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HomeMy WebLinkAboutSubstitution Memo from City AttorneyCITY OF MIAMI OFFICE OF THE CITY ATTORNEY r. 3 MEMORANDUM ' TO: Honorable Mayor and Members of the City Commission -< ; ra z. 1 FR& ria Mendez, City Attorney -p { DATE: July 22, 2020 _ t RE: July 23, 2020, Virtual Commission Meeting Agenda — Substitution o�i �'R. i_ Indemnity and Insurance Requirements in Connection With Sidewal :Ca Permits, Right -Of -Way Permits For Telecommunication Facilities, Newsracks, and Pay Telephones. File No. 7630 Item FR.2 on the July 23, 2020 City Commission Agenda is being substituted to incorporate certain changes requested by the Administration as follows: I. Lowering of the policy limits for insurance in connection with sidewalk cafds from $1,000,000.00 per occurrence and a $2,000,000.00 policy aggregate to $500,000.00 and $1,000,000.00, respectively; 2. Deletion of "non -owned auto exposures" as a required endorsement for a certificate of insurance for a sidewalk cafd or newsrack; 3. Deletion of requirements for workers' compensation coverage with a waiver of subrogation for sidewalk cafds; 4. Deletion of a provision allowing the City to require additional insurance requirements or endorsements in connection with sidewalk cafds, newsracks, and the use of public rights -of -way by communication systems; 5. Deletion of "contingent and contractual exposures" as a required endorsement for a certificate of insurance for a newsrack or use of the public rights -of -way for installation of pay telephones; 6. Removal of provision allowing the Department of Risk Management to review, approve, and require updates to the insurance of a non -governmental applicant for the use of public rights -of -way by communication systems; 7. Requiring that a certificate of insurance for use of the public rights -of -way for installation of pay telephones afford coverage for contingent exposures and underground hazards, if applicable; and 8. Minor corrections for style and typographical errors. CC. Arthur Noriega V, City Manager W,30 .5065HU f�On MOOD F'�^� C� � A ihmey Miriam Santana, Agenda Coordinator BLM/DSG City of Miami c��t oE� F . t City Batt 3500 Pan American Drive Legislation t-Ir Miami, FL 33133 www.miamigov.00m `0 It�° Ordinance: File Number: 7630 Final Action Date: AN ORDINANCE OF THE MIAMI CITY COMMISSION AMENDING CHAPTER 54 OF THE CODE OF THE CITY OF MIAMI, FLORIDA, AS AMENDED ("CITY CODE"), TITLED "STREETS AND SIDEWALKS," TO UPDATE AND CODIFY INDEMNITY, INSURANCE, AND SURETY REQUIREMENTS IN CONNECTION WITH SIDEWALK CAFE PERMITS, RIGHT-OF-WAY PERMITS FOR TELECOMMUNICATION FACILITIES, NEWSRACKS, AND PAY TELEPHONES; CONTAINING A SEVERABILITY CLAUSE; AND PROVIDING FOR AN IMMEDIATE EFFECTIVE DATE. SPONSOR(S): Commissioner Ken Russell, Commissioner Manolo Reyes WHEREAS, Chapter 54 of the Code of the City of Miami, Florida, as amended ("City Code"), establishes certain requirements for indemnification and insurance in connection with the issuance of certain permits related to the use of and work in the public right-of-way; and WHEREAS, the City Commission wishes to update said provisions and to codify insurance requirements in connection with said permits; NOW, THEREFORE, BE IT ORDAINED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1. The recitals and findings contained in the Preamble to this Ordinance are adopted by reference and incorporated as if fully set forth in this Section. Section 2. Chapter 54 of the City Code, titled "Streets and Sidewalks," is amended in the foilowinq particulars:' �±i f W � "CHAPTER 54 STREETS AND SIDEWALKS r— �y �� N r r + ARTICLE VI. - SIDEWALK CAFES c co co y r Sec. 54-228. Indemnification and insurance. , ' Words and/or figures stricken through shall be deleted. Underscored words and/or figures shall be added. The remaining provisions are now in effect and remain unchanged. Asterisks indicate omitted and unchanged material. City of Miami Page 1 of 9 File ID: 7630 (Revision: ) Printed On: 7/22/2020 File Ip: 7630 Enactment Number: , and- aa liabilities by FeaseR Gf *NuFy to, OF death of aRy peFseR, OF damage tG, eF destFur%GR, eF , employee OF fGFMGF eMpleyee would otherwise be limited to payments URd8F agents against a!l liabilities whiGh may be aswted by an employee, OF f4GFM9F SFRPIGYSe Of thO , liGeAsees OF invitees plaGed GA Gity PFGPGFty, and its and shall be at the Fisk e against the Gity and if appliGable, any of its instFumental-ties. The depaFt.m.ent of resiliend4-aRpL, .1113 . (� Applicant agrees to indemnify, defend and hold harmless the City, its officials emplo__ e's r agents, and, if applicable, its instrumentalities, and each of them from and against all toss, CM, penalties, fines, damages, claims of any nature, including expenses and attorney's fees, and` any and all liabilities by reason of injury to or death of any person, or damage to, dest?uctiorr loss to_any_property including the City, its instrumentalities, officials, employees, and agent- C7 arising oui or or in connecuon wim ine perrormance or non-perTormance oT ine services+ , o contemplated by this germit/agreement which is directly or indirectly caused, in whole ' In lArt, by any act, omission, default, liability, or negligence, whether active or passive of the applicant, its employees, agents, servants, or contractors, unless such act or omission is solely caused by the City, its instrumentalities, officials, employees, and agents. The applicant further agrees to indemnify, defend, and hold harmless the City, its instrumentalities, officials, employees, and agents against all liabilities which may be asserted by an employee or former employee of the applicant or any of its contractors as provided above for which the applicant's liability to such employee or former employee would otherwise be limited to payments under workers' compensation or similar laws. In addition, the applicant understands and agrees that except where caused by the negligence or misconduct of the City, its instrumentalities, officials, employees, or agents, the City shall not be liable for any loss, injury, or damage to any personal property or equipment of the applicant, its employees, agents, contractors, business licensees, or invitees placed on City property and its instrumentalities and shall be at the sole risk of the applicant thereof. The applicant shall ensure that adequate safety precautions are in effect at all times during the term of the permit. It shall be a further condition precedent to the issuance of any such permit for placement of such sidewalk cafe in the public right-of-way that the permit holder(s) is/are iointly and severally responsible, at each permit holder's sole expense, for any damages regarding restoring the public right-of-way to its original condition before installation of facilities. The indemnification shall survive termination of this permit/agreement. City of Miami Page 2 of 9 File ID: 7630 (Revision:) Printed on: 7/22(2020 File ID: 7630 Enactment Number: Prior to the issuance of any such permit the applicant shall submit to the City a certificate of insurance with respect to Commercial General Liability with limits of at least $500,000.00 per occurrence $1 o00,000.00 policy aggregate and any endorsements thereto, including, but not limited to premises and operations liability. personal and advertising in products and completed operations and liquor liability. The certificate must reflect primary and noncontributory language and list the City as an additional insured on all third -party liability policies including liquor. The insurance herein required shall remain in full force and effect at all times during the entire term of the permit Additionally, all such insurance shall be subject to review and approval by the City's Risk Management Department. All insurance policies required above shall be issued by companies authorized to do business under the laws of the State of Florida with the following Qualifications: The company must be rated no less than "A as to management and no less than Class_"V" as to financial strength by the latest edition of Best's Insurance Guide, published by A.M. Best Company Oldwick New Jersey, or its equivalent subject to the approval of the City's Department of Risk Management Companies not meeting the above rating reauirements shall submit proof of reinsurance from qualifying insurers having or exceeding the required rating criteria. Certificates of insurance shall contain thirty (30) days as to changes or modifications with notice to the certificate holder. c� ARTICLE VII. - NEWSRACKS ON PUBLIC RIGHTS -OF -WAY 52 -c `"s r' Cn 1 * o.,.a rn tV n Sec. 54-265. Insurance and bond requirements. �C) x. 3 c5 W (a) Insurance requirement. Prior to the issuance of a permit by the director, the distriwob C-] shall furnish to the city the following: (1) Evidence, acceptable to the city's risk management division, that the distributor has public liability insurance, with the city named as an additional insured, with bodily injury liability limits of $500,000.00 each person; $500,000.00 each occurrence, and property damage liability limits of $250,000.00 each occurrence, or bodily injury liability and/or property damage liability, single limit of $500,000.00 each occurrence. A certificate of insurance with respect to Commercial General Liabilitv in an amount not less than 11,000,000.00 per occurrence. $2,000.000.00 policy aggregate, and any endorsements thereto, including, but not limited to, premises and operations liability. personal and advertising iniury, products, and completed operations. The certificate must reflect primary and noncontributory language and list the City as an additional insured. The certificate must also include coverage for all owned, hired, and non -owned vehicles, if applicable, with a combined single limit of $500,000 per accident also listing the City as an additional insured. The insurance herein required shall remain in full force and effect during the entire term of the permit. Additionally, all such insurance shall be subject to review and approval by the City's Risk Management Department. All insurance policies required above shall be issued by companies authorized to do business under the laws of the State of Florida with the following Qualifications: C ty of Miami Page 3 of 9 Mid ID: 7630 (Revision: ) Printed on: 7/22/2020 File ID: 7630 Enactment Number: The company must be rated no less than "A-" as to management and no less than Class W" as to financial strength by the latest edition of Best's Insurance Guide, published by A.M. Best Company Oldwick New Jersey, or its equivalent subject to the approval of the Ch's Department of Risk Management. Companies not meeting the above rating requirements shall submit proof of reinsurance from qualifying insurers having or exceeding the required rating criteria. Certificates of insurance shall contain thirty (30) days as to changes or modifications with notice to the certificate holder. (2) Insurance under this section shall run continuously with the presence of the applicant's newsrack on city public rights -of -way, and any termination or lapse of such insurance shall be a violation of this article. Failure to timely continuously maintain the required insurance shall result in the imposition of a fine of double the permit fee per newsrack which if not paid within 30 calendar days of written notice from the city shall result in the newsrack being deemed abandoned and subject to removal as set forth in this article. Alternatively, the city may pursue appropriate remedy by the code enforcement division under section 2-811 et seq. of this Code. Applicant aarees to indemnify, defend and hold harmless the City, its officials, employees, agents and if applicable its instrumentalities and each of them from and against all loss, cost, penalties fines damages claims of any nature, including expenses and attorneys' fees, and any and all liabilities by reason of injury to or death of any person, damage to, destruction, or loss to any property including the City its instrumentalities its officials, employees, and agents arising out of or in connection with the performance or non-performance of the services contemplated by this Dermit/agreement which is directly or indirectly caused, in whole or in part, by any act omission default, liability, or negligence, whether active or passive of the applicant, its employees agents, servants, or contractors, unless such act or omission is solely caused by the City, its instrumentalities, officials, employees, and agents. The applicant further agrees to indemnify, defend, and hold harmless the City, its instrumentalities, officials, employees, and agents against all liabilities which may be asserted by an employee or former employee of the applicant or any of its contractors as provided above for which the applicant's liability to such employee or former employee would otherwise be limited to payments under workers' compensation or similar laws. In addition, the applicant understands and agrees that except where caused by the negligence or misconduct of the City, its instrumentalities, officials, employees, or agents, the City shall not be liable for any loss, injury, or damage to any personal property or equipment of the applicant, its employees, agents, contractors, business licensees, or invitees placed on City_Property and its instrumentalities and shall be at the sole risk of the applicant thereof. The applicant shall ensure that adequate safety precautions are in effect at all times during the term of the permit. It shall be a further condition precedent to the issuance of any such permit for placement of such newsrack in the public right-of-way that the permit holder(s) is/are jointly and severally responsible, at each permit holder's sole expense, for any damages regarding restoring the public right-of-way to its original condition before installation of facilities. The indemnification shall survive termination of this Dermit/agreement. Ir N N o ARTICLE VIII. - USE OF PUBLIC RIGHTS -OF -WAY BY COMMUNICATION SYST S ry n 3 Co Sec. 54-309. - Indemnity and insurance. W o 4 -r- city of Miami Page 4 of 9 File ID: 7630 (Revision:) Printed on: 712212020 File ID. 7630 Enactment Number: (b)indemnify, save and hold hwmless and defend thS Gity #9FA all HOW, ; feer, and GOIJA GGStS OR appeal; judgments'; OF�wiesj liabilitieS OF damages, On law OF equity, Gf wnshdwatien fQF the gFanting of this indemnity. The registrant/applicant shall indemnify, defend, and hold harmless the City its officials employees agents and if applicable, its instrumentalities and each of them from and against all loss cost penalties fines damages claims of any nature includina expenses and attorneys' fees, and any and all liabilities by reason of iniury to or death of any person damage to destruction, or loss to any property including the City, its instrumentalities its officials employees, and agents arising out of or in connection with the performance or non-performance of the services contemplated by this permit/agreement which is directly or indirectly caused, in whole or in part, by any act, omission, default, liability, or negligence whether active or passive of the applicant, its employees. agents, servants or contractors unless such act or omission is solely caused by the City, its instrumentalities officials employees and agents The applicant further agrees to indemnify, defend and hold harmless the City, its instrumentalities, officials, employees, and agents against all liabilities which may be asserted by an employee or former employee of the applicant or any of its contractors as provided above, for which the applicant's liability to such employee or former employee would otherwise be limited to payments under workers' compensation or similar laws. In addition, the applicant understands and agrees that except where caused by the negligence or misconduct of the City, its instrumentalities, officials, employees, or agents, the City shall not be liable for any loss, injury, or damage to any personal property or equipment of the applicant, its employees, agents, contractors, business licensees, or invitees placed on City property and its instrumentalities and shall be at the risk of the applicant thereof. The applicant shall be solely responsible for all activities. The applicant shall ensure that adequate safety precautions are in effect at all times during the term of the permit. It shall be a further condition precedent to the issuance of any such permit for work to be performed in the public right-of-way that the permit holder(s) is/are jointly and severally responsible, at each permit holder's sole expense, for any damages regarding restoring the public right-of-way to its original condition before installation of facilities. The indemnifigAn shall survive termination of this permit/aareement, (c) Upon the granting of a registration for a telecommunication system and at all time`$-duri the terms of the registration, including the time for removal of facilities as provided for €mein, ,, the registrant/appiicant shall obtaiR, pay all pFemiums for, and file with thea #eNewiA@:provide to the City a certificate of insurance as follows: `-3 CO ra O Commercial General Liability with limits in an amount not less than $1,000,000.00 per -r- occurrence. $2,000,000.00 aggregate, and any endorsements thereto, including, but not limited to, premises and operations liability, contingent and contractual exposures, personal and advertising injury, products and completed operations. and XCU hazards, if applicable. The certificate must reflect primary and noncontributory language and list the City as an additional insured with respect to general liability. The certificate shall further include coverage for all owned, hired, and non -owned vehicles with a combined single limit of $500,000 per accident also listing the City as an additional insured along with worker's compensation including waiver City Of Miami Page 5 of 9 File ID: 7630 (Revision:) Printed on: 712212020 File ID. 7630 Enactment Number of subrogation as required by the statutory limits of the State of Florida. The insurance herein required shall remain in full force and effect during the entire term of the permit. All insurance policies required above shall be issued by companies authorized to do business under the laws of the State of Florida with the following qualifications: The company must be rated no less than °A-" as to management and no less than Class "V" as to financial strength by the latest edition of Best's Insurance Guide. Published by A.M. Best Company, Oldwick New Jersey. or its equivalent subject to the approval of the City's Department of Risk Management. Companies not meeting the above rating requirements shall criteria. 50 to the certificate holder. .. ... .. MIT MPT., - - - - - - - • ET ARTICLE XI. - USE OF THE PUBLIC RIGHTS -OF -WAY FOR INSTALLATION OF PAY TELEPHONES M 171 City of Miami Page 6 of 9 File ID: 7630 (Revision:) Printed on: 7/22(2020 File ID: 7630 Enactment Number: Sec. 54-424. Indemnity and insurance. (b) , ; fQ-0-6- and GQUA GGStS of; appeal, judgments'; iNuFierij liabilities OF damages, in IaW OF Gquity, 0 106686i GOStS, iRGluding but AGt limited to Feasenable legal fees and GGWFt GOStS inGluding legal Applicant agrees to indemnify, defend, and hold harmless the City, its officials, employees, agents, and, if applicable, its instrumentalities, and each of them from and against all loss, cost, penalties, fines, damages, claims of any nature, including expenses and attomeys' fees, and any and all liabilities by reason of injury to or death of any person, damage to, destruction, or loss to any property including the City, its instrumentalities, officials, employees, and agents arising out of or in connection with the performance or non-performance of the services contemplated by this permit/agreement which is directly or indirectly caused, in whole or in part, by any act, omission, default, liability, or negligence. whether active or passive, of the applicant, its employees, agents, servants, or contractors, unless such act or omission is solely caused by the City, its instrumentalities, officials, employees, and agents. The applicant further agrees to indemnify, defend, and hold harmless the City, its instrumentalities, officials, employees, and agents against all liabilities which may be asserted by an employee or former employee of the applicant, or any of its contractors as provided above, for which the applicant's liability to such employee or former employee would otherwise be limited to payments under workers' compensation or similar laws. In addition, the applicant understands and agrees that except where caused by the negligence or misconduct of the City, its instrumentalities, officials, employees, or agents, the City shall not be liable for any loss, injury. or damage to any personal property or equipment of the applicant, its employees, agents, contractors, business licensees, or invitees placed on CitYproperty, and its instrumentalities, and shall be at the sole risk of the applicant thereof. The applicant shall ensure that adequate safety precautions are in effect at all times during the term of the permit. It shall be a further condition precedent to the issuance of any such permit for work to be performed in the public right-of-way that the permit holder(s) is/are jointly and severally responsible, at each permit holder's sole expense, for any damages regarding restoring the public right-of-way to its original condition before installation of facilities. The indemnification shall survive termination of this permit/agreement. � (c) Upon the granting of a pay telephone permit and at all times during the terms of -'Me, permit, including the time for removal of facilities as provided for herein, the a lican a mi ee I®P3 shall obtain, and provide to the City a certificate of insurance as follows: pay all pizemk' (7) .�; 3 A certificate of insurance with respect to Commercial General Liability in an amount ri ^ lest; than $1.000,000.00 per occurrence, $2,000,000.00 aggregate, and any endorsementgftreto, including, but not limited to, premises and operations liability, personal and advertising�iniLAy products, and completed operations. The certificate shall also afford coverage for contingent exposures and underground hazards, if applicable. The certificate must reflect primary and noncontributory language and list the City as an additional insured. The certificate shall further include coverage for all owned, hired, and non -owned vehicles with a combined single limit of $500,000.00 per accident also listing the City as an additional insured along with worker's compensation including waiver of subrogation subject to the statutory limits of the State of City of Miami Page 7 of 9 File ID: 7630 (Revision:) Printed on: 7/22/2020 File ID: 7630 Enactment Number: Florida. The insurance herein reauired shall remain in full force and effect during the entire term of the permit. Additionally, all such insurance shall be subject to review and approval by the City's Risk Management Department. All insurance policies required above shall be issued by companies authorized to do business under the laws of the State of Florida with the following qualifications: The company must be rated no less than "A-" as to management and no less than Class `V" as to financial strength by the latest edition of Best's Insurance Guide, published by A.M. Best Company, Oldwick New Jersey, or its equivalent subject to the approval of the City's Department of Risk Management. Companies not meeting the above rating requirements shall submit proof of reinsurance from qualifying insurers having or exceeding the required rating criteria. 4"a N «.1 dw with notice to the certificate holder tV (1) A geReFal GGFAPFeh8A6iV8 liability poky indemnifying, defen ing, and- sl­&':'�" W 78 M �• ��� �� ROOM 0-4 00004.0 Ir .10 rm- .010 Section 3. If any section, part of a section, paragraph, clause, phrase, or word of this Ordinance is declared invalid, the remaining provisions of this Ordinance shall not be affected. City of Miami Page 8 of 9 File ID: 7630 (Revision:) Printed on: 7/22/2020 File ID: 7630 Enactment Number: Section 4. This Ordinance shall become effective immediately upon its adoption and signature of the Mayor.2 APPROVED AS TO FORM AND CORRECTNESS: LAt6ria'Wd6-z, Cify Attor iey 7/14/2020 1 N � C= - iTj ` E'. co {� 2 This Ordinance shall become effective as specified herein unless vetoed by the Mayor within ten (10) days from the date it was passed and adopted. If the Mayor vetoes this Ordinance, it shall become effective immediately upon override of the veto by the City Commission or upon the effective date stated herein, whichever is later. City of Miami Page 9 of 9 File ID: 7630 (Revision:) Printed on: 712212020