INTRODUCED BY   Senator Ducheny
   (Coauthor: Senator Kehoe)
   (Coauthor: Assembly Member Salas)

                        FEBRUARY 21, 2008

   An act to add Chapter 7 (commencing with Section 31460) to
Division 17 of the Streets and Highways Code, relating to


   SB 1486, Ducheny. Otay Mesa East Toll Facility Act.
   Existing law authorizes regional transportation agencies, in
cooperation with the Department of Transportation, to apply to the
California Transportation Commission to develop and operate a value
pricing program with high-occupancy toll (HOT) lanes, under which
single-occupant vehicles may use designated high-occupancy vehicle
lanes at certain times of day upon obtaining a permit and paying a
fee. Existing law authorizes the San Diego Association of Governments
(SANDAG) to conduct, administer, and operate a value pricing and
transit development demonstration program on a maximum of 2
transportation corridors in San Diego County.
   This bill would enact the Otay Mesa East Toll Facility Act, which
would authorize SANDAG to, among other things, solicit and accept
grants of funds and to enter into contracts and agreements for the
purpose of establishing highway toll projects to facilitate the
movement of goods and people along the State Route 11 corridor in the
County of San Diego or at the Otay Mesa East Port of Entry. The bill
would provide SANDAG with various additional powers and duties,
including, among others, authorizing SANDAG to issue bonds for the
acquisition, construction, and completion of transportation
facilities and to impose tolls and user fees for the use of the
corridor, as defined. The bill would require toll revenues from the
Otay Mesa toll facility project to be used to pay for specified
costs, including, but not limited to, repaying bonds, the cost to
SANDAG for operating the project, and the cost for capital
improvements, pursuant to an expenditure plan, as specified. The bill
would authorize SANDAG to enter into agreements with the County of
San Diego or a city within that county to accept development impact
fees for the construction of, and reimbursement for construction of,
improvements in the county or city.
   Because the bill would impose additional duties on local
governmental agencies, the bill would impose a state-mandated local
   The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
   This bill would provide that no reimbursement is required by this
act for a specified reason.


  SECTION 1.  Chapter 7 (commencing with Section 31460) is added to
Division 17 of the Streets and Highways Code, to read:

   31460.  The Legislature finds and declares all of the following:
   (a) It is essential for the economic well-being of San Diego
County and for the maintenance of a high quality of life that the
people of the State of California receive the full benefits of
international trade with Mexico.
   (b) Trade is the fastest expanding component of the San Diego
regional economy. Mexico is the United States' third largest trading
partner, after Canada and China, and California's number one export
   (c) Trade passing through San Diego County's portion of the United
States-Mexico border region benefits every state in the union and
contributes heavily to the nation's trade with the countries of the
Pacific Rim.
   (d) Commercial traffic between the United States and Mexico using
California's ports of entry is placing extreme demands on the state's
border transportation assets which were not designed for these
   (e) Congestion at the border causes increased wait times, which in
turn increases commercial and noncommercial vehicle emissions.
   (f) Inadequate infrastructure capacity at the existing border
crossings between San Diego County and Baja California currently
creates traffic congestion and delays for crossborder personal trips
and freight movements that cost the United States and Mexican
economies an estimated $7.2 billion in foregone gross output and more
than 62,000 jobs in 2007.
   (g) Public revenues to provide for an efficient border region
transportation system have not kept pace with the growth of traffic
and goods crossing the international border with Mexico.
   (h) The state must seek all reasonable alternatives to address
unmet border transportation needs and to improve existing
transportation facilities.
   (i) Public toll transportation facilities should be encouraged to
supplement limited public resources and to support the development of
new transportation system capacity.
   31461.  This chapter may be cited as the Otay Mesa East Toll
Facility Act. All references to the "act" in this chapter shall mean
the Otay Mesa East Toll Facility Act.
   31462.  For purposes of this chapter, the following definitions
shall apply:
   (a) "Board" means the board of directors of SANDAG.
   (b) "Bonds" means any bonds, notes, variable rate and variable
maturity securities, and any other evidence of indebtedness issued
pursuant to this chapter.
   (c) "Corridor" means State Route 11 in the County of San Diego, as
defined in Section 311.
   (d) "Costs" includes the cost of construction or acquisition; the
cost of the acquisition of all land, rights-of-way, property, rights,
easements, and interests acquired by SANDAG for the construction;
the cost of demolishing or removing any buildings or structures on
land acquired, including the cost of acquiring any lands to which
buildings or structures may be moved; the cost of all machinery and
equipment, financing charges, interest before and during construction
and, if considered advisable by SANDAG, costs of accounting,
consulting, printing, advertising and travel, cost of traffic
estimates and of engineering and legal services, plans,
specifications, surveys, estimates of cost and of revenues, and other
expenses necessary or incident to determining the feasibility or
practicability of constructing, repairing, or improving a project;
administrative expenses; and such other expenses as may be necessary
or incident to the construction, repair, or improvement of a project,
the financing of the project, the placing and maintaining of a
project in operation, and any payments to an entity to cover all or a
portion of the costs described in this chapter. Any money paid or
advanced to SANDAG with its approval for traffic surveys, borings,
preparation of plans and specifications, and other engineering
services in connection with the construction, repair, or improvement
of a project shall be regarded as a part of the cost of a project and
may be reimbursed out of the proceeds of the revenue bonds issued
for a project as authorized in this chapter. Cost includes the cost
to operate, maintain, repair, or improve a project.
   (e) "Department" means the Department of Transportation.
   (f) "Design-build" means a procurement process in which both the
design and construction of a project are procured in a single phase.
   (g) "Design sequencing" means a procurement process that enables
the sequencing of design activities to permit each construction phase
to commence when design for that phase is complete, instead of
requiring the design for the entire project to be completed before
commencing construction.
   (h)  "Entity" means the United States or any agency or department
of the United States, any State of California agency, department or
political subdivision of the state, or any public or private
corporation, company, partnership, joint venture, foundation, trust,
estate, individual, or other legal business organization.
   (i)  "Federal agency" means any agency or department of the United
   (j)  "Project" or "projects" means any property and related
facilities, whether or not now in existence, acquired to facilitate
the movement of goods and people along the corridor or at the Otay
Mesa East Port of Entry, including property suitable for any of the
following purposes:
   (1) International ports of entry.
   (2) International border crossing facilities.
   (3) Transportation facilities, including highway and roadway,
public transit, and nonmotorized facilities, and other projects
supporting any transportation facility designed, constructed,
maintained, or operated with toll revenues.
   (4) A bridge or tunnel, overpasses, underpasses, entrance plazas,
toll houses, administration, storage and other buildings and
facilities, and all equipment therefor, and may include terminal
facilities, customs and immigration facilities, and such approaches
and approach highways as may be determined by SANDAG to be necessary
to facilitate the flow of traffic or to connect a project with the
existing highway systems, together with all property, rights,
easements, and interests acquired by SANDAG for the construction or
operation of a project, including, but not limited to, energy and
communication lines.
   (k)  "Property" means land, improvements to land, buildings,
improvements to buildings, machinery and equipment of any kind,
operating capital, and any other real or personal property necessary
for a project.
   (l) "SANDAG" means the San Diego Association of Governments, as
referenced in the San Diego Regional Transportation Consolidation
Act, Chapter 3 (commencing with Section 132350) of Division 12.7 of
the Public Utilities Code.
   (m) "Trustee" means any financial institution or trust company
actually doing business in this state.
   31463.  This act, being necessary for the welfare of the state and
its inhabitants, shall be liberally construed to effect its
   31465.  This chapter shall provide an additional and alternative
method for doing the things authorized by this chapter and shall be
regarded as supplemental and additional to any powers and rights
conferred on SANDAG by other laws. When carrying out its
responsibilities under this chapter, SANDAG shall comply with the
requirements imposed by the San Diego Regional Transportation
Consolidation Act (Chapter 3 (commencing with Section 132350) of
Division 12.7 of the Public Utilities Code) not in conflict with this
chapter, including, but not limited to, noticing, holding, and
conducting its meetings in accordance with the Ralph M. Brown Act
(Chapter 9 (commencing with Section 54950) of Part 1 of Division 2 of
Title 5 of the Government Code).
   31466.  SANDAG shall have and may exercise all rights and powers,
expressed or implied, that are necessary to carry out the purposes
and intent of this chapter, including the power to do all of the
   (a) Issue bonds payable from and secured by a pledge of SANDAG of
all or any part of the revenues of SANDAG to finance the activities
authorized by this act and for the purpose of financing the cost of
acquiring or operating any project or to purchase, refund, or
otherwise acquire, at or before maturity, any outstanding bonds
meeting the requirements provided in this chapter, and to sell those
bonds at public or private sale in the form and on the terms and
conditions as SANDAG shall approve.
   (b) Consult with counties, cities, towns, and other agencies and
political subdivisions of this state and Mexico relating to plans and
projects authorized by this chapter.
   (c) Fix and revise from time to time and charge and collect tolls
and other charges for the use of a project.
   (d) Acquire by dedication, gift, purchase, or eminent domain, and
hold and dispose of any interests in property whether real or
personal in the exercise of its powers and the performance of its
duties under this chapter.
   (e) Establish and enforce policies, rules, and regulations for the
administration, operation, and maintenance of facilities and
   (f) Pledge all or any part of the revenues of projects to secure
bonds and any repayment or reimbursement obligations of SANDAG to any
provider of bond insurance or letter of credit or line of credit
facility determined to be appropriate by SANDAG to provide for the
payment of debt service on any bonds of SANDAG, and the state hereby
pledges to, and agrees with, the holders of bonds that the state will
not limit, alter, or restrict the rights hereby vested in SANDAG to
fulfill each pledge of revenues and any other terms of any agreement
made with or for the benefit of the holders of bonds or in any way
impair the rights or remedies of the holders of the bonds or the
providers of bond insurance or letter of credit or line of credit
   (g) Do all acts necessary and convenient for the full exercise of
the powers granted in this chapter.
   31467.  (a) Highway projects constructed pursuant to the act
shall, at all times following construction, be owned by the
department. International port of entry facilities constructed
pursuant to the act shall, at all times following construction, be
owned by a federal agency. All other property and facilities
constructed pursuant to this chapter shall be owned by SANDAG, unless
transferred to a state or federal agency upon agreement between
SANDAG and the relevant agency.
   (b) The plans and specifications for a transportation project
developed, maintained, repaired, rehabilitated, reconstructed, or
operated pursuant to the act shall comply with the relevant standards
of the department for state transportation projects. Ports of entry
projects shall meet the relevant federal agency's published design
standards and legal requirements. SANDAG may approve the location,
design, and the materials of construction for a project constructed
pursuant to this chapter after consultation with the department or
the relevant federal agency, as applicable.
   (c) SANDAG shall carry out its highway projects in cooperation
with the department and shall consult the department in the operation
of a project and on matters related to highway design and
   (d) For the purpose of facilitating a project, the agreements
between SANDAG and other entities may include provisions for the
lease of rights-of-way in, and airspace over or under, highways,
public streets, rail, or related facilities for the granting of
necessary easements, and for the issuance of permits or other
authorizations to enable the construction or operation of a project.
   (e) Agreements between SANDAG, appropriate local, state, or
federal agencies, or any other entity may be executed to identify the
respective obligations and liabilities of one or more of those
entities and assign them responsibilities relating to a project. The
agreements entered into pursuant to this section shall be consistent
with agreements between the department and the United States
Department of Transportation relating to a project and may include
procedures for enforcement by the Department of the California
Highway Patrol.
   (f) Any project utilizing the department's services shall be
included in the department's capital outlay support program for
workload purposes.
   31468.  (a) The Legislature has recognized the merits of
alternative project delivery methods such as the design-build
procurement process in the past by authorizing its use for projects
undertaken by school districts, the University of California,
specified local government projects, state office buildings, and
public transit projects.
   (b) It is the intent of the Legislature to provide optional,
alternative procedures for bidding and building the international
port of entry facility and ancillary border crossing projects
pursuant to this act. SANDAG may utilize an alternative project
delivery method authorized in this section on the international port
of entry facility and ancillary border crossing projects, after
evaluation of the traditional design, bid, and build process of
construction and of the design-build process in a public meeting, the
governing board makes written findings that use of an alternative
project delivery method on the specific project under consideration
will accomplish at least one of the following objectives: reduce
comparable project costs, expedite a project's completion, or provide
features not achievable through the traditional design-bid-build
   (c) SANDAG may utilize the following alternative project delivery
methods if the conditions in this section are met:
   (1) Design-build.
   (2) Design sequencing.
   (d)  If the conditions in this section for utilizing an
alternative delivery method are not met, SANDAG shall use the
design-bid-build delivery method for construction of a project.
   (e) It is the intent of the Legislature that alternative project
delivery methods as authorized in this section shall not be construed
to extend, limit, or change in any manner the legal responsibility
of public agencies and contractors to comply with existing laws.
   31472.  This chapter does not authorize SANDAG or the department
to do either of the following:
   (a) Lease or otherwise convey a toll road to a private-sector
   (b) Convert any existing nontoll or non-user-fee highway lane into
a tolled or user-fee highway lane.
   31473.  (a)  The cities and county in the San Diego region are
authorized and empowered to lease, lend, grant, or convey to SANDAG
at its request upon such terms and conditions as the city or county
considers reasonable and fair and without the necessity for any
advertisement, order of court, or other action of formality, other
than the regular and formal action of the governing body of the
cities or county, any real property that may be necessary or
convenient to the effectuation of the authorized purposes of SANDAG,
including public highways and other real property already devoted to
public use.
   (b) If a reasonable price cannot be agreed upon, or if the owner
is legally incapacitated, absent, unknown, or unable to convey valid
title, SANDAG is hereby authorized and empowered to acquire by
condemnation or by the exercise of the power of eminent domain any
lands, property, rights, rights-of-way, easements, and other
property, including highways or parkways, or parts thereof or rights
therein, of any person, copartnership, association, railroad, public
service, public utility or other corporation, municipality, or
political subdivision considered necessary or convenient for the
construction, repair, or improvement or the efficient operation of a
project or necessary in restoration of public or private property
damaged or destroyed, but not including any of the rights of any
franchisee, lessee, or owner of airspace rights in the demonstration
toll road project known as State Route 125 in the County of San
    (c) Any proceedings pursuant to subdivision (b) shall be
conducted in accordance with and subject to the relocation assistance
guidelines in Chapter 16 (commencing with Section 7260) of Division
7 of Title 1 of the Government Code. Title to any property acquired
by SANDAG shall be taken in the name of SANDAG or the department.
   (d) If the owner, lessee, or occupier of any property to be
condemned refuses to remove his or her personal property from the
property or give up possession of the property, SANDAG may proceed to
obtain possession in any manner now or hereafter provided by law.
   31474.  (a) SANDAG may only impose tolls and user fees for the use
of the corridor.
   (b) Within two years following the opening of a tolled project by
SANDAG and at least biennially thereafter, SANDAG shall review the
adequacy of the toll rates established to cover the costs of the
project. The board shall make available any proposed revisions to
toll rates to the public no less than 30 days prior to adoption by
the board as described in subdivision (a) of Section 31476.
   (c) SANDAG's toll structure may include discounts and premiums to
encourage efficient use of tolled projects and reduction of
congestion and emission of greenhouse gases, including, without
limitation, discounts for high-occupancy vehicles, electronic toll
collection, and off-peak travel, and premiums for on-peak travel.
   (d) SANDAG's toll structure may include adjustments to toll rates
to reflect economic factors, including, but not limited to, the
Consumer Price Index or other cost indices.
   31475.  (a) Toll revenues from a project may be used to reimburse
or finance the costs of state agencies and federal agencies incurred
in connection with the implementation or operation of a project,
including reimbursement of federal funds specifically allocated to
SANDAG for a project by the federal government or other funds from
funding sources that are not otherwise available to state agencies
for transportation-related projects. SANDAG shall be reimbursed for
administrative costs in an amount that shall not exceed 3 percent of
project revenues.
   (b) Toll revenues shall be used to pay for costs in the categories
below in the following priority:
   (1) Payments pursuant to bonds and resolutions, indentures, and
other constituent instruments defining the rights of the holders of
bonds and any repayment or reimbursement obligations of SANDAG to any
providers of bond insurance or letters of credit or lines of credit
related to bonds.
   (2) SANDAG costs for operations, toll collection, and
administration of the facility.
   (3) Reimbursement to federal, state, and local agencies for costs
incurred by those agencies for services provided to a project that
are reimbursable pursuant to a written agreement between SANDAG and
the respective agency.
   (4) Costs for capital improvements to repair or rehabilitate a
project, to expand project capacity, to improve project operations,
or to increase public transit and nonmotorized options in the
   (5) Excess revenues shall be used pursuant to the plan approved by
the board pursuant to subdivision (b) of Section 31476 that
specifies the expenditure of toll revenues for projects that increase
transportation options in the corridor, including, but not limited
to, public transit and nonmotorized transportation that would result
in reduced vehicle miles traveled.
   31476.  (a) At least 30 days prior to setting the initial toll
rates for a project, and thereafter when adjustments to the toll
rates are proposed, the board shall provide a public comment period
regarding the proposed rates. The board shall also take public
testimony at one or more public meetings during this time period.
   (b) The expenditure plan for toll revenues shall be updated and
approved by the board on an annual basis beginning on July 1
following implementation of a toll. Approval of the initial and
annual expenditure plan shall take place at a public meeting held by
the board following a notice of at least 30 days to the public.
   (c) Collection of tolls on a project financed with bond revenues
shall cease following repayment of the bonds and other project costs
in full unless an extension of the time for toll collection is
approved by a two-thirds vote of the board at a public meeting
following a notice of at least 30 days to the public.
   (d) The board shall arrange for a postaudit of the revenues
expended pursuant to this chapter to be made at least annually by a
certified public accountant.
   31477.  (a) SANDAG may enter into one or more agreements with the
County of San Diego or a city within the County of San Diego to
accept fees imposed by that city or the county pursuant to the
Subdivision Map Act (Division 2 (commencing with Section 66410) of
Title 7 of the Government Code) or the Mitigation Fee Act (Chapter 5
(commencing with Section 66000), Chapter 6 (commencing with Section
66010), Chapter 7 (commencing with Section 66012), Chapter 8
(commencing with Section 66016), and Chapter 9 (commencing with
Section 66020) of Division 1 of Title 7 of the Government Code), to
reimburse SANDAG for costs it has or will incur to mitigate
development that will have a negative impact on the movement of
people or goods along the State Route 11 corridor or the Otay Mesa
East Port of Entry.
   (b) Fees paid to a city or the county and transferred to SANDAG
pursuant to this section shall be expended by SANDAG solely for the
construction or reimbursement for construction of the improvement
serving the area to be benefited and from which the fees transferred
from the city or county were collected.
   (c) The agreement may provide for the acceptance of considerations
in lieu of the payment of fees.
   (d) If the provisions of this section, or provisions implementing
this section contained in any ordinance adopted pursuant to this
section, are held invalid, that invalidity shall not affect other
provisions of this section or of the ordinance adopted pursuant
thereto, which can be given effect without the invalid provision, and
to this end the provisions of this section and of an ordinance
adopted pursuant thereto are severable.
   31481.  (a) SANDAG may, from time to time, issue bonds in
accordance with the Revenue Bond Law of 1941 (Chapter 6 (commencing
with Section 54300) of Part 1 of Division 2 of Title 5 of the
Government Code) for any of the purposes authorized by this chapter.
SANDAG shall constitute a "local agency" within the meaning of
Section 54307 of the Government Code. The operation of SANDAG
projects or any grouping or units thereof shall constitute an
"enterprise" within the meaning of that section.
   (b) Article 3 (commencing with Section 54380) of Chapter 6 of Part
1 of Division 2 of Title 5 of the Government Code does not apply to
the issuance and sale of bonds pursuant to this chapter and SANDAG
shall authorize the issuance of such bonds by resolution of its
   (c) Any bond issued pursuant to this section shall contain on its
face a statement to the following effect: "Neither the full faith and
credit nor the taxing power of the State of California is pledged to
the payment of principal of, or the interest of this bond."
   (d) SANDAG may bring an action to determine the validity of any of
its bonds pursuant to Chapter 9 (commencing with Section 860) of
Title 10 of Part 2 of the Code of Civil Procedure.
   (e) Before issuing any new or increased toll revenue bonds, the
board shall conduct at least one public meeting following at least 30
days' notice to the public at which public testimony shall be taken
regarding the proposed bond issuance. Issuance of new or increased
toll revenue bonds pursuant to this act shall require approval by at
least two-thirds of the board's voting members.
   31482.  (a) SANDAG, its income and property, all bonds issued by
it, and the interest on the bonds are exempt from all taxation by
this state or any political subdivision of this state.
   (b) Bonds issued by SANDAG are legal investments for all trust
funds, the funds of all insurance companies, banks, trust companies,
executors, administrators, trustees, and other fiduciaries. The bonds
are securities that may legally be deposited with, and received by,
any state or municipal officer or agency or political subdivision of
the state for any purpose for which the deposit of bonds or
obligation of the state is now, or may hereafter be, authorized by
law, including deposits to secure public funds.
   (c) Nothing in this chapter is intended to infringe upon the
rights of the state to make transportation improvements that may
impact use of transportation facilities in the corridor.
  SEC. 2.  The provisions of this act are severable. If any provision
of this act or its application is held invalid, that invalidity
shall not affect other provisions or applications that can be given
effect without the invalid provision or application.
  SEC. 3.  No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district are the result of a program for which legislative authority
was requested by that local agency or school district, within the
meaning of Section 17556 of the Government Code and Section 6 of
Article XIII B of the California Constitution.