§ 21-55. Performance guarantee and remedies.

(a)

Performance bond.

(1)

Prior to any facilities work in the public rights-of-way, an applicant shall establish in the city's favor a performance bond in the penal sum of two thousand dollars ($2,000.00), approved by the city clerk, and in proper form approved by the city attorney. Owners of facilities that maintain more than one thousand (1,000) lineal feet of facilities within the public right-of-way and franchisees shall establish in the city's favor a performance bond in the penal sum of five thousand dollars ($5,000.00), approved by the city clerk, and in proper form approved by the city attorney. Differences in bond requirements, including provisions for self-insurance or provisions for a single continuing bond where facilities work is conducted by the same applicant under numerous permits, may be established by regulation based on the extent or nature of the facilities work, the past performance of the applicant and not based on the characteristics of the applicant.

(2)

In the event an applicant fails to complete the facilities work in a safe, timely, and competent manner, there shall be recoverable, jointly and severally from the principal and surety at the bond, any damage or loss suffered by the city as a result, plus a reasonable allowance for attorneys fees, up to the full amount of the bond.

(3)

Upon completion of the facilities work to the satisfaction of the city engineer, the city engineer shall eliminate the bond or reduce its amount after a time appropriate to determine whether the work performance was satisfactory, which time shall be established by the city engineer considering the nature of the work performed.

(4)

A performance bond shall be issued by a surety acceptable to the city, and shall contain the following endorsement.

"This bond may not be canceled, or allowed to lapse until sixty (60) days after receipt by the city, by certified mail, return receipt requested, of a written notice from the issuer of the bond of intent to cancel or not to renew."

(5)

Recovery by the city of any amounts under the performance bond does not limit an applicant's duty to indemnify the city in any way, nor shall such recovery relieve an applicant of its obligations under a permit or reduce the amounts owed to the city other than by the amounts recovered by the city under the performance bond, or in any respect prevent the city from exercising any other right or remedy it may have.

(b)

Cost recovery.

(1)

In the event that an excavation is not refilled within a reasonable time after it is ready for refilling, the city clerk shall notify the applicant making the excavation that if such excavation is not filled within four (4) days, it shall be filled by the city. The charge for the cost of such work shall be paid by the permit holder within ten (10) days after completed and no additional permit shall be issued to that person after that time, unless such charge has been paid.

(2)

In the event that the applicant fails to backfill, repair or repave any excavations made within the public rights-of-way, the city shall, at its option, repair said cut with city employees forces or contract the repair to be made, and charge the applicant for the full contract cost of repair. If the city makes the repair with city employees forces the charges shall be based on the unit price paid on the most recent street improvement or pavement repair contract issued by the city engineer.

(3)

In the event the city incurs additional costs as a direct result of an unauthorized action or an inaction by any person and/or owner of facilities, the city shall have the right to recover from that person or owner any and all documentable costs incurred, including, but not limited to the identification of undocumented facilities, completion of improper facilities work, long-term structural damage, construction delay fees and penalties, fees paid to other agencies and any other documentable costs incurred by the city within the rights-of-way.

(c)

Penalties.

For each violation of provisions of this article, or a permit granted pursuant to this article as to which the city has given notice to applicant as provided in this article, penalties may be chargeable to the applicant at a rate not exceeding one hundred dollars ($100.00) per day for so long as the violation continues.

(Ord. No. 11386, § 2, 5-3-99)