(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.

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(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.

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(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 Guam Code Ann., 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

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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.

SOURCE: GC § 10254 added by P.L. 10-40. Amended by P.L. 25:34:5, P.L. 31-
083:2 (Sept. 30, 2011), effective thirty (30) days from date of enactment pursuant to P.L. 31-083:3. Amended by P.L. 32-091:2 (Nov. 27, 2013).

2013 NOTE: Pursuant to the authority granted by 1 Guam Code Ann. § 1606, numbers and/or letters were altered to adhere to the Compiler’s alpha-numeric scheme.