DISCLAIMER

 

07-027-O

ORDINANCE NO. __________


AN ORDINANCE GRANTING A CONCURRENT USE PERMIT TO DULUTH GRAND, LLC, AND 311 SUPERIOR CONDOMINIUMS, LLC, CONCURRENT USE OF RIGHTS-OF-WAY OF THIRD AVENUE EAST AND SUPERIOR STREET LOCATED ON THE WEST SIDE AND ACROSS THE FRONT OF THE SHERATON DULUTH GRAND HOTEL AND 311 SUPERIOR CONDOMINIUMS AT THIRD AVENUE EAST AND SUPERIOR STREET.

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 Duluth Grand, LLC, and 311 Superior Condominiums, LLC, and their successors and interests, referred to herein as the permittees, to occupy, erect and maintain canopies, awnings and flagpoles in that part of Third Avenue East and Superior Street rights-of-way (sidewalk) as the same was dedicated to the use of the public of Tract B and Tract D, Registered Land Survey Number 74, Saint Louis County, Minnesota, 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 Tract D, Registered Land Survey Number 74, Saint Louis County, Minnesota, lying within East Superior Street described as follows:

                 commencing at the most southerly corner of said Tract D, thence north 41 degrees 36 minutes 55 seconds east 87.33 feet along the southeasterly line of said Tract D; thence north 48 degrees 23 minutes five seconds west 29.20 feet to the point of beginning for the area to be described; thence continuing north 48 degrees 23 minutes five seconds west 10.80 feet to the northwesterly line of said Street; thence north 41 degrees 36 minutes 55 seconds east 23.00 feet along said northwesterly line; thence south 48 degrees 23 minutes five seconds east 10.80 feet; thence south 41 degrees 36 minutes 55 seconds west 23.00 feet to the point of beginning; and

           that part of Tract B and Tract D, Registered Land Survey Number 74, Saint Louis County, Minnesota, lying within East Superior Street described as follows:

                 commencing at the most easterly corner of said Tract D; thence north 48 degrees 23 minutes five seconds, west 29.20 feet to the point of beginning for the area to be described; thence north 41 degrees 36 minutes 55 seconds east 11.67 feet; thence north 48 degrees 23 minutes five seconds west 10.80 feet to the northwesterly line of said street; thence south 41 degrees 36 minutes 55 seconds east 15.67 feet along said northwesterly line; thence south 48 degrees 23 minutes five seconds east 10.80 feet; thence north 41 degrees 36 minutes 55 seconds east 4.00 feet to the point of beginning.

     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 the permittees have in force insurance meeting the following requirements:

     (a)  A commercial general liability insurance policy shall be maintained in force by permittees 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 permittees’ activities occurring on the permitted premise whether said activities are performed by employees or agents under contract to permittees. Such policy of insurance shall be evidenced by a certificate of insurance filed with the city, 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 permittees 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, permittees file with the city clerk certificates of insurance evidencing that permittees have in force insurance meeting the following requirements:

     (a)  Commercial general liability insurance policy shall be maintained in force by permittees 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 permittees’ activities occurring on the permitted premise whether said activities are performed by employees or agents under contract to permittees. Such policy of insurance shall be evidenced by a certificate of insurance filed with the city, 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, permittees file with the city clerk certificates of insurance evidencing that permittees have in force insurance meeting the following requirements:

     (a)  Commercial general liability insurance policy shall be maintained in force by permittees 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 or equivalent approved by the city attorney. Such coverage shall include all permittees activities occurring on the permitted premise whether said activities are performed by employees or agents under contract to permittees. Such policy of insurance shall be evidenced by a certificate of insurance filed with the city, 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 all canopies, awnings, flagpoles, 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 or permittees’ use or operation of the area.

     Section 8. The permittees shall, at permittees’ 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 permittees 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 permittees shall further observe the following conditions:

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

     (b)  The type and location of the improvements shall be limited to and maintained in accordance with the site plans in Planning Commission File Number 07033, dated February 2, 2007, including the Sheraton Duluth concurrent use diagram plan A1.1, Elev. A3.1 and others, and on record as Public Document No. _______________;

     (c)  The permittees shall maintain all structures described in Section 1 of this ordinance;

     (d)  The permittees shall not prohibit public use of the public sidewalks;

     (e)  The permittees shall not negatively impact the public use of the rights-of-way beneath them, in any way, including but not limited to impacts of water runoff, snow, ice, litter or other various obstructions;

     (f)  The permittees shall not attach or hang anything from the building, other than the items listed in the attached plans; and

     (g)  The permit shall be in place for the life of the Sheraton Duluth Hotel and 311 Superior Condominium buildings.

     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 grants a concurrent use permit to Duluth Grand, LLC, and 311 Superior Condominiums, LLC, for the placement of canopies, awnings and flagpoles on the south and west facades of their building over the sidewalks on the east side of Third Avenue East and the north side of Superior Street, as defined in the staff report for Planning Commission File Number 07033, in the Duluth planning department.


The planning commission unanimously approved this resolution at its April 10, 2007, meeting as per planning staff recommendation.


Does not require a deadline for action.