16.10.060 Issuance of PROW Permits.
A. Each PROW Permit shall be subject to the criteria and provisions of this Chapter. The PROW Permit may be issued upon review of a completed application and a determination by the Director that a Company has filed a complete application and has complied with all applicable requirements of this Chapter, including any duly adopted administrative regulations or guidelines. The Director’s decision to issue or deny a PROW Permit shall be sent via first class mail to all owners and residents of any property located within 500 feet of the proposed Facility.
B. Criteria. In determining whether to grant or deny a PROW Permit, the Director shall, unless prohibited by applicable state or federal law, consider factors permitted under Section 7901 and 7901.1 of the California Public Utility Code and this Chapter. In particular, the Director shall consider:
1. The capacity of the PROW to accommodate all proposed Facilities.
2. The capacity of the PROW to accommodate the City’s planned uses of the PROW.
3. The damage or disruption, if any, to the PROW or use and enjoyment of any public or private facilities, improvements adjacent to it, pedestrian or vehicle travel, and landscaping, if the permit is granted.
4. The visual and aesthetic impact and compatibility of Facilities with the surrounding neighborhood or zone.
5. The impact of the Facilities on views, parks, and on cultural resources protected by or eligible for protection under Chapter 3.24 of the Berkeley Municipal Code or the State Public Resources Code Section 5020.1(j).
6. The availability of technically compatible existing Facilities or Excess Capacity, or alternate routes and/or locations for the proposed Facilities, which would be less disruptive or which better protect the PROW for its dedicated use, and the feasibility of using such Facilities, Excess Capacity or alternate routes and/or locations.
7. The effect of any Facilities on traffic or pedestrian safety or access.
8. Completion of any environmental review under the California Environmental Quality Act (CEQA) that may be required by law.
9. Whether the Company has the legal entitlement to provide the services for which the Facilities will be used.
10. Any administrative regulations or guidelines adopted by the Director to implement this Chapter.
C. The Director may deny a PROW Permit or require modifications to the proposed excavation or installation of any Facility based on the factors set forth above. However, no such modifications or denial may have the effect of prohibiting the provision of personal wireless services or Video Service.
D. Where the Director has information that there is a substantial risk that a Company may not fulfill its obligations under the permit, the Director may require that the Company provide satisfactory financial security in an amount not to exceed 110% of the total estimated cost of all work to be performed under the PROW Permit, as determined by the Director, and as necessary and appropriate to compensate the City for any costs that may be required to ensure full compliance with all of the requirements of this Chapter. Such security shall consist of an irrevocable letter of credit, cash deposit, or performance bond as determined by the Director. The security shall be maintained in full force and effect until the permitted work in the PROW is completed to the satisfaction of the Director, at which time the security shall be reduced to ten percent (10%) of the actual cost of the work. The reduced security shall be maintained by the Company for a period of one year as a guarantee that the work is of good quality and free from any defective or faulty material or workmanship. Any surety supplying a performance bond must be an "admitted surety insurer," as defined in Code of Civil Procedure section 995.120, and authorized to do business in the State of California. Return of the security shall be conditioned upon the Company’s faithful performance of all work in the PROW specified in the applicable permit. In the event the Company fails to comply with any provision of this Chapter related to such work, or any provision of any applicable 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 security, including but not limited to the full amount of any compensation, indemnification, cost of removal, or abandonment of any property of the Company, plus reasonable attorneys’ fees and costs up to the full amount of the security. Neither the provisions of this section nor any damages recovered by the City hereunder shall be construed to limit liability or damages of licensee under this Chapter, either to the full amount of the security or otherwise. In addition to its rights to take action under the security, the City may pursue any other remedy provided by law. For any wireless telecommunications facility, as defined in Government Code section 65850.6, the financial security provided by the Company shall not exceed the estimated cost of removal of the Facility. In establishing the amount of the security, the City shall take into consideration information provided by the Company and other evidence in the record regarding the cost of removal.
E. Fees. As a condition of the issuance of any permit, a Company shall pay all applicable cost-based fees assessed by resolution of the City Council; provided, however, that such payments and submittals shall not be deemed a waiver of any right the Company may have to challenge the legality of such permit fees if the Company specifies in writing the basis of any objection to such fees and pays under protest.
F. Right to Inspect. The City may inspect any work performed pursuant to a PROW Permit at any reasonable time during normal business hours that the City deems appropriate, upon reasonable notice to the Company performing that work, when necessary. In addition, the City shall inspect a Company’s work reasonably promptly upon notice from the Company that the work has been completed.
G. Duration and Validity. Work should begin within 180 calendar days of the start date specified in the permit and should be prosecuted diligently to completion, including restoration. The Director at their sole discretion may grant an extension of the deadline for completion of construction upon a request by the applicant. (Ord. 7726-NS § 1 (part), 2020: Ord. 7083-NS § 4 (part), 2009)