OAKLAND, Calif. — A Superior Court judge here promised an answer by Monday morning as to whether he will keep in place the temporary restraining order blocking execution of a public-private partnership to rebuild a key access road to the Golden Gate Bridge.
"I'm going to get you a detailed ruling no later than Monday morning," Alameda County Superior Court Judge Wynne Carvill told attorneys after the Thursday morning hearing.
A public employee union sued to block the project, which is to use an availability payment structure for the Presidio Parkway project, which will replace the decrepit Doyle Drive approach to the bridge that was built in the 1930s.
The California Department of Transportation and the San Francisco County Transportation Authority have announced their intent to award the design-build-operate-maintain project to Golden Link Partners, a consortium led by Hochtief AG and Meridiam Infrastructure. Golden Link would receive $28 million in availability payments annually for 30 years, tied to performance targets for operating and maintaining the roadway.
Their proposal includes the use of $150 million of private-activity bonds to cover part of the estimated $358 million cost.
In November, the Professional Engineers in California Government sued to block the P3 agreement, alleging in their lawsuit that transportation authorities are "wasting nearly $1 billion on a no-bid P3 contract which is not authorized by statute."
They want the project returned to a traditional procurement, under which the Caltrans employees represented by the union would handle engineering work. PECG represents about 13,000 state employees, primarily highway engineers.
Carvill issued the temporary restraining order last week. Not only did he promise quick action on that order on Thursday, but he also said he would endeavor to have a decision in the case at the Superior Court level by January, so that the appeals process can run its course in a timely manner.
The Presidio Parkway would be the first California project financed under P3 legislation lawmakers approved in 2009, with strong support from Gov. Arnold Schwarzenegger.
The PECG cites support from the independent Legislative Analyst's Office, which notes that the project does not meet one of the key objectives of the P3 legislation because it does not bring any new revenue to the table.
"We do not think the Presidio project is a good fit for a P3 procurement approach because the project is already very far along in its schedule and does not rely on a toll or user fee to fund its work," the LAO said this month in a letter to Sen. Alan Lowenthal, (D-Long Beach), chairman of the Senate's transportation committee.
The arguments at Thursday's hearing centered on the intent and specific wording of the state P3 statute.
The PECG's attorney, Jennifer Buckman, said that the statute specifically requires the imposition of tolls and user fees in a P3 project, and that such projects can not be replacements for an existing facility, as Presidio Parkway will be. "It doesn't add any new capacity," she said.
State officials say the P3 statute allows tolls, but doesn't require them, and that the project meets P3 objectives because it transfers risk from the state to private parties.
Thursday's legal arguments were as specific as a debate over whether certain words in the P3 statute are verbs or adjectives.
Project plans will be harmed if the P3 contract is tied up in court for too long, said the attorney for Caltrans, Erin Holbrook.
"It is very critical that this agreement be put in place," she said.
Holbrook added that it would be difficult to impossible to simply switch the project to a traditional design-bid-build contract, because no authorizations or appropriations are in place for such an arrangement.
