Below are my comments about issues I see in the draft Progressive Rail contract. Each comment includes a reference to the source contract section(s).
I believe the concerns I have raised are relevant whether you want passenger rail service, a trail, or any combination thereof.
I have done my best to provide a fair interpretation of the contract. If I have made mistakes, let me know and I will endeavor to correct them.
P.S. "Railway" refers to Progressive Rail, the company bidding to take control of rail service in the county.
To send comments to the RTC about whether or not they should sign this contract, email email@example.com. You can address your comments to Deputy Director Luis Mendez. Here is a sample email structure:
Potential significant impact to North Coast
§2.5.1 As written, Railway maintains the right to store 100 rail cars on the North Coast between Davenport and Laguna Rd within the Coast Dairies State Park, alongside the proposed rail trail. Although there is a 2-month time limit for specific cars, there is no overall limit, meaning that rail cars could be present at all times.
Click on these images to see full-size maps of where rail cars would be stored:
Likely prevents the option of quiet/efficient electric or light rail
After more research, I am less concerned about this impacting the electric option, because battery-powered trains can operate on this type of rail. I'm still concerned about the general prioritization of freight service over passenger rail, the rail trail, and other uses of the corridor.
§2.1, §2.4.1 Prioritizes freight service (including, but not limited to only providing an exclusive right for freight service). This virtually eliminates the chance that future passenger rail could be electric or light rail, which requires a different type of track.
Makes providing passenger rail by a 3rd party nearly impossible
§22.214.171.124 This deceptive section states that even when Railway interests don't take priority over another third-party with a contract to use the corridor, that third-party must still not materially interfere with Railway interests
§126.96.36.199 This section ambiguously defined level of service
§188.8.131.52 The car-mile calculation of proportionate share does not take into consideration frequency of operation. A third party operator with once per week service could be compelled to pay the same fee as an operator with multiple daily trips.
§184.108.40.206 allowing the Railway to determine actual costs is inappropriate as it grants them a biased power to charge a licensee additional amounts
Significant impacts on neighborhoods
§5.2.2 This section absolves the railway of any obligation to correct graffiti. Why? This is an almost certain problem that will occur, and it should be their responsibility to prevent and correct this on rail property.
§6.3 indicates that facilities will be built on the west side of Santa Cruz for train maintenance (just west of Swift by Kelly's Bakery). This removes any ambiguity that the Railway intends to run freight through the west side of Santa Cruz, and furthermore intends to add significant industrial facilities on the west side of Santa Cruz (that would not likely be subject to city planning laws) for maintenance operations. This could have significant noise, visual, odor and other impacts.
§6.3 This section also implies additional facilities will be built, with no commission oversight if Railway claims the absence of the facility would materially interfere with freight service.
§7.1.2 This gives the Railway the option to create "lay down" areas which they can use to temporarily store shipped materials that are being transferred to/from train. The storage areas would be adjacent to the tracks and could be located in neighborhoods, or anywhere else convenient for the shipper and Railway. It also provides a financial incentive to the RTC to lease additional space for this purpose.
Severely limits local control of the corridor for at least a decade
§2.3 this clause which is referenced throughout the contract significantly limits the SCCRTC's rights
§2.4.1 "failure to act" within 120 days is approval (problematic for slow-moving government body), and RTC commission may make requests, but has no actual authority over transportation service
§220.127.116.11 Railway can make changes that must be acted on within 60 days or they're deemed approved
§18.104.22.168 All other uses of rail are subordinate to Railway and can't "materially conflict with" Railway operations
§22.214.171.124 Cost sharing with other operators is poorly defined and could block out any other uses (e.g. light rail operator)
§2.4.10 Because of §126.96.36.199 and §188.8.131.52, this section gives the Railway undo and poorly defined power over the feasibility of special events.
Deceptively provides false assurances that the RTC can still do projects on the corridor like the rail trail
§3.1 This section describes all of the power that the RTC has to do projects like the rail trail. It sounds very good, and it's not till the end that the cause reminds that these projects must not materially interfere with Railway's rights and operations or freight service rights and obligations. The onerous way that this final text is written could block any of the described projects.
§6.1.1 This section deceptively implies that the RTC can adjust the railroad as needed for a project such as the rail trail. But the phrase "subject to Railway's rights under this agreement" and §6.1.2 apparently removes that flexibility.
Bypasses the outcome of the Unified Corridor Investment Study
§5.1 how can the RTC agree to make these payments before the unified corridor study has determined that this is our communities priority, or without a funding source?
§8.2.3 this creates a moderate conflict of interest since the commission would be required to pay $300,000 if the result of the UCS determines freight service should not be implemented between mile marker 0 and 7
§1.16 says study is complete when presented to RTC commission, not when board approves it. Aside from the fact that the study should be considered complete only after the commission accepts it, this starts the clock for §8.2.4 which creates unrealistic pressure on the RTC.
Restricts current access to rail corridor by community
§17 This section (and others) limit community access to the rail corridor in general. Current ad hoc trails on the west side and elsewhere would likely become off-limits until the rail trail in each section is completed. Since the agreement restricts how the RTC can develop the corridor, this could lead to long-term loss of access, since freight operations could limit the commission's ability to construct a trail due to section §3.1. In particular, the heavily used recreational sections of coastal trail north of Wilder Ranch that are on the right-of-way would be lose access.
Releases SCCRTC from liability which may be blinding RTC to this contract's failings
§2.8 This would normally be a good clause, because it releases the RTC from liability. But their desire to get out from the burden of liability could hypothetically cloud their judgment.
Insufficiently protects the RTC (and thus our community)
§5.2.1 failed payments to the commission under this section should also be secured by §5.2.7
§27.2 is important because it presumes the rtc and railway are on equal footing wrt legal expertise in drafting a rail service operation contract - this is not the case
This section shows that even with this rail operator, or community would continue to be directed by unnecessary proposition 116 requirements
§8.5 shows the ongoing concern the RTC has re prop 116 funds. The California Transportation Commission should be petitioned to permit a transportation-focused trail as an alternative to rail operation. It doesn't hurt to ask, It would probably be a successful request, and it would give us much greater local flexibility — unless the commission wants to be bound by the rail requirements.