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AB-1405 Advanced Digital Network Act.(2017-2018)

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Date Published: 02/26/2018 09:00 PM
AB1405:v93#DOCUMENT

Amended  IN  Senate  February 26, 2018
Amended  IN  Senate  September 08, 2017
Amended  IN  Senate  September 01, 2017
Amended  IN  Senate  July 17, 2017
Amended  IN  Assembly  May 02, 2017
Amended  IN  Assembly  March 20, 2017

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Assembly Bill No. 1405


Introduced by Assembly Member Mullin

February 17, 2017


An act to add Article 4.6 (commencing with Section 172) to Chapter 1 of Division 1 of the Streets and Highways Code, relating to transportation.


LEGISLATIVE COUNSEL'S DIGEST


AB 1405, as amended, Mullin. Advanced Digital Network Act.
Existing law, the Outdoor Advertising Act, provides for the regulation by the Department of Transportation of advertising displays, as defined, within view of public highways.
This bill would enact the Advanced Digital Network Act. The bill would authorize the department, subject to federal approval, to enter into a specified comprehensive development lease agreement pursuant to a best value competitive procurement process for a project with a public or private entity, or a consortia thereof, to install and operate a network of new digital signs within the rights-of-way of the state highway system that would display commercial advertising and public service messages. The bill would authorize the use of the digital signs for emergency messages, as needed, and require dedicated time to be provided to the department to use the advanced digital network for traveler information and motorist safety and awareness campaigns and any other public messaging desired by the state, without providing additional compensation to the contracting entity.
The bill would provide for the contracting entity with which the department has entered into the agreement to contract and receive funds for the placement of commercial advertisements that meet certain standards established by the department. The bill would require revenues derived from the project to be allocated between the department and the contracting entity with which the department has entered into the agreement and would require those revenues received by the department to be deposited in the State Highway Account.
The bill would authorize the department to exercise any power possessed by it with respect to transportation projects to facilitate the project and to adopt guidelines and procedures relative to advertising on the network. The bill would require the department, within one year following the implementation of the project, to submit a specified report to the fiscal and policy committees of the Legislature having jurisdiction over transportation matters.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 Article 4.6 (commencing with Section 172) is added to Chapter 1 of Division 1 of the Streets and Highways Code, to read:
Article  4.6. Advanced Digital Network Act

172.
 This article shall be known, and may be cited, as the Advanced Digital Network Act.

172.1.
 The Legislature finds and declares all of the following:
(a) Communicating timely information to the traveling public regarding laws, services and events, public service and public health and safety messages, and emergency notifications is an essential public purpose that advances the general health, welfare, and safety of the citizens of California and entities that visit and travel through the state.
(b) California presently makes available on its Internet Web site information regarding laws, services and events, communicates public service and public health and safety messages, and transmits emergency notifications to users of computers, smartphones, and similar online and wireless devices. While this mechanism is effective, it does not provide real-time information to motorists.
(c) Recent advances in technology have made it possible to create a reliable, effective, and comprehensive network of digital signs that combine text with graphics in order to rapidly and clearly communicate important emergency and public service information to the users of California’s highways more safely and effectively than the current methods. This advanced technology digital network would increase the efficacy and reliability of this information transmission by increasing the number and visibility of signs providing emergency and public service information, thereby enhancing the safety and travel experience of the people of California, and function as an extension and improvement of the existing California public information and emergency messaging communication efforts.
(d) The establishment and operation of an advanced digital network should be accomplished at no cost to the state through a public-private partnership, where the private partner erects and operates the network, but is allowed to earn revenues from advertising when signs on the network are not used for public purposes.
(e) Revenues to the state generated by the advanced digital network would provide additional funding for transportation and safety initiatives such as additional highway maintenance and repair, in return for the right to place advertisements on the advanced digital network in a manner that is consistent with, and supports, the network’s safety and public communication functions.
(f) The advanced digital network signs shall be located and installed in accordance with department guidelines for orientation toward motorists on the traveled way and shall have minimal impact outside of those rights-of-way.
(g) The authority to use the advanced digital network for commercial advertising shall require that the advertising and department messaging, when displayed in combination, are determined to be safe and do not create an unsafe distraction to motorists, and is subject to any required prior authorization under federal law.

172.4.
 For purposes of this article, the following terms mean the following:
(a) “Advance “Advanced digital network” means an integrated network of digital signs. The advanced digital network shall consist of new digital signs at locations as determined by the department.
(b) “Agreement” means a legally enforceable agreement for the project to install and operate an advanced digital network, including, but not limited to, a license, lease, highway improvement agreement, easement, encroachment permit, or operation and maintenance agreement.
(c) “Best value” means a value determined by objective criteria that may include, but are not limited to, revenues to the state, features, experience, functions, life cycle costs, price, the capability to develop and incorporate advanced technologies, and other criteria deemed appropriate by the department.
(d) “Contracting entity or lessee” means a public or private entity, or consortia thereof, that has entered into a comprehensive development lease agreement with the department for a project pursuant to this section.
(e) “Design-build” means a procurement process in which both the design and construction of a project are procured from a single entity.
(f) “Digital sign” means a department-owned or controlled sign or official sign that is designed to display various messages that provide information to the public, as well as advertising, by mechanical or electronic means centrally controlled through a network, including, but not limited to, digital and light-emitting diode (LED) technologies.
(g) “Project” means to study, plan, design, construct, develop, finance, maintain, rebuild, improve, repair, lease, operate, or any combination of these, a state-of-the-art, full-color network of digital signs within the rights-of-way of the state highway system.

172.6.
 (a) Notwithstanding any other law, and subject to any required federal approval authorizing the department to do so, the department may solicit proposals, accept unsolicited proposals, negotiate, and enter into a comprehensive development lease agreement with a public or private entity, or consortia thereof, to conduct a single project, in a manner that best effectuates the purposes of this article, to install and operate new digital signs within the state highway right-of-way, in a manner to best effectuate the purposes of this article. If the department is advised by the United States Department of Transportation, or any of its agencies, that a display of advertising authorized by this article would result in the reduction of federal aid highway funds to the state pursuant to Section 131 of Title 23 of the United States Code, that display of advertising shall not be made. The department shall conduct a best value competitive procurement and negotiate an initial agreement to become effective upon obtaining any necessary federal authorization. The department may provide services for which it is reimbursed with respect to preliminary design, inspection, and oversight of the project.
(b) The agreement shall provide that the contracting entity with which the agreement is entered into will bear all reasonable costs of the project, including, but not limited to, costs of installation, maintenance, and operation of the project.
(c) The agreement described in subdivision (a) shall do all of the following:
(1) Provide for construction, operation, and maintenance of a network of new digital signs at locations selected for the project.
(2) Provide for complete reversion of any ownership interest in any of the privately constructed, improved, operated, and maintained digital signs to the department at the expiration of the agreement at no charge to the department and free and clear of any liens or encumbrances.
(3) Provide that all department emergency notifications shall have priority over other messaging, including advertising.
(4) Provide that the department, in consultation with the Department of the California Highway Patrol, shall retain the ability to make a determination on the safety of the digital signs, and may take those actions deemed necessary to protect public safety.
(5) Require that the agreement entered into pursuant to this section include indemnity, defense, and hold harmless provisions agreed to by the department and the contracting entity, including provisions for indemnifying the State of California against any claims or losses resulting or accruing from the performance of the contracting entity, including advertising on the advanced digital network, excluding any advertising approved in advance or provided by the department. This paragraph does not require the agreement to include any obligation of the State of California to indemnify, defend, or hold harmless the contracting entity.
(6) Provide for the contracting entity with which the agreement is made to contract and receive funds for the placement of commercial advertisements on the advanced digital network, except during times and to the extent the signs are in use by the department and to share revenues generated in connection with the use of those signs for commercial advertising in furtherance of the public interest.
(d) The advanced digital network to be constructed pursuant to this article shall, during the term of the agreement, be deemed to be a part of the state highway system for purposes of identification, maintenance, and enforcement of traffic laws, and part of the state highway system for emergency notification and other public service information purposes and for the purposes of Division 3.6 (commencing with Section 810) of Title 1 of the Government Code.
(e) Revenues from the advanced digital network shall be allocated between the contracting entity with which the agreement is made and the department in accordance with the agreement as provided in paragraph (6) of subdivision (c). Revenue derived from the project and received by the department, or any other revenue generated from advertising on the advanced digital network owned by the department, and received by the department, shall be deposited in the State Highway Account in the State Transportation Fund. This revenue shall not be subject to the transfer under Section 183.1 or any successor to that section. Revenues deposited under this section shall be retained in the State Highway Account, subject to appropriation by the Legislature, consistent with the provisions of any federal authorization.
(f) The digital signs shall meet the design, construction, and operating requirements in the department’s standards and guidelines, including, but not limited to, controls, such as state-of-the-art sensors that control the brightness of the display based on the surrounding ambient light levels and other technologies muting adjacent glare, that focus the zone of vision toward motorists on the traveled way and prevent neighborhood impacts in the vicinity of the digital signs.
(g) The department shall retain the ultimate right to determine whether the location for the placement of a digital sign has or will negatively impact a residential area or community. If the department determines that the location of a digital sign has or will have a negative impact on a residential area or community, the department may, in its discretion, impose additional requirements on its lighting or placement, require a different placement, not allow its placement, or require its removal.
(h) For the purpose of facilitating the project, the agreement between the parties 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 of the project. Facilities subject to an agreement under this section shall, at all times, be owned by the department.
(i) The agreement shall require digital signs on the state highway system to meet all requirements for noise mitigation, landscaping, pollution control, and safety that otherwise would apply if the department were designing, building, and operating the project.
(j) Construction, alteration, demolition, installation, repair, and maintenance work for digital signs is a public work for purposes of Chapter 1 (commencing with Section 1720) of Part 7 of Division 2 of the Labor Code.

172.8.
 The department may exercise any power possessed by it with respect to transportation projects to facilitate the project pursuant to this article. The department may provide services to the contracting entity for which the department is reimbursed, including, but not limited to, planning, environmental planning, environmental certification, environmental review, preliminary design, design, right-of-way acquisition, construction, maintenance, and policing of the project. The department shall regularly inspect the advanced digital network and require the contracting entity to maintain and operate the advanced digital network according to adopted standards. Except as may otherwise be set forth in the agreement, the contracting entity shall be responsible for all costs due to development, maintenance, repair, rehabilitation, and reconstruction, and operating costs.

172.9.
 Advertising on the advanced digital network shall be in the form and under those conditions as may be determined by the department and as may be set forth in standards, guidelines, and procedures adopted by the department. The advertising shall not compromise safety or the department’s safety communication functions. The network shall enhance public messaging, including, but not limited to, safety campaigns, emergency notifications, travel times, and traveler information and the function of the advanced digital network. All digital signs subject to this article shall be exempt from Section 5408 of the Business and Professions Code and from any and all regulations promulgated in connection with Section 5408 of the Business and Professions Code.

173.
 The department shall not enter into an agreement with any contracting entity that would cause or permit any digital sign to display or advertise alcohol, tobacco, firearms, sexually explicit material, political messages or advertisements, or any illegal activity. The department shall adopt policies and guidelines in connection with the content and formatting of the advertising.

173.2.
 The department may use the digital signs for emergency messages, as needed, and dedicated time shall be provided to the department to use the advanced digital network for traveler information and motorist safety and awareness campaigns and any other public service messaging desired by the state, without providing compensation to the contracting entity with which it enters into an agreement pursuant to this article.

173.4.
 (a) When choosing the contracting entity with which to enter into an agreement pursuant to Section 172.6 to effectuate the purposes of this article, the department may utilize, but is not limited to utilizing, one or more of the following procurement approaches:
(1) Solicitations of proposals for defined projects and calls for project proposals within defined parameters.
(2) Prequalification and short-listing of proposers prior to final evaluation of proposals.
(3) Final evaluation of proposals based on qualifications and best value.
(4) Negotiations with proposers prior to award.
(5) Acceptance of unsolicited proposals, with issuance of requests for competing proposals.
(b) When evaluating a proposal submitted by the contracting entity or lessee, the department or the regional transportation agency may award a contract on the basis of best value.
(c) The department may retain a consultant or adviser to assist in preparing the best value criteria, selection of a contracting entity, and oversight of the project. The consultant or adviser shall not bid on the project or, before one year following award of a contract, work as an officer or employee of, or consultant or adviser to, any contracting entity or entities seeking to bid on the project.
(d) The contracting entity shall have the following qualifications:
(1) Evidence that the members of the contracting entity have completed, or have demonstrated the experience, competency, capability, and capacity to complete, a project of similar size, scope, or complexity, and that proposed key personnel have sufficient experience and training to competently manage and complete the design and construction of the project, and a financial statement that ensures that the contracting entity or lessee has the capacity to complete the project.
(2) The licenses, registration, and credentials required to design and construct the project, including, but not limited to, information on the revocation or suspension of any license, credential, or registration.
(3) Evidence that establishes that members of the contracting entity or lessee have the capacity to obtain all required payment and performance bonding, liability insurance, and errors and omissions insurance.
(4) Evidence that the contracting entity or lessee has workers’ compensation experience, history, and a worker safety program of members of the contracting entity or lessee that is acceptable to the department or regional transportation agency.
(5) A full disclosure regarding all of the following with respect to each member of the contracting entity or lessee during the past five years:
(A) Any serious or willful violation of Part 1 (commencing with Section 6300) of Division 5 of the Labor Code or the federal Occupational Safety and Health Act of 1970 (Public Law 91-596).
(B) Any instance in which members of the contracting entity or lessee were debarred, disqualified, or removed from a federal, state, or local governmental public works project.
(C) Any instance where members of the contracting entity, or its owners, officers, or managing employees submitted a bid on a public works project and were found to be nonresponsive or were found by an awarding body not to be a responsible bidder.
(D) Any instance where members of the contracting entity or lessee, or its owners, officers, or managing employees defaulted on a construction contract.
(E) Any violations of the Contractors’ State License Law (Chapter 9 (commencing with Section 7000) of Division 3 of the Business and Professions Code), including, but not limited to, alleged violations of federal or state law regarding the payment of wages, benefits, apprenticeship requirements, or personal income tax withholding, or Federal Insurance Contributions Act (FICA) withholding requirements.
(F) Any bankruptcy or receivership of any member of the contracting entity or lessee, including, but not limited to, information concerning any work completed by a surety.
(G) Any settled adverse claims, disputes, or lawsuits between the owner of a public works project and any member of the contracting entity or lessee during the five years preceding submission of a bid under this article, in which the claim, settlement, or judgment exceeds fifty thousand dollars ($50,000). Information shall also be provided concerning any work completed by a surety during this five-year period.

173.6.
 Within one year following implementation of the project, the department shall submit a report to the fiscal and policy committees of the Legislature with jurisdiction over transportation matters. The report shall include, but not be limited to, all of the following:
(a) The status of implementation of the agreement, including the number of digital signs placed and the locations of the digital signs placed.
(b) The amount of revenue received, cost savings to the department, and the costs incurred by the department with respect to the project, including costs incurred prior to the time the department entered into an agreement.
(c) An assessment of the effect the project has had on public safety, emergency notification, traveler information, and motorist safety and awareness campaigns.
(d) A description of the types of advertising content displayed on the digital signs.

173.8.
 The provisions of this article are severable. If any provision of this article 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.