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Professional Engineers In California Government et al v. Department of Transportation et al

August 8, 2011

PROFESSIONAL ENGINEERS IN CALIFORNIA GOVERNMENT ET AL., PLAINTIFFS AND APPELLANTS,
v.
DEPARTMENT OF TRANSPORTATION ET AL., DEFENDANTS AND RESPONDENTS.



(Alameda County Super. Ct. No. RG10544672) TRIAL JUDGE: Honorable Wynne S. Carvill TRIAL COURT: Alameda County Superior Court

The opinion of the court was delivered by: Marchiano, P.J.

CERTIFIED FOR PUBLICATION

This case involves the validity of a public-private partnership for the construction of Phase II of the Presidio Parkway Project in San Francisco. Plaintiffs, Professional Engineers in California Government et al., sought a writ of mandate and a permanent injunction to prohibit defendants, the California Department of Transportation et al. (CalTrans), from further implementation of a public-private partnership (P3) for Phase II on the ground that Phase II did not qualify as a P3 under Streets and Highway Code section 143 (section 143).*fn1 The trial court denied relief. Plaintiffs raise three challenges to Phase II, all involving statutory interpretation of section 143. We disagree with plaintiffs' arguments for the reasons set forth below, and affirm.

I. PROCEDURAL HISTORY & FACTS

The essential facts are undisputed. Because we agree with its analysis, we rely substantially on the trial court's written opinion, which is essentially a statement of decision.

The Presidio Parkway Project (Project) involves the replacement of the existing southern approach to the Golden Gate Bridge, known as Doyle Drive, with a new six-lane parkway. Doyle Drive is part of a state highway, State Route 101. The trial court found that the current Doyle Drive approach, which is 75 years old, "does not meet current highway standards and is seismically deficient."

The Project began in 1998 with a feasibility study conducted by the San Francisco County Transportation Authority (SFCTA) pursuant to a Memorandum of Understanding (MOU) with CalTrans, which provided funding along with "oversight, reviews and approvals."

SFCTA and CalTrans entered into a series of Cooperative Agreements in 2003, 2006, and 2009 regarding Phase I of the Project. These agreements gave SFCTA a lead role in the Project, but also gave CalTrans "a substantial degree of oversight and control over the development of the project." While SFCTA was the lead agency for preliminary project development design and environmental studies, the resulting documents had to be submitted to CalTrans for its " 'review and concurrence' " and its " 'ongoing review.' " CalTrans retained the right to monitor and participate in the selection of personnel and was to provide " 'quality assurance.' " The trial court found that "[t]hese general terms in varying degrees of detail may be found in all of the various Cooperative Agreements by which SFCTA and CalTrans proceeded with the planning and implementation" of Phase I of the Project.

Preliminary design, engineering and environmental documents that were necessary precursors to the beginning of construction were completed in 2008. Phase I of the Project includes part of the permanent facility and a detour to accommodate traffic during Phase II. Phase I construction was underway at the time of trial below under the set of existing contracts.

In 2009, the Legislature amended section 143 to greatly expand the statutory authorization of P3's for state highway transportation projects. (Sen. Bill No. 4X (2009−2010 2d Ex. Sess.) § 5 (SB2X 4).) As the trial court found, the amendments deleted previous limitations on the number and type of transportation projects eligible to be P3's. The amendments expanded the purpose of P3's to include projects " 'primarily designed to achieve improved mobility, improved operations or safety, and quantifiable air quality standards.' " (Stats. 2009, 2d Ex. Sess. 2009−2010, ch. 2X, § 4, No. 1 West's Cal. Legis. Service, p. 21.)

Specifically, section 143, subdivision (c)(3) provides, in pertinent part: "The projects authorized pursuant to this section shall be primarily designed to achieve the following performance objectives: [¶] (A) Improve mobility by improving travel times or reducing the number of vehicle hours of delay in the affected corridor. [¶] (B) Improve the operation or safety of the affected corridor. [¶] (C) Provide quantifiable air quality benefits for the region in which the project is located."

As the trial court also found, "The amendments authorized CalTrans to enter into an unlimited number of P3's without legislative approval provided that any proposed P3 be released for public comment at a hearing and thereafter be submitted to the Legislature and the newly established [Public Infrastructure Advisory Commission (PIAC)] for comment at least sixty . . . days before execution." (§ 143, subd. (c)(5).)

The 2009 amendments included new section 143, subdivision (f)(1)(A): "Notwithstanding any other provision of this chapter, for projects on the state highway system, [CalTrans] is the responsible agency for the performance of project development services, including performance specifications, preliminary engineering, prebid services, the preparation of project reports and environmental documents, and construction inspection services. [CalTrans] is also the responsible agency for the preparation of documents that may include, but need not be limited to, the size, type, and desired design character of the project, performance specifications covering the quality of materials, equipment, and workmanship, preliminary plans, and any other information deemed necessary to describe adequately the needs of [CalTrans] or regional transportation agency."

CalTrans began to implement Phase II of the Project as a P3, contemplating that the construction of the remainder of the Project and the long-term maintenance of the facility would be the responsibility of the private contractor which entered into the P3 agreement with CalTrans and SFCTA. CalTrans and SFCTA entered into a new P3 cooperative agreement that provided responsibility to CalTrans for project development services under section 143, subdivision (f)(1)(A). The parties agreed that CalTrans would be the implementing agency for the Project with responsibility for developing ...


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