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Legislation #: 190953 Introduction Date: 11/7/2019
Type: Ordinance Effective Date: none
Sponsor: COUNCILMEMBER BUNCH
Title: Amending various sections of Chapter 18, “Buildings and Building Regulations,” and Chapter 64, “Streets, Sidewalks and Public Places,” for the purpose of establishing and regulating parklets and street cafes and delegating the authority to administer sidewalk café permits, street café permits, and parklet permits to the director of public works.

Legislation History
DateMinutesDescription
11/6/2019 Filed by the Clerk's office
11/7/2019 Referred to Neighborhood Planning and Development Committee
11/13/2019 Advance and Do Pass as a Committee Substitute, Debate
11/14/2019 Councilmember Lucas (Second by Fowler) Move To Re-refer
11/14/2019 Re-Referred Neighborhood Planning and Development Committee
12/4/2019 Hold On Agenda (12/11/2019)
12/11/2019 Do Pass as a Committee Substitute
12/12/2019 Assigned Third Read Calendar as Substituted
12/19/2019 Councilmember Bunch (Second by Lucas) Move to Amend
12/19/2019 Councilmember Bunch (Second by Lucas) Move to Advance
12/19/2019 Passed as Substituted and Amended

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190953.pdf Authenticated 1032K Authenticated
190953 Speaker Cards.pdf Other 95K Public Testimony Speaker Cards
190953 cs to org ord-com.docx Compared Version 42K 2nd Compared Version
NPD pw presentation 111319.pptx Other 617K Presentation
Fiscal Note - Ord 190953.pdf Fiscal Note 82K PW Fiscal Note
Ord 190953 Fact Sheet.pdf Fact Sheet 145K PW Fact Sheet
190953com.docx Compared Version 46K compared version

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COMMITTEE SUBSTITUTE FOR ORDINANCE NO. 190953, AS AMENDED

 

Amending various sections of Chapter 18, “Buildings and Building Regulations,” and Chapter 64, “Streets, Sidewalks and Public Places,” for the purpose of establishing and regulating parklets and street cafes and delegating the authority to administer sidewalk café permits, street café permits, and parklet permits to the director of public works.

 

WHEREAS, the City wishes to encourage and support businesses by enacting regulations to support their growth in the city; and

 

WHEREAS, the City recognizes that the use of outdoor spaces can add additional economic activity to City businesses; and

 

WHEREAS, the City previously implemented a permitting process to allow for business to maintain Sidewalk Cafes; and

 

WHEREAS, the City permitted and participated in a successful temporary Pilot Program for Parklets in various locations of the City; and

 

WHEREAS, the City now wishes to establish parklet and street café permits to allow local businesses to utilize public right-of-way as set forth herein; NOW, THEREFORE:

 

BE IT ORDAINED BY THE COUNCIL OF KANSAS CITY:

 

Section 1. That Chapter 18, Code of Ordinances of the City of Kansas City, Missouri, is hereby amended by repealing Article I, Section 18-25, Encroachment onto public property, and enacting in lieu thereof a new subsection of like number and subject matter, to read as follows:

 

Sec. 18-25. Encroachment onto public property.

 

(a) Generally. No part of any structure or any appendage thereto shall project beyond the property line of a building site and encroach below, on or above public property, including right-of-way, except where allowed without a permit in this section, unless authorized by an encroachment permit, in accordance with subsection (b).

 

(b) Encroachment permit required. The building official may issue an encroachment permit to construct an encroachment based on plans prepared according to the provisions of section 18-18 showing construction and clearances in compliance with article II, chapter 32 of the building code, and required approval of the municipal art commission, the department of public works or the department of parks and recreation, the ADA compliance manager, and other public utilities and agencies. The building official shall find that the portion of the right-of-way to be used by the adjoining property owner is not required, or anticipated to be required in the immediate future, for special use by the city or other occupants of the right-of-way, and can be used by the adjoining property owner without impeding the public interest in maintaining the right-of-way. The building official, in accordance with a recommendation of the ADA compliance manager, shall find that the encroachment will not cause the right-of-way to be out of compliance with the Americans with Disabilities Act, and its standards and guidelines, or will not exacerbate any existing noncompliance, and will not impede the use of the right-of-way for its intended purposes.

 

(c) Insurance. The permittee shall keep in force insurance, issued by a company approved by the director of finance, meeting the following conditions:

 

(1) Liability insurance with either a combined single-limit policy of $500,000.00, or a split-limit policy of $100,000.00/$300,000.00 bodily injury and $100,000.00 property damage.

 

(2) The city shall be added as an additional insured to such policy by separate endorsement.

 

(3) The policy shall contain a separate endorsement requiring the insurance company to notify the city in writing of any change in or cancellation of the policy at least ten days prior thereto.

 

(4) Before the permit is issued, and annually thereafter, the permittee shall deposit with the city a certificate of insurance evidencing that the endorsements required by subsections (2) and (3) have been met.

 

(d) Revocation. Authorization for an encroachment shall be construed as a permit and not a grant and may be revoked or modified by the city at any time; and, upon revocation or modification, the permittee or the owner of the property adjacent to or adjoining such encroachment, at the same time as the removal or modification of the encroachment may be required, shall cause the removal or modification of the encroachment and construction of necessary walls and footings to protect the public property, without expense to the city.

 

(e) Exceptions. Encroachment permits shall not be required for:

 

(1) Cornices, sills, pediments and similar projections of decorative character when not more than ten inches beyond the property line, provided that every part of such projection is not less than ten feet above the sidewalk and not less than 15 feet above any alley or vehicular trafficway.

 

(2) Wheel guards of metal or concrete with rounded surfaces when encroaching onto public property, except alleys, not more than ten inches and not more than 18 inches above grade.

 

(3) Metal wall plates and metal angle corners when projecting onto public property not more than one inch.

 

(4) Sill cocks, fire department connections and sprinkler system control valves when encroaching onto public property not more than eight inches.

 

(5) Awnings providing construction, projection, clearances and design conforming with article II, section 3202 of the building code.

 

(6) Footings conforming with article II, section 3202.1.1 of the building code.

 

(7) Curbs or buffer blocks projecting not more than nine inches and not exceeding a height of nine inches above grade.

 

(8) Wall signs extending not more than one foot beyond the face of the wall and located not less than ten feet above the grade of any public sidewalk or 15 feet above the grade of any public street or alley.

 

(9) Sidewalk cafes permitted under section 64-168, Code of Ordinances.

 

(10) Bicycle racks permitted under section 64-169, Code of Ordinances.

 

(11) Parklets permitted under section 64-170, Code of Ordinances.

 

(12) Street cafes permitted under section 64-171, Code of Ordinances.

 

(f) Existing encroachments. Parts of existing buildings and structures which already lawfully project beyond the street lot line or building line may be maintained as constructed until their removal is directed by the building official.

 

(g) License fees. Encroachment into the right-of-way will be subject to the imposition of an annual license fee as required by section 18-20. Encroachments granted to the political subdivisions of the state, to the state and its agencies, and to the United States and its agencies will not require payment of an encroachment fee because it is in the public interest to permit such encroachments without additional costs to these public entities, so long as said encroachments serve a public purpose; however, community improvement districts, neighborhood improvement districts and transportation development districts shall not be exempt from encroachment fees.

 

Section 2. That Chapter 64, Code of Ordinances of the City of Kansas City, Missouri, is hereby amended by repealing Section 64-168, Sidewalk café permit, and enacting in lieu thereof a new subsection of like number and subject matter, to read as follows:

 


Sec. 64-168. Sidewalk café permit.

 

(a) Permit authorized. Unless otherwise authorized under the Code of Ordinances, no person shall place tables or chairs or any other device for the sale or consumption of food or beverage upon any public sidewalk or footway without first obtaining an annual sidewalk café permit. The director is authorized to issue annual sidewalk café permits for the limited purpose of temporarily placing tables and chairs for customers in connection with the sale and consumption of food and beverages in or upon any public sidewalk or footway only if all of the following conditions are met:

 

(1) A sidewalk café permit can only be issued for areas in the city zoned for business and for sidewalks that will allow a clear unobstructed passage not less than five feet in width following the placement of the tables and chairs.

 

(2) A sidewalk café permit may only be issued for a business that has a nonalcohol city business license or a conventions and tourism food certificate for the sale and consumption of food and beverages on the premises provided that the permit may be issued only if such business is located immediately in front of the sidewalk and the permit shall not be issued for another business, if any, located in the same building.

 

(3) A sidewalk café permit issued under this article may not be assigned.

 

(4) The sidewalk café permit shall specify the location of the permit area by address.

 

(5) The applicant for a sidewalk café permit obtains approval from the board of parks and recreation commissioners if the sidewalk is on a parkway or boulevard under the jurisdiction of that board.

 

(6) The applicant for a sidewalk café permit meets all of the other permit requirements contained in the Code of Ordinances, including but not limited to the requirements of chapter 10 of the Code, if applicable and as required.

 

(i) Exception: If the applicant for a sidewalk café permit holds both a license as a restaurant-bar under Chapter 10 of the Code and a sidewalk café permit for the location, and wishes to apply for a license as a restaurant bar in the sidewalk café, requirements of section 10-214 shall not apply.

 

(b) Status of permit. A sidewalk café permit is a privilege and not a right, and the city shall at all times have the right to restrict the scope, time and manner of the placement of tables and chairs on the sidewalk at any time and for any reason by ordinance or regulation of the director.

 

(c) Application for sidewalk café permits.

 

(1) All applications for a sidewalk café permit shall be filed with the director in a form approved by the director.

 

(2) As a condition for the issuance of a sidewalk café permit, the applicant shall furnish to the director an indemnity agreement in the form approved by the director binding the applicant to defend, indemnify, and hold harmless the city and any of its agencies, officials, officers, or employees from and against all claims, damages, liability, losses, costs, and expenses, including reasonable attorneys' fees, arising out of or resulting from any acts or omissions in connection with the operations of the applicant caused in whole or in part by the applicant, its employees, agents, or subcontractors, customers or caused by others for whom the applicant is liable, regardless of whether caused in part by any act or omission of city, its agencies, officials, officers, or employees.

 

(3) As a condition for the issuance of a sidewalk café permit, the applicant shall furnish the city a certificate of insurance from a company approved by the director of finance evidencing that the applicant has a comprehensive general liability and property damage policy meeting the following conditions:

 

a. Liability insurance with either a combined single-limit policy of not less than $2,000,000.00, or a split-limit policy of $300,000.00/$300,000.00 bodily injury and $100,000.00 property damage.

 

b. The city shall be added as an additional insured to such policy by separate endorsement.

 

c. The policy shall contain a separate endorsement requiring the insurance company to notify the city in writing of any change in or cancellation of the policy at least ten days prior thereto.

 

The applicant's failure to obtain or maintain the required insurance in effect for the duration of the permit shall immediately render the permit void. Notwithstanding the foregoing, the applicant shall remain obligated to indemnify and hold harmless the city and any of its agencies, officials, officers, or employees to the full extent required by the indemnity agreement required by this section.

 

(d) Conduct of sidewalk café permit holder. A person holding a sidewalk café permit (permittee) shall comply with all of the following conditions in connection with the placement of tables and chairs on a sidewalk:

 

(1) Sidewalk café permits shall be conspicuously displayed at all times at the business for the permit area and shall be available for inspection by the director, other city employees, and the public.

 

(2) No street or alley shall be blocked by tables and chairs placed pursuant to a sidewalk café permit issued under this section.

 

(3) The permittee shall comply with all applicable laws, including the Americans with Disabilities Act.

 

(4) Tables and chairs shall be securely placed so that they will not endanger the public, or fall or protrude into any street or alley.

 

(5) Tables and chairs shall not be placed in a manner that creates or causes a nuisance, a fire hazard, or interferes with ingress to or from any building.

 

(6) Only tables and chairs for customer use may be placed and allowed to remain within the permit area. The permit area may not be used for the storage of other items.

 

(7) Tables and chairs shall only be placed in front of the business holding a sidewalk café permit and shall not extend to sidewalks abutting and adjacent to other properties. Notwithstanding the foregoing, the tables and chairs may be placed in front of a property immediately abutting and immediately adjacent to the business holding the sidewalk café permit if the owner of record of the affected property consents in writing in a form approved by the director; a property shall not be deemed to be immediately abutting and immediately adjacent if separated from the business holding the sidewalk café permit by a street or alley.

 

(8) The tables and chairs shall not be placed in the street.

 

(9) Tables and chairs for customers shall be placed no less than five feet back from the front of the curb of the abutting street, or other appurtenances.

 

(e) Renewal. Sidewalk café permits shall be granted on an annual basis. All sidewalk café permits may be renewed upon request by the permittee and upon approval by the director thirty (30) days prior to the expiration of the permit. The term for the renewal shall also be one year. Upon a request for renewal, the permittee shall demonstrate that they have adhered to the provisions of this section. The director may inspect the sidewalk café at any time.

 

(f) Fees. The director shall have the authority to set fees to defray the various costs incurred by the city in establishing and regulating sidewalk cafes. Those fees shall include an application fee and an annual license fee. The fees shall be determined annually by the director, and shall be made available to any permittee seeking to establish a sidewalk café.

 

(g) Revocation. Any permit issued hereunder may be suspended or revoked for any reason that would justify a refusal to issue the permit originally or by reason of any failure by the permittee to comply with the provisions of this code, or any condition imposed by the director upon the issuance of the permit. The sidewalk cafe permit may also be suspended if the location of the sidewalk is necessary for city use, including for use by a utility with the right to access the city’s right-of-way. Unless there is an emergency as defined by city ordinance or need for access from a utility utilizing city right-of-way, the permittee is entitled to a minimum of one week’s advance notice of the city’s intent to temporarily suspend, or a minimum of 30 days’ advance notice to revoke a sidewalk café permit. The cost of removing the sidewalk café will be borne solely by the permittee. Should the permittee fail to remove the sidewalk café, the director may remove the sidewalk café and assess cost of the removal to the permittee.

 

(h) Penalties. A permittee operating a sidewalk café who violates or fails to comply with any of the provisions of this section shall be subject to a fine of triple the amount of the application fee for every day of non-compliance.

 

Section 3. That Section 64-170, Code of Ordinances of the City of Kansas City, Missouri, Parklet permit, is hereby enacted to read as follows:

 

Sec. 64-170. Parklet permit.

 

(a) Definition. A parklet is defined as an outdoor facility located within city right-of-way – either within the sidewalk, on-street parking areas, or other unutilized spaces within the public right-of-way - which is permitted by the city to be managed by the adjacent property owner as public space.

 

(b) Parklet permit established. The director of public works is authorized to issue annual parklet permits for the purpose of creating public gathering spaces. The director shall have authority to establish reasonable regulations for the issuance, use, revocation, and denial of parklet permits. Upon issuance of a parklet permit, permittees shall perform all obligations, duties and responsibilities as set forth by the director. Issuance of a parklet permit is a privilege and not a right, and the director shall have the right to modify the scope, time and manner of the parklet permit for any reason. The director of public works may seek the opinion of other city officials in review of a parklet permit application.

 

When the applicant for a parklet permit requests a parklet permit adjacent to or within a parkway or boulevard, the applicant must obtain approval from the board of parks and recreation commissioners. In such circumstances, any authority delegated within this section to the director of public works shall instead be delegated to the director of parks and recreation.

 

(c) Permit conditions. A parklet permit may be issued only if all of the following conditions are met:

 

(1) A parklet permit may be issued to any individual, business or organization for an area within city right-of-way – either within the sidewalk, on-street parking areas, or other unutilized spaces within the public right-of-way upon request by the owner or tenant of property adjacent to the parklet.

 

(2) A parklet permit may be issued in any area in the city in which the adjacent street or roadway has a posted speed limit not in excess of thirty miles per hour.

 

(3) A parklet may not be located within parking spaces designated for the exclusive use of vehicles which display a distinguishing license plate or placard issued to physically disabled or handicapped persons.

 

(4) The applicant for a parklet permit meets all applicable requirements contained within the city’s code of ordinances.

 

(d)  Application for parklet permits.

 

(1) All applications for a parklet permit shall be filed with the director of public works in a form approved by the director. Parklet permits may not be transferred or assigned. All applications shall include the following:

 

a. An indemnity agreement in the form approved by the director binding the applicant to defend, indemnify, and hold harmless the city and any of its agencies, officials, officers, or employees from and against all claims, damages, liability, losses, costs, and expenses, including reasonable attorneys' fees, arising out of or resulting from any acts or omissions in connection with the operations of the applicant caused in whole or in part by the applicant, its employees, agents, or subcontractors, customers or caused by others for whom the applicant is liable, regardless of whether caused in part by any act or omission of city, its agencies, officials, officers, or employees. The permittee shall specifically indemnify and hold harmless the city and any of its agencies, officials, officers, or employees from and against all claims, damages, liability, losses, costs, and expenses, including reasonable attorney’s fees, arising out of or resulting from the city’s snow removal operations.

 

b. A certificate of insurance from a company approved by the director of finance evidencing that the applicant has a comprehensive general liability and property damage policy meeting the following conditions:

 

i. Liability insurance with either a combined single-limit policy of not less than $2,000,000.00, or a split-limit policy of $300,000.00/$300,000.00 bodily injury and $100,000.00 property damage.

 

ii. The city shall be added as an additional insured to such policy by separate endorsement.

 

iii. The policy shall contain a separate endorsement requiring the insurance company to notify the city in writing of any change in or cancellation of the policy at least ten days prior thereto.

The applicant's failure to obtain or maintain the required insurance in effect for the duration of the permit shall immediately render the permit void. Notwithstanding the foregoing, the applicant shall remain obligated to indemnify and hold harmless the city and any of its agencies, officials, officers, or employees to the full extent required by the indemnity agreement required by this section.

 

c. A design of the parklet which adheres to the city’s parklet and street café design standards provided by the director of public works which shall be available to any permittee seeking to establish a parklet. The applicant shall include a layout, drawn to scale, which accurately depicts the dimensions of the existing area to be utilized as a parklet and adjacent private property, the proposed location of the parklet, size and number of tables, chairs, steps, planters, and umbrellas, location of doorways, trees, existing parking meters, sidewalk benches, trash receptacles, light poles, and any other sidewalk obstructions, either existing or proposed, within the pedestrian area. This layout shall be submitted on eight and one-half-inch by eleven-inch paper, suitable for reproduction. Also, photographs, drawings, or manufacturer’s brochures fully describing the appearance and dimensions of all proposed tables, chairs, weighted umbrellas, free-standing barriers or other objects to be used in the parklet.

 

(e) Conduct of parklet permit holder. Parklet permittees shall comply with all of the following conditions:

 

(1) Parklets must at all times adhere the city’s parklet and street café design standards which shall be provided by the director upon request.

 

(2) The permittee shall properly supervise and maintain the parklet in a clean, orderly, and safe condition and in such a manner as to protect the public health and safety. The permittee shall prevent the accumulation, blowing and scattering of trash, garbage, or any other such debris caused by use of the parklet and shall maintain its own trash containers upon the parklet for disposal of any debris. All tables, chairs, umbrellas, and any other furnishings utilized in the parklet shall be maintained with a clean and attractive appearance and shall be in good repair at all times.

 

(3) Parklet permits shall be conspicuously displayed at all times at the business for the permit area and shall be available for inspection by the director of public works, other city employees, and the public.

 

(4) Parklets must remain publicly accessible and must include signage posted on-site to this effect, stating hours reserved for public use.

 

(5) Permittee shall ensure that the parklet and its furnishings in no way interfere with pedestrian, bicycle, or automobile traffic within the sidewalk, street, or bicycle facilities including the parking of vehicles in adjacent parking spaces.

 

(6) No smoking shall be allowed in the parklet. Alcohol shall not be consumed within the parklet without proper licensure.

 

(7) Permittee shall not erect, attach, or affix any permanent fixture upon the public right-of-way, even within the parklet.

 

(8) No furnishings or any parts of the parklet shall be attached, chained, or in any manner affixed to any tree, post, signs, sidewalk, streetlight, fire hydrant, or other public fixture within or near the parklet.

 

(9) The permittee shall not be permitted to use or operate any public address system, or amplified music before 9:00 a.m. and after 10:00 p.m.

 

(10) The permittee shall comply with all applicable laws, including the Americans with Disabilities Act.

 

(11) The parklet permit may not be used for the storage of any items other than seating, furnishing, landscaping, signs, or lighting.

 

(12) The parklet shall not extend to public right-of-way abutting and adjacent to other properties. Notwithstanding the foregoing, the parklet may extend in front of a property immediately abutting and immediately adjacent to the business holding the parklet permit if the owner of record of the affected property consents in writing in a form approved by the director of public works; a property shall not be deemed to be immediately abutting and immediately adjacent if separated from the business holding the parklet permit by a street or alley.

 

(f) Renewal. Parklet permits shall be granted on an annual basis. All parklet permits may be renewed upon request by the permittee and upon approval by the director thirty (30) days’ prior to the expiration of the permit. The term for renewal shall also be one year. Upon a request for renewal, the permittee shall demonstrate that they have adhered to the provisions of this section as well as the city’s parklet and street café design standards. The director may inspect the parklet at any time.

 

(g) Fees. The director shall have the authority to set fees to defray the various costs incurred by the city in establishing and regulating parklets. Those fees shall include an application fee and an annual renewal fee. The fees shall be determined annually by the director, and shall be made available to any permittee seeking to establish a parklet.

 

(h) Revocation. Any permit issued hereunder may be suspended or revoked for any reason that would justify a refusal to issue the permit originally or by reason of any failure by the permittee to comply with the provisions of this code, or any condition imposed by the director upon the issuance of the permit. The parklet permit may also be suspended if the location of the parklet is necessary for city use, including for use by a utility with the right to access the city’s right-of-way. Unless there is an emergency which threatens the health and safety of city residents and visitors or a need for access from a utility utilizing city right-of-way, the permittee is entitled to a minimum of one week’s advance notice of the city’s intent to temporarily suspend, or a minimum of 30 days’ advance notice to revoke a parklet permit. No advance warning is required in the case of an emergency which threatens the health and safety of city residents and visitors or a need for access from a utility. The cost of removing the parklet will be borne solely by the permittee. Should the permittee fail to remove the parklet within the timeframes outlined above, the director of public works may remove the parklet and assess cost of the removal to the permittee.

 

(i) Penalties. A permittee operating a parklet who violates or fails to comply with any of the provisions of this section shall be subject to a fine of triple the amount of the application fee for every day of non-compliance.

Section 4. That Section 64-171, Code of Ordinances of the City of Kansas City, Missouri, Street café permit, is hereby enacted to read as follows:

 

Sec. 64-171. Street café permit.

 

(a) Definition. A street café is defined as an outdoor dining facility located within areas used for on-street parking which is permitted by the city to be utilized by the immediately adjacent property owner or tenant for outdoor dining as an extension of the owner’s or tenant’s operations.

 

(b) Street café permit established. The director of public works is authorized to issue annual street café permits for the limited purpose of placing tables and chairs for customers in connection with the sale and consumption of food and beverages in or upon any on-street parking spaces. The director shall have the authority to establish reasonable regulations for the issuance, use, revocation, and denial of street café permits. Upon issuance of a street café permit, permittees shall perform all obligations, duties and responsibilities as set forth by the director. Issuance of a street café permit is a privilege and not a right, and the director shall have the right to modify the scope, time and manner of the street café permit for any reason.

 

When the applicant for a street café permit requests a street café permit adjacent to a parkway or boulevard, the applicant must obtain approval from the board of parks and recreation commissioners. In such circumstances, any authority delegated within this section to the director of public works shall instead be delegated to the director of parks and recreation.

 

(c) Permit conditions. A street café permit may be issued only if all of the following conditions are met:

 

(1) A street café permit may be issued to any individual, business or organization within on-street parking areas or other unutilized spaces within the public right-of-way immediately adjacent to property owned or leased by the individual, business or organization.

 

(2) A street café permit may be issued adjacent to streets or roadways which have a posted speed limit not in excess of thirty miles per hour.

 

(3) A street café permit can only be issued for areas in the city zoned for business and which allow a clear unobstructed passage not less than five feet in width within the street café following the placement of the tables and chairs in the street café.

 

(4) A street café permit may only be issued for a business that has a nonalcohol city business license or a conventions and tourism food certificate for the sale and consumption of food and beverages on the premises provided that the permit may be issued only if such business is located immediately in front of the business and the permit shall not be issued for another business, if any, located in the same building.

 

(5) A street café permit may not be located within parking spaces designated for the exclusive use of vehicles which display a distinguishing license plate or placard issued to physically disabled or handicapped persons.

 

(6) The applicant for a street café permit must meet all other permit requirements contained in the Code of Ordinances, including but not limited to the requirements of chapter 10 of the Code, if applicable. As a condition for the issuance of a street café permit, the director of neighborhoods and housing services shall attest that the permittee has met any requirements of permits which the permittee holds under chapter 10, if applicable and as required.

 

(d) Application for street café permits.

 

(1) All applications for a street café permit shall be filed with the director of public works in a form approved by the director. Street café permits may not be transferred or assigned. All applications for a street café permit shall include the following:

 

a.                   An indemnity agreement in the form approved by the director binding the applicant to defend, indemnify, and hold harmless the city and any of its agencies, officials, officers, or employees from and against all claims, damages, liability, losses, costs, and expenses, including reasonable attorneys' fees, arising out of or resulting from any acts or omissions in connection with the operations of the applicant caused in whole or in part by the applicant, its employees, agents, or subcontractors, customers or caused by others for whom the applicant is liable, regardless of whether caused in part by any act or omission of city, its agencies, officials, officers, or employees. The permittee shall specifically indemnify and hold harmless the city and any of its agencies, officials, officers, or employees from and against all claims, damages, liability, losses, costs, and expenses, including reasonable attorney’s fees, arising out of or resulting from the city’s snow removal operations.

 

b. A certificate of insurance from a company approved by the director of finance evidencing that the applicant has a comprehensive general liability and property damage policy meeting the following conditions:

 

i. Liability insurance with either a combined single-limit policy of not less than $2,000,000.00, or a split-limit policy of $300,000.00/$300,000.00 bodily injury and $100,000.00 property damage.

 

ii. The city shall be added as an additional insured to such policy by separate endorsement.

 

iii. The policy shall contain a separate endorsement requiring the insurance company to notify the city in writing of any change in or cancellation of the policy at least ten days prior thereto.

The applicant's failure to obtain or maintain the required insurance in effect for the duration of the permit shall immediately render the permit void. Notwithstanding the foregoing, the applicant shall remain obligated to indemnify and hold harmless the city and any of its agencies, officials, officers, or employees to the full extent required by the indemnity agreement required by this section.

 

c. A design of the street café which adheres to design guidelines provided by the director of public works which shall be available to any permittee seeking to establish a street café. The applicant shall include a layout, drawn to scale, which accurately depicts the dimensions of the existing area to be utilized as a street café and adjacent private property, the proposed location of the street café, size and number of tables, chairs, steps, planters, and umbrellas, location of doorways, trees, existing parking meters, sidewalk benches, trash receptacles, light poles, and any other sidewalk obstructions, either existing or proposed, within the pedestrian area. This layout shall be submitted on eight and one-half-inch by eleven-inch paper, suitable for reproduction. Also, photographs, drawings, or manufacturer’s brochures fully describing the appearance and dimensions of all proposed tables, chairs, weighted umbrellas, free-standing barriers or other objects to be used in the street café.

 

d. If the applicant for a street café permit holds both a license as a restaurant-bar under Chapter 10 of the Code and a street café permit for the location, and wishes to apply for a license as a restaurant bar in the street café, requirements of section 10-214 shall not apply. All other permitting applications will still apply for use of the street café as a permitted area, pursuant to Section 64-164.

 

(e) Conduct of street café permit holder. Street café permittees shall comply with all of the following conditions:

 

(1) Street cafes must at all times adhere the city’s parklet and street café design standards which shall be provided by the director upon request.

 

(2) The permittee shall properly supervise and maintain the street café in a clean, orderly, and safe condition and in such a manner as to protect the public health and safety. The permittee shall prevent the accumulation, blowing, and scattering, of trash, garbage, or any other such debris caused by use of the street café and shall maintain its own trash containers upon the street café for disposal of any debris. All tables, chairs, umbrellas, and any other objects utilized in the street café shall be maintained with a clean and attractive appearance and shall be in good repair at all times.

 

(3) Street café permits shall be conspicuously displayed at all times at the business for the permit area and shall be available for inspection by the director of public works, other city employees, and the public.

 

(4) The permittee shall designate with signage the hours during which the street café is to be operated. At all other times, the street café shall be made available for public use.

 

(5) Permittee shall ensure the street café and its furnishings in no way interfere with pedestrian, bicycle, or automobile traffic within the sidewalk, street, or bicycle facilities including the parking of vehicles in adjacent parking spaces.

 

(6) No smoking shall be allowed in the street café. Alcohol or liquor shall not be consumed within the street café without proper licensure. The hours of outdoor liquor sales shall be allowed as authorized in chapter 10 of the code.

 

(7) Permittee shall not erect, attach, or affix any permanent fixture upon the public right-of-way, even within the street café.

 

(8) No furnishings or any parts of the street café shall be attached, chained, or in any manner affixed to any tree, post, signs, sidewalk, streetlight, fire hydrant, or other public fixture within or near the street café.

 

(9) The permittee shall not be permitted to use or operate any public address system, or amplified music before 9:00 a.m. and after 10:00 p.m.

 

(10) The permittee shall comply with all applicable laws, including the Americans with Disabilities Act.

 

(11) The permit area may not be used for the storage of any items other than seating, landscaping, signs, or lighting.

 

(12) The street café and any furnishings shall only be placed in front of the business holding a street café permit and shall not extend to public right-of-way abutting and adjacent to other properties. Notwithstanding the foregoing, the street café and its furnishings may be placed in front of a property immediately abutting and immediately adjacent to the business holding the street café permit if the owner of record of the affected property consents in writing in a form approved by the director of public works; a property shall not be deemed to be immediately abutting and immediately adjacent if separated from the business holding the street café permit by a street or alley.

(f) Renewal. Street café permits shall be granted on an annual basis. All street café permits may be renewed upon request by the permittee and upon approval by the director thirty (30) days prior to the expiration of the permit. The term for the renewal shall also be one year. Upon a request for renewal, the permittee shall demonstrate that they have adhered to the provisions of this section as well as the city’s parklet and street café design standards. The director may inspect the street café at any time.

 

(g) Fees. The director shall have the authority to set fees to defray the various costs incurred by the city in establishing and regulating street cafes, including loss of value to the city in utilizing such spaces for no-street parking. Those fees shall include an application fee and an annual license fee. The fees shall be determined annually by the director, and shall be made available to any permittee seeking to establish a street café.

 

(h) Revocation. Any permit issued hereunder may be suspended or revoked for any reason that would justify a refusal to issue the permit originally or by reason of any failure by the permittee to comply with the provisions of this code, or any condition imposed by the director upon the issuance of the permit. The street café permit may also be suspended if the location of the street café is necessary for city use, including for use by a utility with the right to access the city’s right-of-way. Unless there is an emergency which threatens the health and safety of city residents and visitors or a need for access from a utility utilizing city right-of-way, the permittee is entitled to a minimum of one week’s advance notice of the city’s intent to temporarily suspend, or a minimum of 30 days’ advance notice to revoke a street café permit. The cost of removing the street café will be borne solely by the permittee. No advance warning is required in the case of an emergency which threatens the health and safety of city residents and visitors or a need for access from a utility. Should the permittee fail to remove the street café, the director of public works may remove the street café and assess cost of the removal to the permittee.

 

(i) Penalties. A permittee operating a street café who violates or fails to comply with any of the provisions of this section shall be subject to a fine of triple the amount of the application fee for every day of non-compliance.

 

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Approved as to form and legality:

 

 

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Dustin E. Johnson

Assistant City Attorney