Modesto Municipal Code Art. 1 Outdoor Dining Encroachment Permit Required

Footnotes:

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Editor's note— Ord. No. 3582-C.S., § 1, effective February 22, 2013, amended Article 1 in its entirety to read as herein set out. Formerly, article 1, §§ 4.15.101—4.15.109 pertained to similar subject matter, and derived from Ord. No. 34-07-C.S., § 1, effective May 25, 2006.

This article establishes uniform regulations and operational standards for outdoor dining in the public right-of-way, primarily in the downtown area. These outdoor dining regulations are intended to ensure public safety and welfare, protect public property and promote the attractive use of public right-of-way, by regulating the location, height, design and use of outdoor dining barriers and fixtures. The purposes of these regulations are also to:

(a) Assist property owners and tenants establishing outdoor dining areas in the public right-of-way;

(b) Protect public safety and maintain accessibility of the sidewalk or street;

(c) Encourage outdoor dining area designs that provide a good design relationship, spacing and location relative to other improvements in the public right-of-way;

(d) Encourage new business development and facilitate the expansion of existing businesses in downtown Modesto;

(e) Promote downtown Modesto as a vital and attractive pedestrian district;

(f) Maintain meaningful public circulation;

(g) Create a dynamic and lively atmosphere by encouraging attractive and functional designs for outdoor dining.

(Ord. No. 3582-C.S., § 1, effective 2-22-13)

Outdoor dining is defined as a permitted area within the public right-of-way consisting of tables and chairs for the consumption of food or beverages and which provides on-premises customer seating.

(Ord. No. 3582-C.S., § 1, effective 2-22-13)

No owner or operator of a business establishment shall occupy any portion of a public sidewalk, court, plaza, alley or street with tables and chairs for outdoor dining without first obtaining a revocable encroachment permit in accordance with the provisions of this article.

(Ord. No. 3582-C.S., § 1, effective 2-22-13)

The City Engineer, or his or her designated representative, is hereby authorized to issue outdoor dining encroachment permits to owners or operators of business establishments. The location and configuration of any outdoor dining area shall be subject to the approval of the City Engineer who shall consider public safety issues unique to the pedestrian and vehicular needs of a specific location. The City Engineer shall have the authority to deny any encroachment permit application if its issuance is determined to be detrimental to the public health, safety or general welfare. The decision of the City Engineer may be appealed to the City Manager or to a designee of the City Manager, pursuant to the provisions of Modesto Municipal Code Section 4-15.203(g). The decision of the City Manager or designated representative shall be final.

(Ord. No. 3582-C.S., § 1, effective 2-22-13)

(a) An encroachment permit shall be required for all outdoor dining areas in the public right-of-way. An application shall be filed with the Community and Economic Development Department on a form provided by that department. Every owner or operator of a business establishment desiring to place tables and chairs in a public sidewalk, court, alley or street shall first submit an application for the issuance of an outdoor dining revocable encroachment permit to the Community and Economic Development Department.

(b) The application shall be accompanied by a space-use plan showing the location, number and arrangement of the tables and chairs to be used, the location of the entrance to the establishment, and the location of any existing sidewalk obstructions in the proposed area to be occupied by the tables and chairs. Trees and/or tree wells, traffic signs, planters, lamp posts, fire hydrants, parking meters, benches, barriers delimiting the dining area and all similar obstacles shall constitute obstructions.

(c) Each application for an outdoor dining encroachment permit shall be submitted in accordance with the following requirements:

(1) Application Fee. The amount of the application fee is in an amount as shall be set forth from time to time by resolution of the City Council. The application must be signed by the business owner. This fee includes costs for review of the application and insurance, as well as pre-inspection and post-inspection of the outdoor dining site. No application fee shall be assessed for existing permit holders unless a new/revised permit is required.

(2) Proof of Insurance. Each application shall be accompanied by proof of insurance, as set forth in Section 4-15.109 of this article.

(3) Business License. Applicant must submit a copy of applicant's City of Modesto business license with the outdoor dining encroachment permit application.

(4) Outdoor Dining Areas With Barriers. Establishments that serve alcoholic beverages in the outdoor dining area shall provide a physical barrier that meets the requirements of this chapter and of the Alcoholic Beverage Control Board.

(5) Barrier Removal Deposit. A removal deposit shall be submitted at the time of application where a fixed barrier is proposed. If, at the time of cessation of outdoor dining use and/or revocation of use permit, the barrier is removed by the business owner or other responsible party, any removal deposit will be refunded. The deposit will also be refunded if the encroachment use permit is denied. A removal deposit is not required for portable barriers. Existing permittees shall not be required to make a removal deposit unless a new/revised permit is required.

(Ord. No. 3582-C.S., § 1, effective 2-22-13)

(a) No permit shall be issued until the permit applicant has paid the required application fee(s) associated with a one-time fee for the permit. The amount of the permit fee is in an amount as shall be set forth from time to time by resolution of the City Council.

(b) No permit shall be issued until the applicant has complied with the Modesto Municipal Code and other applicable City standards as amended from time to time.

(c) The permittee shall display a copy of the permit within the business establishment in an area clearly visible.

(Ord. No. 3582-C.S., § 1, effective 2-22-13)

The permittee shall indemnify, defend and hold harmless the City, its officials, officers, agents and employees from any and all claims, causes of action, losses, injuries or damages arising directly or indirectly from the negligent acts, errors or omissions of the permit holder, its officers, agents, employees or anyone rendering services on its behalf. This indemnity shall include all reasonable costs and attorney's fees incurred in defending any action covered by this section.

(Ord. No. 3582-C.S., § 1, effective 2-22-13)

(a) Location, Dimensions and Design.

(1) Sidewalk Minimum Clear Path. The outdoor dining area shall leave a minimum of not less than five (5) consecutive feet of sidewalk width of clear continuous path measured from the curb line to ensure adequate space for pedestrian traffic on the adjacent sidewalk. The minimum width stated above must be free of all obstacles and obstructions for a clear path of travel. For the purpose of minimum clear path, traffic signs, trees, street furniture and all similar obstacles shall constitute obstructions. The specific requirements for this minimum clear path are set out on a diagram available to the applicant from the Community and Economic Development Department.

(2) Clear Zones. Outdoor dining areas on public sidewalks may not intrude on pedestrian clear zones at corners and thus must be set back a minimum of six (6) feet from any crosswalk.

(3) Curbs, Ramps and Driveways. The outdoor dining area must not interfere with curbs, ramps or driveways.

(4) Building Access. No element of the outdoor dining area may interfere with access to any building including all paths of travel or exit.

(5) Egress From Dining Establishment. A clear path of travel from the doors of the dining establishment to the sidewalk and street must be provided. The width of the clear path of travel shall be no smaller than the width of the dining establishment door(s) and no less than three (3) feet.

(6) Barrier Height. Barriers shall maintain a minimum height of forty-two (42) inches and a maximum height of forty-eight (48) inches.

(7) Barrier Materials. Sectional fencing must be constructed of decorative metal (aluminum, steel or iron) and must be of a dark color (either painted or stained) to compliment downtown furnishings.

(8) Rope or Chain Barriers. Rope or chain barriers are permitted. The rope or chain must have a minimum diameter of one inch. Vertical support posts must be constructed of wood or metal.

(b) Dining Areas Without Barriers or With Portable Barriers.

(1) Outdoor dining areas without fixed barriers shall use portable barriers and/or portable fixtures (i.e. chairs, planters, table, etc.) that do not have any permanent or temporary attachments to buildings, sidewalks or other improvements.

(2) Portable barriers and fixtures shall not be allowed in the outdoor dining area more than sixty (60) minutes prior to business opening or more than sixty (60) minutes following close of business.

(c) Dining Areas With Fixed Barriers.

(1) Fixtures (i.e. chairs, planters, table, etc.) may remain in the outdoor dining area during non-business hours only if bolted or secured so as to prevent removal from the premises and to also ensure public safety.

(2) Upon discontinuation of use of the outdoor dining area or the adjacent associated business, any and all items used to secure the tables and chairs (bolts, screws, etc.) shall be removed from the sidewalk and the sidewalk shall be repaired subject to the satisfaction of the City Engineer.

(3) Fences and other barriers shall not be attached to the building.

(d) Fixtures in Dining Areas.

(1) Permitted fixtures must be contained within the approved dining area and shall be limited to tables, chairs, landscape planters, umbrellas, heaters and menu boards.

(e) Landscape Planters.

(1) Planters may be used in addition to or in place of other barrier designs.

(2) Planters shall not exceed a height of thirty-two (32) inches. Plants shall not exceed a height of seventy-two (72) inches (six (6) feet) above the sidewalk.

(3) Planters shall contain plant materials in healthy condition.

(4) Planters shall have a self-contained watering reservoir system that prevents any leakage onto the sidewalk.

(5) Debris or litter caused by landscape planters shall be maintained or cleaned by the encroachment permit holder or property owner.

(f) Signage.

(1) All signage in the outdoor dining area shall conform to Title 10 of the Modesto Municipal Code.

(g) Maintenance and Operational Standards.

(1) Lighting. Adequate lighting must be provided by the operator to ensure safety of customers and pedestrians. Lighting shall be maintained in good working order.

(2) Litter and Debris. The outdoor dining area must remain clear of litter, food scraps, soiled utensils and dishes at all times. The permittee shall maintain the tables and chairs in the permitted outdoor dining area in a clean condition at all times. No debris shall be swept, washed or blown into the sidewalk, gutter or street.

(3) Pedestrian Access. It is the responsibility of the permittee to keep this sidewalk pedestrian zone clear and unimpeded for pedestrian movement. Movable items, like barriers, chairs or tables shall be positioned in accordance with the approved space-use plan at all times (outdoor dining occurs).

(4) Code Compliance. Outdoor dining areas must conform to and comply with all relevant regulations in this Code and all applicable building laws, fire and life safety laws including State laws and regulations.

(h) Permit Not Deed or Easement. Permission to encroach upon a portion of a public sidewalk with tables and chairs granted through issuance of an outdoor dining encroachment permit under this chapter shall not constitute a deed or grant of an easement by the City.

(i) Exceptions. All businesses with a valid outdoor dining permit at the time of Council's final adoption of the ordinance codified in this chapter are exempt from the requirements of Sections 4-15.107(a), (b) and (c), but shall maintain existing permitted conditions including, but not limited to, the height, length, width, and placement of presently installed barriers. Said business will remain exempt until:

(1) A total or partial change of ownership for any reason;

(2) The business ceases to do business in its current location.

(Ord. No. 3582-C.S., § 1, effective 2-22-13)

(a) Each outdoor dining permittee shall provide evidence of insurance coverage as approved by the City's Risk Manager. The permittee shall obtain and maintain in force comprehensive general liability, broad form property damage and blanket contractual liability insurance in a combined single limit amount, per claim and aggregate, of at least one million dollars ($1,000,000.00) covering the property and the permitted area on which the outdoor dining will be located.

(b) The City of Modesto, its elected and appointed officials, officers, agents and employees shall be named as additional insureds on this policy. An endorsement must be issued as part of the policy reflecting compliance with this requirement.

(c) A certificate of insurance shall contain provisions prohibiting cancellations, modifications, or lapse without thirty (30) days prior written notice to City. Said insurance shall apply as primary insurance and shall stipulate that any insurance maintained by the City shall be in excess of the permit holder's insurance and shall not contribute with it.

(d) All new and existing permits must comply with these insurance requirements.

(Ord. No. 3582-C.S., § 1, effective 2-22-13)

Annual Renewal Fee. An annual, non-refundable renewal fee shall be assessed for the costs of reviewing compliance, maintenance and insurance. The amount of the renewal fee is in an amount as shall be set forth from time to time by resolution of the City Council.

(Ord. No. 3582-C.S., § 1, effective 2-22-13)