DISCLAIMER

06-049-O

ORDINANCE NO. __________


AN ORDINANCE GRANTING A CONCURRENT USE PERMIT TO SETH OLIVER FOR TWO BALCONIES TO PROJECT INTO AND OVER THE RIGHT-OF-WAY OF WEST FIRST STREET LOCATED ADJACENT TO 414 WEST FIRST STREET.

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 Seth Oliver, his successors and interests, referred to herein as the permittees, to occupy, erect and maintain two balconies into and over that part of West First Street adjacent to 414 West First Street as the same was dedicated to the use of the public on the plat of Duluth Proper First 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:

           the southerly four feet of West First Street and at a height of not less than 23 feet above said street adjacent to (Lot 72, Duluth Proper First Division West First Street).

     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 meeting the following minimum requirements:

     (a)  A commercial general liability insurance policy maintained in by permittee in an amount not less than $1,000,000 for bodily injuries and in an amount not less than $300,000 for property damage or $1,000,000 single limited coverage protecting the permitee and the city of Duluth against liability for injuries or damages resulting from the placement of such objects or materials within the West First Street right-of-way as authorized by this ordinance;

     (b)  On or before January 1, 2008, a commercial general liability insurance policy shall be maintained in force by permittee in an amount not less than $1,200,000 for bodily injuries and in an amount not less than $400,000 for property damage or $1,200,000 single limit coverage;

     (c)  On or before July 1, 2009, a commercial general liability insurance policy shall be maintained in force by permittee in an amount not less than $1,500,000 for bodily injuries and in an amount not less than $500,000 for property damage or $1,500,000 single limit coverage;

     (d)  All required policies of insurance shall contain a condition that it may not be cancelled without 30 days written notice to the city of Duluth. The city of Duluth shall be named as an additional insured on all required policies of insurance. Current ISO additional insured endorsement CG 20 10 is not acceptable. If the ISO 20 10 is used, it must be a pre-2004 edition.

     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 balconies 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 agrees 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 balconies 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 West 1st Street and agree that the city of Duluth shall not be liable for damage caused to such balconies while the city is engaged in making repairs to public utilities, and agrees 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 balconies in said West First Street.

     Section 6. That the permittee shall further observe the following conditions:

     (a)  That all required building permits shall be obtained;

     (b)  That current and all subsequent owners of the building units affected by this permit at 414 West First Street must comply with the terms of this permit as a condition of purchase;

     (c)  That the sidewalk area below the balconies shall remain open to the general public use at all times unless closure is otherwise permitted;

     (d)  That the use and maintenance of the balconies does not compromise or negatively impact the public use of the right-of-way beneath them, in any way, including but not limited to impacts of water runoff, snow, ice, litter or other obstructions;

     (e)  That the attachment or hanging of anything from the structure of the balconies is prohibited;

     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 provides for a concurrent use permit to be issued to Seth Oliver for the southern four feet of West First Street, 23 feet above the sidewalk, and from the southern and northern property line of Lot 40, Duluth Proper First Division West First Street, for the construction of two balconies serving the western and eastern condominiums located on the third floor of the building at 414 West First Street. The new balconies will enhance the condominiums and will provide the public benefit by attracting more residents to the Downtown area.


The planning commission, at their regular meeting of October 25, 2006, approved, with conditions, this concurrent use permit, with a 10/0/1 vote (FN 06101).