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City of Kimberley
Sidewalk
Café
Regulation
Bylaw No. 2713, 2022
A bylaw to authorize and regulate the placement of temporary fixtures on streets and sidewalks
WHEREAS Council of the City of Kimberley supports revitalization and enhancement to create
and maintain vibrant, active and safe public spaces;
ANDWHEREAS Council wishes to allow for and regulate the use of portions of streets and
sidewalks for sidewalk café and patio seating areas;
ANDWHEREAS Council desires to establish regulations for the creation and use of sidewalk
café and patio seating areas on streets and sidewalks to ensure public safety and accessibility
standards are maintained; and
NOW THEREFORE the Council of the City of Kimberley, in open meeting assembled, enactsas
follows:
Title:
1.1
This bylaw may be cited as the City of Kimberley Sidewalk
Café Regulation
Bylaw
No. 2713, 2022.
Severability:
2.1
Except as otherwise provided, words and phrases used in this Bylaw willbe interpreted
consistently with the Community Charter and the Interpretation Act. A reference to a
statute inthis Bylaw refers to a statute ofthe Province of BritishColumbia, and a reference
to any statute or bylaw refers to that enactment as it may be amended or replaced from
time to time.
Recitals and headings
are for convenient
reference
and must not be
construed
as defining or limiting the scope
or intent of the content.
Any section,
subsection, paragraph, subparagraph
or clause of this bylaw is for any reason held invalid
by the decision of a Court of competent jurisdiction, then the invalid portion shall be
severed and the severance shall not affect the validity of the remainder of the bylaw.
Definitions:
3.1
For the purposes of this Bylaw:
"Applicant"
means an applicant for a Licence, and also means the holder of a Licence, once
issued;
"Application"
means an application for a Licence;
"City" means the City of Kimberley;
"Corporate
Officer" means the Corporate Of?cer for the City of Kimberley
"Manager"
means the Manager of Planning for the City of Kimberley;
"Licence" means a licence of occupation agreement
for a Sidewalk Café issued under this
Bylaw;
Bylaw 2713 - Page 2
"Seasona|"
means all or a portion of the period between April 15'to October 313';
"SidewaIk" has the same meaning as inthe Streets and Traf?c Bylaw, as amended;
"Sidewalk
Café"
includes an area of a Street or Sidewalk, including on street parking stalls
adjacent to the business frontage, wherein furniture, fixtures or structures are placed for seating
and serving customers
as an extension of an existing food or beverage vending establishment;
"Sign" has the same meaning as in the Sign Bylaw, as amended;
"Signage
Officer" has the same meaning as in the Sign Bylaw, as amended;
"Street" has the same meaning as in the Streets and Traffic Bylaw, as amended.
"Year-round"
means all of the period, or portion greater than seven months, between January
13'to December 315';
Licence Required
4.1
A Sidewalk Cafe is only allowable with a valid Licence and no person shall construct,
erect, modify, convert, expand, reconstruct, relocate or replace any such Sidewalk Café
without first having obtained a valid Licence.
4.2
An owner in possession
or an occupant of a food or beverage vending business may
establish, operate and maintain a temporary Sidewalk Cafe on a designated portion of
the Sidewalk or Street, including designated on-street parking stalls, if
(a)
that owner or occupant is using the property abutting
(i)that portion of Sidewalk,
(ii)that portion of Street or
(iii)the Sidewalk which abuts that portion of the Street,
for the commercial purpose of operating a food or beverage vending
establishment,
(b)
that owner or occupant possesses
both a valid Sidewalk Café Licence issued
under this Bylaw and a Business Licence issued under the Business Licence
Bylaw, and
(c)
that owner or occupant places and maintains the Sidewalk Café in strict
accordance with the terms of the Licence
4.3
The designated
portion of Sidewalk or Street for which a Licence is issued
(a)
must leave unobstructed Sidewalk space or route along the entire Sidewalk Café
area to safely facilitate foot and other traffic.
(b)
the Manager has the authority to determine appropriate required unobstructed
Sidewalk space.
Licence Application
5.1
To obtain a Licence, an Applicant must apply to the Corporate Officer in the prescribed
form, and must
(a)
include the registered legal name of the business and its authorized directors or
signatories;
(b)
(C)
(d)
(e)
Bylaw 2713
- Page 3
provide the plans and details of the proposed temporary Sidewalk Café showing:
(i)
the area of the Sidewalk or Street to be occupied, and
(ii)
the location and type of all fixtures or other objects which shall be placed
within any area of the Sidewalk or Street to be occupied.
include a copy of approval from the liquor inspector, ifapplicable, and health
inspector, ifapplicable;
provide proof of worker's compensation insurance covering all employees;
provide proof of comprehensive
general liabilityinsurance, in the minimum
amount of $2 millionper occurrence, naming the City of Kimberley as an
Additional Insured.
5.2
The Corporate Of?cer may grant a Licence ifsatisfied that the
(a)
(b)
the Applicant
(i)
has paid the fees prescribed in section 11.1
(ii)
has fully completed the Application form and provided all information
required,
(iii)
holds a valid business licence issued by the City, and
(iv)
has obtained all additional applicable federal, provincial and municipal
permits or licences, and
the Manager has approved the plans and details of the proposed temporary
Sidewalk Café and the proposed Sidewalk Café willnot
(i)
unreasonably
obstruct or interfere with vehicle, bicycle or pedestrian
accessibility nor restrict access for emergency personnel,
(ii)
unreasonably obstruct or interfere with the ability of the City or any
permitted third party utilitycompany to construct, install, repair or maintain
a municipal work, service, utilityor other improvement,
(iii)
cause damage to the Sidewalk or Street,
(iv)
contravene
the provisions of this or any other Bylaw,
(v)
result in insuf?cient parking or loading space within the street block,
5.3
The Corporate Of?cer may renew an approved Licence annually ifsatisfied that the
(a)
(b)
(c)
(d)
(6)
(fl
fees prescribed in section 11.1 have been paid,
proof of a valid business licence issued by the City has been provided,
proof of worker's compensation insurance covering all employees has been
provided,
proof of comprehensive general liabilityinsurance, in the minimum amount of $2
millionper occurrence, naming the City of Kimberley as an Additional Insured,
has been provided,
the Sidewalk Café was lawfully installed the previous year, and
the approved Sidewalk Café has not substantially changed.
Conditions
of Licence
6.1
Every Licence is subject to the following conditions:
(a)
for the purpose of constructing, installing, repairing or maintaining any municipal
work, service, utilityor other improvement owned by the City or a permitted third
party utilitycompany, the Applicant must
(i)
allow the employees or agents of the City and of any permitted third party
utilitycompany to enter the portion of the Sidewalk or Street designated in
the Licence, and
(b)
(c)
(d)
(e)
(f)
(9)
(h)
(i)
(J)
(K)
Bylaw 2713 - Page 4
(ii)
when requested
by City, remove part of the Sidewalk Café within 48
hours, or immediately in the event of an emergency,
for regularly
scheduled utilityor service installation, maintenance or repair,
where an Applicant neglects, refuses or fails to remove part of a Sidewalk Café
under subsection (a), or fails to do so withinthe time specified under that
subsection, the Manager may cause any part of the Sidewalk Café to be
removed for the purposes in that clause and may charge the costs of the removal
to the Applicant,
at all times and at the Applicant's own expense, the Applicant must keep and
maintain the Sidewalk Café in a clean, sanitary, attractive condition satisfactory
to the Manager and must keep the Sidewalk surrounding or adjacent to the
Sidewalk Café free from snow, ice, papers, rubbish and debris of any kind,
an Annual licence holder must manage snowfall in accordance with the City's
Snow Management
Plan and to the satisfaction of the Manager,
the Applicant must not use the Licence area for any purpose other than seating
and serving customers,
where an Applicant is required to remove any fixtures, furnishings and personal
property pursuant to this Bylaw, the Applicant must not make any claim against
the City on account of such removal and must replace and restore the Sidewalk
or Street to a safe and proper condition to the satisfaction of the Manager,
where an Applicant neglects, refuses or fails to cease occupation of the Sidewalk
or Street as required pursuant to this Bylaw, or fails to do so withinthe time
specified, the Manager may cause any fixtures, furnishings or personal property
located on the Sidewalk to be removed and may cause the Sidewalk to be
restored to a safe and proper condition and may charge the costs of such
removal and restoration to the Applicant,
a Licence may be issued and valid either for a Seasonal period of up to seven (7)
months or a Year-round period and may be renewed for additional Seasonal or
Year-round periods, as the case may be, upon submission of a renewal
application and payment of the prescribed Licence fees, subject to the terms of
this Bylaw,
in consideration for the issuance of the Licence, the Applicant agrees to
indemnify and save harmless the City, its of?cers, employees from and against
all liabilities, action, claim, damage,
bodily injuries or loss whatsoever
arising
from the use of the sidewalk as authorized by the sidewalk café licence arising
out of, or in any way related to, the use of the sidewalk for business,
during the term of the Licence
(i)
the Applicant must obtain and maintain in force commercial general
liabilityinsurance, in the minimum amount of $2 millionper occurrence,
and
(ii)
the City must be added as an additional insured, together with a cross
liability clause, to every policy of insurance required to be maintained
under subparagraph
(i) and the City must be provided with proof of such
coverage prior to the issuance or renewal of a Licence,
Sidewalk Cafes and patio seating areas must be barrier-free accessible, unless it
is shown, to the satisfaction of the Manager, to be impractical,
Bylaw2713
- Page 5
(I)
No Sign shall be displayed on a Sidewalk Cafe unless specifically permitted by
the Signage Of?cer,
(m)
Planters may be permitted provided they are located withinthe area of the
Sidewalk Café,
(n)
Design, materials and colours of a Sidewalk Café,
including accessories
and
fixtures, must complement the aesthetics of adjacent business facadesand
public spaces. Materials and accessories
must be durable and of high quality to
withstand exposure to the elements and must retain their visual appeal through
regular maintenance or replacement. Unsightly infrastructure and accessories are
subject to removal or replacement upon notice by the Manager,
(0)
No Sidewalk Café shall be permitted to operate later than 12:00am or play
amplified music, sound or noise after 10:00pm.
No Assignment
of Licence
7.1
7.2
An Applicant must not assign or transfer the permission for the use of the portion of the
Sidewalk or Street as authorized in the Licence without the prior written consent of the
Manager.
Where the Manager refuses to consent to assignment or transfer under subsection 7.1,
the person who requested the assignment or transfer may appeal the decision to
Council.
Sidewalk
Café Fixtures
8.1
8.2
An Applicant who holds a Licence for a Sidewalk Café which contains fixtures must
ensure that all fixtures are affixed in a temporary manner which allows them to be
completely removed, and the Sidewalk or Street restored, with minimal reasonable
effort.
The Applicant must, at its own cost and expense, remove all'fixtures,furnishings and
personal property from the Sidewalk or Street
(a)
immediately upon Licence expiration, or
(b)
upon five (5) days' notice of Licence cancellation in writing from the Manager and
must cease occupation of the licensed area withinthat time.
Authority
of the Corporate
Officer
9.1
The Corporate Officer is authorized to:
(a)
determine the form of an Application for a Licence,
(b)
prescribe the form of Licence,
(c)
issue and renew a Licence for the operation of a Sidewalk Café in accordance
with the terms and speci?cations set out in this Bylaw, and impose additional
terms, conditions, restrictions and requirements,
(d)
refuse to issue or renew a Licence, if
(i)
the information submitted is insufficient to determine compliance with the
provisions of this bylaw or another enactment,
(ii)
the information submitted is incorrect,
(iii)
there was contravention of any specification or condition of the Licence
being considered for renewal,
(iv)
itwould be prohibited by any other bylaw or regulation, or
Bylaw 2713 - Page 6
(v)
the Corporate Officer considers that the activities proposed or contemplated
under the Licence cannot be carried out safely and with a minimum risk of
injury to persons, damage or loss to property, inconvenience
to others
using the Street or Sidewalk, residents or businesses
in the vicinity, or to
the public generally.
(e)
suspend,
amend, vary, revoke, or cancel any Licence, without compensation to
the permit holder, if
(i)
there is a contravention of any specification or condition of the Licence,
(ii)
the Licence was issued in error,
(iii)
the Licence was issued on the basis of incorrect information;
(iv)
in the opinion of the Corporate Officer, a portion of the Sidewalk Café area
is required for the installation of municipal utilities or other municipal
purposes, or
(v)
the Corporate Of?cer considers that the activities under the Licence are
not being carried out safely and with a minimum risk of injury to persons,
damage or loss to property, inconvenience to others using the Street or
Sidewalk, residents or businesses
in the vicinity, or to the public generally.
Reconsideration
10.1
An Applicant may request reconsideration of the refusal, suspending,
revoking or
cancelling of a Licence by the Corporate Officer by submitting a written request to the
Corporate Officer withinthirty days of the decision and the Corporate Officer shall
ensure the request is included on the agenda of the next reasonably
convenient
meeting
of Council no later than 45 days from receipt of the request.
10.2
Council may uphold the decision, or may overturn the decision and may impose
conditions on the issuance of the Licence. Council's decision on the matter is final.
Fees
11.1
An Applicant for a Sidewalk Café Licence must pay to the City
(a)
an initialApplication fee of $100.00 for any Application, which is not a renewal of
a Licence, plus an annual rental fee,
(b)
a renewal fee of $50.00 for any renewal of a licence plus and annual rental fee,
(c)
an annual rental fee of $10 per square meter of Licence area approved on a
Seasonal
(up to seven months) basis,
(d)
an annual rental fee of $20 per square meter of Licence area approved on a
Year-round basis, or
(e)
an annual rental fee of $5 per square meter of approved Licence area where
tables, seats and/or other fixtures are removed at the close of each business day.
11.2
Council may, by resolution, waive all or portions of the fees prescribed in section 11.1 on
an annual basis.
Offences
12.1
A person commits an offence and is subject to the penalties imposed by this Bylaw, the
Municipal Ticket Information Bylaw and the Offence Act ifthat person:
(a)
contravenes
or fails to comply with a provision of this Bylaw,
(b)
consents
to, allows, or permits an act or thing to be done contrary to this Bylaw,
or
(c)
neglects or refrains from doing anything required by a provision of this Bylaw.
12.2
Each day that a contravention of a provision of this Bylaw occurs or continues
constitutes a separate
offence.
Bylaw 2713
- Page 7
Repeal
13.1
City of Kimberley Sidewalk Cafe Regulation Bylaw No. 2583, 2017 is hereby repealed
132
City of Kimberley Sidewalk
Café
& Street Patio Policy (revised
March 2016) is hereby
repealed.
Read a first, second, and third time on the 14"'day of February,
2022.
Adopted on the 28"'day of February.
2022.
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Mayor
Corporate
Officer