After Atherton City Council members said they couldn't accept some of Caltrain's terms, negotiations to get Caltrain to install shorter poles than it had planned as part of its project to electrify its train service have fallen apart.
Atherton council members, meeting in a special session on Tuesday morning, Feb. 27, said they couldn't accept Caltrain's conditions for changing its plans for poles along a 1,000-foot stretch of tracks running through the Lloyden Park neighborhood. They most objected to a clause calling on the town to indemnify Caltrain "from and against any claims, lawsuits, costs, or damages of any nature, including without limitation attorneys' fees, that may arise or be related to any decision, action, or work contemplated by or associated with this agreement."
Assistant City Attorney Jennifer Larson said the proposed clause is "incredibly broad" and applies to conduct "way beyond the control of the town."
"It's incredibly open ended," she said. "I really can't imagine in good faith signing something like that."
City Manager George Rodericks said that after the meeting, Caltrain officials refused to budge on the clause, so the negotiations ended.
In a statement, Caltrain spokeswoman Tasha Bartholomew said the project will continue as scheduled and designed.
The issue arose after a November council meeting at which the town was scheduled to approve an agreement allowing Caltrain to get the permits needed to start working in Atherton.
In response to a question, Caltrain representatives at the meeting said most of the poles placed in Atherton to carry electric wires would be in the center of the tracks and 30 to 35 feet tall. But in places where there's not room for center poles, some poles would be up to 45 feet tall.
That was news to town officials, who had written in a staff report that the poles would be 25 to 30 feet tall.
Residents of the Lloyden Park neighborhood then showed up in force at several council meetings, demanding the taller poles be replaced with shorter poles. They also sent letters to Caltrain asking for the changes.
The five 45-foot-tall poles in question cantilever over two sets of tracks. Residents asked instead for 10 35-foot-tall poles with crossbeams spanning only one set of tracks. The shorter poles would have been on both sides of the tracks, while the taller poles would all be on one side.
Council members supported the changes, but Caltrain pushed back. In a Feb. 6 letter Caltrain said it would only swap out the poles if the town agreed to a list of conditions by Feb. 28, including: paying $200,000, getting written consent of property owners whose trees will be affected by changed plans, and agreeing the town wouldn't support or be a part of any lawsuit filed against the electrification project.
On Feb. 21, council members rejected those conditions and asked a subcommittee of Mayor Cary Wiest and Councilman Rick DeGolia to negotiate with Caltrain. They scheduled a special meeting for Feb. 27 -- the day before Caltrain's deadline -- so the council could ratify the results of the negotiations.
Mr. Rodericks said, however, that Caltrain head Jim Hartnett said he felt it was "inappropriate to engage elected officials" in the negotiations. The two council members were instead included on all the emails exchanged about the issue.
On Feb. 26, Caltrain issued a new letter which took into consideration some of the town's concerns, but added the indemnification clause. Mr. Rodericks said Mr. Hartnett told him in an email that Caltrain's attorney had required the town approve the clause.
"We just cannot do that," said Councilman Bill Widmer. "Anybody in the town can launch a lawsuit against Caltrain and we wouldn't know anything about it. It really is an open-ended checkbook."
In fact, said Councilman Mike Lempres, a practicing attorney, the wording appeared to be broad enough that it would hold Atherton financially responsible even if someone from another community filed a lawsuit against Caltrain.
Councilwoman Elizabeth Lewis said that while she would support a modified agreement with Caltrain, she had some qualms.
She expressed concern that the residents whose properties would be most impacted by putting poles on both sides of the tracks, those who live on Jennings Lane, were not at the meeting. Ms. Lewis said she thinks the taller poles will not stand out. By doubling the number of poles, "you just multiply the eyesore," she said.
Paying the $200,000 to Caltrain could also be seen as unfair by residents of other parts of town, she said. "I just don't want any backlash," she said.
Ms. Bartholomew said Caltrain "appreciated the creative attempts, by all involved, to reach a solution. After thoughtful consideration, the Town of Atherton decided not to proceed with their pole lowering request and we respect their decision."
And what about the agreement between Caltrain and the town to allow the electrification project to start?
"We have not yet executed the comprehensive agreement but I will be this week,"said Mr. Rodericks.
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