Managing Winter Operations Workshop

Transcription

1 Managing Winter Operations Workshop Assigning Liability to Contractors October 20, 2016

2 Brampton Quick Facts: Brampton is Canada s second fastest growing City. We are Canada s 9th largest city, the 4 th largest in Ontario and the 3 rd largest in the Greater Toronto Area. The Province of Ontario has designated Brampton as an urban growth area and by 2031, the City s population is expected to grow to 725,000. Estimated 2016 Population - Over 600,000 Major Highways Serving Brampton Hwy 407, Hwy 410, Hwy 401, Hwy 403, Hwy 427 2

3 Total Number of Claims Total Number of Claims By Department Buildings & Property Management City Council City Manager Community Services Corporate Services Finance & Info Services EDO & Communications Planning, Design & Development 734 Transit Works & Transportation Total: 2,

4 Total Number of Claims for Works Total Number of Road Related Claims Sidewalk Road Traffic Other 496 Total:

5 Today s Challenges: Doing more with less and stretched resources Increased number of claims against municipalities Higher expectations of customer service levels to residents Severe weather events are becoming more prevalent Court leniency to plaintiffs Joint and Several Liability Deep Pocket Syndrome Creativity of plaintiff s counsel Managing numerous contracted services 5

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7 Let the Claims Begin Trends Immediate notice of serious motor vehicle accidents Any and all winter road operations More severe weather events Traffic signal timings Street lighting allegations Deliberately vague notice letters (10 day notice) Pushback from contractors insurers to defend 7

8 Starts with Contractual Requirements Scopeof contract is critical Clearly defined roles and responsibilities (call outs, response timelines, documentation on both sides etc.) Must be detailed and concise Keep the number of Change Orders to a minimum Strong IndemnificationClause Detailed Insurance Requirements (insurance is a form of risk transfer) Municipality must be added as an additional insured Certificates of Insurance are required for the full term of the agreement and any associated warranty periods 8

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10 Certificates of Insurance Provides evidence of the limits and type of insurance coverage, policy number and expiry date Do not allow amendments (do not provide word format) Ensure the certificate is received before work begins Must match the underlying contractual obligations Dates must always be current Financially stable insurer (i.e. minimum rating of B+) Must be signed by an authorized representative 10

11 Duty to Defend If the City is added as an additional insured to the contractor s policy, the contractor s insurer is required to indemnify and hold harmless the City against all claims for damages or injury to persons resulting from any act or omission of the contractor. This should be sufficient to have the contractor s insurer to take over the City s defense. If not, a motion can be brought to do so and if successful, the City should be awarded costs. The motion process is expensive and time consuming. The contract should be tight and not leave room for interpretation. 11

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13 Selection Criteria Can the contractor comply with the performance schedule? Does the contractor have the financial resources to complete the contract (multi-year commitment)? Is there a satisfactory performance history? Is there a record of integrity and business ethics (reputation risk)? Do the contractor s employees have the required skills and experience? Does the contractor have the technical equipment and resources to meet your expectations? 13

14 Selection has been made, now what? Build a strong relationship with your contractors Open and ongoing communication Provide an orientation session at the beginning of each winter cycle Reiterate specificroles and responsibilities of each party Have you become a constructor? o An owner can inadvertently (or purposely) make themselves a constructor depending on the amount of control or coordination they exercise over the work. o Higher levels of liability apply to a constructor under the Occupational Health and Safety Act. 14

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16 Claims Handling Claim is received Reviewed for specific location and contractor(s) involved Certificate of Insurance is reviewed for timing Contractor(s) are notified and their insurers are as well City looks for a duty to defend and possibly a duty to indemnify Both depend on the pleadings being made (references accumulation of snow and/or ice or black ice etc.) Negligence is typically pled 16

17 Claims Handling The terms of the agreement are critical at this point Reference in the contract should be for carrying out various winter maintenance activities, including snowplowing and sanding on. A coordinator (city or contractor) is usually responsible for supervision of snow and ice control and to take appropriate action to correct potential hazardous conditions. The City typically monitors weather conditions, patrols the roads when a forecast of snow, freezing rain or ice conditions and is responsible for the call out of the contractors. 17

18 Wrap Up Contractual obligations are the key to having someone provide you with a defense and/or indemnification Scope is critical and should be as detailed as possible Insurance mustbe in place Don t jeopardize the ongoing relationship with your contractor Decisions are typically made by the insurer, not the contractor Ongoing communication is key to managing the expectations of all parties ALWAYS EXPECT THE UNEXPECTED! 18

19 Thank you for your time! QUESTIONS?