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7A Page 20 City of Redwood City Memo To: City Council From: Blake Lyon and Marc Zafferano Date: June 5, 2006 Re: Encroachment Agreement for Redwood Shores Lagoon Bank Policy At the February 13, 2006, study session for the Redwood Shores Lagoon Bank Policy and Construction Guidelines staff presented the concept of an Encroachment Agreement for properties that have existing improvements on the Lagoon Bank. In subsequent discussions with Council members the question was raised as to why the Encroachment Agreement contains an indemnity and hold harmless provision. The following response addresses this issue and a sample Encroachment Agreement has also been provided for your reference. When the city allows private property owners to encroach into city property, easements, or rights-of-way, it exposes the city to potential liability should the encroachment cause bodily injury or property damage to either another person or to the city. For example. the city's current encroachment permits (as well as all city building permits) contain an indemnity and hold harmless provision for this reason. Other cities routinely include indemnity and hold harmless provisions in their building permits and encroachment permits as well. There are even more compelling reasons to require such a provision in this matter. First, none of the encroachments (i.e. improvements) were built with the benefit of a required encroachment permit. The city would normally require individual property owners to obtain an encroachment permit, which as noted above, already contains an indemnity and hold harmless provision. Thus, the city is not asking any more of the Redwood Shores residents than it would ask of any other resident who sought to encroach into a city easement. Second, some of the encroachments (Le. improvements) were not Installed with the benefit of required building permits, and the city could require removal of the encroachments. regardless of whether they create immediate hazards to life or safety. Instead, the city is giving the Redwood Shores residents whose encroachments (Le. improvements) fall into Level 1 the option to keep these improvements and legalize them with an encroachment permit. This is a significant financial benefit to the property owners. Third. encroachments which may have been built with the benefit of a building permit in the past nevertheless may not conform to curTent building codes. This potentially increases the risk of liability to the city in the event of personal injuries or property damage as a result of the encroachment. Consulting attorney Marc Zafferano will be available at the City Council meeting to answer any specific questions. ._~.,"