(a) For the purposes of this section, the following definitions apply:

(1) “Authorized agreement” means either of the following types of agreements:

(A) An agreement whereby the rail entity assists the department in defining a feasible project and negotiates fair and reasonable terms for implementing the project.

(B) An agreement whereby the rail entity assumes responsibility for designing, procuring, delivering, improving, or constructing an eligible facility in accordance with established specifications and payment terms.

(2) “Eligible facility” means any wildlife crossing and appurtenance thereto developed, operated, or held in accordance with this section, and includes the wildlife crossings and appurtenances described in paragraph (1) of subdivision (b).

(3) “Quantifiable environmental benefits” means documented, ongoing, positive, and quantifiable benefits to the environment and environmental quality, including to wildlife.

(4) “Rail entity” means a person, entity, or organization that is not the federal government or any other public agency and that is undertaking an intercity passenger rail construction project within the Interstate 15 right-of-way.

(5) “State-Rail agreement” means the “Agreement to Implement Wildlife Overcrossings Over Interstate 15” executed on January 11, 2023, by and among DesertXpress Enterprises, LLC, the department, and the Department of Fish and Wildlife.

(b) (1) If an intercity passenger rail project is constructed within the segment of the Interstate 15 right-of-way at the segment described in Recital B of the State-Rail agreement, the department shall ensure the construction of three wildlife crossings and appurtenances at three priority locations.

(2) The department may use an authorized agreement to comply with paragraph (1).

(3) The department shall consult with the Department of Fish and Wildlife and with entities with expertise in the development, design, and construction of wildlife crossing structures as part of the development, design, and construction of the three wildlife crossing structures described in paragraph (1).

(4) After construction, the department shall own the wildlife overcrossings, and the department, in consultation with, and the support of, the Department of Fish and Wildlife, shall maintain and operate the wildlife overcrossings, including the maintenance of habitat, consistent with Section 2.2.6 and 2.3.6 of the State-Rail agreement.

(5) The department may enter into an agreement, which shall provide permanent funding as necessary, for the purpose of maintaining habitat on an eligible facility.

(c) Notwithstanding any other law, but subject to this section, the department may solicit proposals for, accept unsolicited proposals for, negotiate, or enter into, an authorized agreement with a rail entity to develop and construct concurrently with the rail entity’s project an eligible facility that is described in paragraph (1) of subdivision (b).

(d) The department may enter into an authorized agreement for purposes of paragraph (2) of subdivision (b) if the authorized agreement will provide quantifiable environmental benefits for the region and for wildlife and if the department deems the authorized agreement to be in the best interest of the state.

(e) (1) The department may include in an authorized agreement to develop, design, and construct an eligible facility for purposes of paragraph (2) of subdivision (b), any provision the department determines necessary or appropriate, including, but not limited to, the following:

(A) Provisions addressing how the department and rail entity will share development costs and allocate and manage project risks.

(B) Provisions allowing the department to grant or otherwise disburse state or federal funds to the rail entity for the costs to develop and construct an eligible facility, excluding any costs associated with the design of an eligible facility.

(C) Provisions addressing the acquisition of rights-of-way and other property interests that may be required, including for the granting of necessary easements and for the issuance of permits or other authorizations.

(D) Provisions identifying any technical specifications concerning the eligible facility that must be satisfied by the rail entity.

(E) Provisions specifying events of default, remedies available to the rail entity and department, and dispute resolution procedures, including arbitration and other alternative dispute resolution procedures.

(F) Provisions regarding the maintenance and auditing of the rail entity’s books and records.

(G) Provisions specifying that the rail entity will comply with all applicable legal requirements related to the use of state or federal funds.

(H) Provisions specifying that the rail entity will obtain errors and omissions insurance coverage for the design elements of the project.

(I) Provisions specifying that the rail entity will require payment and performance bonding, liability insurance, and errors and omissions insurance of its contractors and consultants.

(2) An authorized agreement shall include indemnity, defense, and hold harmless provisions agreed to by the department and the rail entity, including provisions for indemnifying the State of California from any claims or losses resulting or accruing from the performance of the rail entity.

(f) (1) The department may use any lawful source of funding or financing, either previously appropriated or upon appropriation, for the development or construction of an eligible facility under this section, including funding described in paragraph (2).

(2) The department may accept from the United States or any of its agencies any funds or credit assistance as are available to it for carrying out the purposes of this section, whether the funds are made available by grant, loan, or other financing arrangement.

(g) The department shall apply for a competitive grant from federal grant programs to fund activities associated with construction of the wildlife crossing structures described in paragraph (1) of subdivision (b).

(h) (1) Before executing an authorized agreement pursuant to this section, the department shall submit a draft of the agreement to the Department of Finance for review.

(2) An authorized agreement may only be executed under this section before January 1, 2025.

(3) If the department has not executed an authorized agreement pursuant to this section on or before July 1, 2024, the department shall notify the Joint Legislative Budget Committee and submit a progress report on entering into an authorized agreement to the budget committees of the Legislature.

(i) The department shall exercise the authority under this section in consultation with the Department of Fish and Wildlife.

(j) Nothing in this section affects, expands, alters, or limits any other rights or remedies otherwise available at law.

(k) On or before January 1, 2024, and at least annually thereafter, the department shall submit a written status report to the relevant policy committee and budget committee of the Legislature on the implementation of this section.

(Added by Stats. 2023, Ch. 57, Sec. 8. (SB 145) Effective July 10, 2023.)