Title
AN ORDINANCE GRANTING SUPERIOR STREET PROPERTY, LLC A CONCURRENT USE PERMIT FOR A WALL WITHIN A SKYWALK AT 309 W SUPERIOR STREET.
Body
CITY PROPOSAL:
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 granted to Superior Street Property, LLC and its successor(s) in interests, referred to herein as the “Permittee,” to construct and maintain the following:
(a) Wall and doorway within a 2nd floor skywalk of the building located at 309 W Superior Street, as shown in Exhibit A.
Section 2. Before this ordinance shall be effective for any purpose whatsoever, the Permittee shall file with the planning division a certification of insurance approved as to form by the city attorney evidencing that the Permittee has in force a policy of insurance meeting the following requirements:
(a) Comprehensive general liability insurance 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; and
(b) Insurance coverage shall include all Permittee’s activities occurring upon or within public right of way or easement occupied pursuant to this ordinance whether said activities are performed by the Permittee or its agents or representatives; and
(c) The insurance policy shall be approved by the city attorney; and
(d) The policy shall contain a condition that it may not be canceled without 30 days written notice to the city of Duluth and directed to the attention of the city attorney; and
(e) The city of Duluth shall be named as an additional insured; and
(f) The insurance certificate shall also reference this ordinance by its ordinance number.
Section 3. The permit granted by this ordinance may be terminated at any time by the city official exercising departmental authority of the public easement if the city of Duluth determines to use the area occupied by the Permittee for any public purpose in accordance with the duly dedicated public easement or other lawful use.
Unless a shorter notice period is necessitated by emergency circumstances, or the violation of the conditions set forth in this ordinance, giving the Permittee 30 days written notice delivered to the last known electronic address, facsimile number, or mailing address of the Permittee shall be sufficient notice of termination.
Upon termination Permittee shall cause all private improvements to be removed by the deadline provided in termination notice. Permittee shall be responsible for all costs incurred to remove the private improvements, including any costs associated with repairing damage caused to the public easement by the removal and without right to claim from the city of Duluth, or any of its officers, agents or servants, any compensation or reimbursement for damages of any kind whatsoever.
Section 4. By accepting the terms of this ordinance, the Permittee agrees to defend, indemnify, and hold harmless the city of Duluth from all liability or claims of liability for bodily injury or death to persons, or for property damage, in which the claim: A. alleges a negligent or otherwise wrongful act or omission of the Permittee or its employee, agent, or independent contractor in installing, maintaining, or repairing the Permittee's facilities; and alleges that the local government unit is liable, without alleging any independent negligent, or otherwise wrongful, act or omission on the part of the local government unit; or B. is based on the local government unit's negligent or otherwise wrongful act or omission in issuing the permit or in failing to properly or adequately inspect or enforce compliance with a term, condition, or purpose of the permit granted to the Permittee.
Section 5. The Permittee shall, at its expense, protect, support, temporarily disconnect, or remove from the public easement, the private improvements when required by city officials by reason of snow removal, traffic conditions, public safety, street vacation, freeway and street construction, change or establishment of street grade, sidewalks, installation of sewers, drains, water pipes, power lines, signal lines and tracks, the installation or repair of any type of structures or improvements by governmental agencies, when acting in a governmental or proprietary capacity.
Section 6. The concurrent use permit, and all rights thereunder, may not be sold, assigned, or transferred without the written consent of the city, such consent not to be unreasonably withheld, conditioned or delayed. Upon the sale or transfer of Permittee’s interest in the permit granted by this ordinance and written consent, the Permittee shall provide written notice to the planning division within ten days of such transfer. The Permittee’s successor in interest shall file with the planning division within ten days of such transfer a duly executed and acknowledged written acceptance of the terms of this ordinance and the certificate of insurance required in Section 2 above.
Section 7. The permit granted by this ordinance is subject to termination by the city of Duluth upon Permittee’s failure to comply with any of the terms and conditions of this permit. Ten days written notice, delivered as provided in Section 3 above shall be sufficient notice of termination. Upon termination, Permittee shall remove the private improvements as provided in Section 3.
Section 8. The Permittee shall observe the following conditions:
(a) Permittee’s use of the public right of way or easement shall be limited to the designated area described in Section 1 above; and
(b) Permittee agrees that the private improvements shall be constructed and maintained in such a manner so as in no way interfere with or damage any portion of any public improvement, or other public utilities now or to hereinafter located in any part of said public easement; and
(c) Permittee shall obtain all other permits as may be required by the city, other governmental agencies and Minnesota Power, including, but not limited to obstruction, excavation, electrical, stormwater, etc; and
(d) Permittee shall not connect any permitted facilities to any power source owned, controlled, or paid for by the city. Permittee shall identify all power sources, and indicate connection and ownership of power source, providing evidence of approval by other entities besides the city when applicable; and
(e) Permittee shall provide a contact name and telephone for our use in case of emergency. The phone number should be available 24 hours per day, 7 days a week. Permittee shall also provide contact and telephone number for non-emergency notifications; and
(f) Permittee must repair or replace at their expense any damage to anything in the right-of-way caused by the Permittee’s permitted installation or operations to the city’s reasonable satisfaction; and
(g) Permittee shall within 90 days after termination remove its equipment, conduits, fixtures and all personal property and restore the all portions of the right of way to its original condition, reasonable wear and tear excepted. City agrees and acknowledges that all of the equipment, conduits, fixtures and personal property of the Permittee shall remain the personal property of the Permittee and the Permittee shall have the right to remove the same at any time during the term of the permit; and
(h) The City bears no responsibility for accidents or damages to the Permittee’s facilities.
Section 9. The following events shall automatically cause the termination of the term of this ordinance:
(a) The failure by the Permittee to file the required insurance certificate as specified in Section 2 60 days after this ordinance takes effect; or
(b) The failure of the Permittee to commence the improvements authorized by this ordinance within 180 days after this ordinance takes effect.
Section 10. That this ordinance shall take effect and be in force 30 days from and after its passage and publication.
Statement of Purpose
STATEMENT OF PURPOSE: This ordinance grants Superior Street Property, LLC, a concurrent use permit to construct a wall and doorway within a second-floor skywalk area of the building at 309 W Superior Street. Permittee wishes to upgrade and enhance the skywalk area, but does not wish to replace the existing bench in the corner of the hallway. To deter congregation within the skywalk space, they wish to construct a wall and doorway; this will still allow a clear width of 12’ for pedestrians to walk through the skywalk.
On March 8, 2022, the planning commission held a public hearing on the proposal as shown in Exhibit B, and voted 7 yeas, 0 nay, 0 abstentions, to recommend that the city council approve the request for a concurrent use of streets permit.
Petition initially received: January 14, 2022
Applicant: Superior Street Property, LLC
PL 22-006