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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,„® 0� :FAYETTEVILLE: 2 ° e � ® 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: �A tar z City Attorney Dat 10 -L, PA- 2 Uti es D' ector Date Fi ance Director bate ,S /7 Chief o Staff Date 05-17-1 2 A09 59 RCVD 01 `5Z, yor ate 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 ' �...... a ; .ver.�:•° '�#t J� In- 6 S