The purpose of this chapter is to authorize temporary and seasonal use of the public right-of-way by private businesses. The City must balance private use of the right-of-way with other important public concerns such as parking, traffic, and public health and safety.
Pursuant to this chapter, the City may enter into seasonal license agreements with a private business to allow the business to use a portion of the right-of-way between June 1 and October 31 pursuant to the terms of the agreement.
(Ord. 1338 § 1, October 3, 2022)
For purposes of carrying out the intent of this chapter, the following words, phrases, and terms shall have the meanings set forth herein unless a different meaning is clearly intended by the use and context of the word, phrase, or term.
"City Manager"
means the City Manager as defined in Chapter 2.04 of this Code, or designee.
"Licensee"
means a person with whom the City has executed a seasonal right-of-way agreement under this chapter or any lawful successor, transferee, or assignee of such person.
"Person"
means any person, business, firm, corporation, or other legal entity who places, constructs, owns, controls, operates, manages, or uses any structure in, upon, or across any public right-of-way. For the purposes of this chapter, person does not include any local agency as defined by Government Code Section 54980.
"Public right-of-way"
means the area in, upon, above, beneath, or across any public street, road, lane, court, alley, boulevard, sidewalk, median, parkway, or easement for vehicular travel within the City.
"Seasonal right-of-way agreement"
means the authorization from the City to a person under this chapter giving the person a non-exclusive right to occupy certain space in, upon, or across any public right-of-way for the purpose of providing a specified service between June 1 and October 31.
"Seasonal outdoor business use"
means the activity of certain authorized restaurants to conduct business within the public right-of-way, such as outdoor dining, for a limited term, subject to a seasonal right-of-way agreement between the City and the restaurant.
"Seasonal Outdoor Business Program Guidelines"
means the materials promulgated by the City Manager, or designee, that control the Seasonal Outdoor Business Use Program, including, but not limited to, the criteria for considering an application for a seasonal right-of-way agreement, the required contents of a seasonal right-of-way agreement, and the requirements for all licensees operating under the Seasonal Outdoor Business Use Program. The Seasonal Outdoor Business Program Guidelines shall be approved by resolution of the City Council.
"Structure"
means any physical installation or personal property placed in the public right-of-way by a private business, including, but not limited to, "parklets," furniture, chairs, tables, umbrellas, dining fixtures, heaters, barriers, fencing, tents, signs, and decorations.
(Ord. 1338 § 1, October 3, 2022)
Upon execution of a seasonal right-of-way agreement with the City, restaurants and other businesses may provide or expand seasonal outdoor business use in portions of the public right-of-way in the areas designated by, and at the sole discretion of the City Manager, or designee, in addition to the outdoor spaces currently permitted for restaurants or other businesses under the Mill Valley Municipal Code or an applicable conditional use permit. The seasonal right-of-way agreement shall authorize the revocable and limited use of a portion of the public right-of-way or other public property for temporary, removable structures and seasonal business activity, between June 1 and October 31, subject to compliance with operational and safety provisions provided by the City Manager or designee, applicable state and county heath orders, applicable regulations of the Department of Alcohol and Beverage Control, and in compliance with the Americans with Disabilities Act.
(Ord. 1338 § 1, October 3, 2022)
The application for a seasonal right-of-way agreement shall be in writing, shall be filed with the City Manager, and shall contain the information described in the Seasonal Outdoor Business Program Guidelines.
The City may request, and applicant shall provide within the time required, any supplementary, additional, or other information the City Manager deems reasonably necessary to determine whether the requested seasonal right-of-way agreement should be granted. Such information may include, but is not limited to, the completion of a standard questionnaire for right-of-way users.
(Ord. 1338 § 1, October 3, 2022)
Each application for a seasonal right-of-way agreement shall be accompanied by payment to the City of an application fee in an amount that shall be set by a resolution of the City Council.
(Ord. 1338 § 1, October 3, 2022)
Upon receipt of an application for a seasonal right-of-way agreement which is determined to be complete by the City Manager, the City Manager shall consider the application and may, in their sole discretion, opt to negotiate and execute a seasonal right-of-way agreement with the applicant. If the City Manager, or designee, approves the seasonal right-of-way agreement, the application submitted shall constitute and form part of the seasonal right-of-way agreement as executed to the extent not inconsistent therewith. If the City Manager declines to negotiate a seasonal right-of-way agreement, they shall provide the reasons to the applicant in writing.
The criteria evaluated by the City Manager in determining whether to enter into a seasonal right-of-way agreement shall be established in the Seasonal Outdoor Business Program Guidelines.
(Ord. 1338 § 1, October 3, 2022)
A licensee may apply to amend its seasonal right-of-way agreement to correct errors in the agreement or to make minor changes to the portion of the right-of-way within which the licensee proposes to conduct its seasonal outdoor business use, as long as the type of structures and the use of such structures is already authorized by the licensee's existing seasonal right-of-way agreement. The amendment application shall contain the information required under the Seasonal Outdoor Business Program Guidelines and shall be accompanied by the application fee specified in Section 11.19.050. In considering whether to entertain an application for amendment, the City Manager shall, in their sole discretion, consider the licensee's history and current compliance with any applicable seasonal right-of-way agreement, this chapter, or any other applicable local, state or federal law, regulation, or policy.
(Ord. 1338 § 1, October 3, 2022)
A. 
A seasonal right-of-way agreement executed under this chapter shall be valid for the period of time stated in the agreement, between June 1 and October 31.
B. 
Each seasonal right-of-way agreement negotiated under this chapter is subject to the City's right, which is expressly reserved, to fix a fair and reasonable compensation to be paid by licensee for the rights granted in the seasonal right-of-way agreement. The seasonal right-of-way agreement shall specify the amount of compensation to be paid by the licensee for the use of the City's right-of-way and any required security and the other privileges granted by the seasonal right-of-way agreement. Compensation may be in the form of cash payments, in-kind contributions or other benefits of value paid or provided to the City by the licensee or any combination of the foregoing.
C. 
Licensee's structures shall be placed, constructed, owned, controlled, operated, managed, and used solely and exclusively for the purposes and uses expressly set forth in licensee's seasonal right-of-way agreement. Licensee shall not in any way use, or authorize or allow another person to use, any structure subject to licensee's seasonal right-of-way agreement for any purpose or use other than the purposes and uses expressly set forth in the seasonal right-of-way agreement.
D. 
The execution of a seasonal right-of-way agreement is a privilege to be held personally by licensee. Subject to applicable law, no seasonal right-of-way agreement or any structure permitted thereunder shall be sold, leased, licensed, assigned, disposed of, or otherwise transferred, in whole or in part, either by involuntary or voluntary sale, merger, consolidation, stock transfer, transfer in trust, or otherwise, without the prior written consent of the City, and then only under such conditions as may be prescribed by the agreement. Any proposed transferee must show that it has the financial, technical, and legal ability to perform all obligations and requirements of the seasonal right-of-way agreement, the Seasonal Outdoor Business Program Guidelines, and this chapter as determined by the City Manager and must agree in writing to comply with all provisions of the seasonal right-of-way agreement, the Seasonal Outdoor Business Program Guidelines, and this chapter. No consent by the City shall be required for a transfer in trust, mortgage, or other hypothecation, in whole or in part, to secure any indebtedness.
(Ord. 1338 § 1, October 3, 2022)
Licensee shall obtain all necessary or required permits, agreements, or approvals from the City and all other governmental entities with jurisdiction over the structure or public right-of-way. All structures shall be constructed and maintained in compliance with the seasonal right-of-way agreement, the Seasonal Outdoor Business Program Guidelines, and all applicable statutes, ordinances, codes, and regulations issued by any federal, state, or local governmental body, agency, or court.
(Ord. 1338 § 1, October 3, 2022)
Every person subject to this chapter shall, at its expense, protect, support, relocate or remove from any public right-of-way, any structure owned, operated or maintained by such person when required by the City Manager by reason of traffic conditions, public safety, street vacation, freeway or street construction, change or establishment of street grade, installation of sewers, drains, water pipes, power lines, signal lines, and tracks, or any other public use of the public right-of-way. The City shall provide 30-days' written notice to the licensee in advance of the need for relocation or removal of any authorized structure in the public right-of-way pursuant to a seasonal right-of-way agreement, where such notice is feasible. In an emergency, or where conditions require the immediate removal or relocation of an authorized structure, no notice shall be required.
(Ord. 1338 § 1, October 3, 2022)
A. 
Removal of Seasonal Outdoor Business Use Structure. In the event the use of any structure is discontinued for any reason, or in the event any structure has been installed in any public right-of-way without complying with the requirements of this chapter or the Seasonal Outdoor Business Program Guidelines, or in the event the required seasonal right-of-way agreement is terminated or expires, the licensee of each structure shall promptly remove from the public right-of-way all such structures. In the event of such removal, the area from which such structure has been removed shall be promptly restored to its previous condition prior to the installation of the structure and in conformance with the standard specifications and any applicable code requirements or provisions.
B. 
Abandonment. Any structure remaining in place 15 days after the termination or expiration of the seasonal right-of-way agreement shall be considered permanently abandoned. The City Manager may extend such time as may be necessary under the circumstances. The City, in its sole discretion, may remove an abandoned structure at licensee's sole expense, and licensee shall promptly reimburse the City for the costs of such removal within 30 days after receiving an invoice from the City for the cost of removal.
(Ord. 1338 § 1, October 3, 2022)
A. 
All structures authorized under this chapter are the personal property of the licensee and the licensee assumes all risk of damage, loss, destruction, or removal of their structure in the public right-of-way. The City, its elected officials, officers, employees, and agents shall not be liable for any damage to or loss of any structure placed in, upon, or across a public right-of-way unless such damage or loss is caused by the sole negligence or willful misconduct of the City.
B. 
Any damage done directly or indirectly to any public right-of-way or other public property or improvement, by any person subject to this chapter, shall be promptly repaired, at the person's sole cost and expense, to the complete satisfaction of the City. Alternatively, the City may, in its sole discretion, choose to perform the repair work itself, in which case the responsible person shall reimburse the City for the full costs of the repair work within 30 days after receiving an invoice from the City for the cost of repair.
(Ord. 1338 § 1, October 3, 2022)
Every person subject to this chapter shall indemnify, defend and hold harmless the City, its officials, agents, employees and volunteers against any and all liabilities, losses, claims, actions, causes of action or demands whatsoever against any of them, including any injury to or death of any person or damage to property or other liability of any nature, including, but not limited to, attorney's and expert fees and court costs, arising out of or connected with the performance of a seasonal right-of-way agreement, the installation and maintenance of any structure or the use of any public right-of-way by licensee or licensee's employees, officers, officials, agents, transferees, contractors or subcontractors. This indemnification shall not apply to any liabilities, losses, claims, actions, causes of action or demands arising from City's sole negligence, willful misconduct or criminal acts.
(Ord. 1338 § 1, October 3, 2022)
Every person subject to this chapter shall procure and maintain a policy of general liability insurance as required by the Seasonal Outdoor Business Program Guidelines and seasonal right-of-way agreement.
(Ord. 1338 § 1, October 3, 2022)
A. 
There is reserved to the City every right and power which the City has under any local, state, or federal law, and nothing in this chapter shall contract away, modify, abridge, impair, or affect, in any way, to any extent, any such right of the City. Every person subject to this chapter, by its use of the public right-of-way, agrees to comply with any actions or requirements of the City in its exercise of such rights or powers.
B. 
Neither the execution of a seasonal right-of-way agreement nor any provisions of this chapter shall constitute a waiver or bar the exercise of any governmental right or power of the City, including the City's authority to make any proper public use of the public right-of-way.
C. 
The City Council and the City Manager may do all things which are necessary and convenient in the exercise of the City's jurisdiction under this chapter.
D. 
The City shall have the right to supervise all construction or installation work performed subject to the provisions of this chapter and make such inspections as it finds necessary to ensure compliance with the terms of this chapter, a seasonal right-of-way agreement, or any other local, state, or federal law, regulation, permit, or standard.
(Ord. 1338 § 1, October 3, 2022)