Each permit, except one obtained by a municipal excavator, shall incorporate by reference and require the owner and its agent, if any, to comply with the liability, indemnity, insurance, and taxable possessory interest provisions set forth below in this Section; provided, however, that the Director, with the concurrence of the City Controller and City Risk Manager, may modify the indemnity and insurance provisions as they pertain to a particular permit.
(a) Liability Upon Owner and Agent. Each owner and its agent is wholly responsible for the quality of the excavation performed in the public right-of-way and both the owner and agent are jointly and severally liable for all consequences of any condition of such excavation and any facilities installed in the public right-of-way. The issuance of any permit, inspection, repair, or suggestion, approval, or acquiescence of any person affiliated with the Department shall not excuse any owner or agent from such responsibility or liability.
(b) Indemnification, Defense, and Hold Harmless.
(i) Each owner and agent shall agree on its behalf and that of any successor or assign to indemnify, defend, protect, and hold harmless the City, including, without limitation, each of its commissions, departments, officers, agents, and employees (hereinafter in this subsection collectively referred to as "San Francisco") from and against any and all actions, claims, costs, damages, demands, expenses, fines, injuries, judgments, liabilities, losses, penalties, or suits including, without limitation, attorneys' fees and costs (collectively, "claims") of any kind allegedly arising directly or indirectly from:
(1) Any act by, omission by, or negligence of, owner or its agent, contractors, subcontractors, or the officers, agents, or employees such entities, while engaged in the performance of the excavation authorized by the permit, or while in or about the property subject to the permit for any reason connected in any way whatsoever with the performance of the excavation authorized by the permit, or allegedly resulting directly or indirectly from the maintenance or installation of any equipment, facility(ies), or structures authorized under the permit;
(2) Any accident, damage, death, or injury to any contractor or subcontractor, or any officer, agent or employee of either of them, while engaged in the performance of the excavation authorized by the permit, or while in or about the property for any reason connected with the performance of the excavation authorized by the permit, or arising from liens or claims for services rendered or labor or materials furnished in or for the performance of the excavation authorized by the permit;
(3) Any accident, damage, death, or injury to any person(s) or accident, damage, or injury to any real or personal property in, upon, or in any way allegedly connected with the excavation authorized by the permit from any cause or claims arising at any time; and,
(4) Any release or discharge, or threatened release or discharge, of any hazardous material caused or allowed by permittee about, in, on, or under the excavation site subject to the permit or the environment. As used herein, "hazardous material" means any gas, material, substance, or waste which, because of its quantity, concentration, or physical or chemical characteristics, is deemed by any federal, state, or local governmental authority to pose a present or potential hazard to human health or safety or to the environment. "Release" when used with respect to hazardous materials shall include any actual or imminent disposing, dumping, emitting, emptying, escaping, injecting, leaching, leaking, pumping, pouring, or spilling.
(ii) Upon the request of San Francisco, the owner or its agent, at no cost or expense to San Francisco, must indemnify, defend, and hold harmless San Francisco against any claims, regardless of the alleged negligence of San Francisco or any other party, except only for claims resulting directly from the sole negligence or wilful misconduct of San Francisco. Each owner and its agent specifically acknowledges and agrees that it has an immediate and independent obligation to defend San Francisco from any claims which actually or potentially fall within the indemnity provision, even if the allegations are or may be groundless, false, or fraudulent, which obligation arises at the time such claim is tendered to owner or its agent by San Francisco and continues at all times thereafter. In addition, San Francisco shall have a cause of action for indemnity against each owner and its agent for any costs San Francisco may be required to pay as a result of defending or satisfying any claims that arise from or in connection with the permit, except only for claims resulting directly from the sole negligence or wilful misconduct of San Francisco. Owner and its agent agree that the indemnification obligations assumed under the permit shall survive expiration of the permit or completion of excavation.
(c) Insurance.
(i) Each owner or its agent shall maintain in full force and effect, throughout the term of the permit, an insurance policy or policies issued by an insurance company or companies satisfactory to the City's Controller and Risk Manager. Policy or policies shall afford insurance covering all operations, vehicles, and employees, as follows:
(1) Workers' Compensation with employers' liability limits not less than $1,000,000 each accident;
(2) Commercial general liability insurance with limits not less than $1,000,000 each occurrence combined single limit for bodily injury and property damage, including contractual liability; personal injury; explosion, collapse, and underground (xcu); products; and completed operations;
(3) Business automobile liability insurance with limits not less than $1,000,000 each occurrence combined single limit for bodily injury and property damage, including owned, nonowned, and hired auto coverage, as applicable;
(4) Contractors' pollution liability insurance, on an occurrence form, with limits not less than $1,000,000 each occurrence combined single limit for bodily injury and property damage and any deductible not to exceed $25,000 each occurrence.
(ii) Said policy or policies shall include the City and its officers and employees jointly and severally as additional insureds, shall apply as primary insurance, shall stipulate that no other insurance effected by the City will be called on to contribute to a loss covered thereunder, and shall provide for severability of interests. Said policy or policies shall provide that an act or omission of one insured, which would void or otherwise reduce coverage, shall not reduce or void the coverage as to any other insured. Said policy or policies shall afford full coverage for any claims based on acts, omissions, injury, or damage which occurred or arose, or the onset of which occurred or arose, in whole or in part, during the policy period. Said policy or policies shall be endorsed to provide 30 calendar days advance written notice of cancellation or any material change to the Department.
(iii) Should any of the required insurance be provided under a claims-made form, the insured owner or its agent shall maintain such coverage continuously throughout the term of the permit, and, without lapse, for a period of three years beyond the expiration or termination of the permit, to the effect that, should occurrences during the term of the permit give rise to claims made after expiration or termination of the permit, such claims shall be covered by such claims-made policies.
(iv) Should any of the required insurance be provided under a form of coverage that includes a general annual aggregate limit or provides that claims investigation or legal defense costs be included in such general annual aggregate limit, such general aggregate limit shall be double the occurrence or claims limits specified above in Subsection (c)(i).
(v) Such insurance shall in no way relieve or decrease owner's and its agent's obligation to indemnify the City under Subsection (b) or any other provision of this Article.
(vi) Certificates of insurance, in the form satisfactory to the Department, evidencing all coverages above, shall be furnished to or maintained on file with the Department before issuance of a permit, with complete copies of policies furnished promptly upon the Department's request.
(vii) Where an owner is self-insured, and such insurance is no less broad and affords no less protection to the City than the requirements specified above in Subsection (c), the Department, in consultation with the City's Controller and Risk Manager, may accept such insurance as satisfying the requirements of Subsection (c). Evidence of such insurance shall be provided in the manner specified in Subsection (c)(vi).
(d) Taxable Possessory Interest. Each owner shall acknowledge on its behalf and that of any successor or assign that its permit incorporates the following statements: The owner of the facility(ies) for which the permit to excavate was obtained recognizes and understands that the permit may create a possessory interest subject to property taxation and that owner may be subject to the payment of property taxes levied on such interest under applicable law. Owner agrees to pay taxes of any kind, including possessory interest taxes, if any, that may be lawfully assessed on owner's interest under the permit to excavate or for use of the public right-of-way and to pay other excises, licenses, taxes, or permit charges or assessments based on owner's usage of the public right-of-way that may be imposed on owner by applicable law. Owner shall pay all of such charges when they become due and before delinquency.
(Added by Ord. 341-98, App. 11/13/98; amended by Ord. 33-02, File No. 020051, App. 3/28/2002)