18-10933 Amending Salina Code Pertaining to Sidewalk Cafe License Agreements (Summary published in The Salina Journal on May 11 , 2018.)
(Published on the City of Salina's website from May cg - pnay12 . 2018.)
ORDINANCE NUMBER 18-10933
AN ORDINANCE AMENDING CHAPTER 35, ARTICLE XII, SECTIONS 35-261, 35-262,
35-264, 35-266, 35-268, AND 35-270 PERTAINING TO RIGHTS AND RESPONSIBILITIES
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ASSOCIATED WITH SIDEWALK CAFE LICENSE AGREEMENTS.
BE IT ORDAINED by the Governing Body of the City of Salina, Kansas:
12 Section 1. Section 35-261 of the Salina Code is hereby amended to read as follows:
Sec.35-261. Definitions. As used in this article, unless the context clearly indicates otherwise, the
following words and phrases shall have the meanings ascribed to them in this section:
(I) Adjoining sidewalk or plaza means the area of sidewalk or plaza located within the
area defined by the projection of the angle of the exterior walls of a restaurant
building. If a restaurant building has adjoining sidewalk or plaza on connecting
sides, the area between the two resulting segments of adjoining sidewalk or plaza
may be included in the "adjoining sidewalk or plaza" for purposes of determining the
sidewalk dining area.
(2) Applicant means the owner of a restaurant who has filed with the city an application
for a sidewalk café license agreement.
(3) Application means the completed city form and any accompanying documentation
filed with the city by the applicant for the purpose of obtaining a sidewalk café
license agreement.
(4) Extended sidewalk or plaza means the area of sidewalk or plaza connected to and
uninterruptedly extending from the adjoining sidewalk or plaza.
(5) Licensee means the owner of a restaurant authorized under this article to use
sidewalk and/or plaza for sidewalk dining pursuant to a sidewalk café license
agreement.
(6) Plaza means any uncovered city-owned real property or public right-of-way
designated for pedestrian public use and not motor vehicle traffic or parking.
(7) Property owner means an owner of record, whether legal or equitable, of real
property upon which an applicant's restaurant is located.
(8) Restaurant shall have the same meaning as provided in section 42-755.
(9) Restaurant building means the building in which a restaurant is located within the
Salina Business Improvement District Number 1.
(10) Sidewalk dining means the consumption of food, beverages (including, but not
limited to, alcoholic liquor beverages or cereal malt beverages), or both, by patrons
of a restaurant outdoors on a specific area of a sidewalk and/or plaza set aside for
that purpose.
(11) Sidewalk café license agreement means the agreement between the city and the
owner of a restaurant stating the terms under which the owner of the restaurant may
utilize the sidewalk dining area for sidewalk dining.
(12) Sidewalk dining area means that portion of the adjoining sidewalk or plaza and, if
applicable, the extended sidewalk or plaza which has been approved by the city for
sidewalk dining pursuant to a sidewalk café license agreement.
(13) Unobstructed walkway means the area of sidewalk and/or plaza to remain open for
unobstructed pedestrian traffic between the sidewalk dining area and street curb,
permanent plantings, permanent street lighting, or other permanent obstructions.
Section 2. Section 35-262 of the Salina Code is hereby amended to read as follows:
Sec. 35-262. Sidewalk café license agreement required; sidewalk dining prohibited outside of
the C-4 zoning district in the Salina business improvement district number 1. No owner or
manager of a restaurant shall permit sidewalk dining without first obtaining a sidewalk café license
agreement. No sidewalk café license agreement shall be issued for an establishment that does not
meet the definition of "restaurant" or for a restaurant located outside of the C-4 zoning district
within the Salina Business Improvement District Number 1.
Section 3. Section 35-264 of the Salina Code is hereby amended to read as follows:
Sec.35-264. Applications. An application for a sidewalk café license agreement shall contain,
without limitation, the following information:
(1) Applicant's name and the names of any other persons or entities who own and/or
operate the restaurant for which applicant is submitting the application, as well as
such persons' email address(es), business address(es), business telephone number(s)
and mailing address(es).
(2) The name of the manager of the restaurant for which the application is being
submitted, his or her telephone number, mailing address, and email address.
(3) Name(s) of all property owner(s), as well as such person(s)' email address(es),
business address(es), business telephone number(s)and mailing address(es).
(4) If the applicant seeks to offer sidewalk dining on extended sidewalk or plaza, written
permission of all owners of record (including all equitable owners, if any) and all
tenants, if any, of the real property that immediately abuts or adjoins the extended
sidewalk or plaza.
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(5) A copy of a certificate of insurance, in accordance with section 35-268, establishing
that the applicant has procured appropriate liability insurance and that such insurance
is current.
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(6) A copy of the applicant's current food establishment license.
(7) A sidewalk café license agreement signed by the applicant.
(8) Whether the applicant desires to serve food only or whether the applicant wishes to
serve alcoholic liquor and/or cereal malt beverages in addition to food.
(9) An attached site plan showing:
a. Property lines and. if applicable, any building setbacks of the subject
property:
b. An elevation drawing;
c. A note setting forth the square footage of the sidewalk dining area;
d. A drawing or diagram showing the seating configuration, umbrellas and other
objects within the sidewalk dining area and all surface obstructions within
fifteen (15) feet of the proposed sidewalk dining area;
e. A drawing or diagram showing the width of unobstructed walkway abutting
or adjoining the sidewalk dining area;
f. Size, location, style, design, and color of all fences or other structures serving
as barriers or boundary markers for the proposed sidewalk dining area;
g. Points of access to the sidewalk dining area; and
h. Points of access to the restaurant building and any other building immediately
adjacent to the proposed sidewalk dining area.
(10) The applicant's signature, the signatures of property owner(s), and the date(s) of
signature(s).
Section 4. Section 35-266 of the Salina Code is hereby amended to read as follows:
Sec.35-266. Sidewalk café license agreement; term.
(a) Content. Upon approval of an application for a sidewalk café license agreement, a
sidewalk café license agreement shall be executed in a form provided by the city,
which, without limitation, shall contain the name and mailing address of the licensee,
the name(s) and mailing address(es) of all property owners, a statement of terms and
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conditions consistent with this article, and the term of the sidewalk café license
agreement.
(b) Term.
a. (1) Initial Term. All sidewalk cafe license agreements executed on the basis of
an application approved under section 35-265 shall be effective on the date of
B execution and shall expire at midnight on the May 1 following the one-year
b anniversary of the execution of the sidewalk cafe license agreement.
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(2) Renewal Term. All sidewalk café license agreements executed on the basis
of a renewal approved under section 35-267 shall be effective on the date of
execution and shall expire at midnight on the subsequent May 1.
Section 5. Section 35-268 of the Salina Code is hereby amended to read as follows:
Sec. 35-268. Sidewalk dining conditions. A licensee, and property owner, as applicable, shall,
without limitation, comply with the following provisions:
(1) Compliance.
a. Compliance with sidewalk café license agreement. The licensee shall comply with all
terms of the sidewalk café license agreement.
b. Compliance with applicable law. The use of the sidewalk dining area for sidewalk
dining shall be in conformance with zoning law governing the real property upon
which the licensee's restaurant is located, laws governing service of food and
beverages, laws governing alcoholic liquor and/or cereal malt beverages, the
provisions of this article or administrative regulations adopted pursuant thereto, and
any other law pertaining to sidewalk dining or a licensee's use of sidewalk and/or
plaza.
c. Limited use. The use of the sidewalk dining area shall be limited to sidewalk dining as
part of the business of the licensee's restaurant. Without limitation, food preparation,
mixing alcoholic liquor beverages or cereal malt beverages, and tending bar is not
permitted in the sidewalk dining area.
(2) Square footage of sidewalk dining area. The sidewalk dining area shall not exceed two
hundred (200) square feet in area, unless the city commission otherwise approves the
application and executes the sidewalk café license agreement specifically authorizing a
larger sidewalk dining area.
(3) Incorporation of site plan. The site plan submitted with the licensee's application shall be
incorporated into the sidewalk café license agreement as a description of how the licensee
may occupy and modify the sidewalk dining area, subject to any modification by the city
commission as a precondition of entering into the sidewalk café license agreement.
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(4) Alcoholic liquor and cereal malt beverages.
a. Compliance with alcohol and cereal malt beverage laws and regulations. A licensee
may serve seated patrons and a licensee's seated patrons may purchase, possess, and
consume alcoholic liquor and/or cereal malt beverages within the sidewalk dining area
in accordance with chapter 5 of this Code and other applicable law, including, but not
limited to Kansas alcoholic beverage control regulations on serving alcoholic liquor
and/or cereal malt beverages in the sidewalk dining area.
b. Limited hours of sale. A licensee shall not serve alcoholic liquor or cereal malt
beverages in the sidewalk dining area after 12:00 a.m. or before 9:00 a.m. on any day.
In no event shall this subsection be construed to expand the permitted hours for sale of
alcoholic liquor or cereal malt beverages beyond what is otherwise permitted under
chapter 5 of this Code and other applicable law.
c. Barrier required. Licensees cannot serve alcoholic liquor and/or cereal malt beverages
within the sidewalk dining area unless the sidewalk dining area is separated from the
unobstructed walkway by a barrier that conforms to applicable law, including, but not
limited to Kansas alcoholic beverage control and city administrative regulations
concerning such barriers, if any.
(5) Maintenance costs. Licensees shall be responsible for all construction and maintenance
costs associated with installing barriers or any other improvements that may be necessary
to develop and maintain the sidewalk dining area in accordance with the terms of this
article or any administrative regulations adopted pursuant to this article.
(6) Liability and insurance.
a. Insurance_
1. Type and amount of coverage. A licensee shall carry an insurance policy that
insures a licensee in an amount not less than five hundred thousand dollars
($500,000.00) per single incident for any liability associated with the failure of a
licensee, its officers, employees, agents, servants, invitees, patrons or contractors,
to exercise reasonable care and diligence in the use of the sidewalk and/or plaza
during the term of its sidewalk café license agreement and for as long as a
licensee continues to occupy sidewalk and/or plaza following termination of its
sidewalk café license agreement. Failure of a licensee to comply with these
requirements shall not be construed as a waiver of these requirements or
provisions and shall not relieve the licensee of liability.
2. Rating. All insurance policies shall be issued by insurance companies rated no
less than A- VII in the most recent "Bests" insurance guide, and admitted in the
State of Kansas. All such policies shall be in such form and contain such
provisions as are generally considered standard for the type of insurance involved.
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3. Certificate of insurance. A licensee shall provide the city with a certificate of
insurance listing the city as the certificate holder and evidencing compliance with
the insurance requirements in this article and in the sidewalk café license
agreement. The city has the right to require complete certified copies of all
insurance policies procured by a licensee pursuant to this article and its sidewalk
café license agreement, including any and all endorsements affecting the coverage
required hereunder. The certificate of insurance shall also require the insurance
carrier to notify the city at least thirty(30)days in advance of any change in terms
and conditions of the policy, including cancellation for any reason, and in advance
of any expiration of the policy term.
b. Indemnification. To the fullest extent permitted by law, a licensee shall defend,
indemnify and hold harmless the city, its agents, representatives, officers, officials and
employees from and against all claims, damages, losses and expenses (including but
not limited to attorney fees and court costs) attributable to bodily injury, sickness,
disease, death, or injury to, impairment, or destruction of property, including loss of
use resulting therefrom, to the extent that such claims, damages, losses, and expenses
relate to, arise out of, or are alleged to have resulted from the acts, errors, or omissions
of a licensee, its officers, employees, agents, servants, invitees, patrons, and
contractors to construct, maintain, or use the sidewalk dining area, and for as long as a
licensee continues to occupy sidewalk and/or plaza following termination of its
sidewalk café license agreement.
(7) No representation by the city. The city makes no representations with respect to the
sidewalk dining area or its condition. A sidewalk café license agreement grants a licensee a
contractual license to use sidewalk and/or plaza in the sidewalk dining area in its present
condition, "as is," without any warranties, representations, or assurances from the city.
(8) Removal of fixtures. The city may require, at any time and for any reason, the temporary
removal of any fixtures or objects placed on the sidewalk and/or plaza for a reasonable
period of time. Licensees shall be responsible for any costs incurred in the removal of
fixtures and shall, at the city's option, return the sidewalk and/or plaza to city pavement
standards. If, at the time that removal is required, the licensee is not the tenant of the real
property on which the restaurant that used the sidewalk dining area was located, then the
property owner shall be responsible for any costs incurred in removing the fixtures and in
returning the sidewalk and/or plaza to city pavement standards.
(9) Sidewalk café license agreement maintained at the restaurant. A licensee shall retain a
copy of the executed sidewalk café license agreement on the real property upon which the
licensee's restaurant is located, and shall make such sidewalk café license agreement
readily accessible for viewing by city personnel.
(10)Sidewalk café license agreement non-assignable. Licensees shall not attempt to transfer,
assign, sublet or convey any rights in the sidewalk dining area that are given to a licensee
pursuant to a sidewalk café license agreement.
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(11) Sidewalk café license agreement confers no real property rights on licensees. While a
licensee may control the sidewalk dining area to the extent necessary to conduct activities
authorized by this article or a sidewalk café license agreement, a licensee shall not be
considered to be a real property tenant or lessee. Nothing in this article and regulations
adopted pursuant thereto, or a sidewalk café license agreement, shall be construed to
convey any interest in the real property comprising the sidewalk dining area except a
contractual license.
S' Section 6. Section 35-270 of the Salina Code is hereby amended to read as follows:
Sec. 35-270. Policy and regulations. The city manager is authorized to promulgate any further
regulations necessary to implement the provisions of this article and is authorized to amend or
repeal any existing regulations that implement the provisions of this article. All licensees shall
comply with all regulations adopted pursuant to this article. Failure to comply with such regulations
shall be grounds for the issuance of a notice and order pursuant to section 35-369, and possible
termination of the sidewalk café license agreement.
Section 7. Summary of ordinance for publication. This ordinance shall be published by the
following summary:
Ordinance No. 18-10933 Summary
On May 7, 2018, the City of Salina, Kansas, passed Ordinance No. 18-10933. The
ordinance amends Chapter 35, Article XII, Sections 35-261, 35-262, 35-264, 35-266, 35-268, and
35-270. The amendments of such code sections pertain to rights and responsibilities associated
with sidewalk cafe license agreements. A complete copy of the ordinance is available at
www.salina-ks.gov or in the office of the city clerk, 300 W. Ash Street, free of charge. This
summary is certified by the city attorney.
Section 8. Effective date. This ordinance shall be in full force and effect from and after its
adoption and publication by summary once in the official city newspaper.
Introduced: April 23, 2018
Adopted: May 7,2018
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Karl F. Ryan, Mayor
[SEAL]
ATTEST:
Shan i Wicks, CMC, City Clerk
The pu. ' a '.n s,,.!mart' set forth above is certified this 04 day of May, 2018.
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Gro A. Be _ n, Attorney
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