To the extent allowed by law, the ROW user shall be liable to the town for any damage or loss occasioned by any act and/or omission occurring in connection with its excavation, and subject to state law, the ROW user shall fully indemnify, hold harmless and defend the town, its council members, 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 town, its council members, 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 town shall promptly notify a permittee, or ROW user, at the address set forth in the permit, or last known address, of any claim, suit or demand served upon the town and alleging negligent or wrongful conduct by the permittee or ROW user in connection with an excavation.
(Ordinance 2024-12, § 2, adopted 1/9/2024)
(a) 
ROW users shall furnish an original completed certificate of insurance to the Department which shall be completed by an agent authorized to bind the named underwriter(s) and their company to the coverage, limits, and termination provisions shown thereon, and which shall furnish and contain all required information referenced or indicated thereon. The original certificate(s) must have the agent's original signature, including the signer's company affiliation, title and phone number, and be mailed directly from the agent to the town. The town shall have no duty to perform under this article until such certificate has been delivered to the Department. The certificate holder must be the Town of Prosper.
(b) 
The town reserves the right to review the insurance requirements of this section to modify insurance coverage and limits when deemed necessary and prudent by the town based upon changes in statutory law, court decisions, or circumstances surrounding this article, but in no instance will the town allow modification whereupon the town may incur increased risk.
(c) 
Subject to the ROW user's right to maintain reasonable deductibles in such amounts as are approved by the town, ROW users shall obtain and maintain in full force and effect for the duration of the permit, and any extension thereof, and/or duration of time it maintains facilities in the public ROW, at the ROW user's sole expense, insurance coverage written on an occurrence basis, by companies authorized and admitted to do business in the state and rated A- or better by A.M. Best Company and/or otherwise acceptable to the town, in the following types and amounts:
 
Type
Amount
(1)
Worker's compensation
Statutory
 
Employer's liability
$500,000/$500,000/$500,000
(2)
Commercial general (public) liability insurance to include coverage for the following:
Bodily injury and property damage of $2,000,000 per occurrence
$5,000,000 general aggregate or its equivalent in umbrella or excess liability coverage
(A) Premises/operations
(B) Independent contractors
(C) Products/completed operations
(D) Contractual liability
(E) Personal injury
(F) Explosion, collapse, underground
(G) Broad form property damage, to include fire legal liability
(3)*
Business automobile liability
Combined single limit for bodily injury and property damage of $1,000,000 per occurrence or its equivalent
(A) Owned/leased vehicle
(B) Nonowned vehicles
(C) Hired vehicles
(4)*
Professional liability (claims made from)
$1,000,000 per claim to pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages by reason of any act, malpractice, error or omission in professional services
(5)*
Contractor's pollution liability coverage
$1,000,000 written on a claims made form with a two-year extended reporting period
(6)*
Pollution liability motor carrier and trucker coverage endorsing the upset, overturn and remediation of a load in transport
Combined single limit for bodily injury and property damage of $1,000,000 per occurrence written or an occurrence form
*If applicable.
(d) 
The town shall be entitled, upon request and without expense, to receive copies of the policies and all endorsements thereto as they apply to the limits required by the town, 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 town, the ROW user shall exercise reasonable effort to accomplish such changes in policy coverage, and shall pay the cost thereof.
(e) 
ROW users shall ensure that all insurance contracts and certificate(s) of insurance contain the following required provisions:
(1) 
Name the town and its council members, officers, employees, volunteers, agents and representatives as additional insured with respect to the operations and activities of, or on behalf of, the named insured performing in the ROW under provision of this article, with the exception of the professional liability, workers' compensation and liability policy;
(2) 
ROW user's insurance shall be deemed primary with respect to any insurance or self-insurance carried by the town;
(3) 
Provide for an endorsement that the "other insurance" clause shall not apply to the town where the town is an additional insured shown on the policy; and
(4) 
Workers' compensation and employers' liability will provide for a waiver of subrogation in favor of the town.
(f) 
ROW user shall notify the town 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. All notices shall be given to the town at the following address:
ROW Manager
Department of Engineering Services
250 W. First Street P.O. Box 307
Prosper, TX 75078
(g) 
Nothing herein contained shall be construed as limiting in any way the extent to which the ROW user may be held responsible for payments of damages to persons (including death) or property resulting from the ROW user's, or its subcontractors', performance of the work performed in the public ROW.
(h) 
The town-owned utilities shall not be required to provide the insurance specified herein.
(i) 
With respect to the ROW user's obligation to comply with the requirements for commercial general (public) liability insurance coverage to include pollution coverage, the town may allow the ROW user to self-insure upon annual production of evidence that is satisfactory to the town. With respect to the ROW user's obligation to comply with the requirements for automobile liability insurance and for workers' compensation insurance, a ROW user may self-insure, provided the ROW user tenders satisfactory evidence of self-insurance as contemplated by the State Motor Vehicle Financial Responsibility Law, V.T.C.A. Transportation Code § 601.124, and the Texas Workers' Compensation Act, V.T.C.A. Labor Code § 407.001 et seq., as amended.
(Ordinance 2024-12, § 2, adopted 1/9/2024)
(a) 
Before a permit shall be issued, the applicant shall execute and deliver to the town, to be kept on file with the town, a good and sufficient bond of performance or assurance, in the sum of $10,000.00 to be approved by the town 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 town, its council members, 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 town. With respect to the ROW user's obligation to comply with the requirements for a performance/assurance bond, the town may, in the town's sole discretion, allow the ROW user to self-insure such obligation upon production of evidence that is satisfactory to the town.
(b) 
Before a permit shall be issued, the applicant shall execute and deliver to the town, to be kept on file with the town, a good and sufficient maintenance bond, in a sum equal to the estimated costs of reconstruction of town facilities related to the work the permit was for, including, but not limited to, costs of returning streets, sidewalks, ROW and other public property to its original condition as it existed prior to the work performed by the permittee and to ensure maintenance required by § 13.08.082, be approved by the town and in favor of the town that indemnifies the town against any repairs that may become necessary to any part of the work performed in connection with the permit arising from defective workmanship or materials used therein for a period of two years from the date of the time period provided for completion of the work in the permit, or as such time may have been extended by the ROW Manager, whichever is later.
(Ordinance 2024-12, § 2, adopted 1/9/2024)
In lieu of a bond of performance or assurance required for each permit issued under the performance/assurance bond section of this article, the applicant may maintain a one-time bond of performance or assurance with the ROW Manager in the sum of $100,000.00 for the purposes specified in § 13.08.163, and shall have on file, with the town, an approved bond of performance or assurance in like amount, being then in full force and effect, against which claims shall not have been presented aggregating more than $100,000.00; provided, further, that § 13.08.163 shall not apply to applications for permits to make cuts, openings or excavations in any street, plaza or other public place paved under contract with the town, unless the contract of maintenance and the maintenance bond therefor all have expired. The bond shall be maintained until the applicant is no longer working in or on the ROWs.
(Ordinance 2024-12, § 2, adopted 1/9/2024)
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 ROW 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 town retains the right and option to terminate the ROW user's guaranty, upon written notice to the ROW user. In such event, the ROW user shall reimburse the town for its direct costs associated with the repair of the failure of the restoration work.
(Ordinance 2024-12, § 2, adopted 1/9/2024)
In the event the ROW Manager reasonably believes the contractor's or ROW user's solvency is threatened, the ROW Manager may, at any time, make written demand on a contractor and/or ROW user for bonds, and the contractor and/or ROW user shall immediately furnish such additional bond or bonds to the town.
(Ordinance 2024-12, § 2, adopted 1/9/2024)
All bonds required under this article shall be executed by a surety company holding a license to do business in the state which is solvent and reputable.
(Ordinance 2024-12, § 2, adopted 1/9/2024)