ORDINANCE NO. __________




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 hereafter set forth, permission is hereby granted to the Congress Bar and Grill, their successors and interests, referred to herein as the permitees, to occupy, erect and maintain a non-illuminated awning in that part of Commonwealth Avenue as the same was dedicated to the use of the public and the plat of Gary First Division, Duluth, on file and of record in the office of the registrar of deeds in and for the St. Louis County, described as follows: Lot 17, Block 7, Gary First Division, Duluth (Reference File No. 04074).

     Section 2. That before this ordinance shall be effective for any purpose whatsoever, the aforesaid permitees 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 $300,000 for bodily injuries resulting in any year and $50,000 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 public sidewalks or boulevard areas. The permission granted by such ordinance shall be conditioned upon such person or organization continuing to supply the city with evidence that such insurance premiums remain 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 permitees for any purpose in accordance with the duly dedicated easement or other lawful use. Giving the permitees six months’ written notice by resolution of the council of the city of Duluth to the last known address of the permitees shall be sufficient notice of termination.

     Section 4. That upon the giving of the notice of termination of aforesaid, the permitees shall remove said awnings and 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 permitees, and without right on the part of the permitees 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 permitees 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 permitees, and agree that said awning 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 1334 Commonwealth Avenue and agree that the city of Duluth shall not be liable for damage caused to such awning 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 all extra costs of installation of any such sewers, gas, mains, water mains, pipes, conduits or other public utilities necessary by the presence of said awnings in said 1334 Commonwealth Avenue.

     Section 6  That the permitee shall further install and maintain the awning in accordance with plans submitted by Advanced Awning Design, dated

June 25, 2004.

     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 concurrent use permit is for a “sunbrella,” a fixed, non-illuminated awning that projects four feet from the building wall and 8 feet above the sidewalk.

The Duluth planning commission unanimously approved this request at a regular meeting held Tuesday, August 10, 2004. The commissioners found the following points in favor:

1.)  The awning will not impact any public utility use of the affected right-of-way.

2.)  The awning will not interfere with the public use of the sidewalk or street.

In addition, the commissioners found, as a point in opposition, that fixed awnings will cause an “ice drip line” on the sidewalk which will increase the need for property owner maintenance.

The awning must be installed and maintained in accordance with plans submitted by Advanced Awning Design, dated June 25, 2004, for a “sunbrella,” non-illuminated awning.