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Exh 8E _ AGENDA ITEM #8 ,~~ - AUGUST 12, 2002 r~* ~~ _ .. CITY COMMISSION MEETING STAFF REPORT AGENDA ITEM: ..., JEA Pole Use. Agreement ~ SUBMIT~'ED BY: Jim Hanson, City M _. -._._ ?~, DATE.: August 1, 2002 BACKGROUND: The City Commission previously requested that Christmas decorations be ~""' installed on utility poles along the north side of Atlantic Boulevard and on both sides of Mayport Road in the Atlantic Beach City limits. JEA is the owner of the utility poles on these streets and provides the power to light ~"" the decorations. City staff has had several discussions with. JEA about ~. mounting requirements, weight limits and other factors. JEA.requires that the City of AtlanticBeach execute a hold harmless agreement where ~"'"` Atlantic Beach will take responsibility for any damage to their equipment or liability that may arise out of the placement of the lights on their poles. The City Attorney has reviewed this agreement and a copy is attached. ~^^ BUDGET: There is no cost directly attributed to execution of this use agreement. However, the Christmas decorations and related equipment are expected to '~ "cost $20,000 initially and an additional $2,400 per year for erection, power costs and other ongoing charges.. RECOMMENDATION: 4 Authorize the City Manager to execute the use agreement with JEA. ATTACHMENT: Use Agreement :^^ AGEI\DA ITEi•I #8E ~„ Aua-~1-QZ Q8:d4am Pram-JEA KEY ACCOUNTS 9048856835 T-081 AL~GL'ST 12, 2002 r~ _ ,, Pre~~ed hy: Suzanne S. Hawara Assistant Cearral I,aunstt ~* ott',ce of General counsel 1 I? Wcst I>uvat Skeet, Suiie 480 7acksonville, Florida 32203 ,.,.. _ .~, _ , U9E AGREEMENT ~., ~tS _USE AGREEMENT. ("Agreement', is made this day of , 200:,', between JEA, a body politic and corpoiate ("7EA"), and CY'Y'Y' Off' ATI.AIvTIC BEACH, a muuicip~il' corporation (.`city"?. _ ,.. _ WITYESSETH:'; ,~„ WHE~tEAS, JEA is the owntr of certaia electric poles located within public rights of way; and tY>EIEXEAS, City desires. to install. electrical receptacles and holiday lighting fixtures on certain electric poles owned by JEA; and _ vVlEt)E;E~AS, City desires to have JEA provide electric power to §aid holiday lghtar-g fixtures when installed; and , W~LIGRT.iaS, City is wiIlulg to indemnify, defend and hold TEA harmless ,fmxix damages and expenses wlucli may br incurred as a direct or indirect result of such use and ccriairt other conditions. !"" NOW THEREFORE, in consideration of the premises and of the mutual covenants contained htrcin, the legal3ez~cieacy of which is hereby aclcaowledged, the parties hereto agree as follows: ,,,.,, 7 . Use. 7EA acimowIedges and agrees that Cit~t tray, at its sole cost and expense, install electrical. receptacles and. from time to time install or remove holiday lighting. fixtures on electric poles owned by Jl?A located on the north side of Atlantic Boulevard between Third StreeT and. Mayport Road and located on e:aeh side of Mayport Road from Atlantic Boulevard north io Church Road (coIlecdvcly, the '""'" "'P~~la's"). The installation of the electrical receptacles shall be performed by an electrical contractor liceased to do businfss m Duval County, Florida ~ 2. 12rgulations: City shall obtaisi all permits, licenses, and approvals required by any federal, ~ municipal, state or other governmental authority for its use of the Poles and shall at all times comply with _. all laws, ordinances, rules and regulatioru of any federal, municipal, state, or other governmental authority _ with respect to its use o£the Foles. ..~ ~ 3. Damage to Property. City shall, at its sole cost and expense, repair to the complete `~ ' ' satisfaetyon of JFA, any and all damage to the Poles caused by or arising frotn City's exercise of the rights granted herein. 4. City's rmnr-ovemencc. City shall submit installation drawings and specifications to JLA and receive appro~l from 3EA prior to cotnmencing installation of the electrical receptacles. Upon expiration ~'" i _ _ AGENDA ITEM #8E ~, Aua-dt-02 08:04am ' From-JEA KEY ACCOUNTS 9046656335 T-681 AUGUST 12, 2002 r.- .~ or termination of this Agreement, City shall, at its sole cost and expense, remove all electrical receptacles and holiday lighting ftxtures installed on the Poles by Ciry find repair any damage to the Poles caused by-such ~•~, removal. °~ 5. Y7tilitics. Sale of electric energy to City pursuant to this Agreement shall be in aecordan4e wirh .7EA's policies and procedures and the applicable rate tariffthe'~rt in effect or as may be amended from time to rime:. ~.,~ G. I~Ton-lnt nee. It is understood and agreed the Ciry's use of the Poles s}iall not interfere p-. with JEA's use of the Poles or cause a hazardous condirion on the Poles. In the event of any such intGrferenc~; or hazardous condition, Gity shall, at its sole cost acid expesLSe, cause any such interference or hazardous condition to cease and make such modifications in its use of the Poles, including the removal oi' the electtcal receptacles and holiday lighting fixtures, as maybe required to prevent stteh interference or °~^ liazardaus condition. 7 Maii~tenance. City shall, at its Sole Cost and exprrtsc, maintain the electrical receptacles acid holiday lighting fixtures on the Polls is good, safe and attractive condition. 8. Mechanics' Liens. City shall have no power to do any zct or make any contract wluch znay create or be this foundation for any mechanics', nnateriahnen's or other Tien or encumbrance upon the Pole:s_ ,.., : 4. Indemnification. m consideration often dollars ($10.00) receipt and sufficiency of whi4h is hereby cclrnowlcdgcd, City shall, to the ~actent permitted by Section 7b8.28, Florida Statutes; hold ~,,,, harnnless, indemnify, and defend JEA against nay claim, action, loss, damage, injury, liability, cost acid `" " ' eXpense`of whatsoever hind ornature (including, bat notby way oflituitation, attorney's fees and court cosrs) arising out ofinj ury (whether mental or corporeal) to persons, uxcluding death, or damage to property, arising . out oi'or inoidc'ntal to the installation, maintenance (or failure to maintain), use, existence, or removal of the """ alectrioal receptacles and/or holiday lighting fixtures. This indezmnification sha11 survive the expiration or other termination of this Agreement. ,,;,,, 10. >i ire or Casualty. The JF.A sha11 not be liable, regardless of cause, for damage to the , electrical z~rceptacles or holiday Lighting fixtures or for any ineoz;~'ersierice or intezY option of the use of the Poles by City occasioned by file ar other casualty. 11. Insuranee_ Before. installing of the electrical receptacles and/or holiday lighting fixtures on the Poles and without litnitimg its liability under this Agreement, City will procure and maintain at its auto expense iasur~nce ofthe types and in the minimum amounts stated below or provide evidence to ]EA of sal ,,..~, insurance: ~< commercial General Liability for Premises-Operations ~ $1,000,000. each occutxencc Producas-Completed Operations $2,000,000 assnual aggre~ttdCoatbine:d Contractual Liability Single Limit _ ,~• - Independent Contractors Broad Form Property Damage Tl•~e C:ornmercial General Liability Policy shall be effective for twd years after termination of this A~eemettt. The Indemnity agreement set forth in paragraph 9 is sepaYate and is not limited by the insurance a atr~ounts stated above. ~"' '2~ e ~.,, AGENDA ITEM #8E ?~ Aua-Dl-02 Q8:D5am From-JEA KEY ACCOUNTS 9046B56335 T-Di AUGUST 12, 2002 ~; (~iry will specify the JEA as arx additional insured for the Commcrcial General Liability coverage. Such iasttrance will be primary to arty and all other insurance orself-insurance maintained by Jl^A. Catty vtnll '""`' include a Waiver of Subrogation on alI required insurance in fever of JEA, its board members, officers, employees, agf~nts, successors ai7d assigns. . ~,, Such insurance shall be written by a company or companies licensed to do business in the Stacc af' T"lorida ~snd satisfactory to JEA. Prior to installation. of the electrical receptacles and/or holiday lighting - f`vcturds art the Poles, certificates cvidvneing the maintenance of said insuarance or self insurance shall. lie furnished to JEA. for approval. '1'ht:` insurance certificate shall provide that no material alteration or cancellation, ineiudutg "' expiration ~tnd non-renewal, shall be effective until 30 days after receipt of written notice by JEA. Any contractor of City witl procure and maintain the insurance required of City hercttndcx durit:g the life of the contract with Ciry. Contractor's insurance may be either by separate coverage or lry tndc~rsrrnent undo insurance provided by City. City will submit contraator's Certificates of Insurance t4 ^^ JEA pri~sr to allowing contractor to perfoma any installatiaa, maintenance or removal of the c;leciricsl receptacles and/or holiday lighting fixtures on the Poles. _ n. ,,. 12, Hazgrdous Substances. r*~+ :, : (a) City hovenants and agrees-that it will not cause or permit any Hazardous Substances ' (tlie "Hazardous Substances" as hereinafter defined) to be installed, placed, stored, held, located, rraeas~;d ~^* or disposed of in, on, at, or under the Poles. City further covenants nerd egrets to inderimify JEA for any loess, cost; damage, liability or expense. (iizcluding without lixnitstipn, attorneys' fees and other costs of legal ` representation) that JEA might ever incur because of City's failure to comply with the provisions of Cfie ,~,; immediately preceding sentence. This indemnification is to survive the expiration or other termination of this Agoe~netlt (b) Por the purposes ofthis Paragraph 12, Hazardous Substances shall mean and include ~* all those substances, elements, materials or coinpotands that"axe included in any list of hazardous or restricted substances adopted by she United States F~vironmental Protection Agency (the "EPA") or any other sut~tanca, element, material or compound defined or restricted as a hazardous, toxic, xadioaetive or dangerous substancce, material or waste by the EPA or by any other ordinance, statute, law, code, or °""~"~' re~ntlation of any federal, state or local. governmental entity or attiy agency, department or other subdivisiosi :- : thereof, whether uaw or later'. etiaeted, issued ar promulgated. ~, 13_ Waiver. Any waiver aL any time by JIrA. of its rights with respect to City or with i~cspcct to any nzattex arising ixi connection With this A~eemeslt shall not br considered a waiver with xespect to arty ovhcz prior or subsequent default or tzsatter. '~'" 14_ o ~ c .Any notice, demand, or request required or authorized by this Agreement shall be ' deemed pitsprrly given if mailed postage prepaid, to JEA, 21 West Church Street, Customer SErvice, raclcsonville, Florida 322©2, in the case of JEA; and to City of Atlantic Beach, ,_ - ~ , ixi the cast of City, or to such: other address as maybe designated by either parry, ~, 15. Construction of L~~e. Words of any gender used in this Agrcemeztt shall be-held to include env other gender, and words in the singular number shall be held Lo include the plural when the sez-se "'"" rCquires. 't'he paragraph headixigs and titles are not a part of this Agreement and shall have no effect upon . ; _ t},e eonsmxction or iatexpretation of any part hcreaf_ e-+ --3-- ~, AGENDA 1TEM #8E ~, Au¢-01-02 08:05am PraarJEA KEY ACCOUNTS 9046&55385 T-E AUGUST 12, 2002 I6. Provisions Severable. If any term or provision of this Agreement ar the application thereof to any person ta' circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Agree.~tneait or the application of such term or provvision to persons or circumstaaees other than those to which : it is held invalid or unenforceable shaI1 not be affected thereby and each term and provision of this Agti:crnetit snail be valid and be enforced to the fullest extent pernutted bylaw.. '"" 11. Law and Vestue_ This Agreement shall be enforced in accordance with the laws of the State of I~Iorda. 'Chc agreed upon venue is 3acksonville, Duval Gounty, Florida. ,~-, 18. Fxect~tion: Counterparts. This Agreement tray 6e executed in any nurnbcr of cotuYTerparts, each of which shall be deemed an original and any of which shall be deemed to be complete in itself and may be introduced iua evidence' or used far any purpose without the production of the other counterparts. '"" 19, ~tiQht to Terrninate. This Agreement maybe terminated by either party, at any time, with or without cause, by providing ninety (90) days .written notice of such termination to the other parry. ,~., 20, essin • Fee, City agrees to pay to JEA the su;m of $500.00 as processing. cost for this Agreement within thirty (30) days of the date of this Agreement. 21_ ,~ntirc Agrreement. 't'his Agreement represents xhe full, complete and entire agreemer;t """""' between .IEA and City with respect to the subject matter hereof. No modification, alteration or amendment to this. Agreemesnc shall be binding unless in writing and executed by the parties hereto, '" YN WITNESS WL~Yi,EOF, the parties hereto have executed This Agreement on the day and year se,~t i'orth above. `""" Attc.~st: JIEA ..~ :_ ,. By: Print Naine:~- Print Name: Title:_,.,,, _,_,. -- Title: .~ WfTNE;~S~;S: QTY OF A1'~.C.ANTIC BEACH ._,_..__ By~ ~'• Feint Name: mint Name: r r, Title: _.._ ~,,,; Fnnt Name• " G:1C'rovh OperuioaslSftOWARD~lEA10ff~o~Ua stgrccmeatform.wpd ~+ aen _-~_ Ae.. ~.