Loading...
08-1186Substitute 11/OS/08 Council File # 08-ll86 Green Sheet # 3056853 RESOLUTION CITY OF SAINT PAUL, MINNESOTA a�� FIELD ZONING ORDINANCE 4 5 WHEREAS, Minn. Stat. § 473.608, Subd. (21) requires the Metropolitan Airports Commission 6(hereinafter, the "MAC") to establish a joint airport zoning board for the St. Paul Downtown Airport and to 7 operate such a board in compliance with Minn. Stat. § 360.063; and 8 9 WHEREAS, pursuant to Minn. Stat. § 473.608, Subd. (21), a joint airport zoning board (hereinafter, the 10 7AZB) was established for the St. Paul Downtown Aitport and that the JAZB includes the City as a 11 member; and 12 13 WHEREAS, in connection with its establishment, the JAZB for the St. Paul Downtown Airport desires to 14 develop a"St. Paul Downtown Airport Zoning Ordinance" (hereinafter, the "Ordinance") to govern land 15 use and the permitted height of structures, vegetation and other potential obstacles in areas proximate to the 16 St. Paul Downtown Airport; and 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 WHEREAS, in exchange for the City's agreement to amend its zoning ordinance and comprehensive plan, the MAC has agreed to indemnify and hold hannless the City and any City employee who administers the Ordinance from legal liability that may arise out of the administration and enforcement of the Ordinance; and WHEREAS, the MAC has prepared the attached Indemnification and Cooperation Agreement Regarding the St. Paul Downtown Airport Joint Airport Zoning Board and the St. Paul Downtown Airport Zoning Ordinance for consideration by the City which recites the details of the Indemnification and Cooperation Agreement; and WHEREAS, staff from the City's department of public works who participated in the creation of the said Agreement recommends that participation in the JAZB is important and in the best interests of the City and that entering into the said Agreement with the MAC, as part of participating in the JAZB, is also in the best interests ofthe City; NOW, THEREFORE, BE IT RESOLVED, in exchange for the MAC's indemnification of the City, for matters arising from the administration and enforcement and in connecrion with City actions and obligations involving the Ordinance and far participating in the JAZB, the Council of the City of Saint Paul hereby approves the attached Indemnification and Cooperation Agreement Regarding the St. Paul Downtown Airport Joint Zoning Board and the St. Paul Downtown Airport Zoning Ordinance; and RESOLUTION TO APPR6VE Il�TDMENIFICATION AND COOPERATION AGREEMENT REGARDING HOLMAN F'IELD JOINT AIRPORT ZONING BOARD AND THE HOLMAN 68-I1� 42 BE IT FURTHER RESOLVED that the Council directs the appropriate City officials to take the necessary 43 steps to enter into and implement the objectives of said Agreement. Bostrom Carter Hams Helgen Requ� by Department oE iE.� e.e c �[�A.cr � By: Approved by the Office of Financial Services Stark � BY� Thune ,/ Approved b ity Attorney By: ����✓G `7 —28' O 8 Adopted by Council: Date ���Q��f � Approv y y r for S 'on t Council � Adoption Certified by Council Secretary gy; g � . Approved a or: Dat � 6� By: � Green Sheet Green Sheet d�i��� Green Sheet Green Sheet Green Sheet Green Sheet � DepartmentlOfficelCouncil: Date Inifiated: PW_PublicWorks 16-JUL-08 Green Sheet NO: 3056853 Contact Person & Phone: Deoartment Sent To Person InitiaVDate Ailen Loveiov � o btic Works 0 26fr6226 1 blic Works De artment Director Assign Z 'tyAnome 0 Must Be on Councii Agenda by (DaM): Number ; avor's 016ce Ma or/Assis�ant For Routing 4 ooncil � Doa Type: RESOLUTION Order 5 Clerk (.ti Clerk E-Document Required: N DocumentCOntact: A��QnLovejoy ConWCt Phone: 266-6226 Total # of Signature Pages _(Clip All Locations for Signature) Action Requested: Approve Indemnification and Cooperation Agreement regarding Holman Field Joint Airport Zoning Board and the Holman Field Zoning Ordinance Recommendations: Approve (A) or Reject (R): Personal Service Contracts Must Mswer the Following Questio�s: Planning Commission 1. Has this person/firm ever worked under a contract for this department? CIB Committee Yes No � Civil Service Commission 2. Has this person/�rm ever been a city employee7 Yes No 3. Does this person/firm possess a skill not normally possessed by any current city employee? Yes No Explain all yes answers on separote sheet and attach to green sheet. Initiating Problem, Issues, Opportunity (Who, What, When, Where, Why): In order to participate in the MSP Joint AirporC Zoning Board process, the participa6ng cities (South Sk Paul, West St. Panl, and Saint Paul) desire to establish indemnification for individual staff members and the entities they represent on [he Joint Airport Zoning Board. The work of the Board is to amend the Zoning Ordinance adopted in 1984 that restrict the height of structures and objects of natwa] growth and otherwise regulates the use of property in the vicinity of MSP. AdvanWges IfApproved: City can fully pazticipate in developmen[ and implemen[ation of the MAC Zoning Code around the MSP, while having some protection from prosecution. DisadvanWges If Approv¢d: None DisadvanWges If Not Approved: Unnecessarily exposes the Ciry to higher liabiliry. Total Amount of Trensaction: CostlR¢venue Budgetetl: Funding Source: �+ctivity Number: Financial Information: (Explain) ' November 12, 2008 12:43 PM Page 1 Council File # Dg - /��� Green Sheet #3056853 by 1 CITY RESOLUTION MINNESOTA TO APPROVE INDEMN�ICATION AND COOPERATION 2 AG MENT REGARDING THE WOLD-CFIAMBERLAIN FIELD JOINT 3 ORT ZONING BOARD AND THE MSP ZONING ORDINANCE 4 5 WHEREAS, Minn. tat. § 473.608, Subd. (21) requires the Metropolitan Airports Commission 6(hereinafter, the "MA ") to establish a joint airport zoning board for the St. Paul Downtown Airport and to 7 operate such a boazd in ompliance with Minn. Stat. § 360.063; and 9 10 11 12 13 14 15 WHEREAS, pursuant to Mi . Stat. § 473.608, Subd. (21), a joint airport zoning boazd (hereinafter, the JAZB) was established for the t. Paul Downtown Airport and that the JAZB includes the City as a member; and WHEREAS, in connection with its tablishment, the JAZB for the St. Paul Downtown Airport desires to develop a"St. Paui Downtown Airpo oning Ordinance" (hereinafter, the "Ordinance") to govem land use and the permitted hei�t of structure vegetation and other potential obstacles in azeas proximate to the 16 St. Paul Downtown Airport; and 17 18 WHEREAS, in exchange for the City's agree ent to amend its zoning ordinance and comprehensive plan, 19 the MAC has agreed to indemnify and hold h ess the City and any City employee who administers the 20 Ordinance from legalliability that may azise out o the administration and enforcement of the Ordinance; 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 .,"5i�.1 WHEREAS, the MAC has prepazed the attached Inde 'fication and Cooperation Agreement Regarding the St. Paul Downtown Airport Joint Airport Zoning Bo and the St. Paul Downtown Airport Zoning Ordinance for consideration by the City which recites the tails of the Indemnification and Cooperation Agreement; and WHEREAS, staff from the City's department of public warks w participated in the creation of the said Agreement recommends that participation in the JAZB is impo and in the best interests of the City and that entering into the said Agreement with the MAC, as part of parti ' ating in the JAZB, is also in the best interests of the City; NOW, THEREFORE, BE IT RESOLVED, in exchange for the MAC's in mm matters arising from the administration and enforcement and in connection 'th obligations involving the Ordinance and for participating in the JAZB, the Co Paul hereby approves the attached Tndemnification and Cooperation Agreement Downtown Airport Joint Zoning Boazd and the St. Paul Downtown Airport Zon fication of the City, for City actions and �il of the City of Saint E�egarding the St Paul n�rdinance; and DRAFT Mav 26, 2008 68 - llBCo �i�.��un�i�s .��irs��.s:�ciiz�r� � � _ ����i����i�cr� REGARDING THE ST. PAi3L DOWI�TOWN AIRPORT JOINT AIRPORT ZONiNG BOARD AND THE ST. PAUL DOWNTOWN AIRPORT ZO1vING ORDINANCE This Agreement is made this _ day of , 2008, by and between the Metropolitan Airports Commission ("MAC"), the Cities of St. Paul, South St. Paul, and West St. Paul (collectively "the Cities") and Natalio Diaz, an individual ("N. Diaz"). ��x�Y3�7 A. The parties to this Agreement aze ail of the members of the St. Paui Downtown Airport Joint Airport Zoning Board ("the JAZB") formed pursuant to the authority of Minn. Stat. § 360.063. N. Diaz was appointed by the other members as Chair of the Board pursuant to the authority ofMinn. Stat. § 360.063, subd. 3(b). B. Under the provisions of the Ordinance, an employee of each of the Cities is designated as the Zoning Administrator who is responsible for administering and enforcing the Ordinance for lands located within each respective City. C. The JAZB is considering adoption of an Ordinance ("the Ordinance") that, if formally proposed by the JAZB, must be approved by the Commissioner of the Minnesota Department of Transportation ("the Commissioner") and adopted by the JAZB before it becomes effective. D. If the Ordinance is adopted by the JAZB in a form acceptable to MAC, MAC desires that each of the Cities amend its respective comprehensive plan and zoning code to require compliance with the Ordinance as an appendix to its zoning code. MAC also desires that an ennployee of each City act as the Zoning Administrator to administer and enforce the Ordinance within its respective boundaries. E. The Cities aze willing to amend their respective comprehensive plans and zoning codes and to administer and enforce the Ordinance within their respective boundaries. The Cifies desire, however, to be protected against possible legal liability tl�ax may arise from their doing so. F. N. Diaz desires to be protected against possible legal liability that may arise from serving as Chair of the Boazd, from actions talcen by the Board and by actions taken by the Cities to amend their respecUve comprehensive plans and zones codes and to administer the Ordinance. AGREEMENT In consideration of the mutual promises and consideration set forth herein and other good and valuable consideration, the receipt and sufficiency of which is hereby aclaiowledged, the parties, intending to be legally bound, agree as follows: 1. Adoption Of Ordinance And Effecfiveness: After the second pnblic hearing on the Ordinance, the JAZB shall send its proposed final version of the Ordinance to MAC. The MAC Boazd of Commissioners shall either approve the proposed final draft or respond by stating the changes to the Ordinance needed for this Agreement to be acceptable to the MAC. If the JAZB changes the Ordinance as set forth by the MAC $oazd of Comxnissioners and adopts the Ordinance as ckanged, and if such Orclinance is acceptable to the Commissioner of the Minnesota Department of Transportation, this Agreement sha11 become effective immediately; provided it has been executed by MAC and the Cifies. 2. Indemnificafion Of Cities: In consideration of a City's (i) amendment of its comprehensive plan to show the azeas afFected by the Ordinance and to guide land uses in those 2 pX - (lK lo areas in conformance with the Ordinance, (ii) amendment of its zoning code to incorporate therein a provision requiring compliance with the Ordinance and to add thereto as an appendix the Ordinance and (iii) designation of one of its employees to act as the Zoning Administrator to admuuster and enforce the Ordinance within the City's boundaries, MAC agrees that, subject to the other provisions of this Agreement, it will indemnify and hold harmless: a. the City; b. any person who serves or has served as the City's representative at meetings of the JAZB; and c. any officer, empioyee or agent of the City, other than an attorney employed or retained by the City, who may hereafter be responsible for or participate in administering or enforcing the Ordinance within the City's boundaries, (collectively, "Indemnified Parties" and individually "an Indemnified Party") from and against any and all losses, liabilities, obligations, costs, expenses, judgments, settlements or other damages (including reasonable attorneys' fees and expenses and reasonable costs of investigating or defending any claim, action, suit or proceeding or of avoiding the same or the imposition of any judgment or settlement) suffered by the Indemnified Pariy resulting from or arising out of any act of that Indemnified Pariy in connection with the consideration and adoption of the Ordinance by the JAZB, the amendment of its comprehensive plan to show the areas affected by the Ordinance and to guide land uses in those areas in conformance with the Ordinance, the amendment of its zoning code to require compliance with the Ordinance, the inwrporation of the Ordinance as an appendix to its zoning code and administration or enforcement of the Ordinance by the City. 3 3. Indemnification Of N. Diaz: In considerafion of N. Diaz's service as the Chair of the JAZB, MAC agrees that, subject to the other pzovisions of tlris Agreement, it will indemnify and hold hamiless N. Diaz from and against any and all losses, liabilifies, obligations, costs, expenses, judgments, settlements or other damages (including reasonable attomeys' fees and expenses and reasonable costs of investigating or defending any claim, action, suit or proceeding or of avoiding the same or the imposition of any judgment or settlement) suffered by N. Diaz resulting from or arising out of any act of N. Diaz as Chair o£the JA7.B, in connection with the consideration and adoption of the Ordinance by the JAZB or out of the acts of the Cities to amend their comprehensive plans to show the azeas affected by the Ordinauce and to guide land uses in those azeas in conformance with the Ordinance, to amend their zoning codes to require compiiance with the Ordinance, to incorporate the Ordinance as an appendix to their zoning codes or to administer or enforce the Ordinance. Therefore, for the purposes of this Agreement, N. Diaz shall also be an Indemnified Parry. 4. Limitations And Eaclusions: MAC will not indemnify an Indemuified Parry with respect to liabilities or costs zesulting from or arising out o£ a. a failure by the Indemnified Party or an official, employee or agent of the Indemnified Parry to follow the procedures established by the Ordinance, by the comprehensive plan or zoning code of the respective City or by applicable state law in performing any act as to which indenmification would otherwise be available under this Agreement; b. the gross negligence or willful misconduct of an Indenmified Pazry or an official, employee ar agent of that Party in performing any of the acts as to which indemnification would otherwise be available under this Agreement; 0 6�-1 /�� c. actions involving self-dealing or conflict of interest by the Indemnified Party or an official, employee or agent of that Party; or d. actions of any individual (whether or not that individual is an Indemnified Parry) not performed in an official capacity as a representative of the City of which the individual is an official, employee or agent and in direct performance of the individual's duties. 5. Notice Of Claim: If an Indemnified Party receives notice of a claim or of the commencement of an action or proceeding with respect to which the Pariy believes MAC is required by this Agreement to provide indemnification ("Claim"), the Party must give written notice thereof to MAC wathin 21 calendar days if the Claim is not asserted in a formal complaint in a legal proceeding, or within 10 calendar days if the Claim is asserted in such a formal complaint ("Notice of Claun"). The failure to give Notice of Claim within the time specified in this secfion shall relieve MAC of its obligations under this Agreement if in MAC's reasonable judg�nent the failure is materially prejudicial to MAC's ability to negotiate, settle or defend the Claim. b. Assumption Or Rejection Of Defense: Within 10 days after receiving a Notice of Claim in accordance with section 5 of this Agreement, MAC must notify the Indemnified Pariy providing the Notice of Claim either: a. that MAC will assume complete control of the negotiation, settlement and defense of the Claim and will be responsible for the entire amount of any costs incurred in negotiating, settling and defending the Claim, including any amount required to be paid in settlement of the Claun or in satisfaction of a fmal judgment, after the conclusion of any appeals, in a lawsuit based on the Claim. MAC must also notify the Indemnified 5 Party of the name and address of the counsel whom if has assigned or retained to perform MAC's duties under this section. Thereafter, except with the consent of the Indeumified Party, MAC may not entez into any settIement of fhe Claim that does not include, as an unconditional term of such settlement, receipt from the claimant of an unconditional release to the Indemnified Party from all liability with respect to such Claim; or b. that the Claim is not a claim for which indexnnification is required under this Agreement and that MAC therefore declines to provide indemnification. In such a case, the Indemnified Party may itself control the negotiation, settlement and defense of the Claim at its own expense and may select counsel of its own choice for that purpose, and MAC must cooperate with the Indenuiified Party in the respects described in sections �.a, 7.b and 7.c of this Agreement as if MAC were an Indemnified Party. 7. Cooperation Of The Indemn'�t"ied Party: As a condition of MAC's obligafion to indemnify and hold hanniess, an Indemnified Par[y and any City with which an individual Indemnified Party is associated: a. must make available to MAC and its counsel all of its books, records and documents that MAC or its counsel determines to be necessary for the defense of any Clann for which indemnification is sought; b. must cooperate fully with MAC to secure any information or testimony that MAC or its counsel determines to be relevant or material to the Claun; c. must execute a11 necessary pleadings or other documents in any litigation arising out of, or with respect to, any Claim when requested to do so by MAC or its counsel; provided however, that an Indemnified Parry may have counsel of its own 0 �g � !l810 choice review any such pleadings or documents, provided that MAC will not be liable for any expenses relating to an Indemnified Party's consultfng such separate counsel; and d. must not settle or compromise any Claim for which MAC has undertaken the Indemnified Party's defense without the prior written consent of MAC. 8. Terminafion Of Indemnificafion ObligaHon: MAC's obligation to provide indemnification pursuant to section 2 of this Agreement will terminate: a. as to a City and any Indemnified Party associated with that City, if the City, having amended its respecUve comprehensive plan and zoning code as required by section 2 of this Agreement as a condition of its becoming eligible for indemnification, thereafter further amends its comprehensive plan or zoning code so as to change materially the provisions previously adopted pursuant to section 2 of this Agreement; b. as to any Indemnified Party, if the Indemnified Pariy or an City with which an individual Tndemnified Party is associated fails to perform any of its obligations under section 7 of this Agreement and does not correct such failure within 30 days after being given notice by MAC that MAC will cease to provide indemnification if the failure is not conected; c. as to any Indemnified Party, if the Indemnified Party or an City with which an individual Indemnified Party is associated fails to perform its obligations under section 5 of this Agreement and if such failure is materially prejudicial to MAC's ability to negotiate, settle or defend the Claim; or d. as to any Indemnified Party, if, after MAC has assumed responsibility for a Claim under section 6.a of this Agreement, MAC or a court or other adjudicating City subsequendy detemunes that the Claim is of a type described in section 4 of this 7 Agreement, as to which no indemnification is required, in which case MAC must prompUy norify the Indemnified Party That it will no longer provide indemnification. MAC agrees to notify an Indemnified Party promptly if MAC detennines that one of the Limitarions or Exclusions in section 4 may apply. In the case of a termination pursuant to section 8.d of this Agreement, MAC shall be entitled to reimbursement of its costs incurred pursuant to section 6.a of this Agreement, and upon receipt of an itemized bill for those costs from MAC, the Indenmified Party shall promptly reimburse MAC for the billed costs. 9. Separate Represenhation Of Indemnified Pariy: If an Indemni&ed Party reasonably determines that there may be a conflict between the posifions of MAC and the Indemnified Pariy in connection with the defense of a Claim, or that there may be legal defenses available to the Indemnified Party different from or in addition to those being asserted on its behalf by MAC, counsel for the Indemnified Party may conduct, at the Indemnified Party's own expense and at no expense to MAC, a defense to the e�ent that the Indemnified Parry's counsel believes necessary to protect the Indemnified Party's interests. In any evenY, the Indeu�nified Party sha11 be responsible for a11 fees and expenses of its sepazate counsel arising from or related to the defense of a Claun far which MAC has assumed responsibility under section 6.a of this Agreement I0. Resolufion Of Disputes Between Parties: If a dispute arises between MAC and an Indemnified Parry concerning either parry's compliance with or obligations under this Agreement and the parties are unable to resolve the dispute by negotiation or other procedure (including mediation or arbitration) on which the parties may agree at tfie time, any Iawsuit E3 D$-IlSlo arising from the dispute must be filed in the Minnesota District Court far the Fourth Judicial Dishict (Hennepin County). 11. Notice: Any norice, direcrion, or instrument to be delivered hereunder shall be in writing and shall be delivered to the following: To MAC: Metropolitan Airports Commission Attn: Thomas W. Anderson, Esq. General Counsel 6040 28`� Avenue South Minneapolis, MN 55450-2779 To City of St. Paul: City of St. Paul Attn: Peter Warner Assistant Ciry Attorney 400 City Aall, 15 West Kellogg Blvd St. Paul, MN 55102 To City of South St. Paul: To City of West St. Paul: To Natalio Diaz: City of South St. Paul Attn: City of West St. Paul Natalio Diaz Such notice sha11 be either (i) personally delivered (including delivery by Federal Express or other overnight courier service) to the addresses set forth above, in which case it shall be deemed delivered on the date of delivery to said offices, or (ii) sent by certified U.S. Mail, return receipt requested, in which case it shall be deemed delivered on the date shown on the receipt unless delivery is refused or delayed by the addressee, in which event it sha11 be deemed delivered on the 3` business day following deposit in the U.S. Mail. Parties may change to whom notice shall be given by giving notice in accordance with this section, provided that no party may require notice to be sent to more than two addresses. � Any individual who claims entitlement to indemnification under this Agreement must include with the Notice of Claim required by section 6 of this Agreement the address to which any notice, direction or insh•ument under this paragraph should be delivered to that individual. 12. Capfions: The section headings in this Agreement aze for convenience of reference only and sha11 not define, lunit or prescribe the scope or intent of any provision of this Agreement. 13. Construcfion: The rule of strict construction shall not apply to this Agreement. The Agreement shall not be interpreted in favor of or against either MAC or any Indemnified Parry merely because of their respective efforts in preparing it. 14. Goveming Law: This Agreement shall be governed by the laws of the State of Minnesota. 15. Complete Agreement; Amendment: This Agreement sets forth the complete agreement of the parties with respect to its subject matter. It may be amended, modified or waived as between MAC and any Indemnified Party only by a writing signed by both of them. 16. Signatures: This Agreement may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original, and such counterparts together sha11 consritute and be one and the same instniment. Each signatory below represents and warrants that he or she is expressly authorized to enter into this Agreement on behalf of the Party for which that person is signing. 10 b8-ll�� INDENINIFICATION AND COOPERATION AGREEMENT REGARDING THE ST. PAUL DOWNTOWN AIRPORT JOINT AIRPORT ZOIVING BOARD AND THE ST. PAUL DOWNTOWN AIRPORT ZONiNG ORDINANCE SIGNATURE PAGE IN WIT'NESS WHEREOF, the undersigned have caused this Indemnification and Cooperation Agreement to be executed for Dated: : Title: Witness: Title: IN WITNESS WHEREOF, the undersigned have caused this Indemnification and Cooperation Agreement to be executed for Dated: By: Tit1e: Witness: Title: 11 ��,�ig1� 1� zi zoos City Council President Kathy Lantry and Members of the Saint Paul City Couiicil City Hall, Third Fioor Saint Paul, MN 55102 RE: Indemnification Agreement for City Participafion in the St. Paul Downtown Airport Joint Zoning Board Dear Council President Lantry and Members of the City Council: The State Legislature mandates tYiat the City participate in the Joint Airport Zoning Boazd (JAZB) governing land regulations around the St. Paul Downtown Airport (Holman Field). Such regulations are intended to ensure safety of those on the ground as well as those in aircraft using Holman Field. A new ordinance will be developed by the 7AZB for considerafion by the City and is intended to "...regulate and restrict the height of structures and objects of natural growth, and otherwise regulate the use of property in the vicuuty of..." Holman Field. Such regulations will be drafted over the next six months or so and sent to the City Council for final adoption as a portion of the City's Zoning Code. However, before such regulations can be developed and negotiated, the cities involved and the Metropolitan Airports Commission (MAC) must agree upon an approach which indemnifies the cities and individual staff developing, and ultimately implementing, such regulations. Using the work done in 2002, the MAC is suggesting the same approach to indemnificarion that is in place for MSP. The City signed such an agreement on January 22, 2003 (Res. 03-40). Such indemnification protects the City and its representatives from legal action stemming from action of the JAZB. Specifically, the agreement obligates the City to: • Make available to MAC all books, records and documents that MAC needs for defense of any claim for which indemnification is sought; • Cooperate fully with MAC to secure any information or testimony that MAC determines to be relevant to any such claims; • Execute all necessary pleadings or other documents in any litigation with respect to such claims, provided that the Indemnified Party may have counsel of its ocvn to review such pleadings; and • Must not settle or compromise any ctaim for which MAC has undertaken the City's defense without prior written consent of MAC. Attached for your consideration is a draft City Council Resolution and the proposed Indemnification and Cooperation Agreement with the MAC. Requested Acfion: Approve Yhe Resolution allowing the City to enter into the Indemnificafion and Cooperation Agreement. Thank you for your consideration. Sincerely, Chris Coleman, Mayor