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 hereinafter set forth, permission is hereby granted to St. Mary's Duluth Clinic Medical Center, their successors and interests, referred to herein as the permittees, to occupy, erect and maintain a decorative street lights, data conduits and snow melt system in that part of East First Street as the same was dedicated to the use of the public and the plat of Portland Division, on file and of record in the office of the register of deeds in and for the St. Louis County, Minnesota, described as follows:

     (a)  Decorative street and sidewalk lighting: the southerly 12 feet of East First Street adjoining Lots 2-16, Block 24; Lots 1-13, Block 25, and vacated Fifth Avenue East, Portland Division;

     (b)  Data conduits: the southerly four feet of East First Street adjoining Lots 13-16, Block 24; Lots 1-13, Block 25, and vacated Fifth Avenue East, Portland Division; AND, that portion of East First Street located 1.9 feet east of the east line and 17.4 feet west of the west line of Lot 15, Block 25, and Lot 15, Block 29, Portland Division;

     (c)  Snow melt system: the southerly 11.4 feet of East First Street adjoining, Lots 2-4, Block 24, Portland Division.

     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 $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 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 lighting, data conduits, snow melt system 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 decorative street lights, data conduits and snow melt system 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 East First Street and agree that the city of Duluth shall not be liable for damage caused to such decorative street lights, data conduits and snow melt system 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, watermains, pipes, conduits or other public utilities made necessary by the presence of such lighting, data conduits, snow melt system in said East First Street.

     Section 6. That the construction of the lighting, data conduits, snow melt system be limited to and in substantial compliance with the plans submitted by LHB entitled "Duluth Clinic-Concurrent Use Request (Lighting, Data Conduits, Snow Melt System)," sheets 1, 2 and 3 of 3, Project No. 02228 and on file in the office of the city clerk as Public Document No. __________.

     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 permission to SMDC to; install and maintain decorative lighting in the sidewalk on the lower side of East First Street; install underground communication conduits to connect facility buildings on the upper and lower side of East First Street and under First Street aligned with the skywalk, and; install and maintain a snow melt system under a curb-cut and sidewalk located 50 to 100 feet east of Fourth Avenue East.

The Duluth city planning commission unanimously approved this zoning change following a public hearing held October 27, 2004. The commissioners based their recommendation on the following: the location is East First Street, east of Fourth Avenue East.

The planning commission heard and considered this recommendation to approve this ordinance at its regular meeting on October 26, 2005.

These improvements are part of the planning commissions consideration and approval of the SMDC campus expansion project. Construction of a 200,000 square foot cancer center and ambulatory patient treatment facility, located between East First Street and First Alley East, east of Fourth Avenue East to 100 feet west of Sixth Avenue East is nearing completion.