Loading...
HomeMy WebLinkAbout2020-12-31; Coastal Rail Trail - Maintenance/Regulatory Responsibilities and Recent Actions Related; Barberio, GaryTo the members of the: C;!TYCOUNCIL Date /;;/3i/:;;...,cA _!_ cc ✓ CM_~_ACM ✓ocM(3)~ Council Memorandum Dec. 31, 2020 To: From: Honorable Mayor Hall and Members of the City Council Gary Barberio, Deputy City Manager, Community Services Kyle Lancaster, Parks & Recreation Dire~ Via: Geoff Patnoe, Assistant City Manager (g . {cityof Carlsbad Memo ID# 2020276 Re: Coastal Rail Trail -Maintenance/Regulatory Responsibilities and Recent Actions Related to the "Fairy Village" This memorandum is being provided to City Council in response to complaints received by the City Manager's Office related to actions and oversight by staff of the city's Coastal Rail Trail (CRT). This memorandum provides information related to the city's Coastal Rail Trail (CRT), city's maintenance and regulatory responsibilities for the trail, including the adjacent landscaped areas, and recent actions regarding murals being painted on a wall at the back of the landscaped planter and various items being placed in the landscaping and being hung from the trees, collectively referred to as the "Fairy Village". This memorandum also includes information on how anyone interested in formally pursing the approval and installation of a Fairy Village along the CRT or on other city/public property could do so through the process outlined in the city's Art in Public Places Program. Background The CRT, Phase 1/Reach 2 is located along the east side of the North County Transit District (NCTD) railroad tracks, from Oak Avenue to Tamarack Avenue. On May 6, 2004, NCTD approved an easement for the portion of the CRT that would be constructed and operated on land controlled by NCTD. On Jan. 18, 2005, the City Council received a staff report and adopted Resolutions (1) accepting bids and awarding a contract for construction of the CRT Phase 1, and (2) approving the easement for the CRT. The Jan. 18, 2005, staff report states in part: ... The easement allows the city to plan, construct, maintain and operate the rail trail within the easement...Execution of this easement places the responsibility of all costs, construction and maintenance on the city. The easement language recognizes the recreational aspects of the allowed trail use and ensures that the easement is not designated a park or recreation area ... (emphasis added) Community Services Branch Parks & Recreation Department 799 Pine Avenue, Suite 200 I Carlsbad, CA 92008 I 760-434-2826 t City Council Memo -Coastal Rail Trail -Maintenance/Regulatory Reponsibilities Dec. 31, 2020 Page 2 The Carlsbad Coastal Rail Trail will provide a multi-modal, non-motorized trail for transportation and incidental recreational activities such as: • Bicyclists • Pedestrians • Roller Bladers • Skate Boarder(s) • Other Non-Motorized Transportation Modes , The 'Easement for Rail Trail' states in part: Recitals [D.] NCTD and city have agreed that city may plan, construct, maintain and operate the Rail Trail within the easement pursuant to the terms and conditions set forth in this Agreement. Now, therefore, in consideration of the mutual covenants and conditions contained herein, the parties hereto agree as follows: [1.J Grant of Easement NCTD hereby agrees to grant the city an easement (the 'Easement') within the Right-of- Way for the purposes of and pursuant to conditions set forth in this Agreement. [3.] Limitation on Easement Easement is subject to the following: a. All pre-existing rights, interests and easements affecting the use of the Right of Way, and i. City acknowledges the NCTD's Right of Way is an easement for railroad purposes granted to NCTD's predecessor-in-interest pursuant to the General Right-of-Way Act of 1875. The United States is the owner of the underlying fee interest in the Right-of-Way. The Right-of-Way is subject to the right of reversion in the event the Easement is not utilized for appropriate purposes designated by acts of Congress. The Congress permits the "interim" use of such rights of way by Federal Law or judicial decision and upon such an adverse changed this license would terminate. (emphasis added) [6.] Development Standards and Approvals The development of improvements on the Easement as a Rail Trail ("Improvements") shall be planned and constructed by city at city's expenses subject to the following development standards: 6.5. Plans for the development of the Improvements, including all vertical barriers, lighting and signage shall be subject to approval by NCTD prior to any construction, which approval shall not be unreasonably withheld or delayed. City Council Memo -Coastal Rail Trail -Maintenance/Regulatory Reponsibilities Dec.31,2020 Page 3 [7.] Construction Matters 7. 7. The requirements of this Agreement related to the construction of the Improvements shall be specifically identified in any project specifications and bidding documents prepared by city for the construction of all or any part of Improvements and shall be subject to approval by NCTD. 7.8. Any contractor or subcontractor performing work on, or in connection with the city's use of or entry onto the Easement pursuant to this Agreement, shall be conclusively deemed to be the servant an agent of the city, acting on behalf and within the scope of such contractor's or subcontractor's employment for the city and subject to the provisions of this Agreement. 7.9. Any and all construction work performed or caused to be performed by city on the Easement shall be performed in accordance with any and all applicable Federal, State, and local agency laws, rules and regulations, including, but not limited to, such rules and regulations as are established by NCTD. [8.J Maintenance 8.1. NCTD shall have no obligation whatsoever to maintain or repair the Easement or the Improvements. City shall be solely responsible for maintenance and repair of all · Improvements constructed on the Easement and all costs in connection therewith, including, but not limited to, the repair, resurfacing, and resealing of the pedestrian path, repair of the fencing and the watering and maintenance of the landscaping, as necessary. City shall perform all maintenance and clean-up of the Easement and the Improvements thereon as necessary to keep both in good order and a safe condition and in accordance with all applicable Federal, State and local laws and regulations including NCTD Rules and Regulations. 8.3. City shall provide security on the Easement as required and shall utilize its uniformed peace officers to enforce applicable rules and regulations on the Easement. {9.} Indemnity 9.1. In addition to and without limitation on any other provision of this Agreement, CITY hereby agrees to investigate, defend, indemnify and hold NCTD, its members, officers, agents and employees, and easement holder Burlington Northern and Santa Fe Railroad and Amtrak, harmless from any and all loss, damage, liability, claims, demands, detriments, costs, charges and expenses (including reasonable attorneys' fees) and causes of action of whatever character which may be incurred, sustained or be subiect to by any indemnified party on account of loss of or damage to or destruction of property and loss of use thereof, or for bodily iniury to or death of any persons (including, but not limited to employees, subcontractors, easement holders, agents, servants, licensees, franchisees, and invitees of NCTD or the City, arising out of or in any way related, in whole or in part, to (i) the condition of the Easement, (ii) the use of the Easement by the CITY, including, but not limited to, the authorized or City Council Memo -Coastal Rail Trail -Maintenance/Regulatory Reponsibilities Dec. 31, 2020 Page 4 unauthorized use of the Improvements by any person, excepting trespassers outside the Easement, or (iii) the use of the Easement by the general public for cycling, jogging, walking, and all other activities, except to the extent that such claims or expenses arise from NCTD's, BNSF's or Amtrak's negligence, combined negligence, or the negligence of their officers, employees, agents, servants, contractors, licensees, franchisees or other easement holders, or lessees. CITY shall have the right to select outside counsel (subject to approval of NCTD which may not be unreasonably withheld) to defend NCTD and all indemnified parties pursuant to this Paragraph. (emphasis added) In March 2005, the cities of Oceanside, Carlsbad, Encinitas and Solana Beach commissioned a Trail Management Plan for the planned Coastal Rail Trail Project within each of their jurisdictional borders. The Coastal Rail Trail, Trail Management Plan states in part: {1.0] Introduction The Coastal Rail Trail project is a bicycle/pedestrian pathway connecting the cities of Oceanside, Carlsbad, Encinitas and Solana Beach. Eventually, this pathway will be extended to Downtown San Diego. This project is being designed and built through the cooperative efforts of the four cities though which it passes ... The Plan identifies the maintenance and operations tasks to be completed by the City of Carlsbad to ensure integrity of the Coastal Rail Trail throughout its length. The overall goal of the Plan is to ensure that the trail is operated and maintained in a consistent, efficient and safe manner for trail users without hindering current and future rail operations throughout the trail corridor. {2.0] Trail Management The Trail is a shared-use path with segments located on or directly adjacent to an active railroad corridor. This type of trail must be managed, operated, and maintained in a way so as to (a) protect the adjacent railroad infrastructure, and operators, (b) minimize costs to the railroad and to the trail managing entity, and (c) maximize the enjoyment and safety of the public. The Management Plan addresses unique considerations that must come into play in operating and managing a rail-with-trail system. Each city is responsible for maintenance of the trail corridor within their city limits. This Plan identifies a management strategy that includes maintenance and operating standards that may be exceeded by existing and future local practices. This plan identifies procedures and responsibilities along with recommended best practices. The City of Carlsbad has also developed standard operating procedures on the maintenance of the Coastal Rail Trail via the specifications for Parks Maintenance Services, Work Categories A - Overall and F -Undeveloped Park Sites, Urban Forests and Trails Maintenance. These City Council Memo -Coastal Rail Trail -Maintenance/Regulatory Reponsibilities Dec. 31, 2020 Page 5 specifications were included in the agreement for Parks Maintenance Services, which was awarded to Park West Landscape Maintenance by the City Council, on June 13, 2017. The Undeveloped Park Sites, Urban Forests and Trails Maintenance specifications state in part: Work Category A, Overall -Applicable to Each Work Category, Part 1, General Specifications {1.00] General Requirements 1.01 The premises shall be maintained with a crisp, clean appearance and all work shall be performed in a professional, workmanlike manner using quality equipment and materials. 1.04 The premises shall be maintained to the highest of standards at no Jess than the minimum frequencies set forth herein. 1.11 Contractor shall document and report to city all observations of: graffiti and other vandalism; illegal activities; transient camps; missing or damaged equipment or signs; hazards or potential hazards, including without limitation, sidewalk hazards caused by trees or other means, within 2 hours of observation. Work Category F, Undeveloped Park Sites, Urban Forests, and Trailheads/Planters, Part II, Technical Specifications {11.00} Litter, Leal and Debris Control -Trailheads/Planters 11.01 Remove al/ Jitter, paper, glass, trash, undesirable materials, silt and other accumulated debris as needed, but at minimum once daily, from all areas to be maintained. 11.08 Contractor shall remove all private signs advertising garage sales, real estate, etc. (excluding political/campaign signs during election seasons) as needed, but at minimum, once daily. The City of Carlsbad has also addressed trails operations and maintenance in the Trails Master Plan, which was adopted by the City Council on Aug. 27, 2019. The Carlsbad Trails Master Plan states in part: Chapter 7 -Trail Operations & Maintenance {7.1] Introduction Proper maintenance of the city wide trail system is important for providing a safe and productive use of the trails, protecting the financial investment each community has made in constructing the trails, andfor continued future recreational benefit to citizens and visitors of the city. {7.2] Overview of Trail Maintenance Responsibilities The following list represents the major trail maintenance tasks that will be per- formed by the city's park maintenance staff: City Council Memo -Coastal Rail Trail -Maintenance/Regulatory Reponsibilities Dec. 31, 2020 Page 6 • Coordination with Home Owners Association (HOA) trails maintenance personnel (for developer built trails) on maintenance issues during the period of transition from private trail use to public trail use. • Coordination with City Trail Volunteer Program Coordinator and trail volunteers who assist, in the maintenance duties of the Citywide trails. • Routine inspections. • Assistance in responding to maintenance for the trail system pertaining to those items raised by trail users and/or trail volunteers performing the routine trail inspections and maintenance duties. {7.3} Maintenance Schedules Trail system maintenance begins immediately following construction and is an on-going aspect of operations. Not only do maintenance activities keep the trails in good condition, they help ward off claims of negligence and illegitimate or undesirable uses. This section discusses typical maintenance schedules that will protect the city's trail system investment (see Table 7.1 "Trail Maintenance Activities and Frequencies"). Trail operations and management require daily tasks, whether it is a vandalized sign or an injured trail user, the city must be prepared to deal with all types of concerns. Maintenance Item Estimated Frequency Trash pick-up 3x per week Remove fallen trees As needed Pothole filling As needed - Bollard repair or replacement As needed Graffiti removal As needed Refill Dog waste bags Average 3x per week Pavement sweeping 4x per year Weed control 2x per year or as needed Tree pruning if encroachment on trail 2x per year or as needed Sign replacement/ repair As needed Fence repair and replacement As needed Clean drainage system lx per year and after storm Drinking fountain repair or maintenance As needed Bench repair or maintenance As needed Pavement sealing/repaving 3-5 years or as needed Unpav~d trail tread maintenance lx per year or as needed Kiosk repair and maintenance As needed Dog station replacement and repair As needed Trail edging repair or replacement As needed Table 7.1 Trail Maintenance Activities & Frequencies The city will adhere to the general maintenance schedule and will take appropriate immediate actions to address any condition deemed a safety hazard. Many of these City Council Memo -Coastal Rail Trail -Maintenance/Regulatory Reponsibilities Dec.31,2020 Page 7 maintenance items are dependent on the type and amount of landscaping and supporting infrastructure that is developed along the trail. Maintenance activities will be coordinated so as to minimize impacts to trail users and to maximize cost efficiencies through the use of trail volunteers. [7.6} Operations and Maintenance Plan Maintenance plans and policies are one of the primary ways to limit hazards and lawsuits, as well as ensure a trail system remains attractive and usable. Periodic inspec.tions, documentation of hazards and remedies, and maintenance activities should all be part of a well-rounded plan. Carlsbad Operations and Maintenance Plan {OMP) includes the following: • Contact information for trail managers, organizations, and/or volunteers responsible for maintaining the trail system. • Written inspection and maintenance policies that include tasks, timeframes and responsible parties. • Inspection forms that document date, time, person/group, trail condition, hazards and other pertinent information. • Trail maintenance schedule that identifies timeframes for regularly-scheduled maintenance activities such as pruning, trash pick-up and fixing potholes or erosion. • List of constructed features, such as bridges, culverts and fences that require regular inspection and maintenance. [7. 7] Safety and Enforcement To minimize liability, it is critical to adhere to established standards in trail design, signage, and maintenance. California State Statute 831.4 provides for substantial immunity to public agencies that construct and operate trails in accordance with widely accepted standards or guidelines, such as the California State Parks Trail Design and Maintenance Guidelines. Measures listed to minimize liability include: 1 • Post trail regulations and provide enforcement; • Post warning signs for known hazards that are not easily identified; • Keep accurate routine maintenance records; • Inspect the trail regularly for hazards; • Evaluate and address hazards and maintenance problems reported by trail users with appropriate measures as soon as possible; • Ensure that there are adequate emergency access points to the trail along its entire corridor. Enforcement of Rules and Regulations. Rules and regulations are useful to deter unlawful and undesirable activity on trails systems. While the majority of visitors who read rules and regulations will abide by them, enforcement may be necessary to promote the safety and enjoyment of all users. In most cases, professional law enforcement officers are responsible for issuing citations City Council Memo -Coastal Rail Trail -Maintenance/Regulatory Reponsibilities Dec. 31, 2020 Page 8 for legal violations such as littering, after hours use and unauthorized vehicle use. While other involved in monitoring cannot enforce laws, they can aid law enforcement officers by noting and calling in criminal activity and providing emergency relief until professionals arrive. Others should be trained to understand the extent of their monitoring capabilities and how to contact the proper authorities. Additionally, Carlsbad Municipal Code Chapter 11.32, Parks and Beaches, states in part: 11.32.-10 Parks -Scope For the purpose of this chapter, parks shall include all dedicated parks, parks established by adverse uses, planted areas open to the general public, parks on leased property, trails open to the general public, planted parkways, triangles, and traffic circles maintained by the city, except parkway strips between curb and sidewalk or behind curb, along the several streets and highways of the city. 11.32.030 Unlawful Acts It is unlawful for any person to do any of the following mentioned acts in or upon any park or beach within the city: 3. To commit any act of vandalism, including the damaging or destroying of trees or their leaves, limbs or branches, bushes, shrubbery, equipment, sighs, buildings or rooms, or to tear down or to deface the same, or to pick any crops, fruit or flowers in any portion of such public park or beach; 8. To enter any portion of a public park or beach in the city, or buildings or portions thereof in such public parks and beaches which are posted with signs stating "no entry," "keep out," "no trespassing," "closed area" or other prohibition of entry; . 12. To construct or erect on any portion of a public park or beach in the city any building, fence or structure of whatever kind, whether permanent or temporary in character, or run, or string or install any public service utility into, upon or across such lands, except on special written permit of the city manager or designee as to temporary items and of the city council as to permanent items. Each day such condition exists shall constitute a new and separate offense. (emphasis added) Additionally, Carlsbad Municipal Code Chapter 6.16, Public Nuisances and Property Maintenance, states in part: 6.16.015 Specific Conditions Constituting a Public Nuisance. The existence of any of the following conditions on any property is a public nuisance: A. Conditions related to property maintenance, as set forth in Article Ill of this chapter. City Council Memo -Coastal Rail Trail -Maintenance/Regulatory Reponsibilities Dec. 31, 2020 Page 9 B. Any obstruction to the free flow of drainage water in a natural drainage course, such as streams, rivers, and creeks. C. Land that is in a state to cause or contribute to erosion, subsidence, or surface water drainage impacting adjacent public properties. D. Buildings which are abandoned, partially destroyed, or remain unreasonably in a state of partial construction with no observable work performed for a period of six months or longer. E. Buildings, walls, and other structures which have been damaged by fire, decay, or otherwise to such an extent they cannot be repaired so as to conform to the requirements of the building code in effect in this city. Buildings which have been partially destroyed or demolished by these causes and which remain in such a state for a period of six months or longer shall also be a violation of this subsection. F. The failure to close, by means acceptable to the building official, all doorways, windows, and other openings into vacant structures. G. Any condition, instrument, or machine on real property that is unsafe and unprotected and consequently dangerous to minors by reason of their inability to appreciate its peril, and which may be reasonably expected to attract minors to the property and thus risk injury to them by their playing with, in, or on it (i.e., attractive nuisances). H. Graffiti on anv public or privately owned structures within the citv. For purposes of this chapter, "graffiti" means anv form of painting, writing, inscription, or carving on anv surface, regardless of the content or the nature of the material used in the commission of the act, which was not authorized in advance bv the owner of the surface. (emphasis added) I. All other conditions deemed to be a "nuisance" or "public nuisance" as defined throughout this code. J. Property upon which any violation of this code or any applicable state, county, or local law exists, or property which is used in violation of this code or any applicable state, county, or local law. (emphasis added) Discussion Chronology of Recent Actions Below is a chronology of recent actions regarding the "Fairy Village". On Nov. 12, 2020, a resident called the Parks Maintenance Office about a person painting a mural on a wall at the back of a landscaped planter area along the Coastal Rail Trail (CRT), apparently without city or NCTD authorization. The call was forwarded to a Parks Inspector for responsive action. The Parks Inspector contacted the Police Department and then drove to the CRT. A Police Officer arrived at the CRT and approached the individual believed to be the mural painter, at th,e Chestnut Avenue trail head, as she was exiting the trail. The Parks Inspector City Council Memo -Coastal Rail Trail -Maintenance/Regulatory Reponsibilities Dec. 31, 2020 Page 10 advised the individual that she would need authorization from the city to paint a mural on the subject wall. The Police Officer further advised her that such unauthorized painting is considered vandalism. The Police Officer instructed the individual to discontinue painting of the wall. On Nov. 17, 2020, Parks Maintenance staff received a service request from a trail patron, concerned about the referenced painting of the wall (and trees), as well as the proliferation of various items placed in an adjacent landscaped planter area (and from trees) along the CRT - i.e., toys, houses, artificial flowers, vases, candles, photos, etc. The Parks Inspector contacted the Police Department to obtain a copy of the wall painting incident report, so he could connect with the previously detained individual. The Parks Inspector wanted to discuss the unauthorized placement of the described items in the landscaped planter (and from the trees) in the vicinity of the painted wall. Presuming the detained individual was responsible for organizing the placement of these items, he planned to request that she abate the murals and remove the items, until such time as authorizations for them were obtained from the city and NCTD. On Nov. 23, 2020, Risk Management staff was contacted by Police Records staff. It was explained that the Parks Inspector had requested an incident report regarding the unauthorized painting of the wall in order to contact the detained individual about her knowledge of the described items. Police Records staff was not comfortable releasing the incident report, as Police records are confidential in nature, and instead asked if the city's Risk Management staff would contact the individual, as a courtesy. On Nov. 24, 2020, Risk Management staff received the incident report, but was unable to locate a phone number for the detained individual. Risk Management staff next drafted a letter to the individual, requesting a call to discuss the matter. After receiving the letter, the individual left a voice message for Risk Management staff. Risk Management staff subsequently made two additional calls to the individual but did not receive responses from her. On Dec. 1, 2020, Parks Maintenance staff updated the trail patron on the status of his service request regarding the unauthorized painting of the wall and placement of the items. Periodically, following unfortunate incidents such as vehicle, bicycle or pedestrian accidents, staff has noted the unauthorized placement of informal memorials (i.e., flowers, vases, candles, photos, etc.) in landscaped planters of public roadway medians and parkways. In those cases, staff has not always known the identity of the person(s) placing the items in the planters. As a practice, Parks Maintenance staff has typically not removed the items from the planters of public roadway medians or parkways until approximately 30 days after they were first noted. Applying a like practice, staff allotted a period of approximately 30 days for the items to remain in the landscaped planter along the CRT. City Council Memo -Coastal Rail Trail -Maintenance/Regulatory Reponsibilities Dec. 31, 2020 Page 11 On Dec. 21, 2020, after not receiving any additional return calls from the individual, Parks Maintenance staff removed the described items from the landscaped planter along the CRT. All of the items have been stored at the Parks Maintenance yard, for return to the individual or others who may claim them. Thus far, four of the items have been claimed by individuals and have been returned. Staff was prepared to paint the wall an earth-tone color during the week of Dec. 21, 2020, but has refrained from doing so, pending direction from the City Manager's Office. Conclusions Neither the murals painted on the wall nor the described items placed in the landscaped planters and hung from the trees along the CRT meet the criteria for authorized public art on city/public property. The painters of the murals and the individuals who placed items did not follow the city's procedures and process for the development of either temporary or permanent public art and their placement was not approved or authorized in any way by the city. Pursuant to the Easement for the Rail Trail and CMC Sections 11.32.030.12 and 6.16.015, the unauthorized painting of a mural and the unauthorized placement of items along the CRT must be considered unlawful acts and a public nuisance. In these instances, it is the city's normal practice to remove all such unauthorized placements within a timely manner. The city does not and cannot discriminate regarding such removals, regardless of the content, quality, quantity, purpose, intent, or the nature of the material. If the city were to allow an unauthorized placement to remain, the city would have to allow all unauthorized placements to remain. Should the mural artist or any other individual(s) be interested in formally pursuing the approval and installation of a Fairy Village, the Art in Public Places Program, adopted by the City Council in March of 2015, provides the guidance and direction to receive city authorization for public art. These Community Art Projects may be initiated by a request from the City Council or the City Manager's Office, city departments or commissions, community members or groups or individual artists. Requests may include proposals for permanently placed artworks or temporary exhibitions or projects. Requests will be reviewed by the city's Cultural Arts Manager and forwarded to the Public Art Advisory Committee and the Carlsbad Arts Commission. If approved, the recommendation will go to the City Council as a request for appropriation. In most cases, these projects will be listed in, and submitted as part of, the annual budget process. Funding for Community Art Projects may come from individuals, community organizations or other city departments. The City Council may also choose to fund public art projects from the General Fund, special projects fund or other sources. City Council Memo -Coastal Rail Trail -Maintenance/Regulatory Reponsibilities Dec. 31, 2020 Page 12 All public art projects in the City of Carlsbad require City Council approval at three stages. These stages are: A. Appropriation of funds; B. Approval of contracts (both individual artists/artwork and integrated Capital Improvement Projects which exceed the City Manager's authority); and, C. Final approval of the final design concepts. This approval is presented in the form of a City Council agenda item, with an appropriate staff report prepared by the Cultural Arts Office staff. cc: Scott Chadwick, City Manager Celia Brewer, City Attorney Neil Gallucci, Police Chief Mickey Williams, Assistant Police Chief Pete Pasqual, Police Captain Matt Magro, Police Captain Allegra Frost, Deputy City Attorney Kristina Ray, Communication & Engagement Director Suzanne Smithson, Library & Cultural Arts Director Richard Schultz, Cultural Arts Manager Tim Selke, Parks Services Manager