To the extent allowed by law, the right-of-way user or permittee
shall be required to indemnify the City for any damage or loss occasioned
by any act and/or omission occurring in connection with its excavation.,
and right-of-way user shall be required to fully indemnify, hold harmless
and defend the City, its councilmembers, officers, employees, agents,
representatives and volunteers from and against any and all suits,
actions, judgments, losses, costs, demands, claims, expenses (including
attorney’s fees), damages, and liabilities of every kind to
which the City, its councilmembers, officers, employees, volunteers,
agents, and representatives may be subjected for injury of any type,
death or property damage arising from or connected with any such act
and/or omission. The City shall promptly notify a permittee, or right-of-way
user, at the address set forth in the permit, or last known address,
of any claim, suit or demand served upon the City and alleging negligent
or wrongful conduct by the permittee or right-of-way user in connection
with an excavation.
(Ordinance 1446-0-07-14, passed 7-14-20)
(A)
Insurance.
(1)
It
shall be unlawful for any person, unless exempt under this Chapter,
to construct, reconstruct or repair any sidewalk, driveway, curb or
curb and gutter in any street, alley, easement or right-of-way of
the City without having first executed and delivered to the City a
current policy(ies) of liability insurance in an amount determined
by the City(including but not limited to general and/or commercial
liability, worker’s compensation and business auto liability),
and such insurance must be conditioned as follows: that the principal
shall fully indemnify and hold the City harmless from any and all
cost, expense or damage, whether real or asserted, on account of any
injury done to any person or property in the prosecution of the work,
or that may arise out of or be occasioned by the performance of such
work by occurrence. The City shall have no duty to perform under this
chapter until such certificate has been delivered to the department.
(2)
City
shall be entitled, upon request and without expense before issuing
a permit, to receive copies of the policies and all endorsements thereto
as they apply to the limits required by the City, and may make a reasonable
request for deletion, revision, or modification of particular policy
terms, conditions, limitations or exclusions (except where policy
revisions are established by law or regulation binding upon any party
to the policy or the underwriter of such policy). Upon such request
by the City, the right-of-way user shall exercise reasonable effort
to accomplish such changes in policy coverage, and shall pay the cost
thereof.
(3)
Right-of-way
user shall notify the City in the event of any notice of cancellation,
nonrenewal or material change in coverage and shall give such notices
not less than 30 days prior to the change, or ten day notice for cancellation
due to nonpayment of premiums, which notice must be accompanied by
a replacement certificate of insurance.
(4)
Nothing
herein contained shall be construed as limiting in any way the extent
to which the right-of-way user may be held responsible for payments
of damages to persons (including death) or property resulting from
the right-of-way user’s, or its subcontractors’, performance
of the work performed in the public right-of-way.
(5)
The
City-owned utilities shall not be required to provide the insurance
specified herein.
(6)
With
respect to the right-of-way user’s obligation to comply with
the requirements for commercial general (public) liability insurance
coverage, the City Engineer, in collaboration with the City’s
Finance Director may, in their discretion, allow the right-of-way
user to self-insure upon annual production of evidence that is satisfactory
to show the user has sufficient assets and history of performance
to justify the user to self-insure.
(B)
Bonds.
(1)
Unless
otherwise provided for by a utility company’s or other applicant’s
valid franchise or agreement, the City shall require reasonable bonding
requirements of a utility company or other applicant. Such bonding
amounts will be reasonably determined by the City depending on several
factors based on public safety and risk of harm to persons and property.
Such factors may include, but are not limited to:
(2)
The
utility company or other applicant shall file an annual surety bond
with the City, which will be valid each year prior to the commencement
of any construction and will extend for a period of two (2) years
after the end of the then current year for the construction completed
in any given year. The surety bond shall be obtained from a surety
company authorized to do business in the State. The terms of the bond
shall be subject to city approval. Such surety bond will be in the
amount of the estimated cost to restore the public rights-of-way for
the work anticipated to be completed in that year. If the City determines
that the annual surety bond on file is insufficient to restore the
public rights-of-way related to a specific project for which a permit
application has been filed, then the City, as a condition of right-of-way
permit issuance may require the utility company or other applicant
to file an additional surety bond for such project.
(3)
The
City may either waive or reduce the amount of the surety bond in the
event the utility company or other applicant has had a two-year history
of no claims or damages to city property with the city, or has promptly
paid such claims upon request. No surety bonds for aerial construction
will be required of holders of a state-issued certificate of franchising
authority to provide cable or video services, in accordance with Texas
Utilities Code Chapter 66.
(C)
Alternate
compliance methods.
The above requirements may be met
by utility companies with a current franchise or agreement with the
City if their current franchise or agreement adequately provides for
insurance and bonds in favor of City.
(Ordinance 1446-0-07-14, passed 7-14-20)
Any defects of workmanship or material relating to work done
by an excavator during the initial project or becoming known, or which
should have been known, during the guarantee period of two (2) years
shall be known as maintenance or repair work, and both the excavator
and the sureties and/or the contractor’s bond shall be fully
liable for any default of such contractor under this section. In the
event of a failure in the restoration of an excavation, the right-of-way
user shall, at its sole expense, have one opportunity to repair, in
a timely manner, the section of the restoration that has failed, which
repair shall be in accordance with the standards set forth in this
chapter.
(Ordinance 1446-0-07-14, passed 7-14-20)
(A)
When
additional security required.
In the event the City Engineer
reasonably believes the contractor’s or right-of-way user’s
solvency is threatened, the City Engineer may, at any time, make written
requirement on a contractor and/or right-of-way user for bonds, and
the contractor and/or right-of-way user shall immediately furnish
such additional bond or bonds to the City.
(B)
Decision
as determined by the City binding on contractor, right-of-way user
and sureties.
If any question arises as to when any work
was actually began or other specific dates, the decision of the City
Engineer shall be conclusive on the contractor, right-of-way user,
and the sureties on all such bonds.
(Ordinance 1446-0-07-14, passed 7-14-20)
