01-029-O

ORDINANCE NO. __________

AN ORDINANCE GRANTING A CONCURRENT USE PERMIT TO KBJR-TV FOR THE PLACEMENT AND MAINTENANCE OF A CONCRETE SNUBBER BASE AND GUY WIRE SNUBBER IN THE RIGHT OF WAY OF FIFTH AVENUE WEST LOCATED SOUTH OF WEST NINTH STREET.

BY COUNCILOR STENBERG:

        The city of Duluth does ordain:

                Section 1.     Under the authority of Section 100 of the 1912 Home Rule Charter of the city of Duluth, as amended, and subject to the conditions, limitations and restrictions hereinafter set forth, permission is hereby granted to KBJR-TV, their successors and interests, referred to herein as the permittees, to occupy, erect and maintain a concrete snubber base and a guy wire snubber in that part of Fifth Avenue West, adjacent to Lot 80, Block 111, as the same was dedicated to the use of the public and the plat of Duluth Proper Third Division, on file and of record in the office of the registrar of deeds in and for the St. Louis County, Minnesota.

                Section 2.     That before this ordinance shall be effective for any purpose whatsoever, the aforesaid permittees shall file with the city clerk a duly executed and acknowledged written acceptance of the terms of this ordinance, and shall agree to pay the cost of publishing this ordinance and a recording of a certified copy thereof at the registrar of titles of St. Louis County, Minnesota.

                Section 3.     That said permit granted under this ordinance may be terminated at any time when and if the city of Duluth determines to use the area occupied by said permittees for any purpose in accordance with the duly dedicated public easement or other lawful use. Giving the permittees six months' written notice by resolution of the council of the city of Duluth to the last known address of the permittees shall be sufficient notice of termination.

                Section 4.     That upon the giving of the notice of termination as aforesaid, the permittees shall remove said concrete snubber base and guy wire snubber and all fixtures and pertinencies of every kind whatsoever attached thereto from the tract of land described above within said six months, all at the expense and cost of the permittees, and without right on the part of the permittees to claim from the city of Duluth, or any of its officers, agents or servants, any compensation, reimbursement for damages of any kind whatsoever.

                Section 5.     That said concrete snubber base and guy wire snubber shall be properly maintained, and in the event that the concrete snubber base and guy wire snubber becomes dilapidated, the city building official shall notify the owner to repair or remove said dilapidated concrete snubber base and guy wire snubber and shall so notify the city council.

                Section 6.     That by the acceptance of the terms of this ordinance as aforesaid, the permittees hereby agree to save harmless and defend and indemnify the city of Duluth against any claims or demand which may arise against the city of Duluth by reason of any act or omission of the permittees, and agree that such concrete snubber base and guy wire snubber shall be so constructed and at all times maintained so as in no way to interfere with or damage any sewer, water mains, gas mains, pipes, conduits or other public utilities now or to be hereinafter located in any part of said Fifth Avenue West and agree that the city of Duluth shall not be liable for damage caused to such concrete snubber base and guy wire snubber while the city is engaged in making repairs to public utilities provided that the city exercises reasonable care to avoid such damage, and agree to pay to the city of Duluth all extra costs of installation of any such sewers, gas mains, water mains, pipes, conduits or other public utilities made necessary by the presence of such concrete snubber base and guy wire snubber in said Fifth Avenue West.

                Section 7.     That this ordinance shall take effect and be in force 30 days from and after its passage and publication.



STATEMENT OF PURPOSE:  This ordinance grants to KBJR-TV the provision for the placement and maintenance of a concrete snubber base and guy wire snubber (existing) in the east half of Fifth Avenue West adjoining Lot 80, Block 111, Duluth Proper Third Division. This concurrent use permit is for the existing concrete snubber base and guy wire snubber which supports one leg of the guy system for the recently completed replacement tower.

The planning commission unanimously recommended approval of this ordinance at its regular meeting of August 14, 2001. In making their recommendation the commission considered the following history and information:

This applicant has an extensive history with this property and prior concurrent use permits for guy wires over this and other rights-of-way. The recent completion of a new tower and the removal of the tower that was damaged by ice in 1999 has necessitated this application. The applicant has previously maintained the properties in compliance with the terms and conditions of the existing and previous ordinances related to supporting elements of the previous tower.

A concurrent use permit is more appropriate than a vacation in that the right-of-way is only encumbered, but not closed. However, should the city determine a need to exercise the terms of the concurrent use permit, the impact on the applicant is significant.