A. Insurance Requirements:
1. Coverages And Limits:
a. Unless otherwise provided by franchise, license, or similar agreement, each utility occupying right of way or constructing any facility in the right of way shall secure and maintain the following liability insurance policies insuring the utility as named insured and naming the city and its elected and appointed officers, officials, agents, and employees as additional insureds on the policies listed in subsections A1a(1) and A1a(2) of this section:
(1) Commercial general liability insurance, including premises-operations, explosion, collapse, and underground hazard (commonly referred to as "X", "C", and "U" coverages) and products-completed operations coverage with limits not less than:
(A) Five million dollars ($5,000,000.00) for bodily injury or death to each person;
(B) Five million dollars ($5,000,000.00) for property damage resulting from any one accident; and
(C) Five million dollars ($5,000,000.00) for all other types of liability;
(2) Automobile liability for owned, nonowned and hired vehicles with a combined single limit of one million dollars ($1,000,000.00) for personal injury and property damage for each accident;
(3) Workers' compensation with statutory limits; and
(4) Employer's liability insurance with limits of not less than one million dollars ($1,000,000.00) per employee and per accident.
b. If the utility is not providing such insurance to protect the contractors and subcontractors performing the work, then such contractors and subcontractors shall comply with this subsection.
2. Excess Or Umbrella Policies: The coverages required by this subsection may be in any combination of primary, excess, and umbrella policies. Any excess or umbrella policy must provide excess coverage over underlying insurance on a following form basis such that when any loss covered by the primary policy exceeds the limits under the primary policy, the excess or umbrella policy becomes effective to cover such loss.
3. Copies Required: The utility shall provide copies of any of the policies required by this subsection to the city within ten (10) days following receipt of a written request therefor from the city. (Ord. 2007-O-35, 11-6-2007)
4. Maintenance And Renewal Of Required Coverages:
a. The insurance policies required by this subsection shall contain the following endorsement:
It is hereby understood and agreed that this policy may not be canceled nor the intention not to renew be stated until thirty (30) days after receipt by the City, by registered mail or certified mail, return receipt requested, of a written notice addressed to the City Manager of such intent to cancel or not to renew.
(Ord. 2007-O-35, 11-6-2007; amd. 2009 Code)
b. Within ten (10) days after receipt by the city of said notice, and in no event later than ten (10) days prior to said cancellation, the utility shall obtain and furnish to the city evidence of replacement insurance policies meeting the requirements of this subsection.
5. Self-Insurance: A utility may self-insure all or a portion of the insurance coverage and limit requirements required by subsection A1 of this section. A utility that self-insures is not required, to the extent of such self-insurance, to comply with the requirement for the naming of additional insureds under subsection A1 of this section, or the requirements of subsections A2, A3 and A4 of this section. A utility that elects to self-insure shall provide to the city evidence sufficient to demonstrate its financial ability to self- insure the insurance coverage and limit requirements required under subsection A1 of this section, such as evidence that the utility is a "private self-insurer" under the workers' compensation act 1 .
6. Effect Of Insurance And Self-Insurance On Utility's Liability: The legal liability of the utility to the city and any person for any of the matters that are the subject of the insurance policies or self-insurance required by this subsection shall not be limited by such insurance policies or self-insurance or by the recovery of any amounts thereunder.
7. Insurance Companies: All insurance provided pursuant to this subsection shall be effected under valid and enforceable policies, issued by insurers legally able to conduct business with the licensee in the state of Illinois. (All insurance carriers and surplus line carriers shall be rated "A-" or better and of a class size "X" or higher by A.M. Best Company.)
B. Indemnification: By occupying or constructing facilities in the rights of way, a utility shall be deemed to agree to defend, indemnify and hold the city and its elected and appointed officials and officers, employees, agents and representatives harmless from and against any and all injuries, claims, demands, judgments, damages, losses and expenses, including reasonable attorney fees and costs of suit or defense, arising out of, resulting from, or alleged to arise out of or result from, the negligent, careless or wrongful acts, omissions, failures to act or misconduct of the utility or its affiliates, officers, employees, agents, contractors or subcontractors in the construction of facilities or occupancy of the rights of way, and in providing or offering service over the facilities, whether such acts or omissions are authorized, allowed or prohibited by this chapter or by a franchise, license, or similar agreement; provided, however, that the utility's indemnity obligations hereunder shall not apply to any injuries, claims, demands, judgments, damages, losses or expenses arising out of or resulting from the negligence, misconduct or breach of this chapter by the city, its officials, officers, employees, agents or representatives.
C. Security:
1. Purpose: The permittee shall establish a security fund in a form and in an amount as set forth in this subsection. The security fund shall be continuously maintained in accordance with this subsection at the permittee's sole cost and expense until the completion of the work authorized under the permit. The security fund shall serve as security for:
a. The faithful performance by the permittee of all the requirements of this chapter;
b. Any expenditure, damage, or loss incurred by the city occasioned by the permittee's failure to comply with any codes, rules, regulations, orders, permits and other directives of the city issued pursuant to this chapter; and
c. The payment by the permittee of all liens and all damages, claims, costs, or expenses that the city may pay or incur by reason of any action or nonperformance by the permittee in violation of this chapter including, without limitation, any damage to public property or restoration work the permittee is required by this chapter to perform that the city must perform itself or have completed as a consequence solely of the permittee's failure to perform or complete, and all other payments due the city from the permittee pursuant to this chapter or any other applicable law.
2. Form: The permittee shall provide the security fund to the city in the form, at the permittee's election, of cash, a surety bond in a form acceptable to the city, or an unconditional letter of credit in a form acceptable to the city. Any surety bond or letter of credit provided pursuant to this subsection C2 shall, at a minimum:
a. Provide that it will not be canceled without prior notice to the city and the permittee;
b. Not require the consent of the permittee prior to the collection by the city of any amounts covered thereby; and
c. Shall provide a location convenient to the city and within the state of Illinois at which it can be drawn.
3. Amount: The dollar amount of the security fund shall be sufficient to provide for the reasonably estimated cost to restore the right of way to at least as good a condition as that existing prior to the construction under the permit, as determined by the director of public works, and may also include reasonable, directly related costs that the city estimates are likely to be incurred if the permittee fails to perform such restoration. Where the construction of facilities proposed under the permit will be performed in phases in multiple locations in the city, with each phase consisting of construction of facilities in one location or a related group of locations, and where construction in another phase will not be undertaken prior to substantial completion of restoration in the previous phase or phases, the director of public works may, in the exercise of sound discretion, allow the permittee to post a single amount of security which shall be applicable to each phase of the construction under the permit. The amount of the security fund for phased construction shall be equal to the greatest amount that would have been required under the provisions of this subsection C3 for any single phase.
4. Withdrawals: The city, upon fourteen (14) days' advance written notice, clearly stating the reason for, and its intention to exercise withdrawal rights under this subsection C4, may withdraw an amount from the security fund; provided, that the permittee has not reimbursed the city for such amount within the fourteen (14) day notice period. Withdrawals may be made if the permittee:
a. Fails to make any payment required to be made by the permittee hereunder;
b. Fails to pay any liens relating to the facilities that are due and unpaid;
c. Fails to reimburse the city for any damages, claims, costs or expenses which the city has been compelled to pay or incur by reason of any action or nonperformance by the permittee; or
d. Fails to comply with any provision of this chapter that the city determines can be remedied by an expenditure of an amount in the security fund.
5. Replenishment: Within fourteen (14) days after receipt of written notice from the city that any amount has been withdrawn from the security fund, the permittee shall restore the security fund to the amount specified in subsection C3 of this section.
6. Interest: The permittee may request that any and all interest accrued on the amount in the security fund be returned to the permittee by the city, upon written request for said withdrawal to the city; provided, that any such withdrawal does not reduce the security fund below the minimum balance required in subsection C3 of this section.
7. Closing And Return Of Security Fund: Upon completion of the work authorized under the permit, the permittee shall be entitled to the return of the security fund, or such portion thereof as remains on deposit, within a reasonable time after account is taken for all offsets necessary to compensate the city for failure by the permittee to comply with any provisions of this chapter or other applicable law. In the event of any revocation of the permit, the security fund, and any and all accrued interest therein, shall become the property of the city to the extent necessary to cover any reasonable costs, loss or damage incurred by the city as a result of said revocation; provided, that any amounts in excess of said costs, loss or damage shall be refunded to the permittee.
8. Rights Not Limited: The rights reserved to the city with respect to the security fund are in addition to all other rights of the city, whether reserved by this chapter or otherwise authorized by law, and no action, proceeding or exercise of right with respect to said security fund shall affect any other right the city may have. Notwithstanding the foregoing, the city shall not be entitled to a double monetary recovery with respect to any of its rights which may be infringed or otherwise violated. (Ord. 2007-O-35, 11-6-2007)
Notes
| 1 | 1. 820 ILCS 305/1 et seq. |