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.
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ARTICLE Vil. - NEWSRACKS ON PUBLIC RIGHTS -OF -WAY 2
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Sec. 54-265. Insurance and bond requirements. =- x.
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(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
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ARTICLE VIII. - USE OF PUBLIC RIGHTS -OF -WAY BY COMMUNICATION SYS' MS N
* * * :at CI
Sec. 54-309. - Indemnity and insurance.
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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.
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(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
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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.
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Certificates of insurance shall contain thirty (30) days as to changes or modifications i> nc ce
to the certificate holder.
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damage.
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anc1-04)-above-fdr-teledemmudicatien-systemar4he-registrant- -may-submit
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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:
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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.
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Certificates of insurance shall contain thirty (30) days as to changes or modifiotior
with notice to the certificate holder rn
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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