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Home My WebLink AboutORDINANCE 5938s FArrrr ti 113 West Mountain Street Fayetteville, AR 72701 (479) 575-8323 Ordinance: 5938 File Number: 2016-0635 AMEND § 39.10 WATER AND WASTEWATER DAMAGE CLAIMS: AN ORDINANCE TO AMEND § 39.10 WATER AND WASTEWATER DAMAGE CLAIMS BY ENACTING A NEW SUBSECTION (4) TO (B) REQUIREMENTS FOR PROPERTY DAMAGE CLAIMS TO BE ELIGIBLE FOR COMPENSATION. WHEREAS, an unusual situation has occurred in which a landowner invested money to protect its property from damage from a suspected leak from a city water line; and WHEREAS, when all usual leak detection methods could not find a leak, but water still infiltrated the property owner's building, City crews excavated the water main and finally located a leak in the service line close enough to the water main to still be considered the City's responsibility; and WHEREAS, after this line was repaired by the City, the water infiltration problem finally was alleviated; and WHEREAS, the property owner should be able to file a claim now and potentially receive compensation not only for the actual property damage, but for at least some of the costs it invested in sump pumps and their installation costs to control the water infiltration into its building. 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 amends § 39.10 Water and Wastewater Damage Claims by enacting a new (B)(4) as shown below: "§ 39.10(B) (4) When a possible water leak claim has been promptly called to the attention of Water and Sewer staff who initially could not detect or determine the cause of such leak which then caused the property owner to invest in sump pumps and/or other reasonable measures to protect its property, compensation for such property damage prevention efforts may be paid pursuant to this article if a compensable water leak is later Page 1 Printed on 12121116 Ordinance: 5938 File Number 2016-0635 discovered or confirmed by city staff." PASSED and APPROVED on 12/20/2016 Attest: Sondra E. Smith, City Clerk Trekq�77Al{ 1 l air k .� � • . I ICJ• �jn FAYET1EV11,LL:-Uz �✓�U ��`�C�� +,fir. i� •r � Page 2 Printed an 12121116 f City of Fayetteville, Arkansas 113 West Mountain Street Fayetteville, AR 72701 (479) 575-8323 Text File File Number: 2016-0635 Agenda Date: 12/20/2016 Version: 1 Status: Passed In Control: City Council Meeting File Type: Ordinance Agenda Number: C. 4 AMEND § 39.10 WATER AND WASTEWATER DAMAGE CLAIMS: AN ORDINANCE TO AMEND § 39.10 WATER AND WASTEWATER DAMAGE CLAIMS BY ENACTING A NEW SUBSECTION (4) TO (B) REQUIREMENTS FOR PROPERTY DAMAGE CLAIMS TO BE ELIGIBLE FOR COMPENSATION WHEREAS, an unusual situation has occurred in which a landowner invested money to protect its property from damage from a suspected leak from a city water line; and WHEREAS, when all usual leak detection methods could not find a leak, but water still infiltrated the property owner's building, City crews excavated the water main and finally located a leak in the service line close enough to the water main to still be considered the City's responsibility; and WHEREAS, after this line was repaired by the City, the water infiltration problem finally was alleviated; and WHEREAS, the property owner should be able to file a claim now and potentially receive compensation not only for the actual property damage, but for at least some of the costs it invested in sump pumps and their installation costs to control the water infiltration into its building. 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 amends § 39.10 Water and Wastewater Damage Claims by enacting a new (13)(4) as shown below: "§ 39.10 (B) (4) When a possible water leak claim has been promptly called to the attention of Water and Sewer staff who initially could not detect or determine the cause of such leak which then caused the property owner to invest in sump pumps and/or other reasonable measures to protect its property, compensation for such property damage prevention efforts may be paid pursuant to this Article if a compensable water leak is later discovered or confirmed by city staff." City of Fayetteville, Arkansas Page 1 Printed on 1212112016 Legistar ID No.: o-,0 (4, — 0 ("35 AGENDA REQUEST FORM FOR: Council Meeting of December 20, 2016 FROM: City Attorney Kit Williams ORDINANCE OR RESOLUTION TITLE AND SUBJECT: AN ORDINANCE TO AMEND § 39.10 WATER AND WASTEWATER DAMAGE CLAIMS BY ENACTING A NEW SUBSECTION (4) TO (B) REQUIREMENTS FOR PROPERTY DAMAGE .CLAIMS TO BE ELIGIBLE FOR COMPENSATION APPROVED FOR AGENDA: City Attorney Kit Williams Date III OFFICE OF THE CITY ATTORNEY DEPARTMENTAL CORRESPONDENCE TO: Mayor Jordan City Council CC: Don Marr, Chief of Staff Paul Becker, Finance Director Tim Nyander, Utilities Directo FROM: Kit Williams, City Attorney DATE: December 5, 2016 r { Kit Williams City Attorney Blake Pennington Assistant City Attonic), Patti Mulford Paralegal RE: Proposed Amendment to § 39.10 Water and Wastewater Damage Claims On June 5, 2012, the City Council passed Ordinance No. 5504 which I had proposed to establish a damage claims procedure concerning "a failure of the municipality owned water or wastewater infrastructure system that results in a trespass into and damages to private property." § 39.10 (A). This section and § 39.11 Damage Claims Other Than Water and Wastewater Damage Claims have worked well over the last four years to provide limited, but reasonable, compensation for property damage to citizens even though the City could deny all compensation because of its sovereign immunity. During this period, a property owner on Mountain Street had suffered water infiltration problems that did not appear tied to rain or weather. Our Water and Sewer maintenance personnel tried to locate a potential leak in the city water main that could cause such a problem. Chlorine tests were run to try to tie this water leak to a city water leak, but those tests failed to establish this was "treated" water. Eventually, the property owner installed sump pumps and did some construction to place these sump pumps where they could catch and pump out this continuing water infiltration. Because this problem would not go away even in times of very dry conditions and because all normal leak detection tests had failed, City Water and Sewer staff cut through the pavement and dug up the water main for visual inspection. This finally revealed a small leak in the service line near the water main. Although most of a service line running to a house or building is the property owner's responsibility, Water and Sewer staff felt the part of the line that was leaking was so close to the city water main that it should still be the City's responsibility and repaired this leak and reburied the main and service line. This action finally solved the continual water infiltration problem. When the property owner sought compensation for its expenditures to purchase and properly install two sump pumps, I informed the property owners that such expenditures appeared outside the allowable "cost of cleaning or repair of the damage." § 39.10 (C) (2). Since the Mayor has expressed his desire to enable the City Council to provide at least some compensation for these expenses, I have drafted a proposed new subsection (B)(4) which under fairly limited circumstances would allow the City Council to compensate a property owner who had to invest in a sump pump because of a city water leak. I have attached the proposed ordinance for your review. This amendment does not mandate or cause any damage claim to be paid. It would authorize some compensation for the costs of sump pumps and their installation if approved by the Water and Wastewater Director (up to $8,000.00) or the City Council (up to $20,000.00). This amendment also would allow compensation even if a formal claim form was not submitted within 30 days because City staff could not detect a leak to justify the property owner submitting a claim form. 39.10 FAYETTEVILLE CODE OF ORDINANCES TITLE III ADMINISTRATION 39.02-39.09 Reserved ARTICLE II DAMAGE CLAIMS 39.10 Water and Wastewater Damage Claims (A) Establishment of Property Damage Claim Compensation Policy. (1) 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 (3) 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 CD39:2 FAYETTEVILLE CODE OF ORDINANCES 39.11 TITLE III ADMINISTRATION 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 (2/3) 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. (1) 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. (1) 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. (Ord. No. 5504, 6-5-12) 39.11 Damage Claims Other Than Water And Wastewater Damage Claims (A) Establishment of Property Damage Claim Compensation Policy. (1) 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 CD39:3 NORTHWEST ARKANSAS Democrat 7roazette .',0 B.. i..;.(7. A _-T kl..v AR.727"<...:.G .42 v A 79'6951.i... OP,' , �.s _ i..., r AFFIDAVIT OF PUBLICATION I Karen Caler, do solemnly swear that I am the Legal Clerk of the Northwest Arkansas Democrat -Gazette, printed and published in Washington County and Benton County, Arkansas, and of bona fide circulation, that from my own personal knowledge and reference to the files of said publication, the advertisement of - CITY OF FAYETTEVILLE Ord. 5938 Was inserted in the Regular Edition on: January 5, 2017 Publication Charges: $ 120.90 Karen Caler Subscribed and sworn to before me This b day of , ,, 2017. 0, , a, V vN& Notary Public My Commission Expires: ' CAT ItY VVILES s tj l�tl;Gnsa ":r on Geuil4y� Notary Pu0(ic Coin::„r;- 12397118 Nly Commission Expirec Feb 20, 2024 ' **NOTE** Please do not pay from Affidavit. RECEIVED Invoice will be sent. JAN I g 2017 TTEviuE cil OFFICE CITY Ordinance: 5938 File Number: 2016-0635 AMEND § 39.10 WATER AND WASTEWATER DAMAGE CLAIMS: AN ORDINANCE TO AMEND § 39.10 WATER AND WASTEWATER DAMAGE CLAIMS BY ENACTING A NEW SUBSECTION (4) TO (B) REQUIREMENTS FOR PROPERTY DAMAGE CLAIMS TO BE ELIGIBLE FOR COMPENSATION. WHEREAS, an unusual situation has occurred in which a landowner invested money to protect its property from damage from a suspected leak from a city water line; and WHEREAS, when all usual leak detection methods could not find a leak, but water still infiltrated the property owners building, City crews excavated the water main and finally located a leak in the service line close enough to the water main to still be considered the City's responsibility; and WHEREAS, after this line was repaired by the City, the water infiltration problem finally was alleviated; and WHEREAS, the property owner should be able to file a claim now and potentially receive compensation not only for the actual property damage, but for at least some of the costs it invested in sump pumps and their installation costs to control the water infiltration into its building. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section I. That the City Council of the City of Fayetteville, Arkansas hereby amends § 39.10 Water and Wastewater Damage Claims by enacting a new (B)(4) as shown below: "§ 39.10(B) (4) When a possible water leak claim has been promptly called to the attention of Water and Sewer staff who initially could not detect or determine the cause of such leak which then caused the property owner to invest in sump pumps and/or other reasonable measures to protect its property, compensation for such property damage prevention efforts may be paid pursuant to this article if a compensable water leak is later discovered or confirmed by city staff." PASSED and APPROVED on 12/20/2016 Approved: Lioneld Jordan, Mayor Attest: Sondra E. Smith, City Clerk Treasurer 73983335 Jan. 5, 2017