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