ORDINANCE NO. __________



The city of Duluth does ordain:

     Section 1. Under the authority of Section 100(d)of the 1912 Home Rule Charter of the city of Duluth, as amended, and subject to the conditions, limitations, and restrictions hereinafter set forth (FN 07121), permission is hereby granted to Maurices, Inc., its successors and interests, referred to herein as the permittee, to occupy, construct and maintain electric conduit in that part of the West First Street Alley right-of-way within the plat of Duluth Proper First 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 of West First Street Alley right-of-way in the Plat of Duluth Proper First Division of Duluth, that is between two lines parallel to the westerly right-of-way line of First Avenue West, one line 80 feet westerly of the westerly right-of-way line of First Avenue West and one line 82 feet westerly of the westerly right-of-way line of First Avenue West.

     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:

           Comprehensive general liability insurance policy shall be maintained in force by permittee at all times in an amount not less than the municipal liability limits set forth in Minnesota Statutes Section 466.04 and effective January 1, 2009, or its successor as either may be amended from time to time. 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 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 three 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 electric conduits and all fixtures and pertinences of every kind whatsoever attached thereto from the tract of land described above within said three 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, its agents and assigns, and agrees that such electric conduits 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 West First Street Alley right-of-way and agrees that the city of Duluth shall not be liable for damage caused to such electric conduits while the city is engaged in making repairs to public utilities provided that the city exercises reasonable care to avoid such damage, and agrees 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 electric conduits in said West First Street Alley 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 permittee when required by the city of Duluth 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 acting in a governmental or proprietary capacity.

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

     (a)  The permittee or its contractor(s) must obtain a permit from the city engineer before commencing construction; and

     (b)  The permittee or its contractor(s) must obtain all other applicable permits before commencing construction; and

     (c)  Within 30 days of installation of the conduits, the permittee must file with the city engineer and city planning director “as-built drawings” and a legal description of the precise location of the electric conduits.

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

STATEMENT OF PURPOSE:   The applicant, Maurices, Inc., plans to install an emergency electric power generator across the alley from their property at 101 West Superior Street. They propose to install an three electric conduits under West First Street Alley to connect the building to the new generator. Under Section 100(d) of the City Charter the city council may grant a concurrent use permit to allow these privately owned and maintained electric conduits to be installed in the portion of the public right-of-way which is “not physically being used or occupied by the public and upon such terms and conditions and by such procedure as the council, in each such ordinance, may provide.”

The city planning commission reviewed this request and held a public hearing on October 16, 2007. They voted to unanimously recommend to the city council that this concurrent use permit be approved subject to the conditions listed in Section 9 of this ordinance. The insurance and termination provisions are the standard requirements the city imposes on all concurrent permit holders. The termination provision has been shortened from six months to three months to better accommodate the needs of the city.

Action deadline: Does not apply