§ 34-234. Conditions for issuance.

(a)

Any permit issued under this division shall not be effective unless it contains the following:

Permittee agrees to and shall indemnify, hold harmless and defend, the city, its officers, agents and employees, collectively referred to as "city," from and against any and all claims, losses, damages, causes of action, suits and liability of every kind, including all expenses of litigation, court costs, and attorneys' fees for injury to or death of any person, or for damage to any property, arising out of or in connection with the construction, maintenance, operation, repair, replacement, adjustment or removal of any part or all of the pipeline permitted herein, where such injuries, deaths or damages are caused by the concurrent negligence of the city and permittee and/or by the joint or sole negligence of the permittee. It is the expressed intention of the parties hereto, both permittee and the city, that the indemnity provided for in this paragraph is an indemnity by permittee to indemnify, protect and defend the city from the consequences of the city's own negligence, where that negligence and permittee's negligence are concurring causes of the injury, death or damage; and/or the permittee's joint and sole negligence. Furthermore, the indemnity provided for in this paragraph shall have no application to any claim, loss, damage, cause of action, suit and liability where the injury, death or damage results from the sole negligence of the city unmixed with the fault of any other person or entity.

(b)

Any registration issued under this article shall not be effective unless it contains the following:

Registrant agrees to and shall indemnify, hold harmless and defend, the city, its officers, agents and employees collectively referred to as "city," from and against any and all claims, losses, damages, causes of action, suits and liability of every kind, including all reasonable expenses of litigation, court costs and reasonable attorneys' fees for injury to or death of any person, or for damage to any property, arising out of the construction, maintenance, operation, repair, replacement, adjustment or removal of any part or all of the pipeline registered herein to the extent and in the proportion or proportions that such injuries, deaths, or damages are caused by the negligence of registrant and/or the joint negligence of the city where such negligence is concurrent with the negligence of registrant and registrant is more than 50 percent at fault.

It is the expressed intention of the parties hereto, both registrant and the city, that the indemnity provided for herein is an indemnity by registrant to indemnify, protect and defend the city from the consequences of the negligence of registrant as well as the city's own ordinary negligence, where the city's negligence and negligence of registrant are concurring causes of the injury, death or damage and registrant is more than 50 percent at fault.

The indemnity provided herein shall have no application to any claim, loss, damage, cause of action, suit and liability where the injury, death or damage results from the sole negligence of the city unmixed with the fault of registrant; any intentional, willful or grossly negligent conduct on the part of the city; any negligence of the city other than when registrant is more than 50 percent at fault; or any consequential damages.

(c)

The city shall notify the permittee or registrant as soon as reasonably practicable of any claim, loss, damage, cause of action, suit or liability that the city deems to be covered by the indemnity contained in subsection (a) or (b) of this section. Nothing in this section shall be deemed to waive any legal immunities or limitations on liability of the city. The permittee or registrant shall be expressly subrogated to any rights of the city against any third party, to the extent that the permittee or registrant indemnifies the city as may be provided in this section.

(d)

All permits or registrations shall further require the owner or operator to refill, including the repaving of any cut in any pavement, all excavations made by him within a public way, whether existing at the time such ordinance is passed or thereafter dedicated or otherwise coming into existence, in the constructing, operating, maintaining or removing of such pipeline or any part thereof. After once refilling such excavation, if the earth within the excavated area settles so as to leave a depression, the owner or operator shall make further necessary fills from time to time as ordered by the director or by the city council. The owner or operator will be required by any such permit to repair all portions of any public way in which such line is laid to the extent damaged by the owner's or operator's construction, operation, maintenance or lack of maintenance and to place the public way in as good a state of repair and condition as it was in at the time the construction, repair, adjustment, replacement or removal was commenced. Such repairs must be made to the satisfaction of the director.

(e)

All permits or registrations issued pursuant to this division shall further require that all such work of repairing or refilling the public way shall be done under plans and specifications approved by the director and subject to his approval of the completed work. Any excavation in or along any such street or alley shall be replaced with materials of the same kind as those removed, unless the director approves of some other type of fill or material. Except for a pipeline emergency, the owner or operator shall notify the director before commencing any proposed excavation in any portion of any public way. If a pipeline emergency occurs, the owner or operator shall notify the communications department before commencing any excavation in any portion of any public way, except when necessary to prevent imminent danger to life or property. Such excavation shall not wholly close any public way, but the owner or operator shall at all times maintain a route of travel along and within such public way, which shall include any sidewalk area, except that in an emergency the director, the city manager, the mayor, the city council or any police, fire or other city public safety official may authorize a closing of any public way in order to take care of any break or leakage in the pipeline if, in the opinion of the director, the city manager, the mayor, the city council or any police, fire or other city public safety official such closing is necessary to protect the safety of the public.

(f)

The permit or registration shall also provide that if the owner or operator fails to commence or thereafter to diligently prosecute any such repair, refilling or other work in a public way so required to be done by him within a reasonable time after being notified thereto by the director, the city may cause such work to be done at the expense of the owner or operator, and the city may recover all such expenses from the owner or operator, together with all costs and reasonable attorney's fees.

(Code 1967, § 11¼-28; Ord. No. 7839, § 1, 11-12-96)