CR 91-115 Mainstreet Variance - Hold Harmless Cause
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May 16, 1991
council Report: 91-115
MAINSTREET VARIANCE
HOLD HARMLESS CLAUSE
Proposed Action.
Staff recommends the following motion: Move that Council adopt
Resolution 91-70, Resolution for Adoption of "Hold Harmless" Clause As
Condition to Variance -Mainstreet Project 90-04 (S.A.P. 132-141-06).
Overview.
At it~ May 15, 1990, meeting, Council adopted a resolution requesting
a varJ.ance from State Aid standards concerning road width on
Mainstreet. In.a letter dated July 10, 1990, Commissioner Leonard
Levine of the .:Minnesota Department of Transportation granted the
variance conditional upon receipt of an additional Council resolution
that in effect would add a "hold harmless" clause to the variance.
Primary Issues to Consider.
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Is the variance needed?
The variance is needed because MN/DOT has not wavered from
its original requirements of a minimum 48 foot street width
with two traffic lanes and two parking lanes between
intersections. The requirement fora minimum 36 foot, two
traffic lanes and no parking at intersection nodes also
still stands.
o Is it prudent for the City to indemnify the state of
Minnesota?
The League of Minnesota Cities has taken up the cause in
opposition to MN/DOT'srulerequiringthe"hold harmless"
featui:'ein variances. In particular, the League has had
concerns about the rule as it extends immunity to the state
as a whole. A public hearing was conducted and resulted in
no changes in the MN/DOT rule., The City is therefore
compelled to adopt the rule if it wishes to have a
Mainstreet Project.
Supporting Information.
o Letter from Commissioner Levine granting variance
o Letter from League of Minnesota cities
o Resolution 9l-70
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Engineering Superintendent
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Minnesota Department of Transportation
Transportation Building,
SL Paul, MN 55155
July 10, -1990
Robert Toddie
Hopkins City Engineer
TKDA and Associates
2500 Am. Nat'l Bank Building
st. Paul, MN 55101
In reply refer to:
Request for Variance,
S.A.P. 132-341-
CITY OF HOPKINS
RECEIVED
JUL 1 1 1990
T.K.D.A.
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Dear Mr. Toddie:
. Upon the advice ,of a Variance Committee appointed expressly for
the purpose of recommending to me the validity of the City of
Hopkins' request for a variance from Minnesota Rules 8820.99l2,
so as to permit a street width of 46 feet, two traffic lanes and
two parking lanes, instead of the required minimum of 48 feet,
two traffic lanes and two parking lanes between intersections
and to permit a. street width of 32 feet, two traffic lanes and
no parking lanes, instead of the required minimum of 36 feet,
two traffic lanes and no parking lanes, at intersection node
areas, I hereby GRANT the,variance.
The variance is conditional upon receipt of a resolution by the
city Council of Hopkins that indemnifies, saves, and holds
harmless the state of Minnesota and all its agents and employees
of and from any and all claims,' demands, action, or causes of
actions of any nature or character arising out of or by reason
of, in any manner, the'reconstruction of MSAS341 (Main Street)
from Shady Oak Road to 5th, Avenue street in any other manner
than as in accordance with Minnesota Rules 8820.9912 and further
agrees to defend at their sole cost and expense any action or
proceeding commenced for the purpose of asserting any claim of
whatsoever character arising as a result of the granting of this
variance.
.X:1Y,
. LEONAJD ~1: LEVINE
Commi sioner
An Equal Opportunity Employer
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183 University Ave. East
St. Paul, MN 55101.2526
(612) 227.5600 (FAX: 221.0986)
League of Minnesota Cities
July 25, 1990
TO:
city engineers
Sarah Hackett ,~
Legislative Analyst
FROM:
RE:
MNDOT proposed rule on variance liability
On July 9, 1990 (state Register publication) the Minnesota Department
of Transportation proposed rule changes which pertain primarily to
Rule 8820. In particular, this rule would change the legal
responsibility of municipal state-aid streets which are granted
variances. It would require a city receiving a variance to assume
full legal responsibility for the construction changes allowed by the
variance. Copies of the proposed rule and the "statement of facts
establishing need and reasonableness of rules" (SONAR) are enclosed
for your review. '
Under the ,proposed rule, cities would be required to pass a
resolution exempting the state from legal responsibility before the
commissioner of transpo~tation would give final approval for the
variance. The state would retain its funding agreement. The
resolution would have to state that any claims against the road due
to the variance would be the sole financial responsibility of the
city.
The proposed rule states:
"The commissioner shall require a resol~tion by the recipient of the
variance that indemnified, saves, and holds harmless the state and
its agents and employees of and from claims, demands,actions, or
causes of action arising out of or by reason of the granting of the
variance. The recipient of the variance shall further agree to
defend at its sole cost and expense any action or proceeding begun
for asserting any claim of whatever character arising as a result of
the granting of the variance."
Ir-
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The League does not dispute the language of the rule which proposes
to hold employees and agents of the state harmless from legal
prosecution in the case of a variance the state grants. The variance
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committee, which includes city officials as members, is an example of
an ,agent of the state which would gain immunity from prosecution
under this rule. This is the body which receives requests for
variances from cities. As many cities know from actual experience,
variances are carefully studied and judiciously granted.
The League, however, has concerns about the advisibility of the
portion of the rule which extends this legal immunity to the state as
a whole. The Commissioner of Transportation would continue to have
final review authority for the exceptions which the variance
committee grants. Such oversight authority would seem to negate the
need for the state to abandon shared responsibility for roads
constructed with state funds.
Another concern is that the portion of the proposed rule which shifts
legal responsibility would apply regardless of the extent of the
variance granted. The rule would treat small and minor alterations
to existing rules the same as substantial exceptions from the
state-aid requirements.
The 30-day comment period to request ,a public hearing on the rule
will end on August 9, 1990. A minimum of 25 people must request the
public hearing. To request a hearing, on this rule, submit your
name, address, th~ portion of the rule you wish to address the reason
for the request, and any changes proposed to,:
Dennis Carlson, Director, office of State Aid, 420 Transportation
Building, st. Paul, MN 55155
If no hearing is requested, these rul~ changes will be adopted
automatically.
The League is interested in your reactions to this rule. Please
notify Sarah Hackett, LMC legislative analyst, if you have concerns
about this proposed rule or are requesting a MNDOT hearing.
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CITY OF HOPKINS
Hennepin County, Minnesota
RESOLUTION NO. 91-70
RESOLUTION FOR ADOPTION OF "HOLD HARMLESS" CLAUSE
AS CONDITION TO VARIANCE - MAINSTREET PROJECT 90-04
(S.A.P. l32-141-06)
Whereas, the City Council of the City of Hopkins, Minnesota, requested
a variance concerning street width during the reconstruction of
Mainstreet, and
Whereas, such variance was granted by the Commissioner of
Transportation's office on July 10, 1990, conditional upon the
City Council adoption of a resolution that indemnifies the state
and its agents and employees,
NOW, THEREFORE, BE IT RESOLVED BY the City Council of the City of
Hopkins, Minnesota:
The following language shall be a condition to the Mainstreet
variance granted July 16, 1990:
"The City of Hopkins hereby indemnifies, saves, and holds
harmless the state and its agents and employees of and from
claims, demands, actions" or causes of action arising out
of or by reason of the granting of the variance. The
recipient of the variance shall further agree to defend at
its sole cost and expense, any action or proceeding begun
for asserting any claims .of whatever character arising as a
result of the granting of the variance."
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Adopted by the city Council of the City of Hopkins this 2lst Day of
May, 1991.
By
Nelson W.Berg, Mayor
ATTEST:
James A. Genellie, City Clerk
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