Agenda, special meeting, first session — Del Mar City Council, February 28, 2022

Del Mar City Council Special Meeting Agenda
Del Mar City Hall – Via Teleconference Only
1050 Camino del Mar, Del Mar, California
February 28, 2022 City Council Special Meeting

INFORMATION RECEIVED

AFTER THE COUNCIL AGENDA

WAS DISTRIBUTED
(“Red Dots”)
February 25, 2022
The Honorable Dwight Worden
Mayor
City of Del Mar
1050 Camino Del Mar
Del Mar, CA 92014
Via electronic mail: [email protected]
RE: License Agreement between the City of Del Mar and the North County Transit District
Dear Mayor Worden:

I understand that the City of Del Mar has scheduled a Special Meeting for Monday, February 28, 2022, for 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. NCTD, City of Del Mar, and California Coastal Commission staff have worked collaboratively to refine the fence design to be more context sensitive. Further, NCTD and the City of Del Mar staff have worked together to agree upon terms and conditions of the license agreement in response to feedback from the City Council.

On behalf of the NCTD Board of Directors, I urge the Del Mar City Council to approve the licensing agreement. Approval of the licensing agreement will allow the community to continue to utilize the upper bluff trails and will enable NCTD, the City of Del Mar, the California Coastal Commission, and the San Diego Association of Governments (SANDAG) to focus on completing the necessary studies to begin advocating for funding to build safe and legal crossings.

Sincerely,
Jewel Edson
Board Chair
cc: City of Del Mar Council Members
NCTD Board of Directors
SANDAG Board of Directors
Jack Ainsworth, Executive Director, California Coastal Commission 1 February 28, 2022 Item 01
1 Melinda Gould
From: Camilla Rang <[email protected]>
Sent: Sunday, February 27, 2022 4:17 PM
To: City Clerk Mail Box; Dwight Worden; Tracy Martinez; David Druker; Terry Gaasterland; Dan Quirk
Subject: Red dot, Item 1, City Council meeting 02.28.2022 Follow Up Flag: Follow up
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Dear City Council,
As you all, I have been pondering this upper bluff issue over and over. First of all - I am OK with a license agreement with NCTD that we can continue using the upper bluff on the condition that we take the liability for whatever injury might happen on the upper bluff. I think that´s fair.

However, I am against the fence for so many reasons (besides the obvious fact that it is not needed).

1. Since we take liability, we should get to decide what risks we are willing to take. And I feel 100% confident that a fence will in no ways make the liability for us any smaller but the opposite.

2. People have been using the cross path over the rail road at 8th street since forever. They will not stop using it because of a fence. Which means some won´t make it over, will get stuck, fall and get injured. We will then get sued because "who put up a fence over the path that has been used for multiple decades"?

3. People who grew up here and have used the cross path at 8th street to get to the other side of the rail road their whole lives will continue doing so, despite now being in their 60´s and 70´s and not quite as agile as they remember themselves being. They will try getting over the fence, many will fail, fall and break ankles, hips, and wrists. We will get sued because again "who put up a fence over the path that has been used for multiple decades"? Besides, it´s not only about money, do we want this fate for our people?

4. The fence will stop people from getting from the upper bluff from 9th and continue on the upper bluff on 8th because there will now be a fence that prevents us from going around the cement drain via the lower bluff. Instead, we will be forced into the ditch, hold onto branches not to fall, then balance on the round, slippery rocks in the gutter leading into the cement drain. Many people of the same group as above (60´s-70´s) will slip, fall and get injured.

5. Once there is a fence that hinders the crossing at 8th street, we can no longer claim it as a path being used by the public once we get to Phase 2 and ask for legal crossings. We will then end up with only one crossing along the whole bluff, by 11th street. Very bad! It´s a Trojan horse.
1 February 28, 2022 Item 01
2 6. In a few years, the fence will be rusty and the dirt will give (erode) close to the posts and they will become unstable without us knowing it. Someone will inevitable lean against it, fall down and get seriously injured. And that will be on us. This will not happen without a fence.

7. A path that is not maintained, does not call for the same liability as a maintained path. If you enter a non-maintained path, it´s very much on your own risk. Once a fence is there, it is maintained and we are definitely increasing our liability. The path should stay wild and give the impression of not being maintained, which legally will make people enter on their own risk.

8. If I understand the drawing correctly, the posts will need a 2 foot deep hole (and 3/4 of a foot wide?). That´s a lot of big holes along a very fragile edge. It won´t hold and it will make the upper bluff erode and fall faster than quick.

9. We have Coastal Commission, the Attorney General, the Surfrider and the vast majority of our town on our side.

10.There is no reason to give in to a fence that is not needed. This planned fence on the upper bluff is nowhere near where the accidents are and its (non)function makes no sense for anyone but NCTD.

Those were all the cons with a fence. Here is the pro:

1. We won´t anger NCTD. That´s it. That´s the only pro. It does not outweigh the cons.

Sincerely,
Camilla Rang
159 10th Street, Del Mar, CA 92014
Cell: 858 353 1948
2 February 28, 2022 Item 01
1 Melinda Gould
From: vc dude <[email protected]>
Sent: Sunday, February 27, 2022 5:01 PM
To: City Clerk Mail Box
Cc: Dwight Worden; Tracy Martinez; David Druker; Terry Gaasterland; Dan Quirk Subject: 2/28 meeting, Del Mar Council re NCTD fence
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Hi All
I’ll keep my point short, you know me and the people I represent via Citizens for Access to Del Mar Beaches Bluffs and Trails.

I formed this group 6 years ago after moving here when I was cited for crossing the tracks. We then got a 1000+ petition signed to: 1) cease and desist all aggressive and inappropriate citations from the sheriff hired by NCTD 2) fund the study for at least 2 safe pedestrian crossings and 3) study inland tunnel alternatives.

Today, the action required is simple: Council must vote against the NCTD proposal It’s that simple
The Council must do what doesn’t come naturally to it…… Fight
Alongside Surfrider , Coastal Commission and the AG, and the overwhelming majority of this town, you must fight for what is right. Period.

For the 1-2 of you that may predictably vote with the administrative state, which includes the rogue, out of control and unaccountable NCTD agency…..do the right thing. Vote against the fence. Do what your constituents want, not what YOU personally want. If you vote FOR an NCTD fence you will NEVER be welcome in Del Mar again.

Regards
Frank Stonebanks
--
Frank Stonebanks
610 517 1967 cell
[email protected]
3 February 28, 2022 Item 01
1 Melinda Gould
From: John Stahl <[email protected]>
Sent: Sunday, February 27, 2022 5:17 PM
To: City Clerk Mail Box
Cc: Dwight Worden; Terry Gaasterland; Dan Quirk; Tracy Martinez; David Druker Subject: Item 1 - Consideration of a License Agreement 2/28 Special Meeting Follow Up Flag: Follow up
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I’m writing in this afternoon to ask you to not agree to a bad deal. NCTD has not been forthcoming with their plan regarding a fence on the upper bluff. Attachment
A is filled with holes and Trojan Horses. I think it is irresponsible to even consider entering into an agreement with NCTD.

When someone wants to forever change the character and destroy the culture of your town, I am sorry, but that is not a friend. NCTD wants to turn Del Mar into an industrial zone to facilitate their vision of the LOSSAN corridor.

Whatever they have done in the past that might have been considered good for Del Mar has always first been a good deal for NCTD.

NCTD always throws the safety card on the table. If safety was of paramount importance, then they would slow down the trains and fence off the area from the Coast Blvd crossing down to 13th Street first and analyze the data to determine if that has improved safety. Nothing they do will take the risk to zero.

The brazen arrogance and unabashed defiance that NCTD demonstrated on January 20th after having received a letter from the Coastal Commission via the Office of the California Attorney General on January 19th tells me all I need to know. NCTD will continue with their bully tactics.

We had 5 people call into the NCTD board meeting last week and raised some very valid and logical questions for them to consider. Other than Terry Gaasterland, not a single question was asked by any Board member to get clarification or a better understanding for our concerns or reasoning.

The board members appeared to either be bored or working on their emails. They vote in lockstep and are not open to meaningful dialog.

Unless the Coastal Commission is going to say that they were only kidding about the violations of State contract and environmental law in their letter, I think we can convince them to continue in this fight to preserve their mission statement and reason for existing.

This is too important an issue to cave to NCTD and sign an agreement that is incomplete and vague. We have untold photographs from1885 and forward that show how important beach and recreational access have been to the history and culture of our quintessential iconic California beach town. Del Mar’s Bluffs are a regional treasure and a national asset. I’ve met people from all over the world who cherish the bluff, it’s beauty and access. The character of Del Mar is worth fighting for and not just agreeing to play go along to get along.

Thank you
John K Stahl
4 February 28, 2022 Item 01
1 Melinda Gould
From: Karl Wagner <[email protected]>
Sent: Monday, February 28, 2022 7:49 AM
To: City Clerk Mail Box; Terry Gaasterland; Tracy Martinez; David Druker; Dan Quirk; Dwight Worden
Subject: FW: --SPAM--Re: Reminder: Serious Problems with the NCTD Fence Agreement, Del Mar City Council Meeting this Monday
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Please Vote No on the Fence Agreement.

This fence is unnecessary and creates risks for the fragile bluffs.

Karl and Susan Wagner
Del Mar
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5 February 28, 2022 Item 01
1 Melinda Gould
From: Bill-Deb Stern <[email protected]>
Sent: Sunday, February 27, 2022 9:30 PM
To: City Clerk Mail Box
Subject: Item 1 -2/28/2022 Special Meeting Agenda
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The proposed fencing on the upper bluff, while better than the 6 foot wire fence, is not needed and will cause harm to the fragile bluff when installed. If the purpose is to keep people off the track, any fencing should be near the track. Any fencing will limit access to the beach and should be opposed. Rather than approve the agreement, the council should encourage the Costal Commission to take action against fencing including filing an emergency petition with the appropriate court to prevent the start of the installation with the city filing a supporting motion. The environmental impact of a bluff top fence has not been adequately studied.

The fence is not needed on the bluff top. A few crossing spots on fencing adjacent to the track with safety measures is the least offensive option the city should agree too. If people can cross at 15th Street, then why not at other locations along our beautiful coast.

William and Deborah Stern
278 Surfview Ct, Del Mar
6 February 28, 2022 Item 01
1 Melinda Gould
From: Weiss, Shirli <[email protected]>
Sent: Monday, February 28, 2022 9:58 AM
To: City Clerk Mail Box
Cc: Dwight Worden; Tracy Martinez; David Druker-Private; Dan Quirk; Terry Gaasterland; Ashley Jones; Bill Pate; Laura Schaefer
Subject: RE: Public Comment: 2/28/22 City Council Meeting: Item 1 Follow Up Flag: Follow up
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Dear Honorable Mayor and Members of the City Council:

My name is Shirli Weiss. I am a long-time resident of Del Mar and have practiced law in San Diego for over 40 years. I have closely followed developments related to NCTD’s proposed fencing of Del Mar’s Bluffs and its lawsuit against the Coastal Commission and Del Mar. I and attorney Laura Schaefer have submitted briefs to the STB in support of the defendants.

I request that you vote “no” on the proposed License Agreement with NCTD published on the City Council’s website on February 24, 2022 . In the interests of brevity I will list only the most important reasons to vote no:

1. Paragraph 2 of Section 2 (License to Use) and Section 15 (Del Mar Bluff Stabilization) attempt to have Del Mar agree that the NCTD can remove the Upper Bluff (License Area) at any time in connection with any SANDAG project. This “ask” by NCTD is so egregious as to place in doubt the good faith of NCTD in these negotiations.

2. Paragraph 4 (Relocation) would waive all Del Mar’s rights under myriad laws if NCTD chooses to go ahead and remove and destroy the Upper Bluffs and gets away with it.

3. Paragraph 10 requires Del Mar to pay NCTD’s staff costs for reviewing any work it deems for Del Mar’s own good.

Note that the NCTD’s STB Petition does not set out any “destruction of the Upper Bluff” project so there is no danger that the STB is going to authorize NCTD to destroy the Upper Bluff to facilitate NCTD’s doubling of freight traffic and increase of train speeds in the pending lawsuit. In other words, NCTD cannot get in the current lawsuit the right to take down the Upper Bluff that it is asking Del Mar to agree to in return for a temporary License. So rather than agree by contract to demands the NCTD cannot get in the pending lawsuit, Del Mar must retain the right to fight them. It would give up that right if it signs the 2/24/22 proposed Agreement.

I applaud the City Council, the City Manager and the City Attorney’s patient and strenuous efforts in negotiation. As best I can tell, the NCTD never even described the License Area or other key terms before it voted to force them on Del Mar on 1/20/22 which also puts at issue its good faith in these negotiations and the validity of its vote. The public (and my guess also the City Council) did not see all the proposed key terms until February. Although the parties have been at the settlement table for months, it was up to NCTD to have 1 February 28, 2022 Item 01
2 proposed all material terms in the first instance, so Del Mar is not to blame for these delays. An extension is in order to see if Del Mar can come to terms with NCTD because NCTD may follow through on its ill-advised threat to fence the Upper Bluff with unnecessary and damaging hog-wire fencing. However, Del Mar cannot capitulate to unreasonable terms.

I have handled hundreds of litigations and pre-litigation disputes. In my experience, professional mediators (e.g. any number of San Diego’s retired judges) can be very skilled at bridging gaps. May I respectfully suggest you consider asking NCTD to consider an extension for further negotiations, perhaps with a JAMS mediator or other member of our skilled San Diego mediation professionals. I know that NCTD has declined to agree to STB mediation. Perhaps it would agree to a local retired judge mediator.

Thank you for all your work on behalf of the City.

Respectfully submitted,
Shirli Weiss
551 Stratford Court
Del Mar
858.449.4850
Shirli Fabbri Weiss
Retired Partner
M +1 858 449 4850
[email protected]
DLA Piper LLP (US)
dlapiper.com
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2 February 28, 2022 Item 01
1 Melinda Gould
From: Lin Chao <[email protected]>
Sent: Monday, February 28, 2022 10:40 AM
To: City Clerk Mail Box
Subject: Opposing fencing upper bluff
Follow Up Flag: Follow up
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I think that NCTD proposal to fence the upper bluffs is a huge mistake and I oppose accepting their terms to be wrong. The proposal creates new and many problems without solving any of the problems that NCTD has brought up.

Best,
Lin
Citizen of Del Mar
1 February 28, 2022 Item 01
1 Melinda Gould
From: PAMELA SLATER-PRICE <[email protected]>
Sent: Monday, February 28, 2022 10:42 AM
To: City Clerk Mail Box; Sarah Krietor
Subject: Red Dot letter on NCTD license agreement
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

Mayor and council,
After very carefully reviewing the license agreement NCTD wants Del Mar to sign, I reluctantly must advise a No vote.

The agreement is a sham.

It offers virtually nothing of value to Del Mar and enables NCTD to have Carte Blanche with its very ambitious development plans for Del Mar’s fragile and scenic coastal bluffs.

Further, the “agreement” requires Del Mar to request termination 12 months in advance yet permits NCTD to terminate AT ANY TIME FOR ANY REASON. That means Del Mar could sign believing there is at least a 10 year plan, while NCTD could CANCEL the next day! After Del Mar acquiesced to all NCTDs demands and lost any control they may otherwise have as a charter city on the state of California!
This license agreement is full of holes and “weasel words”. Don’t be fooled. Vote NO.

Pam Slater-Price
Del Mar citizen
“Be who you are and say what you feel because those who mind don’t matter and those who matter don’t mind.” ~ Dr. Seuss
2 February 28, 2022 Item 01
1 Melinda Gould
From: Jeff McGuire <[email protected]>
Sent: Monday, February 28, 2022 10:44 AM
To: City Clerk Mail Box
Subject: Del Mar NCTD License Agreement
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Dear,
Mayor and City Council members,
In regards to the upper bluff license agreement with NCTD, what is this fencing an attempt to fix? This is a waste of time, materials and energy. Please do not enter into it.

Jeff McGuire
222 9th St.
3 February 28, 2022 Item 01
1 Melinda Gould
From: Stuart Fish <[email protected]>
Sent: Monday, February 28, 2022 10:49 AM
To: City Clerk Mail Box
Subject: Opposing fencing of Upper bluff in headline
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

I am a resident of Del Mar for over 20 plus years.

I request that you vote “no” on the proposed License Agreement with NCTD published on the City Council’s website on February 24, 2022 .

Per MS Weiss letter , I reiterate “
"In the interests of brevity I will list only the most important reasons to vote no:

2. Paragraph 4 (Relocation) would waive all Del Mar’s rights under myriad laws if NCTD chooses to go ahead and remove and destroy the Upper Bluffs and gets away with it.

3. Paragraph 10 requires Del Mar to pay NCTD’s staff costs for reviewing any work it deems for Del Mar’s own good.

I applaud the City Council, the City Manager and the City Attorney’s patient and strenuous efforts in negotiation. As best I can tell, the NCTD never even described the License Area or other key terms before it voted to force them on Del Mar on 1/20/22 which also puts at issue its good faith in these negotiations and the validity of its vote. The public (and my guess also the City Council) did not see all the proposed key terms until February. Although the parties have been at the settlement table for months, it was up to NCTD to have proposed all material terms in the first instance, so Del Mar is not to blame for these delays. An extension is in order to see if Del Mar can come to terms with NCTD because NCTD may follow through on its ill-advised threat to fence the Upper Bluff with unnecessary and damaging hog-wire fencing. However, Del Mar cannot capitulate to unreasonable terms."
Thank you for all your work on behalf of the City.

Respectfully submitted,
4 February 28, 2022 Item 01
2 Stuart Fish
5 February 28, 2022 Item 01
1 Melinda Gould
From: Udo Wahn <[email protected]>
Sent: Monday, February 28, 2022 11:01 AM
To: City Clerk Mail Box
Subject: Red Dot for 2-28-22 Special City Council Meeting CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.
2/28/22
Dear City Council Members:

I am a 39 year resident of Del Mar. I have read the Staff notes for today’s meeting and viewed the Exhibits.

I do not see where there is access allowed across the tracks at 8th and 11th streets. The proposed 4ft fence from 9th street south blocks the access from 8th st.

It is my understanding that SANDAG and the CA Coastal commission plan to allow 2 access locations at some point in time.

SANDAG agreed to: (1) add two additional public access projects to DMB 4; (2) prepare (in coordination with the North County Transit District and the City of Del Mar) a needed, comprehensive long-term public access improvement plan for the Del Mar area, which will be submitted to the Commission by February 2022; and (3) coordinate with Commission staff to identify appropriate mitigation measures for future Del Mar Bluffs stabilization projects prior to submittal of the associated consistency certifications.

With these measures the Commission found that the DMB 4 project was consistent with the shoreline structure, geologic hazards, public access and recreation policies of the Coastal Act.

In any case, the City should act in a way to preclude a 6ft chain link fence.

And, if the proposal is accepted NCTD should drop the petition to the STB.

Thank you,
Udo Wahn M.D.

Stratford Court
Del Mar
6 February 28, 2022 Item 01
1 Melinda Gould
From: Jasper Chao <[email protected]>
Sent: Monday, February 28, 2022 10:52 AM
To: City Clerk Mail Box
Subject: OPPOSING FENCING OF UPPER BLUFF
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Dear City Council,
I hereby oppose NCTD's fencing project of the upper bluff. It solves no rail road related problems, only creates new ones.

Sincerely,
Jasper Chao
born and raised in Del Mar
7 February 28, 2022 Item 01
1 Melinda Gould
From: John Caffaro <[email protected]>
Sent: Monday, February 28, 2022 11:08 AM
To: City Clerk Mail Box
Subject: Fencing on the Del Mar bluff
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

Please NO FENCING ON THE UPPER BLUFF.
8 February 28, 2022 Item 01
1 Melinda Gould
From: Liz Janapol <[email protected]>
Sent: Monday, February 28, 2022 11:08 AM
To: City Clerk Mail Box
Subject: OPPOSING FENCING OF THE UPPER BLUFF
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Dear City of Del Mar
I am opposing fencing of the upper bluff because it solves no rail road connected problems but only creates new ones.

Sincerely,
Liz Janapol
9 February 28, 2022 Item 01
1 Melinda Gould
From: City Clerk Mail Box
Subject: FW: URGENT - FENCING ON THE UPPER BLUFF COASTAL TRAIL MAKES NO SENSE - Please Send An Email Today - YES or NO on Fencing the Upper Bluff Attachments: NCTD.double-tracking-plan-created-in-2019.pdf From: Hershell Price <[email protected]>
Sent: Monday, February 28, 2022 11:10 AM
To: Ashley Jones <[email protected]>; Sarah Krietor <[email protected]> Subject: URGENT - FENCING ON THE UPPER BLUFF COASTAL TRAIL MAKES NO SENSE - Please Send An Email Today - YES or NO on Fencing the Upper Bluff
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RED DOT - Item 1, City Council Agenda
Dear Del Mar City Council,
The Upper Bluff Coastal Trail from 9th Street south to 4th Street and on south past Del Mar Woods has been used for many decades. NCTD insists that fencing must be installed along the trail that is located 50 feet above the tracks and 50 feet east of the tracks. THIS MAKES NO SENSE.

The Upper Bluff trail is already safe enough. No fence is needed in this location. There has never been an accident or "trip and fall" event to trigger a need for fencing. NO FENCING IS NEEDED ON THE UPPER BLUFF.

City Staff have been negotiating with NCTD to memorialize Public Use of the Del Mar Upper Bluff Coastal Trail. However, NCTD continues to require a half-mile long fence along the upper bluff above the tracks.

Importantly, the City of Del Mar stands ready to indemnify NCTD for any claim arising from any incident related to public use on the Upper Bluff. Thus, NCTD has no need at all for a fence of any kind. Yet, they continue to press for a fence construction project. Why? Take a look at the attached illustrations from SANDAG. They show the SANDAG/NCTD plan crafted in 2019 that would eliminate the Upper Bluff Coastal Trail entirely by digging out the bluff east of the tracks and laying a second track -- DOUBLE TRACKING ON THE BLUFF.

This is the real reason that NCTD wants this license agreement with Del Mar. If we sign this Agreement, it may seal our fate with regard to double-tracking on the bluff. As the diagrams show, double-tracks on the bluff will eliminate all the trails completely.

We must not let this happen.
10 February 28, 2022 Item 01
2 It is the last hour -- the City Council will meet at 4:30pm today to vote YES or NO on a License Agreement with NCTD that will allow them to build a continuous half-mile fence along the Upper Bluff. The Council needs to hear from you.
11 February 28, 2022 Item 01
February 28, 2022 - ROW Public Use License Agreement
Section 2 and Section 15
In the License Agreement, the 2nd paragraph of Section 2 and Section 15 can be read as a stipulation that the Parties agree that “the License Area (i.e. the Upper Bluff), may need to be removed” at any time in connection with a SANDAG project impacting the License Area (Upper Bluff).

In 2019, SANDAG developed a plan to cut into the bluff east of the tracks to double-track. as illustrated below in the SANDAG consultant’s presentation to the Transportation Committee:
12 February 28, 2022 Item 01
1 Melinda Gould
From: michael gross <[email protected]>
Sent: Monday, February 28, 2022 11:20 AM
To: City Clerk Mail Box
Subject: Fencing the upper bluff
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Hello,
I sincerely oppose fencing the upper bluff and blocking access to the beach and upper trails above the train tracks. I've lived in Del Mar for 53 years and believe more problems will occur with the fence in place. For example. we have many people not living in Del Mar that come to enjoy the beaches. Blocking access for people coming up from the beach that are unfamiliar with where it is safe to cross only gets them stuck on the tracks and increases the risk of being hit by the train. The fence is a terrible idea. How about Del Mar creating SAFE access to the beach along the cliff like Cardiff, Encinitas, Solana Beach, and Leucadia have all implemented.

MIke Gross
1 February 28, 2022 Item 01
1 Melinda Gould
From: Drew Cady <[email protected]>
Sent: Monday, February 28, 2022 11:25 AM
To: City Clerk Mail Box; Terry TG. Gaasterland; Dwight Worden; David Druker; Dan Quirk; Tracy Martinez
Subject: Red Dot for today's meeting regarding NCTD's plan for fencing on the bluff CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

Dear City Council Members:

I have extremely grave concerns about what NCTD intends with their actions in presenting this ‘last minute’ Licensing agreement to Del Mar with virtually no time to examine it more closely.

The language in this license agreement is skewed with confusing and questionable intentions. It feels like they are trying to push through an agreement which will ultimately tie the hands of the City moving forward, regardless of the STB filing outcome. If they succeed in negating the local controls of the City of Del Mar and the California Coastal Commission, this will be a devastating blow to every local community who runs up against a ‘maverick’ State Agency which is wildly out of control with their actions. From the beginning, we the concerned citizens, have told NCTD (& SANDAG & CCC) that their reasons for fencing this bluff are outright mistruths, and that they are creating a ’story’ which completely ignores the true reason why they are doing all of this damage and modifications on the bluff. We all know that they are intending to cut off all access across across this train line so that they can run more trains/day and at faster speeds.

Their explanation that this is intended to create safety for pedestrians is a bold-faced lie, and should be called out for what it is. The truth here is that, given the extreme erosion rate of our bluff now, a train will clearly fall from this bluff within the next few years….a far more serious threat than what they are telling us about.

I strongly oppose our City Council signing this license agreement at this time, until careful modifications can be made in this document to safeguard the City, the Citizens of this community (and every tourist who has ever visited this bluff) and the California Coastal Commission. These safeguards include clear definition of what NCTD is intending with this fence on the upper bluff which from all observation, serves no point in keeping pedestrians safe. The City of Del Mar must demand time to thoroughly vet this license agreement to assure that NCTD, who have continuously lied and misrepresented their intentions, cannot be allowed to steal our access to the bluff and the beaches below~!! I request that our City Council take immediate action to delay any decision on this license agreement until all of the questionable language is thoroughly examined and carefully spelled out.

Sincerely,
Drew Cady
Del Mar Resident
2 February 28, 2022 Item 01
1 Melinda Gould
From: Robert Fried <[email protected]>
Sent: Monday, February 28, 2022 11:27 AM
To: City Clerk Mail Box
Subject: Opposing Fencing of Upper Bluff
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OPPOSING FENCING OF UPPER BLUFF.

Robert and Christine Fried
910 Stratford Ct.

Del Mar, CA 92014
3 February 28, 2022 Item 01
1 Melinda Gould
From: Karen Lare <[email protected]>
Sent: Monday, February 28, 2022 11:27 AM
To: City Clerk Mail Box; Terry TG. Gaasterland; Dave Druker; Dwight Worden; Tracy Martinez; Dan Quirk
Cc: PAMELA SLATER-PRICE; Eddie Lare; Shirli Weiss
Subject: Red Dot for Council Meeting
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I cannot say it any better than Pam has - I have tried really hard to support changes to the agreement but it has a lot of holes in it and I cannot see it ready for signature today.

Shirli has also laid out changes that need to be made.

Please continue to negotiate and get to a place all can agree on! Fence where needed not the whole upper bluff.

Karen Lare
161 Sea Cliff Way
From: Pamela Slater Price
To: Del Mar City Council
Mayor and council,
After very carefully reviewing the license agreement NCTD wants Del Mar to sign, I reluctantly must advise a No vote. The agreement is a sham.

It offers virtually nothing of value to Del Mar and enables NCTD to have Carte Blanche with its very ambitious development plans for Del Mar’s fragile and scenic coastal bluffs.

Further, the “agreement” requires Del Mar to request termination 12 months in advance yet permits NCTD to terminate AT ANY TIME FOR ANY REASON. That means Del Mar could sign believing there is at least a 10 year plan, while NCTD could CANCEL the next day! After Del Mar acquiesced to all NCTDs demands and lost any control they may otherwise have as a charter city on the state of California! This license agreement is full of holes and “weasel words”. Don’t be fooled. Vote NO.

Pam Slater-Price
Del Mar citizen
4 February 28, 2022 Item 01
2 On Mon, Feb 28, 2022 at 10:20 AM Weiss, Shirli <[email protected]> wrote:

Thanks to everyone who submitted red dots. Mine is below.

Note I still think it is very worthwhile to try to continue negotiations toward an acceptable agreement, NCTD’s threat of industrial fencing on the Upper Bluff is very real. The current proposed agreement is not acceptable, however.

Shirli
From: Weiss, Shirli
Sent: Monday, February 28, 2022 9:58 AM
To: [email protected]
Cc: Dwight Worden [email protected]; Tracy Martinez [email protected]; Dave Druker [email protected]; Dan Quirk [email protected]; Terry Gaasterland [email protected]; Ashley Jones [email protected]; Bill Pate [email protected]; Laura Schaefer [email protected]
Subject: RE: Public Comment: 2/28/22 City Council Meeting: Item 1 Dear Honorable Mayor and Members of the City Council:

2. Paragraph 4 (Relocation) would waive all Del Mar’s rights under myriad laws if NCTD chooses to go ahead and remove and destroy the Upper Bluffs and gets away with it. 5 February 28, 2022 Item 01
3 3. Paragraph 10 requires Del Mar to pay NCTD’s staff costs for reviewing any work it deems for Del Mar’s own good.

I applaud the City Council, the City Manager and the City Attorney’s patient and strenuous efforts in negotiation. As best I can tell, the NCTD never even described the License Area or other key terms before it voted to force them on Del Mar on 1/20/22 which also puts at issue its good faith in these negotiations and the validity of its vote. The public (and my guess also the City Council) did not see all the proposed key terms until February. Although the parties have been at the settlement table for months, it was up to NCTD to have proposed all material terms in the first instance, so Del Mar is not to blame for these delays. An extension is in order to see if Del Mar can come to terms with NCTD because NCTD may follow through on its ill-advised threat to fence the Upper Bluff with unnecessary and damaging hog-wire fencing. However, Del Mar cannot capitulate to unreasonable terms.

Thank you for all your work on behalf of the City.

Respectfully submitted,
Shirli Weiss
551 Stratford Court
Del Mar
858.449.4850
6 February 28, 2022 Item 01
4 Shirli Fabbri Weiss
Retired Partner
M +1 858 449 4850
[email protected]
DLA Piper LLP (US)
dlapiper.com
The information contained in this email may be confidential and/or legally privileged. It has been sent for the sole use of the intended recipient(s). If the reader of this message is not an intended recipient, you are hereby notified that any unauthorized review, use, disclosure, dissemination, distribution, or copying of this communication, or any of its contents, is strictly prohibited. If you have received this communication in error, please reply to the sender and destroy all copies of the message. To contact us directly, send to [email protected]. Thank you. 7 February 28, 2022 Item 01
1 Melinda Gould
From: Jill Ellis <[email protected]>
Sent: Monday, February 28, 2022 11:29 AM
To: City Clerk Mail Box
Subject: Fencing on the Bluff
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

Del Mar City Clerk and Council Members:

I am writing re: Item 1 on the agenda today.

It is quite clear that any money spent on the bluffs and railroad should be to remove the tracks from the eroding bluff as soon as possible. Any fencing requiring post holes to be dug on the fragile bluff is going to further erode the sandstone and create more hazard for the existing tracks.

Furthermore, fencing will make it more difficult or impossible for citizens to safely access the beach in case of fire or other disasters.

Finally, the bluffs with coastal views should be maintained as part of Californians’ right to public access to see and enjoy the beach areas.

The tracks must be moved. The fencing is financially wasteful and will destabilize the bluffs and the railroad tracks.

Thank you for reading my comments.

Sincerely,
Jill Ellis
442 8th Street
Del Mar, CA 92014
8 February 28, 2022 Item 01
1 Melinda Gould
From: Kc Vafiadis <[email protected]>
Sent: Monday, February 28, 2022 11:34 AM
To: City Clerk Mail Box
Cc: Dwight Worden; David Druker; Terry Gaasterland; Tracy Martinez; Dan Quirk Subject: 2-28-22 Special Meeting Agenda item #1
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Honorable Mayor and City Council Members,
As a former resident and current business owner in Del Mar, I do not understand why anyone would consider fencing the bluffs in Del Mar. Del Mar's natural beauty is one of the main attractions for residents and visitors alike. The train, which is almost empty every time it passes by, has been running through Del Mar for many years with no need for fencing, especially above the tracks. The lower bluffs need stabilizing, but not fencing. There should be no unnecessary digging or drilling into the fragile bluffs!
In speaking with surfers, they assure me they will just go over, under or though the fencing anyway, so it's a waste of time and money, and constant repairs and maintenance.

It is absurd for NCTD to ask Del Mar to pay to maintain something that no one in Del Mar wants to begin with. I also think it is unfair for the NCTD board to back Del Mar council members into a corner and require a vote on something that is not in the best interest of the community.

For years the community has been trying to get the trains off the bluffs entirely. Instead, more time and resources are going for a temporary fix for the train with irreversible damage to the bluffs.

I do not envy your position today, but hope you will protect Del Mar's natural resources as best you can.

KC Vafiadis
Stratford Square Del Mar
Winners Circle Resorts Int'l
work:858-755-3991
cell:619-889-2888
9 February 28, 2022 Item 01
1 Melinda Gould
From: Jay Lazarus <[email protected]>
Sent: Monday, February 28, 2022 11:35 AM
To: City Clerk Mail Box
Subject: OPPOSING FENCING OF UPPER BLUFF.

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To Del Mar City Council Members:

As an owner at Del Mar Woods, I strenuously object to the proposed NCTD's fencing of the Upper Bluffs.

I have been appearing before regulatory entities for more than 40 years, as both a proponent and opponent of varius development projects and I have never seen a regulatory board take action on an incomplete application, and NCTD's application is incomplete at best.

The proposed agreement is one-sided and NCTD is presenting it as if the residents and elected officials of Del Mar are incapable of thorough independent analyses.

This flawed, technically incomplete plan must be rejected and I recommend that the City and NCTD engage a professional mediator once NCTD presents a complete application.

I am astonished that this process has gotten so far with so little information for the affected community to review.

Thank you for your consideration and your no vote.

Jay Lazarus
286 Dolphin Cove Court
Del Mar CA 92016
10 February 28, 2022 Item 01
1 Melinda Gould
From: Peter Cramton <[email protected]>
Sent: Monday, February 28, 2022 11:37 AM
To: City Clerk Mail Box
Subject: No on fencing of upper bluff
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Dear City Council,
The fencing on the upper bluff makes no sense. Double-tracking would be insane in this fragile and irreplaceable wonder enjoyed by millions. Such an approach could only make sense to an organization that thinks trains are the solution to all transportation problems. In reality, the role of trains in US transport has been and will continue to be a declining industry.

There is rapid innovation in other transport modes. These innovations will accelerate the decline of trains in the US.

Transportation policy should embrace the future, not attempt to resurrect the past.

Kind regards,
Peter
Peter Cramton
[email protected] cramton.umd.edu +1 530 408 6698
University of Cologne and University of Maryland
*** Currently I am in Del Mar, California; nine hours behind Germany *** 11 February 28, 2022 Item 01
1 Melinda Gould
From: Rosemary O Toole <[email protected]>
Sent: Monday, February 28, 2022 11:44 AM
To: City Clerk Mail Box
Subject: No fencing on the upper bluffs
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Hello,
Please register my strong objection to any fencing on the upper bluff in Del Mar during today’s City Council Meeting (agenda item #1)! There is no need as has been demonstrated! It is a direct assault by NCTD against Del Mar homeowners’ property values and the enjoy if residents and visitors alike, not to mention the interference with the rights of homeowners to the quiet enjoyment of their homes and lifestyles.

Thank you,
Rosemary O’Toole
613 Stratford Ct.

Del Mar
Sent from my iPhone
12 February 28, 2022 Item 01
1 Melinda Gould
Subject: FW: NO on Fencing
From: Rex Pickett <[email protected]>
Sent: Monday, February 28, 2022 11:44 AM
To: Melinda Gould <[email protected]>
Subject: Re: NO on Fencing
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To Whom it May Concern,
I oppose NCTD's proposal to fence the upper bluff. It is a colossal mistake and their terms are simply, in a word, unacceptable.

Rex Pickett
131 Sea Cliff Way
Unit E
Del Mar, CA 92014
13 February 28, 2022 Item 01
1 Melinda Gould
From: Walt Strangman <[email protected]>
Sent: Monday, February 28, 2022 11:45 AM
To: City Clerk Mail Box
Subject: Fencing
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No fencing on upper bluff
Walt Strangman
Sent from my iPhone
14 February 28, 2022 Item 01
1 Melinda Gould
From: Nancy Stoke <[email protected]>
Sent: Monday, February 28, 2022 11:51 AM
To: City Clerk Mail Box
Subject: Special Meeting Item 1 today
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Honorable Mayor and Council Members,
Please do not accept the License Agreement with NCTD, especially if the SANDAG 2019 plan for doubletracking is part of the deal.

There are other locations along the tracks between Los Angeles and San Diego that are not double-tracked and tho I know NCTD would love to have this section double-tracked, it should not be done at the expense of our crumbling bluffs and public use of the beach. Besides, if they get the OK to double-track there will be less incentive to move the tracks which is the real fix we need Respectfully submitted,
Nancy Stoke
Chair, Care ‘n Share Toy Drive
www.carensharetoydrive.com
Community Volunteer
858 509-9160
[email protected]
15 February 28, 2022 Item 01
1 Melinda Gould
From: Konstantin Magoulias <[email protected]>
Sent: Monday, February 28, 2022 11:54 AM
To: City Clerk Mail Box
Subject: Item 1
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

Dear City Council Members,
I am writing to urge you to vote No on fencing on the upper bluff. This along with the possibility of double tracks is insanity.

Thank you,
Konstantin, Harry, and Ari Magoulias
310 Del Mar Heights Rd.
16 February 28, 2022 Item 01
To the Del Mar City Council
From: Payson R. Stevens & Kamaljit Kapur
Re: Opposition to NCTD Bluff Fencing
Date: February 28, 2022
Respected Council Members:

You are all aware of the community’s vociferous opposition to NCTD’s fencing plans on the Upper and Lower Bluff. Over the last four-five months this opposition has been backed by coastal geology issues and impacts, including those of Laura DeMarco and the 62-page Del Mar Bluff Science Report (that Terry Gasterland and I wrote). It includes forceful legal arguments by Shirli Weiss and Laura Schaefer, our excellent, Del Mar pro bono legal team.

All these arguments have been repeatedly presented to the Coastal Commission, NCTD, SANDAG, and the Del Mar City Council these many months.

You are also aware of the California Coastal Commission/CCC and California Attorney General’s critique of NCTD’s legal position that violates both the CCC and CEQA laws.

So, once again my wife and I add our voice opposing:
• the Upper Fencing on the Upper Bluff, which is not needed • NCTD’s plans for the Lower Bluff with all the deleterious impacts on the Bluff geology/stability and limiting/denying public access as per the Coastal Commission’s legal mandate. More substantial barriers can be placed at the Coast Blvd crossing, where most accidents/deaths have occurred. Safe crossings can be worked out at other key points (e.g. 7th-8th Street).

Council members, how forcefully you protect our remaining 1.7 miles of natural, open Del Mar bluffs is your legacy.

Please stand firm.

Sincerely yours,
Payson R. Stevens
Kamaljit Kaur Kapur
411 7th Street
Del Mar, CA 92014
17 February 28, 2022 Item 01
1 Melinda Gould
From: Rory Bennett <[email protected]>
Sent: Monday, February 28, 2022 11:57 AM
To: City Clerk Mail Box
Subject: NO NCTD FENCING
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Dear Mayor Worden and Council Members,
Please stop for just a moment and refuse to be rushed by NCTD so that you can think very clearly before making a permanent decision on this bluff-fencing proposal.

As a long-time property Del Mar property owner and resident of Del Mar Woods, I am unable to comprehend why NCTD would want to erect a fence on the Upper Bluff. There is no access to the railroad tracks up here, no one has fallen or jumped from the Upper Bluff and there is no immediate or long-term danger to anyone or anything up here. This is simply NCTD harassing and bullying Del Mar -- and it must be stopped immediately.

Please use every means at your disposal -- file an injunction, seek a restraining order, appeal for judicial intervention -- do anything and everything to stop this disastrous proposal.

Feb. 28 may have arrived -- but maybe it's best to call NCTD's bluff -- in order to save ours.

Yours very sincerely,
Rory Bennett
Del Mar
18 February 28, 2022 Item 01
1 Melinda Gould
From: Shannahoff, David <[email protected]>
Sent: Monday, February 28, 2022 12:00 PM
To: City Clerk Mail Box
Cc: Dwight Worden; Terry Gaasterland; Dan Quirk; David Druker; Tracy Martinez Subject: Please Vote NO on fencing on the Upper Bluff trail CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

Dear Del Mar City Council members and City Manager,
I am emphatically requesting that you all vote NO on this last minute License Agreement with NCTD that will allow them to build a continuous half-mile fence along the Upper Bluff. This is absurd, unnecessary, very dangerous, and destructive.

Thank you,
David Shannahoff-Khalsa
507 1/2 Van Dyke Ave
Del Mar, CA 92014
19 February 28, 2022 Item 01
1 Melinda Gould
From: Inese Redondo <[email protected]>
Sent: Monday, February 28, 2022 12:00 PM
To: City Clerk Mail Box
Subject: Fencing On The Upper Bluff Coastal Trail
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Dear Del Mar City Clerk,
I vote NO on fencing on the upper bluff coastal trai.

Sincerely,
Inese Redondo
292 Surfview Court
Del Mar, Ca.

Sent from my iPad
20 February 28, 2022 Item 01
1 Melinda Gould
From: [email protected]
Sent: Monday, February 28, 2022 12:00 PM
To: City Clerk Mail Box
Subject: NO on the fence
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

Dear Council
I am writing in opposition to the fence placement as I have before.
thank you
Howard Miller
1731 Seaview Ave
21 February 28, 2022 Item 01
1 Melinda Gould
From: Laura DeMarco <[email protected]>
Sent: Monday, February 28, 2022 12:01 PM
To: Dwight Worden; Terry Gaasterland; Dan Quirk; David Druker; Tracy Martinez Cc: Ashley Jones; City Clerk Mail Box
Subject: Significant concerns regarding NCTD indemnification agreement CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

Dear City Council Members and Staff,
It is good to see that the modified fencing plan in Exhibit A of the proposed agreement no longer includes any fencing on the seaward edges of the lower bluffs that are most prone to bluff slides endangering hundreds of train passengers and beachgoers on the beach below.

However, there remain significant concerns about the proposed indemnification agreement with NCTD:
1) The agreement’s attached fencing plan applies only to the ROW area on the bluff south of Melanie Way, the alley between 9th and 10th Street. Does this mean that the city of Del Mar accepts NCTD’s fencing plan north of Melanie Way to Coast Blvd that was approved by the NCTD board on Jan 20, 2022?
2) Why is there no provision for improved “coastal access” to the beach as required in SANDAG’s previously approved Bluff Stabilization Project 4? NCTD’s approved fencing from Coast Blvd to 9th Street combined with the “modified fencing” in Exhibit A will block over 1 mile of beach access that visitors have used for over 100 years.
3) Why is there any fencing on the upper bluff to supposedly prevent “falls” which have never occurred there, especially since NCTD’s board-approved fencing plan includes fencing along the landward part of the lower bluff where the tracks are located? 4) The agreement should include a commitment from NCTD to withdraw its STB petition for federal preemption for “rail maintenance and any other upgrading activities” (fencing, bluff stabilization, etc.) in its right of way (ROW) on Del Mar’s Bluffs. Otherwise, Del Mar will be forced to spend hundreds of thousands of dollars to fight NCTD’s STB petition. Even more significantly, if the STB grants NCTD’s petition and it is upheld by state and/or federal courts, NCTD will no longer be bound by this agreement’s modified fencing plan. The agreement’s tenuous nature is demonstrated by its “Termination for Convenience” clause that each party may terminate the agreement for “any reason, with or without cause, upon at least 12 months written notice.” 5) Del Mar’s potential claims for costly repairs to the bluff from damage by the fencing and the trains is compromised by its acceptance of the following provisions: a)“Acceptance of License Area” to be “as is” with no independent geotechnical inspection; b) “Relocation” waiving “any and all rights …to any relocation assistance benefits pursuant to Federal Relocation Assistance Act, the California Relation Assistance law, or any other statute…if NCTD makes use of the ROW in such a way to 22 February 28, 2022 Item 01
2 displace licensee from License Area; and c) “Vibration and Noise from Train Operations” agreement that “no legal action or complaint of any kind whatsoever shall be instituted against NCTD by License as a result of vibrations” despite acknowledging that “operation of trains over the tracks does and will produce vibrations which may effect the Improvements and Licensees use of the License Area.” Thanks for your consideration,
Laura
23 February 28, 2022 Item 01

NORTH COUNTY TRANSIT DISTRICT (NCTD) LICENSE AGREEMENT

QUESTIONS & ANSWERS
FEBRUARY 28, 2022
1) If the City Council approves the License Agreement with NCTD, will that affect the California Coastal Commission’s (CCC) ability to continue to work with NCTD to ensure that the proposed fencing project go through the Federal Consistency Review Process?
No, the City’s approval of the License Agreement will not pose a detriment to the CCC’s efforts or disadvantage that effort in any way. The License Agreement ensures that at such time as a fence may be built, it will be done in accordance with the terms of the License Agreement, which holds NCTD to a maximum fence design and form as detailed in Exhibit A of the Agreement, and limits the City’s liability and maintenance responsibilities. Having the License Agreement in place protects the City in the event that NCTD prevails on their Surface Transportation Board (STB) lawsuit. 2) Does the License Agreement inadvertently incentivize NCTD to build a fence or in any way “approve” a fence?
No, the License Agreement acknowledges NCTD’s plans to build a fence, as approved by the NCTD Board in a public meeting on January 20, 2022, and provides terms and conditions that allow for public use of the area “if” they are successful in doing so.

Approval of the License Agreement does not “authorize” NCTD to go out and start building a fence, as the City does not have jurisdiction or regulatory authority to provide such authorization or approval.
3) If the City agrees to the License Agreement, and NCTD later terminates, will the City have eliminated potential prescriptive easement rights for use of the upper bluff trail in its current form?
No, prescriptive rights cannot be established over a transportation right of way. 4) Has the City Attorney’s office been working collaboratively with the City’s special counsel in Washington D.C. and legal counsel for the California Coastal Commission and other interested parties regarding the STB Petition and implications of the City entering into the proposed License Agreement with NCTD?
Yes, the City’s team has been in regular contact with representatives and legal counsel for the CCC, San Diego Association of Governments, NCTD, and the City’s own special counsel in Washington DC throughout the process. The City Council has also been kept well-informed by executive staff and the City Attorney’s office and have provided policy guidance to staff and the City’s legal counsel in closed session discussions that have occurred regularly throughout the process. 1 February 28, 2022 Item 01
5) What is the basis for the $20,000 or less estimated annual maintenance cost identified by City staff in the agenda report?
The annual cost estimate provided in the staff report is made up of approximately 20 hours or less in staff time to conduct general maintenance in the License Area, including litter/trash removal, weed abatement, etc. totaling $15,600/year and any potential costs that may come up related to other required activities under the Agreement such as 50% reimbursement for fencing repair/maintenance. Currently, NCTD reports that between 5-10 hours per week are spent on general maintenance activities in the License Area, so the City’s estimate of 20 hours per week should be more than sufficient. With regard to fence maintenance/repair, unless the fencing on the upper bluff is intentionally vandalized or damaged, the galvanized steel posts and cables are not expected to require significant maintenance/repair for at least 10-15 years, based expected galvanized steel product performance. 6) What is the basis for the Environmental Impact statement included in the agenda report for February 28, 2022?
The Council’s discretionary action related to the proposed license agreement may constitute a “project” for purposes of CEQA (California Environmental Quality Act).

Specifically, CEQA Guideline section 15378(a)(3) references an activity involving the issuance of a license or other entitlement for use by one or more public agencies as a “project.”
If approved, the License Agreement is exempt from further environmental review under CEQA Guideline 15061(b)(3). The City’s rights and obligations under the License Agreement will not cause a significant impact on the environment. The environmental baseline will not change. The License Agreement simply affords the City the right to allow continued public use of existing trails, the Del Mar Upper Bluff coastal trails. These trails have been open and accessible to public pedestrian use for decades. The License Agreement will not result in an intensification or change in the now existing use of the License Area within the Upper Bluff. The City’s license to “use” the License Area will allow for the existing pedestrian trails to remain in their existing native “as-is” condition. The City’s actions and activities authorized by the License Agreement are consistent with the current existing pedestrian uses of the walkable Upper Bluff trails.

NCTD, on the other hand, has a fence "project." NCTD’s need to comply with CEQA remains at-issue. Del Mar is not responsible for the design or construction of the Fencing Improvements identified in the License Agreement. Del Mar can and will still support the need for CEQA, and other environmental or consistency review on the part of NCTD pursuant to its obligations to the California Coastal Commission, grant terms, and self-governance under State Law.

NCTD has taken the position that state or local permitting, preclearance, or preapproval requirements, including zoning ordinances, Local Coastal Programs, environmental and other land use permitting requirements, are categorically preempted for projects related to improvements that are an integral part of rail transportation. More specifically, NCTD claims any local agency or City is prohibited 2 February 28, 2022 Item 01
from requiring NCTD to obtain a local permit, environmental review, or other prior approvals in order to construct rail infrastructure (such as fencing). 7) What does the License Agreement say about signage within the license area? Do the existing 8’ signs come down with signing the fence proposal? What if NCTD decides one afternoon that 3 signs running through DMW is not enough, and wants to add more signs?
The License Agreement does not provide the City with any control or authority over NCTD safety signage in the License Area. However, per NCTD, they will review signage placement as part of the installation of fencing. To the degree possible, they have committed to be context sensitive about placement of signs to minimize visual impacts and continue to foster safety.
8) Are NCTD staff costs included in the “50% of the reasonable costs” for fencing maintenance/repair to be reimbursed by the City? If so, why? Yes, NCTD staff time will be included in the calculation of costs to be reimbursed by the City for fence maintenance/repair. Originally, the License Agreement required that the City be 100% responsible for all aspects of fence maintenance and repair, which would have included City staff time for doing the work or coordinating with contractors.

Including the costs of NCTD staff time to complete fencing work or coordinate maintenance/repairs with a contractor would be considered a standard practice for determining the “reasonable” costs for reimbursement. This is similar to another arrangement the City has with NCTD in which the City charges NCTD for staff time/costs related to maintenance and enforcement of an NCTD-owned property located on Jimmy Durante Boulevard used for parking.
3 February 28, 2022 Item 01
1 Melinda Gould
From: Rachael Motola <[email protected]>
Sent: Monday, February 28, 2022 12:03 PM
To: City Clerk Mail Box
Subject: Vote no on “Item 1”
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

Please vote no on “Item 1”. There should not be fencing on the Upper Bluff Trail! Thank you.

Kindly,
Rachael Motola
Del Mar Resident
1 February 28, 2022 Item 01
1 Melinda Gould
From: Francesco Tedeschi <[email protected]>
Sent: Monday, February 28, 2022 12:03 PM
To: City Clerk Mail Box
Subject: Feb 28, 22 - "Item 1" NCTD Fence
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

Dear City Council,
Please VOTE NO on the licensing agreement and NCTD's plan to build a fence on the bluffs.

NCTD plan to fence off the bluffs is a direct insult to our beloved City.

And please, do not fall for the “advocating for funding to build safe and legal crossings” especially if you consider that the true intent is to double track and destroy the natural state of our fragile bluffs.

The City of Del Mar has done enough for the past 100 years. You must only support the quick relocation of the train tracks and the vigorous protection of the natural state of the bluffs. Nothing else.

Francesco Tedeschi
2 February 28, 2022 Item 01
1 Melinda Gould
From: Laura Schaefer <[email protected]>
Sent: Monday, February 28, 2022 12:03 PM
To: City Clerk Mail Box
Subject: Red Dot Item - NCTD Bluff fence
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

To the Honorable Mayor and City Council Members,
I have been a long term resident of Del Mar and have been following the NCTD fencing issue closely. I am an attorney who has been in practice for over 30 years, and have filed pleadings in opposition to the Surface Transportation Board proceedings filed by NCTD.

First, I would like to thank you and your staff for attempting to reach a negotiated disposition in this matter. I do feel that it is in the best interest of Del Mar and NCTD to resolve this dispute, and I am grateful for the time and energy you have all devoted to this issue.

At first I was hopeful that this matter had been resolved, but after reviewing the agreement, I have to urge you to vote no on the agreement, unless the NCTD is willing to agree to a revision of certain terms within the contract, because these provisions render it illusory.

Specifically, Paragraph 2 of the agreement allows the NCTD to remove the upper bluff at any time as part of stabilization or for "any similarly related project" undertaken by SANDAG. Similarly, Paragraph 4 provides that if the licensee is "displaced" by NCTD projects, the licensee will execute any agreements needed to displace the licensee.

My concern is that these provisions will be interpreted to allow NCTD to remove or modify the upper bluff to enable it to double track on the lower bluff. Since the NCTD has agreed it is necessary to relocate the tracks, there is no need to remove the upper bluff in the future, and these provisions should be stricken.

I do not believe that, even if NCTD prevails in its STB action, it would allow NCTD to remove the upper bluff. But this agreement allows it and you should vote no.

Thank you,
Laura Schaefer
NOTICE: This E-Mail transmission (and/or the documents accompanying it) is for the sole use of the intended recipient(s) and may contain information protected by the attorney-client privilege, the attorney work product doctrine or other applicable privileges or 3 February 28, 2022 Item 01
2 confidentiality laws or regulations. If you are not an intended recipient, you may not review, use, copy, disclose or distribute this message or any of the information contained in this message to anyone.

If you are not the intended recipient, please contact the sender by reply e-mail and destroy all copies of this message and any attachments.
4 February 28, 2022 Item 01
1 Melinda Gould
From: Robert Fried <[email protected]>
Sent: Monday, February 28, 2022 11:45 AM
To: City Clerk Mail Box
Subject: No on Item 1
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

Please vote No on "Item 1" regarding fencing.

Bob and Chrissy Fried.
5 February 28, 2022 Item 01
1 Melinda Gould
From: Scott Motola <[email protected]>
Sent: Monday, February 28, 2022 12:05 PM
To: City Clerk Mail Box
Subject: Vote no on “Item 1”
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

Please vote no on “Item 1”. There should not be fencing on the Upper Bluff Trail! Thank you.

Kindly,Scott Motola
Del Mar Resident
6 February 28, 2022 Item 01
1 Melinda Gould
From: Steven Crowe <[email protected]>
Sent: Monday, February 28, 2022 12:21 PM
To: City Clerk Mail Box
Cc: Cheryl Crowe; Dwight Worden-Private
Subject: Proposed NCTD License Agreement
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

This plan has not been reviewed and approved by the affected jurisdictions according to state and local law. THIS PLAN

IS ILLEGAL
Further, this agreement imposes numerous requirements on the City of Del Mar that could potentially cost the city millions of dollars. The agreements also transfers legal liabilities from NCTD to the City that are difficult to quantify or assess. THIS PLAN WILL CREATE HUGE POTENTIAL LIABILITIES AND EXPENSES FOR THE CITY.

Section 13.2 of the agreement gives NCTD THE RIGHT TO TERMINATE THE LICENSE AT ANY TIME FOR ANY REASON. This agreement potentially has no legal effect for more than 12 months and the NCTD gets their fence and many indemnities.

THIS AGREEMENT GIVES NCTD EVERYTHING THEY WANT, AND DEL MAR GETS NOTHING EXCEPT A SHORTER FENCE.

Any safety fencing belongs on the lower bluff where it would be more effective and less intrusive. ANY FENCE MUST BE ON THE LOWER BLUFF.

PLEASE DO NOT SIGN THIS AGREEMENT. The NCTD is already backing up by offering this agreement, and the CA Attorney General has told them that they are breaking state law by proceeding without appropriate approvals.

Thank you, for protecting us residents and taxpayers.

Steven & Cheryl Crowe
111 Sea Cliff Way
Del Mar, CA 92014
7 February 28, 2022 Item 01
City of Del Mar
Memorandum
________________________________________________________________________________________________________ TO: Honorable Mayor and City Council Members
FROM: Ashley Jones, City Manager
William Pate, Assistant City Attorney
DATE: February 28, 2022
SUBJECT: Red Dot – Modified License Agreement Reflecting Council Requested Changes Approved by North County Transit District (NCTD) Attached is a modified proposed License Agreement that reflects requested changes to the document provided by members of the City Council following distribution of the agenda packet last Thursday, February 24, 2022, that have been reviewed and agreed to by NCTD.

Attachment: Revised License Agreement between the City and NCTD 1 February 28, 2022 Item 01
1 Final Version 2-24-22
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. Pursuant to California Penal Code section 391i, NCTD prohibits unauthorized access on its ROW including any pedestrian crossing or travel along the ROW (which NCTD refers to 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; and
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; and
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 and to the maximum extent possible in the placement of fencing as provided herein; and 2 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 3 February 28, 2022 Item 01
3 Final Version 2-24-22
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 4 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. 5 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 7, 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 plans to 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, 6 February 28, 2022 Item 01
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to the SWRCB through the SWRCB SMARTS online system and shall provide 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.
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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.

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. 8 February 28, 2022 Item 01
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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 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 9 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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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, and 4th Street.

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.” The Fencing Improvements will be installed in a manner to preserve the natural conditions and the walkable trails along the Upper Bluff from end to end and to the maximum extent possible in the placement of fencing.
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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: 9th Street
MAP 9: 8th Street
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MAP 10: 7th Street
MAP 11: 6th Street to Sea Cliff Way (“ALLEY”)
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MAP 12: Stratford Court
MAP 13: 4th 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 9th 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. 9th Street (street end with southwest path to Upper Bluff, dashed line) ii. Shippey Lane (street end, west to Upper Bluff, dashed line) iii. 8th St (street end, west to Upper Bluff, dashed line) 17 February 28, 2022 Item 01
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iv. Little Orphan Alley (street end, west to Upper Bluff, dashed line) v. 7th St (street end, west to Upper Bluff, dashed line) vi. Sherry Lane (street end, west to Upper Bluff, dashed line) vii. 6th St (street end, west to Upper Bluff, dashed line) viii. Sea Cliff Way (street end, west to Upper Bluff, dashed line) ix. 4th St (street end with northwest and southwest paths to Upper Bluff, dashed line) 18 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 no more than four cables. conform to the drawings detailed below.
b. Below are is an 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. 21 February 28, 2022 Item 01
21 Final Version 2-24-22

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. 22 February 28, 2022 Item 01
22 Final Version 2-24-22
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.
23 February 28, 2022 Item 01
23 Final Version 2-24-22
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.
24 February 28, 2022 Item 01
1 Jackie Rapp
From: Anne Checkoway <[email protected]>
Sent: Monday, February 28, 2022 12:41 PM
To: City Clerk Mail Box
Subject: Item 1 Feb. 28, 2022 city council meeting
Follow Up Flag: Follow up
Flag Status: Flagged
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

To the City Council,
We vote NO to fencing on the upper bluff!
Sincerely,
Anne and Harvey Checkoway
428 Van Dyke Ave.

Del Mar
Sent from my iPhone
26 February 28, 2022 Item 01
1 Jackie Rapp
From: Yasmin Sexton <[email protected]>
Sent: Monday, February 28, 2022 12:51 PM
To: City Clerk Mail Box
Subject: Fencing in Upper Bluff (Item 1)
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

I would like to vote no on installing a chain link fence in the upper bluff of the train tracks. Honestly it serves no purpose other than to block access and views. I feel really bad for the residents who overlook those bluffs and will now have to see that view through a chain link fence. I walk that upper pathway with my dog daily and it would be such a shame to take that gorgeous view away.

Thank you for your attention
Yasmin Sexton.

Del Mar, CA
Sent from my iPhone
27 February 28, 2022 Item 01
1 Melinda Gould
From: Lynn <[email protected]>
Sent: Monday, February 28, 2022 12:08 PM
To: City Clerk Mail Box
Subject: Fence
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

The residence of Del Mar do not want a fence!
Lynn Nolan
1 February 28, 2022 Item 01
1 Melinda Gould
From: Leslie Kneeshaw <[email protected]>
Sent: Monday, February 28, 2022 12:27 PM
To: City Clerk Mail Box
Subject: “No” to fencing on upper bluff
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

Hello,
I would like to register my extreme disapproval of fencing on the upper bluff. I lived on 7th street (west of Stratford) for many years and there has never been an accident or need for fencing. This would be a terrible and unsightly mistake.

Sincerely,
Leslie Kneeshaw
692 Rimini Rd
Del Mar
2 February 28, 2022 Item 01
1 Melinda Gould
From: Dixie Welsh <[email protected]>
Sent: Monday, February 28, 2022 12:57 PM
To: City Clerk Mail Box
Subject: License Agreement with NCTD
Follow Up Flag: Follow up
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Dear City Council Members,
I strongly oppose the License Agreement with NCTD to build fence along Upper Bluff.

I oppose double tracking on Upper Bluff.

Please vote NO on this License Agreement.

Thank you,
Mary D. Welsh
155 15th St #26
Del Mar, CA 92014
3 February 28, 2022 Item 01
1 Melinda Gould
From: Hannah Motola <[email protected]>
Sent: Monday, February 28, 2022 12:42 PM
To: City Clerk Mail Box
Subject: Vote no on “Item 1”
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

Please vote no on “Item 1”. There should not be fencing on the Upper Bluff Trail! Thank you.

Kindly,
Hannah Motola
Del Mar Resident
4 February 28, 2022 Item 01
1 Melinda Gould
From: Wendy Root Cate <[email protected]>
Sent: Monday, February 28, 2022 1:04 PM
To: City Clerk Mail Box
Subject: Ítem 1
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

I think it would be best not to have fencing on the Upper Bluff, if we have that option.

Thank you for your assistance with this matter.

Sincerely yours,
Wendy Cate
615 Stratford Court #8
Del Mar
Sent from my iPhone
5 February 28, 2022 Item 01
1 Melinda Gould
From: Nelson Byrne <[email protected]>
Sent: Monday, February 28, 2022 1:09 PM
To: City Clerk Mail Box
Subject: #1
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

Don’t fence the upper bluff, please!
Nelson Byrne
6 February 28, 2022 Item 01
1 Melinda Gould
From: Stefanie Zable <[email protected]>
Sent: Monday, February 28, 2022 1:01 PM
To: City Clerk Mail Box
Subject: No fencing in Del Mar
Follow Up Flag: Follow up
Flag Status: Flagged
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Please donot fence!!!!
Stefanie Zable
Sent from my iPhone
7 February 28, 2022 Item 01
1 Melinda Gould
From: Kristine Kruseski <[email protected]>
Sent: Monday, February 28, 2022 1:04 PM
To: City Clerk Mail Box
Subject: No on Fencing in Del Mar!
Follow Up Flag: Follow up
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I vote no to fencing in Del Mar on the tracks.

That double tracking idea has to be stopped.

It’s insane.

Kristine Kruseski
1669 Stratford Way
Del Mar, CA 92014
858-245-1266
8 February 28, 2022 Item 01
1 Melinda Gould
From: jas.grewal <[email protected]>
Sent: Monday, February 28, 2022 1:04 PM
To: City Clerk Mail Box
Subject: Fencing on upper bluff
Follow Up Flag: Follow up
Flag Status: Flagged
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Dear Council members
Please do not approve having a fence on the upper bluff.

Thank you.

Jas Grewal and Suren Dutia
238 11th Street
Del Mar
Sent from my T-Mobile 4G LTE Device
9 February 28, 2022 Item 01
1 Melinda Gould
From: Jack Jaeger <[email protected]>
Sent: Monday, February 28, 2022 1:09 PM
To: Laura DeMarco
Cc: Dwight Worden; Terry Gaasterland; Dan Quirk; David Druker; Tracy Martinez; Ashley Jones; City Clerk Mail Box
Subject: Re: Significant concerns regarding NCTD indemnification agreement Follow Up Flag: Follow up
Flag Status: Flagged
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To the City Council of Del Mar,
My name is Jack Jaeger, 129-10th st.

I have great concern over the indemnification plan brought forth between NCDT and Del Mar and it needs more critical attention.

My position exactly replicates that of Laura DeMarco’s, so I will spare you the redundancy, however we deplore you to hold firm countering the unreasonable requests and current fencing plans set forth by NCTD.

Sincerely,
Jack Jaeger
On Feb 28, 2022, at 12:01 PM, Laura DeMarco wrote
Dear City Council Members and Staff,
It is good to see that the modified fencing plan in Exhibit A of the proposed agreement no longer includes any fencing on the seaward edges of the lower bluffs that are most prone to bluff slides endangering hundreds of train passengers and beachgoers on the beach below.

Otherwise, Del Mar will be forced to spend hundreds of thousands of dollars to fight NCTD’s STB petition. Even more significantly, if the STB grants NCTD’s petition and it is upheld by state and/or federal courts, NCTD will no longer be bound by this agreement’s modified fencing plan. The agreement’s tenuous nature is demonstrated by its “Termination for Convenience” clause that each party may terminate the agreement for “any reason, with or without cause, upon at least 12 months written notice.” 5) Del Mar’s potential claims for costly repairs to the bluff from damage by the fencing and the trains is compromised by its acceptance of the following provisions:
a)“Acceptance of License Area” to be “as is” with no independent geotechnical inspection; b) “Relocation” waiving “any and all rights …to any relocation assistance benefits pursuant to Federal Relocation Assistance Act, the California Relation Assistance law, or any other statute…if NCTD makes use of the ROW in such a way to displace licensee from License Area; and c) “Vibration and Noise from Train Operations” agreement that “no legal action or complaint of any kind whatsoever shall be instituted against NCTD by License as a result of vibrations” despite acknowledging that “operation of trains over the tracks does and will produce vibrations which may effect the Improvements and Licensees use of the License Area.” Thanks for your consideration,
Laura
11 February 28, 2022 Item 01
1 Melinda Gould
From: Don Instone <[email protected]>
Sent: Monday, February 28, 2022 1:12 PM
To: City Clerk Mail Box
Cc: Don Instone
Subject: Fencing
Follow Up Flag: Follow up
Flag Status: Flagged
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

Absolutely NO on fencing!
Don Instone
858 361 9671
Instone investments, Inc.

Siemienowski & Associates
https://nam04.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.instoneinvestments.com%2F&data=0 4%7C01%7Ccityclerk%40delmar.ca.us%7Cb722a00d142f49213dc008d9fafef0aa%7Ce57e47ceaae64f7392493b679aab1e b4%7C0%7C0%7C637816796039152338%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJ BTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C3000&sdata=Cavgk70XekN4pKy%2FIbY5LBP6jA6A3SwoBLWLjumexxw%3D&a mp;reserved=0
[email protected]
Sent from my iPhone
12 February 28, 2022 Item 01
1 Melinda Gould
From: Betty McDonald <[email protected]>
Sent: Monday, February 28, 2022 1:31 PM
To: City Clerk Mail Box
Subject: Fencing
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

Please reconsider where fencing is superfluous like the trail that is located 50 feet above the tracks and 50 feet east of the tracks. Thank you for listening.

Betty McDonald
2026 Balboa Ave,
Del Mar, CA 92014
202 812-1100
13 February 28, 2022 Item 01
1 Melinda Gould
From: tm.dmi720 <[email protected]>
Sent: Monday, February 28, 2022 1:32 PM
To: City Clerk Mail Box
Subject: No on fencing
Importance: High
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

Dear Del Mar City Clerk: Please inform whomever is necessary to restrain from building a fence AND a second set of rail tracks on our beautiful Sea Side Bluffs in our City of Del Mar.

Sincerely,
Thomas Mackey
720 Camino Del Mar
Sent from my Verizon, Samsung Galaxy smartphone
14 February 28, 2022 Item 01
1 Melinda Gould
From: Cecile Canales <[email protected]>
Sent: Monday, February 28, 2022 1:38 PM
To: City Clerk Mail Box
Subject: No to fencing on bluff
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

I strongly oppose the fence on the upper bluff from 4th to 9th. It is unnecessary.

Sent from my iPhone
15 February 28, 2022 Item 01
1 Melinda Gould
From: Virginia Frankum <[email protected]>
Sent: Monday, February 28, 2022 1:39 PM
To: City Clerk Mail Box
Subject: fence on high bluff in Del Mar
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

Ref: Item 1
Regarding the necessity to fence the bluff top over the train tracks. There is no reason to pursue this plan.

The bluffs from 9th street to south of Del Mar Woods contain a scenic walking path that does not interfere with the view as a fence would nor does it interfere with the normal daily operation of traffic on the tracks. In addition it could accelerate bluff instability from the vibration caused by digging.

I would recommend a No vote on this item
Sincerely,
Virginia Frankum
259 Sea forest Ct.
16 February 28, 2022 Item 01
1 Melinda Gould
From: Mary Lee Moser <[email protected]>
Sent: Monday, February 28, 2022 1:41 PM
To: City Clerk Mail Box
Subject: Upper bluff fencing in Del Mar
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

We are 100% against any fencing of the Del Mar UPPER BLUFF. It is not necessary and it would have detrimental effects on the natural environment, and on the enjoyment of this coastal area by residents and visitors.

Thank you,
Mary Lee Moser & Karl Newmeyer
Homeowners/residents of
319 El Amigo Rd since 1994
Sent from my iPhone
17 February 28, 2022 Item 01
1 Melinda Gould
From: Maryrose Mulvey <[email protected]>
Sent: Monday, February 28, 2022 1:45 PM
To: City Clerk Mail Box
Subject: Fencing on Upper Bluff
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

Good Afternoon,
This is Doug and Maryrose Mulvey (105 and 103 Via de la valle), we are currently out of the country but wanted to send an email to say "No" to the NCTD fencing in Del Mar.

Thank You,
Mayrose
18 February 28, 2022 Item 01
1 Melinda Gould
From: Laura DeMarco <[email protected]>
Sent: Monday, February 28, 2022 1:27 PM
To: PAMELA SLATER-PRICE
Cc: Dwight Worden; Terry Gaasterland; Dan Quirk; David Druker; Tracy Martinez; Ashley Jones; City Clerk Mail Box
Subject: Re: Significant concerns regarding NCTD indemnification agreement CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

Hopefully, all our comments help!
Sent from my iPhone
On Feb 28, 2022, at 12:19 PM, PAMELA SLATER-PRICE <[email protected]> wrote:

Thank you Laura
“Be who you are and say what you feel because those who mind don’t matter and those who matter don’t mind.”
~ Dr. Seuss
On Feb 28, 2022, at 12:01 PM, Laura DeMarco <[email protected]> wrote:

Does this mean that the city of Del Mar accepts NCTD’s fencing plan north of Melanie Way to Coast Blvd that was approved by the NCTD board on Jan 20, 2022?
19 February 28, 2022 Item 01
2 2) Why is there no provision for improved “coastal access” to the beach as required in SANDAG’s previously approved Bluff Stabilization Project 4? NCTD’s approved fencing from Coast Blvd to 9th Street combined with the “modified fencing” in Exhibit A will block over 1 mile of beach access that visitors have used for over 100 years.
3) Why is there any fencing on the upper bluff to supposedly prevent “falls” which have never occurred there, especially since NCTD’s boardapproved fencing plan includes fencing along the landward part of the lower bluff where the tracks are located?
4) The agreement should include a commitment from NCTD to withdraw its STB petition for federal preemption for “rail maintenance and any other upgrading activities” (fencing, bluff stabilization, etc.) in its right of way (ROW) on Del Mar’s Bluffs. Otherwise, Del Mar will be forced to spend hundreds of thousands of dollars to fight NCTD’s STB petition. Even more significantly, if the STB grants NCTD’s petition and it is upheld by state and/or federal courts, NCTD will no longer be bound by this agreement’s modified fencing plan. The agreement’s tenuous nature is demonstrated by its “Termination for Convenience” clause that each party may terminate the agreement for “any reason, with or without cause, upon at least 12 months written notice.”
5) Del Mar’s potential claims for costly repairs to the bluff from damage by the fencing and the trains is compromised by its acceptance of the following provisions: a)“Acceptance of License Area” to be “as is” with no independent geotechnical inspection; b) “Relocation” waiving “any and all rights …to any relocation assistance benefits pursuant to Federal Relocation Assistance Act, the California Relation Assistance law, or any other statute…if NCTD makes use of the ROW in such a way to displace licensee from License Area; and c) “Vibration and Noise from Train Operations” agreement that “no legal action or complaint of any kind whatsoever shall be instituted against NCTD by License as a result of vibrations” despite acknowledging that “operation of trains over the tracks does and will produce vibrations which may effect the Improvements and Licensees use of the License Area.”
Thanks for your consideration,
Laura
20 February 28, 2022 Item 01
1 Melinda Gould
From: Ruth Evans <[email protected]>
Sent: Monday, February 28, 2022 1:51 PM
To: City Clerk Mail Box
Subject: no fencing on the upper bluff please!
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

Dear Council, Please vote against fencing on the upper bluffs. It would be a tragedy for this irreplaceable natural resource. Thank you so much, Ruth Evans 2115 Balboa Ave, Del Mar, CA 92014 21 February 28, 2022 Item 01
1 Melinda Gould
From: Virginia McMinn <[email protected]>
Sent: Monday, February 28, 2022 1:58 PM
To: City Clerk Mail Box
Subject: City Council MTG Item #1
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

Hello,
I am a resident of Del Mar and do not agree with the NCTD fencing on the upper bluff for item #1 on today's agenda.

Thanks,
Virginia
1 February 28, 2022 Item 01
1 Melinda Gould
From: Bruce Watson <[email protected]>
Sent: Monday, February 28, 2022 2:33 PM
To: City Clerk Mail Box
Subject: Upper bluff trail fence
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

There is no need for an upper bluff fence, unless Del Mar is going to sell advertising space for the train passengers to view. Our vote is no.
2 February 28, 2022 Item 01
1 Melinda Gould
From: Richard Cohen <[email protected]>
Sent: Monday, February 28, 2022 2:17 PM
To: City Clerk Mail Box
Subject: I say NO to any fencing of the DM Bluff.

CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

Richard Cohen, 313 7th St. Del Mar
3 February 28, 2022 Item 01
1 Melinda Gould
From: Karen Morse <[email protected]>
Sent: Monday, February 28, 2022 2:23 PM
To: City Clerk Mail Box
Subject: Item 1 at Council meeting tonight.

CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

Dear Mayor Worden and Council Members,
I understand that you will be voting tonight on a license agreement with NCTD that would allow double-tracking on the bluff and eliminate the Upper Bluff Coastal Trail. Please vote "NO" to stop this costly, misguided plan that could potentially cause further harm to the bluff.

Thank you,
Karen Morse
Zuni Drive
4 February 28, 2022 Item 01

STATE OF CALIFORNIA - NATURAL RESOURCES AGENCY GAVIN NEWSOM, GOVERNOR

CALIFORNIA COASTAL COMMISSION

SAN DIEGO DISTRICT OFFICE
7575 METROPOLITAN DRIVE, SUITE 103
SAN DIEGO, CA 92108-4402
VOICE (619) 767-2370
FAX (619) 767-2384
February 28, 2022
[Corrected Version]
Mayor Dwight Worden and Councilmembers
Del Mar City Council
1050 Camino Del Mar
Del Mar, CA 92014
Re: Del Mar Bluffs License Agreement
Dear Mayor Worden and Councilmembers:

The California Coastal Commission (Commission) staff understands that the City of Del Mar is considering a license agreement with North County Transit District (NCTD) to maintain public access to the upper bluffs in Del Mar within NCTD’s rail right-of-way.

Commission staff acknowledge that the license agreement is an important step toward ultimately addressing issues surrounding public access and safety in the rail corridor and fully supports these efforts. However, Commission staff also understands that the proposed agreement acknowledges NCTD’s plans to install fencing along the rail corridor.

Please note that prior to the installation of any fencing, the project must be reviewed and approved pursuant to a Coastal Development Permit or concurrence in a Federal Consistency Certification.

Commission staff has been working closely with City and NCTD staff to identify a fence design that will minimize coastal resource impacts. While we recognize the modified fence plan is an improvement upon the original fence plan proposed by NCTD, Commission staff must note that all coastal resource issues will need to be addressed during the coastal permit or federal consistency review process, including but not limited to the minimization of visual resource impacts, protection of sensitive habitat and the provision of public access to the beach.

We look forward to continuing our collaboration with the City and NCTD to ensure the project is implemented consistent with the Coastal Act.

Sincerely,
John Ainsworth
Executive Director
Cc: Ashley Jones, City of Del Mar (email)
Matthew Tucker, NCTD (email)
February 28, 2022 Item 1
1 Melinda Gould
From: Christy <[email protected]>
Sent: Monday, February 28, 2022 2:44 PM
To: City Clerk Mail Box
Subject: Item 1 - fencing -Feb 28, 2022
Follow Up Flag: Follow up
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Vote NO
From Owen and Christy Hahn
Sent from my iPhone
1 February 28, 2022 Item 01
1 Melinda Gould
From: Al Tarkington <[email protected]>
Sent: Monday, February 28, 2022 3:26 PM
To: City Clerk Mail Box
Subject: Red Dot Item 1, City Council meeting February 28, 2022 CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

Red Dot Item 1, City Council meeting February 28, 2022
Dear Mayor Worden and Councilmembers,
I know you are trying hard to resolve Del Mar differences with NCTD and come to some agreement. And I thank you for your efforts.

We’ve had over 100 years of public access along the southern blufftop in Del Mar. With no known safety issues.

Paragraph C. of the proposed License Agreement refers to a safety study of June, 2020. I could not find any specific referral to any issues regarding the upper bluff area.

I can find no reason to fence off bluff top area. It is a waste of taxpayers’ money. Either Del Mar’s or NCTD, but still a waste of public funds. The fence serves no purpose.

What’s the rush? What’s the reasoning?
To agree to this upper bluff fence in any form, is setting a precedent. To accept any of NCTD’s risk is setting a precedent. It will create an expectation by NCTD and SANDAG and the Coastal Commission that Del Mar will agree to assume risk and expense for future phases. That risk now belongs entirely to NCTD. In future phases, this compromise will be seen as a the new normal.

Yes, Del Mar can agree to NCTD’s Phase 1 plan near Coast Blvd. That’s where the strikes have occurred.

In fact, NCTD should do even more. The sidewalks should be wider and straighter. With directional railings.

And get rid of the wooden posts the cause people to walk out into the street. The sidewalk is not wide enough for people with dogs or people with strollers.

Do these things, at the Coast Blvd intersection.

But it is premature to sign a License Agreement that was proposed by NCTD only TWO BUSINESS DAYS ago.

Please do not sign it.

Sincerely,
1 February 28, 2022 Item 01
2 Al Tarkington
100 11th Street, Del Mar
2 February 28, 2022 Item 01
1 Melinda Gould
From: Leonard Rodin <[email protected]>
Sent: Monday, February 28, 2022 3:37 PM
To: City Clerk Mail Box
Subject: Fencing of the upper bluff
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

I understand the suggested agreement with the north county rail transit to allow fencing has been altered from the prior presented options from the last city council meeting. I wish to register my strong opposition to fencing at the top of the bluffs or a plan to double track train traffic on our fragile and crumbling bluffs. Thank you 1 February 28, 2022 Item 01
1 Melinda Gould
From: Lars Fahlberg <[email protected]>
Sent: Monday, February 28, 2022 3:47 PM
To: City Clerk Mail Box
Subject: No Bluff Fencing
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Dear City of Del Mar,
As a Del Mar homeowner and resident for 30 years, it is ridiculous to even consider a fence on the.

Besides being ugly and NOT environmentally friendly it will not prevent intentional suicidal attempts.

Thank you.

Sent from my iPhone
1 February 28, 2022 Item 01
1 Melinda Gould
From: Sandy Watson <[email protected]>
Sent: Monday, February 28, 2022 3:54 PM
To: City Clerk Mail Box
Subject: Item #1
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I do not see a need to put a fence on the upper bluff in Del Mar near Del Mar Woods. We walk that upper bluff from 9th street to the end 3 or 4 days a week & have for years!
Sandy Watson
Sent from my iPhone
1 February 28, 2022 Item 01
1 Melinda Gould
From: MONICA VALENTINO <[email protected]>
Sent: Monday, February 28, 2022 4:11 PM
To: City Clerk Mail Box
Subject: Line item 1. NOOOOOO
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

Line item 1. NO upper bluff trail fencing! NO! It's Irrational.

Monica Valentino
858 775.2220
REALTOR ® | DRE: # 00836091
Windermere Homes & Estates
1312 Camino Del Mar
Del Mar, CA 92014
P: 858.775.2220
E: [email protected]
W: www.MonicaValentino.withWRE.com
2 February 28, 2022 Item 01
1 Melinda Gould
From: Steven Crowe <[email protected]>
Sent: Monday, February 28, 2022 4:16 PM
To: Dwight Worden-Private; Tracy Martinez; Terry Gaasterland; Dan Quirk; David Druker; City Clerk Mail Box
Subject: Re: Proposed NCTD License Agreement
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

Mayor Worden & City Council,
The problem is not the height of the fence, it is putting the fence on the upper bluff. Punching two-foot deep holes every 10 feet will cause water intrusion into the sandstone which will weaken the bluff structure significantly. Each fence post will weigh about 65 pounds, and adding this much weight to weaken soils will cause landslides onto the train tracks with the potential consequences of horrendous train accidents. NCTD is far better off putting a six-foot high fence east of the tracks on the lower bluff. This will provide more security than a four-foot fence on the upper bluff and less likelihood of dangerous landslides. Remember three people were killed several years ago by a landslide in Encinitas whose families are suing the city for $10 million.

There is an extensive study of the bluff geology undertaken by NCTD with Leighton Engineering in 2001. Del Mar need to hire Atlas Engineering to evaluate the NCTD fence plan with the geological findings in 2001 to provide an evaluation of the danger of the fence proposal.

In the meantime, you will be putting the City of Del Mar in serious financial jeopardy by signing the proposed license agreement without this geological evaluation.

Please protect your citizens from this huge potential risk.

Steven Crowe
On Feb 28, 2022, at 12:39 PM, Dwight Worden <[email protected]> wrote:

Steven and cheryl:

Thanks for writing and know that I have received and read your email. Unfortunately, the decision facing Del Mar is not "fence or no fence." NCTD does not need Del Mar's permission for a fence. The decision is a 6 foot welded wire fence with no legal right of access to the upper bluff or a 4 foot post and cable fence with legal access to the upper bluff. NCTD's Board has already voted to build the former, but has agreed to the latter under a license agreement.

Best,
Dwight Worden
3 February 28, 2022 Item 01
2 Mayor, City of Del Mar
On Mon, Feb 28, 2022 at 12:20 PM Steven Crowe <[email protected]> wrote:

Dear Mayor Worden & Del Mar City Council,
We have read the proposed license agreement with NCTD under review by the council. This agreement gives NCTD the right to build a four foot high fence along the upper bluff anchored by two foot deep holes filled with concrete every 10 feet. This construction will undoubtedly further destabilize the bluff and cause landslides onto the train tracks below. This plan has not been reviewed and approved by the affected jurisdictions according to state and local law. THIS PLAN IS ILLEGAL
Further, this agreement imposes numerous requirements on the City of Del Mar that could potentially cost the city millions of dollars. The agreements also transfers legal liabilities from NCTD to the City that are difficult to quantify or assess. THIS PLAN WILL CREATE HUGE POTENTIAL LIABILITIES AND EXPENSES FOR THE CITY.

THIS AGREEMENT GIVES NCTD EVERYTHING THEY WANT, AND DEL MAR GETS NOTHING EXCEPT A SHORTER FENCE. Any safety fencing belongs on the lower bluff where it would be more effective and less intrusive. ANY FENCE MUST BE ON THE LOWER BLUFF.

Thank you, for protecting us residents and taxpayers.

Steven & Cheryl Crowe
111 Sea Cliff Way
Del Mar, CA 92014
4 February 28, 2022 Item 01
1 Melinda Gould
From: Ann Willert <[email protected]>
Sent: Monday, February 28, 2022 11:25 AM
To: City Clerk Mail Box
Subject: About fencing
Follow Up Flag: Follow up
Flag Status: Flagged
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As a regular tourist in Del Mar, I know a fence on the upper bluffs is stupid. It would ruin the atmosphere of this lovely small village on the ocean. It is definitely not necessary as nobody, not even a dog has ever fallen from these cliffs. This small piece of nature would be preserved for our children and our children’s children.

Ann Willert
1 February 28, 2022 Item 01
1 Melinda Gould
From: Frager, John @ San Diego <[email protected]>
Sent: Monday, February 28, 2022 6:06 PM
To: City Clerk Mail Box
Subject: Stop the Upper Bluff Trail Fence!
Follow Up Flag: Follow up
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Item 1 – stop the fencing!
John Frager | Executive Managing Director | Lic. 00950210 CBRE | San Diego & Hawaii Region
4301 La Jolla Village Drive, Suite 3000 | San Diego, CA 92122 C +1 858 248 0818
[email protected] | www.cbre.us/john.frager | LinkedIn Follow CBRE: CBRE.com | LinkedIn | Twitter | Instagram | Facebook 2 February 28, 2022 Item 01
1 Melinda Gould
From: Arlana Scola <[email protected]>
Sent: Monday, February 28, 2022 6:20 PM
To: City Clerk Mail Box
Subject: Item 1
Follow Up Flag: Follow up
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NO FENCING ON THE UPPER BLUFF.

Arlana Scola
113 Melanie Way, Del Mar, CA 92014
3 February 28, 2022 Item 01
1 Melinda Gould
From: Wendy Root Cate <[email protected]>
Sent: Monday, February 28, 2022 5:47 PM
To: City Clerk Mail Box
Subject: Ítem 1
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I do not want the 6 foot fence on the bluff, so maybe we should agree to the shorter fence.

Thank you,
Wendy Cate
Sent from my iPhone
4 February 28, 2022 Item 01
1 Melinda Gould
From: Charlotte Gumbrell <[email protected]>
Sent: Monday, February 28, 2022 6:22 PM
To: City Clerk Mail Box
Subject: Fencing
Follow Up Flag: Follow up
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I do now want the fencing
Charlotte Gumbrell
5 February 28, 2022 Item 01

Del Mar City CouncilFebruary 28, 2022

Del Mar City Council
February 28, 2022