A. Purpose. The permittee shall provide performance security as set forth in this section. The performance security shall be continuously maintained in accordance with this section at the permittee’ s sole cost and expense until the completion of the work authorized under the permit. The performance security shall serve as security for:
1. The faithful performance by the permittee of all the requirements of this chapter;
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 and other directives of the Village issued pursuant to this chapter; and
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 non-performance by permittee in violation of this chapter including, without limitation, any damage to public property or restoration work the permittee is required by this chapter 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 chapter or any other applicable law.
B. Form. The permittee shall provide the performance security to the Village in the form of a surety bond or an unconditional letter of credit, at the permittee’ s election, provided that the performance bond or letter of credit shall be in a form acceptable to the Village. At a minimum, any performance bond or letter of credit provided pursuant to this section:
1. Shall provide that it will not be canceled without prior notice to the Village and the permittee;
2. Shall 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 of Illinois at which it can be drawn.
C. Amount. The dollar amount of the performance security shall be sufficient to provide for the reasonably estimated cost to restore the right-of-way to at least as good a condition as that existing prior to the construction under the permit, as determined by the Director of Engineering, 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 of restoration in the previous phase or phases, the Director of Engineering may, in the exercise of sound discretion, 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 C 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 D, 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;
2. Fails to pay any liens relating to the facilities that are due and unpaid;
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 non-performance by the permittee; or
4. Fails to comply with any provision of this chapter 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. Annual Renewal. Each year while permittee occupies the Village’ s right-of-way, the permittee shall provide the Village with evidence, no later than January 1, that the performance security required by this section remains in effect and will remain in effect through December 31 of the new year.
G. Closing and Release of Performance Security. Upon completion of the work authorized under the permit, the permittee shall be entitled to the release of the performance security, 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 chapter or other applicable law. In the event of any revocation of the permit, the performance security shall become the property of the Village to the extent necessary to cover any reasonable costs, loss or damage incurred by the Village as a result of said revocation, provided that any amounts in excess of said costs, loss or damage shall be refunded to the permittee.
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 chapter 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.
(MC-5-2020, § 15, Amended 11/17/2020; MC-15-2007, Amended, 11/20/2007; MC-10-2007, Added, 07/10/2007)