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HomeMy WebLinkAboutCC Resolution 9601 (Northwestern Pacific Railroad Easements)CITY COUNCIL OF THE CITY OF SAN RAFAEL (RE: ANDERSEN DRIVE EXTENSION) RESOLUTION NO. 960.1 A RESOLUTION APPROVING AMENDMENT TO SETTLEMENT AGREEMENT SETTLING LITIGATION BETWEEN THE CITY OF SAN RAFAEL, SAN RAFAEL REDEVELOPMENT AGENCY, COUNTY OF MARIN, MARIN COUNTY TRANSIT DISTRICT AND GOLDEN GATE BRIDGE DISTRICT AND PROVIDING FOR EASEMENTS RELATED TO THE FORMER NORTHWESTERN PACIFIC RAILROAD MAINLINE RIGHT-OF-WAY IN CENTRAL SAN RAFAEL FINDINGS AND PURPOSES: The City Council of the City of San Rafael, Marin County, California, does hereby declare, find and determine that: WHEREAS, the City of San Rafael ("City") the San Rafael Redevelopment Agency ("Agency"), the County of Marin ("County"), the Marin County Transit District ("Transit District") and the Golden Gate Bridge, Highway and Transportation District ("Bridge District") engaged in litigation involving the City and Agency's claims to rights to an easement over the mainline right-of-way of the former Northwestern Pacific Railroad ("NWP") for the construction of the extension of Andersen Drive in San Rafael and involving the Bridge District, County and Transit District's claims to the right to use the former NWP mainline right-of-way along a portion of Tamalpais Street between Mission and Fourth Streets in San Rafael for transportation purposes; WHEREAS, an agreement to settle the above-mentioned litigation (the "Settlement Agreement") was previously approved and executed by the City, Agency, the County, the Transit District and the Bridge District; WHEREAS, the parties to the Settlement Agreement wish to Amend the agreement to deal with issues raised in the Public Utilities Commission process for approval of the crossing of Andersen Drive and the former NWP mainline, and, to that end, the staff has presented a proposed Amendment to Settlement Agreement; WHEREAS, execution and implementation of the Amendment to Settlement Agreement will benefit the City and the Agency and assist in implementation of the Redevelopment Plan for the Central San Rafael Redevelopment Project by facilitating PUC approval of the Andersen Drive crossing of the NWP mainline. 1410FK.P50 04/30/96 1 THEREFORE, City Council of the City of San Rafael resolves as follows: 1. The City Council hereby approves of the Amendment to Settlement Agreement among the City, the San Rafael Redevelopment Agency, the County of Marin, the Marin County Transit District and the Golden Gate Bridge, Highway and Transportation District submitted to the City Council in connection with consideration'of this resolution and hereby authorizes the City Manager to execute the Amendment to Settlement Agreement on behalf of the City, subject to such minor changes which the City Manager or counsel to the City deem necessary or appropriate. 2. The Acting City Manager or her designees are authorized to take such actions as are contemplated by or necessary to implement the Amendment to Settlement Agreement. I HEREBY CERTIFY that the foregoing Resolution was duly and regularly adopted at a regular meeting of the City Council of the City of San Rafael on May 6, 1996. AYES: COUNCILMEMBERS: Cohen, Heller, Phillips & Mayor Boro NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None Jean M. Leoncin , City Clerk 1410FK.P50 04/30/96 2 AMENDMENT TO SETTLEMENT AGREEMENT This Amendment ("Amendment") is entered into as of this 6th day of MAY , 1996 and is an amendment to the Settlement Agreement (the "Settlement Agreement") entered into as of July 17, 1995 by and among the City of San Rafael ("City"), City Council of the City of San Rafael ("Council"), the San Rafael Redevelopment Agency ("Agency"), the County of Marin ("County"), the Golden Gate Bridge, Highway and Transportation District ("District") and the Marin County Transit District ("MCTD") and is made with reference to the following: A. Pursuant to the Settlement Agreement, the District and the City entered into the Andersen Drive Easement Agreement (as defined in the Settlement Agreement) providing to the City an easement for street purposes for the Andersen Drive Extension (as defined in the Settlement Agreement) over a portion of the Mainline ROW (as defined in the Settlement Agreement). The Settlement Agreement also requires the City to apply to the Public Utilities Commission ("PUC") for permission for the street crossing of the Mainline ROW contemplated by the Andersen Drive Easement Agreement. B. In connection with the City's application to the PUC, the parties desire to make certain changes in the Settlement Agreement in order to satisfy the concerns of the PUC regarding current and future safety of the crossing and the concerns of all parties to the Settlement Agreement that the construction of Andersen Drive not preclude future use of the Mainline ROW for railroad operations or rail transit purposes and that the construction of Andersen Drive be completed so as to relieve traffic congestion in Central San Rafael. C. By entering into the Settlement Agreement and this Amendment, the parties disclaim any intent to reduce the rights or ability of County, District or MCTD, or their respective successors or assigns, to operate rail service over the Mainline ROW, including the area which is defined as the "Servient Tenement" in the Andersen Drive Easement. The parties agree that the Settlement Agreement and this Amendment shall not constitute an abandonment of the Mainline ROW. D. It is also the desire of the parties to provide a definitive means of financing the cost, estimated to be between $5 million and $20 million, of the grade separation between Andersen Drive and the Mainline ROW that will be necessary if the Mainline ROW is used for rail transit service and to provide for 1410FR.P50 05/16/96 1 the possibility of rail transit service in an interim period during construction of the grade separation. The parties note that the environmental impact report for the Andersen Drive Extension described the potential need for such a grade separation. THEREFORE, the parties agree as follows: Section 1. Deletions. The following provisions of the Settlement Agreement are hereby deleted and shall have no further force and effect: second paragraph of Paragraph 3 of the Settlement Agreement and Paragraph 4 of the Settlement Agreement. The deleted sections are replaced with the provisions of Sections 2, 3, 4 and 5 of this Amendment. Section 2. Application to PUC. The City shall apply to the PUC for permission to cross the Mainline ROW at the location of the Andersen Drive Extension (the "Application"). The Application shall state the following: a. In the event the Mainline ROW is to be used for railroad operations or rail transit purposes, the parties will construct a grade separation between the Mainline ROW and the Andersen Drive Extension, unless an at -grade crossing is permitted by the PUC or an alternative design is agreed upon that does not require an at -grade crossing. b. During an interim period, not to exceed two years, while construction of the grade separation is occurring, the Mainline ROW may be used for railroad operations or rail transit purposes if the Andersen Drive Extension crossing of the Mainline ROW is closed for that interim period. C. However, in the event the Mainline ROW is to be used for railroad operations or rail transit purposes and the parties are unable to fully fund such a grade separation or can not agree to or complete other arrangements to permit both rail and vehicular traffic over the Andersen Drive Extension crossing, then the City will preclude vehicular crossing of the Mainline ROW at the intersection with the Andersen Drive Extension. d. Pending resumption of rail service, the tracks will remain in place, barriers will be placed on the Mainline ROW at either side of the Andersen Drive Extension to preclude a train from going across the crossing and appropriate signs will be placed on the Andersen Drive Extension in the vicinity of the 141OF11.1150 05/16/96 2 crossing indicating that the crossing is not currently active. These actions are expressly intended to permit development of the Andersen Drive Extension while preserving and not abandoning the Mainline ROW as a rail or transportation corridor. e. A maintenance or demonstration train may use the Mainline ROW and cross the Andersen Drive Extension on a non - regular basis, provided the PUC is first informed of the proposed crossing and approves the plan for the measures to be taken to protect safety in the course of that crossing. The parties shall jointly request that the PUC approve the application as described in this Section 2. If the PUC will not approve such an application, the parties shall cooperate in good faith to make such changes in the application as are reasonably necessary to obtain PUC approval. In no event, however, shall the parties make any changes to the application that would result in abandonment of the Mainline ROW as a rail or transportation corridor. For the purposes of the Settlement Agreement and this Amendment, the term "rail transit" shall include, but not be limited to, light rail, heavy rail or rail rapid transit. Section 3. Andersen Drive Extension/Mainline ROW Grade Separation. The County, the District and MCTD intend to use the Mainline ROW for mass transit uses either by themselves or in cooperation with others including, but not limited to, other entities or joint powers authorities which exist or may be created in the future. If the Mainline ROW is to be developed for railroad operations or rail transit, the parties will construct a grade separation at the intersection of the Andersen Drive Extension and the Mainline ROW. In seeking to develop the Mainline ROW for railroad operations or rail transit uses, the County, the District and MCTD as well as the City and Agency, and their respective successors and assigns, will cooperate and use good faith and diligent efforts to obtain state, federal or other funding for that grade separation as part of the funding of the project for development of the Mainline ROW for railroad operations or rail transit uses. The City and County hereby agree that should the District apply to the Marin County Congestion Management Agency ("CMA") for funding for said grade separation project, then the City shall, at the District's request: (a) designate said grade separation project as its highest priority project in its submission of its project listing to the CMA; and (b) join with the District and/or County in petitioning the CMA to designate said grade separation project as the County's highest priority project, for so long as is necessary to fully fund said project. 1410FR.Y50 05/16/96 3 By approving this Agreement, the City, Agency and County hereby agree that if efforts to obtain state, federal or other funding for such a grade separation are unsuccessful or fail to fully fund the separation, and if the County, the District and MCTD (or any of them) are still going forward with development of the Mainline ROW for rail transit use, then the parties shall use good faith and diligent efforts to finance the additional costs of a grade separation at the intersection of the Andersen Drive Extension and the Mainline ROW with bonds issued by the Agency and secured by a portion of the tax increment revenue payable to the Agency pursuant to Health & Safety Code Section 33670. The Agency, City and County agree to modify the existing Fiscal Agreement among them and the San Rafael High School District ("HSD"), San Rafael Elementary School District ("ESD") and Marin Community College District ("CCD") to provide for such financing and to use good faith and diligent efforts to obtain the assent of HSD, ESD and CCD to such modifications of the Fiscal Agreement. The parties anticipate that the portion of the tax increment available for payment of the bonds would be the portion in excess of the amounts necessary to pay the existing debts and obligations of the Agency as specified in the Fiscal Agreement, the amounts necessary to satisfy the Agency's housing obligations pursuant to Health & Safety Code Sections 33334.2, 33334.3, and 33334.6 and any amounts paid to or for the benefit of HSD, ESD and CCD in consideration for their assent to modification of the Fiscal Agreement. The parties agree to cooperate in the modification and relocation of any streets, sidewalks and utility facilities necessary for construction of the grade separation. The parties agree that they will take no actions to hamper or obstruct the construction or financing of the grade separation. Once a grade separation is constructed for the Andersen Drive Extension and Mainline ROW intersection, the City and District shall modify the Andersen Drive Easement accordingly to reasonably reflect the circumstances then existing. Section 4. Interim Crossinas and Other Alternatives. In the event that a grade separation at the intersection of the Andersen Drive Extension and the Mainline ROW is planned and the County, District, MCTD or their successors desire to resume railroad operations or commence rail transit service on the Mainline ROW prior to completion of construction of the grade separation, then the parties shall cooperate and make good faith and diligent efforts to provide for the temporary rerouting of vehicular traffic from the Andersen Drive Extension so as to 1410FR.P50 05/16/96 4 preclude vehicular crossing of the Mainline ROW at the intersection with the Andersen Drive Extension. Such rerouting of traffic shall continue for no more than two years without the consent of the City. The cost of providing for that rerouting shall be shared equitably among the parties, and the parties shall cooperate with each other in planning for the rerouting and in acquiring any property and constructing any improvements that may be necessary for such a rerouting of traffic. Prior to the completion of a grade separation, the City, County and Agency shall consider the potential for the interim rerouting of traffic provided for in this Section 4 in undertaking other projects. If there is a rerouting of traffic pursuant to this section and, despite the efforts of the parties, a grade separation at the intersection of the Andersen Drive Extension and the Mainline ROW is not completed within the two year period specified above in which the rerouting of traffic is permitted pursuant to this section, then the parties shall make good faith and diligent efforts to devise and implement a temporary or permanent plan to provide for continued use of the Mainline ROW for rail transit and to provide for traffic mitigation similar to that provided by the Andersen Drive Extension assuming a crossing of the Mainline ROW at the location specified in the Andersen Drive Easement. The parties acknowledge that the particular solution will depend on the facts and circumstances then existing; however, the types of solutions the parties may consider would include (but would not be limited to) a permanent change in the route of the Andersen Drive Extension, temporary extension of the interim closure period, design and/or safety improvements to the Andersen Drive Extension/Mainline ROW intersection sufficient to obtain PUC approval for an at -grade crossing, changes in design or location of the rail transit right-of-way, additional efforts to obtain outside funding or a combination of some or all of the above. However, in the event the Mainline ROW is to be used for railroad operations or rail transit purposes and the parties are unable to fully fund a grade separation or are unable to agree to or complete other arrangements to permit both rail and vehicular traffic over the Andersen Drive Extension crossing, notwithstanding any other provision of this Agreement, at the direction of the District and County, the City will preclude vehicular crossing of the Mainline ROW at the intersection with Andersen Drive Extension so long as there are railroad operations or rail transit service on the Mainline ROW for which the PUC requires a grade separation at the intersection of the Mainline ROW and the Andersen Drive Extension. 1410FR.1150 05/16/96 5 Section 5. Arbitration. If the parties cannot agree to an allocation of costs on an equitable basis or a determination of costs contemplated by Section 3 or Section 4 of this Amendment, the controversy will be settled by arbitration conducted in compliance with the provisions of the California Arbitration Act commencing with Section 1280 of the California Code of Civil Procedure. The arbitration shall be conducted by a panel of three (3) arbitrators. One arbitrator shall be appointed by the City, one arbitrator shall be appointed by the County and District jointly, and the third arbitrator, who shall be the chairperson of the panel, shall be appointed by the other two arbitrators. If the other two arbitrators are unable to agree upon an appointment, the third arbitrator shall be appointed by the Presiding Judge of the Superior Court in Marin County. The third arbitrator of the arbitration panel shall be an attorney licensed to practice within the courts of the State of California. No member of the panel shall be an officer, employee, agent, affiliate or attorney of any of the parties to this Agreement. The arbitration award may be judicially enforced, shall be final, binding, and conclusive upon the parties and shall not be subject to judicial review or vacation except on grounds set forth in Sections 1286.2 and 1286.6 of the Code of Civil Procedure. Section 6. Effect of Amendment. Except as modified by this Amendment, the Settlement Agreement remains in full force and effect. ATTEST: By:Jeanne M. Leoncini, City Clerk ATTEST: By:Jeanne M. Leoncini, Agency Secretary 1410FR.P50 05/16/96 CITY OF SAN RAFAEL By Suzanne V. Golt. Actino City Manager SAN RAFAEL REDEVELOPMENT AGENCY Jake- Ours., Acting Executive Director A Approved as to form. At ornery 306795.1 COUNTY MAR N By: / TE BRIDgE, HIGHWAY AND ATIO�NN DISTRICT r MARIN C UN Y T DISTRICT By: // v