ITEM 7A

Staff Report Subject: Legal Opinion on Use of Measure A funding CV Link Contact: Tom Kirk, Executive Director (tkirk@cvag.org)

Allyn S. Waggle, Deputy Executive Director (awaggle@cvag.org) Recommendation: No Action Is Necessary. See Attachment 1, summary of legal counsel conclusion regarding use of Measure A for CV Link, provided by Anne Mayer, Riverside County Transportation Commission (RCTC).

Mayor Hobart Questions Use of Measure A Funding for CV Link and Related Motion(s) On May 3 and again on May 18, Rancho Mirage Mayor Dana Hobart asked CVAG’s Executive Committee to “slow down progress on CV Link“ and consider motions that question the use of Measure A funds for CV Link:

One of his first proposals, which he later retracted, was to reconsider the 2012 Executive Committee vote which authorized “CVAG Transportation Funds to be used as a potential match as long as such funding does not delay construction of any currently obligated project or delay any other pending high priority project.” The CVAG transportation funds could be Measure A funds.

Another proposal asks the committee to “authorize an expenditure of funds sufficient to retain a prominent Los Angeles, Orange County or San Diego law firm” and provide CVAG with a legal opinion on using Measure A funds to pay for any portion of CV Link’s operations and maintenance costs. If the submitted motion was supported, Mayor Hobart and CVAG General Counsel Toni Eggebraaten would chose the outside counsel. (Attachment 2).

Background on CVAG’s Potential Use of Measure A Funds On Feb. 27, 2012, CVAG’s Executive Committee took a number of steps to support an application for Sentinel mitigation funds from the South Coast Air Quality Management District for CV Link, which was then known as Parkway 1e11. Among those actions was the authorization to utilize CVAG transportation funds to match the requested Sentinel funds. The match included up to $20 million in CVAG transportation funds and $10 million in funding from the Desert Healthcare District. CVAG received the largest award made when the Sentinel mitigation funds were distributed – securing $17.4 million -- and has received a number of other major awards since then, leading to a $75.7 million commitment to build the project. Many of the awards are the largest of their kind.

The Feb. 27, 2012 Executive Committee’s approval to provide the Measure A match funds was unanimously approved by the CVAG Energy and Environment Committee, the Transportation Committee, and the Technical Advisory Committee. In a May 17, 2015 story, The Desert Sun noted Coachella Mayor Steve Hernandez was the only person to oppose the motion when it reached the Executive Committee as he worried that funding CV Link would impact the financing of city projects. Mayor Hernandez pointed out in the same story that “sure enough, the money has been there" for other projects. (CVAG February 27, 2012 meeting minutes [Click

Here] and The Desert Sun story [desert.sn/1HnEcpK])

The 2012 action did not specify that CVAG would necessarily use the Measure A funds, although that is identified as an option. CVAG -- much like other transportation funding agencies such as the Riverside County Transportation Commission -- rarely identifies the exact funding source for projects far in advance as it would restrict the ability to take advantage of other money sources that becomes available. Case in point is the use of federal stimulus dollars, which replaced the use of “local” or “regional” Measure A/TUMF dollars for several Interstate 10 projects. Public Discussion of the Use of Measure A was tabled at the request of Rancho Mirage elected officials but Mayor Hobart has continuously and publicly provided his opinion ever since. Measure A has the flexibility of being used to support preventative maintenance of regional roads. CVAG staff drafted a staff report that described how Measure A funding could be used to fund CV Link in the long-term, covering a significant portion of the preventative maintenance costs. A subsequent staff report will provide more information about actual operations and maintenance costs. Using Measure A funding in such a manner would require a majority vote by local governments in the Coachella Valley and substantially reduce the remaining costs to operate what is essentially a wide sidewalk and soft pedestrian path. The staff proposal was never debated by the Executive Committee because the April 5 staff recommendation was tabled indefinitely when presented to the Transportation Committee at the request of elected officials from the City of Rancho Mirage. While the staff report that included consideration of Measure A was pulled from public discussion, there has been a great deal of public testimony by the Mayor of the City of Rancho Mirage that Measure A may not be an appropriate source of funding for CV Link. The discussion has included speeches at city council meetings, e-mails distributed to Executive Committee members, and statements made to the press. Mayor Hobart, in emails that he has widely distributed to community leaders, has argued that “if Measure A funds are going to be considered to bear some of the O&M responsibility, we must not move this ball forward without a sound legal opinion to guide us” and questioned the legality of using Measure A funds. During the May 21 Rancho Mirage City Council meeting, he pointed out that “all of the money coming in from Measure A is under the guidance and auspices of the Riverside County Transportation Commission, RCTC.” Western Riverside County is not relevant to the discussion Mayor Hobart has referred to the Western Riverside County Non-Motorized Transportation Plan. He specifically references a portion of section 7.3.1, under the heading, Local Funding: “The local jurisdiction may spend the funds (Measure A) on local streets and roads as they see fit. Bicycle, pedestrian and NEV projects on local streets and roads are eligible uses of those funds.” That language is lifted from a paragraph specifically addressing local streets and roads.

The mayor then goes on to the next paragraph, which addresses ‘highways and arterial streets on the Regional Arterial System.” He quotes from this paragraph; “Bicycle and pedestrian improvements along these roads are not specifically called out in Measure A, but may be funded as part of the improvements to these thoroughfares.” Staff is not exactly sure of the point of Mayor Hobart’s contention from these statements. On one level, they seem to support the expenditure of Measure A funds on the CV Link while, in the same paragraph, seem to contradict themselves. Regardless, the Western Riverside County Non-motorized Transportation Plan is not a source document for the expenditure of funds in the Coachella Valley.

RCTC Legal Counsel Provided a Legal Opinion on the Legal Use of Measure A Funding for CV Link 2011 and that Opinion has been Reconfirmed In November 2011, months before any CVAG committee was asked about using transportation dollars on CV Link, RCTC was asked to provide a legal opinion on the use of Measure A for CV Link for both construction as well as its operations and maintenance. RCTC’s legal counsel, Best, Best & Krieger, provided CVAG with an initial, and supportive, legal assessment. Recently, given the questions raised publicly about Measure A RCTC legal counsel delved further into the subject. Based on that research, and RCTC Executive Director Anne Mayer’s has provided the attached letter setting forth legal counsel’s conclusion confirming the 2011 conclusions. The letter is provided as Attachment 1. Much like we did in 2011, CVAG staff continues to have the utmost respect and confidence in RCTC staff and legal counsel, BB&K’s ability to render an objective and supportable legal opinion. Paying a “prominent” firm based in one of three coastal counties is not a wise use of our funds because RCTC and its legal counsel already provide valued oversight and legal opinion. Such a position does not preclude a member agency -- or anybody else – from contracting with an outside firm for a legal opinion. However, they will be hard pressed to find one with the same expertise in Measure A and the costs of such a review could be significant. Measure A remains a legal funding source for CV Link and it is an important and flexible tool available to CVAG to fund capital costs as well as long-term operations and maintenance.

Measure A and How CV Link Qualifies for Inclusion in the TPPS In November 1988, Riverside County voters approved Measure A, a one-half cent increase in the state sales tax to be collected over a 20-year period to be used only for transportation purposes In November 2002, Riverside County voters approved a 30-year extension of Measure A, ensuring the collection of the half-percent sales tax will continue through 2038. It is projected that Coachella Valley jurisdictions will receive approximately $1.26 billion over that period for transportation-related improvements. The Riverside County Transportation Commission adopted Ordinance 02-001 following the 2002 vote, stating that “Measure A funds may only be used for transportation purposes including …the construction …maintenance and operation of streets, roads, highways …” At the April 27, 2015 CVAG Executive Committee meeting, Mayor Hobart referenced the Executive Summary of the 2010 TPPS and suggested CV Link would need to be designated a “regional arterial” in order for CVAG to use Measure A funding for long-term costs.

However, the relationship is actually established by the language of RCTC Ordinance 02-001. While one person’s definition of “road” may well be different from another’s, Webster’s New American Dictionary defines a road as ““a travel way for vehicles, persons and animals.” CV Link will be a road in every sense of the word. CV Link also does not need to be categorized as an “arterial” in order to be in CVAG’s Transportation Project Prioritization Study (TPPS). An arterial road is described in many cities’ general plans as a major carrier of traffic, typically six lanes wide, and many of those class of streets are included in the CVAG TPPS. However it should also be noted that some of the CVAG jurisdictions have presented roadways qualified to be included in the TPPS which they have identified as Collector or other roadways. In order for roadway improvement projects to be included in the TPPS, they must meet certain qualifying criteria that are reviewed and approved by the Executive Committee, which has already been reconfirmed. Once they are set, the step of including jurisdictions’ roadway improvement projects in the TPPS is ministerial in action, without further action, until the fully updated TPPS is again presented to the Executive Committee for adoption. The 2010 TPPS, currently in effect, requires projects to meet three of five Qualifying Criteria:

a) Roadway must connect to, or cross over, Interstate 10 or SR 86; b) Roadway must go through, or border, two or more, jurisdictions; c) Roadway must be shown in an agency’s General Plan as a minimum four-lane roadway/

street; d) Roadway segment traffic volume must exceed 20,000 ADT (both directions, measured in

current year); e) Roadway must cross the Whitewater River Channel or a major tributary.

The same criteria was used when the 2005 update of the TPPS was completed – which was years before CV Link was envisioned. The criteria for the 2005 TPPS update were actually approved by the CVAG Executive Committee in 2003. CV Link meets three of the five criteria above; Qualifying Criteria a), b) and e):

a) Roadway must connect to, or cross over, Interstate 10 or SR 86: The proposed core alignment of the CV Link, with planned connectors, connects to and crosses Interstate 10 multiple times in its southern location. The proposed spur extensions cross Interstate 10 and SR 86 north to Desert Hot Springs and again in the southern location area of the core alignment.

b) Roadway must go through, or border, two or more, jurisdictions: The proposed core

alignment of the CV Link is continuous from Palm Springs through Cathedral City, Rancho Mirage, Palm Desert, Indian Wells, La Quinta, Indio, and Coachella. Further extensions will take the route through unincorporated Riverside County, south-westerly to the Salton Sea and north to the City of Desert Hot Springs. Only one other TPPS transportation route goes through multiple jurisdictions approaching the length and connectivity of CV Link: the South Palm Canyon/ Highway 111/ Grapefruit Boulevard combination roadway.

e) Roadway must cross the Whitewater River Channel or a major tributary: It goes without

saying that as the proposed core alignment of the CV Link parallels the Whitewater River Channel. Several channel crossings are planned crossings as CV Link will ultimately use

both sides of the channel. In addition, the proposed core alignment of the CV Link will cross major tributaries of the Whitewater River Channel such as the Palm Canyon Channel, Cathedral Canyon Channel, Deep Canyon Channel and the La Quinta Evacuation Channel, among others.

Based on the above, therefore, the CV Link is qualified to be an included project in the TPPS, While the CV Link may not currently exemplify the typical road project included in the CVAG TPPS project list, it must also be noted many roads have limitations and other restrictions placed on them (weight limits, pedestrian access restricted), just as not all “roads” in the Coachella Valley can qualify to be included in the TPPS. And, after the CV Link becomes recognized for its intended purpose, it will also become a preferred alternative route to Highway 111 for many bicyclists, serious walkers, LSEV operators and those choosing to take a route with less congestion and less conflict and risk with high-speed, heavy, vehicles. There are many elements of the CV Link which equate it to a typical roadway. The design of the CV Link roadway cross-section must be completed by a registered engineer to assure strength and durability for design loads. The asphalt thickness and the width of travel-way must satisfy established standards for public and vehicle safety. There must be adequate separation provided for any pedestrian lanes proposed with clear lines of sight for all parties. Further identifying the CV Link as a legally recognized roadway, the paved portion of the CV Link will introduce signage and striping patterns specifically designed for the CV Link project and which required approval by the Caltrans Traffic Control Devices Committee. Those now-Caltrans approved signs will first appear on the CV Link and are now also qualified for use on other, similar multi-purpose roadway projects in California. In October, 2000, the CVAG Executive Committee approved a change in CVAG policy to authorize payment from regional transportation funds for costs associated with locating bicycle lanes in the street travel way. This change allowed the use of CVAG regional Measure A funds to purchase additional right of way and for street construction materials to provide a paved bicycle lane adjacent to the motor vehicle travel way (Class II, Bike Lane). Therefore, CVAG regional Measure A funds have been approved since 2000 for use to construct and maintain bicycle-related transportation projects.

DE

4080 Lemon Street, 3rd Floor o Riverside, CA 92501Address: P O. Box

.|2008 . Riverside, CA 92502-2208(951 ) 787 -7 141 . Fox (95.| ) 787 -7920 . www.rctc.org

Riverside (ounty Tronsporlolion Commission

May 26,20L5

Mr. Tom Kirk, Executive DirectorCoachella Valley Association of Governments73-71,0 Fred Waring Drive, Suite 200

Paf m Desert, CA 92260

Su bject:

Dear M r.

CV Link and Measure A Funds

KtY'At your request in 20LL, the Riverside County Transportation Commission (RCTC) asked its General Counsel totake an initial look at whether Measure A revenues could be used to fund the construction and preventative

maintenance of CV Link and concluded, as a general matter, they could be used for such funding purposes. We

recently asked our General Counsel to revisit and analyze these issues in greater depth and Counsel believes a

strong argument can be made that (1) components of CV Link for low-speed electric vehicles (the LSEV

Component) qualify as a regional road improvement eligible for Measure A funding, and (2) should Measure A

revenues be used to fund the LSEV Component, such revenues could also be used for preventative maintenance

of the LSEV Component as long as a majority of Coachella Valley local governments approve.t

First, the LSEV lane is likely a "highway" and "roadway" as defined in Vehicle Code Sections 360 and 530, and

LSEVs are likely "vehicles" as defined in Vehicle Code Section 670. CV Link also has characteristics that make itsimifar to a typical road improvement. Second, CV Link would operate as a regionol facility initially connectingeight of the nine cities in the Coachella Valley and three Indian reservations. Therefore, given Measure A appears

to use "road" and "roadway" synonymously, a strong argument can be made that the LSEV Component is a

"regional road improvement" under Measure A.

As a regional road improvement, the LSEV Component appears to satisfy sufficient criteria to be placed on

CVAG's Transportation Project Prioritization Study (TPPS) list, which would then make it eligible for Measure A

funding. However,sinceportionsoftheCVLinkdedicatedexclusivelytothepedestrianandbicycleuses(suchasbicycle racks and a separate trail exclusively for pedestrians) would not be considered "roadways," they wouldnot likely fall within the meaning of a road improvement and therefore would be ineligible for Measure A

funding.

This interpretation of "regional road improvement" is bolstered by CV Link's consistency with Measure A's intentand purposes, which include reducing congestion, promoting economic growth, and providing specialized

programs to meet commuter needs and the specialized needs of the growing senior and disabled population.

' The design ofCV Link is not yet complete so this analysis is based on a general understanding ofthe project and not on the final designplans or project approval.

Mr. Tom Kirk, Executive DirectorPage 2

May 26, 2015

One of Measure A's more specific purposes is to improve traffic flow and reduce congestion on Highway LL1 in

the Coachella Valley.

Similarly, CV Link's goals include providing an alternative route for travelers on Highway ILL, providing jobs in

construction and tourism and enhanced access to commercial destinations, and improving mobility for the

elderly and those with mobility impairments.

Measure A is also designed "to give flexibility to adjust to changing circumstances" in the Coachella Valley. This

language indicates Measure A's intent is to provide CVAG with the flexibility to respond to changing

circumstances that were not otherwise contemplated when Measure A was passed. Therefore, Measure A

should be interpreted to give CVAG the flexibility to consider non-traditional, regional road improvements like

the LSEV Component, subject to oversight by RCTC.

There has been discussion regarding whether CV Link must be "designated" a "regional arterial" in order to

receive Measure A funding. Pursuant to Section 1 of "Coachella Valley Area" in Measure A, "regional road

improvements" funded by Measure A are considered "Measure A funded arterials." Since a strong argument can

be made that the LSEV Component is a regional road improvement eligible for Measure A funding, the LSEV

Component would likely be a regional arterial under Measure A.

Finally, we believe that pursuant to Section 1 of "Coachella Valley Area" in Measure A, Measure A revenues may

be used for preventative maintenance for any regional road improvements funded by Measure A as long as a

majority of Coachella Valley local governments approve. Therefore, if the LSEV Component is eventually funded

by Measure A revenues, those revenues may also be used to fund preventative maintenance of the LSEV

Component, with majority approval of Coachella Valley local governments.

Best Best and Krieeer (BB&KI Expertise

It has been suggested that a legal opinion of this issue should be obtained from an independent firm outside ofRiverside County. BB&K has been RCTC's General Counsel for almost 25 years. The current General Counsel,

Steven DeBaun, has served in that role for about 20 years. BB&K drafted the 2002 Measure A sales tax ordinance

and assisted in the development of the 2002 Measure A expenditure plan. They are uniquely qualified toevaluate the language and intent of the ordinance. In addition, considering their ongoing role as General Counsel,

they have a responsibility to help ensure compliance with the Measure A program.

BB&K is a full service law firm with almost 200 attorneys in nine offices. The firm serves as city attorney to more

than 30 cities across California and as general and special counsel to special districts that focus on water,

transportation, regional planning and resource conservation throughout California.

Mr. Tom Kirk, Executive DirectorPage 3

May 26,20L5

Conclusion

CV Link is a novel multimodal approach to providing transportation infrastructure that incorporates

characteristics of several different types of projects. As the administrator of Measure A revenues, RCTC is tasked

with protecting the integrity of Measure A by carefully analyzing the different components of CV Link for funding

eligibility. Based on our analysis, we believe portions of CV Link dedicated exclusively to pedestrian and bicycle

uses are not eligible for funding. However, we believe a strong argument can be made that CV Link's LSEV

Component (once added to the TPPS) is eligible for Measure A funding. lf eventually funded by Measure A, CVAG

may also use Measure A revenues for preventative maintenance of the LSEV Component with majority approval

of the localgovernments in Coachella Valley.

By email