Loading...
HomeMy WebLinkAboutSubstitution Memo from City AttorneyCITY OF MIAMI OFFICE OF THE CITY ATTORNEY MEMORANDUM TO: Honorable Mayor and Members of the City Commission -< ; z. 1 -, . c..w {-r1 FRO14.::'ria Mendez, City Attorney DATE: July 22, 2020 _ RE: July 23, 2020, Virtual Commission Meeting Agenda — Substitution of 'R Indemnity and Insurance Requirements in Connection With Sidewalk,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: 1. Lowering of the policy limits for insurance in connection with sidewalk cafes 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 cafe or newsrack; 3. Deletion of requirements for workers' compensation coverage with a waiver of subrogation for sidewalk cafes; 4. Deletion of a provision allowing the City to require additional insurance requirements or endorsements in connection with sidewalk cafes, 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 7(p30 Subskfuf)on MMD 7(.0 elk/ A-H-DriLeki Miriam Santana, Agenda Coordinator BLM/DSG City of Miami Legislation Ordinance: City Hail 3500 Pan American Drive Miami, FL 33133 www.miamigov.com 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 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:) Printed On: 7/22/2020 File ID: 7830 Enactment Number: Applicant agrees to indemnify, defend, and hold harmless the City, its officials, employees, r- egents, and, if applicable, its instrumentalities, and each of them from and against all let4, c&a, penalties, fines, damages, claims of any nature, including expenses and attornev's fees, ands any and all liabilities by reason of injury to or death of any person, or damage to, destiyetiortor loss to any property including the City, its instrumentalities, officials, employees, and agentsca 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 o in eat, 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 durinq the term of thepermit. 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 thispermit/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. $1,000,000.00 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 subiect 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. Certificates f insurance shall contain thirty (30) days as to changes or modifications with noti to the certificate holder. * 41111 Ei c=> ARTICLE Vil. - NEWSRACKS ON PUBLIC RIGHTS -OF -WAY 2 -c `n r' rri * * * o.a tV C? Sec. 54-265. Insurance and bond requirements. =- x. 3 -c5 W iS (a) Insurance requirement. Prior to the issuance of a permit by the director, the distriutoo shall furnish to the city the following: A (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 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 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: City of Mlaml Page 3 of 9 File ID: 7630 (Revision:) Printed on: 7/22/2020 File ID: 7630 Enactment Number: Thg 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. 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. Altematively, 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 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 permit/aareement 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. N -n N * * * 0 o ern L. r- ARTICLE VIII. - USE OF PUBLIC RIGHTS -OF -WAY BY COMMUNICATION SYS' MS N * * * :at CI Sec. 54-309. - Indemnity and insurance. ri c rn P1 rri C) City of Miami Page 4 of 9 File ID: 7630 (Revision:) Printed on: 7/22/2020 File ID: 7630 Enactment Number: (b) , 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 expenses and attorneys' fees, and anv and all liabilities by reason of injury to or death of any person, damage to, destruction, or loss to anv 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 employee& 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 anv 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 anv damages regarding restoring the public right-of-way to its original condition before installation of facilities. The indemnifical bn shall survive termination of this permit/agreement. r't L. (c) Upon the granting of a registration for a telecommunication system and at all time`$-durit C7 the terms of the registration, including the time for removal of facilities as provided for€ein,r,o rrI the registrant/applicant shall _ - a LD following: provide to the City a certificate of insurance as follows: `- rp ra O Commercial General Liability with limits in an amount not less than $1,000,000.00 per occurrence, $2,000,000.00 aggregate, and anv 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: 7/22/2020 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 submitproof of reinsurance from qualifying insurers having or exceeding the required rrnq criteria. rn ••-- Certificates of insurance shall contain thirty (30) days as to changes or modifications i> nc ce to the certificate holder. tv w (4)---A-g _ damage. , • anc1-04)-above-fdr-teledemmudicatien-systemar4he-registrant- -may-submit „ „ ' , ARTICLE Xl. - USE OF THE PUBLIC RIGHTS -OF -WAY FOR INSTALLATION OF PAY TELEPHONES City of Miami Page 6 of 9 File ID: 7630 (Revision:) Printed on: 7/22/2020 File ID: 7630 Enactment Number: w w w Sec. 54-424. Indemnity and insurance. (b) ; Applicant agrees to indemnify, defend, and hold harmless the Citv, its officials, employees, agents, and, if applicable. its instrumentalities. and each of them from and against all Toss, cost. penalties. fines. damages, claims of any nature, including expenses and attorneys' fees, and any and all liabilities bv 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. bv 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 bv 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 bv the negligence or misconduct of the City. its instrumentalities, officials, employees, or agents, the Citv 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 anv 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. S`y (c) Upon the granting of a pay telephone permit and at all times during the terms of1e; permit, including the time for removal of facilities as provided for herein, the applicant/urrmi ee I®1 shall obtain, and provide to the Citv a certificate of insurance as follows: k. 3 A certificate of insurance with respect to Commercial General Liability in an amount ngtIess? than $1,000,000.00 per occurrence, $2,000,000.00 aggregate, and anv endorsementa.thelteto, including, but not limited to, premises and operations liability, personal and advertisinOniufy, 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 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 manaqement and no Tess than Class "V" as to financial strength by the latest edition of Bests 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 fV «' t C'RD Certificates of insurance shall contain thirty (30) days as to changes or modifiotior with notice to the certificate holder rn N C7 w rn nytwel �e i EEC -ram} _____ __ _______ __J L__iL_ ___—_i__�_ _t 1L_ �_______Jl__ __�J__iL_ ___. 1_I__L. r•a«a��m:L ��/ 1 f 1 Gityf 1 , , prop-c01-damage. 1 1 f :L.,_ : * *11 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: 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: 7/22/2020