07-063-O

ORDINANCE NO. __________


AN ORDINANCE GRANTING TO MITCH’S INC., DBA MITCH’S BAR AND GRILL BAR, A CONCURRENT USE PERMIT TO OCCUPY, SERVE AND MAINTAIN BENCHES FOR SMOKING AND TO SERVE LIQUOR ON THE SIDEWALK ABUTTING 2112 WEST SUPERIOR STREET, AND IMPOSING CERTAIN CONDITIONS, LIMITATIONS, AND RESTRICTIONS IN RELATION TO SUCH CONCURRENT USE PERMIT.

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 Mitch’s Inc., DBA Mitch’s Bar and Grill, their successors and interests, referred to herein as the permittees, to occupy, serve, and maintain benches and serve liquor on the public sidewalk adjacent to Lot 343, Duluth Proper Second Division, as the same was dedicated to the use of public in the plat of Duluth Proper Second 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:

           That part portion of West Superior Street lying between two parallel lines at right angles to the south lot line of Lot 343, Duluth Proper Second Division, located at the south east corner of Lot 343 and 20 feet, ten inches west of the south east corner of Lot 343; and between the south lot line of Lot 343 and a parallel line located seven feet south of lot line of Lot 343.

     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 resolution; 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 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 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 the permittees have in force insurance meeting the following requirements:

           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 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, the permittees file with the city clerk certificates of insurance evidencing that the permittees have in force insurance meeting the following requirements:

           Comprehensive 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. 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 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 30 days 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 all fixtures and pertinences of every kind whatsoever thereto from the tract of land described above within said 30 days, 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, its employees, agents, and assigns and agree that such fencing and benches shall be so constructed and at all times maintained so as in no way to interfere with or damage any portion of the sidewalk, or sewer, watermains, gas mains, pipes, conduits, or other public utilities now or to be hereinafter located in any part of said West Superior Street right-of-way and agree that the city of Duluth shall not be liable for damage caused to such fencing and benches while the city is engaged in making repairs to the public sidewalks or public utilities or during snow removal operations, 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 fencing and benches in said West Superior Street right-of-way.

     Section 8. The permittees 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 proper city officials by reason of snow removal, 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, the installation or repair of any other type of structures or improvements by governmental agencies, when acting in a governmental or proprietary capacity.

     Section 9. The permittees shall further observe the following conditions:

     (a)  Benches shall be durable and removable for cleaning and security purposes;

     (b)  The area shall be delineated from the public pedestrian way by a decorative fence with reflectors or lighting to alert pedestrians of the fence. This fence shall be removed during all times that the benches are not in place as well as when the establishment is not open for business;

     (c)  The permitted exterior furnishings located such that a public pedestrian walkway shall be maintained at all times that is not less than six feet in width;

     (d)  That the placement of exterior furnishings shall be located according to the criteria above only during the hours of operation of Mitch’s Bar and Grill and shall be removed from the sidewalk when the establishment is closed;

     (e)  That permittees shall be responsible for policing refuse in the immediate area, which includes removing debris and other waste from the sidewalk at least as frequently as on a daily basis;

     (f)  No amplified music shall be used in the sidewalk obstruction area;

     (g)  That the applicant be on notice that this permit is not exclusive, and that the city may require the permittees to remove the exterior furnishings for specific events conducted in the West Superior Street area; the areas described above shall be open to the general public, the general public shall have the right to occupy benches in the area subject to this permit without making a purchase from the permittees, so long as said members of the general public are orderly and violate no provisions of the law;

     (h)  This permit shall be in effect until the property currently held by Mitch’s, Inc., is transferred to another party, at which time the permit shall expire;

     (i)  This permit is subject to revocation by a resolution of the city council and 14 days notice to the permittees for failure to maintain the terms and conditions of this permit or at the discretion of the city;

     (j)  During winter weather the fencing and benches are not allowed to be placed in the above described area until snowfalls have been cleared from the entire sidewalk;

     (k)  The permittees shall have the right and responsibility to control the area described above in regard to liquor laws;

     (l)  There shall be a maximum number of three benches and serving area shall be limited to the designated area shown on page III H-4 of the September 11 staff report to the planning commission (Public Document No. _________________);

     Section 10. The term of this permit shall expire on April 10, 2010.

     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 is a counter action to Resolution 07-0625 and approves the concurrent use permit request from Mitch’s, Inc., DBA Mitch’s Bar and Grill, to use an area of sidewalk in front of 2113 West Superior Street for three benches to allow patrons to smoke and drink alcoholic beverages. The Duluth city planning commission voted to deny this concurrent use permit following a public hearing held September 11, 2007, by a vote of five yes, three no, and one abstention.


Does not require a deadline for action.