HomeMy WebLinkAboutOrdinance 5504 ORDINANCE NO. 5504
AN ORDINANCE TO ENACT §39.10 WATER AND WASTEWATER
DAMAGE CLAIMS INTO THE FAYETTEVILLE CODE
WHEREAS, occasionally a city sewer main gets blocked causing sewage to back up into
a residence or a city water main breaks and causes some damage to nearby property; and
WHEREAS, sovereign immunity protects the City from liability from such damages :
even if our employees might have somehow acted negligently (which is usually not the case);
and
WHEREAS, the City has long offered some limited compensation for property damage
and clean-up costs to affected persons on a case by case basis; and
WHEREAS, the procedure for how to handle such claims, with limits on the type of
compensation and amount of compensation clearly expressed should be enacted into the
Fayetteville Code to ensure consistent and fair treatment of such situations.
NOW, THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE
CITY OF FAYETTEVILLE,ARKANSAS:
Section 1: That the City Council of the City of Fayetteville, Arkansas hereby enacts
§39.10 Water and Wastewater Damage Claims into the Fayetteville Code as shown on
Exhibit A.
Section 2: That the City Council of the City of Fayetteville, Arkansas hereby repeals any
and all previous Resolutions and Ordinances concerning such damage claims.
PASSED and APPROVED this 5t' day of June, 2012.
APPROVED: ATTEST:
®a�tactorrrrat
;°G�TY
Q/` a •� r
By: By: �
FAYETTEVILLE
YNL��DJ(��b , Mayor SONDRA E. SMITH, City Clerk/TrC70 C 'x k
EXHIBIT A
ARTICLE II
Damage Claims
§39.10 Water and Wastewater Damage Claims.
(A) Establishment of Property Damage Claim Compensation Policy.
Without waiving its statutory sovereign immunity, the City establishes the
following voluntary policy governing the permissible payment of reasonable
compensation for property damage claims proximately caused by a failure of
the municipally owned water or wastewater infrastructure system that results
in a trespass into and damage to private property.
(B) Requirements for Property Damage Claims To Be Eligible for Compensation.
(1) The cause of the damage must be directly attributed to a failure of municipal
infrastructure owned and operated by the Fayetteville Water and Wastewater
utility, and cannot be associated with or caused by a private sewer or
water connection or service line.
(2) The failure must not be caused by factors beyond the City's control such as:
loss of electrical service; flooding of its infrastructure; acts of third parties;
failure of claimants to properly maintain protective devices (back flow valves,
check valves, clean out caps, etc.); acts of God; and other circumstances beyond
the City's control.
(3) A claim form must be completed in writing and submitted to the Mayor's
Office within thirty(30) days of property damage occurrence. Claim forms
may be supplemented later with additional information, bills, etc. as allowed by
the Utilities Director of the City of Fayetteville. Failure to submit the initial
claim form within thirty (30) days of the incident terminates the claimant's
opportunity to request compensation.
(C) Limitation of any compensation that might be paid.
(1) Because the City of Fayetteville is protected by sovereign immunity,the city
shall pay no compensation for any alleged damage associated with or related
to any alleged personal injury (except a medical insurance deductible or co-
payment)or any other damage except for property damage.
(2) Compensation which may be paid for damage to property shall be limited to
the cost of cleaning or repair of the damage or, in the event that the cost of
cleaning or repair exceeds the fair market value of the subject property, less
salvage value, compensation shall be limited to the fair market value of the
damaged property less any salvage value. No compensation shall be paid for
inconvenience, loss of use, loss of profits or rents, consequential damages, or
anything other than cleaning, repair or replacement of property, and, in
extreme cases, dislocation expenses not to exceed three days.
(3) No payment by the City may accrue to the benefit, directly or indirectly, of an
insurance carrier,nor for any damage if such is covered by any insurance
policy. If the insurance company waives any subrogation right, the City may
pay an amount equal to the deductible already paid by the claimant for a
property damage claim. Claimants shall be required to provide documents
satisfactory to the City establishing their insurance coverage or lack thereof
for any claim.
(4) The Utilities Department Director may not authorize any payment greater
than $8,000.00 for any claim pursuant to this section. The Mayor may
request the City Council to authorize an amount greater than$8,000.00 by
Resolution,but in no case shall the City pay more than$20,000.00 pursuant to
this claims procedure for a damage claim related to a water or wastewater
utility infrastructure occurrence unless in an extraordinary case the Mayor
recommends and the City Council by two-thirds majority approves an
exemption from the $20,000.00 damage cap and approves a payment up to
$40,000.00.
(5) This subsection does not pertain to nor affect in any manner the motor vehicle
liability insurance requirements of A.C.A. §21-9-303 nor the claims procedure
and limitations to comply with that state law.
(D) Discretion of the City.
The City acting through its Utilities Department Director has complete and sole
discretion whether or not to pay any compensation pursuant to this section if the
claimant has properly and timely submitted the claim form and all necessary
documentation. This section provides no right to compensation for any claimant,
nor any right to appeal to the Mayor or City Council.
(E) Release required if compensation paid.
If the City offers to pay any compensation pursuant to this section,the claimant
must sign a full release to receive the compensation offered by the city.
AGENDA REQUEST
FOR: COUNCIL MEETING OF JUNE 5, 2012
FROM:
KIT WILLIAMS, CITY ATTORNEY
ORDINANCE OR RESOLUTION TITLE AND SUBJECT:
An Ordinance To Enact §39.10 Water And Wastewater Damage Claims Into The
Fayetteville Code
APPROVED FO GENDA:
A4,
City Attorney Date
J)t4
"2_._
Utili ' s Director Date
Finance Director Date
EN ED
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Chief of aff ate
05-17-12A09 :59 RUID
kit",
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"Fay e e i le Departmental Correspondence
ARKANSAS
LEGAL
www.accessfayetteville.org DEPARTMENT
Kit Williams
TO: Mayor Jordan City Attorney
Ci Council Jason B.Kelley
`J Assistant City Attorney
CC: Don Marr, Chief of Staff
David Jurgens, Utilities Director
Paul Becker, Finance Director
FROM: Kit Williams, City Attorney L
DATE: May 16, 2012
RE: Codifying Damage Claim Procedure
HISTORY
The City of Fayetteville has historically investigated damage claims by its
customers for sewer main back-ups and other problems associated and caused by
city infrastructure. Some damages to property caused by blocked sewer mains
(not private sewer service pipes) have normally been compensated. See Resolution
No. 48-78 of August 1, 1978 and Resolution No. 76-87 of October 6, 1987.
(attached)
UPDATING NEEDED
These 25 year old and older policies need updating and clarification. The
current $2,500.00 limit of Resolution No. 76-87 may have been appropriate in
1987, but is far from adequate now to pay legitimate damage claims experienced
by our citizens for sewer main back-ups in recent years. The Utilities Department
looked at historical data and determined that an $8,000.00 level was appropriate
now. In an extreme or unusual situation, the Mayor can request the City Council to
approve an even higher figure (up to $20,000.00). I do not believe we should
allow a claimant or department director to appeal to the City Council, but instead
reserve this power solely for the Mayor.
INPUT FROM CITY DEPARTMENTS
I want to thank the administration and all division and department heads for
their work and input on the updating and codification of the City's policies
concerning when a damage claim against the City should be paid and for what type
of damage should the City consider paying. I especially want to thank Utilities
Director David Jurgens who has the longest and largest history considering
whether or not to pay personal property claims for sewer main blockage back-ups
and some water main break flooding issues.
I believe the City needs to codify these damage claim policies and repeal
earlier resolutions passed by the Fayetteville Board of Directors. The proposed
policies will be codified into Chapter 39 City Policies of the Code of Fayetteville
which now has only a single section dealing with filing a municipal improvement
district.
Please read these policies which do not make significant changes from what
has been our normal procedure for decades. However, I would like this procedure
to be clarified and codified to ensure that all citizens with similar claims will be
treated equally and fairly.
SOVEREIGN IMMUNITY
Please keep in mind that the City's statutory sovereign immunity protects us
from liability and even from being sued in most circumstances in which someone
is injured or whose property is damaged as a result of our employee's negligence
or mistake. Therefore, our damage claim policy should be very restrictive so as
not to waste our taxpayers' money. Thus, we will continue not to pay for pain and
suffering or for anything that would be paid an insurance company. We can pay a
deductible amount of an insurance policy if the City is assured the payment will
not be diverted to an insurance company. Our policy still does not cover our motor
vehicles insured through the Municipal League which handles claims for such car
or truck accidents.
I believe enacting these new damage claim policies will protect the City and
its taxpayers from potential litigation and ensure our damage claim procedure is
the most efficient, equal, fair and transparent possible.
2
ORDINANCE NO.
AN ORDINANCE TO ENACT §39.10 WATER AND WASTEWATER
DAMAGE CLAIMS INTO THE FAYETTEVILLE CODE
WHEREAS, occasionally a city sewer main gets blocked causing sewage to back up into
a residence or a city water main breaks and causes some damage to nearby property; and
WHEREAS, sovereign immunity protects the City from liability from such damages
even if our employees might have somehow acted negligently (which is usually not the case);
and
WHEREAS, the City has long offered some limited compensation for property damage
and clean-up costs to affected persons on a case by case basis; and
WHEREAS, the procedure for how to handle such claims, with limits on the type of
compensation and amount of compensation clearly expressed should be enacted into the
Fayetteville Code to ensure consistent and fair treatment of such situations.
NOW, THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE
CITY OF FAYETTEVILLE,ARKANSAS:
Section 1: That the City Council of the City of Fayetteville, Arkansas hereby enacts
§39.10 Water and Wastewater Damage Claims into the Fayetteville Code as shown on
Exhibit A.
Section 2: That the City Council of the City of Fayetteville, Arkansas hereby repeals any
and all previous Resolutions and Ordinances concerning such damage claims.
PASSED and APPROVED this 5t' day of June, 2012.
APPROVED: ATTEST:
By: By:
LIONELD JORDAN, Mayor SONDRA E. SMITH, City Clerk/Treasurer
EXHIBIT A
ARTICLE II
Damage Claims
§39.10 Water and Wastewater Damage Claims.
(A) Establishment of Property Damage Claim Compensation Policy.
Without waiving its statutory sovereign immunity,the City establishes the
following voluntary policy governing the permissible payment of reasonable
compensation for property damage claims proximately caused by a failure of
the municipally owned water or wastewater infrastructure system that results
in a trespass into and damage to private property.
(B) Requirements for Property Damage Claims To Be Eligible for Compensation.
(1) The cause of the damage must be directly attributed to a failure of municipal
infrastructure owned and operated by the Fayetteville Water and Wastewater
utility, and cannot be associated with or caused by a private sewer or
water connection or service line.
(2) The failure must not be caused by factors beyond the City's control such as:
loss of electrical service; flooding of its infrastructure; acts of third parties;
failure of claimants to properly maintain protective devices (back flow valves,
check valves, clean out caps, etc.); acts of God; and other circumstances beyond
the City's control.
(3) A claim form must be completed in writing and submitted to the Mayor's
Office within thirty (30) days of property damage occurrence. Claim forms
may be supplemented later with additional information, bills, etc. as allowed by
the Utilities Director of the City of Fayetteville. Failure to submit the initial
claim form within thirty (30) days of the incident terminates the claimant's
opportunity to request compensation.
(C) Limitation of any compensation that might be paid.
(1) Because the City of Fayetteville is protected by sovereign immunity, the city
shall pay no compensation for any alleged damage associated with or related
to any alleged personal injury (except a medical insurance deductible or co-
payment) or any other damage except for property damage.
(2) Compensation which may be paid for damage to property shall be limited to
the cost of cleaning or repair of the damage or, in the event that the cost of
cleaning or repair exceeds the fair market value of the subject property, less
salvage value, compensation shall be limited to the fair market value of the
damaged property less any salvage value. No compensation shall be paid for
inconvenience, loss of use, loss of profits or rents, consequential damages, or
anything other than cleaning, repair or replacement of property, and, in
extreme cases, dislocation expenses not to exceed three days.
(3) No payment by the City may accrue to the benefit, directly or indirectly, of an
insurance carrier, nor for any damage if such is covered by any insurance
policy. If the insurance company waives any subrogation right,the City may
pay an amount equal to the deductible already paid by the claimant for a
property damage claim. Claimants shall be required to provide documents
satisfactory to the City establishing their insurance coverage or lack thereof
for any claim.
(4) The Utilities Department Director may not authorize any payment greater
than$8,000.00 for any claim pursuant to this section. The Mayor may
request the City Council to authorize an amount greater than$8,000.00 by
Resolution, but in no case shall the City pay more than$20,000.00 pursuant to
this claims procedure for a damage claim related to a water or wastewater
utility infrastructure occurrence unless in an extraordinary case the Mayor
recommends and the City Council by two-thirds majority approves an
exemption from the $20,000.00 damage cap and approves a payment up to
$40,000.00.
(5) This subsection does not pertain to nor affect in any manner the motor vehicle
liability insurance requirements of A.C.A. §21-9-303 nor the claims procedure
and limitations to comply with that state law.
(D) Discretion of the City.
The City acting through its Utilities Department Director has complete and sole
discretion whether or not to pay any compensation pursuant to this section if the
claimant has properly and timely submitted the claim form and all necessary
documentation. This section provides no right to compensation for any claimant,
nor any right to appeal to the Mayor or City Council.
(E) Release required if compensation paid.
If the City offers to pay any compensation pursuant to this section, the claimant
must sign a full release to receive the compensation offered by the city.
'. RESOLUTION NO. %76-87 . m}CR4n1.lo+wD
A RESOLUTION AMENDING -RESOLUTION NO. 48-78 TO
AMEND THE CITY'S POLICY. REGARDING PAYMENT OF
COMPENSATION BY THE CITY FOR PROPERTY DAMAGE
CAUSED BY A CITY SEWAGE7 SYSTEM BACK-UP.
BE ITT RESOLVED BY'. .. BOARD OP' DT;MCTORS 'OF THE CITY OF
FAYETTEVILLE, ARKANSAS:
Section 1. That . Sect n , 1 . .of .Re's lut on No. 48-78 is
hereby amended by amendi:n:g-,'.: the first'.... ,s:iibparagr:aph.. to read as
follows:
The City will pay a maximum of $2,500 per incident, per
=dwe 'ring: un =t. '-`(ter.- b :n°ess= ". int:) exc:iudng-.occupant
labor, for the documented cost of <:repa: rag, =rept°°aeliig.; .or
cleaning a building structure or building contents damaged 'by
a :C �ty'.'sewage:sys.tem= ao7f�up:: pro .ced :. .
.44): -The blockage::". o�cu red `in a Ci=ty„s.e
. . . . wa _e system.s.tem main �an
'9. y. d
not in..,a I r e b*6nneGt&ng a-:-structure: to the° City .
(b) .The . sewage bac-k-up- was ,- .ccaused Yr an Ds61-- ted line
blockage and not by excessive infiltration of surface
water or by general flooding conditions;
(c) The sewage back-up was not caused by a .pump failure due
to electric outages;
(d) Tie City -wilr pay paid receipts only or will make
payments jointly to. the owner and vendor,-
(e)
endor;(e) The City will not pay for a property owner's labar"-,:grid
will not pay based on estimates.; .and `'
(f) The City reserves tie r `.wd use 'ark;i::nd19pndent .cl _ t
adjuster to .•settle. a claim made under th'is,".ii`olicy which
is over $1,000, or if unusual ' circumstances, as -deter
mined by the City, exist or if a disagreement with. ,:..z
property owner arises.
= t1. PASSED AND APPROVED this 6th day of October 1987.
APPROVED
'C
By:
Mayor
y Clerk
{r* —_3f
RESOLUTION NO. 1,1F-7f
A RESOLUTION ESTABLISHING A POLICY REGARDING THE PAYMENT
OF COMPENSATION BY THE CITY OF FAYETTEVILLE FOR PROPERTY DAMAGE '
CAUSED BY A CITY SEWAGE SYSTEM BACK-UP,
WHEREAS, the City's sewage system on.occasion experiences
an isolated back-up; and
WHEREAS, such a back-up sometimes results in damage to a
building structure or to building contents; and,
f x Eyt� WHEREAS, under existing law,' the City is not legally liable `
V.-S.
for such damage, but the Board o£ Directors has determined ?'
that under certain conditions, the City should compensate the
' property owner for such damage.
NOW, REPORT BE IT RESOLVED BY THE BOARD OF DIRECTORS
OF THE.CITY OF FAYETTEVILLE, ARKANSAS:
Section 1. That the Board'of Directors hereby establishes "
the following•�r'��•<:•'� g policy regarding the payment .of compensation to
a property owner for damages toa building structure or to building
contents caused by a back-up of the City's sewage system:
The City will pay. a maximum of .$1,000'per incident, per
dwelling unit (or per -business unit), excluding occupant
V , .F labor; for; the documented costs of re airin
p g, replacing, 1
or cleaning a building structure or building .contents damaged 1?
by a City sewage system back-up; provided,
(a) The blockage occurred in a City sewage system main and
`
pot .in. a private line connecting a structure to the City's
sewage main; and
(b) The sewage' back-up was caused by an isolated line blockage
and not by excessive infiltration of surface water
or. by- general flooding conditions.
Section 2', Any claim for payment of compensation under
Section l of this resolution.shall be presented in writing to the
Dity Engineer within ninety '(90) .days '6f the.incident giving
rise to the claim. The complaint shall be signed by the claimant
and shall state concisely the facts .upon.which the claim is based
and shall set forth'the..address of..the claimant, the time, date and
place of 'the -incident giving rise to.the claim, and the amount claimed.
The claimaint shall furnish the City_Engineer with (a) a.description.
of the property.damaged'and a*.d:escription of the damage done, and (b)
itemized statements or bills from'those. performing repair or cleaning
service or furnishing repair or cleaning materials and supplies with notations as to whether or not the same have been paid, and, if paid,
the date of payment.
F�
L.
f
s•
Section 3.. The City Engineer or his duly authorized
representative, shall investigate each. claim. Within thirty
_ - (30) days of receipt of a claim, the City Engineer shall
render a decision on the claim and notify the claimant in writing
of his decision. A claimant may appeal the decision of the
City Engineer to the City Board of Directors by filing written
notice of.appeal with the City.Clerk within ten (10) days from
the date of the City Engineer's decision.
_ t PASSED AND APPROVED this
day of 1111978.
3(�
~� APPROVED:
max: wr::.��:�:�:�_ 2�s•?G90-Gc.�
_:`._t; A• r"' yr"r MAYOR
vs
k"�_ "Zr•�r'� c, ATTEST:.
CITY CLERK
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