DISCLAIMER

 

07-011-O

ORDINANCE NO. __________


AN ORDINANCE GRANTING A CONCURRENT USE PERMIT TO WATERFRONT PLAZA BUILDING AT 325 LAKE AVENUE SOUTH TO CONSTRUCT SEVEN BALCONIES OVER THE SIDEWALK.

BY COUNCILOR STAUBER:

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 the CIC #29 Waterfront Plaza Condominium, their successors and interests, referred to herein as the permittee, to occupy, erect and maintain seven balconies into and over that part of a public sidewalk at 325 Lake Avenue South, Lots 11-15, Transfer Division, as the same was dedicated to the use of the public and the plat of Transfer Division, on file and of record in the office of the register of deeds in and for St. Louis County, Minnesota, described as follows:

           All of that part of the sidewalk located within Lots 11-15, Transfer Division, city of Duluth, St. Louis County, Minnesota, more particularly described as follows:

                 Beginning at a point 19' 7" south of the northeast corner of Building A, for a distance of 10' to 20'7" from 43'6" to 53'6", from to 68'0" to 78'0", from 97'5" to 107'5", from 119'2" to 129'2" from 146'1" to 156'1", from 171'1" to 181'1" south of the northeast corner of Building A, seven balconies would be constructed, each extending five feet over the public sidewalk at those locations lying adjacent to the north line of east line of Lots 11-15, Transfer Division, city of Duluth at a height of 28 feet from grade.

     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, streets 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 before this resolution shall be effective for any purpose whatsoever, the aforesaid permittee shall file with the city clerk:  a duly executed and acknowledged written acceptance of the terms of this resolution; a certificate of insurance approved as to form by the city attorney evidencing that the permittee has in force insurance meeting the following requirements:

     (a)  A commercial general liability insurance policy shall be maintained in force 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 limit coverage. Such coverage shall include all permittee activities occurring on the permitted premise whether said activities are performed by employees or agents under contract to permittee. Such policy of insurance shall be approved by the City Attorney and 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 said policy of insurance required by this paragraph. 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;

     (b)  That this permit shall expire on January 1, 2008, for any purpose whatsoever, unless prior to such date, permittee files with the city clerk certificates of insurance evidencing that permittee has in force insurance meeting the following requirements:

           (1)  Comprehensive 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. Such coverage shall include all permittee activities occurring on the permitted premise whether said activities are performed by employees or agents under contract to permittee. Such policy of insurance shall be approved by the city attorney and 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 said policy of insurance required by this paragraph. 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;

     (c)  That this permit shall expire on July 1, 2009, for any purpose whatsoever, unless prior to such date, permittee files with the city clerk certificates of insurance evidencing that permittee has in force insurance meeting the following requirements:

           (1)  Comprehensive 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. Such coverage shall include all permittee activities occurring on the permitted premise whether said activities are performed by employees or agents under contract to permittee. Such policy of insurance shall be approved by the city attorney and 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 said policy of insurance required by this paragraph. 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 4. 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 permittee for any purpose in accordance with the duly dedicated public easement or other lawful use. Giving the permittee six months' written notice by resolution of the council of the city of Duluth to the last known address of the permittee shall be sufficient notice of termination.

     Section 5. 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 6. 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 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 avenue located at 325 Lake Avenue South 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 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 balconies in said avenue of 325 Lake Avenue South.

     Section 7. That the permittee shall further observe the following conditions:

     (a)  All required building permits shall be obtained for said balconies;

     (b)  Construction of seven balconies per plans submitted dated December 27, 2006, with a height of 28 feet above grade;

     (c)  That current and all subsequent owners of the units affected by this permit at 325 Lake Avenue South must comply with the terms of this permit as a condition of purchase;

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

     (e)  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;

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

     Section 8. That this ordinance shall not be valid if the above cited permits in Section 6 are not issued and improvements completed within 12 months from the effective date of this ordinance.

     Section 9. The term of this permit shall expire with the sale of the property by the permittee and said balconies and all fixtures of every kind whatsoever attached thereto shall be removed from the tract of land described above within 60 days, unless the new property owner applies for and received a replacement ordinance within 60 days.

     Section 10. The approval was made because of the city planning commission's findings that appropriate safeguards will exist to protect the comprehensive plan and to conserve and to protect property values in the neighborhood if conditions are observed.

     Section 11. 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 installation of seven balconies at the Waterfront Plaza Building, 325 Lake Avenue.


The planning commission action approved this ordinance at their meeting of February 13, 2007, by unanimous vote.


Petition received:

     (a)  January 3, 2007 by Clerk’s Office

     (b)  January 8, 2007 by Planning Department

     (c)  A deadline does not apply (May 10, 2007, if one did)


FN 07012