DISCLAIMER

 

07-019-O
AS AMENDED 3/26, RECONSIDERED & AMENDED 4/16

 

ORDINANCE NO. __________


AN ORDINANCE GRANTING TO A&L PROPERTIES L&L LRDC, LLC, A CONCURRENT USE PERMIT TO CONSTRUCT AND MAINTAIN A RETAINING WALL, PARKING SPACES AND STAIRWAY, FOR PRIVATE USE, IN THE RIGHT-OF-WAY OF 22ND AVENUE EAST.

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 A&L Properties L&L LRDC, LLC, their successors and interests, referred to herein as the permittees, to occupy, construct and maintain a retaining wall, stairway, and four private parking spaces in that part of 22nd Avenue East right-of-way between London Road and a point 45 feet south as the same was dedicated to the use of the public and the plat of Endion Division of Duluth, 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 22nd Avenue East adjacent to Lot 1, Block 26, Endion Division of Duluth located within ten feet of the east right-of-way line of 22nd Avenue East and between the south line of London Road, extended, and a line parallel to and 45 feet southerly of the south line of London Road, extended.

     Section 2.  That before this ordinance 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 comprehensive 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. The city reserves the right to amend its insurance requirements and the permittee shall file evidence of insurance that conforms to any amended insurance requirements within ten days of such notice.

     Section 3.  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:

     (a)  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.

     Section 4.  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:

     (a)  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 5.  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 6.  That upon the giving of the notice of termination as aforesaid, the permittees shall remove said parking spaces, retaining wall, and stairway and all fixtures and pertinences 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 7.  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, retaining wall, and stairway 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 22nd Avenue East right-of-way and agree that the city of Duluth shall not be liable for damage caused to such parking spaces, retaining wall, or stairway 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 retaining wall, parking spaces, and stairway in said 22nd Avenue East right-of-way.

     Section 8.  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 9.  The permittee shall further observe the following conditions:

     (a)  That all city building codes will be observed in the construction of structures and parking areas;

     (b)  The type and location of the improvements shall be limited to and maintained in accordance with the site plan drawn by DSGW entitled “London Road Office Building” dated November 28, 2006, and the retaining wall and stairway details drawn by DSGW entitled “London Road Office Building” dated March 8, 2007, and on record as Public Document No. _______________;

     (c)  The permittee shall maintain all structures and parking areas (surfacing, sealing, striping, plowing, etc.) described in Section 1 of this ordinance;

     (d)  The permittee shall not prohibit public use of the stairway as an extension of the public sidewalk and shall not prohibit the public from traversing the private parking lot to access the stairway;

     (e)  The permittee shall dedicate to the public a pedestrian easement, ten feet in width, connecting the top of the stairway to London Road;

     (f)  The permittee shall cause to be erected and maintained at all times signs at each end of the pedestrian easement and at the bottom of the stairway indicating the public’s right to use such pedestrian easement;

     (g)  The permittee shall, with permission from the city engineer, cause to be constructed in the 22nd Avenue East right-of-way on the west side of the street a sidewalk from its current terminus to the sidewalk on the south side of London Road.

     Section 10. 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 the permittee to construct a retaining wall, parking stalls, and stairway in a 10'x45' section of 22nd Avenue East below London Road. It requires the applicant to remove these fixtures upon six months notice of the city engineer needing the right-of-way in the future. It also requires the applicant to allow the public to traverse the constructed stairway and parking lot, to place signs noticing the public’s right of passage, and to construct a sidewalk extension on the west side of 22nd Avenue East to allow pedestrians to pass.


The planning commission held a public hearing on this petition at their regular meeting of March 13, 2007. A motion to approve, with conditions, the petition failed on a 3-3 vote of seven commissioners present (1 abstention). And so this matter comes to the city council without a recommendation from the commission.


The planning department feels strongly that the opportunity for pedestrian connectivity must be provided for on both sides of 22nd Avenue East. The conditions provided in this ordinance will maintain that connectivity.