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2046 RESOLUTION NO. RESOLUTION AUTHORIZING THE MAYOR TO SIGN A JOINT USE AGREEMENT BETWEEN THE CITY OF WEST MEMPHIS, ARKANSAS,AND SOUTHWESTERN BELL TELEPHONE COMPANY D/B/A AT&T ARKANSAS,AND FOR OTHER PURPOSES. WHEREAS, in the areas in the State of Arkansas served by the City of West Memphis ("City") and Southwestern Bell d/b/a/AT&T ("Telephone Company"),joint use of certain Poles is currently not governed by the teims of a Joint Use Contract, between the City and the Telephone Company; and WHEREAS, the Parties desire to continue such joint use and to use other Poles jointly in the future, when and where such joint use will be of mutual advantage in meeting their respective service requirements. NOW THEREFORE BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF WEST MEMPHIS, ARKANSAS, that the Joint Use Pole Attachment Agreement is hereby approved and the Mayor of the City of West Memphis is hereby authorized to execute a joint use pole attachment agreement on behalf of the City in substantially the same form as attached to and made a part of this resolution, and marked "Exhibit A." PASSED AND APPROVED this 19th day of December, 2013. WILLIAM H. JOHN N. MAYOR ATTEST: P,41 • PARA, CITY CLERK GENERAL AGREEMENT FOR JOINT USE OF POLES PREAMBLE THIS AGREEMENT, effective this 1st day of January, 2014 (the "Effective Date"), by and between the City of West Memphis a municipal corporation organized under the laws of the State of Arkansas (hereinafter called the "Electric Company"), and Southwestern Bell Telephone Company a Delaware Corporation, d/b/a AT&T Arkansas (hereinafter called the "Telephone Company"), desiring to cooperate in the joint use of their respective Poles, erected or to be erected within the areas in which both Parties render service in the State of Arkansas, whenever and wherever such use shall, in the estimation of both Parties, be compatible with their respective needs. WHEREAS, in the areas in the State of Arkansas served by both Parties, joint use of certain Poles is currently not governed by the terms of a Joint Use Contract, between the Electric Company and the Telephone Company; and WHEREAS, the Parties desire to continue such joint use and to use other Poles jointly in the future, when and where such joint use will be of mutual advantage in meeting their respective service requirements. NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained, the Parties hereto for themselves, their successors and assigns do hereby agree to the following terms and conditions: ARTICLE I SCOPE OF AGREEMENT This Agreement shall be in effect in areas in which both of the Parties render service and shall cover, subject to the terms of this agreement, all Poles of the Parties now existing or hereafter erected, excepting Poles, not yet in Joint Use, which carry, or are intended by the Owner to carry circuits or facilities of such a character that makes Joint Use of such Poles undesirable because of a bona fide technical or operational reason. This Agreement is intended to govern Attachments placed by the Electric Company for the purpose of providing services over its electric facilities; and the Telephone Company for the purposes of providing services over its communications facilities. ARTICLE II DEFINITIONS For purposes of this Agreement, the following terms when used herein shall have the following meanings: A. Agreement means this Joint Use Agreement entered into between the Electric Company and the Telephone Company. Y t B. Allocated Space is the space reserved for each Party and is defined as follows: 1. For Electric Company - it is the exclusive use of eight feet (8') measured downward from the top of a Standard Joint Use Pole, including Pole top, transformer and other miscellaneous assemblies. 2. For Telephone Company - it is the exclusive use of two (2) feet of space measured upward from the Initial Point of Attachment on the Pole. The Initial Point of Attachment shall be the lowest point on the pole required to provide at all times the Code minimum clearance above ground for the lowest horizontally run line, wire or cable attached in such space except where by mutual agreement of the field representatives of the Parties sound engineering practices dictate a higher minimum clearance. No Third Party shall place Attachments on the Pole below the point of the Telephone Company's Attachments if Telephone Company's attachments are placed at the lowest point on the pole required to provide minimum clearance above the ground. C. Anchor is a metal plate or screw placed in the ground to provide a counter load to the stringing tensions of Telephone Company or Electric Company plant. Anchors shall be of sufficient size to hold the load placed on it. D. Attachment is any wire, cable, strand, material, pedestal, or apparatus attached to a Joint Use Pole, excluding ground wires and service drops, (provided that the service drop attachment is located inside the allocated space on the pole as defined in Article 2 section B.2) now or hereafter used by either Party in the construction, operation or maintenance of its plant. If a service drop is the only attachment on the pole then that is considered an attachment for billing purposes. Licensee's ground wires shall not be considered Attachments for inventory or billing purposes. E. Code means the National Electrical Safety Code (NESC), as amended from time to time. F. Emergency means a situation where the Pole is irreparably damaged, or subject to failing, and such failure is likely to jeopardize the general public. G. Joint Use means the occupancy, or reservation of space to the extent allowed by law, on a Pole by both the Owner and the Licensee. H. Joint Use Pole is a Pole upon which space is provided under this Agreement for the Attachments of both Parties, whether such space is actually occupied by Attachments or reserved therefore upon specific request and to the extent allowed by law. I. Licensee is the Party having the right under this Agreement to make Attachments to a Joint Use Pole that the other Party owns. t , J. Make-Ready Work means the work required to accommodate Licensee's Attachments on a Joint Use Pole, including, but not limited to, Rearrangement or Transfer of existing Attachments and the facilities of other entities, inspections, engineering work, tree trimming (other than tree trimming performed for normal maintenance purposes), and Pole Relocation and Replacement. K. Owner is the Party owning the Joint Use Pole. L. Party means either Electric Company or Telephone Company; collectively Electric Company and Telephone Company will be referred to as Parties. M. Permit means a request to attach to a pole submitted by the Licensee to the Owner for review and approval prior to the placement of Attachments by Licensee. N. Place or Placement means the installation of a Pole suitable for Attachments. O. Pole or Poles include the singular and plural. P. Rearrange is to move Attachments from one position to another on a single Pole. Q. Relocate is to change the location of an existing Pole by removing and reinstalling said Pole in a new location or installing a new Pole in the new location and removing the existing Pole. R. Replace or Replacement is to install a new Pole in close proximity to an existing Pole and removing the existing Pole. S. Reserved, as applied to space on a Pole, means unoccupied Allocated Space provided, and maintained by Owner, either for its own use or for Licensee's exclusive use, to the extent allowed by law. All Reserved space is subject to rental payments under the terms of this Agreement, provided that an approved Permit exists. T. Right-of-Way is the legal right to use the property of another. U. Standard Joint Use Pole means a forty (40) foot class five (5) wood Pole as classified by the Pole classification tables of the American National Standards Institute. Also included as Standard Joint Use Poles are those poles which the Licensee has accepted as suitable for its use by the installation of its Attachments to the Pole. V. Standard Space Allocation means the Allocated Space for the Electric Company and the Telephone Company. W. Third Party means a person or entity that is not a signatory to this Agreement. For purposes of this Agreement, Third Party Attachments shall be considered by the Licensee as Attachments of the Owner. X. Transfer is the removal of Attachments from one Pole and placing them upon another. Y. Unallocated Space is that part of a Pole not included in allocated space. ARTICLE III SPECIFICATIONS A. Joint Use Poles covered by this Agreement shall at all times be in conformity with all applicable provisions of law and with the minimum requirements of the Code in effect at the time the respective Attachments are made, the standards of the Owner which are required of all parties using Owner's poles and with such additional requirements as may be mutually authorized by both Parties. If any Attachments were in compliance with the Code and the standards of the Owner when made, but later become out of compliance with the Code and the standards of the Owner due to changes in the Code and/or the standards of the Owner and are not covered by any grandfather clause as to such Attachments, then such Attachments shall be brought into compliance with the Code and the standards of the Owner when any work is next performed on such Attachments. To the extent any requirements or specifications of the Code or standards of the Owner may conflict, the more stringent shall apply. This provision shall not be interpreted to impose an obligation on either Party to inspect existing Attachments every time the Code is amended. B. As long as the provisions of Code and/or the standards of the Owner in effect at the time the Attachments were made have been met, any Joint Use Pole in place before the Effective Date of this Agreement shall be deemed a Standard Joint Use Pole and satisfactory to both Parties and adequate for their requirements, whether or not the space allocations defined herein have been observed. ARTICLE IV CONDITIONS FOR USE OF SPACE Subject to the terms and conditions of this Agreement, each Party hereby permits joint use by the other Party of any of its Poles in accordance with the Standard Space Allocation and the following: A. Either Party may use vertical space below its Allocated Space if the proposed use is authorized by the requirements of the Code and standards of the Owner and such use does not preclude the use of the space by the Party to which such space is allocated. Use of such space must be in compliance with all other provisions of this Agreement including Section XII, Rentals. B. If the Allocated Space is subsequently needed and the provisions of the Code and standards of the Owner cannot be met, then the Party to whom the space is not allocated, but who is utilizing the space allocated to the other Party pursuant to section A of this Article, shall be responsible, at its sole expense, for the cost of Rearrangement or Pole Replacement when necessary in order to accommodate the Party having the Allocated Space. C. So long as the provisions of the Code and standards of the Owner are met, Unallocated Space below that party's Allocated Space may be used for vertical runs and/or the mounting of equipment or Attachments by either Party. If the provisions of the Code and standards of the Owner cannot subsequently be met, then billing for any required modification will be in accordance with Article IX, Division of Costs. All other provisions of the contract, including Article III and Article XII shall apply to vertical attachments. ARTICLE V ESTABLISHING JOINT USE OF POLES A. So long as the subject Pole is not excluded from Joint Use under the provisions of Article I, the Licensee may receive permission to install initial Attachments or place additional Attachments by submitting a Permit (Exhibit A) and receiving approval prior to placing such Attachments. Within fifteen (15) business days after the receipt of such completed application the owner shall notify the applicant in writing whether the application is approved or rejected. If so approved or if not rejected within the fifteen day period, the pole will become a Joint Pole, and the Licensee shall have the right to place Attachments on such pole subject to all other provisions of this Agreement, including Article III. If the permit is approved, it shall be considered Reserved for the Licensee's use and will be subject to all other provisions of this Agreement, including Section XII, Rentals. If Make-Ready Work is required before a Licensee can place its Attachments on a Pole, the Owner shall provide an estimate of the cost of such work and the amount which the Licensee shall be responsible for. Upon Licensee's approval of the estimated cost of Make-Ready Work, the Owner shall complete the Make-Ready Work in a reasonable time and promptly notify the Licensee in writing or by electronic means when the Make-Ready Work is completed. In emergency situations, the Owner will cooperate with the Licensee to have the Make-Ready Work performed on an expedited basis. If a Third Party must move its Attachments in order for Licensee to place its Attachments on a Pole, the Licensee shall pay the Third Party's reasonable Transfer costs. Licensee shall reimburse Owner for the actual costs of Make-Ready Work, however in no case shall the Licensee be responsible for Make-ready Work in excess of 20 % of the Owner's estimate unless Licensee has revised the character of attachments or has otherwise modified its plans from those originally submitted to Owner. B. Whenever Licensee desires to add to or upgrade its facilities in an existing Joint Use Pole line, it will submit a Permit in the form of Exhibit A to Owner specifying the type of existing and proposed facilities to be attached to Owner's poles. If the existing pole is insufficient for the existing and proposed new facilities, Owner shall rebuild the Pole/Poles to accommodate Licensee's upgraded facilities. For a Pole erected to replace such Joint Use Pole solely because the existing Pole is of insufficient height or strength to provide adequately for Licensee's requirements, and where such Joint Use Pole at time of erection or by Attachment thereto by Licensee had been previously pronounced satisfactory, then Licensee shall thereupon pay to the Owner the cost of the Replacement Pole, including Transfers and Rearrangements of the Owner and the cost of removal of the old pole, less salvage. Upon Licensee's request, Owner shall provide Licensee with documentation to support Owner's cost demand. C. Notwithstanding sections (A) and (B) above, Licensee is not required to submit a Permit or otherwise provide notice before placing non-guyed service wires. D. Each Party shall place its own Attachments on the new Joint Use Poles and place appropriate guys to sustain any unbalanced loads caused by its Attachments in advance of tensioning conductors or strand and/or placing cable. Guys shall be installed prior to the placement of any wires or associated equipment. The foregoing shall not apply to service drops. E. In the event Owner discovers: a) unreported Attachments, excluding non-guyed service drop Attachments; b) unauthorized use of Owner's anchors as outlined in Article IX, Division of Costs; and/or c) authorized Attachments which do not comply with requirements of Article III, Specifications, hereinafter "irregular plant conditions", Owner shall inform Licensee of the same. Owner shall also state whether any pole on which an unreported attachment has been placed is excluded from Joint Use under Article I of this Agreement. Licensee shall, within thirty (30) days of receiving notice of any unreported attachments: (1) remit to Owner any unpaid rental due for such Attachments; and (2) remove any Attachments made to poles which are excluded from Joint Use. A completed permit for all unreported Attachments made to Joint Use Poles shall accompany payment. For purposes of determining unpaid rental for each unreported Attachment in the event that the time of installation cannot be determined, it shall be deemed to have occurred on the date succeeding the day on which the last physical inventory was performed in accordance with Article XII, Rentals. F. Within forty-five (45) days of receiving notice from Owner, Licensee, at its sole expense, shall, replace, relocate or modify all or any: a) unreported Attachments, excluding non-guyed service drop Attachments; b) unauthorized Attachments to Owner's anchors as outlined in Article XIX, Division of Costs; and/or c) Attachments which do not comply with requirements of Article III, Specifications. Licensee shall notify Owner of the performance of such work within two (2) weeks of its completion. G. Costs in connection with establishing Joint Use Poles, including any necessary Pole Replacements, shall be borne by the Parties hereto in the manner provided in Article IX, Division of Costs. ARTICLE VI ERECTING, REPLACING OR RELOCATING JOINT USE POLES A. Existing Joint Use, Licensee Upgrades Its Facilities. Whenever Licensee desires to add to or upgrade its facilities in an existing Joint Use Pole line, it will submit a Permit in the form of Exhibit A to Owner specifying the type of existing and proposed facilities to be attached to Owner's poles. If the existing pole is insufficient for the existing and proposed new facilities, Owner shall rebuild the Pole/Poles to accommodate Licensee's upgraded facilities. For a Pole erected to replace such Joint Use Pole solely because the existing Pole is of insufficient height or strength to provide adequately for Licensee's requirements, and where such Joint Use Pole at time of erection or by Attachment thereto by Licensee had been previously pronounced satisfactory, then Licensee shall thereupon pay to the Owner the reasonable cost of the Replacement Pole, including Transfers and Rearrangements of the Owner and the cost of removal of the old pole, less salvage. Upon Licensee's request, Owner shall provide Licensee with documentation to support Owner's cost demand. B. Existing Joint Use, Owner Upgrades Its Facilities. In the event that Owner desires to upgrade its facilities in a manner that would require action by the Licensee in an existing Joint Use Pole line, Owner will notify Licensee in writing or by electronic means of this desire, and also when construction of the new Pole is completed or required Rearrangements have been made. Transfer of Licensee's facilities shall be governed by Article VIII, Maintenance of Poles and Attachments. C. In emergency situations, Party may Replace Poles for the other Party. Where Poles are Replaced on an emergency basis, the Party Replacing the Poles shall give the Pole Owner verbal notice of the emergency situation as soon as practicable and give written notice of the Replacement within five (5) business days of making the Replacement. The Owner shall pay the other Party all reasonable costs associated with such Replacement. In non-emergency situations Licensee shall not replace Pole(s) of the Owner without first receiving authorization from the Owner. The new Pole shall remain the property of the original Owner whose Pole was Replaced. . D. Each Party shall place its own Attachments on the new Joint Use Poles and place appropriate guys to sustain any unbalanced loads caused by its Attachments in advance of tensioning conductors or strand and/or placing cable. E. Costs in connection with establishing new Joint Use Poles shall be borne by the Parties hereto in the manner provided in Article IX, Division of Costs. ARTICLE VII RIGHT-OF-WAY FOR LICENSEE'S ATTACHMENTS A. Each Party shall be responsible for obtaining its own Rights of Way. When new lines are constructed after the effective date of this Agreement, the Owner may obtain suitable right-of-way for both Parties on Joint Use Poles, using a form substantially similar to Exhibit B. Said right-of-way easements shall be in sufficient detail for identification and Licensee may receive a copy of any such easement for the purpose of ensuring that it is duly recorded in the public records of the county in which the right-of-way easement is located. No guarantee is given by the Owner of permission from property owners, municipalities, or others for the use of its Poles by the Licensee. B. The Owner shall, when constructing a new Joint Use Pole line, clear a right-of-way sufficient for both Parties. Subsequent trimming shall be the responsibility of the Party requiring the trimming. The Parties may develop, by mutual agreement, arrangements for sharing costs of subsequent trimming and repetitive clearing to ensure safe access to the poles and facilities of each Party. ARTICLE VIII MAINTENANCE OF POLES AND ATTACHMENTS A. The Owner shall, at its own expense, maintain its Joint Use Poles in a safe and serviceable condition, in accordance with Article III, Specifications, and shall Replace, reinforce or repair Poles that, in the Owner's judgment, become defective. B. Whenever it is necessary to Replace or Relocate a Joint Use Pole, the Owner shall, before making such Replacement or Relocation give reasonable notice thereof in writing (except in case of emergency, when verbal notice will be given and subsequently confirmed in writing) to the Licensee, specifying in such notice the time of such proposed Replacement or Relocation and the Licensee shall at the time so specified Transfer its Attachments to the new or Relocated Joint Use Pole. C. An alternate method of notification (as opposed to the above described written method of notification) may be used when mutually agreed upon by both Parties. The electronic notification system of pole transfer request, provided by the National Joint Utilities Notification System ("NJUNS"), may be used as the notification required by this article. As a prerequisite for use of this system, both Parties shall have and utilize the necessary electronic equipment required by NJUNS for this system. D. Should the Licensee fail to Transfer its Attachments to the new Joint Pole on the date specified for such Transfer of Attachments (after all Owner responsible Transfers have been accomplished), the Owner may elect to relinquish the ownership of the old pole from which it has removed its Attachments, with the giving of verbal notice to be subsequently followed in writing. If the Owner so elects, such old pole shall thereupon, at no cost to the Licensee, become the property of the Licensee, as is, and the Licensee shall save harmless the former Owner of such pole from all obligation, liability, damages, cost, expenses or charges incurred thereafter, and not arising out of anything theretofore occurring because of, or arising out of, the presence or condition of such pole or of any Attachments thereon. In instances where the Electrical Distributor is the Owner of such pole, the unused portion of the Pole above the Licensee's Attachments shall be cut off and removed by the Owner before w relinquishing ownership, if the pole remains in structural conflict with the power route. Licensee shall reimburse Owner for the costs incurred in removal of the "unused portion of the Pole." E. Should the Licensee fail to Transfer its Attachments to the new Joint Pole after the date specified for such Transfer of Attachments and after all Third Party and Owner responsible Transfers have been accomplished, whichever is later ("Licensee Transfer Date"), and if the Owner does not elect to relinquish the ownership of the old Pole from which it has removed its Attachments, the cost incurred by the Owner to return to the job site and remove the old pole will be paid by the Licensee. In the event the Licensee notifies the Owner that the Transfer has been accomplished and the Owner returns to the job site to remove the old Pole and discovers that the Transfer has not been made, then the Licensee will pay the Owner's cost of the trip to and from the job site. The intent of this paragraph is to ensure timely Transfers and minimize situations of two or more Poles needlessly remaining at the same location for extended periods of time. F. When Replacing a Joint Use Pole, the new Pole will be installed as closely as possible to the existing Pole unless special conditions make it necessary to set it in a different location. If conditions make it necessary to set the pole in a different location, the parties will meet and agree upon a mutually acceptable new location prior to the pole being placed. G. In the event of termination of the rights of the Parties to attach to additional Joint Use Poles, the Parties may continue to place additional Attachments on existing Joint Use Poles, subject to the normal permitting processes as provided for in Article V, Establishing Joint Use of Poles, and to maintain their existing Attachments. ARTICLE IX DIVISION OF COSTS A. The cost of establishing a new Joint Use Pole line shall be borne by the Parties in accordance with the following: 1. A Standard Joint Use Pole, or smaller, shall be erected at the sole expense of the Owner. 2. In the case of a Pole larger than the Standard Joint Use Pole required by either Party, the Party requiring the extra height and/or class shall pay for the additional reasonable costs in excess of a Standard Joint Use Pole. If Owner adds features or betterments not required by Licensee, Owner shall pay the costs associated with such features or betterments. B. The cost of establishing joint use on existing Pole lines or modifying existing Joint Use Pole lines shall be borne by the Parties in accordance with the following: 1. For Placement of intermediate Poles or Replacement of non-defective Poles for the Licensee, the Licensee shall pay the total reasonable cost of the intermediate Pole or the Replacement Pole and the Owner's costs to Transfer its facilities and the cost of removal of the old pole, less salvage. Licensee shall be responsible for Transferring its own facilities. 2. Replacement of existing defective Poles with a new Pole of the same size or class shall be accomplished at the expense of the Owner. Each Party shall be responsible for Transferring its own facilities. C. Except as otherwise specifically provided in this Agreement, each Party shall bear the costs of placement, Transfer, and Rearrangement of its own Attachments, place guys and Anchors to sustain any unbalanced loads caused by its Attachments, and perform any tree trimming or cutting incident thereto. 1. Licensee is prohibited from using Owner's existing anchors without the express written consent of Owner. If such use of Owner's anchor is requested by Licensee, or found existing in the field, Licensee will pay Owner for any costs incurred in evaluating the overall holding capacity of the existing anchor as a result of imposition of Licensee's load on said anchor. If the anchor is sufficient to support the existing and proposed loads, and if such use is approved by Owner, Licensee shall pay to Owner a fee equal to one half the current installed cost of such anchor. 2. Notwithstanding the foregoing, where one Party provides, at the request of the other Party, double thimble anchor rods and anchors for the use of both Parties, the Party requesting the double thimble anchor rods and anchors shall pay to the Party placing the double anchor rods and anchors a sum equal to one-half the cost of the anchor rods and anchors in place. 3. In cases where existing anchor rods and anchors are adequate for the needs of only one Party, the Party desiring additional guys and anchors may install anchors and anchor rods at no expense to the other Party; or, in case of right-of-way restrictions, may provide a double thimble anchor rod and anchor to which the other Party can Transfer its existing guy at its own expense. D. In the case of a Pole larger than the Standard Joint Use Pole where the additional height and/or strength required is for the purpose of both Parties, the reasonable cost of the increase above a standard Joint Use Pole shall be shared equally by both Parties, with Owner being responsible for the cost of a Standard Joint Use Pole and Licensee being responsible for one half of the reasonable expense of the additional height or strength. E. When less costly Rearrangements can be performed by either Party, which would defer the cost of Replacing a Pole, the Parties shall work together to attempt to minimize costs, with the Owner retaining the right to replace its Poles when it deems appropriate. F. Any payments made by the Licensee under the foregoing provisions of this Article shall not entitle the Licensee to ownership of any part of said Pole. G. Each Party shall bear the actual reasonable cost of repairing damages to the other Party's facilities occasioned by its improper construction practices, its negligence, or the negligence of others acting on its behalf. H. Either Party may request reasonable documentation supporting any demand for payment. ARTICLE X CHANGE IN THE CHARACTER OF CIRCUITS When either Party desires to change or upgrade its system which causes it to exceed its Allocated Space and to Replace pole(s) in a joint use route, it shall give the other Party sixty (60) days' written notice of such contemplated change. Within thirty (30) days of receipt of such notice given by the Party making the change, the other Party shall respond in writing whether it agrees to joint use with the proposed changes. In any event, the work shall proceed in accordance with the provisions below: 1. The parties hereto shall work together in good faith to determine which facilities shall be removed from existing points on the Joint Use Poles involved and the cost of establishing such changes in a new position on such poles, or in a new location elsewhere, so that the Party not requiring the change can continue to furnish the same service that existed before the changes were proposed. 2. If the Party requesting the upgrade ("the Requesting Party") is the Owner, the Requesting Party shall be responsible for the costs associated with the pole replacements in the manner set forth below, and its own transfer costs. If the project involves 20 poles or less, the Licensee shall bear the costs of transferring its facilities. If the project involves more than 20 poles, the Owner shall pay a pro-rata share of the Licensee's transfer costs based on the following percentage: the numerator shall be the total number of poles in the project less 20 and the denominator shall be the total number of poles (including the first 20). The Licensee is responsible for paying the remainder of its transfer costs. Notwithstanding the foregoing, if the replacement poles are not suitable for joint use and, as a result, Licensee is prohibited from relocating its facilities to the new poles, the Requesting Party shall be responsible for reimbursement of the costs incurred by Licensee to make changes so that the Licensee can continue to meet its service requirements. 3. If the Requesting Party is the Licensee, the Requesting Party shall pay the Owner the difference between the in-place cost of the taller/stronger poles and the in-place cost of the Standard Joint Use Pole, as well as the then in-place value of the poles replaced. The Requesting party shall also be responsible for the costs incurred by both parties to transfer their facilities to the new poles. 4. In either case, ownership of any new Poles placed pursuant to this Article shall remain with the Owner of the poles that were replaced, unless otherwise agreed to by the Parties in writing. A party shall not attempt to circumvent subsection (2) of the Article by dividing a project into smaller segments. ARTICLE XI ABANDONMENT A. If the Owner decides at any time to abandon any Joint Use Pole, it shall give the Licensee notice in writing or by electronic means at least sixty (60) days prior to the date on which it intends to abandon such Pole. If at the expiration of said period, the Owner and any Third Parties have no Attachments on such Pole but the Licensee shall not have Relocated or removed all of its Attachments therefrom, the Owner may send Licensee written notice that Owner intends to transfer ownership of the Pole to Licensee. If Licensee does not remove its Attachments from the Pole within ten (10) days of receipt of Owner's notice of intent to transfer ownership, Owner may transfer ownership of the Pole to Licensee by sending Licensee written notice of the transfer of ownership. Upon receipt of Owner's notice of transfer of ownership, the Pole shall then become the property of Licensee and Licensee shall save harmless the former Owner from all obligations, liabilities, damages, costs, expenses or charges incurred thereafter arising out of the presence, location or condition of such Pole or any of Licensee's Attachments thereon, unless such liabilities or damages arise from the negligence or intentional acts or omissions of the former Owner. B. If Licensee decides to transfer its Attachments after Pole ownership has been transferred, Licensee may do so, but Licensee will be responsible for the pulling and disposal of the old Pole(s). C. This Article may not be used to circumvent the procedures set forth in this Agreement regarding Transfers. ARTICLE XII RENTALS A. Rental. The Telephone Company and the Electric Company shall pay, as follows, an annual per Pole rental in arrears. These rates shall be effective through 2017. Invoice for 2014 for 2013 rental $13.00 Invoice for 2015 for 2014 rental $14.00 Invoice for 2016 for 2015 rental $15.00 Invoice for 2017 for 2016 rental $16.00 Invoice for 2018 for 2017 rental $17.00 B. Netting. Rather than Electric Company and Telephone Company issuing separate bills, the Party owning the greater number of Joint Use Poles shall calculate the amounts due for each party and reduce the amount billed by the rental due the other Party, so that a net bill is issued. After the netting process, the predominant pole owner will prepare and forward an invoice on or about the tenth day of December. Payment shall be due within forty-five (45) days from submission of invoice by the predominant pole owner. In the event that payment of an invoice is not received by the predominant pole owner on or before the date due, or is underpaid, the party receiving the invoice shall pay in addition to the amount due, interest in the maximum amount allowed by State law. C. Annually on or before December 1st, the Parties acting in cooperation shall, subject to the provisions of this Article, tabulate the total number of Joint Use Poles in accordance with procedures agreed upon by the respective Parties. D. For the purpose of computing the total annual rental fee due hereunder, the total fee shall be based upon the number of Joint Use Poles determined by the current physical Pole inventory plus any additional Poles brought under this Agreement and less any Poles removed from Joint Use under this Agreement. E. At intervals of not less than five (5) years and at the written request of a Party, an actual physical inventory of Joint Use Poles may be made jointly by representatives of the Parties or by a third party chosen by both Parties. The Parties shall cooperate in the selection of the contractor, and if one can be agreed upon, the Parties shall share equally the costs of the inventory. If the Parties cannot agree upon a contractor, each Party shall select their own representative to conduct an inventory, with the cost of each representative to be borne by the Party employing such representative. If there is any difference in the number of attachments found by the inventory and the number arrived at by tabulating those reported, correction will be made by retroactive billing for any attachments identified as being responsible for the difference, and any remaining difference will be spread evenly over the years since the last inventory, and billing adjusted accordingly. ARTICLE XIII PERIODICAL ADJUSTMENT OF RENTALS For the year ending 2018 and at intervals of not less than every five (5) years thereafter, the rental rates applicable under this Agreement shall be subject to joint review and revision upon the written request of either Party. Such written request shall be made at least 90 days prior to January 1 of the year the new rental rates will be effective. If any such request is made, the Parties shall negotiate in good faith to reach a mutually satisfactory rental rate, taking into consideration the allocation of space and the historical cost of bare Poles. ARTICLE XIV THIRD PARTY RIGHTS A. If either Party hereto had, prior to the execution of this Agreement, conferred upon Third Parties, by contract or otherwise, rights or privileges to occupy any Poles covered by this Agreement, nothing contained herein shall be construed as affecting such existing rights and privileges. B. Following the Effective Date of this Agreement, an Owner shall have the right, by contract or otherwise, to grant permission to Third Parties to occupy Poles covered by this Agreement. To the extent allowed by law, such future Attachments shall not be located within the Allocated Space of the other joint use Party unless that other Party agrees in writing to such occupancy, and such agreement, if any, shall in no way waive that other Party's right to occupy its Allocated Space in the future as long as that Party has Reserved the space subject to all other provisions of this Agreement, including Article XII, Rentals. C. With respect to any rights and privileges granted under this Article to Third Parties, Licensee shall not have to Transfer or Rearrange its Attachments to provide space for a Third Party until the Third Party pays for Licensee's associated costs so long as Licensee's Attachments have been made in accordance with terms of this Agreement. The Third Party shall be given 30 days to make payment for costs of Rearrangements to Licensee, and upon receipt of said payment, Licensee will, within 30 days, make all necessary changes to accommodate the Third Party facilities. ARTICLE XV ASSIGNMENT OF RIGHTS Except as otherwise provided in this Agreement, neither Party shall assign or otherwise dispose of this Agreement or any of its rights, obligations or interests hereunder, to any firm, corporation, individual, or other entity, without the written consent of the other Party, which consent shall not be unreasonably withheld. Provided, however, that nothing herein contained shall prevent or limit the right of either Party to mortgage any or all of its property, rights, privileges and franchises, or to lease or transfer any of them to another corporation organized for the purpose of conducting a business of the same general character as that of such Party, or to enter into any merger or consolidation; and, in case of the foreclosure of such mortgage or in case of such lease, transfer, merger or consolidation, such Party shall cause its rights and obligations hereunder to pass to, and be acquired and assumed by, the purchaser on foreclosure, the transferee, lessee, assignee, merging or consolidating company, as the case may be and such Party shall give notice of the event to the other party not later than the effective date of such lease, transfer, merger or consolidation. ARTICLE XVI FORCE MAJEURE Deadlines for completing work and providing notice under this Agreement shall be suspended for a reasonable period upon the occurrence of a Force Majeure event. These Force Majeure events include, but are not limited to, the following: 1. Hurricanes or other severe weather conditions; 2. Act of war, terrorism, or civil unrest; 3. Federal embargos, priority orders, or other restrictions imposed by the federal government; and 4. Strikes or labor stoppages. ARTICLE XVII PAYMENT OF TAXES Each Party shall pay all taxes and assessments lawfully levied on its property upon said Joint Use Poles, and the taxes and assessments which are levied on said Joint Use Poles shall be paid by the respective owners thereof. ARTICLE XVIII INSURANCE Each party to this Agreement shall take out and maintain throughout the period during which this Agreement shall remain in effect the following minimum insurance: A. Workers' compensation insurance covering all of the Party's employees, as required by law. B. Public liability and property damage liability insurance covering all operations under this Agreement with limits of at least $1,000,000 for bodily injury or death and $1,000,000 aggregate coverage during the policy period. Failure to maintain the required insurance coverage will not relieve a Party from liability provided for herein should a loss occur. Similarly, if a loss for which a Party is liable exceeds the insurance policy limits a Party will not be relieved from liability provided for herein. The City of West Memphis is not required to carry liability insurance and property damage insurance due to statutory tort immunity provided by A.C.A. 21-9-301. C. Automobile liability insurance of not less than $1,000,000 for personal or property damage stemming from the use of all self-propelled vehicles used in connection with this Agreement, whether owned, non-owned or hired. The City of West Memphis is only required to maintain automobile liability insurance for the statutory minimum coverage amount. D. Each Party shall furnish to the other Party, upon request, a certificate evidencing compliance with the foregoing requirements. This certificate will list the other Party as additional insured and will note specific cancellation language as follows: "In the event of cancellation of any of the said policies, the insuring company shall give the party to whom this certificate is issued thirty (30) days prior notice of such cancellation." E. In lieu of paragraphs A-D above, the Parties may self-insure for the above-referenced coverages. Licensee shall present valid proof of self-insurance upon Owner's request. ARTICLE XIX INDEMNIFICATION Each party to this Agreement shall, to the extent allowed by law, indemnify, protect, save, defend and hold harmless the other party from and against any and all loss, cost, damage, injury, claim, demand, action, suit, judgment, reasonable expenses, reasonable attorney's fees and reasonable court costs, including, but not limited to, any and all claims for damages to property and injury to or death of persons and claims made under any Workers' Compensation Law, caused by, or arising out of, the sole negligence or intentional acts/omissions of the indemnifying Party, its employees, contractors or agents. If the indemnifying party is obligated to defend the indemnitee in a legal proceeding, the indemnitee may choose its own counsel, provided that the fees charged by such counsel are reasonable in the venue where the incident occurred. Nothing in this Article should be considered as a waiver of any statutory tort immunity to which the City of West Memphis may be entitled. ARTICLE XX BILLS AND PAYMENT A. Upon completion of any work done by one Party for which payment is due from the other Party, the Party performing the work shall present to the other Party, within ninety (90) days after the completion of the work, a bill showing the amount due and a breakdown of the cost. The Parties will cooperate to ensure that both are provided the necessary information to certify that said bills are correct. B. If the owing Party disputes the bill or any portion thereof, it must do so through electronic or written means within thirty (30) days after receipt thereof. Further, the owing Party must pay any undisputed amount due. The disputed amount shall be addressed through the Dispute Resolution process set forth in Article XXII. C. Any amounts billed hereunder shall be due within forty-five (45) days of the date of the invoice detailing the amount owed. Any undisputed amount not timely paid shall accrue interest at the rate of 1.5% per month beginning forty-five (45) days after the date of the invoice and continuing until paid. In case of any disputed amount, the party disputing the amount owed shall timely pay the undisputed amount. ARTICLE XXI DEFAULTS A. If either Party shall default on its obligations under this Agreement and such default continues thirty (30) days after due notice thereof in writing by the other Party, the Party not in default may suspend the rights of the defaulting Party to attach to additional Joint Use Attachments by sending the defaulting Party written notice of the suspension. If such default shall continue for a period of sixty (60) days from the defaulting Parties receipt of notice of suspension, the Party not in default may suspend the right of both Parties to attach to existing joint use poles of the other Party by sending written notice to the defaulting Party. Any such suspension of the right of both Parties to attach to existing Joint Use poles shall not suspend the right of either Party to maintain existing Attachments on existing Joint Use Poles. B. In the event either party disputes the existence of a default, the suspension provisions of paragraph "A" above, shall apply, and both Parties agree to employ the dispute resolution procedures set forth in Article XXII of this Agreement. ARTICLE XXII DISPUTE RESOLUTION A. Prior to the initiation of any litigation, the Parties shall in "good faith" attempt to settle any dispute arising out of or relating to this Agreement through escalation to upper management. "Good faith" participation in any dispute procedures shall be a condition precedent to any litigation. Upon written notice that all subsequent discussions and negotiations between the Parties are intended to be an effort to compromise and settle matters between the Parties, all subsequent discussions, meetings, and negotiations pursuant to this Article shall be confidential and shall be treated as compromise and settlement negotiations for purposes of the Federal Rules of Evidence and the State of Arkansas's rules of evidence. B. Enforcement. The Parties regard the aforesaid obligation to escalate matters in controversy to upper management as an essential and material provision of this Agreement and one that is legally binding upon them. In case of a violation of such obligation by either Party, the other may seek specific enforcement of such obligation in the courts having jurisdiction hereunder. ARTICLE XXIII INTERPRETATION AND JURISDICTION This Agreement shall be interpreted under applicable federal and state laws and shall be construed in its entirety according to its plain meaning. Any action relating to this Agreement or arising out of its terms and conditions shall be instituted and litigated in Crittenden County Arkansas State Court. ARTICLE XXIV WAIVER OF TERMS OR CONDITIONS The failure of either Party to enforce or insist upon compliance with any of the terms or conditions of this Agreement shall not constitute a general waiver or relinquishment of any such terms or conditions, but the same shall be and remain at all times in full force and effect. ARTICLE XXV NO JOINT VENTURE It is agreed by and between the Parties that none of the obligations and undertakings herein creates a partnership or joint venture between the Electric Company and the Telephone Company. ARTICLE XXVI NOTICES A. Whenever notice is required to be given under the provisions of Articles XIII (Periodical Adjustment of Rates & Costs), XV (Assignment of Rights), XVIII (Insurance), XIX (Liability), XXI (Defaults), XXII (Dispute Resolution), XXVII (Term of Agreement), or paragraph (c) of this Article XXVI (for change of addresses), such notice shall be in writing, sent certified or registered mail, return receipt required or by a carrier providing proof of delivery, and shall be sent to the following addresses: The Electric Company Official/Legal Notices: General Manager West Memphis Utility Commission 604 East Cooper West Memphis, AR 72303 Phone Number 870-735-3355 The Telephone Company: Operational Notices: Kevin Varner, Area Manager Engineering AT&T Arkansas 220 Prospect, Rm. 400 Hot Springs, AR 71901 501-321-3200 Official/Legal Notices: AT&T Legal Department Attn: Larry Jones, General Attorney 208 S. Akard St, Room 3001 Dallas, Texas 75202 B. Any other notice to be given under the terms of this Agreement shall be given by mail, facsimile to the above addresses, or by electronic means using the National Joint Use Notification System. C. Either Party may change the address for notice pursuant to paragraph (a) above by written notice to the other Party. ARTICLE XXVII TERM OF AGREEMENT Subject to Article XXI, Defaults, this Agreement shall remain in effect for five (5) years from the date hereof, unless either Party terminates the rights of the Parties to attach to additional Joint Use Poles or to existing Joint Use Poles by providing at least one year's written notice prior to the end of the five (5) year term. Termination of the rights of the Parties to attach to additional Joint Use Poles or existing joint use poles, by any means, shall not abrogate or terminate the right of either Party, subject to all the terms and conditions of this Agreement to maintain existing Attachments. All such Attachments shall continue to be maintained pursuant to this Agreement. This Agreement shall remain in full force and effect, so long as the Attachments are continued in use, solely for the purpose of governing and controlling the rights and obligations of the Parties with respect to such Attachments, including, but not limited to, the rights and obligations of the Parties with respect to charges related to such Attachments. ARTICLE XXVIII EFFECTIVE DATE AND PRE-EXISTING AGREEMENTS This Agreement shall supersede any prior agreements entered by and between the Parties for Joint Use Poles within the territory covered by this Agreement. Nevertheless, with regard to Poles existing prior to the Effective Date of this Agreement, the Owner shall not be required to replace any such Poles with a Standard Joint Use Pole as defined in Article II(U) of this Agreement unless the Licensee pays all reasonable costs of Replacement and all costs of Transfers or modifications relating to such Replacement as provided for in this Agreement. ARTICLE XXIX SUPPLEMENTAL ROUTINES AND PRACTICES Nothing in the foregoing shall preclude the Parties to this Agreement from preparing such supplemental agreements, operating routines or working practices as they mutually agree, in writing, to be necessary or desirable to effectively administer the provisions of this Agreement. ARTICLE XXX CHANGE OF LAW In the event that any legislative, regulatory, judicial, or other action which would materially affect any of the terms of this Agreement becomes effective, then either Party may, upon thirty (30) days written notice, require that such terms be renegotiated, and the Parties expressly agree that they shall renegotiate in good faith such mutually agreeable new terms. In the event that the Parties are unable to agree upon such new terms within a reasonable time period, then either Party may file an action with a court of competent jurisdiction seeking appropriate relief. ARTICLE XXXI MISCELLANEOUS A. This Agreement was prepared jointly by the Parties and not by one Party to the exclusion of the other Party. B. No amendment or modification of this Agreement shall be valid unless in writing and executed by both Parties. IN WITNESS WHEREOF, the Parties hereto, have caused this Agreement to be executed in duplicate, and their corporate seals to be affixed thereto by their respective officers thereunto duly authorized as of the effective date of this Agreement. Southwestern Bell Telephone Company d/b/a AT&T , f.nsa• Title: p"-ctor-Construction & Engineering Date: •ecember 12, 2013 City of West Memphis By: i<< Title: /'7m Date: �'', ,2.1. EXHIBIT A APPLICATION AND LICENSE City of West Memphis Arkansas [Date] General Manager West Memphis Utility Commission 604 East Cooper West Memphis, AR 72303 Phone Number 870-735-3355 Or Manager ROW and JUP Southwestern Bell Telephone Company d/b/a AT&T Arkansas 220 Prospect Room 400 Hot Springs, AR 71901 In accordance with the terms and conditions of the Agreement dated application is hereby made for license to make attachments to the following poles: Pole No. Pole Location Date of Attachment LICENSEE By Title: Name of Company License granted , 20 . OWNER By: Title: Name of Company: . ° EXHIBIT B State of Arkansas County of Crittenden Preparer's name and address: Easement For and in consideration of dollars ($ ) and other good and valuable consideration, the adequacy and receipt of which is hereby acknowledged, the undersigned Owner(s) of the premises described below, hereinafter referred to as Grantor, do(es) hereby grant to its licensees, agents, successors, assigns, and allied and associated companies, hereinafter referred to as Grantee, an easement to ooumtroct, operutc, mnu)otaio, add, and/or remove such systems of communications or electric power transmission or distribution, facilities, stand by generators and associated fuel supply systems as a means of providing uninterrupted service during power outages, or related services as the Grantee may from time to time require opoo, over, and under a portion of the lands described in Deed Book , page , Crittenden County, Arkansas Records, and, to the fullest extent the Grantor has the power to grant, upon, over, along, and under the roads, streets, or highways adjoining or through said property. The said easement is more particularly described as follows: All that tract or parcel of land lying in Section , City . Range ,West Memphis County, State of Arkansas,consisting of a(strip)(parcel) of Land The following rights are also granted: the exclusive right to allow any other pemon, firm, or corporation to attach wires or lay cable or conduit or other appurtenances upon, over and under said easement for communications or electric power transmission or distribution; ingress to and egress from said easement at all times; the right, but not the obligation, to clear the easement and keep it cleared of all trees, undergrowth, or other obstructions; the right, but not the obligation, to trim and cut and keep trimmed and cut all dead, weak, \euning, or dangerous trees or limbs outside the easement which might interfere with or fall upon the line or systems or power transmission or distribution; the right to relocate said facilities, xyotcnnx, or related services on said lands to conform to any future highway relocation, widening, or improvements; the right to conduct site evaluations and/or other above and below ground tests and surveys deemed necessary by Grantee, the right to test and maintain generators and associated equipment; and the right to allow any other person, firm, or corporation to provide for fuel/energy distribution to equipment placed on the site. To have and to hold the above granted easement unto its licensees, agents, successors, assigns, and allied and associated companies forever and in perpetuity. • Grantor warrants that Grantor is the true Owner of the above-described land on which the aforesaid easement is granted. SPECIAL STIPULATION OR COMMENTS: The following special stipulations shall control in the event of conflict with any of the foregoing easement: In witness whereof, the undersigned has/have caused this instrument to be executed on the day of Signed sealed and delivered in the presence of: Witness Print Name of Grantor By: Witness Title: State of Arkansas,County of I, , do hereby certify that personally came before me this day and executed the forgoing instrument. If the Grantor is a business entity, he (or she) has represented to me that he (or she) is (print title) of (print name of business entity), and that he (or she) is authorized to sign this instrument on behalf of the Grantor. Witness my hand and seal,this day of , My Commission Expires: Notary Public Grantor's Address Grantee's Address: