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HomeMy WebLinkAboutPublic Works Committee Minutes 07.08.2002 MINUTES PUBLIC WORKS COMMITTEE JULY 8, 2002 5:04 P.M. COUNCIL CHAMBERS MEMBERS PRESENT: Chairman Gay Easton Mark Mace Lorraine Craig John Oakes Ed Steffans Dan Mears Bill Staudinger David Siljestrom OTHERS PRESENT: Steve Klotz Alan Hulse, MMIA Alan Hulse~ Montana Municipal Insurance Authority {MMIA) report - liabilities for parks Chairman Easton introduced Alan Hulse, of the Montana Municipal Insurance Authority, to the committee and then introduced the committee members to Mr. Hulse. Gay stated that the goal was to get the Riverside Park leases completed and to properly cover the liabilities at the parks. Gay, Steve, Larry, and Alan went to the city parks today to evaluate the possible liabilities. Alan Hulse has been affiliated with the MMIA since 1992, when he began working as a liability claims adjuster for the claims administration company that contracted with MMIA to handle city claims. He was a liability supervisor until 1998, when he began doing risk management for the MMIA. Montana Municipal Insurance Authority, a self-insurance pool for cities and towns in the State of Montana, is owned by the 118 cities and towns in its membership. MMIA provides workers' compensation insurance, liability insurance, and property insurance. The organization is governed by a board of directors that consists of thirteen city officials from across the state. Premiums collected from the member cities are put into a pool, which is administered by MMIA to pay losses for claims for the members. MMIA is a non-profit, quasi-governmental agency created by the League of Cities and Towns through interlocal agreements in 1986 as a result of an insurance crisis. MMIA's role, from a risk management standpoint, is to assess the risks within a city and to recommend ways to manage those exposures. Litigated claims, which averaged between 40 and 50 claims in the mid 90's, have risen to over 120 active litigated claims at the present time. Incurred dollars in the liability program have risen from $4 million paid to around $8 million paid. Since we live in a litigious society, the exposures within the city have to be managed as well as possible. Alan explained the basic premises about liability law. Cities, corporate property owners, and private property owners all have certain duties that are imposed by law. Everyone has the duty to exercise reasonable and ordinary care to maintain their property to keep it free fi-om hazard for people that use it. That duty is more significant for the city than for a private property owner because of the amount of property owned by the city. Four elements must be met in order for someone to recover a claim that is filed against the city. First, do we owe a duty and what duty do we owe? Second, was there a breach of that duty? Third, was our breach or negligence the Public Works Committee minutes of July 8, 2002 cause of their damage? Fourth, the claimant must prove their damages. All four elements must be met in order for liability to be proven. If any one element is not proven, there is no liability. As a city, there is a duty to maintain parks, to design equipment in accordance with standards, to design parks in accordance with standards, and to maintain parks with reasonable care in order to keep them free from hazard to users. There is also a duty to ensure that safe activities are being conducted in the parks, whether sponsored by the city or by private organizations. The biggest issue Alan noticed today during the walkthroughs was that public buildings are being used by private organizations at Riverside Park. Since the city does not have total control over the use of those facilities, potential exposure is generated. Although lease agreements are in place with the private organizations, Alan suggested that proper controls and proper risk transfer mechanisms might not be in place for the use of those facilities. Proper risk transfer mechanisms would shif~ the risk that is created by the use of the facilities to the people that are using the facilities. When a public entity allows a private organization to use public facilities, there must be an agreement to define what the use is going to be. The agreement should limit the use to a defined area. The entity retains access and the right to police the facility in order to enforce the contract and agreement. Alan offered to review the present lease agreements, and he stated that he would provide agreements from other communities for examples. A risk transfer mechanism must also be included in each agreement. The language must state that the organization wood assume the liability that comes with the use of facilities by agreeing to hold the city harmless and to indemnify and defend the city if a lawsuit were brought against the organization. In addition, an insurance clause that requires the organization to insure their activities must be included. If the organization agreed to indemnify the city but did not have the money to do it, the liability would fall back on the city. An organization that uses a city facility should be willing to assume the risk and to insure the risk, as opposed to having the taxpayers as a whole assuming the risk. From a risk management standpoint, other potential risks or exposures were noticed at the South Pond Lions Park. There was indication that the Lions Club is doing projects at the park without the city's knowledge. No system of checks and balances is currently in place to require the Lions Club to obtain approval from the city for their projects. Alan explained that the city is liable for activities at that park. The pond presents a liability, and the committee discussed the need for signage regarding swimming and boating at the South Pond Lions Park. Alan will inform Steve of the various possibilities of proper wording for the signage, and a decision would then need to be made about how the City of Laurel wanted to sign the area. After proper signage is posted, the city has the duty to enforce the signage. Signage would not absolve the city ofhability. Tree maintenance on boulevards and in city parks is a liability issue. Five larger Montana communities have forestry departments that maintain trees within their city, but smaller communities do not have those available resources. MMIA receives between twelve and twenty- four claims each year after tree limbs have fallen out of trees and landed on property. Although that is not a high frequency in claims, the potential for a high severity claim is possible for a limb to hit somebody in the head because most of those accidents occur on boulevards, sidewalks and in parks. 2 Public Works Committee minutes of July 8, 2002 Priorities need to be evaluated in order to address the liability exposures throughout the city. Alan stressed the importance of regular maintenance, as well as the paperwork to show that the maintenance was completed, in order to defend any claims for the city. Alan mentioned the skateboard park at Thomson Park, which is currently mn by the Laurel YMCA. Alan told the committee that MMIA does not insure skateboard facilities, and skateboard parks are excluded under MMIA's Memorandum of Coverage. An avenue for endorsement of coverage is available for skateboard facilities, but certain criteria have to be met. He cautioned the committee to contact the MMIA office for more information. Most playground equipment does not meet the current Consumer Products Safety Commission Standards and guidelines for public playgrounds. Legislation is being considered in the next session to require that all public playgrounds meet the applicable standards. A grandfather clause in the legislation might refer to all new playground equipment. Playground equipment is necessary, but it needs to meet standards in order to be safe. Regarding right-of-way encroachments, Alan stated that ordinances and polices need to be enforced, or they should be reviewed and rescinded. Ordinances and polices that are ignored or selectively enforced create huge exposures of liability. The committee further discussed the information that Alan presented. In order to determine liability priorities, frequency and severity must be considered. Proper signage does not prevent an occurrence, but it would put the city in a better position to defend an occurrence. Enforcement of the signage is vital to its effectiveness, and documentation of the enforcement and regular maintenance are necessary. From a trip hazard standpoint, sidewalk liability issues are significant in Montana. There are statutes that allow cities to pass an ordinance requiring the abutting property owner to maintain the public sidewalk adjoining their property. However, in 1987 the Supreme Court ruled in the Keyser vs. Whitehall case that a city could not delegate the liability for a defective sidewalk on the abutting property owner. It is a non-delegable duty because it is a public sidewalk. The city can transfer and shift the maintenance responsibility, but it will still ultimately be the city's liability if it is not maintained and someone falls and gets hurt. Cities are lulled into a false sense of security regarding their responsibility for sidewalk maintenance if an ordinance is in place. The cost involved to maintain defective sidewalks makes it a difficult process, especially with elderly property owners. Alan stated that the city cannot trim all the trees that need trimming or fix all the water and sewer lines that need repair at one time. However, priorities need to be established, especially in the business district, the school and church areas, and in high pedestrian traffic flow locations. There was further discussion regarding the Riverside Park leases. At the present time, the city has no control over when the buildings are sublet to another organizations. Risk transfer mechanisms must be established to cover liability when the Riverside Park buildings are subleased to another organization and the City of Laurel must have control over the type of Public Works Committee minutes of July 8, 2002 activity. The approved use for the lease must be specified in the agreement, but the lease could include mechanisms that allow the organization to sublease the building with approval from the City of Laurel, providing the proper transfers of liability and insurance are provided. Gay stated that finalization of the leases has been delayed in order to make sure that they are prepared correctly. The city attorney and the committee will review drafts of the lease agreements. Mark recommended that signs should be posted at the South Pond Park because of the liability at that location. After Alan presents suggested wording for the signage, some available grant money could be used to get the signs made. Proper enforcement is necessary after the signs are installed. Steve will set up a meeting with the Lions Club to review the agreement. Gay thanked Alan for his presentation. Unscheduled matters There was discussion regarding a rough spot at the corner of First Avenue and Sixth Street. Steve explained that the hole was winter patched with a material that is workable at colder temperatures. With the warm temperatures, the material becomes fluid and pushes out, producing a mountain of the patch material on the other side. Steve will talk with the state about the problem, since First Avenue is a primary urban route. Steve will also ask about striping crosswalks on the state routes. Smokey stated that work should begin soon on the curb, gutter and sidewalk at the Eagles : parking lot on Main Street. He asked if striping would be done on Main Street for the bus depot. Ed Steffans stated that no street sign is posted at one of the intersections on the corner of West Maryland and Eighth Avenue. Steve stated that street signs were inventoried last winter in order to assess the condition of the signs. In the future, a computer soft:ware program will provide information for preventive maintenance of street signs throughout the city. The meeting was adjourned at 6:27 p.m. Respectfully submitted, Cindy Council Secretary 4