HomeMy WebLinkAboutOrdinance 5505 ORDINANCE NO. 5505
AN ORDINANCE TO ENACT §39.11 DAMAGE CLAIMS OTHER THAN
WATER AND WASTEWATER DAMAGE CLAIMS INTO THE
FAYETTEVILLE CODE
WHEREAS, occasionally an uninsured city vehicle or piece of equipment causes
property damage to a citizen's structure or vehicle such that it would be appropriate to pay to
repair such structure or vehicle even though Fayetteville's sovereign immunity protects us from
liability for such damages even if caused by our negligence; and
WHEREAS, it is proper to enact a policy explaining the procedure and limitations of
such compensation.
NOW, THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE
CITY OF FAYETTEVILLE,ARKANSAS:
Section l: That the City Council of the City of Fayetteville, Arkansas hereby enacts
§39.11 Damage Claims Other Than 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 5th day of June, 2012.
APPROVED: ATTEST:
YBY f 2�-- By:
L N D J%APKN, Mayor SONDRA E. SMITH, City Clerk/T%� aeP,„®
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:FAYETTEVILLE: 2
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EXHIBIT A
ARTICLE II
Damage Claims
§39.11 Damage Claims other than 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 (other than Water and Wastewater)
proximately caused by uninsured city vehicles, equipment, infrastructure, or
personnel activities. Claims relating to City vehicles which are insured shall be
handled by the City's insurance adjustor (currently the Municipal League) except
that very small property damage claims may be voluntarily paid by the City if a full
release is obtained.
(B) Requirements for Property Damage Claims To Be Eligible for Compensation.
(1) The cause of the damage must be directly attributed to a malfunction of such
uninsured vehicle or equipment, neglect or misuse of such equipment by City
personnel, dangerous disrepair of City infrastructure, or other similar situation.
(2) Any problem with the City's infrastructure that causes damage must not have
been caused by factors beyond the City's control such as floods, tornados, ice
storms or other acts of God,nor by acts of third parties, nor by the failure of a
claimant to act in a reasonably prudent manner.
(3) A claim form must be completed in writing and submitted to the Mayor's
Office within thirty (30) days of damage occurrence. Claim forms may be
supplemented later with additional information, bills, etc. as allowed by
the Chief of Staff 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 repair of the damage or, in the event that the cost of 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 repair
or replacement of property.
(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 Chief of Staff 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 unless in an extraordinary case the Mayor recommends and the
City Council by two-thirds majority approves an exemption from this
$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.
(1) The City acting through its Chief of Staff 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. Only the Mayor may request City Council consideration for
an amount in excess of$8,000.00. This section provides no right to
compensation for any claimant, nor any right to appeal to the Mayor or City
Council.
(2) The City does not waive its sovereign immunity by considering whether or
not to voluntarily pay any portion of a damage claim submitted for review
under this section. The decision of the City is final and unappealable to any
court.
(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 §39.11 Damage Claims Other Than Water And
Wastewater Damage Claims Into The Fayetteville Code
APPROVED FOR AGENDA:
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City Attorney Dat
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Chief o Staff Date
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Tae Ueve Departmental Correspondence
LEGAL
• • DEPARTMENT
Kit Williams
TO: Mayor Jordan CityAttorney
Cl Council Jason B.Kelley
Assistant City Attorney
CC: Don Marr, Chief of Staff
David Jurgens, Utilities Director
Paul Becker, Finance Director
FROM: Kit Williams, City Attorney
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 §39.11 DAMAGE CLAIMS OTHER THAN
WATER AND WASTEWATER DAMAGE CLAIMS INTO THE
FAYETTEVILLE CODE
WHEREAS, occasionally an uninsured city vehicle or piece of equipment causes
property damage to a citizen's structure or vehicle such that it would be appropriate to pay to
repair such structure or vehicle even though Fayetteville's sovereign immunity protects us from
liability for such damages even if caused by our negligence; and
WHEREAS, it is proper to enact a policy explaining the procedure and limitations of
such compensation.
NOW, THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE
CITY OF FAYETTEVILLE,ARKANSAS:
Section l: That the City Council of the City of Fayetteville, Arkansas hereby enacts
§39.11 Damage Claims Other Than 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 5th day of June, 2012.
APPROVED: ATTEST:
By: By:
LIONELD JORDAN, Mayor SONDRA E. SMITH, City Clerk/Treasurer
EXHIBIT A
ARTICLE II
Damage Claims
§39.11 Damage Claims other than 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 (other than Water and Wastewater)
proximately caused by uninsured city vehicles, equipment, infrastructure, or
personnel activities. Claims relating to City vehicles which are insured shall be
handled by the City's insurance adjustor(currently the Municipal League) except
that very small property damage claims may be voluntarily paid by the City if a full
release is obtained.
(B) Requirements for Property Damage Claims To Be Eligible for Compensation.
(1) The cause of the damage must be directly attributed to a malfunction of such
uninsured vehicle or equipment, neglect or misuse of such equipment by City
personnel, dangerous disrepair of City infrastructure, or other similar situation.
(2) Any problem with the City's infrastructure that causes damage must not have
been caused by factors beyond the City's control such as floods,tornados, ice
storms or other acts of God, nor by acts of third parties, nor by the failure of a
claimant to act in a reasonably prudent manner.
(3) A claim form must be completed in writing and submitted to the Mayor's
Office within thirty (30) days of damage occurrence. Claim forms may be
supplemented later with additional information, bills, etc. as allowed by
the Chief of Staff 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 repair of the damage or, in the event that the cost of 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 repair
or replacement of property.
(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 Chief of Staff 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 unless in an extraordinary case the Mayor recommends and the
City Council by two-thirds majority approves an exemption from this
$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.
(1) The City acting through its Chief of Staff 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. Only the Mayor may request City Council consideration for
an amount in excess of$8,000.00. This section provides no right to
compensation for any claimant, nor any right to appeal to the Mayor or City
Council.
(2) The City does not waive its sovereign immunity by considering whether or
not to voluntarily pay any portion of a damage claim submitted for review
under this section. The decision of the City is final and unappealable to any
court.
(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 . MICROFILMED
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 SEWAGE SYSTEM BACK-UP.
BE AT RESOLVED BX.. ,. BOARD OF DICTORS 'OF THE CITY OF
FAYET'i'EVILLE, ARKANSAS:
Section 1. That>.':Sect-1,15d-n` 1. . .sof Reaolut bn No. 48-78 is
hereby amended by amending-,: tMe first_ ,'s:ubparagr—ph.. to read as
follows:
The. City will pay a maximum ' of $2,500 per incident, per.
=dwei'ring uni=t; -`(rr•: > per . bi ' ui°css_,"; int:) exc:Iudng..o'ccupant
labor, for the documented cost of -
cleaning
f cleaning a building structure or building contents damaged by
a : tg sewage :aystemsack'tiula provided, .
(a.) The :bloc.k4lre» a -red `in a City s.ewa}ge system. main. and
ri
not iA private fire boa necting a� tructure to the ;City
sewage main;
(b) The , sewage beck-up �+;ras :ccausedori isolated 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 .wi11. pay paid receipts only or will make
payments jointly to. the owner and vendor;
(e) The City will not pay for a property owner's lab ':arid
will not pay based on estimates.; .and Cyt s
(f) The City reserves the rht•.rto_.,u'se., an.:.,indep.�'ndent..clairFi '
adjuster to settle. a. claim made under this,"'pol cy 'which
is over $1,000, or if unusual circumstances, as deter
mined by the City, exist or if a disagreement with the
property owner arises.
PASSED AND APPROVED this 6th day of October
1987.
TES.'
APPROVED
fy
BY:
1�4 CIA
< Y
�. Mayor
'�
nun
y Clerk
i"
a
RESOLUTION N0.
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.
x ry WHEREAS, under existing law, the City is not legally liable
h ' for such damage, but the Board o£ Directors has determined
that under certain conditions, the City should compensate the
r property owner for such damage.
NOW,TjMREFaR% BE IT RESOLVED BY THE BOARD OF DIRECTORS
OF THE.CITY OF FAYETTEVILLE,. ARKANSAS:
• Section 1. That the Board of Directors hereby establishes
.::
?;4h•::.,,.: the following 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 $1,000 per incident, per
dwelling unit (or per business unit), excluding occupant
labor; for:the documented costs of repairing, replacing,
'. or cleaning .a building structure or building .contents damaged !'
z,Y by a City sewage system back-up; provided.,
(a) The blockage occurred ina City sewage system main and
not.in a private line a structure to the City's
sewage main; and ;
(b) The sewage back-up was caused by an isolated line blockage
and not by excessive infiltratioh of surface water
or by general flooding conditions.
Section 2'. Any claim for payment of compensation under
Section l of this resolution.shall be presented in writing to the
Dity Engineer within ninety QO) .days 6f the.incident giving
rise to the claim. The complaint shall be signed by the claimant
and shall state concisely the facts .upon_which the claim is based
and shall set forth'the.address of..the claimant, the time, date and
place of the incident-giving rise to
.the claim, and the amount claimed.
The'claimaint shall furnish the City Engineer with (a) a.description.
of the property damaged and a .d.escription of the damage done, and (b)
F; itemized statements or bills from'those, performing repair or cleaning
a: service or furnishing repair or cleaning materials and supplies with
notations as to whether or not the same have been paid, and, if paid,
t`>� the date of payment.
41
s xtti$..yS 1
-2=
Section 3., The City Engineer or his duly authorized
representative, shall investigate each claim. Within thirty
(30) day's 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 ofappeal with the City.Clerk within ten (10) days from
the date of the City Engineer's decision.
`h PASSED AND APPROVED this / `day of
F ash _ C-�1��i6.t1 1978. .
APPROVED:
MAYOR
ATTEST:. 3if "tia.
PITY CLERK '
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