Beverly Hills Municipal Code Ch. 7 Use of Public Rights of Way

A. The public rights of way are unique public resources held in trust by the city for the benefit of the public. These physically limited resources require proper management by the city to maximize the efficiency and minimize the costs to the taxpayers, to protect against foreclosure of future economic expansion because of premature exhaustion of the public rights of way, and to minimize the inconvenience to and negative effects on the public from nontraditional uses of the public rights of way.

B. Under applicable state and federal law, the city is empowered to control access to and use of its public rights of way, and to obtain reasonable and fair compensation for the use thereof.

C. The purpose of this chapter is to serve and further the purposes identified herein and to enable the city to treat similarly persons who are making a similar use of the city's public rights of way, as may be appropriate to comply with applicable law. (Ord. 05-O-2462, eff. 3-18-2005)

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:

ABOVEGROUND: Projecting more than one-half inch (1/2") above the adjacent finished grade where the facility is to be located.

CITY COUNCIL: The city council of the city of Beverly Hills.

DIRECTOR: The deputy city manager of capital assets of the city of Beverly Hills or designee unless otherwise specified.

FACILITY: Any fiber optic, coaxial, or copper cable, telephone, telecommunications, electric or other wire or line, antenna or antenna soil, gas, or other pipeline, duct, conduit, cabinet, tunnel, vault, equipment, drain, manhole, splice box, surface location, marker, pole structure, utility, or other appurtenance, structure, property, or tangible thing owned, leased, operated, or licensed by a person and located or proposed to be located in, upon, above, beneath, or across any public right of way.

PERMITTEE: A person to whom the city has granted a right of way use permit under this chapter or any lawful successor, transferee, or assignee of such person.

PERSON: Any person, business, firm, corporation, or other legal entity who places, constructs, owns, controls, operates, manages, or uses any facility in, upon, above, beneath, or across any public right of way.

PUBLIC RIGHT OF WAY: The area in, upon, above, beneath, or across any public street, road, lane, court, alley, boulevard, sidewalk, pathway, median, parkway, park, open space, landscape lot, drainage facility, easement or other public place or property within the city, as it now or hereafter exists.

RIGHT OF WAY USE PERMIT: The authorization granted by the city to a person under this chapter giving the person a nonexclusive right to occupy certain space in, upon, above, beneath, or across any public right of way for the purpose of providing a specified service. (Ord. 13-O-2647, eff. 10-11-2013)

No person shall place, construct, own, control, operate, manage, or use any facility in, upon, above, beneath, or across any public right of way without first obtaining a right of way use permit from the city for such purpose. The issuance of a right of way use permit pursuant to this chapter shall not diminish, abrogate, or otherwise affect a permittee's obligation to comply with any other applicable provision of this code or other city ordinances or regulations, or state or federal law, including, but not limited to, the following:

A. Any permit or authorization required for the privilege of transacting business within the city as required by title 4 of this code or any other ordinances of the city.

B. Any permit, agreement, or authorization pursuant to chapter 2 of this title required in connection with activities in, upon, above, beneath, or across the public rights of way, including by way of example but not limitation, street work, street excavation, use, removal and relocation of property within a street, or other street work.

C. Any permits or agreements for occupying any other property of the city to which access is not specifically granted by the right of way use permit including, without limitation, permits and licenses for placing devices on or in poles, conduits, or other structures or facilities owned by the city or other governmental entity.

D. Any permit or authorization required for the privilege of conducting special events pursuant to title 4, chapter 8 of this code. (Ord. 05-O-2462, eff. 3-18-2005; amd. Ord. 07-O-2541, eff. 1-5-2008)

A. Any person who is a party to an existing agreement or franchise with the city that authorizes the use of the public rights of way, and which agreement or franchise is in full force and effect on the effective date of this chapter, shall not be subject to section 8-7-3 of this chapter until such time as the existing agreement or franchise expires or is terminated. If an existing agreement or franchise for use of the public rights of way contains within it a provision for the renewal or extension of the agreement or franchise, then renewal or extension shall be negotiated and executed pursuant to the terms of this chapter.

B. Any person who is a party to a statewide franchise pursuant to the provisions of California Public Utilities Code section 7901 or its successor statute that authorizes the use of the public rights of way for telegraph or telephone facilities shall not be subject to the provisions of this chapter.

C. Any persons proposing to place, construct, own, control, operate, manage, or use a facility in the public rights of way shall be exempted from the provisions of section 8-7-3 of this chapter if the director determines in writing that the facility: 1) is an insignificant impact or encroachment on, or use of the public rights of way, and 2) does not inconvenience or jeopardize the public's continued use of the public rights of way.

D. Facilities temporarily placed in the public rights of way for a period not to exceed one year, when such facilities have been otherwise approved by the director.

E. Any encroachment authorized by a permit issued pursuant to chapter 3 of this title. (Ord. 05-O-2462, eff. 3-18-2005)

Application for a right of way use permit shall be in writing, shall be filed with the director on a form provided by the city, and shall contain the following information:

A. The name and address of the applicant.

B. A statement and description of the facilities proposed to be placed, constructed, owned, controlled, operated, managed, or used by the applicant; the proposed location of such facilities; the manner in which the applicant proposes to place, construct, own, control, operate, manage, or use the same; and the extent and manner in which existing or future poles or other facilities of other persons will be used. The statement shall include the applicant's proposed schedule for servicing or maintaining the facility.

C. Whether the proposed facility will generate any noise, vibration or light.

D. A description and location map of the public rights of way or other public places within which the applicant proposes or seeks authority to place, construct, own, control, operate, manage, or use any facilities and any adjacent public or private facilities, equipment, or property; and a detailed description of the proposed traffic control plan, if required by the director. If the applicant proposes to install new aboveground facilities that will be affixed to the ground, such as a new pole or cabinet, the applicant shall provide the addresses of the properties immediately adjacent to and across from that new facility.

E. If appropriate, documentation reasonably satisfactory to the director showing that the proposed facilities comply with FCC regulations with regard to RF emissions.

F. Before and after computer simulations and a computer rendering of the proposed facilities.

G. Two (2) copies of the engineering plans for the proposed facilities.

H. Payment to the city of any application fee established by resolution of the city council.

I. The city may, at any time, demand, and applicant shall provide, such supplementary, additional or other information as the director, or the city council on appeal, may deem reasonably necessary, in accordance with the applicable provisions of state and federal law, to determine whether the requested right of way use permit should be granted.

Following the receipt of an application, the director's designee shall conduct a review of the proposed location to assess compliance of the proposed facility with the provisions of this chapter. If the applicant proposes to install new aboveground facilities that will be affixed to the ground, such as a new pole or cabinet, the director's designee shall provide written notice about that component of the project to the owners of the properties immediately adjacent to and across from that new facility. (Ord. 05-O-2462, eff. 3-18-2005)

Within thirty (30) days of receipt of an application for a right of way use permit, the director shall review the application to determine if it is complete and shall notify the applicant in writing of such determination. For any application that proposes the installation of aboveground facilities that are ten feet (10') or more in height, as measured from the base of the facility at existing, adjacent grade, the applicant shall first install a mock-up of the facilities following issuance of written notice from the director approving the installation of the mock-up. The applicant shall provide funds, which are to be held in trust by the city, in an amount that the director estimates will be sufficient to cover the city's costs to process the review of the mock-up. Any unused funds shall be returned to the applicant when the process has been completed. The mock-up shall include a sign that displays the image of the proposed facilities, including any related cabinet, and the telephone number of the city's public works department. The mock-up shall remain in place for a minimum period of thirty (30) days so that any significant view impacts from the proposed installation can be raised by the public and analyzed by the director or his or her designee. If significant view impacts are raised, the director shall notify the applicant about those issues so that the placement of the facility can be modified to address those concerns. (Ord. 05-O-2462, eff. 3-18-2005)

Upon determination that an application for a right of way use permit is complete and any mock-up of the proposed facilities required by section 8-7-6 of this chapter has been installed, the director shall provide notice of the application by first class mail to the owners of all affected property where the proposed facilities will be installed. (Ord. 05-O-2462, eff. 3-18-2005)

A. Timing Of Action: Not sooner than sixty (60) days, and not longer than one hundred twenty (120) days after the application for a right of way use permit is deemed complete, the director shall grant, deny, or conditionally grant the right of way use permit. If the right of way use permit is granted, the application submitted shall constitute and form part of the right of way use permit. If the application is denied, the decision shall include the reason(s) for denial.

B. Findings: The director shall not grant an application for a right of way use permit unless he or she makes the following findings:

1. The proposed use is compatible with the public's use of the right of way.

2. The public rights of way identified in the application have sufficient capacity to accommodate the applicant's proposed facilities and any foreseeable additional facilities of the applicant or other permittees that may need to be accommodated.

3. Granting the requested right of way use permit will not interfere with the city's future plans for the affected public rights of way as reflected in the city's general plan or the city's capital improvement plan.

4. Granting the requested right of way use permit will not damage or disrupt any public or private facilities, improvements, service, travel, or landscaping.

5. Granting the requested right of way use permit will not have a significant adverse impact upon a view from a private residence or upon any protected public view corridors, as defined in the city's general plan;

6. Granting the requested right of way use permit will not have a significant adverse aesthetic impact on neighboring properties;

7. The applicant has received all required licenses, permits, or franchises from the federal communications commission, the California public utilities commission, or any other federal or state regulatory commission or agency having jurisdiction concerning any matters affecting the applicant's proposed activities or facilities, and the applicant has presented satisfactory proof of such licenses, permits or franchises to the director.

C. Conditions: In granting a right of way use permit, the director shall impose such conditions on the permit, which are reasonably necessary to protect and manage the public rights of way and to safeguard the health and safety of the city and the public. The conditions imposed shall comply with applicable provisions of state and federal law and may relate to one or more of the following:

1. The availability of existing and/or approved future facilities of other utilities or right of way users, such as underground conduits or utility poles, to meet the applicant's needs.

2. The design and installation of landscaping and other barriers to minimize public view of aboveground facilities whose location has been approved by the city.

3. The maintenance of all aboveground facilities in good condition, including compliance with the city's ordinances regarding graffiti removal.

4. The placement of aboveground facilities, such as overhead drops, as close as possible to other utility drops, consistent with all applicable electrical codes.

5. Reasonable limitations upon the number of aboveground facilities that may be installed within a designated geographical area.

6. Reasonable limitations upon the dimensions or volume, or both, of aboveground facilities.

7. The specification of colors of aboveground facilities reasonably requested by the city to ensure that these facilities blend with the surrounding environment to the maximum extent possible.

8. Any specific limitations or restrictions on the timetable for the proposed construction with which the applicant must comply during construction.

9. Such additional conditions regulating the time, place, and manner of installations of aboveground facilities as will reasonably mitigate potential safety hazards and adverse visual impacts attributable to the proposed facilities in a manner that is consistent with this chapter and applicable state and federal law.

D. Installation Of Facilities:

1. To the extent feasible, all aboveground facilities proposed in the public rights of way shall be installed on/in existing and/or previously approved facilities of other utilities or right of way users, such as utility poles, streetlights or other structures. The requirement that facilities colocate may be waived by the director only when the applicant submits written evidence which: a) describes in reasonable detail the efforts made by the applicant to obtain from other utilities or right of way users the right to use excess capacity within existing facilities, thereby avoiding the need to construct new facilities, and b) documents to the satisfaction of the director that either: 1) such existing facilities are not available for shared use or 2) colocation is technologically infeasible.

2. New facilities shall be located along arterial roadways, whenever possible.

3. If one or more new cabinets are proposed to be installed adjacent to the front yard of a residential structure, so that the facility is located between the front yard and the street right of way, all such facilities shall be placed in underground vaults to conceal such facilities from the view of the adjacent property.

4. If a proposed facility is to be located on a public right of way with homes only on one side of the street, any aboveground cabinet shall be installed on the side of the right of way where no homes are located.

5. Where existing utility poles, streetlights, or other wire holding structures are available for use, the director may require such poles and structures to be used if the director determines that the public convenience would be enhanced by such installation, and the terms of the use are just and reasonable.

6. A new pole may only be constructed if the new pole will not have a significant adverse impact upon a view from a private residence or upon any protected public view corridors, as defined in the city's general plan;

7. All aboveground facilities, such as overhead drops, shall be placed as close as possible to other utility drops, consistent with all applicable electrical codes.

8. Electrical meters shall be installed on existing power poles or other existing structures within the public rights of way unless such installation is technologically infeasible, poses a danger for utility workers or the owner of the existing structure will not allow the installation. Written evidence documenting the infeasibility, danger or denial of use by the owner of the facility, shall accompany any request for exemption from this requirement.

9. All aboveground facilities shall be maintained in good condition and free from graffiti. Any graffiti shall be removed immediately in accordance with the requirements of this code. To ensure compliance with this requirement, the applicant shall affix a coded label or marker to its aboveground facilities that identifies the specific facility and sets forth a telephone number that may be called to report any damage, destruction, or graffiti vandalism involving the facility.

10. Aboveground facilities shall be designed to be as unobtrusive and aesthetically compatible with the surrounding area as is technically possible. To the extent feasible, aboveground facilities shall be screened by vegetation or by another barrier or berm that is compatible with the surrounding area. The colors of aboveground facilities shall blend with the surroundings. In no event shall any facility be painted or finished with a shiny or reflective surface.

11. All aboveground facilities shall be no greater in volume or dimension, or both, than is reasonably necessary to provide the services proposed by applicant.

12. All aboveground facilities shall be installed in compliance with all applicable laws, including, without limitation, the Americans with disabilities act and the provisions of title 9, chapter 4, article 5 of this code.

E. Excavation Permit Required: Any application for a right of way use permit that requires or proposes excavation or construction activities in the public right of way must also be accompanied by an application for an excavation permit pursuant to chapter 2 of this title.

F. Notice Of Decision: The director shall provide written notice of his or her decision approving or denying a request for a right of way use permit by first class mail to: the applicant, the property owner, if applicable, the owners of the properties immediately adjacent to and across from any proposed new aboveground facility that is to be affixed to the ground, any person who submitted written comments concerning the applicant's request; and any person who has filed a written request with the city to receive such notice. The written notice shall:

1. Provide a general explanation of the decision, including the evidence upon which the decision is based; and

2. Inform recipients of the notice of the right of any interested person to appeal the decision to the city council and explain how that right may be exercised. (Ord. 05-O-2462, eff. 3-18-2005)

Within fourteen (14) days of the date of the director's decision, the applicant or any interested person may appeal the director's decision on an application for a right of way use permit to the city council in accordance with the provisions of title 1, chapter 4, article 1 of this code. No right of way use permit shall be effective, and no facilities authorized by a right of way use permit shall be installed in the public rights of way until the appeal period has been exhausted. (Ord. 05-O-2462, eff. 3-18-2005)

Unless otherwise specified in the right of way use permit, a right of way use permit granted under this chapter shall be valid for a period of ten (10) years. (Ord. 05-O-2462, eff. 3-18-2005)

A permittee may apply to amend its right of way use permit to revise the rights of way within which the permittee is authorized to place, construct, own, control, operate, manage, or use its facilities, as long as the type of facilities and the use of such facilities is already authorized by the permittee's existing right of way use agreement. The amendment application shall contain the information required under section 8-7-5 of this chapter, and shall be accompanied by the application fee specified therein. Notice shall be provided as specified in section 8-7-7 of this chapter. Within forty five (45) days after the amendment application is deemed complete, the director shall approve or deny the amendment application in whole, in part, or with additional conditions, applying the following criteria:

A. The criteria set forth in section 8-7-8 of this chapter.

B. The applicant's history and current compliance with any applicable right of way use permit, this chapter, or any other applicable local, state or federal law, regulation, or policy.

C. The compatibility of the proposed use with the public's use of the right of way. (Ord. 05-O-2462, eff. 3-18-2005)

A permittee that desires to renew its right of way use permit may file an application with the city for renewal, not more than one year nor less than one hundred eighty (180) days before expiration of its current right of way use permit. The renewal application shall contain the information required under section 8-7-5 of this chapter, and shall be accompanied by the application fee specified therein. Within forty five (45) days of the renewal application being deemed complete, the director shall grant or deny the renewal application in whole, in part, or with additional conditions, applying the following criteria:

A. The criteria set forth in section 8-7-8 of this chapter.

B. The applicant's history and current compliance with any applicable right of way use permit, this chapter, or any other applicable local, state or federal law, regulation, or policy.

C. The continuing capacity of the streets, alleys, or other public rights of way identified in the renewal application to accommodate the applicant's facilities and use(s) of the public rights of way.

D. The continuing compatibility of the proposed use with the public's use of the right of way. (Ord. 05-O-2462, eff. 3-18-2005)

Each right of way use permit granted under this chapter is subject to the city's right, which is expressly reserved, to annually fix, in accordance with the applicable provisions of state and federal law, a fair and reasonable compensation to be paid by permittee for the rights granted in the right of way use permit; provided that nothing in this chapter shall prohibit the city and permittee from agreeing and fixing in the right of way use permit the compensation to be paid for the privileges granted by such permit. This section shall not apply to right of way use permits approved and executed for right of way uses governed by the Broughton act 1 , the franchise act of 1937 2 , section 7901 or 10101 of the Public Utilities Code, or any franchise granted or administered by the city. (Ord. 05-O-2462, eff. 3-18-2005)

A. Permittee shall, prior to the issuance of any permit for construction in the public rights of way, deliver to the city a performance bond in the amount of one hundred percent (100%) of the total estimated cost of all work to be performed under such permit, as determined by the director. The bond shall be provided on the form required by the city and maintained in full force and effect until the permitted work in the public rights of way is completed to the satisfaction of the director, at which time the amount of the bond shall be reduced to ten percent (10%) of the actual cost of the work. The reduced bond shall be maintained by permittee for a period of one year as a guarantee the work is of good quality and free from any defective or faulty material or workmanship. The surety supplying the bond must be an "admitted surety insurer", as defined in section 995.120 of the Code of Civil Procedure, authorized to do business in the state of California. Return of the bond shall be conditioned upon permittee's faithful performance of all work in the public rights of way specified in the applicable permit. In the event permittee fails to comply with any provisions of this chapter related to such work, or any provision of any applicable right of way use permit, or other approval related to such work, any damages or loss suffered by the city as a result thereof shall be recoverable from the bond, including the full amount of any compensation, indemnification, cost of removal, or abandonment of any property of permittee, plus a reasonable allowance for attorney fees and costs up to the full amount of the bond.

B. Neither the provisions of this section nor any damages recovered by the city hereunder shall be construed to excuse permittee's faithful performance of any right of way use permit or limit the liability or damages of permittee under this chapter, either to the full amount of the bond or otherwise. In addition to its rights to take action under the bond, the city may pursue any other remedy provided by law. (Ord. 05-O-2462, eff. 3-18-2005)

Permittee's facilities shall be placed, constructed, owned, controlled, operated, managed, and used solely and exclusively for the purpose(s) and use(s) expressly set forth in permittee's right of way use permit. Permittee shall not in any way use, or authorize or allow another person to use, any facility subject to permittee's right of way use permit for any purpose or use other than the purpose(s) and use(s) expressly set forth in the right of way use permit, nor shall permittee's facilities occupy any portion of the right of way not expressly identified in the right of way use permit. (Ord. 05-O-2462, eff. 3-18-2005)

The issuance of a right of way use permit is a privilege to be held personally by permittee. Subject to applicable law, no right of way use permit or any facility permitted hereunder 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 providing written notice thereof to the city. A sale or transfer of stock, assets, or other equitable interests of permittee, or any parent, subsidiary, or other affiliate or permittee, which effects a material change in permittee's ownership or control shall be deemed to be a transfer for purposes of this section. Any transfer shall be made only by an instrument in writing, such as a bill of sale, or similar document, a duly executed copy of which shall be filed in the office of the city clerk within thirty (30) days after any such transfer or assignment. Any transferee must agree in writing to comply with all provisions of the right of way use permit and this chapter and submit written evidence of that agreement to the director within thirty (30) days following the date of such transfer or assignment. (Ord. 05-O-2462, eff. 3-18-2005)

A. Any right of way use permit granted under this chapter shall be for the nonexclusive use of the public rights of way. By issuing a particular right of way use permit, the city does not agree to restrict the number of right of way use permits to be granted that cover all or any part of the city for any person in the same business, a competing business, or a related business as the permittee.

B. A right of way use permit only authorizes permittee to use the public rights of way specified in the permit, and the use of any other public property, whether located within or outside a public right of way, is strictly prohibited unless authorized by a separate agreement with the city.

C. Any privilege claimed by permittee in any public right of way shall be subordinate to the rights of the general public to use the public right of way and to any prior lawful occupancy of the public right of way.

D. Permittee shall have no recourse whatsoever against the city for any loss, cost, expense, or damage arising out of any provision or requirement of this chapter, or of any right of way use permit granted under this chapter, or because of the enforcement of such provisions. (Ord. 05-O-2462, eff. 3-18-2005)

A. Conformance With Applicable Law: No person shall place, construct, own, control, operate, manage, or use any facility in, upon, above, beneath, or across any public right of way without first obtaining all necessary or required permits, agreements, or approvals from the city and all other governmental entities with jurisdiction over the facility or public right of way. All facilities shall be placed, installed or constructed and the right of way restored in accordance with the standard specifications and any applicable special conditions or provisions imposed by the director or the city council. All facilities shall be maintained in compliance with such permits, agreements, or approvals, and all applicable statutes, ordinances, rules, regulations, orders, and decisions issued by any federal, state, or local governmental body, agency, or court.

B. Time, Place And Manner: All facilities shall be located, constructed, operated, and maintained in the time, place and manner that causes the least interference with the public's use of the public rights of way, and the rights or reasonable convenience of property owners who adjoin the public rights of ways, all as determined by and approved by the director.

C. Key Map And Plat Map: Every person subject to this chapter shall cause a key map and detailed plat map showing all facilities to be located in the public rights of way, including the material of construction and horizontal and vertical locations with respect to property lines and grade lines, to be prepared by a registered professional civil engineer and filed in the office of the director prior to the issuance of any permit or approval for installation. Prior to requesting the issuance of a permit for installation of any facility, the key map and detailed improvement plan shall be filed with any other entity that owns, operates, or manages facilities in the affected rights of way, so that such entities may advise the director as to any location, operation, or compatibility problems created by permittee's proposed use of the rights of way.

D. Disclosure: Upon the request of any person who has contracted to perform work on a public right of way, persons subject to this chapter shall provide accurate detailed information regarding the location of their existing and proposed facilities in the public rights of way.

E. Colocation: To the extent feasible, all facilities proposed in the public rights of way shall be installed on/in existing and/or previously approved facilities of other utilities or right of way users, such as underground conduits, utility poles, streetlights or other structures. The requirement that facilities colocate may be waived by the director only when the applicant submits written evidence which: 1) describes in reasonable detail the efforts made by the applicant to obtain from other utilities or right of way users the right to use excess capacity within existing facilities, thereby avoiding the need to construct new facilities, and 2) documents to the satisfaction of the director that either: a) such existing facilities are not available for shared use or b) colocation is technologically infeasible.

F. Undergrounding Required: To the extent feasible, all facilities shall be placed in underground vaults to conceal such facilities from the view of users of the roadway and from adjacent properties. The requirement to place facilities underground may be waived by the director only when evidence is presented demonstrating that due to topography or other physical conditions in the vicinity, it is not technologically feasible to place the facility in an underground vault. In the event the director waives the requirement to place facilities underground, any facilities permitted to be installed aboveground shall comply with the provisions of subsection H of this section.

G. Pole Attachments: Where existing utility poles, streetlights, or other wire holding structures are available for use, the director may require such poles and structures to be used if the director determines that the public convenience would be enhanced by such installation, and the terms of the use are just and reasonable.

H. Installations Aboveground: The location of installations of any aboveground equipment pursuant to a right of way use permit granted pursuant to this chapter, such as amplifiers, electric meters, and cabinet boxes, shall be approved by the director. All aboveground installations shall comply with the following standards:

1. All aboveground facilities, such as overhead drops, shall be placed as close as possible to other utility drops, consistent with all applicable electrical codes.

2. All facilities installed aboveground shall be completely hidden by vegetation or by another barrier or berm that is unobtrusive and aesthetically compatible with the surrounding area so as to shield such facilities from the view of users of the roadway and from adjacent properties. Said landscaping and/or barriers shall be designed and installed by qualified professionals and shall include provisions for proper maintenance and upkeep. The requirement to screen all aboveground facilities may be modified or waived by the director only when evidence is presented demonstrating that such screening interferes with the operation of the facility and is not technologically feasible.

3. To the extent feasible, electrical meters shall be installed on existing power poles or other existing structures within the public rights of way unless such installation is technologically infeasible or poses a danger for utility workers. Written evidence documenting the infeasibility or danger shall accompany any request for exemption from this requirement. For the purposes of this section, "infeasibility" shall be established if the owner of the existing power pole(s) refuses to allow the installation of the proposed electrical meters on the existing poles.

4. In no event shall aboveground facilities be placed in a manner or location which interferes with the ability of the public to use the public rights of way for their primary and intended purpose.

5. All aboveground facilities shall be maintained in good condition and free from graffiti. Any graffiti shall be removed immediately in accordance with the requirements of this code. To ensure compliance with this requirement, the applicant may be required to affix a coded label or marker to its aboveground facilities that identifies the specific facility and sets forth a telephone number that may be called to report any damage, destruction, or graffiti vandalism involving the facility.

6. Aboveground facilities shall be designed to be as unobtrusive and as aesthetically pleasing as possible. Aboveground facilities shall be screened by vegetation or by another barrier or berm that is compatible with the surrounding area. The colors of aboveground facilities shall blend with the surroundings. In no event shall any facility be painted or finished with a shiny or reflective surface. All aboveground facilities installed within a designated geographical area shall be limited to a single equipment cabinet and shall be no greater in volume or dimension, or both, than reasonably necessary to provide the services proposed by applicant. (Ord. 05-O-2462, eff. 3-18-2005)

Every person subject to this chapter hereby acknowledges that, in accordance with applicable state law, by accepting any right to use the public rights of way bestowed by a right of way use permit granted under this chapter it assumes an obligation to pay for the relocation of its facilities when necessary to make way for a proper public use of the right of way. Every holder of a right of way use permit shall, at its expense, protect, support, temporarily disconnect, relocate or remove from any public right of way, any facility owned, operated or maintained by such person when required by the director by reason of traffic conditions, public safety or other public purposes, street vacation, street relocation or realignment, 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 rights of way. (Ord. 05-O-2462, eff. 3-18-2005)

A. Notice Of Removal: In the event the use of any facility is discontinued for any reason for a continuous period of six (6) months, or in the event any facility has been installed in any public right of way without complying with the requirements of this chapter, or in the event the required right of way use permit is revoked pursuant to the provisions of section 8-7-24 of this chapter, the owner of each facility shall promptly, upon being given thirty (30) days' prior notice, remove from the public rights of way all such facilities, other than any which the director may permit to be abandoned in place. In the event of such removal, the area from which such facility has been removed shall be promptly restored to a condition satisfactory to the director.

B. Abandonment: Any facility remaining in place one hundred twenty (120) days after the delivery of the notice set forth in this section shall be considered permanently abandoned. The director may extend such time as may be necessary under the circumstances.

C. "In Place" Abandonment: Any facility abandoned in place in the public rights of way shall be abandoned in such manner as the director shall prescribe. Upon permanent abandonment, the facility shall become the lawful property of the city, and the owner of such facility shall submit to the director an instrument in writing, to be approved by the city attorney, transferring ownership of the facility to the city. (Ord. 05-O-2462, eff. 3-18-2005)

A. The city, its elected officials, officers, employees, and agents shall not be liable for any damage to or loss of any facility placed in, upon, above, beneath, or across a public right of way unless such damage or loss is caused by the sole negligence or wilful 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 the 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 thirty (30) days after receiving a statement detailing such costs. (Ord. 05-O-2462, eff. 3-18-2005)

Every person subject to this chapter shall defend, indemnify, and hold harmless the city, its elected officials, officers, employees, and agents from any and all actual or alleged claims, demands, causes of action, liabilities, losses, damages, or injuries, to property or persons, including wrongful death, whether imposed by a court of law or by administrative action of any federal, state, or local governmental body or agency, arising out of or incident to any acts, omissions, negligence, or wilful misconduct of permittee, its officers, employees, agents, contractors, or subcontractors in connection with the exercise of a right of way use permit or the use of any public right of way. This indemnification excludes only such portion of any claim, demand, cause of action, liability, loss, damage, penalty, fine, or injury, to property or persons, including wrongful death, which is caused by the sole negligence or wilful misconduct of the city as determined by a court or administrative body of competent jurisdiction. (Ord. 05-O-2462, eff. 3-18-2005)

Every person subject to this chapter shall procure and maintain a policy of general liability insurance in an amount which city's risk manager determines to be sufficient to adequately protect such person and the city against all liability for personal injury, including accidental death, as well as claims for property damage which may arise from or which concern the activities of the person or the existence of the person's facilities in the public rights of way. The amount of such insurance and any other insurance requirements shall be as designated in the right of way use permit, but in no event shall insurance be provided in an amount less than two million dollars ($2,000,000.00) per occurrence. (Ord. 05-O-2462, eff. 3-18-2005)

The officer or body taking final action granting any right of way use permit pursuant to the provisions of this chapter may, after following the same procedures utilized for approving such right of way use permit, suspend, revoke, or modify the permit if:

A. The permit was issued erroneously; or

B. The permit was issued on the basis of incorrect or fraudulent information supplied by the applicant; or

C. The permit was issued contrary to the provisions of this code; or

D. The permit is being or recently has been, exercised contrary to the terms or conditions of such permit.

No permit shall be revoked prior to providing a ten (10) calendar day written notice to the holder of the permit and an opportunity to be heard before the officer or body considering revocation or suspension of the permit. Any decision to revoke or not to revoke a permit, other than a decision by the city council, may be appealed by any interested party under the provisions of title 1, chapter 4, article 1 of this code. (Ord. 05-O-2462, eff. 3-18-2005)

A. Nothing in this chapter shall contract away, modify, abridge, impair, or affect, in any way, to any extent, the right of the city to acquire any facility located in the public rights of way through the exercise of the right of eminent domain.

B. There is reserved to the city every right and power which is required to be reserved or provided by any ordinance of the city, and every person subject to this chapter, by its use of the public rights of way, agrees to be bound thereby and to comply with any action or requirements of the city in its exercise of such rights or power.

C. Neither the issuance of a right of way use permit 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 rights of way.

D. The city council and the director may do all things which are necessary and convenient in the exercise of the city's jurisdiction under this chapter, in accordance with the applicable provisions of state and federal law.

E. 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 right of way use permit, or any other local, state, or federal law, regulation, permit, or standard. (Ord. 05-O-2462, eff. 3-18-2005)