04-044-O

ORDINANCE NO. __________

AN ORDINANCE GRANTING TO PIEDMONT HEIGHTS DENTAL ASSOCIATES II A CONCURRENT USE PERMIT TO CONSTRUCT AND MAINTAIN PARKING SPACES FOR PRIVATE USE IN THE ENSIGN STREET PUBLIC RIGHT-OF-WAY (PIEDMONT HEIGHTS DENTAL ASSOCIATES II, C/O GW HARRIS).

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 Piedmont Heights Dental Associates II, their successors and interests, referred to herein as the permittees, to occupy, construct and maintain 11 private diagonal parking spaces in the south 11 feet of the Ensign Street right-of-way as the same was dedicated to the use of the public and the plat of Grant Park Division, Duluth, Minnesota, on file and of record in the office of the register of deeds in and for the St. Louis County, Minnesota, described as follows: that part of Ensign Street adjoining Lots 2, 3 and 4, Block 3, Grant Park Division, described as follows: beginning at the northeast corner of said Lot 2, thence west along the south line of Ensign Street 30 feet to the point of beginning; thence continuing west along the south line of Ensign Street 130 feet, thence north on a line perpendicular to said south line of Ensign Street 11 feet; thence east on a line parallel to the south line of Ensign 130 feet; thence south on a line perpendicular to the south line of Ensign Street 11 feet to the point of beginning (Reference File No. 04053).

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, water mains, gas mains, pipes, conduits or other public utilities now or to be hereinafter located in any part of said Ensign Street right-of-way 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 Ensign Street 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 03/25/04 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 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 allows for the creation of 11 new diagonal parking spaces in the south 11 feet of Lots 2, 3, and 4, Block 4, Grant Park Division, which are located in the Ensign Street right-of-way, adjacent to the dental clinic.

These 11 new diagonal on-street parking spaces will be used primarily by patients of the dental clinic during normal business hours. The applicant states that "This current use, if granted, would be in the public interest in that it would reduce or eliminate the parking which now occurs on heavily traveled Piedmont Avenue, and would enable Piedmont Avenue, and would enable Piedmont Heights Dental Associates II to better accommodate its patrons and preserve employment in Piedmont Heights." A companion request to amend a special use permit accompanied this concurrent use permit request (Ref. Planning File No. 04053/Res. No. 04-0468).

The planning commission recommended denial of this ordinance by a vote of 9-1-1 (one abstention) at their regular meeting of June 23, 2004.

Date Application Received: May 11, 2004
Action Deadline: N/A