Chapter 12.12 — ENCROACHMENT PERMIT DEPOSITS

Editor's note— Ord. No. 915, § 1, adopted Oct. 20, 2009, repealed Ch. 12.12, in its entirety and enacted new provisions to read as herein set out. Prior to this amendment, Ch. 12.12 pertained to Bonds. See Disposition of Ordinances Table for derivation.

The purpose of this chapter is to impose a requirement for the posting of an encroachment permit deposit as a condition to the issuance of an encroachment permit when the director of public works or his or her designee determines that the work to be performed under the permit will require the restoration of the right- of-way or watercourse of the town upon the completion of the work. The encroachment permit deposit required by this chapter shall be in addition to any fees or other deposits that may be established by this title or may be imposed upon the project under any other title of this Code. Encroachment permit deposits required by this chapter shall be pledged to the town for security purposes in the event of the permitee's failure or refusal to restore the right-of-way or watercourse of the town to its condition prior to the commencement of the work to be performed under the encroachment permit. Encroachment permit

deposits shall be refunded or charged in accordance with the provisions of this chapter. Deposits may be established and modified from time to time by the town's fees resolution proceedings but shall be maintained and processed as refundable deposits, rather than fees for services provided by the town.

(Ord. No. 915, § 1, 10-20-2009)

(a)

Unless this provision is waived in the permit and before a permit is effective, no application for an encroachment permit shall be approved, and no permit shall be issued until the permittee has deposited with the director of public works or his or her designee a sum to be fixed by the director or his or her designee as sufficient to reimburse the town for costs of restoring the right-of-way or watercourse to its former condition. The director of public works or his or her designee may in his or her discretion, however, allow the permittee to file a deposit on an annual basis in a sum estimated by the director or his or her designee as sufficient to cover the permittee's activities during any twelve-month period. In which event, the permittee shall not be required to make a deposit to the town for each encroachment permit that is issued while the deposit is in effect.

(b)

In determining the amount of the deposit required under this chapter, the director of public works or his or her designee shall consider: (1) the construction work contemplated by the applicant including its scope and the size of the project; (2) its location; (3) the nature of the contemplated construction and the type of construction procedures likely to be utilized by the applicant; (4) the type of equipment the applicant will, or is likely to, use in connection with the contemplated construction; and (5) such other factors as the director of public works or his or her designee deems relevant.

(c)

This encroachment permit deposit shall be in addition to any other fees and deposits that may be required in connection with the work that is being permitted. The director of public works or his or her designee may in his or her discretion combine the damage deposit amount under Chapter 15.21 and the deposit amount under this chapter into one single deposit amount. In which event, the provisions of Chapter 15.21 shall be applied to the combined deposited amount.

(d)

An applicant who is dissatisfied with the decision of the director of public works or his or her designee under subsection (b) may, within fourteen days after the mailing of the decision by the director of public works or his or her designee, file an appeal with the town council by written notice to the town clerk stating with particularity the applicant's objections to the decision by the director of public works or his or her designee. The appeal shall be accompanied by the payment of the appeal fee required by the town's most recent fee resolution. After an appeal in compliance with the provisions of this section is received, the town clerk shall schedule a public hearing before the town council on the appeal. Any evidence relevant to the factors described in subsection (b) may be considered by the town council. Evidence to be presented at the appeal hearing shall not be subject to the formal rules of evidence. The town council shall make a de

novo review of the evidence presented at the hearing and affirm, modify, or reverse the determination of the director of public works or his or her designee under the standards set forth by this section. The decision of the town council shall be final.

(Ord. No. 915, § 1, 10-20-2009)

(a)

The applicant shall have the choice of depositing the amount of the deposit in cash in a separate account at a bank chosen by the town for the receipt of such deposits or depositing the amount of the damage deposit in cash with the town directly. If the deposit is retained in a separate bank account, the applicant shall be entitled to interest accruing on the deposit at the interest rate applied by the bank. If the applicant deposits the amount with the town directly, then the applicant shall be required to execute an agreement on a form provided by the town acknowledging the waiver of any right to interest which would otherwise accrue on the amount deposited with the town.

(b)

The deposit, and all applicable interest, shall only be released to the applicant upon the satisfactory completion of all work authorized by the permit, the fulfillment of all permit conditions, and upon the determination by the director of public works or his or her designee that the right-of-way is safe and convenient for travel of the general public, or the watercourse is available for flow of storm water, whichever is applicable. The deposit and all applicable interest shall be released to the applicant within ninety days of the determination of the director or his or her designee that the conditions of this subsection have been satisfied.

(c)

In the event the applicant fails or refuses to restore the right-of-way to a safe and convenient condition or restore the watercourse to allow storm water flow to the satisfaction of the director of public works or his or her designee, the town may utilize the deposit to meet the unsatisfied conditions.

(d)

Prior to utilizing the deposit, the director of public works or his or her designee shall provide the applicant with his or her decision. The decision shall notify the applicant of the town's intention to utilize the deposit for the restoration of a safe and convenient right-of-way or to make the watercourse available for storm water flow. The notice shall include a description of the conditions of the town property and an estimate of the cost to restore the right-of-way to a safe and convenient condition or restore the watercourse to allow storm water flow to the satisfaction of the director of public works or his or her designee.

(e)

An applicant who is dissatisfied with the decision of the director of public works or his or her designee may, within fourteen days after the mailing of the decision by the director of public works or his or her designee, file an appeal with the town council by written notice to the town clerk stating with particularity the

applicant's objections to the decision by the director of public works or his or her designee. The appeal shall be accompanied by the payment of the appeal fee required by the town's most recent fee resolution. After an appeal in compliance with the provisions of this section is received, the town clerk shall schedule a public hearing before the town council on the appeal. Any evidence relevant to the condition of the right-of- way or watercourse and cost of restoration to be incurred by the town may be considered by the town council. Evidence to be presented at the appeal hearing shall not be subject to the formal rules of evidence. The town council shall make a de novo review of the evidence presented at the hearing and affirm, modify, or reverse the director of public works or his or her designee's determination. The decision of the town council shall be final. If the decision is modified or reversed, the town shall refund to the permittee that portion of the deposit that is determined by the town council to be owed to the permittee.

(Ord. No. 915, § 1, 10-20-2009)

The director of public works or his or her designee may require an additional deposit under this chapter at any time when in its opinion the amount of the deposit previously given is insufficient; provided that the director or his or her designee acts in accordance with the provisions of this chapter.

(Ord. No. 915, § 1, 10-20-2009)

Deposits under this chapter will not be required of any public utility or public agency which is authorized by law to establish or maintain any works or facilities in, under or over any public street or right-of-way.

(Ord. No. 915, § 1, 10-20-2009)

The permit applicant shall be responsible for all costs of restoration of town property proximately caused by the applicant in performing the work authorized by the permit. Nothing contained herein shall preclude the town from utilizing any other remedy provided by law instead of or in addition to the rights provided the town in this chapter to recover for the costs of restoration of town property.

(Ord. No. 915, § 1, 10-20-2009)

For the purposes of this chapter, "rights-of-way and watercourses" shall refer to roadways, curbs, gutters, streets, sidewalks, parkways, sewer lines, waterways, or other infrastructure, rights-of-way, or unimproved property of the town or Sanitary District No. 2 of Marin County, a subsidiary district to the Town of Corte Madera.

(Ord. No. 915, § 1, 10-20-2009)