§ 20-212. Security.

(a)

Purpose and applicability. The permittee shall establish a security fund in a form and in an amount as set forth in this section. The Security Fund shall be continuously maintained in accordance with this article at the permittee's sole cost and expense until the completion of the work authorized under the permit. The Security Fund shall serve as security for:

(1)

The faithful performance by the permittee of all the requirements of this article;

(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 article;

(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 article including, without limitation, any damage to public property or restoration work the permittee is required by this article 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 article or any other applicable law;

(4)

The Village Engineer, in the exercise of his reasonable discretion, based on the scope of the work permitted and the nature of the disruption to the right-of-way, may waive the requirement for a security fund, or may allow a permittee receiving multiple permits to post a single security covering all permitted work.

(b)

Form. The permittee shall provide the Security Fund 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 letter of credit in a form acceptable to the village. Any surety bond or letter of credit provided pursuant to this section shall, at a minimum:

(1)

Provide that it will not be canceled without prior notice to the village and the permittee;

(2)

Not require the consent of the permittee prior to the collection by the village of any amounts covered by it; and

(3)

Provide a location convenient to the village and within the State at which it can be drawn.

(c)

Amount. The dollar amount of the Security Fund 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 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 of restoration in the previous phase or phases, the Village Engineer 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 Security Fund 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 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 Security Fund, provided that the permittee has not reimbursed the village for such amount within the 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 article that the village determines can be remedied by an expenditure of an amount in the Security Fund.

(e)

Replenishment. Within 14 days after receipt of written notice from the village that any amount has been withdrawn from the Security Fund, the permittee shall restore the Security Fund 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 Security Fund 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 Security Fund below the minimum balance required in subsection (c) of this section.

(g)

Closing and return of Security Fund. Upon completion of the work authorized under the permit, the permittee shall be entitled to the return of the Security Fund, 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 article or other applicable law. In the event of any revocation of the permit, the Security Fund, and any and all accrued interest therein, 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 Security Fund are in addition to all other rights of the village, whether reserved by this article or otherwise authorized by law, and no action, proceeding or exercise of right with respect to said Security Fund 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.

(Code 1993, § 16-16.10; Ord. No. 2007-O-73, 10-23-2007)