(a) Except as otherwise expressly provided for in this Chapter, an application for a public way use permit shall be made to the Department and shall include the following:
(1) the applicant's name and address, and the name and address of the property owner;
(2) a detailed drawing indicating the location of all public way uses on, over or under the public way for which a permit is required;
(3) proof of the required insurance;
(4) proof of the building's age if the building was constructed in or prior to 1922;
(5) the application fee, if applicable; and
(6) any other information reasonably required by the Commissioner.
(b) The Commissioner shall forward a copy of an application for subsidewalk space use to the Commissioner of Transportation within three days after receipt of the application. No public way use permit for subsidewalk space use shall be issued unless the Commissioner of Transportation, after reviewing the application, has approved the design of the subsidewalk space use.
(c) (1) If the Commissioner finds that the permit application is complete, the Commissioner shall provide the application to the alderman of the affected ward. The alderman shall provide a recommendation to the Commissioner regarding the application within 30 days of receiving it, unless the Commissioner determines that good cause exists for a reasonable extension, not to exceed 30 days. The recommendation regarding the application shall be based upon the alderman's analysis of the factors laid out in the following paragraph of this subsection (c)(1). Such recommendation shall not be unreasonably withheld. The Commissioner shall issue the public way use permit to the applicant if the Commissioner finds that the applicant meets the applicable requirements and the alderman's recommendation is that the permit application should be approved. If the Commissioner finds that the applicant does not meet the applicable requirements, the Commissioner shall deny the application and shall notify the unsuccessful applicant in writing of the denial within ten business days after the denial. If the Commissioner finds that the applicant meets the applicable requirements, but the alderman recommends that the permit application should be denied, the applicant, with the assistance of the Department of Business Affairs and Consumer Protection, may submit for City Council consideration an applicant-sponsored ordinance granting approval of a public way permit.
A public way use permit shall be denied or revoked if: (i) the granting of the public way use is not in the best interest of the public, would have a deleterious impact on the neighborhood, or would create a nuisance either on the public way or in the surrounding area; (ii) the design of, or materials used in, the public way use does not comport with the quality or character of the existing streetscape; (iii) the use interferes with or impedes the flow of pedestrian or vehicular traffic, or ingress or egress from any surrounding building, the use of any pole, traffic signs or signals, hydrants, mailboxes or other objects located near the location of the proposed use; or (iv) the applicant makes any false statements, submits any false information or misrepresents any information required under this section.
(2) Administrative appeal process. Upon denial by the Commissioner of an application made under this section, the Commissioner shall notify the applicant, in writing, of such fact and of the basis for the denial. Such notice shall include a statement informing the applicant that the applicant may, within 10 calendar days of the date on which the notice was sent, request, in a form and manner prescribed by the Commissioner in rules, a hearing before the Commissioner to contest the denial. The notice shall also advise the applicant that the applicant is entitled to present to the Commissioner any document, including affidavits, related to the Commissioner's determination of denial. If requested, a hearing before the Commissioner shall be commenced within 10 business days of receipt of such request. Within 60 calendar days of completion of the hearing, the Commissioner shall either affirm or reverse such determination based upon the evidence presented. The Commissioner's decision shall be final and may be appealed in the manner provided by law. If an applicant fails to request a hearing within the prescribed time, or requests a hearing but fails to appear at such hearing, the application shall be deemed denied. Upon entry of a final order of denial, the Commissioner shall notify the applicant in writing of such fact. Public way use permit revocations and rescissions shall follow the same process set forth in this subparagraph.
(d) The term of a public way use permit shall be for five years. The annual fee for the first year shall be due at the issuance of the permit and the remaining annual fees shall be paid, as provided for in rules and regulations; provided that the proof of insurance required as a condition of the permit be submitted annually, as provided for in the rules and regulations.
(e) All public way use permits shall be subject to the following:
(1) Each public way use and the structures and appliances authorized by the permit shall be maintained and used in accordance with all applicable laws, including the ordinances of the city and the directions of the Commissioner, the Commissioner of Streets and Sanitation, the Building Commissioner, and the Commissioner of Transportation. The permittee shall keep that portion of the public way in, over, under or adjacent to the public way use in good condition and repair, safe for public travel, and free from snow, ice and debris to the satisfaction of the Commissioner of Transportation.
(2) Notwithstanding any other provision of this section, if circumstances warrant, the public way permit is subject to amendment, modification or revocation at the discretion of the Mayor or the Commissioner at any time, without cause and without the consent of the permittee. Upon termination of the permit, the permittee, at the permittee's own expense and without cost or expense to the City, shall remove, within 30 days of such termination and without the notice required in Section 10-28-010, the public way use and any structures and appliances authorized by the public way use permit and restore the public way where disturbed by the public way use or by the removal thereof, to a proper condition under the supervision and to the satisfaction of the Commissioner of Transportation.
(3) In the event of failure, neglect or refusal of the permittee to perform any of the permittee's obligations, the City may, at its option, either (i) perform such work and charge the cost to said permittee, or (ii) determine what the cost of the work shall be and bill the permittee for the cost, or combine the two methods. Immediately upon receipt of notice of such cost, the permittee shall pay the City such amount.
(4) The permittee shall be responsible for and shall pay for the removal, relocation, alteration, repair, maintenance, and restoration of, City-owned structures or appliances located in or adjacent to the public way, including pavement, bridges, subways, tunnels, vaults, sewers, water mains, conduits, pipes, poles and other facilities and utilities, which are necessary or appropriate on account of the permittee's use of the public way. The Commissioner of Transportation is authorized, in the Commissioner's discretion and from time to time during the permittee's use and occupancy of the public way until the restoration of the public way, to determine the work which is or will be necessary or appropriate and the cost involved to perform such work and is authorized to collect a deposit prior to commencing any work and to charge the permittee all actual costs for causing all such work to be performed. The decision of the Commissioner of Transportation shall be final and binding. The permittee, upon receiving written notification from the Commissioner of Transportation of the required deposit or the cost of such work, shall immediately pay or deposit such amount as directed by the Commissioner.
(5) The permittee shall furnish to the Department, prior to issuance of the public way use permit, proof of insurance evidencing commercial general liability coverage in an amount not less than $1,000,000.00 per occurrence, covering bodily injury, personal injury and property damage, that may result from issuance of the permit or use of the public way. The insurance shall name the City and its agents and employees as additional insured on a primary, noncontributory basis for any liability arising directly or indirectly from the permittee's operations and shall also clearly indicate that the public way use being permitted is covered by the insurance policy. Every policy required shall require 30 days' advance notice to the Commissioner prior to cancellation or lapse of the policy. Proof of renewal of such insurance coverage shall be furnished to the Department no later than 30 days prior to the expiration of the policy. The insurance coverage shall be maintained at all times by the permittee until: (i) the public way use authorized by the permit is removed; (ii) the public way is restored to the satisfaction of the Commissioner of Transportation; and (iii) all fees due the City have been paid.
(6) Apart from and separate from any insurance requirement under this section, the permittee shall indemnify, defend, keep and save harmless the City, its agents and employees against all claims, liabilities, judgments, costs, damages and other expenses which may in any way arise or accrue against, be charged to or recovered from the City, its agents or employees in consequence of the permission given by the public way use permit, or any act or thing done or omitted or neglected to be done by the permittee, its agents or employees in and about the construction, reconstruction, maintenance, operation, use or removal of the authorized public way uses and structures or appliances thereof, operation or restoration of the public way as required, including those arising from any personal injuries or deaths or damage or destruction of property.
(f) The permit shall be valid only to the person to whom it was issued and it shall not be subject to sale, assignment, or transfer, voluntary or involuntary, except upon the approval of the Commissioner.
(g) As a condition of the permit, the permittee shall keep all information current. Any change in required information shall be reported to the Department within 30 days after the change.
(Added Coun. J. 1-13-10, p. 83228, § 1; Amend Coun. J. 10-28-15, p. 11951, Art. VI, § 34; Amend Coun. J. 7-20-16, p. 28911, § 1; Amend Coun. J. 11-16-16, p. 37901, Art. II, § 34; Amend Coun. J. 7-21-21, p. 33246, § 1; Amend Coun. J. 7-21-21, p. 34179, Art. VII, § 2; Amend Coun. J. 10-14-21, p. 37484, § 1)