(A) Prior to the issuance of any permit in accordance with this chapter, or performing any work in the public rights-of-way, either pursuant to a permit or without a permit if authorized by applicable law except in the case of an emergency pursuant to this chapter, a registrant or contractor that applies for a permit on behalf of a registrant shall deposit with the city a construction bond acceptable to the city to secure the restoration of the public rights-of-way, and to ensure the registrant's or contractor's faithful performance of the construction or other work in the public rights-of-way, in accordance with applicable sections of the code. The construction bond shall be conditioned upon the full and faithful compliance by the registrant or contractor with all requirements, duties, and obligations imposed by the permit and provisions of this chapter during and through completion of the placement or maintenance project. The construction bond shall be in an amount as determined by the city based on 110% of the estimated costs of the restoration of the public rights-of-way submitted by the registrant. The cost estimate shall be based on Broward County Highway Engineering Cost Estimating spreadsheets. For a consolidated permit, the registrant or contractor shall provide a construction bond based on the amount of the total costs of the restoration of the public rights-of-way for all small wireless facilities to be collocated on utility poles within the public rights-of-way, but in no event shall be less than $10,000. Notwithstanding any provision herein, the minimum amount of the construction bond for a new or replaced utility pole or small wireless facility over six cubic feet shall be $25,000. The city shall not require a construction bond if the estimated cost of restoration of the public rights-of-way is less than $1,000. provided a registrant has an effective permanent performance bond and insurance certificate on file.
(B) In the event a registrant or contractor subject to such a construction bond fails to complete the work in a safe, timely and competent manner in accordance with the provisions of the permit or code, and restore the site within the time frame provided in the permit, there shall be recoverable, from such construction bond, any damages or loss suffered by the city as a result, including the full amount of any compensation, indemnification or cost of removal or abandonment of any property of the registrant, or the cost of completing the work, plus a reasonable allowance for attorney's fees, up to the full amount of the bond.
(C) The construction bond shall be non-cancelable and shall be for a term of not less than one year but not more than 18 months after the anticipated date of the later of completion of construction, restoration and city inspection. No less than one year after completion of the construction and satisfaction of all obligations in accordance with the bond, the registrant or contractor may request that the city remove the requirement to continue the performance construction bond. In accordance with the current standards of the city, and satisfaction of all obligations in accordance with the bond, the city shall return the construction bond without interest. Notwithstanding, the city shall require a new construction bond for any subsequent work performed in the public rights-of-way as required by this chapter. Notwithstanding this provision, to the extent required by applicable law, the city shall accept a letter of credit or similar financial instrument as a construction bond issued by any financial institution that is authorized to do business within the United States, provided that a claim against the financial instrument may be made by electronic means, including by facsimile. A provider of communications services may add the city to any existing bond, or other relevant financial instrument, and the city shall accept such proof of coverage without any conditions other than consent to venue in Broward County for purposes of any litigation to which the city is a party.
(D) Permanent performance bond.
(1) The city is concerned that, based on past experience in the city and throughout the state, the placement and maintenance of communications facilities in the public rights-of-way has the potential to cause significant damage to the public rights-of-way and to utilities within the public rights-of-way, creating disruption to the city residents, businesses and the traveling public. In addition, the city is concerned that it will not be able to obtain adequate security to address damage to public rights-of-way or to utilities, because of restrictions on construction bonds, placement and maintenance of facilities lawfully or unlawfully without permits, inaccurate locates, permits issued by other government entities within the city that could impact city utilities, abandoned facilities, and other issues associated with such facilities in the public rights-of-way. Accordingly, pursuant to the city's authority and obligation to manage the public rights-of-way and to provide for the public safety in the exercise of its police power, and to the extent not inconsistent with applicable law, the city shall require all persons that place or maintain communications facilities in the public rights-of-way to establish a permanent performance bond in the city's favor.
(2) A registrant or facility owner who places or maintains communications facilities in the public rights-of-way, shall file with the city, for city approval, a permanent performance bond in the amount of $50,000, in the form of a cash deposit or irrevocable letter of credit. Any cash deposit shall be held in a separate account or city account. The letter of credit shall be issued by a United States financial institution that allows drawing on the letter of credit via electronic means including facsimile, agrees to the jurisdiction of the appropriate court within Broward County, and shall be in a form and issued by a financial institution acceptable to the City Attorney. The permanent performance bond shall be conditioned on the full and faithful performance by the registrant or facility owner of all requirements, duties, and obligations imposed by the provisions of this chapter and applicable law, including but not limited to requirements to restore the public rights-of-way and to guarantee such restoration, to remove any abandoned communications facilities, to indemnify the city as required herein, and to pay for any damage to city or other facilities in the public rights-of-way. The permanent performance bond shall not constitute a fee, tax or other imposition on a dealer of communications services in its capacity as a dealer of communications services or compensation for use of the public rights-of-way and shall not be used by the county as such. Should the city draw upon the permanent performance bond, the city shall promptly notify the registrant, and the registrant shall promptly restore the cash deposit and/or letter of credit, as may be necessary, to the full amount. In the event a registrant fails to perform its duties and obligations imposed by the provisions of this chapter, subject to providing prior notice and a reasonable opportunity to cure the failure, there shall be recoverable, jointly and severally from the principal and surety of the permanent performance bond, including a letter of credit, any damages or loss suffered by the city as a result, including the full amount of any damages, indemnification or cost of removal or abandonment of any property of the registrant, plus a reasonable allowance for attorneys' fees. The cash deposit or letter of credit shall be furnished annually or as frequently as necessary to provide a continuing guarantee of the person's full and faithful performance at all times. A registrant may change the form of the permanent performance bond on file with the city on an annual basis. A registrant may request that the city return the permanent performance bond or approve the cancellation of the performance bond upon the expiration of a registrant's obligations pursuant to the City Code and in no event while a registrant maintains any obligations with respect to facilities in the public rights-of-way. If the city determines it is appropriate to return the permanent performance bond, a cash deposit retained by the city shall be returned without interest.
(3) For new registrants seeking to place or to maintain communications facilities in the public rights-of-way, the permanent performance bond required herein must be filed with the city prior to any construction associated with the placement or maintenance of a communications facility in the public rights-of-way. For existing registrants, permanent performance bonds currently on file with the city, either in the form of a cash deposit or letter of credit, shall satisfy the requirement of this subsection and shall continue to be maintained by the city. To the extent that a communications services provider, wireless provider, or pass-through provider with facilities in the public rights-of-way, does not have a permanent performance bond filed with the city as required herein, said person shall submit the permanent performance bond as provided herein, within 90 calendar days from the effective date of this chapter. No permits shall be issued to a person for placement or maintenance of facilities within the public rights-of-way without a permanent performance bond filed with the city. For activity that does not require a permit, no placement or maintenance of a communications facility in the public rights-of- way shall be performed by or on behalf of a registrant that does not have a permanent performance bond on file with the city. In addition to other remedies provided herein, including but not limited to revoking a registration, denying or withholding permits, or issuing a stop work order, the city may pursue code enforcement actions against any person who violates this subsection.
(4) Any person who seeks a waiver of the requirement of a permanent performance bond or seeks to pursue a challenge to such requirement shall submit an appeal to the City Manager setting forth the basis for such person's position, pursuant to the procedures set forth in this chapter. The City Manager shall render a decision which the person may appeal to the City Commission pursuant to the procedures set forth in this chapter.
(E) The rights reserved by the city with respect to any performance construction bond or permanent performance bond established pursuant to this division are in addition to all other rights and remedies the city may have under this chapter, or at law or equity, and no action, proceeding or exercise of a right with respect to the performance construction bond or permanent performance bond will affect any other right the city may have.
(Ord. O-2020-14, passed 10-7-20)