HomeMy WebLinkAboutItem 8.1 Senate Bill 144 (2)~ .
CITY OF DUBLIN
AGENDA STATEMENT
City Council Meeting Date: April 22, 1991
SUBJECT:
EXHIBITS ATTACHED:
RECOMMENDATION:
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FINANCIAL STATEMENT:
Support of SB 144 Opposing Use of Public Funds
for Privately Developed Tollway Facilities.
(Report by Public Works Director Lee Thompson)
1) Copy of letter from Senator Bill Lockyer to
City Manager of San Ramon, including text of
Senate Bill 144.
2) Draft of City of San Ramon Resolution
3) Draft Resolution supporting SB 144.
4) Draft Resolution declaring nonsupport of SB 144.
Hear Staff presentation, deliberate, take action as
follows:
1) Defer decision to support or not support SB 144
until more information becomes available (Staff
recommendation) OR
2) Adopt resolution Exhibit 3 supporting SB 144
opposing use of public funds for privately
developed tollway facilities, OR
3) Adopt resolution Exhibit 4 not supporting SB 144.
The alternate actions outlined in the recommendation
section of this report would not have any direct cost
impact to the City.
DESCRIPTION: The State Legislature, in its session last year,
passed Assembly Bill 680, which al_1_owed private toll roads to be constructed
with public funds and the Department of Transportation to test the feasibility
of building privately funded transportation facilities by developing four
demonstration projects, a minimum of one being in the north State and one in
the south State.
One of these toll roads has been proposed for a corridor from Pleasanton,
through Livermore, and north to Vacaville (Mid-State Toll. Road). CalTrans
has entered into an agreement with a private consortium to utilize the State's
police powers to obtain rights-of-way, as well as to set up other procedural
matters to construct, maintain and operate the facility. The private
consortium is apparently pursuing some State and Federal monies as
contributions to help the viability of the project.
Senators Lockyer and Boatwright (as well as other legislators) feel that AB
680 was set up to al_low private funding only on these demonstration projects
and have introduced SB 144 to prohibit the use of public monies on these
private toll roads.
Senator Lockyer appeared at the March 27 Tri-Valley Transportation Commission
meeting to present his stand on this issue (see attached letter and Bill
text).
The City Councils of. Pleasanton and Livermore will be discussing this issue at
upcoming meetings, and San Ramon has already adopted a resolution in support
of SB 144 (Exhibit 2).
Some of the potential means for the consortium to obtain public funds would be
Measure B monies and CalTrans monies to be used for State Route 84 since the
proposed Mid-State Toll Road may eliminate the need for Route 84 (being in the
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ITEM NO.~ ~. COPIES TO• Deborah Acosta, City of Pleasanton
Lee Horner, City of Livermore
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same approximate location). The Measure B monies were to pay for
approximately $20 million of the Route 84 project through Livermore, leaving a
$25•million shortfall to complete the project.
At this point in time, Staff feels that taking a position on this matter is
premature without knowing whether Route 84 can be built with public financing
alone and whether the private toll road would be feasible without infusion
of public monies. The costs of the toll road are preliminary and could only
be refined after an environmental document is prepared to determine what
alignment is chosen and what environmental impacts need to be mitigated.
Inasmuch as the road would run through and impact Livermore and Pleasanton,
it would be prudent to see what position the City Councils of those two cities
take before Dublin's City Council takes a stand.
Staff, therefore, recommends that City Council receive Staff's presentation,
deliberate, and defer the decision to support or not support SB 144 until
additional information is available. If the City Council wishes to take a
position at this time, draft resolutions have been prepared for support or
nonsupport of SB 144.
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STATE CAPITOL
S~\CRAMENTO. CALIFORtiI~\
95R1~1
March 12, 1991
~
Herb Moniz,
City of San
2222 Camino
San Ramon,
Dear Herb:
SENATE
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hf_C;:~~vFL1
CALIFORNIA LEGISLATURE MAR 1~ ~991
City Manager
Ramon
Ramon
CA 94583
~;ITY ~~ ~'~°,, ~~.~~7~;1~i
We are writing to share with you our concerns about the
Midstate Toll Road. We oppose the use of public funds for this
project and we believe the contract signed by Caltrans is
ser.iously flawed. .
o The developer of the Midstate toll road is seeking local
funds even though the Legislature approved AB 680 (Baker)
with the understanding that only private funds would be
used.
Caltrans and the Developer are also lobbying Congress to
change federal law so they can use federal funds to build toll
roads, despite previous assurances by Caltrans Director Robert
Best that federal funds would not be used to build the toll road
(L.A. Times, September 15, 1990, page A27).
AB 680 states: "The Department of Transportation should be
permitted and encouraged to test the feasibility of building
privatelY funded transportation facilities by developing four
demonstration projects."
The Senate Transportation Committee analysis of AB 680 dated
6/27/89 states that AB 680 woulci "authorize private entities or
consortia to construct...transportation facilities usinq private
funds."
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Herb Moniz
March 12, 1991
Page 2
The Senate Floor Analysis of AB 680 dated 6/29/89 states
10this bill would allow the Department of Transportation to enter
into agreements with private entities to construct four trans-
portation demonstration facilities with brivate funds."
We believe it is inappropriate to use public funds for roads
that will only be used by the select few, especially when the
Legislature approved the bill with the understanding that only.
private funds would be used.
o There was no public review of the contract. The Legis-
lature's examination of the contract was'hampered by the-
fact that these~contracts were negotiated in secret, with
no public scrutiny. The Legislature was not given the
opportunity to review these contracts before they were
signed. This is highly unfortunate, given that the
contract contains many provisions that are seriously flawed
and unfair to the citizens of California:
1. Exclusive Development Rights. The contract grants the
developer a broad monopoly and requires Caltrans to assist the
developer in protecting this monopoly.
The contract creates a huge "franchise zone" and requires
Caltrans to use its "best efforts" to persuade state, regional,
and local government not to develop, construct, or operate a o
"Competitive Transportation Facility" within the franchise zone
during the franchise term (contract,.page 16-17).
The contract defines "Competitive Transportation Facility" to
exclude widening and improvements to a variety of roads and high-
ways that are not already scheduled in the 1990 State Transpor-
tation Improvement Plan (page 7 and page 17). Although the
contract lists some exceptions, several highways and routes would
be competitive transportation facilities under the contract, such
as highway 84, and parts of.routes 4 and 12 (page 7).
2. Claims aqainst local qovernments. Counties and cities
should be careful -- enactment of ordinances, regulations, or
zoning restrictions, or denial of permits, may result in lawsuits
against local governments:
o Caltrans is required to litigate to assist the developer
with permits in some circumstances (page 20).
o Caltrans is also required to "assist [the] Developer by
providing documentation and witnesses" in "defense of any
actions brought against Developer relating to the develop-
ment,, acquisition, design, construction, operation, and
maintenance of the project." (Page 50)
s • . ~ ~
Herb Moniz
March 12, 1991
Page 3
3. Claims aqainst the state.
"Developer shall be entitled to
[page 68-69] if:
The contract provides that the
seek compensation for losses"
o"The State legislature, the CTC, Caltrans, or any other
administrative agency or authority of the State enacts,
adopts promulgates, modifies, repeals, or changes any State
law, rule, initiative, referendum, constitutional provision
or regulation, which has the effect of...
(i) directing that the Project or any Facility or a portion
thereof be acquired, (ii) terminating, limiting, abro-
gating, or otherwise voiding the rights of Developer under
this Agreement or any Related Agreement, or (iii) regu-
lating or interfering with Developer's right to establish
and collect tolls;"
o"The voters of the State, b~
other ballot measure enact,
repeal, or change any State
has such effect;
o"Any court issues an order,
such effect.
~ initiative, referendum, or
adopt, promulgate, modify,
law, rule, or regulation" which
decree, or judgment" which has
The contract also provides that if any of its provisions do
not comply with AB 680, Caltrans may be liable for damages.
(Pages 61, 66, and 67-68).
4. Franchise term. AB 680 does not allow a lease term of
more than 35 years. The contract allows extension of the
facility lease agreement past 35 years in certain circumstances,
such as strikes and acts of God (page 9 and page 55). This
violates AB 680's 35 year maximum.
The project will be built in two phases. The term of lease
for the second phase probably violates AB 680's 35 year maximum
because it allows for a lease that expires more than 35 years
after transfer of the first phase of the project (page 19).
5. Toll collection. The Contract provides that Caltrans has
no authority to set or regulate tolls within the franchise area
(page 23), even though Caltrans Director Robert Best had
previously stated that the tolls would be regulated by the State
(L.A. Times, September 15, 1990, page A27).
6. Land condemnation. The contract provides that after
satisfying certain requirements, the Developer may request that
Caltrans condemn land for the toll road, and "[a]t Developer's
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Herb Moniz
March 12, 1991
Page 4
request, Caltrans shall...upon [seeking and] obtaining [a CTC]
resolution,...initiate property condemnation proceedings..."
(page 29) (emphasis added).
However, AB 680 provides that Caltrans "mav" exercise such
powers. Nothing in AB 680 requires Caltrans to condemn land,
raising concerns about the fairness of this contract provision.
7. Liability. Under the contract, Caltrans is liable for
hazardous substances discovered one year or more after the
expiration of the facility lease agreement if the Developer did
not know about such substances. Thi~ is true even if Caltrans
had equal lack of knowledge or reason to know.
8. Environmental impact. The environmental impact of the
project could be significant. The Developer and Caltrans were so
unsure about whether the contract complies with environmental
laws that they both disclaimed all contractual liability in the
event that the contract violated CEQA (page 62).
9. Labor. The contract provides that it is not a contract
for a public work within § 4101 of the Public Contract Code (page
85). Therefore the developer can engage in bid shopping and bid
peddling (page 54). '
The contract also allows the developer to use "sworn law
enforcement officers.from any...jurisdiction within the state"
for traffic enforcement. Therefore the developer could use
non-CHP officers (page 54).
The contract allows the use of private toll collectors,,and
therefore the Developer could use toll collectors who do not
belong to the California State ~nployees Association.
10. Airspace premises. The contract
"airspace premises" along the entire toll
99 years (page 33-34). It is not clear t:
plated by AB 680, which merely appears to
"airspace" to enable a toll road to cross
in its path.
allows for the lease of
road project for up to
hat this was contem-
authorize the lease of
state highways that are
The contract lets the developer rent "airspace premises" from
the state for $1 per year for the first 35 years, followed by
fair market lease rate for the remaining term of the lease (page
33-34). The contract also gives the developer the "right of
first refusal" to lease at "fair market rental rate!' all other
"airspace associated with any State highway or interstate within
the Franchise Zone or within three (3) miles of the project"
, (page 36).
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Herb Moniz
March 12, 1991
Page 5 ~
The contract also allows the toll road company to build
"airspace improvements" along the toll road on airspace leased to
it (i.e. gas stations, restaurants, shopping centers, and other
"income or revenue improvements") (page 4 and page 24). With
Caltrans approval, the toll road company can construct off ramps
to these "Airspace Improvements" and with a few safety-related
exceptions, Caltrans is not allowed to close off this access,
when the 35 year facility lease has expired (page 36).
We hope you will consider our concerns.
Sin~erely,
~~~ ,~ ~
DANIEL OATWRI T ~ BILL LOCKYER
State,Senator, 7th D strict State Senator, lOth District
=~Ef~JT B`r': H
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' Display 1991-1994 Bill Tsxt - =N~'OR~-TI01i
BILL t~T2~S8$Rs SB 144 ~
BILL ~T
]1I~NDED IN SEl[71'1'S M71RCA 13, 1991
INTRODUCBU SY BenAtcr Lockymr
(Prinaip~l cowuthor: S~t~ator Boatvrright)
(Coeuthor~~ 9ar~ator^ 7-1 vi~t~ D~da~~ Dill~,
Jahnstonl ]CNn~, MaCorCvodal~ P~tYi~^ RCb~rti. and
~atsan
(COauthort;_ A~~~mbly M~! natoq. C ~11
ChaCOn, Clut~, Ba~tin, spplr- FiAan! i~t Hu9he~-
Is4nb~ra, Xloha, and P~~a~
J~NII~RY 7~ 1991
pAa$ 1
At- ~-ot to am~nd Qoctio~ 143 ot tht StrNto and Hiqhways Cod~, rolatinQ to
traneportotion PaCilitios.
zaai8L7-TZVS cattNBBL~s DZGIRBT
88 144, as am~nd~d. Lockyor. 8tat• tr~-r~~portation ~aoiliti~~: private.
conatruction~ pub11C lunds..
Und~r eaiating laa, tbo D~partm~nt ot Tran~portation i^ authori~~d to enter
into •graam~nts with privat• •ntiti~^ for th~ Construction by, and 16AqQ to,
privat• •ntitio4 0! 4 tran~portation duao~atration projoate, includinq at
leeet ono in north~rn Calilornia- aad on~ in aouth~rn Califorr-ia. The
department io authorisod to leae• riqhts-ol-way i~, and airspaco ov~r or
under, et~tQ hiqhwayd, to qrant necs~s~ry •a~sYt-entf, and to ieeua.p~rmite or
oth4r authorizationa to snablo privat• •ntiti~i to construct traneportat~on
faoilitios euppl~ntal to exi~tinq state-own~d tran~portatidn facilities, and
to lease thoa• lacilitioa to ths privat• •ntities for up to 35 y~ara. The
ngr~~mante may contnin prvviaions authos'isitiq the priv~t• ~ntity to charga
tolla !or th~ us~ o! tho privat~ly constructod laciliti~s.
Thio bill would prohibit tAe utilicatton o! any public fundv ~ as
epecifieQ~ towazd the d~volopment or oonatruction o! •ny ouch
traneportation lacility for Which a toll is oharqed.
vot~s majority. 1-ppropriatione no. riscal aoarotiitt..~ no.
&tato-m~ndat~d Iocdl proqram: no.
`' • -~~]-9i 1?' ~r~F'f,~ r,.::~,~~.__ _ _ ___ --= - _
SENT E~r.ia - - • -- --- - --'
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PAG$ 2
Diapl~y 1991-194Z 8111 T~xt - INFO~WAT2oN
BILL NtTMBERt 88 I44
B=yi+ 28YT
TI~ PaOPLE OF T8S ST7~T8 O~ CALIS`QRNI71 Da ~Nl~ICT aS P'OISAW3 t
9ECTION 1. Section 143 ot th~ 6trNts anfl HiqhMaya Coda is ameaded to rends
143. (a) Ths d~partmrnt m~y •oliait propo~al• and snt~r into ~grQ~nte.
with privst~ •ntiti~s, or coneortia ther~ot, for tha conotzuction by~ end
leaae to, priv~lt• ~ntiti~s ot:lour public tr~n~portlltion dnmonatratian
pzojecte, at l~ast on~ oP which ahall bo in north~rn Calitornia an8 ona in
~outhorn California.
(b) Fcr the purpos~ o~ ltoilitatiaq thoa~ proj~at~, the aqr~nta xny
inalud~ provi~ions ~or the leeee oi ri~hts-of-way ir-, and air~p~co ovor or
under, ~eta~te hiqhwaye, for tha granting of n~c~~~ary •aaemerita, and for the
is~uanc~ of psrmita or other duthoris~tion• to onab2o tha privato ontity to
con~truct tran~portetion laciliti~• ^upplsm+ntel to sxietinq stdte-ownQd
trnneportation facilitioQ. Ficilitioo conotruct~d by a privata ~ntity
pursuant to thi~ ~ortion ahall, at all timoa~, ba ovmod by tho otato. . ThQ
aqreement ehall provide for the leaee of thoee facilitise to the ~rivate
entity for up to 35 yeara. In oonaidoration thorQfor, the ngroement eha12
provide !or complete revereioa ot the privdtely oon~tructed le.Cili.ty te thB
etate at the sxpiration oP th~ leaa• at no charp• tc th• etate.
(c) Th• d~partm~nt may ~Y~rci~~ any pow~r pos~~~~~d by it with r*ap~ct ta .
the development and conetruction oP Btste traneportation projecte to
lacilitate the development and oonotruotion of trnnaportation prcjeota
Durauant to thi^ s~ction. AqrQna~pnts !or maint~rtana• and polic~ ^~rvicoa
Qnt~rod.into purauant to this s~otion shall Drovid~ !or lull raimbureement for
aarvicos r~ndered by the department or oth~r 4t~to aqanoiQa. Tho doDattmant
may provid• s~rvic~~ fot which it ie reimbureed with reapect to preliminary
planning, envirOtlmental Certificntion,'and pr~liminary d~oiqn of tho
do,nonetration Drojecte.
(d) llqreemsnt^ ~nt~r~d into purquant to thi~ s~ction shall authoriz• tho
pr~vatp anti~y to itnpoae tolle for us• of a tacility conotruct~d by it, and
ahall require that over thQ tasm of th~ lsar• the to12 revonuoa bo applied to
peym~nt of tha privato •ntity's capital outlay costv for th• pro~oCt, tho
coats aaaociatod with operatione, toll colloction, administration of the
lacility, r~imburaement to th• atato !or th• coets o! maint~nnnco and polico
aervices, and a raa~onabl• r~turn on inv~atm~nt to thc ~rivato •ntity. The.
agr~oment ehall raquiro that aay •xc~ee toll r~v~nu• ~ith~r b• appliod to ar.y
indobtedn.s^ incurred by the privat• ontity with rQapcct to th• proj~ct or ~e
paid into th~ State Hiqhway l-acouqt, or both. 6ubaequQnt to ~xp:ratioa o! :~,e
loase of d fecility to a privRt• •ntity, tho departmont miy ~ontinue to charqo
tclla fvr uae o! th• laallity.
(o) Th• plana and opooilioation~ ter •ach projoot con~truatsd pursuant to
thia oaction •h~ll comply with th• Cepertment'^ otatld~rds :or stat•
:~Et•.IT ~;,;•;j=j , _--~~_1-'=1 ic:._~ri~i . _--_-- --- --- - --- ' -
f ~, , ` • pAa$ 3
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~ pispiay 1991-199~ sili Toxt - INeOAa!]1~IO1~i
BILL tiiTMs~R: 88 144 BI~ ~T
ivato
transportation projoct~. I- facility oonstruot~d bY ~tnd~ ~a= ~~ o=pth~
eatity ~hall~ during th~ t~rm ot t1r ls~t~a, b~ d~~d
otata hiqhway ey~tstt+ tor p~urpos~^ Qf iB~ntilicatioa, m~int~nanao, Wi~~rge tion
o= traific 1aws, aad !or th~ ~urpor~s o! 0l.vision 3.6 (aom~~Qinq
810} o! Titls i of th~ Gvv~rnta~nt Code. liG ~und~ shall be
(!) NotpithrtiaAdinq any oth~r provision of l~w- no p~sb
ut~liz~d in any lorm tdward th~ d~wlopmsnt or can~truction o~ tran~porta~ioa
laciliCi~s authoriaad by thif YwCt~OA !or whiah a toll is ch~rq~d• For tho
purpoea of this subdivi~ian~ " u~iC lu~d!" includ~, but sr~ nat
limitod t~ an lsr~d~ buil~sc !~a~nt' -r ~n oth~r u~,b11.a
ro rt .of valu~ for whicri ~~1.r n-ark~t valu~ i~ not r~C~iv~d, but
doos not ir-clud~ th4 sal~-ri~m nw d sxp~n•~4 °i u~ Iia ~ploya~~ ar
of~i~~ M- h p rtiripat• in me~tinas. disouosiort~. or a~4otiatioas
r• ardin t h~ p lann i ng~ c o n s t r uotio~ snd o~ ~ a~ tr~~~~ntion
tao i~ liti~~ a u t h„ oriz~d ~ thi° ~°°tiont if th. acti,~oa ~~
cond_ ur ~~ part o! tha inQlviduals' off,~ nl du_ t^i!• °n d ax•
~erics~ned !or aim^ ilar laci~ 1~! w~thout com nsatioa.
4
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RESOLUTION NO. 91-32
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN RAMON
IN SUPPORT OF SB144 OPPOSING USE OF PUBLIC FUNDS
FOR PRIVATELY DEVELOPED TOLL WAY FACILITIES
WI-IEREAS, the State of California has enacted legislation (AB680) allowing for the
construction of privately funded toll road facilities in the state; and
WHEREAS, the Mid-State Toll Way Project has been designated as one of the initial
projects in this program; and
WHEREAS, the Mid-State Toll Way Project would have significant impacts upon
regional transportation systems; and
WHEREAS, under the provisions of the enabling legislation AB680, the~ project is to
be constructed with the use of only private funds; and
WHEREAS, State Senators, Daniel E. Boatwright and Bill Lockyer have introduced
legislation in California Senate to preclude the expenditure of public funds for the purposes
of construction of these privately developed toll way.projects;
NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of San
Ramon resolves to support Senate Bill 144 and to thereby express its opposition to the use
of public funding sources for the purposes of construction of privately developed toll road
facilities in the State of California.
PASSED, APPROVED AND ADOPTED at the meeting of March 26, 1991, by the
following vote:
AYES:
NOES:
ABSTAIN:
ABSENT:
ATTEST:
Wayne W. Bennett
Mayor
Judy Macfarlane .
City Clerk ~ - --
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RESOLUTION N0. -91
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
IN SUPPORT OF SB 144 OPPOSING USE OF PUBLIC FUNDS
FOR PRIVATELY DEVELOPED TOLL WAY FACILITIES
WHEREAS, the State of California has enacted legislation (AB 680)
allowing for the construction of privately funded toll road facilities in the
State; and
WHEREAS, the Mid-State Toll Way Project has been designated as
one of the initial projects in this program; and
WHEREAS, the Mid-State Toll Way Project would have significant
impacts upon regional transportation systems; and
WHEREAS, under the provisions of the enabling legislation AB 680,
the project is to be constructed with the use of only private funds; and
WHEREAS, State Senators, Daniel E. Boatwright and Bill Lockyer
have introduced legislation in the California Senate to preclude the
expenditure of public funds for the purposes of construction of these
privately developed toll way projects;
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City
of Dublin does hereby support Senate Bill 144 and thereby expresses its
opposition to the use of public funding sources for the purposes of
construction of privately developed toll road facilities in the State of
California.
PASSED, APPROVED, AND ADOPTED this 22nd day of April, 1991.
AYES:
NOES:
ABSENT:
Mayor
ATTEST:
City Clerk
l~ n ~. ~.
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RESOLUTION N0. -91
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
DECLARING NONSUPPORT OF SB 144 OPPOSING USE OF PUBLIC FUNDS
FOR PRIVATELY DEVELOPED TOLL WAY FACILITIES
WHEREAS, the State of California has enacted legislation (AB 680)
allowing for the construction of privately funded toll road facilities in the
State; and
WHEREAS, the Mid-State Toll Way Project has been designated as
one of the initial projects in this program; and
WHEREAS, the Mid-State Toll Way Project would have significant
impacts upon regional transportation systems; and
WHEREAS, under the provisions of the enabling legislation AB 680,
the project is to be constructed with the use of private funds; and
WHEREAS, State Senators, Daniel E. Boatwright and Bill Lockyer
have introduced legislation in the California Senate to preclude the
expenditure of public funds for the purposes of construction of these
privately developed toll way projects; and
WHEREAS, this project may not be feasible without the use of
public funds;
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City
of Dublin does hereby declare nonsupport of Senate Bill 144 regarding use of
public funding sources for the purposes of construction of privately devel_oped
toll road facilities in the State of California.
PASSED, APPROVED, AND ADOPTED this 22nd day of April, 1991.
AYES:
NOES:
ABSENT:
Mayor
ATTEST:
City Clerk _ _ __ _ _ _ _
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