To the extent allowed by law, the right-of-way user shall be
liable to the city for any damage or loss occasioned by any act and/or
omission occurring in connection with its excavation, and subject
to state law, the right-of-way user shall 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, agents, representatives
and volunteers 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 2017-35, sec. 3.01, adopted 8/8/17)
(a)
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 of liability insurance in an amount determined by the
city, 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. The city shall have no duty to perform under this article
until such certificate has been delivered to the department.
(b)
The 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.
(c)
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
days notice for cancellation due to nonpayment of premiums, which
notice must be accompanied by a replacement certificate of insurance.
(d)
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.
(e)
The city owned utilities shall not be required to provide the insurance
specified herein.
(f)
With respect to the right-of-way user’s obligation to comply
with the requirements for commercial general (public) liability insurance
coverage, the city right-of-way manager may, in his 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.
(Ordinance 2017-35, sec. 3.01, adopted 8/8/17)
Before a permit shall be issued, the right-of-way manager may,
in his discretion, may require the applicant and/or the person or
entity for which the applicant is performing, to execute and deliver
to the city, to be kept on file with the city, a good and sufficient
bond of performance or assurance, in the sum to be determined by the
city and conditioned that the person making the application shall
promptly adjust, pay and settle all legitimate claims for damages
that may result by reason of carelessness or negligence in the manner
of performing such work or by reason of any defects therein caused
or arising from careless, negligent or imperfect construction thereof,
and to hold the city, its councilmembers, officers, employees, volunteers,
agents, and representatives, free and harmless from liability on all
such claims for damages to the performance or assurance bond which
shall cover the cost of repairs in or upon the street, sidewalk or
other public place where the work is to be done that may become necessary
by reason of such cut or excavation having been made. The bond shall
be maintained until the work is accepted by the city.
(Ordinance 2017-35, sec. 3.01, adopted 8/8/17)
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 (the two 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
article. In the event of any subsequent failure of that section of
the restoration, the city retains the right and option to terminate
the right-of-way user’s guaranty, upon written notice to the
right-of-way user. In such event, the right-of-way user shall reimburse
the city for its direct costs associated with the repair of the failure
of the restoration work.
(Ordinance 2017-35, sec. 3.01, adopted 8/8/17)
In the event the right-of-way manager reasonably believes the
contractor’s or right-of-way user’s solvency is threatened,
the right-of-way manager may, at any time, make written demand 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.
(Ordinance 2017-35, sec. 3.01, adopted 8/8/17)
If any question arises as to when any work was actually begun
or other specific dates, the decision of the right-of-way manager
shall be conclusive on the contractor, right-of-way user, and the
sureties on all such bonds.
(Ordinance 2017-35, sec. 3.01, adopted 8/8/17)
