A. Permit Required: Any encroachment of a private building or use within the public right of way requires a written permit from the city manager or his/her designee.
B. Application: Application for the permit required by the provisions of this section shall be made on a form provided by the city.
1. The application shall be submitted to the city manager. The city manager or his/her designee shall examine the application and shall approve the same unless they find that the application fails to meet the applicable requirements contained in this chapter or if there is a basis for denying the application because allowing the encroachment would endanger the health, safety or welfare of the public or would cause hardship or damage to nearby property owners.
2. If the application is denied, the applicant may, within thirty (30) days of notice of denial, appeal this decision to the city council.
C. Application Review: Factors considered when reviewing an application or revoking a permit include, but are not limited to:
1. The permit holder shall provide proper containers for the collection of waste and trash and shall be responsible for keeping the outdoor area clean of garbage, trash, or litter associated with the operation of the permitted business and shall be responsible for clean up and/or repair of the sidewalk caused by the use of the area;
2. Structures, equipment or use encroachments locating on a sidewalk shall be located so that a minimum of forty eight inches (48") of unobstructed sidewalk clearance for pedestrian traffic is provided, or the minimum required by the Moorhead building code or the Americans with disabilities act, whichever requirement is more restrictive;
3. Outdoor dining and merchandise areas shall be permitted only adjacent to the building or structure in which the business is located and shall not be permitted next to the curb of the street. In no event shall outdoor dining or merchandise areas be permitted in roadways unless approved by the city council;
4. All structures, equipment, use encroachments, devices, furniture, fencing or other accessories used shall not block regulatory signs, crosswalks, intersections, fire hydrants or handicap loading zones, shall be sufficiently lit during times of low light in order to provide for safe pedestrian passage alongside the areas and shall not impede, endanger or interfere with pedestrian or vehicular traffic;
5. All structures, equipment, use encroachments, devices, furniture, fencing or other accessories shall be stable and not easily tipped and shall not include sharp edges, protrusions, or other features which may be hazardous to the public;
6. All structures, equipment, use encroachments, devices, furniture, fencing or other accessories shall meet a minimum height of twenty eight inches (28") tall or of sufficient size or height so that safe pedestrian traffic is not impeded or must comply with the requirements of the Americans with disabilities act, whichever requirement is more restrictive;
7. All structures, equipment, use encroachments, devices, furniture, fencing or other accessories shall be moved inside the building wherein the business is located during inclement weather;
8. The maintenance, security and upkeep of all structures, equipment, use encroachments, devices, furniture, fencing or other accessories shall be the sole responsibility of the permit holder. All fixtures, devices, furniture, fencing or other accessories shall be clean and well maintained;
9. The permit holder shall not have on the premises any bell, siren, horn, bullhorn or similar loudspeaker or any such device to attract the attention of possible customers nor shall the permit holder use any such device to attract attention;
10. The permit holder shall comply with all city regulations and other applicable regulatory agency requirements and regulations including, but not limited to, the requirements for food service and noise control. The permit holder shall display in a conspicuous location all required permits and/or licenses. The permit holder shall continuously maintain the required approvals, permits and/or licenses;
11. Food carts, mobile food units, special event food stands and/or seasonal food stands may not be located nearer than sixty five feet (65') from a business that holds a limited restaurant license or a restaurant license issued by the city health department; provided, however, that said uses may be located in front of the sponsoring restaurant, the base of commissary operations for the said unit, or with written permission of all of the owner(s) of businesses within sixty five feet (65') that hold a restaurant license;
12. Any applicant wishing to locate in the right of way adjacent to a business that is not the sponsoring business must first receive written permission of all of the owner(s) of businesses within sixty five feet (65') of the proposed encroachment;
13. Any permission hereunder granted and all rights of the permittee hereunder shall cease at any time that the permit is revoked and all encroachment shall be removed immediately. The granting of a permit shall in no way be considered a relinquishment by the city of that portion of said public right of way, or be of any force or effect beyond the time herein provided. Additional conditions may be imposed on encroachment permits to protect the health, safety or welfare of the public or to protect nearby property owners from hardship or damage or to protect other public interests as determined by the city manager. (Ord. 2007-11, 6-4-2007)
D. Application Fee: Each application for a permit required by the provisions of this section shall be accompanied by an application fee in an amount as established by the city's fee schedule, which fee shall be retained by the city whether or not a permit is issued. Permits only need to be renewed if the use is altered or if the applicant is informed by the city in writing that the permit has been canceled. (Ord. 2007-11, 6-4-2007; amd. Ord. 2007-30, 1-7-2008, eff. retroactive to 1-1-2008)
E. Compliance With Liquor Laws: Those desiring to utilize the space in conjunction with the issuance of an on-sale liquor (on- sale intoxicating, wine, club, temporary, and 3.2 percent malt liquor) license must comply with applicable state liquor laws regarding licensed premises. Such space located within the public right of way must be "compact and contiguous", attached to the licensed premises/structure, and subject to review and approval by the Moorhead police department.
F. Term: Unless otherwise provided in the permit, the term of the permit shall begin and end with the calendar year. For the issuance of a permit for a period less than a year, the effective date of such permit shall commence with the date of issuance and expire December 31, unless otherwise provided.
G. Investigation: The city manager may, prior to the issuance of any permit pursuant to this section, refer such application to any department or advisory committee, including the city council, for the purpose of obtaining the recommendation of such department or committee with respect to such application.
H. Insurance: The permittee shall, at all times during the duration of the permit, maintain public liability insurance, naming the city as an additional insured party, in the amounts of at least the maximum amounts of tort liability of the city pursuant to statute, with respect to the occupation and use of such right of way by the permittee, which insurance shall be evidenced by a policy providing, in part, that such insurance shall not be canceled or terminated by any party, except upon thirty (30) days' notice in writing to the city of intent to cancel the policy and if any permittee allows the insurance policy to lapse without furnishing a new policy in lieu thereof, the city manager shall initiate proceedings to have the permit revoked and the encroachment removed.
I. Responsibility: The applicant shall and agrees to indemnify and save harmless the city from any and all claims and demands which may arise as a result of the installation, placement, building, erection, maintenance, occupation or use of such building, structure or encroachment upon such right of way. (Ord. 2007-11, 6-4-2007)