Skip to code content (skip section selection)
(A) 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 other utilities within the public rights-of-way, creating disruption to the city, to businesses, to residents and to the traveling public. In addition, the city is concerned that it will not be able to obtain adequate security to address damage to its rights- of-way or to utilities within the public rights-of- way, because of restrictions on construction bonds, placement and maintenance of facilities that may occur lawfully or unlawfully without permits, inaccurate locates, permits issued by other government entities within the city that could impact city utilities, 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.
(B) 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 $25,000, 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 the 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 city 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.
(C) 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 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 division 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 a person 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 section.
(D) 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, pursuant to the procedures set forth herein.
(Ord. 1625, passed 8-20-20)