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Legislation #: 141025 Introduction Date: 12/4/2014
Type: Ordinance Effective Date: none
Sponsor: COUNCILMEMBER MARCASON
Title: Amending Chapter 64, Code of Ordinances, by repealing Article V, Obstructions and Encroachments, and enacting in lieu thereof a new Article V, for the purpose of amending policies related to displaying banners in the public right of way.

Legislation History
DateMinutesDescription
12/4/2014 Filed by the Clerk's office
12/4/2014 Referred to Transportation & Infrastructure Committee
12/11/2014 Do Pass as a Committee Substitute
12/11/2014 Assigned Third Read Calendar as Substituted
12/18/2014 Councilmember Marcason (Second by Sharp) Move to Amend
12/18/2014 Passed as Substituted and Amended

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COMMITTEE SUBSTITUTE FOR ORDINANCE NO. 141025, AS AMENDED

 

Amending Chapter 64, Code of Ordinances, by repealing Article V, Obstructions and Encroachments, and enacting in lieu thereof a new Article V, for the purpose of amending policies related to displaying banners in the public right of way.

 

WHEREAS, the City has for several years allowed for permits to be issued for private banners to be installed on City streetlight poles in limited circumstances; and

 

WHEREAS, representatives of certain commercial developments, particularly developments in the urban core, have requested that they be allowed to install banners to promote public events and to promote the developments; and

 

WHEREAS, the City would like to accommodate and support these interests' developments and events, while placing appropriate limitations on permit issuance to assure that the banners do not proliferate and cause clutter and visual distraction along the City's streets; NOW, THEREFORE,

 

BE IT ORDAINED BY THE COUNCIL OF KANSAS CITY: 

 

Section 1. That Chapter 64, Code of Ordinances of the City of Kansas City, Missouri is hereby amended by repealing Article V, Obstructions and Encroachments, and enacting in lieu thereof a new Article V, of like designation and subject matter, to read as follows:

 

Sec. 64-161. Definitions.

 

(a) For purposes of this article the following words shall be defined as follows:

 

Banner means a strip of cloth, vinyl, plastic or combination thereof upon which there appears a sign or message, but shall not mean banners regulated under chapter 18, Code of Ordinances or article XIII of chapter 64, Code of Ordinances unless specified in this section.

 

Banner permit means a document issued by the director allowing a temporary encroachment for a banner in the public right-of-way for a prescribed period of time.

 

Collectors and local streets mean those roadways as defined in the major street plan to collect traffic from an industrial area, a commercial area or a residential street and move it to an arterial street so traffic can then move to its destination.

 

Director means the director of public works, or for public right of ways under the jurisdiction of the board of parks and recreation, the director of parks and recreation, unless otherwise described in this article.

 

Downtown Loop means that part of the city bounded by Interstate 35/70 on the north, Interstate 70 on the east; Interstate 670 on the south, and Interstate 35 on the west.

 

Neighborhood district means an area including multiple lots unified by defined geographic boundaries or a common purpose and which includes public streets , including but not limited to Brookside, the Country Club Plaza, Crown Center, the Performing Arts district, the Downtown Loop, Westport, and any registered residential neighborhood.

 

Event means an event that is open to the public.

 

Local streets means those roadways as defined in the major street plan intended to provide access to abutting properties and to carry traffic to collector streets.

 

Major street plan means the contents of that certain plan for the streets in the city, adopted by Second Committee Substitute for Ordinance No. 64073, and as amended from time to time.

 

Noncommercial message means a message which does not direct attention to a business operated for profit, or to a product, commodity, or service for sale or lease, or to any other commercial interest or activity.

 

Performing arts district means that part of the city bounded by the 9th Street on the north, 18th Street on the south, Broadway on the west, and Troost on the east.

 

Primary arterial streets are those roadways as defined in the major street plan to move through traffic, yet accommodate major access points from abutting properties and normally carry 10,000 or more vehicles per day.

 

Public right-of-way means a city street or state roadway located in the city as defined in the city's "major street plan", collectors, and local streets.

 

Secondary arterial streets means those roadways as defined in the major street plan as secondary arterials to provide access for one or more neighborhoods to various activity centers such as downtown, community shopping centers, strip commercial areas, employment centers and community and regional recreation areas and normally do not cross through residential neighborhoods, but act as boundaries to them.

 

64-162. Prohibited Acts.

 

(a) Fixtures or personal property. No person shall deposit, place, erect or maintain any banner, structure, material, article, substance, decoration or thing on, in or above any street, curb, gutter, park, parkway, sidewalk or public place of the city except as specifically otherwise provided for by law.

 

(b) Buildings. No person shall build, construct, use, maintain or in any way occupy any house, shanty or other building or structure of any kind located on, in or above any street, sidewalk or public square, except as specifically otherwise provided for by law.

 

(c) Vaults, coal holes or other openings. No person shall excavate or cause to be excavated, near or adjoining any street, sidewalk or other public place any vault, area, coal hole, basement, cellar or opening except as specifically otherwise provided for by law.

(d) Cellar doors. No person, including the owner or occupant of any house, building, lot or premises in front of or alongside of which there is any sidewalk, shall build, construct, use, maintain or allow any cellar door or grating, or any covering of any vault, area, coal hole or basement, to rise above the surface of such sidewalk, or construct, maintain or allow any fastenings or hinges of such cellar door, grating or covering to be or remain on the upper side thereof.

 

(e) Display of merchandise. No person shall place, leave, deposit or hang up any food, showcases, goods, wares or merchandise in or upon any street, sidewalk or footway, or cause or permit such acts to be done, except as specifically otherwise provided for by law.

 

(f) Sale of livestock. No person shall buy, sell or barter or to offer to buy, sell or barter any swine or livestock of any description upon any of the streets within the corporate limits of the city.

 

(g) Sales causing obstruction. No person shall, in or upon any street or sidewalk, sell or attempt to sell, expose, offer or cry for sale or exhibit any goods, wares, merchandise, chattels or other personal property to any person, except as specifically otherwise provided for by law.

 

(h) Sawing firewood. No person shall saw or cause to be sawed any firewood in or upon any sidewalk, footway or street crossing.

 

64-163. Permits and Fees.

 

(a) Encroachment into the right-of-way, allowed by ordinance, will be subject to the imposition of a license fee as set out in chapter 18, Code of Ordinances.

 

(b) Whenever any person or organization shall desire to temporarily use a portion of any street or sidewalk for one of the purposes of section 64-162, the director may issue to such person or organization a temporary permit to use a portion of such street to such extent and for such time as the director shall find to be reasonably necessary and in the public interest.

 

 

(c) The issuance of any permit issued pursuant to this chapter is conditioned on the permit holder procuring and maintaining in force during the term of the permit general liability insurance, the terms and conditions of such which shall be determined by the director.

Sec. 64-164. Removal of prohibited structures.

 

If any person shall be found guilty of violating or failing, neglecting or refusing to comply with any provision, regulation or requirement of section 64-162, the court shall, in addition to a fine as provided in section 1-17, adjudge that such prohibited structure be immediately removed by the director, who shall forthwith report the expense thereof to the court, and the costs of such removal shall be taxed by the court as part of the costs of the case.

 

Sec. 64-165. Conditions for vault encroachments.

 

No person shall excavate or cause to be excavated, near or adjoining any street, sidewalk or other public place any vault, area, coal hole, basement, cellar or opening without covering such vault or other opening, and securing the grating or covering thereof in such manner as to prevent persons, animals or vehicles from falling therein; and no person shall keep or leave open any cellar door, grating or stairway of any vault, cellar, basement area, or coal hole, in, near or adjoining any sidewalk, alley or other public place; and no person shall suffer or allow any such cellar door, grating or stairway in front of or alongside any house, building, lot or premises, owned or occupied by him, to be or remain in an insecure condition or out of repair.

Sec. 64-166. Encroachment permits for decorative projects in right-of-way.

 

Except for sidewalk cafe permits, regardless of any other provision appearing to the contrary in the Code of Ordinances, the director, or the board of parks and recreation commissioners in the case of rights-of-way or other public places under the control of the parks and recreation department, is authorized to issue permits to any person to deposit, place, erect or maintain any structure, material, article, substance, decoration or thing on, in or above any street, curb, gutter, sidewalk or public place of the city if such structure, material, article, substance, decoration or thing is part of a streetscape or decorative project otherwise approved by law, and if the application for permit is accompanied by proof of insurance, the terms and conditions of such which shall be determined by the director..

 

Sec. 64-167. Banners.

 

The display of banners is a specialized temporary use of the public right-of-way and may be allowed on city streetlight poles and other such facilities in the public right-of-way subject to compliance with the conditions and regulations imposed in this subsection, including but not limited to standards adopted by the director to ensure that the display of banners do not create an unsafe condition for public use of the public right-of-way and are authorized encroachment uses of the public right-of-way.

 

(a)    Banner permit. No banner shall be displayed in the public right-of-way without a banner permit issued by the director. The director is authorized to issue banner permits for the display of noncommercial messages or to promote or publicize a neighborhood district or an event of a neighborhood district in city public right-of-way. A banner permit will state the number, and location of the banners.

 

(1)               Application. Any person desiring to obtain a Banner permit under the terms of this subsection shall make application therefor to the director, in writing, on a form provided by the director.

 

(2)               Application fee. An application fee of $58.00 shall be paid to the city at the time of application for a banner permit issued under this section. The application fee is non-refundable. The fee shall be deposited into an account established for the department of public works, operation division for right-of-way service charge-outs.

 

(3) Issuance. No banner permit provided for by this subsection shall be issued for the display of any banner except in conformity with the following:

 

a. A banner permit application shall be approved or denied within 30 days of submission of a complete application.

 

b. No permit shall be issued for a banner exceeding 30 inches in width or 72 inches in length provided that a larger banner may be permitted at the discretion of the director if an applicant for a banner permit furnishes to the director a wind load analysis, signed and sealed by a registered professional engineer of the state, setting forth that the potential wind load on the pole for each proposed display for the total banners on each pole is within the design standards for the pole installation.

 

c. Restoration Deposit. As a condition for the issuance of a banner permit, the applicant shall furnish and maintain a restoration deposit in the amount of $58.00 for each pole upon which a banner will be attached under the permit. Upon city approval of the satisfactory removal and restoration of the banners and hanging brackets by the permittee after notice of such removal from permittee, the restoration deposit, less any amount used by the City for removal or repairs, will be refunded to the permittee.

 

d. Inspections. Except for permits issued to the neighborhood association of a registered residential neighborhood, as a condition for the issuance of a permit, the applicant shall pay the city an annual inspection fee of $58.00 for the first pole and $2.00 for each additional pole under the permit.

 

 

e. Approved locations. Banners for display within the public right-of-way may be displayed only on primary arterials, secondary arterials collector and local streets but shall not be displayed on freeways or expressways. The display of banners on boulevards, parkways, streets or roads under the jurisdiction of the board of parks and recreation commissioners, in addition to compliance with all other regulations and conditions in this section, shall require approval from such board. Nothing in this section shall alter the requirements of chapters 18 and 88, Code of Ordinances, related to the display of banners from a privately owned building.

 

f. If the process of installation, maintenance or removal of the banners will result in a disruption of traffic, then the applicant shall comply with all of the applicable regulations, and obtain such traffic control permits and pay any applicable fees for such permits.

 

g. A permit for a banner shall be for a period of one year. While the permit is in effect, a banner covered under the permit may be replaced with another banner of like size and otherwise in conformance with this article and any rules or regulations authorized by it. The permittee shall notify the director 15 days prior to any such replacement.

 

h. No permit shall be issued for a banner that contains a specific date for an event.

 

i. Insurance. The issuance of any permit issued pursuant to this section is conditioned on the permit holder procuring and maintaining in force during the term of the permit general liability insurance, the terms and conditions of such which shall be determined by the director. If at any time the insurance expires or is cancelled, the permit shall be deemed null and void and the banners are to be removed from public property. If a reasonable time lapses upon such expiration or cancellation, and the permittee has not removed the banners and brackets, the city may remove them without notice. Upon removal by the city, title to all materials which have been removed shall vest in city.

 

j. No banner permit shall be issued if the applicant has failed to meet all requirements set forth in this subsection and on the permit; if at the time of the proposed display there will be a conflict of time with city sponsored banners at the proposed location; if at the time of the proposed display there will be a conflict with construction activities at the proposed location or if the proposed banner contains a commercial advertisement of any kind.

 

k. The director may promulgate additional rules and regulations related to the issuance of a banner permit, including but not limited to duration, size, materials, placement, and alignment.

 

l. The issuance of a banner permit is a license and not a grant and may be revoked by the director after providing notice and a reasonable opportunity to be heard to the applicant if the banner has been determined to be inconsistent with the public use of the right of way; upon revocation the permittee shall cause the removal of the facilities and the restoration of the area without expense to the city.

 

(4) Permit Expiration.

 

a. Upon expiration a banner permit may be renewed, following approval of an application and payment of the permit fee and compliance with all other requirements set forth in this section.

 

b. Unless otherwise approved by the director, upon expiration of a banner permit or renewal of such, banners and hanging brackets shall be removed by the permittee. During the permit period, damaged, deteriorated, or faded banners and unused banner brackets shall be removed by the permittee and may be replaced. If the permittee fails to remove the banner and hanging brackets within a reasonable time after expiration of the banner permit or within a reasonable time after notification by the city that a banner is damaged, deteriorated, or faded, then the city may remove the banners and brackets without notice. If costs of such removal exceed the amount of the restoration deposit paid pursuant to Section 64-167©(3), the City may charge the permittee the additional costs.

 

(5) The city manager shall have the authority to adjust the fees listed above to reflect the change in the consumer price index (all items/all urban consumers/Kansas City, Missouri/Kansas) published by the United States Department of Labor, Bureau of Labor Statistics. The adjustments, if any, shall be made annually by the city manager in conjunction with the adoption of the annual budget of the city by filing a notice with the city clerk.

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 of neighborhood and community services is authorized to issue annual sidewalk café permits for a permit year beginning on January 1 and ending on December 31 of the same year, 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 for the sale and consumption of food and beverages on the premises or a business licensed as a restaurant-bar under chapter 10 of the Code, 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.

 

(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 of neighborhood and community services.

 

(c)    Application for sidewalk café permits.

 

(1)                  All applications for a sidewalk café permit shall be filed with the director of neighborhood and community services 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 of neighborhood and community services 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.

 

(4) As a condition for the issuance of a sidewalk café permit, the applicant shall pay an inspection fee of $250.00 per year. The amount due shall not be prorated for any partial year.

 

(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 of neighborhood and community services, 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 Disability 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 of neighborhood and community services; 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.

 

Secs. 64-169—64-200. Reserved.

 

Section 2. That this ordinance shall become effective on January 1, 2015.

 

_______________________________________________________

 

Approved as to form and legality:

 

 

______________________________

Katherine Chandler

Assistant City Attorney