City of Parkville, MO Insurance, Bonding And Liability

[Ord. No. 3149, 11-15-2022]

All ROW-users shall comply with the insurance requirements set forth in this Section, unless the ROW-user has twenty-five million dollars ($25,000,000.00) in net assets in the State of Missouri and does not have a history of non-compliance, or permitting non-compliance, within the City. If the ROW-user claims such exemption, the ROW- user shall provide all information to the City necessary to determine the amount of net assets of the ROW-user.

Insurance Required.

Prior to any access in the ROW, ROW-user shall file with the City evidence of liability insurance with an reputable, qualified and financially sound insurance company licensed to do business in Missouri, and unless otherwise approved by the City in writing, with a current A.M. Best rating of not less than A-. ROW-user shall procure and maintain insurance against claims for: a) bodily injury, personal injury, sickness or disease, or death of any or more persons other than ROW- user's employees; b) damages insured by usual personal and advertising injury liability coverage; c) damages because of injury to or destruction of tangible property, including loss of use; d) products/completed operations; and e) damages involving liability insurance applicable to ROW-user's indemnity obligations under division. Such insurance shall cover claims as may be occasioned by the operations, acts, errors, omissions, or negligence of ROW- user or its officers, agents, representatives, employees, lessees, or contractors during all times that occupies the ROW. Insurance limits may be met by the combination of primary and umbrella or excess coverage.

The insurance to be provided by an ROW-user shall be as set forth in the "Standard Insurance and Indemnification Requirements" as approved by the City Attorney, which may be updated and amended as needed from time to time.

If the ROW-user is self-insured, it shall provide the City proof of compliance regarding its ability to self-insure and proof of its ability to provide coverage in the above amounts, but self-insurance shall only be permitted by consent of the Board of Aldermen and the execution of an agreement separate from any agreement created under this Chapter which shall be in full force and effect until such time as the ROW-user's facilities, structures and use are removed or cease from or on the ROW.

No liability insurance will be required of any residential property owner excavating or working in the right-of-way adjacent to his/her residence who does not utilize a contractor to perform the excavation or work and who does not require a temporary traffic control permit. However, said residential property owner shall be required to demonstrate proof of a homeowner's policy with coverage and limits acceptable to the City Engineer.

For purposes of this Section, "history of non-compliance, or permitting non-compliance, within the City," shall mean the ROW-user, or any persons acting on the behalf of the ROW-user, including contractors or subcontractors, has failed to return the public right-of-way to its previous condition under a previous right-of-way permit or temporary traffic control permit.

Section 515.510 Bonding.

[Ord. No. 3149, 11-15-2022]

If an ROW-user has twenty-five million dollars ($25,000,000.00) in net assets and does not have, or is not using a contractor with, a history of non-compliance, or permitting non-compliance, as determined by the City Engineer, within the City, then the ROW- user shall not be required to maintain a performance or maintenance bond. The burden of requesting and proving any exemption from bonding requirements under this Chapter shall be on the ROW-user to the satisfaction of the City, and upon request from time to time by the City Engineer the ROW-user shall establish a continued right to exemption from a bonding requirement whether the exemption exists under local, State or Federal law.

The ROW-user shall provide all information to the City necessary to determine the amount of net assets of the ROW-user.

If it is determined pursuant to Subsection (A) of this Section that an ROW-user does not have twenty-five million dollars ($25,000,000.00) in net assets or does have a history of non-compliance, or permitting non-compliance, or is using a contractor or third party with a history of non-compliance, then the ROW-user shall:

Maintain a performance bond in a form approved by the City Attorney. The amount of the bond unless prohibited by valid, constitutional law, will be five thousand dollars ($5,000.00) or the value of the restoration, whichever is greater, as determined by the City Engineer, for a term consistent with the term of the applicable right-of-way permit or temporary traffic control permit, conditioned upon the ROW-user's faithful performance of the provisions, terms and conditions conferred by this Chapter.

Maintain a maintenance bond in a form approved by the City Attorney. The amount of the bond, unless prohibited by valid, constitutional law, will be five thousand dollars ($5,000.00) or the value of the restoration, whichever is greater, as determined by the City Engineer, for a term consistent with the term of the applicable right-of-way permit or temporary traffic control permit plus four (4) additional years, conditioned upon the ROW-user's faithful performance of the provisions, terms and conditions conferred by this Chapter.

For facilities that extend above and below the ground and are permanent in nature and would require demolition similar in nature to a building or monopole tower to remove, the ROW-user shall provide to the City a bond in the amount of the then cost to remove or demolish such a facility or the right through a recordable document to execute on a piece of real estate in a fashion similar to the manner in which the City may place a lien on property when a structure is removed by the City.

For facilities that are attached, collocated, placed, or installed on City property or in the ROW, ROW user shall maintain a payment bond in a form approved by the City Attorney in favor of City up to an amount permitted by valid, constitution law to recoup unpaid rates or fees by ROW-user. Said bond shall be acknowledged by ROW-user, as principal, and shall be issued by a surety with an AM Best rating of A- or better for the last four (4) quarters.

In the event the City shall exercise its right to revoke the right-of-way permit or the temporary traffic control permit as permitted herein, then the City shall be entitled to recover under the terms of said bonds or against any real estate under Subsection (B)(3) of this Section the full amount of any loss occasioned. A copy of the maintenance and performance bonds or recorded instrument must be on file with the City Clerk. No maintenance or performance bond will be required of any residential property owner excavating or working in the right-of-way adjacent to his/her residence, who does not utilize a contractor to perform the excavation or work and who does not require a temporary traffic control permit. Because such work is done by a private property owner against whose property the City may place a lien under the law, no recorded instrument giving the City additional rights to place a lien and foreclose on such lien shall be required.

All bonds required in this Section shall be acknowledged by ROW-user, as principal, and shall be issued by a surety with an AM Best rating of A- or better for the twelve (12) months immediately preceding the bond issuance date.

Section 515.520 Indemnification.

[Ord. No. 3149, 11-15-2022]

Any person operating under the provisions of this Chapter or performing any temporary traffic control, excavation, or work in the right-of-way shall fully indemnify, release, defend and hold harmless the City and agents of the City when acting in their capacity as municipal officials, employees, elected officials, attorneys, and agents, for, from and against any and all claims, demands, suits, fines, losses, injuries, proceedings, and actions, liability and judgment by other persons for damages, losses, costs, and expenses, including attorney fees, to the extent caused by or arising out of the acts, errors, directives, or omissions of the person, or its agents, contractors, or subcontractors, in the performance of the permitted temporary traffic control, excavation, or work. Nothing in this Chapter shall be construed to waive the City's sovereign or any other immunity or defense available to it, its officers, employees and agents.

Nothing herein shall be deemed to prevent the City, or any agent, from participating in the defense of any litigation by its own counsel at their own expense. Such participation shall not under any circumstances relieve the person from its duty to defend against liability or its duty to pay any judgment entered against the City, or its agents.

All ROW-users shall be responsible for promptly correcting acts or omissions by any contractor or subcontractor performing permitted temporary traffic control, excavation or work for such ROW-user hereunder. Failure to do so within the time set by the City Engineer shall be cause to revoke any ROW permit and to eject the ROW-user from the City's rights-of-way by any means available including seeking a declaratory judgment action, injunction or in the event of emergency self-help.

Notwithstanding anything to the contrary in this division, in accordance with Section 67.5121(2), RSMo., an ROW-user's indemnification obligations set forth in this Article, but only with respect to the ROW-user's operation of a "small wireless facility," as defined in the Uniform Small Wireless Facility Deployment Act, within the ROW, shall only be required to indemnify and hold the City, its officers and employees, harmless against any damage or personal injury caused by the negligence of the ROW-user, its employees, agents, or contractors. This exception shall only apply to the ROW-user's "small wireless facilities" and shall not otherwise alter the obligations of a ROW-user to indemnify the City for all of ROW-user's other activities or operations.

Section 515.530 Indemnification For Contractual Or Economic Loss Damages.

[Ord. No. 3149, 11-15-2022]

Any person operating under the provisions of this Chapter or performing any temporary traffic control, excavation or work in the right-of-way shall fully indemnify, release, defend and hold harmless the City and agents of the City when acting in their capacity as municipal officials, employees, elected officials, attorneys, contractors, and agents, from and against any and all claims, demands, suits, proceedings, and actions, liability and judgment by other persons for contractual or economic losses, damages, losses, costs, and expenses, including attorney fees, to the extent caused by failure of an ROW-user, or its agents, contractors, or subcontractors, to relocate or adjust its facilities pursuant to the provisions of this Chapter.

Section 515.540 Indemnification For Damage To Facilities.

[Ord. No. 3149, 11-15-2022]

Any person operating under the provisions of this Chapter or performing any excavation or work in the right-of-way shall be liable for any damages to facilities due to excavation or work performed by the person, including damage to underground facilities that have been properly identified prior to commencement of excavation or work.

Any person operating under the provisions of this Chapter or performing any excavation or work in the right-of-way shall fully indemnify, release, defend and hold harmless the City and agents of the City when acting in their capacity as municipal officials, employees, elected officials, attorneys, contractors, and agents, from and against any and all claims, demands, suits, proceedings, and actions, liability and judgment by other persons for damages, losses, costs, and expenses, including attorney fees, associated with damage to the facilities of other ROW-users by a person, or its agents, contractors, or subcontractors.

Section 515.550 Other Agreements — Satisfaction Of This Chapter.

[Ord. No. 3149, 11-15-2022]

Any ROW-user may satisfy the insurance, bonding, and indemnification provisions of this Chapter through a valid franchise agreement with the City, provided such insurance, bonding and indemnification equals or exceeds those required under this Chapter. Any requirements thus satisfied shall be indicated on the ROW-user's registration and shall not be required for each right-of-way permit and temporary traffic control permit.

This Section shall not apply to an applicant acting on behalf of an ROW-user, unless the applicant is listed as an additional insured on the ROW-user's insurance policy and is covered by the surety. The applicant must submit evidence of the satisfaction of these requirements prior to issuance of a right-of-way permit or a temporary traffic control permit.