AGREEMENT WITH THE SONOMA MARIN AREA RAIL TRANSIT
DISTRICT (SMART)
BACKGROUND: The City received approval from the California Public
Utilities Commission (CPUC) on September 20, 2016, through Decision
16-09-002, granting the City’s application for an at-grade bicycle and
pedestrian crossing of SMART’s rail line at Jennings Avenue. Since that
date, the City and SMART have been negotiating the terms and
conditions required to achieve SMART’s approval to proceed with
construction. In alignment with the City’s third request to the CPUC to
extend the authorization period for construction of the at-grade
crossing, SMART’s staff has insisted upon a license agreement to allow
the City to proceed with construction that includes very one-sided,
expansive language that would impose substantial liability on the City
related to SMART’s negligent acts. The language in the proposed
agreement requires the City to assume all operational costs associated
with the crossing and liability resulting from the location, design,
establishment or maintenance of the at-grade crossing even if resulting
solely from SMART’s negligence, except for liability ultimately
determined by the courts to be due to the gross negligence or willful
misconduct of SMART. Additionally, the License Agreement proposed
by SMART staff requires the City to pay the attorneys’ fees and costs
associated with defending SMART against any claims resulting from the
location, design, establishment or maintenance of the at-grade
crossing, even if the courts ultimately determine that the claims resulted
from SMART’s gross negligence or willful misconduct.
RECOMMENDATION: It is recommended by the City Manager’s Office,
Transportation and Public Works Department and the City Attorney’s
Office that the Council consider, by motion, taking one of the following
actions relating to the license agreement proposed by staff of SMART
for use and construction of the at-grade crossing of SMART’s
Right-of-Way at Milepost 54.96 in the City of Santa Rosa at Jennings
Avenue: 1) direct the City Manager to execute the version of the license
agreement proposed by SMART’s staff after the remaining Exhibits
have been provided by SMART in a form to be approved by the City
Attorney, and return the executed agreement to the SMART Board of
Directors for consideration and notify the CPUC; or 2) direct the City
Manager to execute a revised license agreement containing more
balanced liability and indemnity language after the remaining Exhibits
have been provided by SMART in a form to be approved by the City
Attorney, and return the executed agreement to the SMART Board of
Directors for consideration and notify the CPUC; or 3) reject the license