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113 West Mountain Street
Fayetteville, AR 72701
(479) 575-8323
Ordinance: 6576
File Number: 2022-0543
AMEND §39.10 WATER AND WASTEWATER DAMAGE CLAIMS AND §39.1 1
DAMAGE CLAIMS OTHER THAN WATER AND WASTEWATER DAMAGE CLAIMS:
AN ORDINANCE TO AMEND § 39.10 WATER AND WASTEWATER DAMAGE CLAIMS
AND § 39.11 DAMAGE CLAIMS OTHER THAN WATER AND WASTEWATER
DAMAGE CLAIMS OF THE FAYETTEVILLE CODE TO INCREASE THE ALLOWED
COMPENSATION AMOUNT BY 25% BECAUSE OF A DECADE OF INFLATION AND TO
APPROVE AN EMERGENCY CLAUSE
WHEREAS, on June 5th, 2012, the City Council passed Ordinance 5938 to enact §§39.10 and
39.11 of the Fayetteville Code to authorize limited payments of eligible compensation by City Staff
for smaller claims and only with Mayoral and City Council approval for larger claims, but no higher
than designated maximum amounts; and
WHEREAS, there has been substantial increase in the costs to our citizens of these largely property
damage losses during the last decade such that it is appropriate to increase all previous levels of
allowed compensation by 25%.
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 Fayetteville
Code §39.10(C)(4) and §39.11(C)(4) to increase all compensation authorized limits by 25% by
repealing the former subsections and enacting amended §39.10(C)(4) and §39.11(C)(4) as follows:
"§39.10(C)(4) The Utilities Department Director may not authorize any payment greater than
$10,000.00 for any claim pursuant to this section. The Mayor may request the City Council to
Page 1 Printed on 6122122
Ordinance: 6576
File Number: 2022-0543
authorize an amount greater than $10,000.00 by resolution, but in no case shall the city pay more than
$25,000.00 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 $25,000.00 damage cap and
approves a payment up to $50,000.00.
"§39.11(C)(4) The Chief of Staff may not authorize any payment greater than $10,000.00 for any
claim pursuant to this section. The Mayor may request the City Council to authorize an amount greater
than $10,000.00 by resolution, but in no case shall the city pay more than $25,000.00 pursuant to this
claims procedure for a damage claim unless in an extraordinary case the Mayor recommends and the
City Council by two-thirds majority approves an exemption from this $25,000.00 damage cap and
approves a payment up to $50,000.00."
Section 2: That the City Council of the City of Fayetteville, Arkansas hereby amends §39.11(D)(1)
by repealing and deleting the second sentence of that subsection.
Section 3: That the City Council of the City of Fayetteville, Arkansas hereby determines that this
ordinance should become effective without delay because of the City Council's need to address
significant pending and potential claims related to the September 20, 2021 water main rupture that
caused unprecedented and substantial damage to the foundations and structures of nearby residents'
homes so that this change is necessary for the public peace, health, and safety of Fayetteville residents.
Therefore, the City Council hereby declares an emergency exists such that this ordinance shall become
effective immediately upon its passage and approval.
PASSED and APPROVED on 6/21/2022
Attest: 0111111111r1
'4
FAYE7?EV I <<E : X =
Kara Paxton, City Clerk Treasurer
Page 2 Printed on 6122122
City of Fayetteville, Arkansas 113 West Mountain Street
Fayetteville, AR 72701
(479)575-8323
Text File
File Number: 2022-0543
Agenda Date: 6/21/2022 Version: 1 Status: Passed
In Control: City Council Meetinq File Type: Ordinance
Agenda Number: D.5
AMEND §39.10 WATER AND WASTEWATER DAMAGE CLAIMS AND §39.11 DAMAGE
CLAIMS OTHER THAN WATER AND WASTEWATER DAMAGE CLAIMS:
AN ORDINANCE TO AMEND § 39.10 WATER AND WASTEWATER DAMAGE CLAIMS AND §
39.11 DAMAGE CLAIMS OTHER THAN WATER AND WASTEWATER DAMAGE CLAIMS
OF THE FAYETTEVILLE CODE TO INCREASE THE ALLOWED COMPENSATION AMOUNT BY
25% BECAUSE OF A DECADE OF INFLATION AND TO APPROVE AN EMERGENCY CLAUSE
WHEREAS, on June 5th, 2012, the City Council passed Ordinance 5938 to enact §§39.10 and 39.11 of the
Fayetteville Code to authorize limited payments of eligible compensation by City Staff for smaller claims and
only with Mayoral and City Council approval for larger claims, but no higher than designated maximum
amounts; and
WHEREAS, there has been substantial increase in the costs to our citizens of these largely property damage
losses during the last decade such that it is appropriate to increase all previous levels of allowed compensation
by 25%.
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 Fayetteville Code
§39.10(C)(4) and §39.11(C)(4) to increase all compensation authorized limits by 25% by repealing the former
subsections and enacting amended §39.10(C)(4) and §39.1l(C)(4) as follows:
"§39.10(C)(4) The Utilities Department Director may not authorize any payment greater than $10,000.00 for
any claim pursuant to this section. The Mayor may request the City Council to authorize an amount greater
than $10,000.00 by resolution, but in no case shall the city pay more than $25,000.00 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 $25,000.00 damage cap and approves a payment up to $50,000.00.
"§39.11(C)(4) The Chief of Staff may not authorize any payment greater than $10,000.00 for any claim
pursuant to this section. The Mayor may request the City Council to authorize an amount greater than
$10,000.00 by resolution, but in no case shall the city pay more than $25,000.00 pursuant to this claims
City of Fayetteville, Arkansas Page 1 Printed on 612212022
File Number: 2022-0543
procedure for a damage claim unless in an extraordinary case the Mayor recommends and the City Council by
two-thirds majority approves an exemption from this $25,000.00 damage cap and approves a payment up to
$50,000.00."
Section 2: That the City Council of the City of Fayetteville, Arkansas hereby amends §39.11(D)(1) by
repealing and deleting the second sentence of that subsection.
Section 3: That the City Council of the City of Fayetteville, Arkansas hereby determines that this ordinance
should become effective without delay because of the City Council's need to address significant pending and
potential claims related to the September 20, 2021 water main rupture that caused unprecedented and
substantial damage to the foundations and structures of nearby residents' homes so that this change is necessary
for the public peace, health, and safety of Fayetteville residents. Therefore, the City Council hereby declares an
emergency exists such that this ordinance shall become effective immediately upon its passage and approval.
City of Fayetteville, Arkansas Page 2 Printed on 612212022
Legistar ID No.: 2022-0543
AGENDA REQUEST FORM
FOR: Council Meeting of June 21, 2022
FROM: City Attorney Kit Williams
ORDINANCE OR RESOLUTION TITLE AND SUBJECT:
AN ORDINANCE TO AMEND § 39.10 WATER AND WASTEWATER DAMAGE
CLAIMS AND § 39.11 DAMAGE CLAIMS OTHER THAN WATER AND
WASTEWATER DAMAGE CLAIMS OF THE FAYETTEVILLE CODE TO INCREASE
THE ALLOWED COMPENSATION AMOUNT BY 25 % BECAUSE OF A DECADE OF
INFLATION AND TO APPROVE AN EMERGENCY CLAUSE
APPROVED FOR AGENDA:
- — - June 9, 2022
City Attorney Kit Williams
Approved
DEPARTMENTAL CORRESPONDENCE
OFFICE OF THE
CITY ATTORNEY
TO: Mayor Jordan
City Council
CC: Susan Norton, Chief of Staff
Tim Nyander, Utilities Director
Paul Becker, Finance Director
FROM: Kit Williams, City Attorney '
DATE: June 9, 2022
RE: Amending §39.10 and §39.11 Claims for Compensation
Kit Williams
City Attorney
Blake Pennington
Assistant City Attorney
Jodi Batker
Paralegal
Because of the unprecedented major rupture of one of the City's largest
water mains which caused significantly more damage to nearby homes than any
previous main breakage and because the maximum limits of compensation that
can be authorized by the City Council has not been changed for over a decade,
the City Council requested that I present an amendment which would increase
its compensation authority by 25%. I have done so and have attached this
proposed ordinance for your review. This ordinance includes an Emergency
Clause, so it can become immediately effective upon passage and approval.
This increase in the City Council's authority provided by this ordinance
needs to be passed prior to your consideration of the compensation request that
you tabled to this meeting which will be heard during Unfinished Business. This
will require the City Council to Suspend the Rules to place this ordinance after
Consent and before Unfinished Business. This ordinance will also need to be
read all three times and have the Emergency Clause approved before the
compensation Resolution can be considered in order for the Council to have legal
authority to approve up to $50,000.00.
39.02 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) Aclaim 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.
(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.
(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.
Supp. No. 4 CD39:2
FAYETTEVILLE CODE OF ORDINANCES 39.11
TITLE III ADMINISTRATION
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
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
L- coverage or lack thereof for any claim.
n 14"AJ46k T� (4) The Utilities Department Director may not authorize any payment greater than $8,000.00
1K 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
441A,�o0k) �7 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
21570the 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; Ord. No. 5938, §1, 12-20-16)
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.
Supp. No. 4 CD39:3
39.11 FAYETTEVILLE CODE OF ORDINANCES
TITLE III ADMINISTRATION
(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)
AmcoAeA 4(4)
Ihe_VCA;t #0
A 00 ors 61
252.
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.
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 (2/3) 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.
Supp. No, 4 CD39:4
FAYETTEVILLE CODE OF ORDINANCES 39.99
TITLE III ADMINISTRATION
(D) Discretion of the City.
(1) The city acting through its Chief of Staff has complete and sole discretion whether or not
e(vNA 6J to pay any compensation pursuant to this section if the claimant has properly and timely
Uhp4 c9It"6I 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) Re/ease 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. 5505, 6-5-12)
39.12-39.99 Reserved
Supp. No. 4
CD39:5