04-004-O

ORDINANCE NO. __________

AN ORDINANCE GRANTING TO DULUTH LAKEWALK OFFICES, LLC, A CONCURRENT USE PERMIT TO CONSTRUCT AND MAINTAIN PARKING SPACES FOR PRIVATE USE IN THE RIGHT-OF-WAY OF 14TH AVENUE EAST.

BY COUNCILOR GILBERT:

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 Duluth Lakewalk Offices, LLC, their successors and interests, referred to herein as the permittees, to occupy, construct and maintain private parking spaces in that part of 14th Avenue East right-of-way between London Road and I-35 (Reference File No. 03145) as the same was dedicated to the use of the public and the plat of Endion Division of Duluth, on file and of record in the office of the register of deeds in and for the St. Louis County, Minnesota, described as follows: 14th Avenue East right-of-way adjoining Lot 16, Block 18, and Lot 9, Block 17, Endion Division of Duluth.

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; a certificate of insurance approved as to form by the city attorney evidencing that such person or organization has in force insurance in the minimum amounts of $1,000,000 for bodily injury or property damage in any one year protecting such person or organization and the city of Duluth against liability for injuries or damages resulting from the placement of such objects or materials on or under public street, sidewalks, boulevard areas or rights-of-way. The permission granted by such ordinance shall be conditioned upon such person or organization continuing to supply the city with evidence that such insurance remains in effect and all insurance required herein shall contain a provision that no policy may be canceled until ten days after written notice is given to the city clerk. Such policy shall name the city as an additional insured; 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 parking spaces and all fixtures and appurtenances 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 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 parking spaces shall be so constructed and at all times maintained so as in no way to interfere with or damage any sewer, watermains, gas mains, pipes, conduits or other public utilities now or to be hereinafter located in any part of said 14th Avenue East Road right-of-way between London Road and I-35 and agree that the city of Duluth shall not be liable for damage caused to such parking spaces 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 parking spaces in said 14th Avenue East right-of-way.

Section 6.The permittee shall, at its expense, protect, support, temporarily disconnect, relocate in the same street, alley or public place, or remove from the street, alley or public place, any property of the grantee when required by the city engineer by reason of traffic conditions, public safety, street vacation, freeway and street construction, change or establishment of street grade, installation of sewers, drains, water pipes, power lines, signal lines and tracks or the installation or repair of any other type of structures or improvements by governmental agencies, when action in a governmental or proprietary capacity;

Section 7. The permittee shall further observe the following conditions:
(a) That all city codes will be observed in the construction of said parking areas;
(b) The type and location of the improvements shall be limited to and maintained in accordance with the site plan submitted and dated 1.8.04 and on record as Public Document No. ________;
(c) The permittee shall maintain all parking area (surfacing, sealing, striping, plowing, etc.) being created and permitted by this ordinance;
(d) The permittee shall provide screening, in the form of landscape planting or an enclosure for dumpsters being maintained in the public right-of-way;
(e) The permittee shall not prohibit public use of the several spaces being created within the right-of-way;
(f) Prior to the effective date of this ordinance, the permittee shall provide a landscape planting plan and schedule, to be approved in writing by the secretary of the planning commission.

Section 8. That this ordinance shall take effect and be in force 30 days from and after its passage and publication.


STATEMENT OF PURPOSE:  This ordinance provides for the creation of 15-20 new parking spaces in the 14th Avenue East right-of-way at the south end of 14th Avenue East. This is the dead end area of 14th Avenue East above the I-35 trench.

This ordinance is based on a similar ordinance (#9901- File No. 90-0038) granted to Park Inn International for the portion of South First Avenue East that became excess right-of-way with the construction of the Lake Avenue overpass.

The proposal calls for the creation of 11 new parking spaces, bringing the total to 20, at the south end of and within the 14th Avenue East right-of-way lying south of London Road. The new parking area would be used indefinitely by the Lakewalk Surgery Center during regular business hours and available to the general public at all times.

The applicant states that "the concurrent use permit would be in the public interest because:
1.) The new parking area would include some improvements to the entry of the Rose Garden parking lot.
2.) The new parking area could be utilized by the public during office business hours and on the weekend. This would provide additional parking for the Rose Garden, Leif Erikson Park and Lakewalk.
3.) This new parking area would be created with a city council ordinance similar to Ord. #9001, allowing the Park Inn International to develop adjacent parking areas. Similarities include: a.) That all city building codes would be observed in the construction of the new parking; and b.) The Lakewalk Surgery Center would maintain all new parking, being created on this section of south 14th Avenue East, including surfacing, sealing, striping, plowing, etc."

The planning commission unanimously recommended approval of this ordinance at their regular meeting of January 13, 2004.

Date Application Received: November 18, 2003
Action Deadline: March 17, 2004