Corte Madera Municipal Code Ch. 15.21 Damage Deposits

The purpose of this chapter is to impose a requirement for the posting of a damage deposit as a condition to the issuance of certain construction permits when the director of public works or his or her designee determines that the construction work to be performed in reliance on the permit represents a risk of damage to town property including but not limited to town streets, sidewalks, underground pipes and infrastructure, rights-of-way, watercourses, open space, and/or parks. Damage deposits required by this chapter shall be pledged to the town for security purposes in the event of damage to town property in connection with construction work performed in reliance on a construction permit. Damage deposits shall be refunded or charged in accordance with the provisions of this chapter. Damage deposits may be established and modified from time to time as part of 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. 914, § 1, 10-20-2009)

(a) No application for a permit to perform any construction work that requires review by the director of public works or his or her designee (subject to the following exception) shall be approved, and no permit shall be issued until the director of public works or his or her designee has first determined whether a damage deposit shall be required in accordance with this chapter as a condition to the issuance of the permit. If the director of public works or his or her designee determines that a damage deposit shall be required, the permit shall not be issued until the permit applicant has first deposited a damage deposit in accordance with this chapter. Deposits for encroachment permits required by Chapter 12.12 of this Code shall not be subject to the provisions of this Chapter except as specified by subsection (d).

(b) In determining whether the work to be performed in reliance on the permit represents a risk of damage to town property, 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) Damage deposits shall be set by the town council in amounts that are deemed to constitute reasonable estimates of the costs of the town in repairing the damage arising out of the permitted work. damage deposit amounts may be established and modified from time to time by the town's fees resolution.

(d) If the director of public works or his or her designee determines that a damage deposit shall be required, the Director or his or her designee shall provide the permit applicant with the reasons for that determination upon the request of the applicant. The director of public works or his or her designee shall set the deposit amount in accordance with the applicable amount specified in the town's most recent fee resolution or as otherwise established by resolution of the town council. This damage deposit shall be in addition to any other fees and deposits that may be required in connection with the work that is being permitted. Whenever the director of public works or his or her designee determines that more than one permit to be issued to the applicant requires a damage deposit under this chapter, the director of public works or his or her designee may in his or her discretion waive any one or more damage deposits or combine any two or more damage deposits under this chapter into a combined deposit amount. The director of public works or his or her designee may in his or her discretion combine any damage deposit amount(s) under this chapter and the encroachment permit deposit amount under Chapter 12.12 into a combined deposit amount. Whenever any deposit amounts have been combined under this section, the provisions of this chapter shall be applied to the combined deposit amount.

(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 factors described in Section 15.21.020(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.

(f) For the purposes of this section a "risk of damage to town property" shall mean a set of facts or circumstances that reasonably leads to the conclusion that the performance of the activities being proposed presents a significant risk of damage to the 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 which would require the expenditure of funds to repair, remove, and/or replace the damage.

(Ord. No. 914, § 1, 10-20-2009)

(a) The applicant shall have the choice of depositing the amount of the damage 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 damage deposit, and all applicable interest, shall only be released to the applicant upon the satisfactory completion of all work authorized by all permits associated with the applicant's project (including but not necessarily limited to building, public works, fire, and land use entitlements and permits), the fulfillment of all conditions of each permit associated with the applicant's project, and upon the determination by the director of public works or his or her designee that no damage has been done to town property, or if such damage did result in connection with the construction project, that such damage has been repaired by the applicant to the satisfaction of the director of public works or his or her designee.

(c) In the event the applicant damages town property in connection with the permitted work and fails or refuses to repair such damage to the satisfaction of the director of public works or his or her designee, the town may utilize the damage deposit to make such repairs and pay for the costs incurred by the town.

(d) Prior to utilizing the damage deposit for repairs to town property, 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 damage deposit for repairs to town property. The notice shall include a description of the damage to the town property and an estimate of the cost to repair or replace the town property. Whenever more than one deposit have been combined under Section 15.21.020(d), the decision need not specify the individual permit deposit that is being charged.

(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 occurrence of the damage or the cost of repair or replacement of the damage 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. 914, § 1, 10-20-2009)

The permit applicant shall be responsible for all damage to 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 damage to town property.

(Ord. No. 914, § 1, 10-20-2009)

For the purposes of this chapter, the term "Town property" shall also apply to property of Sanitary District No. 2 of Marin County, a subsidiary district to the town of Corte Madera.

(Ord. No. 914, § 1, 10-20-2009)