A. Requirement And Purpose: Any public or private utility or telecommunications company applying for a permit required by this Title shall file a performance security in a form and in an amount as set forth in this Section, unless a company has a franchise agreement stating otherwise. The performance security shall be continuously maintained in accordance with this Section at the permittee's sole expense until the completion of the work authorized by the permit. This security may also be used by the Village to complete the work in accordance with the permit or perform certain minimum requirements as determined by the Village Engineer in the event that the permittee fails to complete said work. The performance security shall serve as security for:
1. The guarantee of faithful performance of the work and conditions covered by the permit;
2. Any expenditure, damage, or loss incurred by the Village occasioned by the permittee's failure to comply with any codes, rules, regulations, orders, permits or other directives of the Village issued pursuant to this Title;
3. The payment by permittee of all liens and all damages, claims, costs, or expenses that the Village may pay or incur by reason of any action or nonperformance by permittee in violation of this Title including, without limitation, any damage to public property or restoration work the permittee is required to perform that the Village must perform itself or have completed as a consequence solely of the permittee's failure to perform or complete, and all other payments due the Village from the permittee pursuant to this Title or any other applicable law.
B. Form: The permittee shall provide the performance security to the Village in the form, at the permittee's election, of cash, a surety bond in a form acceptable to the Village, or an unconditional irrevocable letter of credit in a form acceptable to the Village. Any surety bond or letter of credit provided pursuant to this subsection shall, at a minimum:
1. Provide that it will not be canceled without prior notice to the Village and the permittee; and
2. Not require the consent of the permittee prior to the collection by the Village of any amounts covered by it; and
3. Shall provide a location convenient to the Village and within the State at which it can be drawn.
C. Amount: The dollar amount of the performance security shall be sufficient to provide for one hundred ten percent (110%) of the reasonably estimated cost, as determined by the Village Engineer, to restore the public ways and public utility easements to at least as good a condition as that existing prior to the construction under the permit, as determined by the Village Engineer, and may also include reasonable, directly related costs that the Village estimates are likely to be incurred if the permittee fails to perform such restoration. Where the construction of facilities proposed under the permit will be performed in phases in multiple locations in the Village, with each phase consisting of construction of facilities in one location or a related group of locations, and where construction in another phase will not be undertaken prior to substantial completion or restoration in the previous phase or phases, the Village Engineer may, in the exercise of sound engineering judgment, allow the permittee to post a single amount of security which shall be applicable to each phase of the construction under the permit. The amount of the performance security for phased construction shall be equal to the greatest amount that would have been required under the provisions of this subsection for any single phase.
D. Withdrawals: The village, upon fourteen (14) days' advance written notice clearly stating the reason for, and its intention to exercise withdrawal rights under this subsection, may withdraw an amount from the performance security, provided that the permittee has not reimbursed the village for such amount within the fourteen (14) day notice period. Withdrawals may be made if the permittee:
1. Fails to make any payment required to be made by the permittee hereunder; or
2. Fails to pay any liens relating to the facilities that are due and unpaid; or
3. Fails to reimburse the village for any damages, claims, costs or expenses which the village has been compelled to pay or incur by reason of any action or nonperformance by the permittee; or
4. Fails to comply with any provision of this title that the village determines can be remedied by an expenditure of an amount in the performance security.
E. Replenishment: Within fourteen (14) days after receipt of written notice from the village that any amount has been withdrawn from the performance security, the permittee shall restore the performance security to the amount specified in subsection C of this section.
F. Interest: The permittee may request that any and all interest accrued on the amount in the performance security be returned to the permittee by the village, upon written request for said withdrawal to the village, provided that any such withdrawal does not reduce the performance security below the minimum balance required in subsection C of this section.
G. Closing And Return Of Performance Security: Upon completion by the permittee and approval by the village of the work authorized under the permit, the performance security shall be refunded to the permittee, or such portion thereof as remains on deposit, within a reasonable time after account is taken for all offsets necessary to compensate the village for failure by the permittee to comply with any provisions of this title or other applicable law. In the event of any revocation of the permit, the performance security, and any and all accrued interest therein, shall become the property of the village.
H. Rights Not Limited: The rights reserved to the village with respect to the performance security are in addition to all other rights of the village, whether reserved by this title or otherwise authorized by law, and no action, proceeding or exercise of right with respect to said performance security shall affect any other right the village may have. Notwithstanding the foregoing, the village shall not be entitled to a double monetary recovery with respect to any of its rights which may be infringed or otherwise violated. (Ord. G-637, 7-13-1999)