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HomeMy WebLinkAboutO-13918City of Miami Ordinance 13918 Legislation City Hall 3500 Pan American Drive Miami, FL 33133 www.miamigov.com File Number: 7630 Final Action Date: 9/24/2020 AN ORDINANCE OF THE MIAMI CITY COMMISSION AMENDING CHAPTER 54 OF THE CODE OF THE CITY OF MIAMI, FLORIDA, AS AMENDED, 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): Mayor Francis X. Suarez, 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 following particulars:1 "CHAPTER 54 STREETS AND SIDEWALKS ARTICLE VI. - SIDEWALK CAFES Sec. 54-228. Indemnification and insurance. 1 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: A) Printed On: 5/6/2025 File ID: 7630 Enactment Number: 13918 and all liabilities by r son of injury to, or death of any person, or damage to, or destruction, or arising out of, or in conncction with thc performancc, or non performancc of thc scrvice& 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, agents against all liabilities which may be asserted by an employee, or former employee of the 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, its officials, the applicant thereof. The indemnification shall survive termination of this permit/agreement. (b) Applicant shall furnish the city with a certificate of insurance substantially in accordance to against the city and if applicabl, ,any -of its -instrumentalities. T department-ef-resilience and public works may modify the insurance requirements, if warranted. 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 attorney's 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 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 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. City of Miami Page 2 of 9 File ID: 7630 (Revision: A) Printed on: 5/6/2025 File ID: 7630 Enactment Number: 13918 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, $1,000,000.00 policy aggregate, and any endorsements thereto, including, but not limited to, premises and operations liability, personal and advertising injury, 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 Risk Management Department. Companies not meeting the above rating requirements shall submit proof of reinsurance from qualifying insurers having or exceeding the required rating criteria. The registrant/applicant shall provide thirty (30) days prior written notice of cancellation to the City for any reason other than non-payment of premium in which ten (10) days' notice shall apply. ARTICLE VII. - NEWSRACKS ON PUBLIC RIGHTS -OF -WAY Sec. 54-265. Insurance and bond requirements. (a) Insurance requirement. Prior to the issuance of a permit by the director, the distributor shall furnish to the city the following: (1) ' public liability insurance, with the city named as an additional insured, with bodily injury 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 Liability in an amount not less than $1,000,000.00 per occurrence, $2,000,000.00 policy aggregate, and any endorsements thereto, including, but not limited to, premises and operations liability, personal and advertising injury, 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 $500,000.00 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. City of Miami Page 3 of 9 File ID: 7630 (Revision: A) Printed on: 5/6/2025 File ID: 7630 Enactment Number: 13918 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 Risk Management Department. Companies not meeting the above rating requirements shall submit proof of reinsurance from qualifying insurers having or exceeding the required rating criteria. The registrant/applicant shall provide thirty (30) days prior written notice of cancellation to the City for any reason other than non-payment of premium in which ten (10) days' notice shall apply. (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 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 but not limited to, libel, slander, invasion of privacy, and unauthorized use of any trademark, trade name, or service mark), 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, 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 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 permit/agreement. ARTICLE VIII. - USE OF PUBLIC RIGHTS -OF -WAY BY COMMUNICATION SYSTEMS City of Miami Page 4 of 9 File ID: 7630 (Revision: A) Printed on: 5/6/2025 File ID: 7630 Enactment Number: 13918 Sec. 54-309. - Indemnity and insurance. (b) The registrant shall indemnify, save and hold harmless and defend the city from all liens; charges, claims, including but not limited to, libel, slander, invasion of privacy and unauthorized losses; costs, including but not limited to reasonable legal fees and court costs including legal fees a+4d-Gau-rtsests on appeal; judgments; injuries; liabilities or damages, in law or equity, of installation, operation, maintenance or condition of the registrant's communications system or the granting of the registration. The granting of the registration is a separate and distinct consideration for the granting 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 (including but not limited to, libel, slander, invasion of privacy, and unauthorized use of any trademark, trade name, or service mark), 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, 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 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 registration for a telecommunication system and at all times during the terms of the registration, including the time for removal of facilities as provided for herein, the registrant/applicant shall obtain pa„ all premi, ms for and file with the city insurance manager written evidence of payment of premiums and executed duplicate copies of the following: provide to the City a certificate of insurance as follows: Commercial General Liability with limits in an amount not less than $1,000,000.00 per 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 City of Miami Page 5 of 9 File ID: 7630 (Revision: A) Printed on: 5/6/2025 File ID: 7630 Enactment Number: 13918 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 $500,000.00 per accident also listing the City as an additional insured along with workers' compensation including waiver 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 Risk Management Department. Companies not meeting the above rating requirements shall submit proof of reinsurance from qualifying insurers having or exceeding the required rating criteria. The registrant/applicant shall provide thirty (30) days prior written notice of cancellation to the City for any reason other than non-payment of premium in which ten (10) days' notice shall apply. {1) A general comprehensive liability policy indemnifying, defending and saving all claims by any person whatsoever on account of injury to or death of a person or persons occasioned by the operations of the permittee under the registration herein granted or alleged to have been so caused or occurred! with a minima um liability of $500,000.00 combined single limit for personal injury or death. by any person whatsoever for property damage occasioned by the operation of registrant under the registration herein granted or alleged to have been so caused or occurred, with a minimum liability of $500,000.00 combined single limit for property damage. {c) All insurance policies called for herein for telecommunication systems shall be in a form satisfactory to the city insurance manager and shall require 30 days' written notice of any cancellation to both the city and the registrant. The registrant shall, in the event of evidence of thc iscuancc of replacement policies within 30 days following receipt by the city or the registrant of any notice of cancellation. {e) In lieu of the insurance policies as required by and referenced in subsections (c) and (d) above for telecommunication systems, the registrant may submit: (1jar-ce♦-tification b„ a gmalified iindepende it-ac r„ acceptable -to tb{ic-ity insurance manager, which indicates that the registrant has established an "actuarially sound" self insurance program with adequate reserves and resources to provide coverage and protection equal to or better than thc requirements contained in subsections (c) and (d); or {2) Other documentation and proof acceptable to the city's director of finance and insurance manager which indicatcs that thc registrant has a self insurance program with adequate reserves and resources to provide coverage and protection equal to or better than the requirements contained in subsections (c) and (d). City of Miami Page 6 of 9 File ID: 7630 (Revision: A) Printed on: 5/6/2025 File ID: 7630 Enactment Number: 13918 ARTICLE XI. - USE OF THE PUBLIC RIGHTS -OF -WAY FOR INSTALLATION OF PAY TELEPHONES Sec. 54-424. Indemnity and insurance. (b) The permittee shall indemnify, save and hold harmless and defend the city from all liens; charges, claims, including but not limited to, libel, slander, invasion of privacy and unauthorized losses; sects, including but not limited to reasonable legal -fees a G8-61-Ftsests including legal installation, operation, maintenance or condition of the permittee's pay telephone(s) or the granting of the pay telephone permit. The granting of the pay telephone permit is a separate and distinct consideration for the granting of this indemnity. 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 but not limited to, libel, slander, invasion of privacy, and unauthorized use of any trademark, trade name, or service mark), 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, 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 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 the permit, including the time for removal of facilities as provided for herein, the applicant/permittee shall obtain, and provide to the City a certificate of insurance as follows: pay all premiums for, and file with the city's insurance manager written evidence of payment for premiums and a certificate of insurance indicating that the following insurance policies are in effect: A certificate of insurance with respect to Commercial General Liability in an amount not less than $1,000,000.00 per occurrence, $2,000,000.00 aggregate, and any endorsements thereto, City of Miami Page 7 of 9 File ID: 7630 (Revision: A) Printed on: 5/6/2025 File ID: 7630 Enactment Number: 13918 including, but not limited to, premises and operations liability, personal and advertising injury, 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 workers' compensation including waiver of subrogation subject to 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. 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 Risk Management Department. Companies not meeting the above rating requirements shall submit proof of reinsurance from qualifying insurers having or exceeding the required rating criteria. The registrant/applicant shall provide thirty (30) days prior written notice of cancellation to the City for any reason other than non-payment of premium in which ten (10) days' notice shall apply. {1) A general comprehensive liability policy indemnifying, defending and saving all claims by any person whatsoever on account of injury to or death of a person or persons occasioned by the operations of the permittee under the pay telephone permit of $500,000.00 combined single limit for personal injury or death. {2) Property damage insurance, indemnifyinn defending and sa„ing harmlecs the by any person whatsoever for property damage occasioned by the operation of permittee under the pay telephone permit herein granted or alleged to have been so caused or occurred, with a minimum liability of $500,000.00 combined single limit for property damage. (d) All insurance policies called for herein shall name the city as additional insured and shall written notice of any cancellation to both the city and the permittee. The permittee shall, in the cvidcncc of thc ire,uancc of rcplaccmcnt policics within 30 calcndar days following receipt by the city or the permittee of any notice of cancellation. {e) In lieu of the insurance policies as required and referenced in subsections (c) and (d) abovc, thc permittee may submit: {1) A certification by a qualified independent actuary, acceptable to the city's insurance insurance program with adequate reserves and resources to provide coverage and protection equal to or better than the requirements contained in subsections (c) and (d) above; or {2) Other documentation and proof acceptable to the city's director of finance and insurance manager which indicates that permittee has a self insurance program with City of Miami Page 8 of 9 File ID: 7630 (Revision: A) Printed on: 5/6/2025 File ID: 7630 Enactment Number: 13918 adequate reservcs and resources to provide coverage and protection equal to or better than the requirements contained in subsections (c) and (d) above. *„ 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. Section 4. This Ordinance shall become effective immediately upon its adoption and signature of the Mayor.2 APPROVED AS TO FORM AND CORRECTNESS: ria i ;eNty ttor 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: A) Printed on: 5/6/2025