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PW Street Smarts Program DisplaysStreet Smarts Marin Local Program Approval and Certification This document authorizes the Transportation Authority of Marin (TAM) to provide Street Smarts banners and signs. Exact locations and quantities will be listed in the Message Placement Plan to be developed at a later date. Vertical banners will be installed by TAM in accordance with the Message Placement Plan. The County of Marin has raised concerns regarding the legality of certain portions of the program. Issues have been raised about the signs being interpreted as traffic control signs. Traffic control signs are required to be placed in accordance with the Manual of Uniform Traffic Control Devices (MUTCD) as amended by the State of California. A legal opinion from Nossaman LLP has been sent with this approval document that argues that the program is in compliance with exceptions listed in the MUTCD and other applicable state and federal programs. You may wish to consult with your own legal staff to verify the appropriateness of the program for use within the City of San Rafael. Artwork on the banners and signs that includes regulatory and advisory signs (i.e., stop sign and crosswalk sign photos) has been removed from newer available sign choices. The TAM Board of Commissioners has determined that this document must be signed by the City Manager or other City staff designated to do so before release of funds to purchase media material. After receipt of the signed document, TAM will place the Street Smarts Marin banner/sign order in compliance with the approved Message Placement Plan. The order will include any signs to be placed at schools or private property. Signs will be delivered to City representatives only. Administration of the allotment of signs to schools or private citizens will be performed by City of San Rafael employees and in accordance with San Rafael internal processes for managing the distribution of Street Smarts materials. Signed by Date—// -,C f r Name Jim Schutz (please print) Title City Manager, City of San Rafael ' -3 - qq9 Attachment 1 NOSSAMAN UP Memorandum TO: Ms. Dianne Steinhauser Executive Director, Transportation Authority of Marin FROM: Nossaman LLP DATE: July 23, 2009 RE: Street Smarts Program Displays - California and Federal Compliance 000010-0105 Issue: You have asked us to review the "Street Smarts" Program to determine whether the program, as implemented, violates current Federal or California laws or regulations related to the control of signs on or adjacent to streets in Marin County. Conclusion: The signs used by the Street Smarts Program are explicitly allowed under the Manual on Uniform Traffic Control Devices (MUTCD), Section 1A.08, and in situations where they might be subject to the Highway Beautification Act, they fall within the exemption provided by 23 U.S.C. 131(c) for official signs. Further, Federal Highway Administration (FHWA) has issued a policy statement supporting the display of safety messages associated with a safety campaign. The signs in the Street Smarts Program are also consistent with the California MUTCD and the California Outdoor Advertising Control Act. Street Smarts Program Street Smarts is a traffic calming program designed by the City of San Jose Department of Transportation to reduce the number of traffic -related accidents, injuries and deaths by educating drivers, cyclists and pedestrians and raising awareness through community events, neighborhood initiatives, corporate sponsorships, school presentations, banners, neighborhood signs and more. The City has registered the messages and licenses them to users. Users purchase and install the signs and banners. As part of this program, sponsor agencies post signs and banners on buildings, light poles, and in some cases over streets, with messages emphasizing the importance of safety. Street Smarts Signs consist of two fields — a large blue sky background the covers most of the sign, and features safety/traffic calming messages and graphics, and a black horizon/foreground featuring the Street Smarts logo, web address. A TAM logo fills the bottom of the sign. They range in size and shape from 3x3' signs to be attached to existing official signs, to large vertical or horizontal banners to be displayed on light posts or hung across streets. These signs do not follow any of the models included in the MUTCD for official signs, and are not intended to function as traffic control devices. Rather, they display safety messages associated with a public safety campaign. FHWA has issued a policy statement explicitly endorsing the display of safety signs (though that statement dealt with a federal program). We conclude that the Street Memorandum July 23, 2009 Page 2 Smarts Signs are not traffic control devices within the meaning of the MUTCD and related regulations; the guidance from FHWA acknowledges that safety messages are not explicitly dealt with in the MUTCD. The "Click -it or Ticket" signs covered by FHWA's policy statement were even more problematic than the signs envisioned here. As we note below, the signs here are permitted under broader provisions than those cited in the FHWA memorandum. The memorandum illustrates FHWA flexibility, particularly when it relates to transmitting safety related messages. Applicable Laws and Regulations An initial search of California and federal law related to the legality of the Street Smarts Program's planned displays found that these signs are potentially subject to the Federal and California MUTCDs, the Federal Highway Beautification Act, and the analogous California Outdoor Advertising Act. We will cover each of these authorities below but we believe that there are exceptions in each that will allow for the implementation of the Street Smarts Program, subject to certain conditions. The Manual on Uniform Traffic Control Devices — Background: The MUTCD regulates official guide and regulatory signs located within the highway right-of- way. The MUTCD applies to all roads and streets open to the public. See 23 U.S.C. §§109(d) and 402(a). See also, the regulations implementing this provision, 23 C.F.R. §655.601. Section 655.603(a) states that: "The MUTCD approved by [FHWA] is the national standard for all traffic control devices installed on any street, highway, or bicycle trail open to public travel in accordance with 23 U.S.C. 109(d) and 402(a)." The MUTCD contains extensive guidance on the appearance and location of signs, which assures that official signs and markings are essentially the same throughout the United States. The MUTCD addresses the purposes, shape, size, color, reflectivity, lighting, lettering style, location of, and other specific attributes of such signs. Street Smarts Signs Are Not Traffic Control Devices FHWA's regulations at 23 C.F.R. §655.602 incorporate by reference the definitions contained in the MUTCD and 23 U.S.C. §101(a). The MUTCD defines traffic control devices as "all signs, signals, markings, and other devices used to regulate, warn, or guide traffic, placed on, over, or adjacent to a street, highway, pedestrian facility, or bikeway by authority of a public agency having jurisdiction." For the purpose of the MUTCD, whether a display qualifies as a "sign" depends on the function of the display. MUTCD 2A.05 describes several classes of signs: Signs shall be defined by their function as follows: A. Regulatory signs give notice of traffic laws or regulations. B. Warning signs give notice of a situation that might not be readily apparent. C. Guide signs show route designations, destinations, directions, distances, services, points of interest, and other geographical, recreational, or cultural information. The Street Smarts signs do not fit within any of these categories. MUTCD Section 2A.01 further limits the scope of the manual to signs within the right of way, and again refers to the scope of Memorandum July 23, 2009 Page 3 functions of covered signs, saying that "signs are not typically used to confirm rules of the road." Street Smarts signs (which are targeted at confirming rules of the road in an effort to increase safety) are not within the contemplated definition of traffic control devices, and are not required to comply with the design criteria included in the MUTCD. Instead, the MUTCD makes a special exception for announcements, advertisements and other signs/messages posted by public agencies in Section 1A.08: Traffic control devices, advertisements, announcements, and other signs or messages within the highway right-of-way shall be placed only as authorized by a public authority or the official having jurisdiction, for the purpose of regulating, warning, or guiding traffic. This provision describes broader categories of signs than those detailed in Sections permitted under Section 2A.01: "Advertisements, announcements, and other signs or messages" all encompass broad classes of messages and signs. The Street Smarts messages at issue would constitute either "announcements" or "other signs and messages, "as contemplated by Section 1A.08. This is the only place in the MUTCD where it refers to announcements, and it seems to offer broad exceptions for displays posted by public authorities. The scope of this provision is evidenced by the banners and posters that towns typically post announcing fairs, local civic events and the like, all of which are very similar in appearance to what is contemplated here. This provision of the MUTCD extends to signs placed within the right-of-way of roads open to the public. For those signs posted outside the right-of-way, the restrictions of the MUTCD do not apply. However, in cases where these signs would be placed adjacent to the right-of-way of an Interstate or federal -aid Primary highway, the provisions of the Highway Beautification Act would apply. Highway Beautification Act The Highway Beautification Act' (HBA) governs the erection and maintenance of outdoor advertising signs, displays, and devices in areas adjacent to (outside the right-of-way of) the Interstate System and the Primary system', and is codified at 23 U.S.C. 131. The HBA places strict limits on the types of signs that can be placed within 660 feet of the system to be viewed from the traveled way. However, §131(c)(1) allows for certain signs to be displayed within this zone: (c) Effective control means that such signs, displays, or devices after January 1, 1968, if located within six hundred and sixty feet of the right-of-way and, on or after July 1, 1975, or after the expiration of the next regular session of the State legislature, whichever is later, if located beyond six hundred and sixty feet of the Pub. L. 89-285, Oct. 22, 1965, 79 Stat. 1028, as amended. ' We understand that the signs and banners contemplated by Marin County will not be placed on Interstate Highways. The Primary System, which included major regional connector roads, was not composed only of limited access highways. The Primary System was eliminated by the Intermodal Surface Transportation Efficiency Act of 1991, Pub. L. 102-240, Dec. 18, 1991, but was continued for purposes of the Highway Beautification Act only. Since 1991, this system has grown only by adding the sections of the National Highway System that may not have been previously designated as part of the Primary System. Memorandum July 23, 2009 Page 4 right-of-way located outside of urban areas, visible from the main traveled way of the system, and erected with the purpose of their message being read from such main traveled way, shall, pursuant to this section, be limited to (1) directional and official signs and notices, which signs and notices shall include, but not be limited to, signs and notices pertaining to natural wonders, scenic and historical attractions, which are required or authorized by law, which shall conform to national standards hereby authorized to be promulgated by the Secretary hereunder, which standards shall contain provisions concerning lighting, size, number, and spacing of signs, and such other requirements as may be appropriate to implement this section... Street Smarts Signs Are Official Signs and Notices Under the HBA As the Street Smarts signs will be erected by the public agencies sponsoring the effort as part of a safety improvement program, they fall within the scope of the §131(c)(1) exemption for directional and official signs and notices. The Secretary issued national standards for these signs at 23 C.F.R. part 750, subpart B. While these standards contain specific requirements for directional signs, there are no restrictions of official signs other than those found in the definition set forth at 23 C.F.R. §750.153(n): (n) Official signs and notices means signs and notices erected and maintained by public officers or public agencies within their territorial or zoning jurisdiction and pursuant to and in accordance with direction or authorization contained in Federal, State, or local law for the purposes of carrying out an official duty or responsibility... . The Street Smarts signs will be erected and maintained by local agencies in accordance with local law, to carry out the implementation of a new safety campaign. Thus, to the extent that they may be located outside of the right-of-way, they are within the exception provided in the HBA. There are no restrictions in Federal law on signs located outside of the right-of-way of roads other than those for the areas adjacent to Interstate or Primary highways. CaIMUTCD California has adopted its own version of the MUTCD.3 The California MUTCD (CaIMUTCD) supplements the Federal MUTCD, which applies to all "traffic control devices" installed on any street, highway or bicycle trail. (Sec. 1A.07) California has made a specific finding that the CaIMUTCD is not in conflict with the Federal MUTCD. (Id.) Thus, by its own terms, the CaIMUTCD follows the lead of the Federal MUTCD, and so the banners and signs here would also comply with California requirements. California has adopted Section 1A.08 of the Federal MUTCD in toto. The language of this provision is identical in the Federal MUTCD and the CaIMUTCD. The additional commentary Available through the Caltrans website at: www.dot.ca.gov/hq/traffops/signtech/mutcdsupp/ca mutcd.htm Memorandum July 23, 2009 Page 5 provided in the CaIMUTCD only references traffic control devices, not "advertisements, announcements, and other signs or messages," and therefore does not change the fact that no guidance is provided regarding anything other than traffic control devices. Additionally, California has a prohibition on installing signs on private property that are "intended to regulate, warn or guide traffic" unless the signs meet MUTCD standards. (Id. )4 The definition of "traffic control device" is any sign or similar item that regulates, warns or guides traffic. (Sec. 1A.13.87.) The "Street Smarts" program is not intended to and does not regulate, warn or guide traffic, so its displays are not required to meet the CaIMUTCD requirements. The CaIMUTCD provides the same definition for signs found in the Federal MUTCD and describes the same classes of signs as MUTCD 2A.05. The Streets Smarts displays do not fit into the descriptions above, and do not follow the designs illustrated in the MUTCD. Section 2A.01 of the CaIMUTCD echoes the Federal MUTCD's directive that MUTCD signs are not used to confirm rules of the road. California Outdoor Advertising Act The California Outdoor Advertising Act (OAA) regulates the placement of advertising along Interstate and Primary highways and is codified in the Business & Professions Code (B&P).5 Like the Federal HBA, the OAA applies outside of the highway right-of-way. The OAA only regulates advertising signage and structures. The statute does not provide a detailed definition of what constitutes "advertising," although it states that it does not include either (i) notices posted by a public officer in performance of a public duty6 or (ii) directional, warning or information structures. (Cal. B & P Code Sec. 5203(b), (c)) Additionally, the OAA applies only to Interstate and Primary highways. (the definition of Primary Highways follows the definition in the Federal law). (Cal. B & P Code Sec. 5220) Thus, just as is the case with the HBA, if the Street Smarts banners and signs are not being placed adjacent to Primary highways, or if the signage does not constitute "advertising," it would not be subject to the OAA. It seems unlikely that the signs would constitute advertising. The banners and signs are clearly being erected by "a public officer in performance of a public duty;" there is no commercial message of any kind being conveyed through the signage. evak/ash1 4 CaIMUTCD Section 1A.07: Subject to the requirements in California Vehicle Code Sections 21100, 21100.1, 21107, 21107.5, 21107.6, and 21107.7, no person shall install or maintain in any area of private property used by the public any sign, signal, or marking or other device intended to regulate, warn, or guide traffic unless it conforms to Department of Transportation standards and specifications. 5 A copy of the statute and regulations is also available on the Caltrans website at: www.dot.ca.gov/oda/download/ODA—Act—&—Requlations.pdf. 6 This provision of the California mirrors the provisions of the HBA related to official signs and notices. CONTRACT ROUTING FORM INSTRUCTIONS: Use this cover sheet to circulate all contracts for review and approval in the order shown below. TO BE COMPLETED BY INITIATING DEPARTMENT PROJECT MANAGER: Contracting Department: Public Works Project Manager: Bill Guerin Extension: 3110 Contractor Name: Transportation Authority of Marin Contractor's Contact: Dan Cherrier Contact's Email: dcherrier@tam.ca.gov ❑ FPPC: Check if Contractor/Consultant must file Form 700 Step RESPONSIBLE DESCRIPTION COMPLETED REVIEWER DEPARTMENT DATE Check/Initial 1 Project Manager a. Email PINS Introductory Notice to Contractor Click here to N enter a date. BG b. Email contract (in Word) and attachments to City 10/31/2019 Attorney c/o Laraine.Gittens@cityofsanrafael.org NIK 2 City Attorney a. Review, revise, and comment on draft agreement 10/31/2019 N LG and return to Project Manager 10/31/2019 N LG b. Confirm insurance requirements, create Job on Department Director PINS, send PINS insurance notice to contractor N BG 3 Approval of final agreement form to send to 10/31/2019 contractor 4 Project Manager Forward three (3) originals of final agreement to Click here to ❑ contractor for their signature When necessary, contractor -signed agreement enter a date. N N/A 5 Project Manager agendized for City Council approval * *City Council approval required for Professional Services ❑ Agreements and purchases of goods and services that exceed Or $75,000; and for Public Works Contracts that exceed $175,000 Click here to PRINT Project Manager Date of City Council approval enter a date. CONTINUE ROUTING PROCESS WITH HARD COPY 6 Forward signed original agreements to City City Attorney Attorney with printed copy of this routing form 7 Review and approve hard copy of signed agreement 8 City Attorney Review and approve insurance in PINS, and bonds (for Public Works Contracts) 9 City Manager/ Mayor Agreement executed by City Council authorized f official 10 City Clerk Attest signatures, retains original agreement and 1 �'� CJ forwards copies to Project Manager i