical or electronic media upon which such information is provided).
1.3 "Open Source Software" means software with either freely obtainable source code, license for
modification, or permission for free distribution.
1.4 "Open Source Software License" means the terms or conditions under which the Open Source
Software is licensed.
1.5 "Primary Agreement" means the agreement to which this exhibit is attached.
1.6 "Security Vulnerability" means a flaw or weakness in system security procedures, design,
implementation, or internal controls that could be exercised (accidentally triggered or intentionally
exploited) and result in a security breach such that data is compromised, manipulated or stolen or the
system damaged.
1.7 "Software" (i) means proprietary software in object code format, and adaptations, translations, de-
compilations, disassemblies, emulations, or derivative works of such software; (ii) means any
modifications, enhancements, new versions and new releases of the software provided by Motorola; and
(iii) may contain one or more items of software owned by a third party supplier. The term "Software" does
not include any third party software provided under separate license or third party software not licensable
under the terms of this Agreement.
Section 2 SCOPE
Motorola and Licensee enter into this Agreement in connection with Motorola's delivery of certain
proprietary software or products containing embedded or pre-loaded proprietary software, or both. This
Agreement contains the terms and conditions of the license Motorola is providing to Licensee, and
Licensee's use of the proprietary software and affiliated documentation.
Section 3 GRANT OF LICENSE
3.1. Subject to the provisions of this Agreement and the payment of applicable license fees, Motorola
grants to Licensee a personal, limited, non-transferable (except as permitted in Section 7) and non-
exclusive license under Motorola's copyrights and Confidential Information (as defined in the Primary
Agreement) embodied in the Software to use the Software, in object code form, and the Documentation
solely in connection with Licensee's use of the Designated Products. This Agreement does not grant any
Lease Communications System and Services Agreement v.2.9.2021
17
rights to source code.
3.2. It the Software licensed under this Agreement contains or is derived from Open Source Software,
the terms and conditions governing the use of such Open Source Software are in the Open Source
Software Licenses of the copyright owner and not this Agreement. It there is a conflict between the terms
and conditions of this Agreement and the terms and conditions of the Open Source Software Licenses
governing Licensee's use of the Open Source Software, the terms and conditions of the license grant of
the applicable Open Source Software Licenses will take precedence over the license grants in this
Agreement. If requested by Licensee, Motorola will use commercially reasonable efforts to: (i) determine
whether any Open Source Software is provided under this Agreement; and (ii) identify the Open Source
Software (or specify where that license may be found).
3.3 TO THE EXTENT, IF ANY, THAT THERE IS A SEPARATE LICENSE AGREEMENT
PACKAGED WITH, OR PROVIDED ELECTRONICALLY WITH, A PARTICULAR PRODUCT THAT
BECOMES EFFECTIVE ON AN ACT OF ACCEPTANCE BY THE END USER, THEN THAT
AGREEMENT SUPERSEDES THE SOFTWARE LICENSE AGREEMENT AS TO THE END USER OF
EACH SUCH PRODUCT.
Section 4 LIMITATIONS ON USE
4.1. Licensee may use the Software only for Licensee's internal business purposes and only in
accordance with the Documentation. Any other use of the Software is strictly prohibited. Without limiting
the general nature of these restrictions, Licensee will not make the Software available for use by third
parties on a "time sharing," "application service provider," or "service bureau" basis or for any other
similar commercial rental or sharing arrangement.
4.2. Licensee will not, and will not allow or enable any third party to: (i) reverse engineer,
disassemble, peel components, decompile, reprogram or otherwise reduce the Software or any portion to
a human perceptible form or otherwise attempt to recreate the source code; (ii) modify, adapt, create
derivative works of, or merge the Software; (iii) copy, reproduce, distribute, lend, or lease the Software or
Documentation to any third party, grant any sublicense or other rights in the Software or Documentation
to any third party, or take any action that would cause the Software or Documentation to be placed in the
public domain; (iv) remove, or in any way alter or obscure, any copyright notice or other notice of
Motorola's proprietary rights; (v) provide, copy, transmit, disclose, divulge or make the Software or
Documentation available to, or permit the use of the Software by any third party or on any machine
except as expressly authorized by this Agreement; or (vi) use, or permit the use of, the Software in a
manner that would result in the production of a copy of the Software solely by activating a machine
containing the Software. Licensee may make one copy of Software to be used solely for archival, back-
up, or disaster recovery purposes; provided that Licensee may not operate that copy of the Software at
the same time as the original Software is being operated. Licensee may make as many copies of the
Documentation as it may reasonably require for the internal use of the Software.
4.3. Unless otherwise authorized by Motorola in writing, Licensee will not, and will not enable or allow
any third party to: (i) install a licensed copy of the Software on more than one unit of a Designated
Product; or(ii) copy onto or transfer Software installed in one unit of a Designated Product onto one other
device. Licensee may temporarily transfer Software installed on a Designated Product to another device
if the Designated Product is inoperable or malfunctioning, if Licensee provides written notice to Motorola
of the temporary transfer and identifies the device on which the Software is transferred. Temporary
transfer of the Software to another device must be discontinued when the original Designated Product is
returned to operation and the Software must be removed from the other device. Licensee must provide
prompt written notice to Motorola at the time temporary transfer is discontinued.
4.4 Licensee will maintain, during the term of this Agreement and for a period of two years thereafter,
accurate records relating to this license grant to verity compliance with this Agreement. Motorola or an
independent third party("Auditor") may inspect Licensee's premises, books and records, upon reasonable
Lease Communications System and Services Agreement v.2.9.2021
18
prior notice to Licensee, during Licensee's normal business hours and subject to Licensee's facility and
security regulations. Motorola is responsible for the payment of all expenses and costs of the Auditor.
Any information obtained by Motorola and the Auditor will be kept in strict confidence by Motorola and the
Auditor and used solely for the purpose of verifying Licensee's compliance with the terms of this
Agreement.
Section 5 OWNERSHIP AND TITLE
Motorola, its licensors, and its suppliers retain all of their proprietary rights in any form in and to the
Software and Documentation, including, but not limited to, all rights in patents, patent applications,
inventions, copyrights, trademarks, trade secrets, trade names, and other proprietary rights in or relating
to the Software and Documentation (including any corrections, bug fixes, enhancements, updates,
modifications, adaptations, translations, de-compilations, disassemblies, emulations to or derivative works
from the Software or Documentation, whether made by Motorola or another party, or any improvements
that result from Motorola's processes or, provision of information services). No rights are granted to
Licensee under this Agreement by implication, estoppel or otherwise, except for those rights which are
expressly granted to Licensee in this Agreement. All intellectual property developed, originated, or
prepared by Motorola in connection with providing the Software, Designated Products, Documentation or
related services, remains vested exclusively in Motorola, and Licensee will not have any shared
development or other i intellectual property rights.
Section 6 LIMITED WARRANTY; DISCLAIMER OF WARRANTY
6.1. Unless otherwise stated in the Primary Agreement, the commencement date and the term of the
Software warranty will be a period of ninety (90) days from Motorola's shipment of the Software (the
"Warranty Period"). If Licensee is not in breach of any of its obligations under this Agreement, Motorola
warrants that the unmodified Software, when used properly and in accordance with the Documentation
and this Agreement, will be free from a reproducible defect that eliminates the functionality or successful
operation of a feature critical to the primary functionality or successful operation of the Software. Whether
a defect occurs will be determined by Motorola solely with reference to the Documentation. Motorola
does not warrant that Licensee's use of the Software or the Designated Products will be uninterrupted,
error-free, completely free of Security Vulnerabilities, or that the Software or the Designated Products will
meet Licensee's particular requirements. Motorola makes no representations or warranties with respect
to any third party software included in the Software. Notwithstanding, any warranty provided by a
copyright owner in its standard license terms will flow through to Licensee for third party software
provided by Motorola.
6.2 Motorola's sole obligation to Licensee and Licensee's exclusive remedy under this warranty is to
use reasonable efforts to remedy any material Software defect covered by this warranty. These efforts
will involve either replacing the media or attempting to correct significant, demonstrable program or
documentation errors or Security Vulnerabilities. If Motorola cannot correct the defect within a reasonable
time, then at Motorola's option, Motorola will replace the detective Software with functionally-equivalent
Software, license to Licensee substitute Software which will accomplish the same objective, or terminate
the license and refund the Licensee's paid license tee.
6.3. Warranty claims are described in the Primary Agreement.
6.4. The express warranties set forth in this Section 6 are in lieu of, and Motorola disclaims, any and
all other warranties (express or implied, oral or written) with respect to the Software or Documentation,
including, without limitation, any and all implied warranties of condition, title, non-infringement,
merchantability, or fitness for a particular purpose or use by Licensee (whether or not Motorola knows,
has reason to know, has been advised, or is otherwise aware of any such purpose or use), whether
arising by law, by reason of custom or usage of trade, or by course of dealing. In addition, Motorola
disclaims any warranty to any person other than Licensee with respect to the Software or Documentation.
Lease Communications System and Services Agreement v.2.9.2021
19
•
Section 7 TRANSFERS
Licensee will not transfer the Software or Documentation to any third party without Motorola's prior written
consent. Motorola's consent may be withheld at its discretion and may be conditioned upon transferee
paying all applicable license tees and agreeing to be bound by this Agreement. If the Designated
Products are Motorola's radio products and Licensee transfers ownership of the Motorola radio products
to a third party, Licensee may assign its right to use the Software (other than CPS and Motorola's
FLASHport®software) which is embedded in or furnished for use With the radio products and the related
Documentation; provided that Licensee transfers all copies of the Software and Documentation to the
transferee, and Licensee and the transferee sign a transfer form to be provided by Motorola upon
request, obligating the transferee to be bound by this Agreement.
Section 8 TERM AND TERMINATION
8.1 Licensee's right to use the Software and Documentation will begin when the Primary Agreement
is signed by both parties and will continue for the life of the Designated Products with which or for which
the Software and Documentation have been provided by Motorola, unless Licensee breaches this
Agreement, in which case this Agreement and Licensee's right to use the Software and Documentation
may be terminated immediately upon notice by Motorola.
8.2 Within thirty (30) days after termination of this Agreement, Licensee must certify in writing to
Motorola that all copies of the Software have been removed or deleted from the Designated Products and
that all copies of the Software and Documentation have been returned to Motorola or destroyed by
Licensee and are no longer in use by Licensee.
8.3 Licensee acknowledges that Motorola made a considerable investment of resources in the
development, marketing, and distribution of the Software and Documentation and that Licensee's breach
of this Agreement will result in irreparable harm to Motorola for which monetary damages would be
inadequate. If Licensee breaches this Agreement, Motorola may terminate this Agreement and be
entitled to all available remedies at law or in equity (including immediate injunctive relief and repossession
of all non-embedded Software and associated Documentation unless Licensee is a Federal agency of the
United States Government).
Section 9 Commercial Computer Software
9.1 This Section 9 only applies to U.S. Government end users. The Software, Documentation and
updates are commercial items as that term is defined at 48 C.F.R. Part 2.101, consisting of "commercial
computer software" and "computer software documentation" as such terms are defined in 48 C.F.R. Part
252.227-7014(a)(1) and 48 C.F.R. Pan 252.227-7014(a)(5), and used in 48 C.F.R. Part 12.212 and 48
C.F.R. Part 227.7202, as applicable. Consistent with 48 C.F.R. Part 12.212, 48 C.F.R. Part 252.227-
7015, 48 C.F.R. Pal 227.7202-1 through 227.7202-4, 48 C.F.R. Part 52.227-19, and other relevant
sections of the Code of Federal Regulations, as applicable, the Software, Documentation and Updates
are distributed and licensed to U.S. Government end users: (i) only as commercial items, and (ii) with only
those rights as are granted to all other end users pursuant to the terms and conditions contained herein.
9.2 If Licensee is licensing Software for end use by the United States Government or a United States
Government agency, Licensee may transfer such Software license, but only if: (i) Licensee transfers all
copies of such Software and Documentation to such United States Government entity or interim
transferee, and (ii) Licensee has first obtained from the transferee (if applicable) and ultimate end user an
enforceable end user license agreement containing restrictions substantially identical to the ones
contained in this Agreement. Except as stated in the foregoing, Licensee and any transferee(s)
authorized by this subsection 9.2 may not otherwise use or transfer or make available any Motorola
software to any third party nor permit any party to do so.
Lease Communications System and Services Agreement v.2.9.2021
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Section 10 CONFIDENTIALITY
Licensee acknowledges that the Software and Documentation contain Motorola's valuable proprietary
and Confidential Information and are Motorola's trade secrets, and that the provisions in the Primary
Agreement concerning Confidential Information apply.
Section 11 LIMITATION OF LIABILITY
The Limitation of Liability provision is described in the Primary Agreement.
Section 12 NOTICES
Notices are described in the Primary Agreement.
Section 13 GENERAL
13.1. COPYRIGHT NOTICES. The existence of a copyright notice on the Software will not be
construed as an admission or presumption of publication of the Software or public disclosure of any trade
secrets associated with the Software.
13.2. COMPLIANCE WITH LAWS. Licensee acknowledges that the Software is subject to the laws
and regulations of the United States and Licensee will comply with all applicable laws and regulations,
including export laws and regulations of the United States. Licensee will not, without the prior
authorization of Motorola and the appropriate governmental authority of the United States, in any form
export or re-export, sell or resell, ship or reship, or divert, through direct or indirect means, any item or
technical data or direct or indirect products sold or otherwise furnished to any person within any territory
for which the United States Government or any of its agencies at the time of the action, requires an export
license or other governmental approval. Violation of this provision is a material breach of this Agreement.
13.3 FUTURE REGULATORY REQUIREMENTS. The Parties acknowledge and agree that this is an
evolving technological area and therefore, laws and regulations regarding Services and use of Solution
may change. Changes to existing Services or the Solution required to achieve regulatory compliance
may be available for an additional fee. Any required changes may also impact the price for Services.
13.4. ASSIGNMENTS AND SUBCONTRACTING. Motorola may assign its rights or subcontract its
obligations under this Agreement, or encumber or sell its rights in any Software, without prior notice to or
consent of Licensee.
13.5. GOVERNING LAW. This Agreement is governed by the laws of the United States to the extent
that they apply and otherwise by the internal substantive laws of the State to which the Software is
shipped if Licensee is a sovereign government entity, or the internal substantive laws of the State of
Illinois if Licensee is not a sovereign government entity. The terms of the U.N. Convention on Contracts
for the International Sale of Goods do not apply. In the event that the Uniform Computer Information
Transaction Act, any version of this Act, or a substantially similar law (collectively "UCITA") becomes
applicable to a party's performance under this Agreement, UCITA does not govern any aspect of this
Agreement or any license granted under this Agreement, or any of the parties' rights or obligations under
this Agreement. The governing law will be that in effect prior to the applicability of UCITA.
Lease Communications System and Services Agreement v.2.9.2021
21
13.6. THIRD PARTY BENEFICIARIES. This Agreement is entered into solely for the benefit of
Motorola and Licensee. No third party has the right to make any claim or assert any right under this
Agreement, and no third party is deemed a beneficiary of this Agreement. Notwithstanding the foregoing,
any licensor or supplier of third party software included in the Software will be a direct and intended third
party beneficiary of this Agreement.
13.7. SURVIVAL. Sections 4, 5, 6.4, 7, 8, 9, 10, 11 and 13 survive the termination of this Agreement.
13.8. ORDER OF PRECEDENCE. In the event of inconsistencies between this Exhibit and the
Primary Agreement, the parties agree that this Exhibit prevails, only with respect to the specific subject
matter of this Exhibit, and not the Primary Agreement or any other exhibit as it applies to any other
subject matter.
13.9. SECURITY. Motorola uses reasonable means in the design and writing of its own Software and
the acquisition of third party Software to limit Security Vulnerabilities. While no software can be
guaranteed to be free from Security Vulnerabilities, if a Security Vulnerability is discovered, Motorola will
take the steps set forth in Section 6 of this Agreement.
Lease Communications System and Services Agreement v.2.9.2021
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Exhibit B
For Lease Purchase financed through Motorola, please refer to the payment schedule included in
the Equipment Lease-Purchase Agreement
Payment Schedule for Down-Payment of Equipment Lease-Purchase Agreement
Except for a payment that is due on the Effective Date, Customer will make payments to Motorola
within thirty(30)days after the date of each invoice. Customer will make payments when due in the
form of a check, cashier's check, or wire transfer drawn on a U.S.financial institution. It Customer has
purchased additional Professional or Subscription services, payment will be in accordance with the
applicable addenda. Payment for the System purchase will be in accordance with the following
milestones.
Contract Price $6,019,933.00
Paid via
ARP Funding 2,000,000 Milestones See Schedule
5 Yrs, Paid
Lease 4,019,933 Annually S755,700.41
ARP Funding Lease Description Milestone
2/15/2022 500,000 - Execution 25%
tbd 1,000,000 - Shipment 50%
tbd 200,000 - Installation 10%
System
tbd 200,000 - Optimization 10%
Final
the 100,000 - Acceptance 5%
Annual Lease
2/15/2023 755,700 Payment
Annual Lease
2/15/2024 755,700 Payment
Annual Lease
2/15/2025 755,700 Payment
Annual Lease
2/15/2026 755,700 Payment
Annual Lease
2/15/2027 755,700 Payment
2,000,000 3,778,502 5,778,502
Lease Communications System and Services Agreement v.2.9.2021
23
1. 25%of the Down-Payment Price due upon contract execution(due upon effective
date);
2. 50%of the Down-Payment Price due upon shipment of equipment from Staging;
3. 10%of the Down-Payment Price due upon installation of equipment;and
4. 10%of the Down-Payment Price due on Optimization.
5. 5%of the Down Payment Price due on Optimazation.
If Subscribers are purchased, 100%of the Subscriber Contract Price will
be invoiced upon shipment(as shipped).
Motorola shall make partial shipments of equipment and will request payment upon shipment of such
equipment. In addition, Motorola shall invoice for installations completed on a site-by-site basis or
when professional services are completed, when applicable. The value of the equipment
shipped/services performed will be determined by the value shipped/services performed as a
percentage of the total milestone value. Unless otherwise specified, contract discounts are based
upon all items proposed and overall system package. For invoicing purposes only, discounts will be
applied proportionately to the FNE and Subscriber equipment values to total contract price. Overdue
invoices will bear simple interest at the maximum allowable rate by state law. Customer may pay the
balance of the lease at any time during the term without penalty.
If Customer has purchased additional Professional or Subscription services, payment will be in
accordance with the applicable Addenda.
For Lifecycle Support Plan and Subscription Based Services:
Motorola will invoice Customer annually in advance of each year of the plan, or as otherwise stated in the
applicable addenda.
The chart below outlines the hourly labor rates for Motorola System Integration resources to be used. The staffing
requirements shall be multiplied by the appropriate rate per resource in the table below. The hourly labor rates are
Lease Communications System and Services Agreement v.2.9.2021
24
fully burdened. The hourly rates per resource type and level are listed in Table 1.
Resource Types
Project System System Project
Levels Management Engineering Technologist Administration
4 $ 290-00 $ 300.00 $ 280.00 $ 200.00
3 $ 240 00 $ 25000 $ 240.00 $ 180.00
2 $ 220.00 $ 220.00 $ 22000 $ 170.00
1 $ 190.00 $ 210 00 $ 210.00 $ 160.00
Table I Hourly Rates
These rates apply to ordinary days and times (Monday to Friday during the hours Sam to 5pm). Additional
surcharges may apply to work done outside these timeframes. The minimum charge for any resource will be 4 hours.
Travel expenses are not included in these rates and may be charged separately.
The qualifications of each type and level of resource are defined in the tables found at
baps/iwww.nlotorolasolutions.com/content/dam/Inslisecure/servicesilabor-rates-exhibit-160408.pdf.. All
Motorola System Integration personnel assigned to this project will be classified according these levels. Project
Administrative roles are varied and their specific duties and qualifications will be determined by the complexity and
requirements of each project.
EXHIBIT D
System Acceptance Certificate
Customer Name:
Project Name:
This System Acceptance Certificate memorializes the occurrence of System Acceptance. Motorola and
Customer acknowledge that:
1. The Acceptance Tests set forth in the Acceptance Test Plan have been successfully completed.
2. The System is accepted.
Customer Representative: Motorola Representative:
Signature: Signature:
Print Name: Print Name:
Lease Communications System and Services Agreement v.2.9.2021
25
Title: Title:
Dale: Date:
FINAL PROJECT ACCEPTANCE:
Motorola has provided and Customer has received all deliverables, and Motorola has performed all other
work required for Final Project Acceptance.
Customer Representative: Motorola Representative:
Signature: Signature:
Print Name: Print Name:
Title: Title:
Date: Date:
Lease Communications System and Services Agreement v.2.9.2021
26
Exhibit E
EQUIPMENT LEASE PURCHASE AGREEMENT DELIVERY AND ACCEPTANCE CERTIFICATE
The undersigned Lessee hereby acknowledges receipt of the Equipment described below ("Equipment")
and Lessee hereby accepts the Equipment after full inspection thereof as satisfactory for all purposes of
lease Schedule A to the Equipment Lease Purchase Agreement executed by Lessee (Customer) and
Lessor.
Equipment Lease Purchase Agreement No.:
Lease Schedule A No. :
EQUIPMENT INFORMATION
QUANTITY MODEL NUMBER EQUIPMENT DESCRIPTION
See schedule A See schedule A Equipment referenced in lease Schedule A; proposal
(proposal for all (proposal for all dated November 04, 2022. See Schedule A for a
quantities). model numbers). detailed Equipment List.
LESSEE/CUSTOMER:, C
7 p�
By: '704so (
Title: I//
Date:
Please complete this form and send a copy via US mail or email to:
Motorola Solutions Credit Company LLC
Attn: Bill Stancik, Finance Manager 1500 W. Monroe, 44th Floor I Chicago, IL 60661
Lease Communications System and Services Agreement v.2.9.2021
27
Email: bill.stancik@motorolasolutions.com I Telephone: (847) 538-453
RECEIVED
^N rya.,
Lease Communications System and Services Agreement v.2.9.2021
28
• •`40.4 FIR,H
0% Pickering
75coop woo`
May 25,2021
Ms.Amanda Hicks
City Engineer/Public Works Director
P.O.Box 1728
West Memphis,AR 72301
Re: Proposal for Civil Engineering Services
Walkable West Memphis Phase I
West Memphis,Arkansas
Via e-mail:ahicks@citywm.com
Ms.Hicks:
Pickering Firm,Inc.,herein known as Pickering(the"Consultant"),is pleased to submit this Scope or
Work and Fee Proposal to the City of West Memphis(the"Client"),for providing Professional
Engineering services for the development of the referenced project. Our scope of services,schedule,and
fee are shown below.
The Client has applied for an Arkansas Transportation Alternatives Program(TAP)grant for the repair,
replacement,and construction of sidewalks and accessible crossings in various locations connecting
schools,trails,and youth facilities along various public streets. The intent of this project is to provide
sidewalk and accessible crossings in the areas defined. The specific areas are defined as Site 1 and Site 2
in the grant application and can be seen on the attached exhibit included in the grant application. Sections
of public streets with proposed sidewalk work include Redding Drive 4om Broadway Avenue to Ten Mile
Bayou(approximately 3,900 linear feet);Gibson Avenue from Redding Drive to Roosevelt Avenue
(approximately 1,600 linear feet); South 25ih Street from Broadway Avenue to East Jackson Avenue
(approximately 2,400 linear feet); and South L.Henry Street from Jackson Heights to South Walker Street
(approximately 2,500 linear feet)for a total of approximately 10,400 linear feet of street. The work
needed in on each segment varies and is shown on the attached exhibit referred to earlier.
All design documents will be in accordance with Arkansas Department of Transportation(ARDOT)
standards and specifications,and all required TAP procedures will be followed for the development of this
project. A detailed scope of services follows:
SCOPE OF SERVICES
Task 1 -Field Surveys
Topographic and boundary survey work is not included in the scope of services. Property information
and proof of existing right-of-way will be provided by the Client. Pickering will use information
available and provided such as property information,aerial lidar,aerial photography, and GIS data to
develop plans for use in construction. Pickering will visit the site and hand measure items that could
impact construction,locate it on the plans as accurately as possible,and include general notations for the
successful contractor to provide field verification of noted items and others that will impact construction.
This will require more coordination with the contractor and filed adjustments since survey data will not be
available. If during the design process,particular areas need detailed survey for design or if ARDOT
Facility Design • Civil Engineering • Surveying • Transportation • Natural/Water Resources
317 South Church Street•Jonesboro,AR 72401• Phone:870.336.0117•www.pickeringfirm.com
Ms.Amanda Hicks
Walkable West Memphis Phase I
May 25,2021
P.ge 2 of 4
requests specific information,surveying services will be provided to us by the Client or will be
considered additional services and a fee will be negotiated.
Task 2—Civil Designs
Pickering will prepare construction plans and specifications for the improvements for Walkable West
Memphis Phase I. Improvements will follow and be based on the attached exhibit for the required
improvement.
I. Project submittals will be in accordance with the ARDOT plan development guidelines and TAP
program procedures. Submittals will include a 30%,60%,90%for review and comment,and a final
set of plans and bid documents for bidding purposes.
2. All plans will be in accordance with ARDOT standard plan format to facilitate review and approval
by the ARDOT. This is inclusive of front-end sheets,pay item numbers,etc.
3. Sidewalk design plans will be standard plan sheets one inch equals 20 feet(horizontal). Since no
survey is included vertical control and design will not be included. The sidewalk plans will contain
sufficient notes,details and special designs to obtain competitive bids and construct the project.
4. Pickering will prepare designs for adjustments of all existing sanitary sewer manholes/structures
located within the project area. Any new sanitary sewer piping to be added,extended,or adjusted in
the area will be designed by others and are not included.
5. Pickering will prepare traffic control plans for advanced warning and in areas sidewalk project
intersects public streets.
6. Pickering will prepare permanent signage and permanent pavement marking plans for the project.
7. Pickering will prepare plans,including notes and details, for erosion control during construction.
Pickering will prepare a Storm Water Pollution Prevention Plan for submittal and approval by ADEQ
if required. Submittal of the permits and all associated permit fees will be coordinated and paid by
the Client.
8. ARDOT details and technical specifications will be used for plan production.
9. Front end contract documentation will be provided by the City of West Memphis.
10. After all reviews have been completed and comments addressed,Pickering will provide a hard copy
and electronic copy of the final set of bid documents to the Client for advertising and bidding
purposes. Pickering is not responsible for reproduction costs associated with the bidding process. If
it is required,costs for printing will be invoiced as a reimbursable expense.
Note: Since the scope for bidding and construction administration assistance is unclear,they are
excluded from this proposal. If those services are required at a later date,a scope can be
determined and fees negotiated at that time.
. Ms.Amanda Hicks
Walkable West Memphis Phase I
May 25,2021
Page 3 of 4
PROPOSED PROJECT SCHEDULE
Pickering will begin work as soon as the notice to proceed is received. Completion dates are flexible and
will be coordinated with the Client and grant requirements to make every effort the project is not delayed
and funds are obligated in a timely manner.
COMPENSATION
We will invoice you monthly for work done based on actual work completed. We propose to complete the
work in the scope of basic services with the fee basis noted below plus customer reimbursable expenses.
Reimbursable items will be billed at actual cost plus 15%for expenses.
Field Surveys(Task 1)—Not Included in Scope
Trail Design(Task 2)
Lump Sum Fee $52,000.00
ADDITIONAL SERVICES
In the event you request additional services over and above the subject scope of work,we will perform
said adL::ional services on the basis of a negotiated lump sum fee agreed to by both of us,or on the basis
of our standard hourly rates plus reimbursable expenses.
Items specifically excluded:
• Topographic and boundary surveys
• Trail lighting design
• Bidding and construction Administration services
• Design of sanitary sewer or other utilities improvements or adjustments
• Landscaping plans and landscape irrigation plans are not included
• No wetlands delineation or location is included in this proposal
• Traffic analysis or studies are excluded
• Signal modification designs for the existing signals are excluded
Please do not hesitate to give me a call at(870)336-0117 if you have any questions or need any
additional information.
Sincerely,
PICKERING FIRM INCORPORATED
—
Michael L. Foster, P.E.
Principal Owner
Ms.Amanda Hicks
Walkable West Memphis Phase I
May 25,2021
Page 4 of 4
Enclosures: Pedestrian Project Map
General Provisions
Standard Professional Services Fees
AUTHORIZATION %Eardo f ��-�-- DATE
Client,please sign and return this letter to the attention of the writer. This will serve as our authorization
for our records.
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Site 1: Bragg Elementary Site 2: Jackson Wonder
Legend
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Existing OK Park
- New School
— Repair/Replace Existing
GENERAL PROVISIONS
Attached to and made part of LETTER AGREEMENT dated March 25,2021 between the City of West Memphis (CLIENT)
and Pickering Firm,Inc.(ENGINEER)in respect of the project(PROJECT)described therein.
SECTION 1. ri IENTSRESPONSIBILRIES connection with the PROJECT,long distance calls,overnight
mail,telecopies,and fees paid for testing and/or for securing
1.1 CLIENT shall designate a person to act with authority on approval of authorities having jurisdiction overthe PROJECT.
CLIENT'S behalf in respect to all aspects of the PROJECT, shall • Expense of printing, reproduction, postage, and handling of
examine and respond promptly to ENGINEER'S submissions, and drawings,specifications,and reports including duplicate sets
shall give prompt written notice to ENGINEER whenever he observes at the completion of each phase of the client's review and
or otherwise becomes aware of any defect in the PROJECT. The approval.
person C.signated by the CLIENT shall be Amanda Hicks. • Expense of subconsultants and specialists when authorized by
the CLIENT.
1.2 CLIENT shall also provide to the ENGINEER all objectives,
constraints and criteria, and information as to the design and SECTION 3. PAVMENTSTOTHE ENGINEER
technical requirements for and scopeofthe PROJECT,and shall:
3.1 Progress payments shall be made in proportion to services
• Guarantee accessto and make all provisions for ENGINEER to rendered and as indicated within this AGREEMENT and shall be due
enter upon public and private property as necessary to and owing upon receipt of the ENGINEER'S submittal of his invoice. A
accomplish the work. fee of 1- 1/2%of the invoiced amount will be charged for each month
• Provide such legal, accounting, independent cost or portion thereof that payment is late;payment when received will
estimating, and insurance counseling services as may be be applied first to this fee and then to the original invoiced amount.
required for the PROJECT. Initial payment or retainage will be credited to the ENGINEER'S last
• Establish and periodically update the budget for the invoice for services.
PROJECT including maintenance of reasonable
contingencies for the design, procurement, and 3.2 The CLIENT shall contact the ENGINEER'S Project Manager
construction phases. within five (5) working days of receipt of the invoice to clarify any
• Provide current site survey and geotechnical and disputed issues concerning the invoice. Payment of non-disputed
environmental studies and reports, and construction items shall not be withheld. Failure to contact the ENGINEER'S Project
material testing as may be required for the PROJECT. Manager within five(5)working days shall constitute confirmation that
• Cause CLIENT'S separate consultants and/or contractors to the invoice is acceptable to the CLIENT and duly payable in full.
coordinate their services with the services provided by the
ENGINEER. ENGINEER shall be entitled to rely on the
accuracy and completeness of services and information 3.3 If the CLIENT fails to make payments due the ENGINEER,the
furnished by the CLIENT and the CLIENT'S consultants. ENGINEER may,after giving seven (7) days written notice to CLIENT,
ENGINEER shall have no responsibility for the technical suspend services under this AGREEMENT,and retain all work products
content of CUENT'S or CLIENT'S services and information deliverable to the CLIENT until payment is made. ENGINEER shall have
but shall notify CLIENT if ENGINEER becomes aware of any no liability to the CLIENT for delay or damage caused to the CLIENT
error, omission or inconsistency in such services or because of such suspension of services The ENGINEER'S fees and time
information. schedule for remaining services shall be equitably adjusted.The project
• Furnish approvals and permits from all governmental completion date shall be extended no less than the number of days
authorities having jurisdiction overthe PROJECT. services are suspended.
• Provide the ENGINEER with escorts and means of access to
all areas;this being necessary for the orderly progress of 3A Invoices which remain unpaid sixty(60)days from the date of
the work,the ENGINEER shall be entitled to rely upon the the invoice may result in the cessation of:11 work on the PROJECT.If
efficiency and completeness thereof. payment has not been received after ninety(90)days from the date of
• Compensatethe ENGINEER for services rendered undertl.._ invoice,a stop work order will be issued.The CLIENT will be liable for
AGREEMENT and pay all cost incident to CLIENT furnished all reasonable collection costs and attorneys'fees.The CLIENT will be
items. given a written notice seven(7)days before work isstopped.
SECTION 2. REIMBURSABLEE%PENSES 3.5 No deductions shall be made from the ENGINEER'S
2.1 Reimbursable expenses include actual expenditures compensation because of penalties,liquidated damages,orother sums
withheld from payments to Contractors norfor disputes with regard to
made by the ENGINEER,his employees,or his subconsultants In the
interest of the PROJECT. Reimbursable expenses include but are
ENGINEER'S services.
not limited to the following:
• Expenses of transportation and living when traveling in
PICKERING FIRM,INC 1 PAGE 1 I Revised 07/18
3.6 If the PROJECT is delayed or if the ENGINEER'S services for SECTION 8. GOVERNING LAW
the PROJECT are delayed or suspended for more than three months
for reasons beyond the ENGINEER'S control,the ENGINEER may, 8.1 This AGREEMENT shall be governed by Arkansaslaw.
after giving seven days written notice to the CLIENT,terminate this
AGREEMENT, and the CLIENT shall compensate the ENGINEER in SECTION 9. GENERAL
accordance with the termination provision contained in the
AGREEMENT. 9.1 The engineering services under this AGREEMENT will be
perform,: In accordance with professional skill and care ordinarily
3.7 A sample invoice is attached.Without comments to the provided by engineers practicing in the same or similar locality
contrary, CLIENT agrees that the format and content of the invoice under the same or similar circumstances("Standard of Care").The
are satisfactory for payment. ENGINEER shall perform its services as expeditiously as is consistent
with such professional skill and care and the orderly progress of the
SECTION4. OWNERSHIP OF DOCUMENTS PROJECT. Notwithstanding any other representations made
elsewhere in this Agreement or in the execution of the Project,this
4.1 It is under,.aod by and between the parties that all Standard of Care shall not be modified. ENGINEER makes no
drawings,specifications and other work products of the ENGINEER warranties or guarantees either expressed or implied.
for this project shall remain the property of the ENGINEER, are
instruments of service for the PROJECT only,and shall apply only to 92 Any opinion of construction cost prepared by the
this particular property. Upon payment for services rendered, ENGINEER represents ENGINEER'Sjudgment as a design professional
ENGINEER grants CLIENT a license to use instruments of and is sunplied for the general guidance of the CLIENT. The
ENGINEER'S professional service for the purpose of constructing, ENGINEER has no control over the cost of labor and material,or over
occupying,or maintaining the Project.The CLIENT shall not reuse competitive bidding or market conditions.The ENGINEER does not
any of the instruments of service the ENGINEER for extensions of guarantee,warranty or represent as accurate such opinions.
this PROJECT or for any other project without the written
permission of the ENGINEER. Any reuse or adaptation of the 9.3 The point of contact for the ENGINEER will be Michael Foster.
ENGINEER'S instruments of service on other projects shall entitle
ENGINEER to additional compensation in an amount to be agreed 9A As a condition precedent to any legal proceedings,all claims,
upon by the CLIENT and ENGINEER. disputes,controversies or matters in question arising out of,or relating
SECTIONS. DELEGATION OF DUTIES to the AGREEMENT or any breach thereof including,but not limited to,
disputes arising out of alleged design defects, breaches of contract,
error omissions, or acts of professional negligence (collectively
5.1 Neither the CLIENT nor the ENGINEER shall delegate his "disputes")shall be submitted to mediation before and as a condition
duties under this AGREEMENT without the written consent of the precedent to any other remedy.Upon written request by either party
other. to this AGREEMENT for mediation of any dispute, CLIENT and
SECTION 6. TERMINATION ENGINEER shall select by mutual agreement,a neutral mediator.Such
selection shall be made within ten (10)calendar days of the date of
6.1 This AGREEMENT may be terminated by either party by receipt by the other party of the written request for mediation.In the
seven days written notice in the event of substantial failure to event of failure to reach such agreement or in any instance when the
selected mediator is unable or unwilling to serve and a replacement
perform in accordance with the terms of this AGREEMENT by the
mediator cannot be agreed upon by CLIENT and ENGINEER within ten
other party through no fault of the terminating party. If this
AGREEMENT is terminated,the ENniNEER shall be paid for services (10) calendar days, a mediator shall be chosen as specified in the
performed to the'-rmination notice date including reimbursable Construction Industry Mediation Rules of the American Arbitration
expenses due plus termination expenses. Termination expenses Association then in effect.
are defined as reimbursable expenses directly attributable to Notwithstanding any other provisions of this Article, in no
termination, plus 15% of the total compensation earned to the event shall a demand for mediation be made more than two(2)years
time of termination to account for ENGINEER'S re-scheduling from the date the party making demand knew or should have known
reassignment ofpersonnel and related costs incurred of the dispute or six (6) years from the date of the substantial
adjustments, g completion of ENGINEER'S participation in the PROJECT whichever
due totermination. date shall occur earlier.
All mediation shall take place in the county designated by
SECTION 7. EXTENTOFAGREEMENT ENGINEER unless ENGINEER and CLIENT agree otherwise.The fees of
the mediator(s)shall be apportioned equally between the parties.
7.1 This AGREEMENT represents the entire and integrated
AGREEMENT between theCLIENTand the ENGINEER and supersedes 95 Neither party shall hold the other responsible for damages
all prior negotiations,representations,or agreements either written or delay in performance caused by acts of God, strikes, lockouts,
or oral. This AGREEMENT may be amended only by written accidents, or other events beyond the control of the other or the
instrument signed by the CLIENT and theENGINEER. other's employees and agents.
PICKERING FIRM,INC I PAGE 2 I Revised 07/18
9.6 In the event any provisions of this AGREEMENT shall be 10.5 If this PROJECT concerns the identification and/or removal
held to be invalid and unenforceable,the remaining provisions shall of hazardous materials,CUENT specifically agrees to indemnify and
be valid and binding upon the parties. One or more waivers by hold harmless ENGINEER from any and all claims, liabilities or
either party of any provision,term,condition or covenant shall not damages of whatsoever nature and whatsoever character,
be construed by the other party as a waiver of a subsequent breach including attorneys' fees, related to any claim for existence of
of the same by the other party. hazardous materials contamination including but not limited to
personal injury or wrongful death associated with hazardous
9.7 The ENGINEER has no control over, charge of, or materials in regard to this PROJECT to the extent permitted by
responsibility for construction. CLIENT shall retain a qualified Arkansas law and not otherwise prohibited by Arkansas Statutes or
Contractor(s), licensed in the jurisdiction of the PROJECT to the Constitution of the State of Arkansas.
implement the construction of the PROJEXCT. The ENGINEER has
not been retained or compensated,nor is the ENGINEER responsible SECTION 11. INSURANCE
to provide,design and construction review services relating to any
safety precautions or means, methods,techniques,sequences,or 11.1 The ENGINEER shall acquire and maintain statutory
procedures performed by any Contractor or vendor in connection workmen's compensation insurance coverage,employer's liability,
with the engineering service provided hereunder. and comprehensive general liability insurance coverage where
reasonably wmmerdallyavailable.
SECTION 10. INDEMNITY
11.2 The ENGINEER shall maintain professional liability insurance
10.1 Should the ENGINEER become involved in litigation as a coverage where reasonably commercially available.
result of his performance of work for the CUENT under this
contract, the CLIENT agrees to defend and hold harmless the 11.3 CLIENT agrees to require any contractor working on the
ENGINEER to the extent permitted by Arkansas law and not otherwise PROJECT to provide CLIENT and ENGINEER with Commercial
prohibited by Arkansas Statutes or the Constitution of the State of General liability Insurance which names both CLIENT AND
Arkansas in such litigation provided the ENGINEER has not been ENGINEER as additional insured for their interests on the PROJECT
negligentorhasfound to beat fault in such litigation. as they may exist. Said insurance shall be primary to any other
insurance otiering the same or similar coverage and this shall be
10.2 If any claim is brought against either CLIENT or ENGINEER reflected on the certificate of insurance.Proof of such insurance in
by any third party,relating in whole or in part to the negligence of the form of a standard Accord certificate shall be sent to CLIENT and
CLIENT or ENGINEER each party shall indemnify the other against ENGINEER prior to commencement of construction.
any loss or judgment, including attorneys'fees and costs, to the
proportionate extent that such loss or expense is caused by that
party's negligence.CLIENT will indemnify to the extent permitted by
nsas law and not otherwise prohibited by Arkansas Statutes or the
Constitution of the State of Arkansas.
10.3 Limitation of Liability. For each PROJECT, CLIENT and
ENGINEER agree that,to the fullest extent permitted by law,the
total aggregate liability of ENGINEER its employees, agents and
subcontractors, for claims of loss, injury, death, damage or
expense,including claims under Section 10.2,shall not exceed the
total sum of $50,000.00 or the fee set forth in the Work
Authorizations, whichever is lesser, for any claims arising out of
ENGINEER'S services under this contract irrespective of the cause
of action plead. Such causes include, but are not limited to,
ENGINEER'S negligence errors, omissions, breach of contract,
breach of warranty, strict liability, negligent misrepresentation,
statutory liability, or other acts giving rise to liability based upon
contract,tort,or statute.This provision takes precedence over any
conflicting provisions of this AGREEMENT.
10.4 CLIENT acknowledges that the ENGINEER is a business
entity and agrees that any claim made by the CLIENT arising out of
any ad or omission of any member, owner, partner, manager,
director, officer, or employee of the business entity in the
execution or performance of this Agreement shall be made solely
against the business entity and not against any individual or group
of indisiduals in any capacity.
PICKERING FIRM,INC PAGE 3 I Revised 07/18
r Pickering
Service and Good Work...
Our Foundation,Our Future
Since 1946
STANDARD PROFESSIONAL SERVICES FEES
JANUARY 1, 2021
Classification Hourly Fee
1. Principal/Project Director 220.00
2. Senior Project Manager 200.00
3. Project Manager/Senior Architect/Senior Engineer 190.00
4. Architect/Engineer 155.00
5. Senior Designer 140.00
6. Survey Manager 140.00
7. Geologist 125.00
8. Professional Intern 125.00
9. Project Surveyor 125.00
10. UAS(Drone)/Seafloor Systems RCV(HyDrone)Pilot 125.00
11. Senior Scientist 115.00
12. Senior Technician 115.00
13. Technician/Inspector/Project Coordinator 100.00
14. Scientist.. 100.00
15. Survey Team(2-person),Including Conventional Equipment* 160.00
16. Survey Team(3-person),Including Conventional Equipment* 195.00
17. Survey Team(4-person), Including Conventional Equipment* 230.00
* NOTE. A Robotic Total Station may be substituted as a Survey Team member. For instance,if a
Robotic Total Station is utilized on a 2-person survey Team then the client will he billed using a 3-
person Survey Team Rate.
18. GPS Survey Team(1-person) 165.00
19. GPS Survey Team(2-person) 210.00
Facility Design • Civil Engineering • Surveying • Transportation • Natural/Water Resources
6363 Poplar Avenue,Suite 300•Memphis,TN 38119•Phone:901.726.0810•FAX 901.272.6911•www.pickeringfirm.com
Page 2 of 2
20. Clerical 95.00
21. A minimum daily fee is charged for any one-time service of a project manager,senior architect or
senior engineer($1,900),or architect/engineer($1,550).
22. A minimum of four(4)hours is charged for a survey team for any service occurrence.
23. A minimum of four(4)hours is charged for UAS(Drone)services.
24. A rate of twice the Standard Professional Services Fee is required for depositions,court proceedings
and insurance investigations.
25. Overtime hourly rate is 1.5 times the regular hourly rate.
26. Construction Manager/Administrator/Supervisor/Inspector hourly rate varies from$100 to$150
depending on the level of expertise required and the frequency of the requirement for the specific
individual.
OTHER SERVICES
27. Mileage will be charged for all travel if destination is greater than 30-mile radius from office.
28. Other travel,meals,hotel/motel,and auto rental at 1.15 times the expense incurred.
29. Consultants will be charged at 1.15 times actual rates.
30. Printing,reproduction and express courier at 1.15 times cost.
31. Four-wheeler/All-Terrain vehicle(AN)Rate is$115.00 per day.
32. UAS(Drone)Services Rate is$160 per hour.
33. Seafloor Systems(HyDrone)RCV Survey Boat Rate is$120 per hour.
• EMILY SCARBROUGH
1609 Golf Course Cove,West Memphis,AR 72301 870.733.4113 ebscarbroughl@gmail.com
SUMMARY
Seasoned professional with 7+years experience as the Executive Director of the West Memphis
Chamber of Commerce. Highly trustworthy, ethical and discreet with an expert ability to multi-task.
Confident and poised with individuals at all levels and committed to superior customer service with
excellent communication skills. Detail oriented with a passion for the continued success of the West
Memphis Chamber and the West Memphis community.
SKILLS & ABILITIES
MANAGEMENT
• Current operation supervisor of all aspects of daily Chamber business and staff duties.
• Maintain excellent customer service relations with over 400 Chamber members.
• Professionally manage all communication with new and current Chamber members
• Create and maintain meeting agenda and program goals for our volunteer diplomats, several committees
and the Board of Directors.
• Maintain effective communication with and direction of Chamber staff, Diplomats and committee
chairmen.
• Manage contracts, general maintenance, accounting and financial repots for Chamber related entities
including the Holmes Hammett Scholarship and the Fallen Officers Memorial.
MARKETING
• Strategically develop and market all Chamber services, events and programs via printed materials, social
media and Chamber website.
• Lead marketing classes for business associates, develop content design on company website and for
various businesses as well as develop marketing plans for the Chamber and business members.
• Developed new Chamber membership strategies to drive sales and attract potential businesses to the
community.
FINANCE
• 14+years of bookkeeping experience including budget planning and commercial/non-profit financial
reporting
• Successfully operate Quickbooks Accounting Software to track income and expenses, budget forecasts
and monthly accountant reports.
• Setup accounting software, chart of accounts and continued tech support for Treemendous Landscaping
and Main Street West Memphis
LEADERSHIP
• Maintain professional relationships in various areas of city and county government, local school systems
and civic organizations as a liaison seeking professional and community engagement to ensure the
Chamber's long-term viability.
• Currently lead 9 sub-committees,a 30 person Board of Directors and 2 leadership programs to create
connections,projects and initiatives to drive community efforts, investments in the local economy, while
engaging civic responsibility and leadership development among peers.
E)PERIENCE
EXECUTIVE DIRECTOR / WEST MEMPHIS CHAMBER OF COMMERCE / 5.2018-CURRENT
• Carry out all daily Chamber business, accounting,membership services, HR and marketing
• Schedule and lead 2 leadership programs, committee meetings,Board meetings, Business After Hours
and other various community events.
• Engage and maintain professional associations with the City of West Memphis,Marion Chamber of
Commerce,Main Street West Memphis, Rotary Club of West Memphis, Crittenden County
Government, Arkansas State Legislature and Chamber of Commerce,Arkansas Economic Development
& Chamber Executive Association, the Greater Memphis Chamber of Commerce, ASU Mid-South,
West Memphis School District and various other community organizations.
PUBLIC RELATIONS / WEST MEMPHIS CHAMBER OF COMMERCE /9.2017-5.2018
• Developed custom membership and marketing strategies to attract and retain members.
• Coordinated leadership programs,enlisted sponsorships and business partners as well as created
leadership curriculum.
• Operated Chamber office, acted as secretary for 9 committees, a 30 person board of directors and
various other meetings as needed.
• Assisted Chamber director with financial reporting,collections,membership services, marketing and
event planning as needed.
DEPUTY ASSESSOR /CRITTENDEN COUNTY ASSESSOR'S OFFICE / 3.2016-9.2017
• Assessed residential, commercial and personal property for Crittenden County residents in accordance
with local and state regulations.
• Aided in annual business assessments including real and personal property.
• Assisted in acquiring real estate forms for local and state departments.
MEMBERSHIP COORDINATOR / WEST MEMPHIS CHAMBER OF COMMERCE / 8.2013-4.2015
• Developed new member packets and membership directories
• Recruited new members, maintained membership services, website information and updates as well as
procured event sponsorships.
• Handled daily office duties including equipment contracting,bookkeeping, HR and customer service
issues.
EDUCATION
Calvary Baptist Academy May, 2004
• High School Diploma
REFERENCES
Kristy Skinner 870-735-2683
Shelby Moore 870-735-8700
Jack Poff,Jr. 870-733-6805
CEIVED
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BY Inn