Table of Contents
2022-2-28 Special Agenda - Open Session.pdf
Item 1 - NCTD License Agreement 2-28-22.pdf
24 Del Mar City Council
Special Meeting Agenda
VIA TELECONFERENCE ONLY
1050 Camino del Mar, Del Mar, California
1050 Camino del Mar, Del Mar, CA 92014 www.delmar.ca.us Civility Works: The Del Mar Code of Civil Discourse: Together we will promote inclusion; listen to understand; show respect; be clear and fair; and focus on the issue.
In the interest of public health, and consistent with the provisions of Assembly Bill 361 (AB 361) and related resolutions adopted by the Del Mar City Council, the City of Del Mar is temporarily taking actions to mitigate the COVID-19 pandemic by holding City Council Meetings electronically or by teleconference. This is not an in-person meeting.
Members of the public can watch the meeting live on the City’s website at:
http://delmar.12milesout.com/Video/Live and on Cable TV Spectrum Ch. 24, AT&T Ch. 99 starting at 4:30 PM.
Agenda materials and communications from the public on agenda items, “Red Dots”, are available on the City’s website: http://www.delmar.ca.us/AgendaCenter and a hard copy of the agenda materials are available at the Del Mar Library during their business hours.
NOTICE AND CALL OF
SPECIAL MEETING OF THE DEL MAR
CITY COUNCIL
MONDAY, FEBRUARY 28, 2022, 4:30 P.M.
City of Del Mar, VIA TELECONFERENCE ONLY
1050 Camino del Mar, Del Mar, California
*********************************************
NOTICE IS HEREBY GIVEN that the Mayor of the City of Del Mar has called a Special Meeting at the time and place listed above to consider the following: Please refer to the attached agenda.
CERTIFICATION
I, Sarah Krietor, Acting City Clerk of the City of Del Mar, hereby certify that a copy of this notice was posted at City Hall and distributed to the City Council on February 24, 2022, at approximately 4:15 p.m.
Sarah Krietor, Acting City Clerk
Special Needs: In compliance with the Americans with Disabilities Act, if you need special assistance to participate remotely in this meeting, please contact the Administrative Services Department via email at [email protected] or by calling (858) 755-9313, preferably at least 48 hours in advance of the meeting if possible.
Dwight Worden
Mayor
Tracy Martinez
Deputy Mayor
Dave Druker
Council Member
Terry Gaasterland
Council Member
Daniel Quirk
Council Member
Ashley Jones
City Manager
Leslie E. Devaney
City Attorney
Sarah Krietor
Acting City Clerk
Del Mar City Council Special Meeting February 28, 2022
Agenda Page 2
1050 Camino del Mar, Del Mar, CA 92014 www.delmar.ca.us Public comment is restricted to only items listed on the Special Meeting Agenda. Members of the public can participate in the meeting by either submitting a written red dot comment via email to [email protected] or by speaking live during the meeting using the Zoom link and/or dialin information provided below. For written comments, the subject line of your email should clearly state the item number you would like to comment on. The deadline to submit written comments is 12 p.m. on the day of the meeting. Those wishing to comment live should join the Zoom meeting when the item(s) they wish to speak on is announced.
Zoom Link: https://us02web.zoom.us/j/84790910014
Phone: (669) 900-6833
Meeting ID: 847 9091 0014
While registration is not required, staff recommends members of the public submit an optional tele-comment request form (www.delmar.ca.us/telecomment) to assist with speaker management during the meeting. For more information please visit:
www.delmar.ca.us/publiccomment.
I. CALL TO ORDER/ROLL CALL
II. CITY COUNCIL BUSINESS
1. Consideration of a License Agreement between the City of Del Mar and the North County Transit District (NCTD) for Public Use of NCTD Right of Way Recommended Action: Staff recommends that the City Council review and consider approval of a License Agreement (Attachment A) between the City of Del Mar and the North County Transit District allowing for public use of the Del Mar upper bluff trail area located within the NCTD right of way.
Clerk’s File No. 406-1, 1506-20
III. ADJOURNMENT
City of Del Mar
Agenda Report
City Council Action:
TO: Honorable Mayor and City Council Members
FROM: Ashley Jones, City Manager
William Pate, Assistant City Attorney
Kristen M. Crane, Assistant City Manager
DATE: February 28, 2022
SUBJECT: Consideration of a License Agreement between the City of Del Mar and the North County Transit District (NCTD) for Public Use of NCTD Right of Way REQUESTED ACTION/RECOMMENDATION:
Staff recommends that the City Council review and consider approval of a License Agreement (Attachment A) between the City of Del Mar and the North County Transit District allowing for public use of the Del Mar upper bluff trail area located within the NCTD right of way.
BACKGROUND:
On August 28, 2020, NCTD filed a Petition for Declaratory Order with the federal Surface Transportation Board (STB). The Petition seeks an order to prohibit the California Coastal Commission (CCC) and City of Del Mar (City) from being able to regulate NCTD’s rail operations along the Del Mar bluffs, including projects related to safety measures.
On or around October 5, 2020, the City and Coastal Commission, along with concerned Del Mar residents and the Surfrider Foundation, subsequently filed oppositions to the NCTD’s Petition. Amtrak and the Association of American Railroads submitted filings in support of NCTD’s Petition.
Around the same time, NCTD published a “Trespasser Risk Reduction Study,” which was sent to the City on October 9, 2020, and later presented to the Del Mar City Council on January 11, 2021. Using this study as the basis for their proposal, in October 2020, NCTD notified the City of its intention to construct a 6 foot chain link fence at the track level and along the upper bluffs in Del Mar. At that time, NCTD indicated that they would be agreeable to negotiating with the City to construct a different type/size of fencing; however, in doing so the City would be expected to pay for the modified fence – including surveys, design, construction and maintenance; and agree to fully assume liability for the fencing and indemnify NCTD.
On December 10, 2020, the City, NCTD, and CCC entered into a Settlement Discussions Agreement for the purpose of facilitating confidential negotiations/discussions to reach a Settlement Agreement regarding the STB matter. In March 2021, in order to continue good 1 February 28, 2022 Item 01
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faith discussions, the Parties agreed to extend the stay on the STB matter for a period through December 31, 2021.
For more than a year, the City, CCC, and NCTD worked on the terms of a License Agreement and a modified fencing plan that could be supported by all parties. Unfortunately, the parties failed to reach agreement by the December 31, 2021, deadline which resulted in the NCTD Board directing their staff to restart the STB matter. Public documents related to the STB matter and NCTD fencing plans can be found at:
https://www.stb.gov/proceedings-actions/search-stb-records (Finance Docket No. 36433) https://gonctd.com/about-nctd/safety-security/trespasser-mitigation/city-of-del-marinformation/ https://www.delmar.ca.us/CivicAlerts.aspx?AID=782
On December 30, 2021, NCTD filed a report with the STB seeking to reopen and expedite its Petition against the CCC and Del Mar. On January 14 and 18, 2022, Del Mar and the CCC each respectively filed responses, including a motion for the STB to order the matter into its mediation program. On January 19, 2022, NCTD opposed the request for mediation. The STB has not issued a ruling.
On January 20, 2022, the NCTD held a Board Meeting during which the NCTD Board of Directors approved Job Order No. 21009-005 to general contractor Exbon Development Inc. for right of way fencing installation in the City of Del Mar. The NCTD Board approved the installation of a modified fencing plan, approximately 4-foot steel post and cable installed to provide public access to the upper bluff, contingent on the City executing a license agreement that includes the acceptance of liability for use of NCTD’s right-of-way for the upper bluff trail and maintenance by February 28, 2022. In the event Del Mar failed or refused to enter into a written agreement by February 28, 2022, the Board authorized the NCTD Executive Director to proceed with a different, large scale, 6-foot wire, fencing plan that would prohibit public access to the Del Mar upper bluff located in the NCTD right of way. A copy of the January 20, 2022, NCTD Board report for agenda Item 13 and related information can be found at:
https://lfportal.nctd.org/weblink/browse.aspx?startid=3&cr=1 https://lfportal.nctd.org/weblink/0/doc/192481/Page1.aspx.
DISCUSSION/ANALYSIS:
Following the NCTD Board decision and direction to their staff on January 20, 2022, NCTD staff reached out the City expressing a willingness to consider further modifications to the terms of a License Agreement in hopes of reaching agreement prior to the February 28, 2022, deadline. Following meetings between executive staff and legal counsel, which included representatives of the California Coastal Commission, a revised License Agreement has been finalized for the City Council’s consideration, which has been approved by NCTD. 2 February 28, 2022 Item 01
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Consistent with the City of Del Mar Priorities in Addressing the Rail Right-of-Way Through the Del Mar Bluffs, which was drafted by then Deputy Mayor Gaasterland and then City Councilmember Dwight Worden and adopted by the City Council on November 23, 2020 (Attachment B), the final version of the License Agreement seeks to provide formal legal public access and use of the Del Mar upper bluff area located in the NCTD right-of-way.
The key terms of the Agreement are as follows:
• Provides for formal legal public access to the Del Mar upper bluff located within the NCTD right of way.
• Modified fencing to be installed on the upper bluff from 9th Street to Del Mar Woods, which will be steel post and cable fencing. Posts will not exceed 44” in height and cables will not exceed 42” in height, with a maximum of four tensioned cables. • The License Area will preserve natural conditions and the walkable trails to the maximum extent possible with placement of fencing along the far western boundary as depicted in Exhibit A to the Agreement.
• City will be responsible for general maintenance of the License Area including litter abatement, graffiti removal, and inspection/notification to NCTD of fencing damage. • The City will not be responsible for maintenance of NCTD’s fence other than reimbursement of 50% of the actual reasonable costs incurred. It should be noted that this is a significant improvement to the prior version of the License Agreement approved by the NCTD Board in which the City would be 100% responsible for repairing and maintaining the fence and paying all related costs. • The City will only be responsible for liability incidents which occur within the License Area along the upper bluff.
• The City will not be required to enforce trespassing activities within NCTD’s railroad ROW, and will be indemnified by NCTD for train strikes in the event of trespassing from the upper bluff License Area. This provision of the License Agreement and the one noted above related to liability are also significant improvements from what was originally required by NCTD.
FISCAL IMPACT:
There is no immediate fiscal impact or action to be taken by the City Council related to this agenda item. However, there will be costs associated with the City’s required maintenance responsibilities under the License Agreement, which are estimated at this time to be less than $20,000 per year.
ENVIRONMENTAL IMPACT:
The proposed City Council action is exempt from CEQA pursuant to the common-sense exemption (CEQA Guidelines Section 15061(b)(3) because it can be seen with certainty that 3 February 28, 2022 Item 01
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there is no possibility that the activity in question may have a significant effect on the environment. There will be no change in the environmental condition related to the action as the existing trail has been used as a public trail.
ATTACHMENTS:
Attachment A – Proposed License Agreement between the City and NCTD Attachment B – City of Del Mar Priorities in Addressing the Rail Right-of-Way Through the Del Mar Bluffs
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Recording Requested by
North County Transit District
When recorded, mail to:
North County Transit District
810 Mission Avenue
Oceanside, CA 92054
Attn: Real Estate Department
SPACE ABOVE FOR RECORDER'S USE
LICENSE AGREEMENT
THIS LICENSE AGREEMENT (“Agreement” or “License”) is made and entered into as of the effective date of February 28, 2022 (“Effective Date”) by and between the North County Transit District, (“NCTD”), a public agency existing under the laws of the State of California, pursuant to California Public Utilities Code sections 125000, et seq. and the City of Del Mar, a California Municipal Corporation (“City” or “Licensee”), collectively referred to as the “Parties.”
RECITALS
A. NCTD operates 62 miles of mainline railroad track from the Orange County/San Diego County line to the San Diego Santa Fe Depot in downtown San Diego as part of its Right of Way (“ROW”). NCTD has certain policies and regulations as well as obligations under State and Federal law (collectively the “ROW Policies”) governing the use of its Right-ofWay (“ROW”); and B. NCTD prohibits unauthorized access on its ROW including any pedestrian crossing or travel along the ROW. (collectively “Trespassing”); and C. NCTD conducted a trespassing safety study in June of 2020 which resulted in recommended mitigation measures to reduce Trespassing risks and increase public safety and the on-time performance of the railroad, of which fencing was identified as one possible measure. The City supports public safety goals and the ability of the public to safely access the coast.
D. The City accepts and acknowledges the fencing plan approved by the NCTD Board of Director’s on January 20, 2022, and accepts the “Fencing Improvements” and the “License Area” as further defined in Exhibit A.
E. The City and NCTD intend by the License Agreement to allow public access and use of the trails along the Upper Bluff above the railroad tracks. The Parties seek to preserve the natural conditions and the walkable trails along the Upper Bluff from end to end to the maximum extent possible in the placement of fencing as provided herein. 5 February 28, 2022 Item 01
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F. The City desires to use a portion of the NCTD ROW for public access along what is commonly known as the “Upper Bluff”; and
G. In exchange for the licensed use of a portion of ROW, the City has agreed to maintain the licensed ROW area and to assume certain liability as defined herein for such public use (the “Mutual Benefit”); and
H. NCTD has agreed to the City licensed use of a certain described portion of the ROW identified in Exhibit “A” ("License Area"), subject to the terms and conditions of this Agreement, applicable law, and in accordance with NCTD’s ROW Policies; and I. The City and NCTD mutually agree to be bound by the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual promises contained herein, and by the incorporation of the above recitals into this Agreement, the Parties further agree to the following:
1. Acceptance of License Area. Licensee accepts the License Area (as of the date in 9.1) in its present physical "as-is" condition and agrees to make no demands upon NCTD for any further improvements or alterations. By signing this License, Licensee represents and warrants that Licensee has independently inspected the surface areas (and not any subsurface condition) of the License Area, and made reasonable surface investigations, non-destructive tests, and observations necessary to satisfy Licensee as to the condition of the License Area, zoning and land use laws, regulations, and ordinances affecting the License Area, and all of the conditions, restrictions, encumbrances, and other matters of record relating to the License Area. Licensee agrees that Licensee is relying on Licensee's independent inspection and that NCTD has made no warranty or representation of same with regard to the License Area. Even though Licensee and NCTD agree that Licensee it is not responsible for subsurface conditions pursuant to this License, Licensee acknowledges it has been provided certain geotechnical reports, including letters from Leighton Consulting Group dated February 5, 2021 and January 18, 2022.
2. License to Use. In consideration of the covenants and conditions set forth in this Agreement, NCTD licenses to Licensee use of the License Area as further defined in this Agreement, including but not limited to Section 9.1 for timing of use and Exhibit “A” attached hereto and incorporated herein by reference for the sole purpose of Public Access as defined herein as the natural walking trail(s) provided in Exhibit A.
The Parties agree and understand that the License Area may need to be modified, relocated, or removed upon the commencement of the San Diego Association of Governments (“SANDAG”) Del Mar Bluffs Stabilization Project(s) (“DMB Projects”) or other similarly related SANDAG projects within or impacting the License Area. Should it become reasonably necessary, due to DMB Projects impacts on License Area, it is the intent of the Parties to revise Exhibit A pursuant to the terms of Section 13 below.
3. Authority Not Exclusive. This License is non-exclusive. The Licensee shall respect the rights and property of NCTD and other authorized users of the ROW, easements, power poles, street light poles, vaults, and conduits. Except as otherwise required by applicable law, disputes between the Licensee and parties other than NCTD over the use, pursuant 6 February 28, 2022 Item 01
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to this Agreement, of the easements, power poles, streetlight poles, vaults, conduits and other rights-of-way shall be submitted to NCTD for resolution.
4. Relocation. In consideration of NCTD’s agreement to enter into this License, Licensee hereby waives any and all rights it may now have, or hereafter obtain, to any “relocation assistance benefits” pursuant to the Federal Uniform Relocation Assistance Act (42 U.S.C. § 4601 et seq.), the California Relocation Assistance law (Cal. Gov. Code § 7260 et seq.) or any other statute that replaces or provides rights similar to such statutes, if NCTD makes use of the ROW in such a way as to ‘displace’ Licensee from the License Area.
Licensee shall in the future execute any further documentation of the release and waiver provided hereby as NCTD may reasonably require.
5. Compensation/Mutual Benefit. The Mutual Benefit received by the Parties is in lieu of any monetary compensation or a “License Fee” for the use of the License Area. In order to provide a Mutual Benefit, NCTD will allow the use of the License Area in exchange for the Licensee’s assuming certain maintenance and liability indemnification obligations within the License Area at City’s sole cost and a release of liability/hold harmless provision pursuant to Sections 8 and 11 of this Agreement. The Mutual Benefit as further described in Exhibit “C” and provided herein shall constitute a Reciprocal Benefit in accordance with NCTD Board Policy No. 11.
Nothing in this Section 5 shall affect the right of NCTD to require Licensee to relocate or remove any improvements as set forth in Section 4 and Section 6.2.
6. Limitations on Use.
6.1 Licensee shall comply with all applicable terms, conditions and requirements of NCTD's policies regarding NCTD’s ROW and all other NCTD ordinances, rules and regulations. Licensee shall comply with all applicable laws, rules and regulations of the federal, state, county, local governments and administrative agencies, which have jurisdiction over Licensee's use, construction, improvement, and maintenance of the License Area.
6.2 Consistent with Federal Transit Administration requirements, the Licensee's use of the License Area must not in any way interfere with NCTD's continuing control over the ROW or NCTD's expressed continued ability to carry out its functions. NCTD shall have the right to terminate this License at any time in order to maintain continuing control over the License Area or NCTD’s expressed continued ability to carry out its functions.
6.3 Licensee and NCTD shall not cause or permit any Hazardous Material to be used, stored, transported, generated, or disposed in or about the License Area by Licensee, Licensee's agents, employees, or contractors. "Hazardous Material" means any hazardous, toxic, or infectious substance, material, or waste which is or becomes regulated by any local governmental entity, the State of California, or the United States Government under any law, regulation or ordinance regulating or controlling any Hazardous Material (the "Hazardous Materials Laws"), including, without limitation, any material, or substance which is: (i) defined as a "hazardous waste," "extremely hazardous waste" or "restricted hazardous waste" under California Health and Safety Code §§ 25115, 25117 or 25122.7, or listed pursuant to California Health and Safety Code § 25140, (ii) defined as a "hazardous 7 February 28, 2022 Item 01
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substance" under California Health and Safety Code § 25316, (iii) defined as a "hazardous material," "hazardous substance" or "hazardous waste" under California Health and Safety Code § 25501 (iv) defined as a "regulated medical waste" under 40 C.F.R. § 259.10(a) or § 259.30, (v) petroleum or petroleum product, (vi) asbestos, (vii) designated as a "hazardous substance" pursuant to § 311 of the Federal Water Pollution Control Act (33 U.S.C. § 1317), (viii) defined as a "hazardous waste" pursuant to § 1004 of the Federal Resource Conservation and Recovery Act, 42 U.S.C. § 6901, et seq. (42 U.S.C. § 6903), or (ix) defined as a "hazardous substance" pursuant to § 101 of the Comprehensive Environmental Response Compensation and Liability Act, 42 U.S.C. § 9601 et seq. (42 U.S.C. § 9601No use, construction, or maintenance by Licensee or on Licensee's behalf on the License Area will interfere with any railroad operations on the ROW.
6.4 Licensee shall not leave any personal property or equipment on the ROW unattended at any time without prior written permission from NCTD in its sole and absolute discretion.
6.5 Licensee shall not install or use any underground storage tanks in the License Area.
7. Insurance. Without limiting Licensee’s indemnification obligations to NCTD under this License, Licensee shall provide and maintain during the term of this License, at Licensee’s sole expense, insurance in the amounts and form specified in Exhibit “B”, INSURANCE REQUIREMENTS.
8. Indemnification. To the fullest extent of the law, the City of Del Mar agrees to protect, save, defend, and hold harmless NCTD and its Board of Directors (“Board”) and each member of the Board, and each of their respective officers, agents, and employees from any and all liability or claim of liability, loss or expense, including defense costs and legal fees and claims for damages of whatsoever character, nature and kind, arising from or connected with an act or omission of the City, or any employee, agent, or contractor of the City, or other person acting by or on behalf of the City on or about the License Area, including, but not limited to expense, and claims for bodily injury, death, personal injury, or property damage (collectively, “Claims”); provided, however, that: (1) the duty to defend or indemnify shall be exclusively limited to Claims that arise from incidents which occur within the License Area; (2) City shall have no defense or indemnity obligation with respect to Claims that occur within NCTD’s railroad right-of-way outside of the License Area such as train strikes to persons or damages to property resulting from trespassing from the Licensed Area with the person or property entering upon NCTD’s railroad right-of-way; and, (3) nothing herein shall relieve any party indemnified hereunder from liability to the extent such liability arises from such indemnified party’s active negligence or willful misconduct.
To the fullest extent of the law, NCTD agrees to protect, save, defend, and hold harmless the City of Del Mar and its Council members, and each of their respective officers, agents, and employees from any and all liability or claim of liability, loss or expense, including defense costs and legal fees and claims for damages of whatsoever character, nature and kind, arising from Claims that occur within NCTD’s railroad right-of-way resulting from trespassing from the Licensed Area with the person or property entering upon NCTD’s railroad right-of-way; provided, however, no such right to indemnification shall apply to the extent such liability arises from the City’s active negligence or willful misconduct. 8 February 28, 2022 Item 01
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The requirements as to the types and limits of insurance coverage to be maintained by Licensee as required by Section 6, and any approval of such insurance by NCTD, are not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by Licensee pursuant to this Agreement, including but not limited to the provisions concerning indemnification.
9. Construction.
9.1 Within the License Area, NCTD shall install fall protection fencing (steel post & cable type) at its cost in the form and location described in Exhibit A attached hereto (the “Fencing Improvements”). Acceptance of the Fencing Improvements and use of the Licensed Area shall only occur following NCTD’s substantial completion and Licensee shall provide written notice of acceptance of the Fencing Improvements following NCTD’s written notice of substantial completion (other than punch-list, or close-out items). Licensee shall be obligated to inspect, report, and share the cost to maintain the Fencing Improvements once accepted pursuant to the terms of this Agreement.
9.2 No other improvements by either party are contemplated under this License Agreement.
9.3 Storm Water Pollution Prevention: For purposes of this Section the following definitions shall apply: State Water Resources Control Board (“SWRCB”); National Pollutant Discharge Elimination System (“NPDES”); and MS4 Program shall mean the RWQCB issued Phase II Small MS4 Program (currently Order No. 2013-0001- DWQ) as it may be amended or superseded.
9.3.1 The Licensee shall prepare, implement and monitor an Erosion and Sediment Control Plan (“ESCP”) consistent with the current NCTD ESCP template for the purpose of preventing the discharge of pollutants into receiving waters for all construction or demolition activities performed or caused to be performed by Licensee on the License Area for activities not requiring coverage under the Construction General Permit, the industrial general permit or an individual National Pollutant Discharge Elimination System permit, including construction activities that result in a total land disturbance of less than one acre that are not part of a larger common plan of development or sale. This includes elimination of non-storm water pollution discharges such as improper dumping, spills or leakage from storage tanks or transfer areas.
9.3.2 Without limiting the provisions set forth in Sections 6.1, 9.1, 9.8.1 and 9.8.2, the Licensee shall comply with the NCTD Storm Water Management Program and all NCTD, local, state and federal ordinances, laws, rules and regulations governing storm water discharges, including but not limited to those associated with Licensee’s maintenance activity under this License Agreement and any other authorized land disturbances (if any).
9.3.3 The Licensee shall pay and be responsible for all fees attributed to the use of the License Area, as may be applicable and as required by SWRCB, during the term of this Agreement.
9.3.4 The Licensee shall submit all SWRCB required documentation, as applicable, to the SWRCB through the SWRCB SMARTS online system and shall provide 9 February 28, 2022 Item 01
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a copy of such documentation and proof of submittal to NCTD.
9.3.5 As required by Licensee’s Phase II MS4 Permit (Order No. 2013-0001-DWQ) (“MS4 Permit”), NCTD may conduct periodic water sampling associated with any drainage facility installed by Licensee within the License Area. Licensee shall be required to reimburse NCTD for costs associated with collection, sampling and reporting. NCTD may require Licensee to perform corrective actions, at Licensee's sole cost and expense, in order to meet the requirements of the MS4 Permit.
10. Reimbursement of NCTD. Licensee shall reimburse NCTD, within sixty (60) days of invoice, for all cost and expense incurred by NCTD in connection with NCTD's review and processing of any work performed by or for Licensee on the License Area or for any reimbursement required herein. These costs include, but are not limited to, NCTD staff time and consultant’s fees for the expenses of reviewing construction documents, ESCPs, Permit Registration Documents, ROW support services, inspections, monitoring, or security. Costs of services provided by NCTD employees will be charged at the employees' fully burdened hourly rates (monthly salary and benefits). Services provided by NCTD consultants, and other third-party costs will be charged at cost.
11. Maintenance, Enforcement and Repair. Licensee shall at all times maintain the License Area in accordance with the terms of this Agreement, as is its obligation under the agreed upon Mutual Benefit (and as further provided for in Exhibit C). In accordance with Exhibit C, Licensee shall not be responsible for repairs and maintenance of the Fencing Improvements. Licensee’s only obligation with respect to the Fencing Improvements shall be to reimburse NCTD 50% (fifty-percent) of the actual reasonable cost incurred by NCTD to maintain and repair the Fencing Improvements. At a minimum Licensee shall regularly inspect and keep the License Area in a state of good repair (to the extent feasible, timely repairing damage), notifying NCTD of damage to the Fencing Improvements within 48 hours, clean (free of graffiti) and safe condition for its intended use and shall enforce any misuse within the License Area. Licensee shall be responsible for any citations issued by any agency having jurisdiction as a result of Licensee’s failure to comply with any applicable law, regulation, ordinance, rule, or order. Individual or “blanket” ROE’s for specific maintenance work may be required in NCTD’s sole and absolute discretion.
12. Taxes. Nothing contained in this Agreement shall be construed to exempt the Licensee from any tax levy or assessment which is or may be hereafter lawfully imposed. Notice is hereby given pursuant to Revenue and Tax Code Article 107.6 that this License may create a property interest subject to property taxation and may subject Licensee to the payment of property taxes levied on such interest.
13. Term; Default; and Termination.
13.1 Ten Year Terms. The term of this Agreement shall be ten (10) years from the Effective Date. This Agreement shall automatically renew, without any required notice, for additional successive ten-year terms, unless the Agreement is legally terminated as set for below.
13.2 Termination for Convenience. Either party, NCTD or the City, may terminate this Agreement for any reason, with or without cause, upon at least twelve months written notice.
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13.3 Termination for Mutual Consent. This Agreement may also be terminated at any time by mutual written consent of the Parties.
14. Default and Termination. An event of default may occur if Licensee uses the Licensed Area for any purpose not expressly allowed by this Agreement, including maintaining the Mutual Benefit as provided herein, or fails to act in accordance with the material terms and material conditions of this Agreement. Only if such event of default is not cured within (120) one hundred twenty days following written notice from NCTD to Licensee, or cured within a further extension of time as agreed by the parties in writing to cure the event of default, NCTD may terminate this Agreement and prevent Licensee from using or remaining upon the Licensed Area. If NCTD determines that any material default by Licensee will or has the potential to interfere or cause a danger to the ROW or railroad operations, NCTD may immediately halt those activities without prior notice to Licensee and declare the same and event of default.
14.1 Discharge and Release. Upon termination of this Agreement the parties shall be discharged of any further obligations under this Agreement.
15. Del Mar Bluffs Stabilization. The Parties agree and understand that the License Area provided herein is within the portion of the ROW which may be utilized by NCTD and/or SANDAG for Del Mar Bluffs (DMB) Projects. NCTD shall provide written notice to City at the time of DMB Projects design by SANDAG determines any conflicts (“DMB Projects Notice”), and the Parties shall work collaboratively to enter into either a new agreement or revised Exhibit A which shall be compatible with DMB Projects as approved by NCTD in its sole and absolute discretion and confirmed consistent by SANDAG. If a new agreement or revised Exhibit A cannot be reasonably reached within one hundred eighty (180) days of DMB Projects Notice, NCTD may terminate this Agreement pursuant to the terms of Section 13.
16. Service of Notice. Except as otherwise provided in this Agreement, any notice required or permitted to be given hereunder shall be in writing and may be given by personal delivery or by certified or registered mail, and shall be deemed sufficiently given if delivered or addressed to:
NCTD: North County Transit District LICENSEE: City of Del Mar 810 Mission Avenue 1050 Camino Del Mar
Oceanside, CA 92054 Del Mar, CA 92014
Attention: Real Estate Department Attention: City Manager Mailed notices shall be deemed delivered two business days following deposit in the mail, postage prepaid. Either party may by notice to the other specify a different address for notice purposes.
In the event Licensee is aware that the tracks become damaged, blocked or fouled in any way, Licensee shall immediately notify NCTD Rail Operations Center at (760) 966-6700.
17. Vibration and Noise from Train Operation; Barricades. Licensee recognizes and acknowledges that railroad tracks are located adjacent to the License Area and that the operation of trains over the tracks does and will produce vibrations which may affect the Improvements and Licensee's use of the License Area. With knowledge and 11 February 28, 2022 Item 01
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understanding of these facts, Licensee, by execution of this Agreement, agrees that no legal action or complaint of any kind whatsoever shall be instituted against NCTD by Licensee or on Licensee’s behalf as result of vibrations or as a result of the use of the railroad tracks in general.
18. No Permanent Interest. This Agreement does not convey any permanent interest in any real property, nor does it confer any right or obligation to any third party, including but not limited to, public access rights under any law, regulation or ordinance of any local, state or federal agency.
19. Laws and Venues. This Agreement shall be governed in accordance with the laws of the State of California. If any action is brought to interpret or enforce any term of this Agreement, the action shall be brought in a state or federal court situated in the County of San Diego, State of California.
20. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but all of which, taken together, shall constitute one and the same agreement.
IN WITNESS WHEREOF, the Parties have signed below, effective as of the Effective Date, by their duly authorized representatives.
NCTD: LICENSEE: CITY OF DEL MAR
By: By:
Matthew Tucker, Executive Director Ashley Jones, City Manager Approved as to Form Approved as to Form
____________________________ ____________________________ Lori A. Winfree, General Counsel Leslie E. Devaney, City Attorney 12 February 28, 2022 Item 01
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STATE OF CALIFORNIA )
)
COUNTY OF _________________ )
On __________________, 20___, before me, _________________________________, a Notary Public in and for said State, personally appeared ____________________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
_________________________________
Notary Public in and for said State
(SEAL)
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
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STATE OF CALIFORNIA )
)
COUNTY OF _________________ )
On __________________, 20___, before me, _________________________________, a Notary Public in and for said State, personally appeared ____________________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
_________________________________
Notary Public in and for said State
(SEAL)
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
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EXHIBIT “A”
Exhibit A to the License Agreement defines and establishes the “License Area,” including the location and type of “Fencing Improvements” along the Upper Bluff above the railroad tracks from 9th Street to the south end of Del Mar Woods.
LICENSE AREA
The License Area generally consists of the Del Mar Upper Bluff, which includes existing coastal trails that traverse north-to-south from 9th Street to the south end of the Del Mar Woods (“DMW”) condominiums, where the southern DMW parcel borders the Torrey Pacific property.
The License Area also includes existing east-to-west paths leading from street level to the coastal trails. The License Area excludes NCTD real property within the NCTD Right-of Way under private lease to owners of adjacent private properties.
The License Area includes nine strips of land that extend east-to-west from City street and alley ends to the Upper Bluff at 9th Street, Shippey Lane, 8th Street, Little Orphan Alley, 7th Street, Sherry Lane, 6th Street, and Sea Cliff Way.
The License Area includes nine gated access paths that extend east-to-west from Del Mar Woods parcels to the Upper Bluff Coastal Trail.
Appendix A.1 illustrates the License Area as depicted on Maps 8 through 15 which are excerpts from the Modified NCTD Fence Layout approved by the NCTD Board of Directors on January 20, 2022 (Board Agenda Item No. 13).
Appendix A.2 illustrates and depicts the east-to-west access paths that are also part of the License Area.
Appendix A.3 shows the type and form of Fencing Improvements which shall be the type of fencing NCTD installs within the License Area per section 9.1 of the License Agreement (galvanized round post and cable fencing within no more than four tensioned steel cables).
FENCE LOCATION AND FORM
The Fencing Improvements will be installed along the western boundary of the Upper Bluff coastal trails as depicted on Maps 8 through 15 of Appendix A.1. The location and general alignment of the Fencing Improvements are shown on Maps 8 through 15 as a red line identified on the Map legend under “ROW FENCING TYPE” as “Post and Cable Fall Protection 42-inch.” 15 February 28, 2022 Item 01
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EXHIBIT A - APPENDIX A.1
LICENSE AREA MAPS
The License Area is identified on the below Maps 8 through15 inclusive from the “Modified NCTD Fence Layout” approved by the NCTD Board on January 20, 2022.
MAP 8: 9
th Street
MAP 9: 8
th Street
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MAP 10: 7
th Street
MAP 11: 6
th Street to Sea Cliff Way (“ALLEY”)
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MAP 12: Stratford Court
MAP 13: 4
th Street
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MAP 14: Del Mar Woods public access trails
MAP 15: Del Mar Woods to public access trail
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EXHIBIT A - APPENDIX A.2
LICENSE AREA EAST-WEST ACCESS PATHS
The Licensed Area includes existing east-west access paths to the Upper Bluff trails from public street ends from 9th Street south.
The License Area does not include real property within the NCTD Right-of-Way that is subject to existing leases NCTD has with private property owners for the private use of parcels to the north and south of the east-west access paths.
The License Area does not include certain property south of 4th Street that is the subject of an existing agreement NCTD has with Del Mar Woods regarding the maintenance of a drainage culvert.
The License Area includes the east-west access paths to the Upper Bluff that currently exists at each street end, including ends of alleys, between 9
th Street and 4th Street.
The License Area also includes east-west access paths that currently exist from Del Mar Woods to the Upper Bluff.
The License Area includes the street-end access paths depicted and illustrated in the images below:
i. 9
th Street (street end with southwest path to Upper Bluff, dashed line) ii. Shippey Lane (street end, west to Upper Bluff, dashed line) iii. 8
th St (street end, west to Upper Bluff, dashed line)
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iv. Little Orphan Alley (street end, west to Upper Bluff, dashed line) v. 7
th St (street end, west to Upper Bluff, dashed line)
vi. Sherry Lane (street end, west to Upper Bluff, dashed line) vii. 6
th St (street end, west to Upper Bluff, dashed line)
viii. Sea Cliff Way (street end, west to Upper Bluff, dashed line) ix. 4
th St (street end with northwest and southwest paths to Upper Bluff, dashed line) 21 February 28, 2022 Item 01
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x. Del Mar Woods (east-west access paths west of Del Mar Woods) Eight access paths between buildings (east, top of image) One south end access path along south parcel border
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EXHIBIT A - APPENDIX A.3
FENCING IMPROVEMENTS TYPE AND FORM
a. Fencing Improvements will generally consist of round fence posts no higher than 44" with cable height limited to 42” and conform to the drawings detailed below. b. Below are example drawings of 4-strand post & cable fencing from the NCTD Visual Simulations and NCTD Agenda Item No. 13 (Jan. 20, 2022):
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EXHIBIT B – INSURANCE REQUIREMENTS
Without limiting Licensee’s indemnification of NCTD as provided herein, Licensee shall provide and maintain at its own expense during the term of this License the below listed and described policies of insurance covering its operations hereunder. Evidence of such insurance satisfactory to NCTD along with required endorsements will be delivered to NCTD concurrent with execution of this License. Such evidence shall include certificate of insurance (Accord Form 25-S or equivalent). All evidence of insurance shall be issued by a properly authorized officer, agent or qualified representative of the insurer and shall certify the names of the insured, any additional primary insureds, where appropriate, the type and amount of the insurance coverage, the location and operations to which the insurance applies and the expiration date.
1. Commercial and General Liability: Licensee shall provide and maintain the following commercial and general liability insurance:
A. Coverage for commercial general liability insurance shall be at least as broad as the Insurance Services Office Commercial General Liability (occurrence form CG 0001) coverage.
B. Licensee shall maintain limits of no less than two million dollars ($2,000,000) per occurrence and four million dollars ($4,000,000) aggregate limits for bodily injury, personal injury and property damage, including injury or damage. The general liability policies are to be endorsed to contain the following provisions:
a. NCTD, its Board of Directors, officers, employees, agents and volunteers are to be covered as additional insureds as respects liability arising out of the Rightof-Way licensed by Licensee. The coverage shall contain no special limitations on the scope of protection afforded to NCTD, its directors, officers, employees, agents and volunteers.
b. For any claims related to this License, Licensee’s insurance shall be primary insurance as respects to NCTD, its Board of Directors, officers, employees, agents and volunteers. Any insurance, pooled coverage or self-insurance maintained by NCTD, its directors, officers, employees, agents and volunteers shall not be contributory.
c. Licensee’s insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer’s liability.
d. The liability insurance shall indemnify the Licensee and its contractors against loss from liability imposed by law upon, or assumed under contract by the Licensee or its contractors for damages on account of such bodily injury (including death), property damage, personal injury and completed operations and products liability.
e. Any failure to comply with reporting or other provisions of the policies including breaches of warranties shall not affect coverage provided to NCTD, its Board of Directors, officers, employees, contractors, agents or volunteers. f. The insurance shall be provided on a policy form written by underwriters through an agency satisfactory to NCTD, which includes a cross-suit clause, and covers bodily injury and property damage liability, owned and non-owned vehicles and equipment, blanket contractual liability and completed operations liability. 25 February 28, 2022 Item 01
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2. Railroad Protective Liability:
A. The Licensee shall obtain a railroad protective liability policy for work done within fifty (50) feet of the railroad tracks. The standard limits shall be three million dollars ($3,000,000) per occurrence limit and six million dollars ($6,000,000) aggregate. NCTD reserves the right to increase these limits, depending on the scope of work related to the License.
B. All work requiring railroad protective liability insurance shall name in the endorsement and schedules as additional insureds the following entities, including their directors, officers, agents and employees as their interests may appear:
a. North County Transit District (NCTD)
b. Burlington Northern Santa Fe Railway (BNSF)
c. National Railroad Passenger Corporation (AMTRAK)
3. Automobile Liability: Coverage for automobile liability insurance shall be at least as broad as Insurance Services Office Automobile Liability Coverage (Form CA 0001). Limits shall be not less than two million dollars ($2,000,000) for bodily injury and property damage each accident limit from automobiles owned, leased, hired or borrowed by Licensee. The insurance shall indemnify against loss from liability imposed by law for damages on account of bodily injury, property damage, and personal injury. The automobile liability policy shall cover all owned, non-owned, leased and hired automobiles.
4. Workers Compensation and Employer’s Liability: Licensee and its contractors and assigns shall cover or under the applicable statutory California State or Federal laws relating to workers’ compensation insurance, all of their employees working on or about the Right-of-Way, and Licensee shall defend, protect and hold harmless NCTD, its Board of Directors, officers, employees, agents and volunteers from and against all claims, suits, and actions arising from any failure of the Licensee or any of Licensee’s contractors or assigns to maintain such insurance.
A. Licensee shall provide employer’s liability insurance in the amount of one million ($1,000,000) per occurrence for bodily injury and disease.
B. Licensee shall provide NCTD with a certificate of Workers’ Compensation and Employer’s liability insurance coverage.
C. Such insurance may include an insurer’s waiver of subrogation in favor of NCTD and will be in a form and with insurance companies reasonably satisfactory to NCTD.
5. OPTIONAL (As required by Risk Dept.) Property Insurance: Licensee shall maintain property insurance covering the full replacement cost of Licensee's personal property, fixtures, equipment, and improvements against the hazards of fire, extended coverage/vandalism and malicious mischief, flood and other property-related losses.
Deductible limits should be no more than five thousand dollars ($5,000). However, NCTD reserves the right to modify deductible limits.
6. All policies required shall be issued by insurance companies who are rated not less than "A VII" by the latest A. M. Best Company Key Rating Guide, who are authorized to transact business in California.
7. NCTD makes no representation that the limits or forms of coverage of insurance specified in this section are adequate to cover Licensee's property or obligations under this License. 26 February 28, 2022 Item 01
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NCTD reserves the right to raise or lower limit requirements at the time of request, based upon the scope of work.
8. Prior to execution of this License, Licensee shall file with NCTD a certificate of insurance signed by the insurer’s representative. Such evidence shall also include confirmation that coverage includes or has been modified to include required provisions as set forth herein.
Licensee shall upon the reasonable demand of NCTD, deliver to NCTD such policy or policies of insurance. Each insurance policy required by this clause shall state or be endorsed to state that coverage shall not be amended or cancelled, except after thirty (30) days prior notice by U.S. mail has been given to NCTD.
9. If any insurance coverage is canceled or reduced, Licensee shall, within ten (10) business days after receipt of written notice of such cancellation or reduction of coverage, file with NCTD a certificate showing that the required insurance has been reinstated or provided through another insurance company or companies, and said policy shall be submitted for approval as herein provided. At least fifteen (15) business days prior to the expiration of any such policy, a certificate, showing that the insurance coverage has been renewed or extended, shall be filed with NCTD.
10.Every contractor or subcontractor of Licensee entering upon, using or performing any work upon the Right-of-Way by or on behalf of Licensee shall provide evidence of insurance required herein prior to entering upon the Right-of-Way.
11.NCTD reserves the right to increase the limits for the insurance required herein to amounts recommended by NCTD’s insurance risk manager or insurance representative.
12.Notwithstanding any other provision of this License, Licensee may self-insure for any risk set forth in this section in the manner and to the extent that Licensee self-insures for similar risks with respect to its operations, equipment and property. The manner in which such self-insured is provided and the extent of such self-insurance shall be set forth in a letter of self-insurance, delivered to NCTD and signed by an authorized representative of Licensee, which fully describes the self-insurance program and how the program covers the risks set forth herein. Insurance provided by a joint powers authority or insurance pool shall be considered self-insurance for the purpose of this paragraph. If, at any time during the term of this License, Licensee elects not to self-insure, Licensee shall comply with all applicable provisions herein to the extent Licensee does not so self-insure. NCTD reserves the right to request Licensee financial statements for review prior to accepting self-insurance limits.
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EXHIBIT C – MAINTENANCE AND MUTUAL BENEFIT OBLIGATIONS
The City of Del Mar shall reasonably maintain the License Area. The City will remove weeds, overgrown vegetation, or other unwanted plant materials. It will provide routine and minor erosion control measures, which shall be installed in compliance with Section 9.3 of the Agreement. The City agrees to the replacement of worn or damaged improvements accepted, installed or constructed in the License Area by the City. The City will be responsible for trash removal, and graffiti abatement. At a minimum Licensee shall regularly inspect and keep the License Area in a state of good repair (to the extent feasible, timely repairing damage), notify NCTD of damage to the Fencing Improvements within 48 business hours, clean (free of graffiti) and safe condition for its intended use and shall enforce any misuse within the License Area.
NCTD shall be responsible for maintenance and repair of the Fencing Improvements. Licensee shall reimburse NCTD fifty-percent (50%) of the reasonable costs associated with the maintenance and repair of the Fencing Improvements in accordance with Section 10 and 11 of the License Agreement.
Under no circumstances shall the City be required to maintain or repair drainage systems, appurtenances, lighting, signage, other utilities, or improvements outside or within the Licensed Area that were not installed by the City as part of the Agreement for the License Area. The City’s obligation under the agreed upon Mutual Benefit is to keep the License Area in a state of ordinary repair, repairing normal wear and tear, keeping it clean (including free of graffiti) and in its native condition for its intended use as defined in the Agreement.
This maintenance obligation constitutes a Mutual Benefit between NCTD and the City. The City’s general maintenance obligation over the Licensed Area relieves NCTD of the costs related to general maintenance described above and within the License Area. In exchange, the City obtains use of the License Area.
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City of Del Mar Priorities in Addressing the Rail Right-of Way Through the Del Mar Bluffs
The City of Del Mar seeks cooperative resolution of rail safety and access issues on the Del Mar Bluffs in conformance with the following City priorities:
1. SAFETY. Public safety is the number one criterion.
2. PUBLIC ACCESS. The ability of the public to safely access the coast, including Del Mar’s bluff-top trails, is a priority.
3. LIABILITY. Reducing the liability exposure of all agencies and entities involved in rail operations on the Del Mar bluffs is a priority.
4. ENVIRONMENTAL. All rail related activities on the Del Mar bluffs should be done in conformance with applicable environmental standards, including the California Environmental Quality Act (CEQA), National Environmental Policy Act (NEPA), the California Coastal Act, and Del Mar’s certified Local Coastal Program (LCP), and should include appropriate mitigation.
5. IMPACTS TO NEIGHBORS. Avoiding or mitigating impacts to adjoining public and private property is a priority as to noise, vibration, view impacts, and privacy.
6. TRAILS AND VIEWPOINTS. Viewpoints, overlooks, and access trails to and along the railroad right-of-way should be preserved, augmented, or replaced where feasible.
7. COOPERATION. All government entities with a stake in these issues should participate in their resolution, including participating in discussion of funding options and constraints. Agencies involved should include: the North County Transit District (NCTD), the California Coastal Commission (CCC), SANDAG, AMTRAK, BNSF, the California Transportation Commission (CTC), and the City of Del Mar.
8. PUBLIC INPUT. Input from the public, including from organizations and individuals, should be welcomed and considered in the decision-making process.
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