Guam § 53105 - Condition for Deposit Fees and/or Bond.

§ 53105. Condition for Deposit Fees and/or Bond.

(a) All applications for excavation of a roadway shall have a

schedule of work that sets the timeline of construction or work events,

and deadline when the roadway will be restored to its original condition

or better. The contractor or public agency shall be required to close the

opening and restore the roadway no later than the date as specified on the

permit, or by the DPW Director.

(b) Deposit Fee.

COL10312014

CH. 53 CARE & PROTECTION OF HIGHWAYS

(1) In addition to the permit application fee, and except as

provided herein, any project by a private contractor or public agency

which would require an opening or excavation for any purpose in a

roadway shall be required to provide a deposit fee of no less than

Five Hundred Dollars ($500) or no less than five percent (5%) of

the total cost of the project impacting the roadway, whichever is

greater.

(2) No permit shall be granted to a contractor or public agency

unless the deposit fee is paid in full or a performance bond,

provided by a surety company authorized to do business on Guam,

guarantees repairs on a single project or multiple projects

anticipated to be undertaken over a period of time is provided.

(3) The prerequisite for a deposit fee shall not be applicable to

government-funded projects that necessitate bond insurance

coverage as a stipulation of the project; or for other projects for

which there is a performance bond, upon such terms and in such

amount as may be required by the Department at its discretion. This

requirement for a deposit fee shall not preclude the Department’s

condition for a bond, as may be imposed herein.

(4) Inspection and Repair.

(A) The deposit fee shall be retained by the Department

for up to three (3) months from the completion of the roadway

repair, during which time the Department shall conduct a site

inspection of the roadway project area in which the opening or

excavation had occurred to ascertain if the repairs were

conducted and completed properly in accordance with

applicable Federal Highway Administration and Department of

Public Works standards.

(B) If the roadway area is identified to be insufficiently

repaired, then the Director shall assess a penalty against the

deposit fee or performance bond, exclusive of the requirement

for the contractor or public agency to return and ensure that

proper repair is conducted. On unpaved roadways, “insufficient

repair” shall not include degradation, including, but not limited

to, erosion, weathering, and the impacts of traffic, which would

otherwise have been expected in the absence of the excavation

in question.

COL10312014

CH. 53 CARE & PROTECTION OF HIGHWAYS

(C) If the contractor or public agency fails to make proper

repairs within fourteen (14) days of notification of the

Department’s findings, the Department is authorized to procure

road repair services in accordance with 5 GCA Chapter 5, §

5213, and 2 GAR Div. 4, § 3111. The Department shall retain

as much of the performance bond or deposit fee as may be

required to compensate the Department for damages arising

from permittee’s failure to complete satisfactory road repair;

and the Department may also bring an action in the Superior

Court of Guam against the contractor for direct damages, if

any, beyond the amount of the performance bond or deposit fee

posted.

(D) Should the area repaired meet the Department’s

standards set forth for the repair of the roadway, the

Department shall return the deposit fee in full; however, the

permit application fee shall not be returned. The party

responsible for the roadway repair shall provide a one (1) year

warranty on the work that was completed. For unpaved

roadways, the warranty requirement shall be for a period of

ninety (90) days.

(5) In lieu of multiple deposit fees by a public agency or

contractor to guarantee repair of excavations needed for recurring

maintenance, repairs, and upgrades of its buried facilities, the

Department may authorize the posting of a performance bond to

cover multiple excavations in such amount and under such term as

the Department deems sufficient to ensure compliance with this

Chapter. In the event of forfeiture of the deposit fee or performance

bond, the proceeds shall be deposited in the Public Rights-Of-Way

Account of the Territorial Highway Fund for the purpose of paying

for roadway repairs.

(c) All proceeds from the deposit fee established by this Section

shall be deposited in the Public Rights-Of-Way Account of the

Territorial Highway Fund, and interest derived therefrom shall remain in

the Fund. Sufficient funds shall be reserved for the refund of deposits,

pursuant to this Section.

(d) Emergency Excavations. An emergency excavation may be

made without prior permit or deposit if the reason for the excavation is to

COL10312014

CH. 53 CARE & PROTECTION OF HIGHWAYS

prevent loss of life or damage to property that appears to be imminent if

the excavation is delayed, or to perform critical unscheduled repairs to

remedy unanticipated interruptions to services. In such emergency

situations, the contractor or public agency responsible shall contact the

Department on the first working day following the commencement of

excavation to complete and secure a formal permit. The contractor or

public agency responsible shall provide justification for the emergency

excavation. In the event the Department deems that the excavation was

not an emergency, the applicant shall be penalized Five Hundred Dollars

($500) for failure to properly secure a permit prior to excavating, and

will still be required to pay the appropriate fees and deposits. Except for

the prior permit requirement, none of the application fee, deposit, bond,

or penalty provisions of this Section shall be waived for emergency

situations.

(e) Before granting a permit under any provision of this Chapter, the

Department may require the applicant to file with the Department a

satisfactory bond, payable to the government of Guam in such amount

and term as the Department deems sufficient, conditioned on the proper

compliance by the permittee with the provisions of this Chapter. In the

event of forfeiture of the bond, the proceeds shall go to the Public

Rights-Of-Way Account of the Territorial Highway Fund.

(f) Prior to the start of excavation work, the permittee shall duly

inform the Mayor of the district where the excavation is to be made, and

notify the Mayor upon completion of the roadway restoration. In the

event of emergency excavations, as provided for in Subsection (d), the

permittee shall notify the Mayor on the next working day.