07-038-O                                                          REPLACEMENT


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 David Patrick, his successors and interests, referred to herein as the permittee, to occupy, construct, and maintain steps in that part of 1605 South Street right-of-way related to the use of the public and within the plat of Wieland’s Rearrangement of Lots 15 and 16, Block 20, Endion Division of Duluth, (FN 07065) 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 South Street right-of-way in the Plat of Wieland’s Rearrangement of Lots 15 and 16, Block 20, Endion Division of Duluth, described as follows:

     Beginning at the east corner of Lot 6 of said plat; thence southwesterly along the southeast line of said Lot 6 a distance of 17.00 feet; thence defecting 90 degrees to the left 1.42 feet; thence deflecting 90 degrees to the left 17.00 feet; thence deflecting 90 degrees to the left 1.42 feet to the POINT OF beginning and there terminating. Said parcel contains 24.14 square feet.

     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)  Personal liability insurance of not less than $300,000. 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.

     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 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 4. That upon the giving of the notice of termination as aforesaid, the permittee shall remove said steps 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 permittee, and without right on the part of the permittee 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 permittee 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 permittee, and agree that such steps 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 South Street right-of-way and agree that the city of Duluth shall not be liable for damage caused to such steps 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 steps in said South Street right-of-way.

     Section 6. 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 7. The permittee shall further observe the following conditions:

     (a)  The retaining wall to the west of the garage/house which lies within the right-of-way is to be removed from the said right-of-way;

(b)  That all city building codes will be observed in the construction of the step structure;

     (c)  The type and location of the improvements shall be limited to and maintained in accordance with the survey prepared by SEH entitled survey for concurrent use adjacent to Lot 6, Wieland’s Re-Arrangement of Lots 15 & 16, Block 20, Endion Division, dated May 24, 2007, and on record as Public Document No. _______________; and

     (d)  The permittee shall not prohibit public use of the steps as an extension of the public sidewalk.

     Section 8. That this ordinance shall take effect and be in force 30 days from and after its passage and publication.

STATEMENT OF PURPOSE:  This is a replacement ordinance for Ordinance 07-038-0 as the property owner, who owns a home and not a business, cannot secure the insurance in the amounts as described in the previous ordinance in the amount of $1,500,000 for bodily injuries and $500,00 for property damage as example. This allows the property owner to use his homeowner insurance for liability. Otherwise the ordinance remains the same as described in O7-038-0 which allows the permitee to construct steps within the right-of-way of South Street.

The planning commission held on June 12, 2007, a public hearing on this petition which included two requests: steps and a patio within the rights-of-way of South Street. The commission determined the patio was not appropriate use within the right-of-way at this location, is too close to the sidewalk, and may set a precedent for future requests. The commission at their regular meeting of June 12, 2007, voted to approve the steps, deny the patio and require the retaining wall to be removed from the rights-of way. A motion to approve, with conditions, passed on a 9-0 vote.

ACTION DEADLINE: An action deadline does not apply.