Del Mar City Council Meeting Agenda
VIA TELECONFERENCE ONLY
1050 Camino del Mar, Del Mar, California
July 11, 2022 Closed Session City Council Meeting
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1 Sarah Krietor
From: [email protected]
Sent: Monday, July 11, 2022 10:04 AM
To: City Clerk Mail Box; Ashley Jones
Cc: 'Laura'
Subject: RE: Public Comment: Proposed Three Way Agreement between SANDAG, NCTD and City of Del Mar
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Dear City Clerk,
Kindly submit the communication below to the City Council. Thank you. Shirli Weiss Dear Honorable Mayor Worden and Deputy Mayor Martinez and Distinguished Council Members,
We hope you had a pleasant 4th of July holiday.
The undersigned, Laura Schaefer and Shirli Weiss write as residents and property owners in Del Mar, to alert you to our deep concerns about the published-at-the-last-minute June 7, 2022 Addendum to the California Coastal Commission’s (“CCC”) Staff recommendation regarding Coastal Zone Management Act (CZMA) Consistency Certification No. CC-0005 21, which addresses CCC’s acceptance with conditions of SANDAG’s Stabilization Project 5. The Addendum states in part:
“SANDAG also proposes to work with the City of Del Mar and North County Transit District (NCTD) to develop and enter into Memoranda of Agreements (MOAs) and/or Memoranda of Understanding (MOUs) to establish roles and responsibilities regarding long term maintenance and upkeep of stabilization infrastructure and coastal access and recreation improvements as well as use of City and NCTD rights of way for their construction and use.”
We acknowledge that the City almost certainly had nothing to do with this unexpected last minute Addendum. As we have repeatedly noted, NCTD has a history of attempting to force unreasonable conditions on the City of Del Mar through memoranda of understanding or proposed licensing agreements. NCTD proposed the license agreement (“NCTD Proposed License Agreement”), published on the City’s website in advance of the February 28, 2022 open meeting, that was discussed at length at that meeting, addressed by a number of Del mar citizens and ultimately rejected by the City Council at the urging of most of the speakers and persons who sent in written comments. Given that history and the fact that NCTD will soon be in the process of negotiating with Del Mar (and SANDAG) on the memorandum(a) of understanding or agreement(s) (MOU) referenced in the Addendum to the CCC Staff’s Report, July 11, 2022 Closed Session III Items A and B
2 we respectfully wanted to remind you that many of the provisions that appeared in the NCTD Proposed License Agreement would have had a grave negative impact on the City and the future of the bluffs. We are concerned that NCTD will try to resurrect those objectionable provisions in a proposed MOU.
As a threshold matter, the NCTD narrative in the press and in its filings with the STB consistently understated or ignored provisions of the Proposed License Agreement that would have allowed NCTD to remove portions of the upper bluff and unilaterally renege on the agreement. NCTD characterized the Proposed License Agreement as requiring only Del Mar’s maintenance of the Upper Trail Fence and indemnification for accidents occurring on the Upper Bluff. The City Staff and City Counsel unfortunately appeared to buy into this misleading narrative as the City Staff’s summary of key terms on page 3 of its February 28, 2022 report understated the adverse terms of NCTD’s Proposed License Agreement.
In light of this and the long-term effects of the upcoming MOU on Del Mar, we think the City’s retention of additional or alternative counsel to advise and help negotiate the upcoming MOU is imperative. The adverse impacts of many terms of the Proposed License Agreement were not addressed at the February 28 meeting except by members of the public who called into the meeting. You may ask why are we dwelling on a Proposed License Agreement that was rejected. The answer is that we fear that the same or similar provisions will be reincarnated in an NCTD proposed MOU as a condition of NCTD’s withdrawing its protest to Phase 5 certification’s planned capital improvements. We note that neither SANDAG nor the CCC really has had Del Mar’s experience dealing with NCTD’s tactics and so the City cannot rely upon those entities to look out for Del Mar’s interests.
As you know, the CCC Staff Report stated seven conditions to the CCC’s acceptance of SANDAG’s certification application as mitigation of the dramatic adverse impacts on the Bluffs of Project 5, including a capital improvements project that includes three significant coastal access and recreational features:
A designated pedestrian railroad crossing at either 7th Street or 11th Street with funding provided by or applied for by SANDAG
A beach access way from the bluff top to the beach below with funding provided by or applied for by SANDAG
Enhancement and formalization of the existing informal blufftop trail between 4th Street and Seagrove Park, including construction of a 3ft high wooden pylons and steel cable fall fence at SANDAG’s expense.
NCTD’s earlier Proposed License Agreement purported to condition fencing with a lower profile than 6ft high wire-mesh fencing on the Upper Bluff (which NCTD ultimately threatened to proceed with until the CCC sued), on Del Mar’s acceptance of objectionable terms and conditions.
July 11, 2022 Closed Session III Items A and B
3 The following is a list of the terms and conditions of the Proposed License Agreement published just prior to the February 28, 2022 meeting that we found most objectionable that we hope do not appear in a draft proposal of NCTD that the City seriously considers. We understand that Del Mar had little leverage in the prior negotiations, but we think that has changed with the CCC’s conditions to certification.
1. As an initial consideration, if the MOU contains a licensing agreement, we question the need for any license agreement. NCTD can just acknowledge that it will allow the public to continue to use the Upper Bluff Trail and access to the beach and allocate maintenance of the 3ft-high fence and stairs to the City. We assume Del Mar is not licensing any property it owns to NCTD or SANDAG.
2. The second paragraph of Paragraph 2 of the Proposed License Agreement would have allowed NCTD to remove (or modify or relocate) the Upper Bluff (the License Area) in connection with any SANDAG projects that “impact” the Upper Bluff (whatever that means). In the same connection, Paragraphs 15 and 6.2, read with the second paragraph of Paragraph 2, allowed NCTD to change or terminate the agreement if it determines there is a conflict with its Del Mar Bluffs projects and force a new agreement in its “sole and absolute discretion” confirmed consistent by SANDAG, or if it thought the MOU interferes with it carrying out its “functions.”
Our Comment: These paragraphs should not appear in (or they should be struck from) any MOU. NCTD may assert the position that it can renege on the MOU any time by changing or removing the Upper Bluff, but Del Mar should not agree to that position in any MOU. These provisions render any agreement illusory because NCTD can essentially renege on the agreement in its sole discretion by taking the position that it conflicts with some project it is planning.
So in general, the Proposed License Agreement sought Del Mar’s permanent waivers of legal rights in exchange for giving Del Mar a right that was revokable by NCTD at any time. None of these paragraphs should appear in any MOU.
3. Paragraph 17 of the Proposed License Agreement required Del Mar to agree never to sue NCTD for damage caused by train vibration or as a result of NCTD’s or anyone’s “use of the railroad tracks” in general.
Comment: This provision was exceedingly overbroad in NCTD’s favor.
Del Mar cannot broadly give up rights the City may or may not have in the future and this type of provision has no place in what is supposed to be an agreement allocating maintenance responsibilities. It is extremely overreaching. There should be no such provision in the MOU as the City Council does not have the authority to broadly relinquish the City’s future legal rights.
4. Paragraph 4 of the Proposed License Agreement called for Del Mar to relinquish rights under a number of laws and to promise to sign documents waiving and releasing rights as requested by NCTD in the future.
July 11, 2022 Closed Session III Items A and B
4 Comment: Del Mar broadly giving up rights under various named and unnamed laws has no place in what is supposed to be an agreement allocating maintenance responsibilities. It is overreaching. There should be no such provision in the MOU. The City Council does not have the authority to broadly relinquish the City’s future legal rights as this paragraph would.
5. Paragraph 6.2 basically allowed NCTD to terminate the Proposed License Agreement if it interfered “in any way” with its ability to carry out its “functions.” Comment: This is another instance that NCTD wrote in so it can escape the agreement virtually at will and Del Mar cannot. If it appears in the MOU, Del Mar should simply revise it to say that Del Mar will use the Upper Bluff consistent with Federal Transit Administration requirements. That is all that is necessary to say.
6. Paragraph 6.1 of the Proposed License Agreement provided that Del Mar shall comply with NCTD policies and all federal and state and local laws.
Comment: This is ordinarily typical boiler plate language but is problematic in any MOU with NCTD. NCTD has asserted the position (and will assert this position for the foreseeable future) that state and local law does not apply to the Bluffs and that only the ICCTA applies among all federal law, so having this paragraph in an MOU will likely quickly lead to a dispute or place Del Mar in a position where it tries to comply with state law only to have the agreement terminated. In addition, the part about complying with all NCTD policies is too vague and broad. NCTD has any number of policies, so the City should ask for a copy of all policies that NCTD thinks applies before it agrees to abide by any NCTD policy and should not agree to any blanket “all policies” provision, that would be just asking for trouble.
7. Paragraph 10 of the Proposed License Agreement shifted NCTD a broad array of NCTD staff and NCTD consultant fees to Del Mar.
Comment: Presumably, this paragraph is unnecessary in an MOU setting out maintenance responsibilities, but if it shows up in a draft, suggest the City’s representatives strike it or condition it on notice to Del Mar and Del Mar’s written approval 45 days in advance of NCTD purporting to spend the City’s money. Make sure their lawyers are not included in “consultants.”
8. Paragraph 14 of the Proposed License Agreement regarding Default and Termination was too one-sided in NCTD’s favor.
Comment: We do not know what type of Default and Termination provision will be in the MOU, but it should be evenhanded and bi-lateral.
9. Paragraph 7 and 9 re Insurance and Indemnification in the Proposed License Agreement Comment: The Indemnification and Insurance provisions presumably will be modified versions of that contained in the Proposed License Agreement but should be restricted to accidents occurring on the Upper Bluff and not include liability for train related accidents, as that is a cost of NCTD’s business.
10.Recitals:
July 11, 2022 Closed Session III Items A and B
5 Comment: Recitals are important because the reader assumes that the parties agree with the statements. In general we found the Recitals in the Proposed License Agreement to be one-sided in NCTD’s favor, gratuitous and revisionist history. We hope the same or similar recitals are not repeated in any MOU.
Some members of the City Council voted to accept the February 28, 2022 Proposed License Agreement out of expressed concern that the City and CCC would lose the STB action. Since the NCTD apparently is determined to go forward with that action anyway and the CCC has stated its position clearly, that should not be a consideration this time around and we would expect that any proposed MOU would be much more reasonable and even handed than the so-called Proposed License Agreement.
We also take this opportunity to add (since the subject is frequently addressed by NCTD) that as lawyers we find the 2002 STB case addressing track placement that found preemption against the City of Encinitas inapplicable to the Bluffs. That case was decided solely under the ICCTA and did not involve safety issues, and so the Courts and the STB did not address the Federal Railroad Safety Act. The FRSA applies to this case with respect to preemption analysis and permits state regulation. We think the NCTD will lose its “complete preemption” argument, whether it be at the STB level or at the 9th Circuit Court of Appeals.
Obviously, we cannot anticipate all of the provisions in the proposed MOU. As two of the City’s residents who happen to be lawyers, we would like to be very supportive of the prospective MOU. We thought it might be helpful for us to outline some of the specific provisions we found objectionable about the proposed License Agreement. We reiterate that this agreement that will bind the City must be negotiated on behalf of the City by lawyers who understand the long term consequences of such agreements. We have a concern that the adverse effects of the rejected Proposed License Agreement were not fully appreciated. We recommend that the City retain counsel for that purpose.
Thank you sincerely for your attention.
Laura Schaefer Shirli Weiss
Boyce & Schaefer 551 Stratford Ct.
934 23rd St. Del Mar, CA. 92014
San Diego, CA 92102 858.449.4850
619-232-3320
July 11, 2022 Closed Session III Items A and B