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HomeMy Public PortalAbout12-17-1981 c;)o.3 BOARD OF PUBLIC WORKS AND SAFETY OF THE CITY OF RICHMOND, INDIANA, DECEMBER 17, 1981 1 The Board of Public Works and Safety of the City of Richmond, Indiana, met 2 in regular session December 17, 1981 in the Municipal Building in said City. 3 Mr. Meredith presided with Mr. Ryder and Mr. Webb present. The following 4 business was had, to-wit: 5 6 APPROVAL OF MINUTES OF DECEMBER .10, 1981 78 Mr. Ryder moved to approve the minutes of the previous meeting as submitted, 9 seconded by Mr. Webb and on unanimous voice vote the motion was carried. 10 11 CLEARVIEW CABLE CHANGE OF OWNERSHIP - Kevin Rice 12 . 13 Mr. Meredith stated he received a call. from Mr. Rice this morning and the 14 people coming in to discuss this topic were not able to get here; therefore, 15 this item is continued until next week. 16 17 BLASTING REQUEST - Peirce .Construction (Cont'd. from 12-10-81) 18 19 Mr. Meredith asked if, due to the weather conditions, everyone is here that is 20 anticipated .and Mr. Harold., representing Peirce Construction, stated the sub- 21 contractor is unable to be here; however, he is prepared to answer questions 22 in their behalf. Mr. Meredith requested the Sanitary District explain their 23 request, which is to be done through the engineering firm of Clark-Dietz. 24 25 Mr. Dean Van Wie, Clark-Dietz, explained that Peirce Construction, the contrac- 26 tors for the majority of the sewer constructed, has requested two things of the 27 Sanitary District Board: 1) to receive permission to put in a test blast using 28 proper explosive techniques on South 5th just south of the Chessie right-of-way 29 line 2) if this is performed satisfactorily and this Board and the Sanitary 30 Board are convinced that proper 'techniques are being used and proper procedures III 31 to not cause difficulty to the City, then the contractor would like to use 32 blasting techniques to install the sewer in a block and a half of Garden Street 33 which .is just east of the test blast location. The Board of Sanitary District 34 Commissioners has indicated that this procedure could be allowed subject to 35 certain conditions. One of the conditions is approval of this Board. The 36 other conditions are satisfactory insurance certificates and policies that have 37 to be approved by the Sanitary District Attorney and the City Attorney and a 38 number of other items which include approval of the Fire Protection Bureau. 39 They are presenting this proposal today to the Board with the idea that once 40 this approval is obtained, they will then continue getting the other approvals 41 needed prior to performing the test blast. The test will be performed at a 42 time when representatives of this Board, as well as the Fire Protection Bureau 43 and whomever else would like to be there in order to have a feeling what kind 44 of situation is experienced during blasting to install sewers. 45 46 Mr. Robert Hudson, Attorney doing work for Mr. Anderson and the Sanitary Dis- 47 trict, stated he gave Mr. Anderson a copy of a letter and he feels it is sig- 48 nificant that the position of the Sanitary District be made very clear. He 49 read a portion of the letter noting on December 8, 1981 the Board of Sanitary 50 Commissioners approved a request of Peirce Construction Co. to conduct a test 51 blast at Site No. 3 conditioned on four items. 1) Insurance coverage is re- 52 ceived and approved. 2) A waiver of any City owned property is received and 53 approved. He stated with relation to the first item the Sanitary District 54 finds that the following has not yet been done as instructed and the condition, 55 therefore, has not been fulfilled: 1) the City of Richmond and the Richmond 56 Sanitary District be added as additional insured for the purpose of defense 57 against claims (this has not been done) 2) proper language be added by en- 58 dorsement to waive any exclusion of City-owned property from the general 59 liability policy (this has not been done) 3) the contract to which this 60 policy applies be identified by endorsement (this was not requested before, 61 but at the suggestion of Prater's insurance broker and Mr. Nibley this would 62 seem to be something that should be done) . In examination of the policy they 63 found two things. One is that one very important page that demonstrated what 64 the coverage was that was missing from the file that was given to him and Board of Works ,Minutes Cont'd. December 17, 1981 Page 2 1 Mr. Nibley. Second, there is an exclusion that they will not be liable for damages 2 as a result of a blast conducted within fifty feet (50') of a railroad or near 3 a railroad trestle. This is right next to a railroad and under these conditions 4 this has to be either eliminated by endorsement or moved someplace else. Mr. 5 Nibley's firm has suggested that an index endorsement be added to the policy. 6 The limits of the policy at the present time, as demonstrated by the evidence 7 he has, are not to the contractual requirements unless they include Peirce's 8 insurance with it, because at the present time the limits are a half million 9 dollars and even the contract calls for a million dollars. This is something 10 that happened a long time ago and doesn't relate to the present Indiana statute - 11 as to maximum liability of a municipality. There has not been tendered to Mr. 12 Nibley any evidence of the umbrella policy; although he does know that one 13 exists. A certified copy of both the umbrella and the base policy should be 14 tendered to the Sanitary District as it has been requested on many occasions. 15 A certificate of insurance has been given to the Sanitary District but he does 16 not deem that adequate because the face of that sheet of paper says on it that 17 the certificate is issued as a matter of information only and confers no rights 18 upon the certificate holder. The certificate does not amend, extend or alter 19 the coverage afforded by the policy listed below. If the certificate did name 20 the City of Richmond, that doesn't mean that it was on the policy and there is 21 no evidence that it was on the policy. With this in mind, he does not believe 22 that conditions 1) and 2) of the motion for conditional approval of the Sanitary 23 District have been met. For the record, Mr. Hudson identified Mr. Nibley is the 24 public contract consultant of the Sanitary District in Washington. It was noted 25 the insurance was a condition put on by the Board of Sanitary Commissioners. 26 Their approval was contingent upon this. In answer to Mr. Webb's question con- 27 cerning the legal liability of the City as far as to the limit, Mr. Hudson 28 answered it is $300,000 per person for personal injury with a gross aggregate 29 figure of five million dollars. There is no limit on property damage. The 30 insurance is from the subcontractor Prater. He stated the bond for the Fire 31 Prevention Bureau of between the Fire Prevention Bureau and the Board of Works. 32 33 Mr. Barry Holden, Peirce Construction Project Engineer, asked Mr. Hudson, in 34 his conversation with the subcontractors insurance company, if they indicated.. 35 there would be any problem at all in fulfilling the requirement? Mr. Hudson 36 stated Mr. Curtis of Crump Associates seemed to be knowledgeable of each 37 request and each one should be met without any difficulty with the exception 38 of the railroad exclusion. 39 40 Mr. Van Wei asked if there were any results of the meeting the Fire Prevention 41 people had with the blasters last Tuesday concerning the requirements they will 42 impose on the construction crew. Chief Paul Mullin stated not at this time. 43 He stated they. would like to talk with the "powder monkey" to see what he is 44 going to do and how he is going to transport it. They have inspected the site. 45 He talked with an insurance man yesterday concerning the bond and was told there 46 was no bond issued for damages. You have to have liability insurance to cover 47 this act. 48 49 Mr.. Holden stated the subcontractor will be available Monday morning to show a 50 film on blasting. He stated each of Peirce's subcontractors are required to 51 execute a performance-maintenance bond in order to have the subcontract. .Mr. 52 Anderson stated what he wants is a bond that will indemnify the City for any 53 damages, losses,,deaths, claims that might. arise. He feels this should be in 54 the amount the City could be sued for. Mr. Meredith stated it has been his 55 experience that a bond does not cover this type liability and that is done by 56 a liability policy, which does bond the insurance company to pay in case of a 57 loss as outlined under the policy. 58 - 59 Mr. Holden explained in detail the procedure used in blasting. He stated 60 he personally has not been involved in a -blasting situation; however, he 61 has attended seminars. He noted there is approximately seven hundred lineal 62 feet (700') that they would like to shoot and this should take approximately 63 one week. �oS Board of Works Minutes Cont'd. December 17, 1981 Page 3 1 City Attorney Anderson presented the following opinion, whcih the Clerk read: 2 3 December 17, 1981 4 5 Mr. Donald E. Meredith, President 6 Board of Public Works and Safety 7 Municipal Building 8 Richmond, Indiana 47374 9 10 Dear Mr. Meredith: 11 12 At your request I have researched the following issues respecting 13 a request for blasting in the sewer separation project now being 14 conducted by the Richmond Sanitary District. 15 16 ISSUE 17 18 Should the Board of Public Works and Safety authorize and 19 direct the Chief of the Bureau of Fire Prevention of the City 20 of Richmond issue a permit in accordance with Article 12 of the 21 Fire Prevention Code of the City of Richmond. 22 23 ANALYSIS 24 25 This issue is before the Board of Public Works and Safety 26 by the request of the Board of Sanitary Commissioners of the 27 Sanitary District of Richmond, Indiana. (See Exhibit "A" extract 28 from the minutes of a regular meeting of the Sanitary District 29 ,Board of Sanitary Commissioners .of the City of Richmond, Indiana 30 on Tuesday, December 8, 1981.) 31 32 The Board of Public Works and Safety has exclusive control 33 over all matters and property relating to the Fire Department. 34 (IC 36-8-3-2 and IC 36-4-9-5) The City of Richmond, Indiana III35 has incorporated by reference in Section 92.01 of the Municipal 36 Code of Richmond the Fire Prevention Code which is the pertinent 37 ordinance applicable to this situation. Article 12, "Explosives, 38 Ammunition and Blasting Agents", sets out the requirements under 39 which a permit can be obtained to use explosives or blasting 40 agents in the City of Richmond. (See Exhibit "B" - Article 12) 41 42 The view currently held by the Indiana courts is that the 43 conduct of blasting operations in an urban environment con- 44 stitutes an "ultra-hazardous" activity which subjects those 45 responsible for the blasting operations to absolute liability 46 in tort to all those suffering damage proximately caused by 47 the blasting, whether suffered directly or indirectly. 48 Galbreath vs. Engineering Construction Corporation, 273 N.E. 49 2d 121, 56 A.L.R. 3d 1002 (Ind. App. 1971) The court found 50 that the defendant should be found liable for all injuries 51 proximately caused by blasting, whether directly or indirectly 52 caused, and regardless of the degree of care exercised by the 53 defendant when conducting the blasting: 54 55 ABSOLUTE LIABILITY EXTENDS TO INJURY PROXIMATELY 56 CAUSED BY USE OF EXPLOSIVES, WHETHER INFLICTED 57 BY DEBRIS, CONCUSSION OR OTHERWISE 58 59 (1) It seems to us, however, that if by III60 direct concussion caused by a defendant's use 61 of explosives, a substance equally hazardous is 62 released, which substance in the ordinary 63 experience of man is likely to cause damage or 64 injury if unconfined and does so, we must hold Board of Works Minutes Cont'd. December 17, 1981 Page 4 1 the originator of the concussion responsible 2 for the foreseeable consequences. If, there- 3 fore, as the existing law in Indiana presently 4 requires, use of explosives is acknowledged as 5 extra-hazardous so as to impose absolute 6 liability for certain damage or injury prox- 7 imately caused thereby without regard to the 8 exercise of reasonable care, it is absurd to 9 reject such absolute liability for damage or 10 injury also proximately caused though not 11 immediately or directly so. (emphasis added) 12 13 So as to permit no misunderstanding of its ruling, the 14 court restated its ruling in the following way: 15 16 We now therefore hold that if acknowledged 17 extra-hazardous activity, e.g. , blasting 18 proximately causes damage, whether by direct 19 impact of debris or by concussion waves, or 20 otherwise, the actor is absolutely liable 21 for such damage without regard to his 22 exercise of reasonable care in the carrying 23 out of such activity. 24 25 The Board's permission to proceed with blasting under the 26 present circumstance could subject the City of Richmond to 27 liability in tort. But, then, the question becomes "Would 28 the City of Richmond be indemnified by the blaster's insurer?" 29 In an examination of the insurance policies tendered by Prator 30 Blasting, Inc. it appears that the requirements of the coverage 31 required by the Richmond Sanitary District have not been met. 32 In particular, the City of Richmond and Richmond Sanitary 33 District are not named as additional insured on the policy or 34 endorsement of a policy in my possession. Also, it appears 35 limit of coverage is only five hundred thousand dollars 36 ($500,000) and is aggregate for all claims. 37 38 It would appear to me that before the Board of Public Works • 39 and Safety can make an affirmative decision in authorizing and 40 directing the issuance of a permit for blasting, it should 41 satisfy itself with the following four matters: 42 43 1. That the permittee has met all the requirements 44 of Article 12 of the Fire Prevention Code, partic- 45 ularly Section 12.8, Use of Explosive Materials for 46 Blasting, and also Section 12.7, Transportation of 47 Explosive Materials, within the City of Richmond. 48 49 2. That the permittee comply with Section 12.4, 50 Bond Required for Blasting, which reads: 51 52 Before a permit to do blasting as required by the 53 provisions of Section 12.3a (3) shall be issued, 54 the applicant for such permit shall file a bond 55 deemed adequate in each case by the Bureau of 56 Fire Prevention, which bond shall become available 57 for the payment of any damages arising from the 58 permitted blasting. 59 60 3. That there be supportive evidence and docu- 61 mentation that the permittee has complied with 62 all points recited in the December 8, 1981 minutes 63 of the Sanitary Board. Here there is specific 64 reference to letters of November 18, 1981 and 65 December 9, 1981, copies of these letters are 66 attached and marked as Exhibit "C". �6 J Board of Works Minutes Cont'd. December 17, 1981 Page 5 1 4. That the granting of permission for test blast 2 in this instance does not insure permission to 3 perform any other blasting. 4 5 CONCLUSION 6 7 Accordingly, before approval of such blasting should be 8 granted or, if granted, it is incumbent upon, the permittee to 9 obtain the proper permit or permits from the City of Richmond III 10 and to insure that all blasting conforms with the requirements 11 as stipulated above in points one through three, inclusive. 12 13 Respectfully submitted, 14 15 /s/ Edward N. Anderson, Attorney 16 for the City of Richmond 17 . 18 Mr. Anderson entered into the record a copy of Mr. Hudson's letter. The 19 opinion refers to a test blast only and after that they must come back to the 20 Board and get another permit. Mr. Holden stated it is also his understanding 21 that this request. is- for a test blast: : He further stated he does not think 22 there will be any problem meeting-the fifty foot (50') requirement as he feels 23 there is enough area so they can be outside these limits. Mr. Hudson noted 24 the requirement is fifty foot (50') from railroad property and not the track. 25 26 Mr. Ryder moved that the Chief of the Fire Prevention Bureau of the City of 27 Richmond is authorized to issue the necessary permit or permits for a test 28 blast at Site #3 on property owned by P. and J. Beck• Realty, Inc. in accordance 29 with the Fire Prevention Code of the City of Richmond provided the Bureau of 30 Fire Prevention is satisfied that all the requirements, as stipulated and out- 31 lined in the City Attorney's opinion on this subject dated December 17, 1981, 32 have been fully and completely met, and further moved in addition thereto the 33 permittee obtain a bond in the amount of Five Million Dollars or the necessary 34 insurance as approved by the City Attorney, seconded by Mr. Webb. In response 35 to Mr. Hudson's question if setting off these explosives would be conducted 36 without first having the Sanitary District's approval complied with, Mr. 37 Meredith stated in his opinion the Sanitary -District's approval is a separate 38 approval and it is a requirement under the terms of their .contract with the 39 Sanitary District that they have the approval of the.Sanitary -District; and, 40 therefore, those must be met and--satisfied to the Sanitary District, which is 41 a part that is incorporated in the City Attorney's opinion and must be met 42 prior to the issuing of the permit by the Fire Chief. : On-unanimous voice 43 vote the motion was carried. 44 - 45 The Clerk will notify the utility companies of the film to be shown at 9:00 a.m. 46 Monday. 47 - 48 WEIGHTS & MEASURES MONTHLY REPORT FOR NOVEMBER 49 50 Mr. Ryder moved the report be approved as, submitted, : seconded- by.-.Mr. Webb 51 and on unanimous voice vote the motion was carried. , . . 52 53 UNSAFE BUILDING HEARING FOR 200-204 NORTH 8TH:- (CONT-'D. FROM 11-25-81) 54 55. . City Attorney Ed Anderson conducted the hearing. The defendant, Mr. Gardiner, 56 was present and was represented by Attorney-Bob Bever, who noted he also rep- 57 resents the First-National Bank. in this matter-.: .-This hearing is held pursuant 58 to Ordinance No. 100-1979, which adopted the unsafe building law. The Building 59 Commissioner has issued this order pursuant to Section 4 of that Ordinance. Mr. 60 Bever has received a copy of the order and the record shows that the order was 61 read at the last meeting on this matter. Mr. Bever stated they do not agree 62 with the findings and, since the issuance of the order, they have had discussion 63 with the Building Commissioner .and_have_presented an- agreement to the. Commissioner. 64 Mr. Roberts stated the agreement complies-with what he is. asking: to be done. • Board of Works Minutes Cont'd. December 17, 1981 • Page 6 1 ' The Clerk read the following agreement: ' • 2 _ . 3 AGREEMENT 4 • 5 To: Mr. Charles Roberts, Building Commissioner and others 6 to whom it may concern 7 From: Edward Gardiner 8 Re: C. W. Starr .Lot 101 (67.5' x• 132') 9 200-204.-North 8th Street _ : 10 Richmond, -IN 47374 • 11 12 WHEREAS, I am the present owner of the above described real 13 estate located in Richmond, Indiana; and, . 14 -- • . - 15 WHEREAS, certain problems exist upon:said property thereby 16 preventing it from complying with all state and local building 17 requirements, which problems previously .existed, but were unknown 18 to me at the time ofmy- purchase of the .property; and 19 20 WHEREAS, said problems have caused the Building Commissioner 21 of Richmond to issue an order requesting-the vacating 'o'f the des- 22 cribed premises; 'and' ' ' - t _ 23 _ 24 WHEREAS, it is my desire to bring the property into com- 25 pliance with all state and local requirements, yet !be able to • 26 perform the. same without undue economic:hardship, which would • 27 ' prevent the necessary. improvements, W I T N E S S E T H: 28 29 I, therefore; 'agree. 'in consideration for the modification 30 of the previously issued order to -an order requesting the repair 31 of the above described property to bringit:into compliance with 32 all building codes 'and- ordinances, pursuant:to local ordinance. : 33 § 98.03 (H) (4) , to the following: . . 34 .1. That all necessary improvements to the property will 35 be performed: upon'a rental unit by unit basis until- all nine 36 units are in'complaince with all -code-requirements. ' • 37 2. That such improvements will commence within thirty (30) 38 days from the date .of this agreement. 39 3. That'no_delay will. accur or time will pass between, the 40 - completion of •work on'o.ne,.unit and the commencement 'o.f improve- 41 - ments upon the next unit; - 1 _ . 42 _ 43 This agreement and commitment made this 17th day of 44 December, 1981. ' 45 46 /s/ Ed Gardiner 47 • 48 ' The difference between the order and this agreement is that the property does 49 not have to be-vacated-under-the agreement: Mr. :Bever stated they do agree 50 with the finding of the structure being:unsafe. . 51 52 Discussion was held on at what point the order would be modified. Mr. Anderson 53 suggested the record show that the Buildinig Commissioner has modified his order. 54 55 Mr. Ryder moved' to modify, the order to-vacate to a less stringent requirement 56 of rehabilitating the property:as 'indicated in the agreement. The motion died 57 for lack of a second. 58 . 59 Mr. Meredith moved that we find an:unsafe building 'at 200-204 No.rth. 8th Street 60 and that we affirm the amended-order issued by the Building Commissioner and 61 further moved that if. any violation of the agreement from Mr. Ed Gardiner to 62 ' Mr. Charles Roberts is found that immediately the Building Commissioner issue 63 a new order, seconded by Mr. :'Ryder and on unanimous voice vote the motion was 64 carried. do9 • Board of Works Mintues Cont'd. December 17 , 1981 Page 7 1 ADJOURNMENT 2 3 There being no further business the meeting was adjourned. 4 • 5 Donald E. Meredith 6 President 7 8 ATTEST: JoEllen Trimble 9 Clerk of the Board