1294RESOLUTION NO. ~~
A RESOLUTION APPROVING AND AUTHORIZING THE MAYOR TO
SIGN THE APd~L ENCROACHMENT LICENSE AGREEMENT
WHEREAS, the City of West Memphis is in the process of
constructing, operating, and maintaining a Flood Protection
System over and upon certain real property owned by Arkansas
Power & Light Company and the City is in the process of
negotiating the purchase of said property from AP&L; and
WHEREAS, in order to proceed with the necessary work for the
Flood Protection Project, AP&L requires the City to enter into
an Encroachment License Agreement, a copy of which is attached
hereto and incorporated herein; and
WHEREAS, the City Council finds that it is in the best
interest of the City of West Memphis that work on the Flood
Protection Project be commenced prior to the time the City may
acquire ownership of said property and that the Mayor should be
authorized to execute the Encroachment License Agreement on
behalf of the City of West Memphis;
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF WEST MEMPHIS, ARKANSAS, that the Encroachment License
Agreement is hereby approved and the Mayor is hereby authorized
to execute the Encroachment License Agreement on behalf of the
City of West Memphis, Arkansas.
ADOPTED t h i s ~t.~_ day o f , 19 9 2.
.-
KE TH M. ING AM, Ma r
ATTESTED
DA CRAFT, City C er
Entered on Map No. By
West Memphis 500 KV Substation Tract File Sheet
File Sheet
CheckedBy
ENCROACIIMENT LICENSE AGREEMENT
WIIEREAS,
Arkansas Power & Light Company (hereinafter called LICENSOR) owns certain real property shown
of record in Book 345 at Page 395 of the Crittenden County, Arkansas, Real Property records upon which are
transmission facilities and substation facilities presently constructed and in operation across the following
described land, to-wit:
The East One-Half of the Southeast One Quarter (E'/z SE'/a) of Section
Twenty Four (Sec. 24); and part of the East One Half of the East One Half (E'/z E'/z)
of Section Twenty Five (Sec. 25); all in Township Six North, Range Eight East
also, part of the Southwest One Quarter (Pt. SW'/a) of Section Nineteen (Sec. 19); and part
of Fractional Section Thirty (Pt. Frl. Sec. 30); all in Township Six North, Range Nine East
All lands above described in Crittenden County, Arkansas.
and,
WHEREAS, the City Of West Memphis, Arkansas hereinafter called LICENSEE, whether one or
more) has requested permission to construct, operate and maintain a Flood Protection System over and upon
LICENSOR's real property, as further described:
LICENSEE'S Flood Protection System will consist of a sump area, all necessary drainage
ditches and a seeded, mulch area on LICENSOR's 115 acre tract located North from and
abutting LICENSOR's West Memphis 500 KV Substation site. As An additional
accomodation for the construction of said project, the LICENSEE will be permitted to use
a 13± acre parcel for site access. Said access parcel will consist of a 180 ft. wide strip of land
along the Northeast and Southeast perimeter of LICENSOR's West Memphis 500 KV
Substation site, from a point abutting the railroad spur North and West from the substation
site, to a point at the southern most fence corner of LICENSOR's substation site. An
additiona190 ft. wide strip of land extending South approximately 900 feet from said southern
most fence corner is included in the access tract.
An 8± acre parcel of land, located West from the substation site and abutting the East access
strip will be used by LICENSEE for temporary deposition of spoil dirt from the project site.
Two roads for ingress and egress to the spoil storage and working access areas will be
constructed Northwest and Southwest from LICENSOR's substation site.
All the locations for the above described areas are further indicated on the attached drawing
labeled EXHIBIT A, incorporated into this agreement by reference.
NOW, THEREFORE, LICENSOR consents to the construction and maintenance of said project and
grants to LICENSEE a revocable license to so encroach on LICENSOR's real property as an accommodation
to LICENSEE and free of payment therefor, subject to the following covenants, restrictions, and conditions:
1. This License to use real property is a personal, revocable and unassignable privilege conferred
by LICENSOR to LICENSEE and does not create an interest in real property and is not an easement or lease.
LICENSEE hereby acknowledges the title of LICENSOR to the premises and agrees never to assail, resist or
deny such title.
2. LICENSOR does not warrant or represent that the premises are safe, healthful, or suitable
for the purposes for which they are permitted to be used under the terms of this License.
3. No alterations or additions are to be made to the above described encroachment without the
advance express written consent of LICENSOR.
4. The encroachment constructed or maintained under the terms of this Agreement is allowed
at the request and for the convenience of the LICENSEE; and therefore, the responsibility for safety during
the construction, maintenance and use of the encroachment lies with the LICENSEE.
5. LICENSEE recognizes and agrees that the design, installation and maintenance of
LICENSEE'S encroachment will be in accordance with the "Precautionary Practices" enumerated in this
Agreement; however, LICENSOR does not represent that compliance by LICENSEE with the "Precautionary
Practices" will be sufficient to eliminate all possible danger as a result of such encroachment.
6. SPECIAL CONDITIONS:
Precautionary Practices
(A) LICENSEE will advise all concerned employees, contractors, subcontractors and
engineers of the extreme hazard to personnel from equipment contact or near
contact with conductors of the transmission line and will advise all concerned that
the conductors are bare, live and that they swing from side to side in the wind, and
rise and descent with temperature changes.
(B) It is strongly recommended that boomed equipment not be
used under the conductors of the transmission lines unless
the conductors are de-energized.
(C) Low profile equipment should maintain a vertical clearance
of at least 15 feet to 115 Kv transmission conductors, and
25 feet to 500 kV transmission conductors.
(D) Dirt from excavation must not be placed or stored under transmission and distribution
conductors.
(E) The maximum elevation of the seed/mulch placed on site will not exceed 223.0 feet.
7. LICENSEE agrees that it will defend, indemnify and hold harmless the LICENSOR, as well
as its officers, agents and employees from any and all loss, cost, damages, expense and liability by reason of
property damage, personal injury, or both such damage and injury of whatsoever nature or kind arising out
of or as a result of any negligent act or negligent failure to act in connection with the construction,
maintenance and use by LICENSEE, its invitees, employees, agents, contractors and subcontractors, regardless
of any negligence attributable to the LICENSOR.
FURTHER, the LICENSEE shall be solely responsible for, and shall defend, indemnify and hold
harmless the LICENSOR from and against any and all liability, loss, cost, damage and expense which the
LICENSOR may incur, sustain or be subjected to on account of the death of or injury to the LICENSEE or
any contractor or subcontractor, or to any invitees, employees or agents of the LICENSEE or any contractor
or subcontractor, caused by, arising out of, or in any way connected with the work to be performed hereunder,
or while the LICENSEE or any contractors or subcontractors, invitees, employees or agents are on or near
the site of the work or the premises of the LICENSOR, without regard to whether any such deaths or injuries
are caused by or attributable in whole or in part to the negligence of the LICENSOR, its employees or agents,
the conditions of the premises, or otherwise, and notwithstanding any other provisions herein contained to
the contrary.
LICENSEE shall fully reimburse LICENSOR on demand for damages sustained by LICENSOR'S
electrical facilities and related equipment resulting from or in any way connected with, the condition or use
of the premises covered by this license.
8. LICENSOR reserves the right to revoke the License hereby given at any time giving
LICENSEE at least 30 days written notice of such termination, except that LICENSOR may, at its election,
revoke the License forthwith at any time if LICENSEE shall fail to comply with or abide by each and all of
the provisions hereof or keep all and singular LICENSEE'S promises herein. Waiver by LICENSOR of any
breach of any term or provision hereof shall not be deemed a waiver of any subsequent breach of the same
or of any other term or provision hereof.
9. Any notice to LICENSEE hereunder shall be sufficient if mailed to or delivered to
LICENSEE or posted on the premises; and if posted on the premises shall be deemed delivered on the date
of posting; and if mailed to LICENSEE at his last known address, shall be deemed delivered on the business
day next following the date of mailing.
10. On revocation, surrender, or other termination of this License as provided herein, LICENSEE
shall quietly and peaceably surrender the portion of the premises occupied by LICENSEE in as good condition
as same were at the time of LICENSEE'S entry thereon and shall remove all fixtures, structures, equipment
and other things placed by LICENSEE on the premises hereunder, and if LICENSEE shall fail to do so,
LICENSOR shall have the right to make such removal at LICENSEE'S expense, the amount of which
expense LICENSEE shall pay to LICENSOR on demand, and, if LICENSOR shall so elect, it shall have the
right to take possession of and appropriate to its own use, without payment therefor, any property of
LICENSEE, or anyone claiming under it, then remaining on the premises.
11. The premises maybe used by LICENSEE solely for the purposes herein described during the
period beginning the date of this Agreement and continuing until this License is terminated.
12. Time is of the essence in this Agreement
13. This Agreement embodies the entire understanding of the parties, and there are no further
or other agreements or understandings, written or oral, in effect between the parties relating to the subject
matter hereof.
L
14. If any provision of this Agreement is unenforceable or void, the remaining provisions shall,
nevertheless, be carried into effect.
IN WITNESS WHEREOF, the parties hereto have set their hands this day of ,
19
LICENSOR: ARKANSAS POWER & LIGHT COMPANY
BY:
(TITLE)
LICENSEE: CITY OF WEST MEMPHIS, ARKANSAS
BY:
BY:
(TITLE)
(TITLE)
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ACKNOWLT:DGMrNT
STATE OF ARKANSAS
COUNTY OF
On this day before the undersigned, a Notary Public duly qualified and acting in and for the county
and state aforesaid, personally appeared to me well known
to be the person whose name appears as LICENSEE in the foregoing instrument, and stated that he had
executed the same for the consideration, uses and purposes therein stated.
19
IN WITNESS WHEREOF, I hereunto set my hand and seal on this day of
Notary Public
My commission expires:
(Seal)
ACKNOWLEDGMENT
STATE OF ARKANSAS
COUNTY OF
On this day of ,19 , before me, a Notary
Public, duly commissioned, qualified and acting, within and for said County and State, appeared in person the
within named ,being the person authorized by said corporation to
execute such instrument, stating his respective capacity in that behalf, to me personally well known, who stated
that he is the of ARKANSAS POWER & LIGHT COMPANY
and executed and delivered said foregoing instrument for the consideration, uses and purposes therein
mentioned and set forth.
IN TESTIMONY whereof, I have hereunto set my hand and official seal this day of
,19
Notary Public
My commission expires:
(Seal)