11. Operations and Maintenance of a Freeway Cap:
Providing for operations and maintenance after construction is a bit more complicated for a freeway cap than for developments on private land. However, it is an important concern of the SDOTs and municipal agencies who will approve the project. With regard to a retrofit cap project, creating an income stream that is sufficient and independent of SDOT funding will likely be a prerequisite of the SDOT’s approval. There are various strategies for providing for post-construction operations and maintenance, both in terms of assigning responsibility and in terms of identifying a funding stream. These strategies include the following:
- Assessment district, tax increment district, or other type of district involving a fee, tax, or assessment.
- Municipality takes on funding and/or management responsibility.
- Public private partnership (P3), involving either a non-profit or for-profit entity that is responsible for maintenance and operations.
The operations and maintenance responsibilities must be specified and recorded in some type of written agreement, e.g. a binding Memorandum of Understanding (MOU). Some examples of O&M funding strategies include the following:
Klyde-Warren (Dallas): The Woodall Rodgers Park Foundation, a private non-profit organization, agreed to fund and manage the operations and maintenance of the freeway cap park.
Presidio Parkway (San Francisco): The Gold Link, the private developer of the cap / tunnel project pursuant to a P3, agreed to operate and maintain the tunnels and viaducts for 30 years subject to the oversight of CalTrans and the San Francisco County Transportation Authority.
Capitol Crossing (District of Columbia): As a private development, much of the operations and maintenance obligations can be undertaken by the developer / owner / master-lessor of airspace. To the extent there may be multiple owners on the structure, there will likely be an owners’ association and governing documents like a Declaration of Covenants, Conditions, and Restrictions (CCRs) and bylaws. Common area maintenance (CAM), including maintenance of sub and super-structure elements, will be apportioned among the owners, and passed on as CAM fees to the tenants. Responsibility for maintaining public rights of way, like roads and adjacent sidewalks, will likely be subject to a negotiated MOU with the municipality or county. It is reasonable to expect the municipality will accept responsibility for maintaining at least the surface elements of such public rights of way, and that the municipality will retain easements, ownership, and right of access to these rights of way.
 In California, tax increment funding mechanisms like Enhanced Infrastructure Financing Districts can only be used to fund construction of capital improvements and cannot be used for routine maintenance and repairs. Cal. Government Code §53398.52(a)(3), (13)
 CalTrans (2017), Freeway Best Practices Guide, Final Draft, p. 4-5; Retrieved on April 4, 2018 from http://www.dot.ca.gov/hq/tpp/grant_files/final-products/11_FwyCapBestPracticesGuideFinalDraft_03122017_Watermark.pdf
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