Sec. 29-172. - Liability of right-of-way user.

To the extent allowed by law, the right-of-way user shall be liable to the city for any damage or loss occasioned by any act or omission occurring in connection with his excavation, and subject to state law, the ROW user shall fully indemnify, hold harmless and defend city, its officers and employees from and against any and all suits, actions, judgments, losses, costs, demands, claims, expenses (including attorney's fees), damages, and liabilities of every kind to which the city, its officers or employees may be subjected for injury of any type, death or property damage arising from or connected with any such act or omission. City shall promptly notify a permittee, or ROW user, at the address set forth in the permit, or last known address, of any claim or suit served upon the city and alleging negligent or wrongful conduct by the permittee or ROW user in connection with an excavation.

(Ord. No. 93319, § 1, 1-25-01)

Sec. 29-173. - Insurance.

(a)

Right-of-way users shall furnish an original completed certificate of insurance or the city's standard certificate of insurance form to the city's finance department, city clerk's office, and public works department, which shall be completed by an agent authorized to bind the named underwriter(s) and their company to the coverage, limits, and termination provisions shown thereon, and which shall furnish and contain all required information referenced or indicated thereon. The original certificate(s) or form must have the agent's original signature, including the signer's company affiliation, title and phone number, and be mailed directly from the agent to the city. The city shall have no duty to pay or perform under this article until such certificate shall have been delivered to the city's finance department, city clerk's office, and public works department, and no officer or employee, other than the city's risk manager, shall have authority to waive this requirement.

(b)

The city reserves the right to review the insurance requirements of this section to modify insurance coverage and their limits when deemed necessary and prudent by the city's risk manager based upon changes in statutory law, court decisions, or circumstances surrounding this article, but in no instance will the city allow modification whereupon the city may incur increased risk.

(c)

Subject to the right-of-way user's right to maintain reasonable deductibles in such amounts as are approved by the city, right of way users shall obtain and maintain in full force and effect for the duration of the permit, and any extension thereof, and/or duration of time it maintains facilities in the public right of way, at the right-of-way user's sole expense, insurance coverage written on an occurrence basis, by companies authorized and admitted to do business in the State of Texas and rated A- or better by A.M. Best Company and/or otherwise acceptable to the city, in the following types and amounts:

(d)

The city shall be entitled, upon request and without expense, to receive copies of the policies and all endorsements thereto as they apply to the limits required by the city, and may make a reasonable request for deletion, revision, or modification of particular policy terms, conditions, limitations or exclusions (except where policy revisions are established by law or regulation binding upon either of the parties hereto or the underwriter of an such policies). Upon such request by the city, the rights-of-way user shall exercise reasonable effort to accomplish such changes in policy coverage, and shall pay the cost thereof.

(e)

Right-of-way users shall ensure that all insurance contracts and certificate(s) of insurance contain the following required provisions:

(1)

Name the city and its officers, employees, volunteers, agents, and elected representatives as additional insureds with respect to the operations and activities of, or on behalf of, the named insured performed in the right-of-way under provision of this chapter, with the exception of the professional liability, workers' compensation and liability policy; and

(2)

Right-of-way user's insurance shall be deemed primary with respect to any insurance or self-insurance carried by the city; and

(3)

Provide for an endorsement that the "other insurance" clause shall not apply to the city where the city is an additional insured shown on the policy; and

(4)

Workers' compensation and employers' liability will provide for a waiver of subrogation in favor of the city.

(f)

Right-of-way user shall notify the city in the event of any notice of cancellation, non-renewal or material change in coverage and shall give such notices not less than thirty (30) days prior to the change, or ten (10) days notice for cancellation due to non-payment of premiums, which notice must be accompanied by a replacement certificate of insurance. All notices shall be given to the city at the following address:

(g)

Nothing herein contained shall be construed as limiting in any way the extent to which the right-of-way user may be held responsible for payments of damages to persons or property resulting from the right-of-way user's or its subcontractors' performance of the work performed in the public right-of-way.

(h)

The city owned utilities, city public service and San Antonio Water System, shall not be required to provide the insurance specified herein.

(i)

With respect to the right-of-way user's obligation to comply with the requirements for Commercial General (public) Liability Insurance coverage to include pollution coverage, the city may allow the right-of-way user to self-insure upon annual production of evidence that is satisfactory to the city's risk manager. With respect to the right-of-way user's obligation to comply with the requirements for automobile liability insurance and for workers' compensation insurance, a right of way user may self-insure, provided the right-of-way user tenders satisfactory evidence of self-insurance as contemplated by the State motor vehicle financial responsibility law, Tex. Transp. Code § 601.124, and the Texas Workers' Compensation Act, Tex. Labor Code § 407.001 et seq.

(Ord. No. 93319, § 1, 1-25-01)

Sec. 29-174. - Performance/assurance bond.

Before a permit shall be issued, the applicant therefore shall execute and deliver to the city, to be kept on file in the city clerk's office, a good and sufficient bond of or assurance, in the sum of ten thousand dollars ($10,000.00) to be approved by the risk manager and conditioned that the person making the application shall promptly adjust, pay and settle all legitimate claims for damages that may result by reason of carelessness or negligence in the manner of performing such work or by reason of any defects therein caused or arising from careless, negligent or imperfect construction thereof, and to hold the city free and harmless from liability on all such claims for damages to the performance or assurance bond shall cover the cost of repairs in or upon the street, sidewalk or other public place where the work is to be done that may become necessary by reason of such cut or excavation having been made. The bond shall be maintained until the work is accepted by the city.

(Ord. No. 93319, § 1, 1-25-01)

Sec. 29-175. - Optional continuing bond and deposit.

In lieu of a bond of performance or assurance required for each permit issued under the performance/assurance bond section of this article, the applicant may maintain a one-time bond of performance or assurance with the director the sum of one hundred thousand dollars ($100,000.00) for the purposes specified in section 29-174, and shall have on file, in the city clerk's office, an approved bond of performance or assurance in like amount, being then in full force and effect, against which claims shall not have been presented aggregating more than one hundred thousand dollars ($100,000.00); provided, further, that section 29-174 shall not apply to applications for permits to make cuts, openings or excavations in any street, plaza or other public place paved under contract with the city, unless the contract of maintenance and the maintenance bond therefor shall have expired. The bond shall be maintained until the applicant is no longer working in or on city streets.

(Ord. No. 93319, § 1, 1-25-01)

Sec. 29-176. - Liability of contractor and sureties for maintenance and repair work.

Any defects of workmanship or material relating to work done by an excavator during the initial project or becoming known or which should have been known during the guarantee period (the life of the street) shall be known as maintenance or repair work and both the excavator and the sureties and/or the contractor's bond shall be fully liable for any default of such contractor under this section. In the event of a failure in the restoration of an excavation, the ROW user shall have one opportunity to repair, in a timely manner, the section of the restoration that has failed at its expense, which repair shall be in accordance with the standards set forth in this chapter. In the event of any subsequent failure of that section of the restoration, the city retains the right and option to terminate the ROW user's guaranty, upon written notice to the ROW user. In such event, the ROW user shall reimburse the city for its direct costs associated with the repair of the failure of the restoration work.

(Ord. No. 93319, § 1, 1-25-01)

Sec. 29-177. - When additional security required.

In the event the director reasonably believes the contractor or ROW user;s solvency is threatened, the director may, at any time, make written demand on a contractor or ROW user for bonds and the contractor or ROW user shall immediately furnish such additional bond or bonds.

(Ord. No. 93319, § 1, 1-25-01)

Sec. 29-178. - Decision of director binding on contractor, ROW user, and sureties.

In any question as to when any work was actually begun or other specific dates, the decision of the director shall be conclusive on the contractor, ROW user, and the sureties on all such bonds.

(Ord. No. 93319, § 1, 1-25-01)