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Doc # 2680322
CORPORATION OF THE CITY OF NEW WESTMINSTER
STREET AND SIDEWALK PATIO BYLAW NO. 8318, 2022
(Adopted March 28, 2022)
This is a consolidation of the bylaws listed below. The amendment bylaws have
been combined with the original bylaw for convenience only. This consolidation is
not a legal document. Certified copies of the original bylaws should be consulted for
all interpretations and applications of the bylaws on this subject.
AMENDMENT BYLAW
ADOPTION DATE
EFFECTIVE DATE
Bylaw No. 8514, 2025
March 24, 2025
March 24, 2025
Obtainable from the Legislative Services Department
CONSOLIDATED FOR CONVENIENCE ONLY
(April 1, 2025)
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Page 2
CORPORATION OF THE CITY OF NEW WESTMINSTER
BYLAW NO. 8318, 2022
A Bylaw to Permit Encroachment on City Streets and Sidewalks
for the Purpose of Operating a Patio
WHEREAS the Community Charter S.B.C. 2003 c.26 section 36
empowers Council, by bylaw, to regulate and prohibit in relation to all uses of or
involving a highway or portion of it or a public place;
NOW THEREFORE, the City Council of the Corporation of the City of
New Westminster, in open meeting assembled, ENACTS AS FOLLOWS:
1.
This Bylaw may be cited for all purposes as "Street and Sidewalk Patio
Bylaw No. 8318, 2022".
2.
No person shall occupy any portion of a highway or other public place
for the purpose of operating a patio without first entering into an Encroachment
Agreement with the City, in the form attached as Schedule "A" to this Bylaw, which is
incorporated into and forms part of this Bylaw (the "Encroachment Agreement"). The
City is under no obligation to enter into an Encroachment Agreement with any
person.
3. For the purposes of this bylaw, the following definitions are applied:
"Curbside patio" means a semi-permanent structure constructed or placed in
the parking lane of a street in front of a liquor primary licensed premises, lounge
endorsement area, restaurant or café and which is the subject of a licence
agreement with the City.
"Small patio" means moveable furniture placed on a sidewalk, which supports
or accommodates business activity or customer seating as an extension of and
adjacent to the business address of an existing food or beverage establishment that
does not extend into an area perpendicular to the frontage of a neighbouring
business.
"Large patio" means a semi-permanent structure constructed or placed on a
street or sidewalk, which supports or accommodates business activity or customer
seating as an extension of and adjacent to the business address of an existing liquor
Doc # 2680322
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primary licensed premises, lounge endorsement area, restaurant or café
establishment and which is the subject of a licence agreement with the City.
"Patio" means "curbside patio", "small patio" and "large patio"
"Seasonal patio term" is defined as April 1 - October 31.
4.
Effective January 1, 2023, and unless waived or reduced after an
application to the City Engineer, every person entering into an new Encroachment
Agreement and encroaching on the City's streets for the purpose of operating a
patio, shall upon execution of the Encroachment Agreement pay to the City the
following;
(a)
Patio application fee of $50 required per term of seasonal patio
installation and once for a year-round patio.
(b)
Encroachment Patio Fees
i.
Year Round Patio: annual fee of $26.91 per square metre
($2.50 per square foot) of sidewalk or street encroached
upon; or
ii.
Seasonal Patio (April 1 - October 31): annual fee of
$15.72 per square metre ($1.46 per square foot) of
sidewalk or street encroached upon; or
iii.
Small patio: annual fee of $30 per table and two chairs.
(c)
A security deposit in the amount of $600.
5.
Unless amended or varied by the City Engineer, no person shall
encroach upon the City's streets for the purpose of operating a patio, unless the
patio is an extension of a liquor primary licensed premises, lounge endorsement
area, restaurant or café which occupies a building immediately behind the street
property line.
6.
Unless amended or varied by the City Engineer, no patio shall extend
beyond the width of the abutting liquor primary licensed premises, lounge
endorsement area, restaurant or café's frontage.
7.
A patio:
(a)
may not be operated prior to 9:00 am for a liquor primary
establishment or lounge endorsement area in a commercial
zoning district; or prior to 9:00 am for a lounge endorsement
area, in an industrial zoning district; and
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(b)
must comply with Noise Bylaw No.6520, 1999.
8.
Smoking is prohibited in all patios.
9.
Unless amended or varied by the City Engineer, the outside edge of the
patio shall not extend into the sidewalk any closer than 1.8 metres (6 feet) from the
face of the curb. The minimum clearance from any obstruction on the sidewalk to the
outer edge of the patio shall be 1.5 metres (5 feet).
10.
Every application to encroach upon the City's streets for the purpose of
operating a patio shall be accompanied by the following:
(a)
an application form indicating the applicant's willingness to enter
into an Encroachment Agreement with the City and providing a
description of the purpose and design of the patio;
(b)
one copy of a site plan of the establishment, the patio and the
adjacent sidewalk and curb, clearly showing all exits, outside
tables and chairs, bus zones, parking, landscaping, trees, and
any other City street furniture to a distance of 4.5 metres (15
feet) on either side of the establishment frontage;
(c) such other information as may be necessary to illustrate any
features of the patio's design.
11.
The City Engineer shall have all powers and authority necessary to
enforce the provisions of this Bylaw.
12.
Highway Encroachment Bylaw No. 5740, 1988 does not apply to an
encroachment for the purposes of operating a patio.
13.
"New Westminster Sidewalk Cafe Encroachment Bylaw, No. 6370,
1997" is hereby repealed.
Adopted March 28, 2022
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SCHEDULE "A"
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THIS ENCROACHMENT AGREEMENT dated the day of 20
BETWEEN:
(the "Applicant")
AND:
CORPORATION OF THE CITY OF NEW WESTMINSTER
City Hall
511 Royal Avenue
New Westminster, B.C.
V3L 1H9
(the "City")
RECITALS
A.
The Applicant is the liquor primary operator, lounge, restaurant, or café,
on the Lands defined in this Agreement.
B.
The Applicant has requested that the City grant its permission to use the
Encroachment Area defined in this Agreement for the purpose of operating a
patio.
C.
The City agrees to grant the Applicant's request subject to the provisions
of the City's bylaws as amended from time to time and subject to the terms and
conditions of this Agreement;
THIS AGREEMENT WITNESSES THAT in consideration of the promises
contained in this Agreement and other good and valuable consideration THE
PARTIES HEREBY AGREE AS FOLLOWS:
Lands
1.
The liquor primary licensed premises, lounge endorsement area,
restaurant or café is operated on lands situated in the City of New Westminster,
British Columbia, which are more particularly described as:
(the "Lands")
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Permission to Encroach
2.(1)
The City, subject to the terms of this Agreement, grants the
Applicant permission to encroach upon that portion of highway in the City which
is shown outlined on the Sketch attached as Schedule "1" to this Agreement and
which is further described as:
(the "Encroachment Area")
2.(2)
The Applicant shall not undertake any construction or other work,
or deposit any chattels or other materials associated with the patio in the
Encroachment Area (collectively the "Works") without the written permission of
the City. The Applicant shall not permit the Works to encroach on any highway
other than the Encroachment Area.
Title
3.
This Agreement does not give the Applicant any legal or equitable
interest of any kind in the Encroachment Area. The Encroachment Area retains
its status as a highway.
Payment
4.(1)
Upon execution of this Agreement, the Applicant shall, for the first
year of this Agreement, pay to the City the current annual patio encroachment
fee prescribed by Section 4 of the City of New Westminster Street and Sidewalk
Patio Bylaw No. 8318, 2022 (the "Encroachment Fee"), and an amount of
$600.00 to be held by the City as a security deposit against the works. This
deposit will be released to the applicant upon termination of the Agreement less
any charges, if any, incurred by the City associated with maintenance or removal
of the works.
4.(2)
Each year thereafter on the anniversary date of the execution of
this Agreement, the Applicant shall pay to the City the prevailing Encroachment
Fee for that year as prescribed by Section 4 of the City of New Westminster
Street and Sidewalk Patio Bylaw No. 8318, 2022.
Maintenance
5.(1)
The Applicant shall at all times and at their own expense keep and
maintain the Works and the Encroachment Area in good and sufficient repair to
the satisfaction of the City.
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5.(2)
The Applicant shall not make any structural alterations to the
Works without the prior written consent of the City.
5.(3)
If the Applicant fails to keep the Works in good repair to the
satisfaction of the City, the City may, in its sole discretion, cause such repairs to
be made, including structural changes, as it deems necessary at the Applicant's
expense. The Applicant shall pay the costs of the repairs to the City forthwith on
demand.
5.(4)
Where costs are incurred by the City they shall be charged to
property taxes where they relate to:
(a)
this Agreement; or
(b)
work that has resulted in damage to City property.
Design Specifications
6.
The Applicant shall ensure that the patio and the Works conform to
the following requirements and specifications:
(a)
the limits of the Encroachment Area shall be demarcated by
means of moveable planters and/or fences which shall be
not less than 76 cm (30") nor more than 122 cm (48") in
height, unless the Encroachment Area consists of a Small
Patio in which case no demarcation is required;
(b)
the Works located upon the Encroachment Area shall
consist only of seating, tables, umbrellas, planters and
fences; and
(c)
no
portion
of
the
patio
shall
extend beyond the
Encroachment Area.
(d)
no signs which promote a third party are located in the area
of the patio or on any fences, railings or other means
separating the patio from the sidewalk or street.
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Indemnity and Insurance
7.(1)
The Applicant indemnifies and holds harmless the City from all
claims of any kind, however caused, whether known or unknown, arising out of
or in any way connected with:
(i)
the permission to encroach granted by this Agreement;
(ii)
the existence and use of the Encroachment Area; or
(iii)
the construction, maintenance, existence, use or removal of
the Works.
7.(2)
The indemnity in Subsection (1) includes, without limitation, a claim
for loss or injury to persons or to property due to the Applicant's negligence or to
the Applicant's failure to comply with the City's bylaws or any one of them or with
any provision of this Agreement.
7.(3)
The Applicant shall take out and maintain, with such companies
and on such terms as are acceptable to the City, at the Applicant's expense, at
all times while this Agreement is in force, comprehensive general liability
insurance covering without limitation premises and operations liability, and
contractual liability. The limits of liability for personal injury, property damage
and contractual liability combined shall be for not less than $2,000,000 for each
occurrence or such other reasonable amount as may be determined by the City
from time to time for each occurrence. If liquor service is provided on the patio,
the Applicant shall take out and maintain $5,000,000 Host Liquor Liability
insurance. The Applicant shall include the City as an additional insured under the
policies of comprehensive general liability insurance. A cross liability clause
shall be made part of the policies of comprehensive general liability insurance.
All policies shall provide that they shall not expire, be cancelled or be materially
changed without at least thirty (30) days prior written notice to the City by
registered mail. Prior to commencement of any work hereunder, and otherwise
as the City may request, the Applicant shall file with the City certified copies of
each insurance policy required hereunder, or such other proof satisfactory to the
City that all such policies are in force as may be applicable. Should the
Applicant neglect to obtain or maintain insurance or obtain and maintain
insurance as aforesaid or to deliver the policy or policies therefore to the City, the
City shall have the right to, but shall not be obligated to, obtain or maintain such
insurance, and the Applicant hereby appoints the City its true and lawful attorney
to do all things necessary for this purpose. All monies expended by the City for
insurance premiums under the provisions of this Section shall be charged to the
Applicant and payable by the Applicant to the City forthwith on demand.
8.
No finding of negligence, whether joint or several, as against the
City in favour of any third party in an action to which the Applicant was not a
party, shall operate to relieve or shall be deemed to relieve the Applicant in any
manner from any liability to the City, whether such liability arises under this
Doc # 2680322
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Agreement, under the provisions of the Local Government Act as amended from
time to time or otherwise.
Release
9.
The Applicant releases the City from all claims of any kind, whether
known or unknown, which the Applicant now has or at any future time may have,
however caused, arising out of or in any way connected with the permission to
encroach granted by this Agreement, the existence and use of the
Encroachment Area, the construction, maintenance, existence, use or removal of
the Works, or the exercise by the City of any of its rights in this Agreement.
Security
10.
The City retains the right on the termination of this Agreement to
proceed with the enforcement of any security or indemnity provided in this
Agreement or otherwise.
Termination
11.(1)
If the Applicant violates any provision of this Agreement or of the
City's bylaws, the City may terminate all the Applicant's rights under this
Agreement on two weeks' notice. If the owner fails to remove the works as
required by the City, the City may in its sole discretion, cause the works to be
removed at the owner's expense.
11.(2)
The City, may at any time in its sole discretion, withdraw the rights
it has granted to the Applicant in this Agreement and terminate the Agreement
on four weeks' notice. Should the City exercise its discretion under this
Subsection, then the City shall reimburse the Encroachment Fee to the
Applicant, on a proportionate basis, based on the remaining portion of the year.
11.(3)
On receipt of notice under Subsection (1) or (2), the Applicant shall,
within the time period stated in the notice, at his or her expense, remove the
Works and otherwise restore the Encroachment Area to the satisfaction of the
City.
11.(4)
Where the Council of the City considers that, in its sole discretion,
the interest of the public in the highway on which the Encroachment Area lies
makes it necessary or advisable, the Council may shorten the time limits in this
Section.
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Assignment
12.
The Applicant shall not assign any of its rights and obligations
arising from this Agreement without the prior written consent of the City.
Right of Entry
13.
The City's employees or agents shall have the right at any and all
times to enter into and upon the Lands for the purpose of constructing,
maintaining, inspecting or removing any public works or utility in the vicinity of the
Encroachment Area or for the purpose of maintaining or removing the Works
under this Agreement.
Alterations to City Property and Public Works
14.
In the event of any alteration or change made necessary to any
meter, water service, sewer or other public works or utility in the vicinity of the
Lands by the construction, maintenance, use or removal of the Works, the
Applicant shall reimburse the City for whatever expenses it may incur in making
the alterations or changes that are deemed necessary by the City.
City's Rights Reserved
15.
This Agreement does not in any way restrict the right of the City at
any time to widen, raise or lower the highway or boulevard abutting or adjoining
the Lands, even if the effect of the alteration in width or elevation or both may be
to render the Works, the Encroachment Area, or both useless for the purposes
of the Applicant.
Licenses and Permits
16.
The Applicant shall, at their expense, obtain and maintain all
licenses, certificates, permits and authorizations, including applicable Provincial
liquor licenses, as may be necessary and required to operate the patio.
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Interpretation
17.
The waiver of default by either party shall not be deemed to be a
waiver of any subsequent default by that party.
18.
Whenever it is required or desired that either party deliver or serve
a notice on the other, the delivery or service shall be deemed to be satisfactory if
and deemed to have occurred when the notice has been:
(a)
served personally, on the date of service, or
(b)
mailed by pre-paid registered mail, on the date received or
on the sixth day after receipt of mailing by any Canada Post
Office, whichever is the earlier, so long as the notice is
mailed to the party at the address on the first page of this
Agreement for that party or to whatever address to which the
parties from time to time may in writing agree, except that in
the event of a strike or disruption in postal service, the notice
shall not be deemed to be received until actually received.
19.(1)
Whenever the singular is used in this Agreement, the same is
deemed to include the plural or the body politic or corporate as the context so
requires.
19.(2)
Every reference to each party is deemed to include the heirs,
executors, administrators, successors, assigns, employees, agents, officers,
elected officials and invitees of such party whenever the context so requires or
allows.
20.
Section headings are included for convenience only. They do not
form a part of this Agreement and shall not be used in its interpretation.
21.
Any opinion which the City is entitled to form in this Agreement may
be formed on behalf of the City by the Director of Engineering Services, in which
event the opinion of the Director shall be deemed to be the opinion of the City for
the purposes of this Agreement.
22.
If any part of this Agreement is for any reason held to be invalid by
the decision of a court of competent jurisdiction, the invalid portion shall be
severed and the decision that it is invalid shall not affect the validity of the
remainder of this Agreement.
23.
This agreement shall endure to the benefit of and be binding on the
parties hereto NOTWITHSTANDING any rule of law or equity to the contrary.
24.
This Agreement shall be governed by and construed in accordance
with the laws of the Province of British Columbia.
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25.
IN WITNESS WHEREOF the parties have executed this
Agreement under seal.
SIGNED, SEALED AND DELIVERED
)
)
by____________________________
)
in the presence of:
)
)
______________________________
)
Witness
)
__________________________
)
(Insert Name of Applicant)
______________________________
)
Address
)
)
______________________________
)
Occupation
)
The Corporate Seal of the City
)
was hereunto affixed in the
)
presence of:
)
)
)
______________________________
)
Mayor
)
)
)
______________________________
)
City Clerk
)