AC TRANSIT DISTRICT Board of Directors Executive Summary
Meeting Date: August 6, 2008
Committees: Planning Committee External Affairs Committee Rider Complaint Committee
Finance and Audit Committee Operations Committee Paratransit Committee
Board of Directors
Financing Corporation
SUBJECT:
GM Memo No. 08-101
Consider the Receipt of a Report Regarding the Status of the Transbay Transit Terminal Project
RECOMMENDED ACTION: Information Only
Briefing Item
Recommended Motion
Receive the report. Fiscal Impact: To be determined. Background/Discussion: On July 31, 2008, the General Counsel spoke with the Executive Director of the TJPA regarding the timing of the District’s decision on the issues addressed in this memo. She was comfortable with the receipt by the Board of this briefing memo and the Board acting on Agreement and the financing at its September 10th meeting. The District staff and the Transbay Joint Powers Authority (TJPA) staff have been in discussions regarding two major issues related to the Temporary Terminal and the new Transbay Terminal (the “Project”) – financing and a lease and use agreement. The purpose of this report is to update the Board regarding those discussions. The current timeline for the Project anticipates the commencement of construction of the Temporary Terminal in October 2008 with completion and occupancy in August 2009. The BOARD ACTION:
Approved as Recommended [ ] Approved with Modification(s) [ ]
Other
[ ]
The above order was passed on: . Linda A. Nemeroff, District Secretary By
GM Memo No. 08-101 Meeting Date: August 6, 2008 Page 2 of 3 new, permanent Transbay Terminal is presently anticipated to be completed and ready for occupancy of the bus portion (Phase 1) by 2014. Financing The TJPA has included in the various drafts of the Lease and Use Agreement (the “Agreement”), and the parties have reviewed, provisions for payment by the District of a “Capital Contribution” payment for the new Terminal, as well as payment of operation and maintenance costs associated with the Project. The financing issues associated with the Agreement are discussed in Attachment A. Lease and Use Agreement The District and TJPA staffs have reviewed at least three drafts of a proposed Agreement. The Agreement seeks to address the financing, use, occupancy and maintenance and operation responsibilities and obligations of AC Transit and the TJPA. The most recent version of the Agreement was received from the TJPA’s counsel on June 23, 2008. Extensive comments on the draft by the General Counsel were submitted to the TJPA counsel and the TJPA’s Director on July 28. A redline/strikeout version of the Agreement is provided in Attachment B. The Major issues that need to be resolved, apart from the financing issues, are identified below: •
The draft Agreement is based on a contract with a private entity. It contains provisions that are not appropriate for a public entity, in the District’s opinion. For example, Section 21.12 asks for a faithful performance bond equal to two months operating charges (the equivalent of rent). There are a variety of sections that need to be revised or deleted as being inappropriate to a contract between the District and the TJPA.
•
There are issues involving the payment of operating costs at the Temporary Terminal, as well as at the new Terminal.
•
The insurance and indemnification provisions need further discussion.
•
An unresolved issue is the degree to which AC Transit and other transportation tenants (e.g., CalTrain) would have a voice in the operation and maintenance of the Project. The proposed Agreement only provides for a “review and comment” on the annual budget for the Terminal. Any deviation from the District’s comments would have to be explained by the TJPA, but there is no obligation to follow the District’s comments. The staff’s need to engage in further negotiations on this issue.
•
The draft Agreement runs through 2050, and while it has provisions for earlier termination, there are no provisions that address extending the term beyond 2050.
•
The draft Agreement provides for the District to have its own space (Exclusive Use Space), but then attempts to allow the TJPA Executive Director to sublease that space when it is not in use.
GM Memo No. 08-101 Meeting Date: August 6, 2008 Page 3 of 3
As noted at the beginning of this memo, financing and lease issues should be resolved in the coming months in order that the Board can act on the Agreement and its attendant financing at the Board’s September 10th meeting. Prior Relevant Board Actions/Policies: There have been numerous reports regarding the Transbay Terminal with the most recent being November 14, 2007. Attachments: A: Financial Issues B: Draft Transbay Transit Center Program Lease and Use Agreement Approved by:
Prepared by:
Date Prepared:
Rick Fernandez, General Manager Jim Gleich, Deputy General Manager Kenneth C. Scheidig, General Counsel Kenneth C. Scheidig, General Counsel Robert del Rosario, Senior Transportation Planner Kate Miller, Manager Capital Development, Legislation and Grants July 31, 2008
GM Memo 08-101 Attachment A
Financing 1.
Permanent Terminal
Capital Costs: The original proposed agreement included a provision whereby the District would provide $63 million in 2009 dollars if paid prior to 2010 or $161 million if assessed over a 35-year period for its capital contribution to the construction of the new terminal. This amount was based on a $0.25 passenger facility charge (PFC) on projected ridership derived from a draft Transbay Ridership Analysis prepared by Cambridge Systematic. The report projects daily ridership at 17,853 in 2014 with an annual growth rate of 1.6%. AC Transit staff recently made a counter proposal that based projected ridership and annual increases on historical trends but with a guarantee to true up the revenues based on actual ridership should ridership exceed the lower projection. This reduced the projected ridership to 12,489 in 2014 with annual increases at 1.17%. This proposal would reduce the amount payable in advance from $63 million to $37 million or $102 million payable over the 35 year period. Staff has also developed a proposed funding schedule that would commit a portion of the District’s Infrastructure Bond funds to the Project. Table 1 below shows the proposed funding structure including Consumer Price Index adjustments for capital amounts paid after 2010. Since the State-Local Partnership revenues are still unsure, the TJPA requested that we provide sources of back-up funding should these revenues not come to fruition. The proposed back-up funding is shown below the primary proposal in Table 1.
1
TABLE 1: Proposed Revenues Funds Source
FY 2008-09
FY 2009-10
FY 2010-11
FY 2011-12
FY 2012-13
FY 2013-14
Total
Primary Revenues Proposition 1B State Local Partnership Proposition 1B TSSSDRA Interest (to be adjusted to actual CPI when known) Total DHS Security Funds FTA 5307 Funds Interest (to be adjusted to actual CPI when known) Total
1,100,000
4,140,000
4,140,000
4,140,000
4,000,000
4,000,000
1,010,000
535,750
332,250
128,750
$8,675,750 $8,879,250 Back-up Revenues
$ 8,472,250
$5,278,750
$38,546,00 0
1,500,000
1,500,000
1,500,000
7,500,000
2,307,293
2,376,512
1,989,760
13,200,000
279,339
184,157
87,244
923,581
$ 4,086,632
$4,060,669
$3,577,004
$21,623,58 2
4,140,000
4,140,000
2,000,000
4,000,000
739,250 $ 1,100,000
2,111,500
$6,140,000
1,500,000
1,500,000
2,174,845
2,240,090
372,841 $2,111,500
$3,674,845
$4,112,932
Notes: 1) Total preliminary deposit based on AC Transit projected ridership scenario. 2) Amount agreed to $36,810,000 plus true up if ridership exceeds AC projections. 3) Interest adjusted at CPI for all outstanding balances beyond June 30, 2010. 4) For simplicity, CPI is modeled at 2.5% annually 5) Back-up revenues to provide security in the event that Prop.1B State Local Partnership are not realized.
2
20,700,000
16,110,000
1,736,000
Operating Costs: The agreement proposes to distribute responsibility for both facility maintenance and ongoing capital need to Primary Tenants 1 based upon square footage of Exclusive Use Space occupied at the terminal. AC Transit would be, by far, the largest tenant in Phase I of the Project (bus facility only, no trains) at over 192,000 square feet apportioned to the District out of a total 272,000 square feet available for all Primary Tenants or approximately 71% of the space. There is a total of $3 million annually committed to the TB Terminal in Regional Measure 2 bridge toll revenues for operating purposes. The subsidy plus anticipated rents leaves a projected annual cost of approximately $1 million to AC Transit. Staff has considered options to mitigate these costs, such as subleasing the bus parking facility to other downtown venues when the facility is not in use. Operating costs are projected to increase when Caltrain begins operations in 2018. This is primarily the result of additional security costs. However, since the proposed agreement apportions cost by square footage, it is proposed that AC Transit would be responsible for a portion of this increase. Staff continues to work with TJPA staff on other ways to mitigate potential costs and seek additional revenues to cover these costs Staff is also concerned that this agreement may place AC Transit in the position of accruing unanticipated operating costs that are not covered by the lease agreements with other tenants or that can be accommodated by the public subsidy and therefore create an unknown operating liability for the District. AC Transit has only one fifth controlling authority as a member of the TJPA and as such has a minority vote on the Board, but would nevertheless, as proposed, it may be responsible for a significant share of costs associated with operations. Consequently, AC Transit could be responsible for paying operating costs with little control over the annual budget. In response to this concern, staff is looking for a resolution of this concern with the TJPA. The solution may involve a provision in the agreement to provide that operation of the facility be delegated to a committee of transit operators and TJPA staff wherein AC Transit would have an equal amount of authority. 2. Temporary Terminal In August 2009, the TJPA will open phase one of the Temporary Terminal in conjunction with the start of demolition of the existing terminal. AC Transit will have 30 days prior to the opening of the Temporary Terminal to relocate its bus service operations from the existing terminal. Under the proposed agreement, the TJPA is responsible to construct the Temporary Terminal, assist AC Transit with relocation, maintain the facility and provide 24hour site security and policing. It is proposed that AC Transit would be financially responsible for residual operating costs associated with its on-site operations. Because the site of the Temporary Terminal (bordered by Howard, Main, Folsom, and Beale Streets) is 1
The term “Primary Tenants” refers to transit tenants only. 3
more constrained than the existing terminal, AC Transit will need to provide additional operating support as follows: • • •
Additional road supervision to help manage bus and passenger circulation in, out of the temporary facility Augmented communication systems necessary to coordinate supervision and bus relocation Enhanced fare systems, including a proof-of-payment system to minimize bus dwell times and increase operational capacity. These costs include fare inspectors, Translink hardware, network set-up and maintenance, ticket vending machines and revenues security service.
The annual estimated cost associated with Temporary Terminal operations is $1.9 million for five years. Staff has not yet secured funds to off-set the Temporary Terminal costs but is working with the TJPA staff to identify potential revenue sources.
4
Att. B to GM Memo No. 08-101 \Attachment B
Transbay Transit Center Program Lease and Use Agreement (Title may change based on comments herein)
Att. B to GM Memo No. 08-101 \Attachment B
TABLE OF CONTENTS
Transbay Transit Center Program Lease and Use Agreement
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TABLE OF EXHIBITS
Exhibit A: Exhibit B: Exhibit C: Exhibit D: Exhibit E: Exhibit F: Exhibit G: Exhibit H:
Transbay Transit Center Program Description Temporary Terminal Exclusive Use Space and Space Allocations Terminal Exclusive Use Space and Space Allocations Estimate of First Year AC Transit Tenant Operating Charges for New Terminal AC Transit Capital Contribution Repayment Schedule AC Transit Lump Sum Capital Contribution Option Obligations of TJPA and Primary Tenants to Provide Services in Terminal Public Space Equal Employment Opportunity/Non-Discrimination Policy No. 004
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THIS LEASE AND USE AGREEMENT (“Agreement”) is made and entered into this ______ day of _____, 2008, by and between the TRANSBAY JOINT POWERS AUTHORITY, a joint powers authority duly created pursuant to Chapter 5, Division 7, Title 1 of Government Code (“TJPA”), and the ALAMEDA-CONTRA COSTA TRANSIT DISTRICT, a special district created under Part 1, Division 10, of the Public Utilities Code (“AC Transit”).
RECITALS
A.
The TJPA is developing the Transbay Transit Center Program (“Transbay Program”). The TJPA will finance the Transbay Program through, among other things, grants from various public agencies and the issuance of Obligations. As part of the Transbay Program, the TJPA is the designer of, and will build, own and operate the Transbay Transit Center, located at First and Mission Streets in the City and County of San Francisco, State of California (hereinafter referred to as the “Terminal”). A more detailed description of the Transbay Program is attached as Exhibit A. Notes: (1) Need to see Exhibit A as to what is the “Transbay Program”. It is an undefined term and only used a couple of times in the agreement. The normal reference in the Agreement is to the “Terminal”, e.g. see Para. B. Need consistency in describing the terminal project. I prefer the “Transbay Transit Terminal” or “New Transbay Transit Terminal (the Terminal)” and then define it. (2) “The” or “the” should be placed before “TJPA”. Not only does it read better but the document switches back and forth between using the term with “the” and, as in the recital paragraphs, without using it.
B.
The Terminal will include, among other things, additional and modern passenger bus facilities and an extension of the San Francisco-San Mateo-Santa Clara commuter rail system into the Terminal, all more particularly described in Exhibit A attached hereto. TJPA will operate and maintain the Terminal for, among other things, the promotion, accommodation and development of regional and intercity bus and commuter and intercity rail transportation and commerce.
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C.
AC Transit provides bus services between Alameda and Contra Costa counties and the City & County of San Francisco under the authority of Public Utilities Codes sections 25801 et seq.
D.
AC Transit has been a Primary Tenant at the existing Transbay Terminal (built circa 1935/36), using the facility for its transbay bus service from its East Bay service area and has been an advocate for the new Terminal, albeit the existing terminal continues to meet AC Transit’s transbay service needs. However, AC Transit wishes to make the Terminal the point of destination/departure for its bus services in San Francisco and to use the Terminal in connection with its existing and future transportation functions.
E.
TJPA may recover the costs of operating the Terminal from transportation service providers using and occupying the Terminal after first applying revenues from all other possible sources of funding for Terminal operations, including Concession Revenues, External Revenues, and other grants-in-aid obtained from other sources.
F.
Through this Agreement, TJPA and AC Transit mutually agree to establish the terms and, conditions, procedures and formulas for AC Transit’s continued occupation and use of the Terminal the terminal area.
G.
TJPA and AC Transit anticipate that the TJPA will negotiate lease and use agreements with the Municipal Transportation Agency (“MTA”) and the Peninsula Corridor Joint Powers Board (“PCJPB”) for the lease and use of the Terminal in substantially the same form and under the same terms and conditions as this Agreement. TJPA and AC Transit anticipate that this Agreement may be amended in the future to add MTA and PCJPB as additional “primary tenants” of the Terminal. Note: The PCJPB is shown as a signator to this agreement even though they are not a named party. Their name should be deleted. Also, the later paragraphs in the Agreement (21.4) contains a “most favored nation” clause, contemplating that instead of adding folks to this Agreement they would have their own separate agreement. I prefer the latter approach, with the obligation to
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provide AC Transit with a copy of and any amendments to any separate agreement with MTA or PCJPB. If this was done this paragraph would be modified appropriately. H.
TJPA has the right to lease portions of the Terminal and to grant the right to use the Terminal, and has full power and authority to enter into this Agreement in respect thereof.
I.
AC Transit has the right to lease property related to its transit operations and has full power and authority to enter this Agreement in respect thereof.
NOW, THEREFORE, for and in consideration of the premises and the mutual covenants herein contained and, intending to be legally bound hereby, the TJPA and AC Transit agree as follows:
Section 1. Definitions. The following words, terms and phrases, wherever used in this Agreement, including this section, shall for the purpose of this Agreement have the meanings respectively ascribed to them in this section. A.
“Authorizing Legislation” means any resolution or ordinance of TJPA authorizing the issuance of Obligations and prescribing the covenants and conditions attendant upon such issuance and not inconsistent with the provisions of this Agreement.
B.
“Approved Budget and Projection” means the Budget and Projection adopted by the Board. (Moved from E.)
B.C.
“Beneficial Occupancy of the Temporary Terminal” means that date upon which the TJPA completes construction of the Temporary Terminal, ingress and egress to it and the installation of AC Transit’s tenant improvements; and the Temporary Terminal is ready for occupancy and use by AC Transit and the public as a transportation facility and will not subject either AC Transit or the public to any without hazard, delay or undue inconvenience. Beneficial Occupancy shall occur no more than thirty (30) days after the Director notifies AC Transit that
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construction of the Temporary Terminal is complete. C.D.
“Beneficial Occupancy of the Terminal” means that date upon which the TJPA completes construction of Phase 1 of the Terminal, including all necessary and related improvements for AC Transit’s use and occupancy of the Terminal, including, but not limited to, necessary ingress and egress ramps, parking and parking access ramps and the installation of AC Transit’s tenant improvements and the Terminal is ready for occupancy and use by AC Transit and the public as a transportation facility without subjecting either AC Transit or the public to any hazard, delay or undue inconvenience. Beneficial Occupancy shall occur no more than one hundred twenty (120) days after Director notifies AC Transit that Phase 1 of the Terminal is complete, as described in Exhibit (?). (Note that the Temp Terminal is described in some detail in para. P, but not the Terminal.)
D.E.
“Board” means the Transbay Joint Powers Authority Board of Directors.
E.F.
“Budget and Projection” means the proposed budget for operation of and projection of Tenant Operating Charges for the Temporary Terminal or the Terminal for the eachnext fiscal year, or portion thereof, that either terminal is in use during the term of this Agreement. “Approved Budget and Projection” means the Budget and Projection adopted by the Board.
F.G.
“Capital Improvement” means a single addition or improvement to the Terminal’s physical building or equipment which is purchased, leased or constructed at a cost of five hundred thousand dollars ($500,000) or more, with a useful life in excess of five (5) years. In calculating the cost of each such item, the cost of the planning and design, if any, shall be included. (Are soft costs usually included in determining hard costs? I don’t believe they are.) The abovespecific dollar cost figures in this definition are based on June 30, 2008 dollars and shall be increased or decreased annually in proportion to changes in the Implicit Price Deflator Index published by the U.S. Department of Labor, Bureau of Labor Statistics, or its successor or replacement, using as a base the latest published index available as of July 1, 2008. (Is Kate or anyone familiar with this Index? Is it appropriate
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for this purpose?) G.H.
“Capital Reserve Fund” means the capital account maintained by the TJPA for the replacement and/or rehabilitation of major building components and systems of the Terminal that have met or exceeded their useful lives.
H.I.
“Concession Revenues” means the fees and rentals collected by TJPA from Concessionaires. Concession Revenues excludes revenues from Primary Tenants, Subtenants, and passenger facility charges.
I.J.
“Cost Accounting System” means the system for collection, allocation, and reporting of revenues, expenses and debt service associated with the operation of the Terminal in such a manner that will ensure the availability of proper data to support the calculation of Tenant rentals and fees required under this Agreement. (How do you have “debt service associated with the operation of the Terminal”? This doesn’t apply to the Temp Terminal?)
J.K.
“Director” means TJPA’s Executive Director.
K.L.
“External Revenues” means the Bridge Toll Revenues allocated to the TJPA pursuant to Streets and Highways Code Section 30914 (b) or other recurring revenues as may be allocated to the TJPA from an external source for the operation, maintenance and other on-going expenses of the Terminal. (Should the Temp Terminal be included?)
L.M.
“Fiscal Year” means the twelve (12) month period commencing on July 1 and expiring on June 30 of each year of the term hereof.
M.N. “Obligations” means tax exempt bonds, TIFIA or RRIF (spell out acronyms) loans, or other obligations authorized and issued, or to be issued, by the Board to finance the construction of and capital improvements on the Terminal and its associated facilities. The Obligations will be repaid with pledged revenue sources including, but not limited to, passenger facility charges. (What are “pledged revenue sources”? Undefined term.) ON.
“Operating Reserve” means a reserve fund to provide the TJPA with sufficient
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assets to meet on-going expenses of operating the Temporary Terminal or the Terminal and address delays, fluctuations, and variances in operating revenues and expenses. The Operating Reserve shall be established by athe TJPA Board Policy consistent with generally accepted accounting principles. The TJPA Board shall annually establish the reserve amount. (Do they do this when they adopted the budget? At some other time? When?) PO.
“Temporary Terminal” means the temporary bus terminal to be constructed by the TJPA on the block bounded by Howard, Main, Folsom, and Fremont Streets and to be operated by the TJPA during construction of the Terminal. A description and drawings of the Temporary Terminal are attached as Exhibit B
QP.
“Temporary Terminal Operating Expenses” means the total annual expenses for all management, janitorial, security, maintenance, utility, insurance, taxes, and additional repairs and expenses incurred to operate the Temporary Terminal, and excludesing the TJPA’s debt service and its on-going expenses for engineering, design, and construction of the Approved Phase 1 and Phase 2 Transbay Program. (Phase 1 and 2 are not defined.)
RQ.
“Temporary Terminal Revenues” means total annual revenues from all sources, including revenue from Greyhound and any Subtenant(s) for its Exclusive use Space in the Temporary Terminal and External Revenues, but excluding passenger facilities charges. (Is Greyhound the only private provider using the TT? Where are its spaces located?)
SR.
“Temporary Terminal Space” shall include: (1)
“Exclusive Use Space” means Terminal Space leased to AC Transit and Greyhound and any Subtenant(s), for their primary use. Exclusive Use Spaces may be used by transit services and designated for the use of a single Primary Tenant and its Subtenant(s). A diagram showing AC Transit’s Exclusive Use Space and other space allocations in the Temporary Terminal is attached as Exhibit B. (What is meant by “transit services”?
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(2)
“Public Space” means Terminal Space other than Exclusive Use Space. (Why isn’t this definition similar to DD? Pubic Space wouldn’t/shouldn’t include TJPA space would it? It would under this definition.)
TS.
“Tenant” means any entity occupying space in the Terminal under an Agreement with the TJPA. A diagram showing AC Transit’s Exclusive Use Space and other space allocations in the Terminal is attached as Exhibit C. (How does Ex. C differ from Ex. B.? They profess to show the same info.) Tenants are classified as one of three types: (1)
“Concessionaire” means tenants of the TJPA using Tenant Use Space, other than Primary Tenants or Subtenants, as defined below, to provide goods, services and operations including, but not limited to (1) to provide and operate food and beverage establishments, newsstands, gift shops, retail and specialty shops, advertising displays, financial services, telecommunications, and other merchandising concessions and services; (2) to provide and operate courtesy vehicles and other small-scale private ground transportation services; (3) to provide private parties, events, and functions; and (4) to provide any other services other than public transportation. (Either here or elsewhere should be added a sentence to read: “The activities, functions or services provided by the Concessionaires shall not interfere with the transit operations of the Primary Tenant(s) or any Subtenant(s).”)
(2)
“Primary Tenant” means AC Transit or any other transit operator, including AC Transit, occupying Exclusive Use Space in the Terminal under an agreement with the TJPA. From time to time, this Agreement may be amended to recognize additional Primary Tenants, subject to prior approval by the Board. (As noted above, there is a conflict in the Agreement of either amending it or allowing for separate agreements. That conflict is evident here where the first sentence contemplates separate agreements and the second a joint agreement. The second sentence should
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be deleted. If it remains it needs to provide for AC Transit’s consent too to amending this Agreement since AC Transit is the only other party to it and the TJPA can’t amend it unilaterally.) (3)
“Subtenant” means a transportation provider operating in a Primary Tenant’s Exclusive Use Space, under an agreement with the Primary Tenant, subject to the concurrence of the TJPA, which concurrence shall not be unreasonably withheld. (Later on there is a provision that, if it remains, implies that the Director can require a Primary Tenant’s Exclusive Use Space to be leased to a subtenant of the TJPA. This should be opposed, but if it remains then the subtenant should be as provided herein, the subtenant of the Primary Tenant.)
UT.
“Tenant Capital Contribution” shall mean the annual or up-front payment to the Terminal Construction Fund by Tenant to partially fund the initial construction of the Terminal (Phase 1) contained in Exhibits E and F. (The term “Tenant” shouldn’t be used unless it is expected that the Concessionaires or Subtenants are paying this cost, which isn’t the case. The only “Tenant” is the “Primary Tenant” – AC Transit. BTW, does “the initial construction of the Terminal” (Phase 1) include any costs associated with Phase 2? Logically it would seem that it would because certain work needs to be done as part of Phase 1 to accommodate Phase 2. If this is correct, then that portion of Phase 1 attributable to Phase 2 should not be charged to any of the capital expenses that AC Transit is being asked to contribute to.)
VU.
“Tenant Improvement Guide” means the regulations to be developed by the TJPA goverTJPA governing Tenant improvements at the Temporary Terminal and the Terminal.
WV.
“Tenant Operating Charge for the Temporary Terminal” means the excess of the Temporary Terminal Operating Expenses over the Temporary Terminal Revenues. (Why is this definition different from X ?)
X.X.
“Tenant Operating Charge for the Terminal” means the product of a Primary
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Tenant’s proportion of the total Exclusive Use Space multiplied by the Terminal Net Operating Expenses. (See BB for concerns about using “Terminal Net Operating Expenses” to calculate the charge in this subsection.) Y.
“Terminal” means the Transbay Transit TerminalCenter, as it will exist when AC Transitthe Tenant assumes Beneficial Occupancy of the Terminal, and includes ramps, trackways, tunnels and bus storage facilities and other improvements as more particularly delineated in Exhibit A attached hereto. (The reference to “the Tenant” is incorrect because the term “Tenant” includes more than AC Transit and “Beneficial Occupancy of the Terminal” is a defined term that is specific to AC Transit and not to “the Tenant”.)
Z.
“Terminal Construction Fund” means the capital account maintained by the TJPA for initial construction of the Terminal.
AA.
“Terminal Net Operating Expenses” means the amount by which the Terminal Operating Expenses exceed Terminal Revenues.
BB.
“Terminal Operating Expenses” means the total annual expenses for all management, janitorial, security, maintenance, utility, insurance, taxes, and additional repairs and expenses as identified in (?) (there is no Article IX) incurred to operate all Gross Space in the Terminal, and excluding the TJPA’s debt service and its on-going expenses for engineering, design, and construction of the Approved Phase 1 and Phase 2 Transbay Program. (Is “annual expenses” based on a fiscal year or calendar year? Uncertain when it begins and the period it covers. What expenses for Phase 1 would be “on-going” if the Terminal is not occupied by AC Transit until it is complete? AC Transit should not be obligated for Phase 2 expenses so they should be excluded in any use of this term in
CC.
“Terminal Revenues” means total annual revenues from all sources, including Concession Revenues in the Terminal and External Revenues, but excluding passenger facilities charges and the Terminal Operating Charges paid by Primary Tenants.
DD.
“Terminal Space” means those categories of space used in the calculation of
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Terminal rentals and charges as more particularly defined below: (1)
“Concession Space” means Terminal Space leased to Concessionaires.
(2)
“Exclusive Use Space” means Terminal Space leased to a single Primary Tenant and any Subtenant, for its primary use. Exclusive Use Spaces may include areas of the Bus Deck Level, East Bus Plaza, Bus Storage Facility and Rail Levels, and such other spaces as maybe established for the operation of transit services and designated for the use of a single Primary Tenant and its Subtenant(s). Exclusive Use Space shall include the fixtures and equipment therein. (Why the detail on the Exclusive Use Space? Isn’t it identified in Exhibit B?)
(3)
“Gross Space” means every square foot of interior space in the Terminal.
(4)
“Public Space” means Terminal Space other than Tenant Leased Space, Concession Leased Space, and TJPA Space.
(5)
“Shared Use Space” means Terminal Space leased to multiple Tenants for their shared use and is distinct from Exclusive Use Space.
(6)
“Tenant Leased Space” means Shared Use Space, Exclusive Use Space, Concession Space, and other Terminal Space leased to Tenants by the TJPA. (How does the TJPA lease out AC Transit’s Exclusive Use Space without AC Transit’s consent? Note in (2) above and in an earlier comment, the EUS is exactly that – EXCLUSIVE – and only AC Transit can lease it to Subtenants (with TJPA concurrence). Also, it would violate the Peaceful and Quiet Enjoyment clause of the Agreement for the TJPA to sublease AC Transit’s EUS without its consent.)
(7)
“TJPA Space” means Terminal Space occupied by the TJPA and all interior space supporting the operation of the Terminal and generally inaccessible to the public including, but not limited to, security, mechanical, electrical, and other support spaces.
Section 2. Term. Transbay Transit Center Program Lease and Use Agreement
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The term of this Agreement shall commence on the date of Beneficial Occupancy of the Temporary Terminal. The Agreement shall terminate at the expiration of the term for any Obligations issued to fund capital construction of the Terminal, or December 31, 2050, whichever is later, unless earlier terminated as provided in Section 16. (Why does this Agreement have a termination date at all? BTW, there is no provision in the Agreement for an extension of the term for an additional period, why?)
Section 3. Temporary Terminal. Section 3.1. Exclusive Use Space. A.
The portions of the Temporary Terminal shown in Exhibit B shall be AC Transit’s Exclusive Use Space. (Need to see Exhibits that are referenced but not attached to the Agreement.)
B.
AC Transit shall take possession of its Exclusive Use Space in the Temporary Terminal and abandon the existing Transbay Terminal only upon the occurrence of all of the following at either a regular or special meeting of the Board: (1)
TJPA certifies through Board Resolution that it has the funds available to construct the new Terminal; and
(2)
TJPA certifies and awards a demolition contract for the existing Transbay Terminal; and
(3)
TJPA advertises a construction contract for the foundations and substructures for the new Terminal; and
(4)
TJPA certifies that the first phase of the Temporary Terminal construction is complete. (Not consistent with the definition of Beneficial Occupancy of the Temporary Terminal – Para. 1.B.)
C.
AC Transit agrees to vacate the existing Transbay Terminal within thirty (30) days after satisfaction of the conditions in Section 3.1.B. (Ditto)
D.
While it is the objective of the parties that the TJPA open the Temporary Terminal for AC Transit’s occupancy in or about September 2009, the TJPA shall have no liability to AC Transit if the Temporary Terminal is not ready for AC
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Transit’s occupancy by that date. AC Transit shall not be obligated to vacate any portion of the existing terminal it is using and continue to operate its transit and related services in the existing terminal until such time as the TJPA can provide the District with Beneficial Occupancy of the Temporary Terminal is ready for occupancy.
Section 3.2 Temporary Terminal Premises. TJPA shall permit AC Transit to use its Exclusive Use Space in the Temporary Terminal as shown in Exhibit C (need to see) to perform such operations and functions as are incidental, necessary, or proper to the conduct of AC Transit’s transportation business, including, but not limited to, the following: (Most of the following need to be reviewed, most are unnecessary and there is a degree of redundancy that could be eliminated, e.g. A and E could be consolidated.) A.
The operation of a transportation services for the carriage of passengers and their personal belongings consistent with the rules of AC Transit, federal and state lawpersons, property, baggage, including, but without limiting the generality hereof, revenue, courtesy, test, training, inspection, emergency, charter and sightseeing operations.
B.
The hiring and training of personnel in the employ of or to be employed by AC Transit, or AC Transit’s contractors; provided, however, that such right shall not be construed as authorizing the conduct of a separate business by AC Transit, but shall permit AC Transit to perform such functions as are incidental to the conduct of transportation services.(All of the activities of B. are handled at the General Offices and at other AC Transit facilities and it was unclear what the paragraph meant by “a separate business by AC Transit”?)
C.
The positioning, stopping, parking, loading or unloading of AC Transit’s vehicles and equipment, or the vehicles and equipment of any Subtenant of AC TransitTenant.
D.
The loading and unloading of property and carriage of employees by such manner of conveyance as AC Transit may desire or require in the operation of its
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transportation business. (Is this intended to address the parking of individual employee vehicles or District assigned non-revenue vehicles at the Temporary Terminal? Is there space there?) E.
Any and all purposes in connection with and incidental to the operation of transportation business, including, without limiting the generality hereof, the movement, loading and unloading of buses; the ticketing of passengers; and the installation, maintenance and operation of radio and other telecommunications equipment and facilities.
F.
The installation and operation, at AC Transit’s expense, of identification signs advertising the services of AC Transit, which signs shall be substantially uniform in size, type and location with those of other transportation providers, the number, general type, size, design and location of such signs to conform to the Tenant Improvement Guide established and amended from time to time by the TJPA and to be subject to the approval of the Director. Under Section 7.1 of this Agreement, initial signage for the Temporary Terminal shall be a Project Related Expense. (“Project Related Expense” is not a defined term but it is identified here as if it were. Add to definition section? The guidelines would need to comply with the ADA. BTW, where is the obligation of the TJPA to construct the Temp. Terminal and the Terminal in accordance with the requirements of all applicable federal, state and local laws?)
G.
The purchase or other acquisition of services or personal property of any nature, including, but not limited to materials, equipment and supplies deemed by it to be required by, or incidental to, AC Transit’s operations, its exercise of the rights herein granted or its discharge of the obligations herein imposed, from any person, partnership, firm, association, or corporation it may choose pursuant to licensing requirements established consistent with this Agreement. (Delete in its entirety. This activity would not occur at this location or at the new Terminal.)
H.
The use of the Public Area in the Temporary Terminal to perform such operations and functions as are incidental, necessary or proper to the conduct of AC Transit’s
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transportation business, subject to TJPA’s regulation and consent.
Section 3.3. Ingress and Egress. A.
Subject to the provisions hereof, TJPA hereby grants to AC Transit the following rights and privileges of ingress and egress with respect to the Temporary Terminal: (1)
For AC Transit, its agents, employees, contractors, subcontractors, and Subtenants: the Public Areas of the Temporary Terminal and the Exclusive UseTenant Leased Space. (Where is the term “Tenant Leased Space” defined in the definitions? Only two types of spaces are identified in Subpara. R – “Exclusive Use Space” and “Public Space.” “Tenant Use Space appears in S.(1) but is an undefined term. So here the proper reference is to “Exclusive Use Space.”) This right shall extend to vehicles, machinery, and equipment used by or for the benefit of AC Transit in its transportation services.
(2)
For AC Transit’s passengers, guests and invitees: the AC Transit Exclusive Use Space and the Public Areas. (Since (1) and (2) include the same space couldn’t they be combined?)
B.
The full and free right of ingress and egress provided for above shall not be used, enjoyed, or extended for any purpose or use in contravention of the provisions of Section 3.2 hereof unless expressly authorized by TJPA. (The Agreement is replete with references to “as authorized by the TJPA” or similar language. Although the “Board” and the “Director” appear occasionally, that is the exception. Can’t the agreement be more explicit as to who is acting for the TJPA in most of the circumstances where this phrase is used, so AC Transit knows who it is suppose to be dealing with. Since most of these items are administrative, rather than policy, presumably the reference to “the Director” could be inserted for “the TJPA” unless it is felt that it is an issue for “the Board”.)
C.
When reasonably required for reasons of safety, security or crowd control, the
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TJPA may limit access to the Tenant Lease (no such term, try “Exclusive Use Space”) and Public Areas, as necessary. (There should be language in the Agreement that provides for some advance notice to AC Transit since this has the potential for disrupting bus service. Even in emergency circumstances there needs to be reasonable notice to AC Transit of the situation, its potential duration and its potential impact on its service.)
Section 3.4. Accommodation of Additional Transportation Providers. A.
To facilitate and promote regional transportation facilities and to maximize the use of the substantial public investment in facilities at the Temporary Terminal, AC Transit agrees, upon request by the Director, to enter into subtenant agreements with willing and able bus transportation operators to permit passenger boarding and operations and utilize passenger platforms, waiting areas, and other necessary facilities within AC Transit’s Exclusive Use Space at times when AC Transit’s Exclusive Use Space is not needed for AC Transit’s scheduled or planned operations or those of AC Transit’s existing Subtenants. AC Transit’s obligations hereunder shall be subject to the execution of a written agreement between AC Transit and Subtenants, subject to concurrence by TJPA, setting forth mutually agreed to terms and conditions governing such use, which shall include provisions for the Subtenant to assume a pro-rata share of AC Transit’s Terminal Rentals (including Tenant Operating Charges and Tenant Capital Contributions). AC Transit further agrees to make all reasonable efforts to facilitate Subtenants’ ancillary needs, including use of space for ticket vending and the rendering of customary support services, upon its/their request, if: (1)
AC Transit has adequate capabilities, capacity, facilities and personnel therefore, after taking into account AC Transit’s own requirements and contractual obligations, the compatibility of said Subtenants’ proposed operations with those of AC Transit, and the need for labor harmony, and
(2)
said Subtenants’ enter into written agreements with AC Transit therefore
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and agree to pay AC Transit its established rates and charges for such services. (This provision here and in the Terminal section creates some problems. There is a lack of appreciation for or understanding of AC Transit’s transbay operations. It is highly unlikely that there are times that AC Transit is not using its Exclusive Use Space that would be usable by another transit provider. But, if there were, AC Transit should not have to lease it out “upon request of the Director”. It could consider the appropriateness of a request from the Director after giving due consideration for its needs and the potential impact on its services and its passengers. Is there a reason the Agreement needs to tell AC Transit what the terms of the subagreement must be? The consent of the TJPA to the subtenant is appropriate. It is very doubtful that if AC Transit had a subtenant the subagreement won’t contain all necessary language to make certain the subtenant assumes its proportionate share of AC Transit’s financial obligations under the Agreement, but also insurance, indemnity, termination, default and other appropriate clauses as well. This is a long way of saying that A. can be substantially pared down, if not eliminated, because it has been recognized elsewhere that AC Transit has the right to sublease its Exclusive Use Space.) B.
AC Transit shall indemnify and save harmless TJPA, its officers, directors, employees or agents with regard to any claim for damages or personal injury arising out of or in connection with a Subtenants’ use of AC Transit’s Exclusive Use Space unless such damage or personal injury is solely and proximately caused by the negligence of TJPA, its officers, directors, employees, agents, or representatives. AC Transit shall require that each Subtenant agree in writing to indemnify the TJPA its officers, directors, employees, agents, or representatives with regard to any claim for damages or personal injury arising out of or in connection with the Subtenants’ use of AC Transit’s Exclusive Use Space unless such damage or personal injury is solely and proximately caused by the negligence
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of the TJPA, or its officers, directors, employees, agents, or representatives. (Same comment as above. A and B could be combined essential to provide that “if AC Transit subleases any of its Exclusive Use Space the Director or the Board shall be notified of the potential subtenant and must approve the subtenant. The TJPA (etc) shall be held harmless with regard to any claim, etc. unless solely and proximately caused by the negligence of the TJPA etc.” C.
D.
In accommodating Subtenants, AC Transit shall prioritize Subtenants as follows: (1)
Additional Regional Services
(2)
Intercity Services
(3)
Charter and Non-Scheduled Services
To ensure full and productive use of the substantial investment that TJPA has made on behalf of the public, the Director may require operational changes in AC Transit’s use of its Exclusive Use Space to enable additional capacity for Subtenants. (This subpara. flies in the face of the Exclusive Use Space concept and doesn’t advance its stated purpose. If AC Transit is obligated for various payments under this Agreement, those obligations exist regardless of whether any subtenant does or doesn’t exist. If a subtenant(s) existed, the obligations –financial and otherwise – run to AC Transit, not the TJPA. So the TJPA won’t see a sou more money regardless of the existence of one or more subtenants. Also, is the TJPA applying this principle to the Exclusive Use Space for Greyhound?)
Section 3.5. Tenant Operating Charges. A.
Starting with Beneficial Occupancy of the Temporary Terminal and continuing until AC Transit vacates the Temporary Terminal, AC Transit shall pay TJPA periodic Tenant Operating Charges for the Temporary Terminal. (If they are “periodic” what is the timing of the “periods”?) AC Transit shall pay 100 percent (100%) of the Tenant Operating Charges for the Temporary Terminal. (Why? Isn’t anyone else using the TT? Temp. Operating Charges is the difference between revenues and TT operating expenses. Isn’t Greyhound using part of the
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TT? Sec. 1.Q. defines TT Revenues to include income from Greyhound for its Exclusive Use Space. What about Muni and GGT? Or the TJPA? AC Transit should pay its proportionate share of the expenses, not the whole freight. See discussion under C. regarding the concept of “Tenant Operating Charges”.) B.
No later than October 1 of each year, the TJPA shall submit a Budget and Projection to AC Transit. AC Transit shall assess the proposed Budget and Projection. (What happens during the first year? The Budget and Projection may occur after Oct. 1, couldn’t it?) The TJPA shall assist AC Transit, including making available any Cost Accounting System records and other information reasonably requested by AC Transit regarding the Temporary Terminal Operating Expenses and Temporary Terminal Revenues and permitting AC Transit to audit relevant the TJPA’s financial records for the Temporary Terminal. (There are public records, so why the limitation on “relevant” records and who would make that call? Any limitation would have to be justified under the Public Records Act and it is unlikely any financial records would be excluded.) No later than November 1 of each year, (same comment on timing and isn’t one month a short turn around for something this important?) AC Transit shall submit in writing to the Board its comments, modifications and/or objections, if any, on the proposed Budget and Projection with an explanation of its position, either endorsing the Budget and Projection as submitted by the TJPA, or with modifications. If AC Transit modifies the Budget and Projection submitted by the TJPA, AC Transit shall identify the modifications. The Board shall review the Budget and Projection submitted by AC Transit response and shall consider that response in the adoption of the Approved Budget and Projection prior to no later than December 31 of each year for the next fiscal year. (Again same comments on timing.) November and December are dreadful months for trying to adopt a budget. BTW since the fiscal year is July 1 to June 30 of each year why is the budget being adopted seven months in advance of the beginning of the fiscal year?) If the Approved Budget and Projection departs from the Budget and
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Projection submitted to and comment on recommended by AC Transit, the Board shall make detailed findings explaining the basis for the difference or why it did not accept the comments, modifications and/or objections submitted by eparture from AC Transit’s recommendation. C.
In developing proposed Tenant Operating Charges (This is a defined term, but only for the Terminal, not the Temp. Terminal. If it is part of the Agreement it should be a defined term. Also, its content, as set out below, differs from the definition for the Terminal. Why would they differ?), the TJPA and AC Transit shall endeavor to maximize Temporary Terminal Revenues and minimize Temporary Terminal Operating Expenses. In projecting Tenant Operating Charges, the TJPA and AC Transit shall: (Why is the development of this charge a joint effort? Shouldn’t Greyhound be doing the same thing since they have Exclusive Use Space? Why can’t the TJPA do this as part of the Approved Budget and Projection and let AC Transit comment, etc. on it as part of that document?) (1)
project the total annual Temporary Terminal Operating Expenses,
(2)
project the total annual Temporary Terminal Revenues,
(3)
subtract the total annual Temporary Terminal Revenues from the total annual Temporary Terminal Operating Expenses to determine the Tenant Operating Charge.
D.
The TJPA shall establish an Operating Reserve from Temporary Terminal Revenues and may from time to time add an assessment for the Reserve to the Tenant Operating Charges. (The definition of Operating Reserve contains a provision for an annual review of the amount of the reserve. Why would there be an additional assessment, how/when would it be imposed other than with the annual budget and what notice/justification would be provided?) TJPA shall seek funding for the Operating Reserve first from external sources and then from the excess of actual Temporary Terminal Revenues over Temporary Terminal Operating Expenses. At the time the Board adopts the first Approved Budget and
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Projection, that may include a ofTenant Operating Charges for the Temporary Terminal, the Board shall adopt standards for the Operating Reserve, including the minimum amount of funds that shall be maintained in the Operating Reserve, the source of those funds, the uses of Operating Reserve funds, and authorization required to spend Operating Reserve funds. At least once per fiscal year Tthe Board shall conduct periodic reviews of the standards for the Operating Reserve at least once per fiscal year. (Need to provide mechanism for review if the first fiscal year is not a complete fiscal year; may be that the charge is considered as part of the first full fiscal year Budget and Projection analysis.) E.
Not less than fifteen (15) days before the beginning of each quarter (a calendar quarter or a fiscal year quarter?), TJPA shall submit to AC Transit its projection of Tenant Operating Charges for the Temporary Terminal for the upcoming quarter based on the Approved Projection of Operating Charges (this is not a defined term) for the fiscal year. (Again may need to provide language for less than a full fiscal year) AC Transit shall render payment of the projected Tenant Operating Charges for the Temporary Terminal no later than the first day of each quarter for which they are due. If the actual Tenant Operating Charges for the Temporary Terminal for any quarter exceed the projected Tenant Operating Charges for the Temporary Terminal for that quarter plus any prior unpaid Tenant Operating Charges for the Temporary Terminal, the excess remaining after amounts the TJPA decides to apply to the excess from the Operating Reserve under Section 3.5.FG, if any, shall be added to AC Transit’s payment for the next quarter. If the actual Tenant Operating Charges for the Temporary Terminal for any quarter are less than the projected Tenant Operating Charges for the Temporary Terminal for that quarter, the overpayment shall be applied to any unpaid balance from prior quarters, if any, and the excess, if any, shall be deposited in the Operating Reserve, if the Operating Reserve is not fully funded. If the Operating Reserve is fully funded, the overpayment shall be refunded to AC Transit. (Is 15 days sufficient notice? After the first budget is adopted the charge
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would have been part of the Budget and Projection that would have been reviewed in advance of the applicable fiscal year. Presumably this charge is being assessed against Greyhound and any others to whom it is applicable. Why wouldn’t any excess in the charge be credited against any future quarterly payment by AC Transit instead of going into the Operating Reserve which the TJPA may or may not use in its discretion to pay for any arrearages?) F.
If, at any time during any Fiscal Year, the TJPA determines that the actual Terminal Net Operating Expenses will exceed the projected Terminal Net Operating expenses, the TJPA shall, after using its best efforts to reduce such expenses, and based on the recommendation of AC Transit, use the Operating Reserve to pay all or a portion of the excess expense. (What provision is there for noticing AC Transit of the issue and obtaining its recommendation?)
G.
In no event shall TJPA be required to pay any fee, dividend, payment or other monetary consideration to its member agencies, except for services directly requested and properly invoiced. Nothing in this Section shall prohibit the City and County of San Francisco from collecting its legally obligated taxes and fees from the TJPA, its member agencies, Primary Tenants, Subtenants, Concessionaires, and other occupants of the Terminal. (What is the purpose of this subpara? It deals with payments, etc. to the TJPA member agencies who are not parties to this Agreement. It appears to address an issue outside of the terms of this Agreement. What taxes is SF allowed to collect from AC Transit as a Primary Tenant of the Temp. Terminal or Terminal. Whether SF can collect from others because of their non-governmental status, etc. is not AC Transit’s concern, so why is it here?)
3.6. Move to and From Temporary Terminal. AC Transit shall be responsible for its costs to move its operations from the existing Transbay Terminal to the Temporary Terminal and for the cost to move its operations from the Temporary Terminal to the Terminal. Transbay Transit Center Program Lease and Use Agreement
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Section 4. Terminal. The TJPA shall use its best efforts to complete Phase 1 of the Terminal to allow AC Transit’s Beneficial Occupancy of the Terminal to occur within sixty (60) months after initiation of AC Transit’s operation in the Temporary Terminal. Note: Many of the provisions under Sec. 4 are identical in most respects to the provisions of Sec. 3 (Temporary Terminal) and the comments changes in that section as applicable here without having to repeat them. Section 4.1. Terminal Premises. The TJPA shall permit AC Transit to use AC Transit’s Exclusive Use Space in the Terminal shown in Exhibit CB to perform such operations and functions that are incidental, necessary, or proper to the conduct of AC Transit’s transportation business, including, but not limited to: A.
The operation of a transportation service for the carriage of persons, property, baggage, including, but without limiting the generality hereof, revenue, courtesy, test, training, inspection, emergency, charter and sightseeing operations.
B.
The hiring and training of personnel in the employ of or to be employed by AC Transit, or AC Transit’s contractors; provided, however, that such right shall not be construed as authorizing the conduct of a separate business by AC Transit, but shall permit AC Transit to perform such functions as are incidental to the conduct of transportation services.
C.
The positioning, stopping, parking, loading or unloading of AC Transit’s vehicles and equipment, or the vehicles and equipment of any subtenant of Tenant.
D.
The loading and unloading of property and carriage of employees by such manner of conveyance as AC Transit may desire or require in the operation of transportation business.
E.
Any and all purposes in connection with and incidental to the operation of transportation business, including, without limiting the generality hereof, the movement, loading and unloading of buses; the ticketing of passengers; and the installation, maintenance and operation of radio and other telecommunications
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equipment and facilities. F.
The installation and operation, at AC Transit’s expense, of identification signs advertising the services of AC Transit, which signs shall be substantially uniform in size, type and location with those of other transportation providers, the number, general type, size, design, and location of such signs to conform to the Tenant Improvement Guide established and amended from time to time by the TJPA and to be subject to the approval of Director. Under Section 7.1 of this Agreement, the initial signage shall be a Project Related Expense.
G.
The purchase or other acquisition of services or personal property of any nature, including, but not limited to materials, equipment and supplies deemed by it to be required by, or incidental to, AC Transit’s operations, its exercise of the rights herein granted or its discharge of the obligations herein imposed, from any person, partnership, firm, association, or corporation it may choose pursuant to licensing requirements established consistent with Section 8 of this Agreement. (The reference to Sec. 8 is not in the Sec. 3.2.G language. Sec. 8 addresses Rules and Regulations, not licensing.) In addition, TJPA shall permit AC Transit to use the Public Area in the Terminal to perform such operations and functions as are incidental, necessary or proper to the conduct of AC Transit’s transportation business, subject to TJPA’s regulation and consent.
Section 4.2. AC Transit Ingress and Egress. A.
Subject to the provisions hereof, TJPA hereby grants to AC Transit the following rights and privileges of ingress and egress with respect to the Terminal: (1)
For AC Transit, its agents, employees, contractors, subcontractors, and subtenants: the Public Areas of the Terminal and the Tenant Leased Space. This right shall extend to vehicles, machinery and equipment used by or for the benefit of AC Transit in its transportation services.
(2)
For AC Transit’s passengers, guests and invitees: the AC Transit Exclusive Use Space and the Public Areas.
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B.
The full and free right of ingress and egress provided for above shall not be used, enjoyed or extended for any purpose or use in contravention of the provisions of Section 4.1 hereof unless expressly authorized by TJPA.
C.
When reasonably required for reasons of safety, security or crowd control, the TJPA may limit access to the Tenant Lease and Public Areas, as necessary.
Section 4.3. Accommodation of Additional Transportation Providers. A.
To facilitate and promote regional transportation facilities and to maximize the use of the substantial public investment in facilities at the Terminal, AC Transit agrees, upon request by the Director, to enter into subtenant agreements with willing and able bus transportation operators to permit passenger boarding and operations and utilize passenger platforms, waiting areas, and other necessary facilities within AC Transit’s Exclusive Use Space at times when AC Transit’s Exclusive Use Space is not needed for AC Transit’s scheduled or planned operations or those of AC Transit’s existing Subtenants. AC Transit’s obligations hereunder shall be subject to operational analysis confirming the feasibility of accommodating the Subtenants’ operations within AC Transit’s Exclusive Use Space and subject to the execution of a written agreement between AC Transit and Subtenants, subject to concurrence by TJPA, setting forth mutually agreed to terms and conditions governing such use, which shall include provisions for the Subtenant to assume a pro-rata share of AC Transit’s Terminal Rentals (including Tenant Operating Charges and Tenant Capital Contributions). AC Transit further agrees to make all reasonable efforts to facilitate Subtenants’ ancillary needs, including use of space for ticket vending and the rendering of customary support services, upon its/their request, if: (1)
AC Transit has adequate capabilities, capacity, facilities and personnel therefore, after taking into account AC Transit’s own requirements and contractual obligations, the compatibility of said Subtenants’ proposed operations with those of AC Transit, and the need for labor harmony, and
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(2)
the Subtenants enter into written agreements with AC Transit therefore and agree to pay AC Transit its established rates and charges for such services, which shall not exceed the Subtenant’s share of AC Transit’s Tenant Operating Charges based on the ratio of the Subtenant’s space to AC Transit’s Exclusive Use Space.
B.
AC Transit shall indemnify and save harmless TJPA, its officers, directors, employees, agents, and representatives with regard to any claim for damages or personal injury arising out of or in connection with a Subtenants’ use of AC Transit’s Exclusive Use Space unless such damage or personal injury is solely and proximately caused by the negligence of the TJPA, its officers, directors, employees, agents, or representatives. AC Transit shall require that each Subtenant agree in writing to indemnify the TJPA its officers, directors, employees, agents, and representatives with regard to any claim for damages or personal injury arising out of or in connection with the Subtenants’ use of AC Transit’s Exclusive Use Space unless such damage or personal injury is solely and proximately caused by the negligence of the TJPA, or its officers, directors, employees, agents, or representatives.
C.
In accommodating Subtenants under Section 4.3, AC Transit shall give priority to Subtenants as follows:
D.
(1)
Additional Regional Services
(2)
Intercity Services
(3)
Charter and Non-Scheduled Services
To ensure full and productive use of the substantial investment that TJPA has made on behalf of the public, the Director may require operational changes in AC Transit’s use of its Exclusive Use Space to enable additional capacity for Subtenants.
Section 4.5. Tenant Operating Charges. A.
Starting with Beneficial Occupancy and continuing for the Term of this
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Agreement, AC Transit shall pay TJPA periodic Tenant Operating Charges for the Terminal. AC Transit’s Tenant Operating Charges shall be calculated by dividing the Terminal Net Operating Expenses by AC Transit’s proportion of the total Exclusive Use Space according to the Schedule attached in Exhibit C. Exhibit D identifies the TJPA’s estimate of AC Transit’s first year’s Tenant Operating Charges. B.
No later than October 1 of each year, the TJPA shall submit to the Primary Tenants a proposed Budget and Projection. No later than December 1 of each year, the Primary Tenants shall submit comments on the proposed Budget and Projection to the TJPA. The TJPA shall assist the Primary Tenants in their review and comments on the Budget and Projection, including making available any Cost Accounting System and other information reasonably requested by the Primary Tenants regarding the Terminal Operating Expenses and Revenue and permitting the Primary Tenants to audit the TJPA’s Cost Accounting System and other relevant TJPA financial records for the Terminal. The Board shall review the comments on the Budget and Projection submitted by the Primary Tenants and shall adopt the Approved Budget and Projection no later than December 31 of each year for the next fiscal year.
C.
In developing proposed Tenant Operating Charges, the TJPA shall endeavor to maximize Terminal Revenues and minimize Terminal Operating Expenses. In projecting Tenant Operating Charges, the TJPA shall: (1)
project the total annual Terminal Operating Expenses,
(2)
project the total annual Terminal Revenues,
(3)
calculate the total area of each Primary Tenant’s Exclusive Use Space,
(4)
project the Terminal Net Operating Expenses,
(5)
multiply the projected Terminal Net Operating Expenses by each Primary Tenant’s proportion of Exclusive Use Space.
E.
The TJPA shall establish an Operating Reserve for the Terminal and may from time to time add an assessment for the Reserve to the Tenant Operating Charges.
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(1)
Any amount remaining in the Temporary Terminal Operating Reserve at the time the tenants of the Temporary Terminal vacate the Temporary Terminal shall be rolled over to the Terminal Operating Reserve.
(2)
The TJPA shall seek funding for the Operating Reserve first from external sources and then from the excess of actual Terminal Operating Revenues over actual Terminal Operating Expenses.
(3)
At the time the Board adopts the first Approved Budget and Projection of Operating Charges for the Terminal, the Board shall review the standards for the Operating Reserve, including the minimum amount of funds that shall be maintained in the Operating Reserve, the source of those funds, the uses of Operating Reserve funds, and authorization required to spend Operating Reserve funds. The Board shall conduct periodic reviews of the standards for the Operating Reserve at least once per fiscal year.
F.
Not less than fifteen (15) days before the beginning of each quarter, TJPA shall submit to the Primary Tenants its projection of Tenant Operating Charges for the upcoming quarter based on the Approved Projection of Operating Charges for the fiscal year. Each Primary Tenant shall render payment of its share of the projected Tenant Operating Charges no later than the first day of each quarter for which they are due. If the actual Tenant Operating Charges for any quarter exceed the projected Tenant Operating Charges for that quarter, the excess remaining after amounts the TJPA decides to apply to the excess from the Operating Reserve, if any, shall be added to the Primary Tenant’s payment for the next quarter. If the actual Tenant Operating Charges for any quarter are less than the projected Tenant Operating Charges for that quarter, the overpayment shall be applied to any unpaid balance from prior quarters, and the excess, if any, shall be deposited in the Operating Reserve, if the Operating Reserve is not fully funded. If the Operating Reserve is fully funded, then the overpayment shall be refunded to AC Transit.
G.
If, at any time during any Fiscal Year, the TJPA determines that the actual
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Terminal Net Operating Expenses will exceed the projected Terminal Net Operating Expenses, TJPA shall, after using its best efforts to reduce such expenses, use the Operating Reserve to pay all or portion of the excess expense. (Unlike the similar provision in Sec. 3.5.F, there is no discussion in advance with AC Transit. Why?) H.
If the actual Terminal Revenues exceed the actual Terminal Operating Expenses for any Fiscal Year, the surplus shall be deposited in the Operating Reserve, if the Operating Reserve is not fully funded. If the Operating Reserve is fully funded, any excess of actual Terminal Revenues over actual Terminal Operating Expenses shall be deposited in the Capital Replacement and Rehabilitation Reserve Fund.
I.
In no event shall TJPA be required to pay any fee, dividend, payment or other monetary consideration to its member agencies, except for services directly requested and properly invoiced. Nothing in this Section shall prohibit the City and County of San Francisco from collecting its legally obligated taxes and fees from the TJPA, its member agencies, Primary Tenants, Subtenants, and Concessionaires.
Section 5. Tenant Capital Contributions. Capital contributions are required from Primary Tenants for the Terminal Construction Fund and the Capital Reserve Fund. Section 5.1. A.
Terminal Construction Fund. AC Transit shall make a Tenant Capital Contribution to the Terminal Construction Fund for the purpose of meeting its obligations to assist in funding the initial construction of the Terminal according to either (1) the annual payment schedule shown in Exhibit E, or (2) a single payment in FY 2009-10 in the amount shown in Exhibit F. (To the extent that the construction of Phase 1 (the initial construction of the Terminal) includes structural improvements that are required for Phase 2 AC Transit should not pay for that portion of the capital costs, if it agrees to pay anything above the Passenger Facilities Charge.)
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B.
If AC Transit elects to make its Tenant Capital Contribution under the schedule shown in Exhibit E, AC Transit shall make annual payments, commencing with the year of Beneficial Occupancy of the Terminal. Any payment not received when due shall accrue interest from the due date until paid in full at the published monthly rate of the Local Agency Income Fund (LAIF) as published by the California State Treasurer’s Office. (Would a portion of the first year be paid if Beneficial Occupancy of the Terminal does not coincide with the “year” (?) when payment is due. What is meant by “year” – fiscal or calendar? When is the “annual payment” due?)
Section 5.2. A.
Capital Reserve Fund. The TJPA will prepare and update annually a 10-Year Capital Improvement Plan identifying the Capital Improvements needed to keep the Terminal in a state of good repair. The Capital Improvements shall be funded from the Capital Reserve Fund. (“Capital Reserve Fund” is a defined term and explains its use. “10-Year Capital Improvement Plan” is not a defined term, it could be included in the “Capital Reserve Fund” definition. Then this subsec. would only need to identify when the fund is established/reviewed. What is meant by “annually”?)
B.
The TJPA shall seek external sources of funds to fund the Capital Reserve Fund. If external sources of funds are not available to fund the Capital Reserve Fund, however, the TJPA shall seek funds from the Primary Tenants based on their proportionate share of their Exclusive Use Space to the total space of the Terminal or from issuance of debt or other financing mechanisms.
C.
The TJPA may use money from the Capital Reserve Fund to undertake Capital Improvements to the Terminal if: (1)
A Ffederal, Sstate or other agency having jurisdiction over the Terminal requires the improvement; or
(2)
The Capital Improvement is of an emergency nature, which, if not made, would result in the closing of the Terminal within forty-eight (48) hours; or
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(3)
The Board determines that the Capital Improvement is essential to the preservation and continued operation of the Terminal. (What notice will be provided to AC Transit, what opportunity for input into the decision will be permitted, particularly if it would affect AC Transit’s operations?)
D.
Should the Capital Improvement meet one of the conditions set forth in Section 5.2.C., then the costs will be assigned as follows, in order of priority: (1)
If the project is in any Terminal Space, federal, state or local grants or other external funding appropriation secured by the TJPA or any Primary Tenant for the purpose of such improvement to the Terminal. If external funding is insufficient to fund required improvements, funds from the Capital Reserve Fund shall be used.
(2)
If the project is entirely in the Exclusive Use SpaceArea of a Primary Tenant, the Capital Reserve Fund shall be used, and if that fund is insufficient to fund the Capital Improvement, the cost of the Capital Improvement shall be the responsibility of the Primary Tenant. (What happens if there aren’t sufficient funds in the Capital Reserve Fund?)
Section 6. Leasing Strategy and Revenues from Shared Use Space.
Section 6.1. Transportation Tenants. In leasing Shared Use Space in the Terminal, the TJPA covenants that it will attempt to recover the full operating and maintenance costs of Shared Use Space from tenants other than Primary Tenants using the sSpace. The TJPA will not execute leases for Shared Use Space for terms longer than five (5) years.
Section 6.2. Non-Transportation Tenants. The TJPA will engage a property management consultant to assist the TJPA in developing leasing strategies for Concessionaires. The principle objectives of the leasing strategy will be to maximize lease revenues from non-transit spaces, encourage activity in the Terminal throughout Transbay Transit Center Program Lease and Use Agreement
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the day, and minimize security and other operating and maintenance costs. To the extent that these objectives may not always be mutually compatible, the leasing strategy shall attempt to identify an optimal balance while preserving the efficient provision of transit services. The TJPA will not permit the installation of concession facilities in such a manner or at such locations in the Terminal as will obstruct traffic, or impede a Primary Tenant’s ability to perform its functions or interfere with its Exclusive Use Space.
Section 7. Responsibility for Improvements.
Section 7.1. Tenant’s Responsibility. A.
Upon Beneficial Occupancy of the Temporary Terminal and the Terminal, the TJPA shall provide AC Transit’s Exclusive Use Space with all fixtures, furnishings, flooring, decorations, finishes, signage, equipment and all other improvements which the TJPA, in consultation with AC Transit, deems necessary for the use of AC Transit’s Exclusive Use Space at no cost to AC Transit (“Project Related Expenses.”). Upon Beneficial Occupancy, the TJPA’s obligations to provide improvements, additions, alterations, or repairs (collectively the “Improvements”) to AC Transit’s Exclusive Use Space shall terminate except to the extent any of the work remains incomplete or there is a dispute regarding the acceptance of the work or any liens or payments due on the work performed. Thereafter, AC Transit shall be responsible for any iImprovements, additions, alterations, or repairs at its sole expense; provided, however, that: (1)
The TJPA shall be responsible for and pay the cost of all iImprovements, additions, alterations, or repairs to Terminal building structures and structural elements that are not part of AC Transit’s tenant improvements; and
(2)
In the event that the TJPA requires that an improvement installed by AC Transit be changed, altered, relocated, or reconstructed to allow the TJPA
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to maintain or improve the Terminal, AC Transit shall make the change, alteration, relocation, or reconstruction and the TJPA shall pay the cost of such change, alteration, relocation, or reconstruction as a Terminal Operating Expense. B.
Before commencing work on any improvements, additions, alterations, or repairs to its Exclusive Use Space after Beneficial Occupancy, AC Transit shall submit complete plans and specifications to the DirectorTJPA and receive the TJPA’s written approval of the plans and specifications. AC Transit shall obtain the Director’s written consent for proposed alterations and variances from the approved plans and specifications, except minor changes. All alterations of, additions to, or changes of plans and specifications approved by TJPA shall be made at AC Transit’s sole expense.
C.
After Beneficial Occupancy, prior to commencing work on any improvements, additions, alterations, or repairs to its Exclusive Use Space, AC Transit shall obtain building, electrical, plumbing, and other permits required by any legal authority with jurisdiction over such construction at AC Transit’s sole cost. Upon the Director’s request, AC Transit shall exhibit within the area of the Improvements all certificates and permits required by any legal authority with jurisdiction over the construction. At least fourteen (14) days before commencing construction of the iImprovements, additions, alterations, or repairs, AC Transit shall give the DirectorTJPA advance written notice so that the TJPA may post appropriate notices, except in the case of emergency repairs, where notice shall be reasonable under the circumstances. Any notices of such construction shall remain posted within the Exclusive Use Space until completion and acceptance of such work. (If AC Transit needs to post the permits, what notices is the TJPA responsible for posting?)
D.
Any iImprovements, additions, alterations, or repairs to or of the Exclusive Use Space, except movable furniture and trade fixtures, shall at once become a part of the realty, shall belong to the TJPA, and shall be surrendered with the Exclusive
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Use Space at the expiration of the Term of this Agreement or any extension thereof, or upon earlier termination as provided for herein. Upon the expiration or earlier termination of this Agreemente Term or any extension thereof, AC Transit shall, upon written demand by the TJPA at least thirty (30) days prior to the end of the AgreementTerm, forthwith and with all due diligence remove its movable furniture or trade fixtures at AC Transit’s sole cost and expense, and AC Transit shall forthwith and with all due diligence, at its sole cost and expense, repair any damage to the Exclusive Use Space caused by such removal. E.
AC Transit expressly waives all rights to make repairs at the expense of the TJPA or to vacate the Exclusive Use Space or terminate this Agreement for failure by the TJPA to keep the Exclusive Use Space in good order, condition, or repair as provided for in Sections 1941 and 1942 of the California Civil Code.
Section 7.2. TJPA’s Responsibility. A.
The TJPA shall prudently and efficiently maintain the Temporary Terminal and Terminal, including foundations, structures, outside walls, roof and utility systems, in good condition and repair, consistent with business and management practices at similar facilities in the United States. The TJPA shall attempt to control capital, operating, and maintenance expenses for the Temporary Terminal and Terminal and to adopt sustainable building and energy use practices where reasonable and prudent. (Is “sustainable” practices understood?)
B.
The TJPA shall keep, operate, and maintain the Public Space in the Temporary Terminal and the Terminal, including open spaces, passageways, public restrooms, elevators, and escalators, together with all fixtures, furnishings, and floor coverings located therein, in a neat, clean, safe, sanitary, and operating condition, replacing all worn-out fixtures, furnishings, floor coverings, machinery, and equipment as may be required. The TJPA’s and Primary Tenants’ specific obligations to provide services in the Public Space are set forth in Exhibit G. (Need to see Exhibit. Don’t know why the last sentence includes obligations
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for AC Transit as a Primary Tenant regarding Public Space. BTW, TJPA is responsible for its exclusive space and non-public, non-Tenant spaces. How will those areas be addressed?) C.
The TJPA reserves the right, with reasonable advance notice to AC Transit, to construct, reconstruct, install, repair, remove, renew, operate, and use building systems, structures, or other improvements in the Temporary Terminal and Terminal in, over, or under AC Transit’s Exclusive Use Space. In taking such actions, the TJPA shall not unreasonably interfere with AC Transit’s enjoyment of its Exclusive Use Space. The TJPA shall indemnify AC Transit against all costs, damages, and claims arising from TJPA’s conduct under this Section 7.2.CB, unless the costs, damages, or claims are proximately caused by the sole negligence of AC Transit, its officers, directors, employees, agents, representatives, or invitees. (What is considered “reasonable notice” particularly since the work may interfere with the District’s bus operations?)
D.
The TJPA shall provide janitorial services, maintenance and repair, and window washing services to AC Transit’s Exclusive Use Space.
Section 7.3. Prohibited Uses. AC Transit shall not use its Exclusive Use Space or cause or permit its employees or others to use its Exclusive Use Space for any purpose other than specified under the terms and conditions of this Agreement. Without limiting the generality of the foregoing, AC Transit shall not do or cause or permit anything to be done, in or about its Exclusive Use Space, or bring or keep anything thereon which will in any way: A.
increase the rate of fire insurance for the Temporary Terminal or the Terminal or any of its contents;
B.
subject to Section 8 of this Agreement, conflict with any law, ordinance, rule, or regulation now in effect or which may hereafter be enacted or promulgated by any public authority having jurisdiction over the Temporary Terminal or the Terminal;
C.
create a nuisance;
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D.
obstruct or interfere with the rights of other tenants in the Temporary Terminal or the Terminal;
E.
place any loads upon the floor, walls, or ceiling which endanger the structure of the Temporary Terminal or the Terminal;
F.
obstruct the sidewalk, passageways, stairways or escalators in front of, within, or adjacent to its Exclusive Use Space; or
G.
use or allow the Exclusive Use Space to be used for any unlawful purpose.
Section 8. Rules and Regulations. AC Transit’s use of the Temporary Terminal and the Terminal shall be subject to such reasonable rules and regulations, not inconsistent with the provisions of this Agreement, as are now or may hereafter be approved by the TJPA. Nothing herein contained shall be deemed to prevent AC Transit from contesting in good faith any Federal, State or County code, law, regulation, ordinance or rule or any rule or regulation of the TJPA without being considered in breach of this Agreement so long as such contest is diligently commenced and prosecuted by AC Transit.
Section 9. No Other Charges. The TJPA shall not charge AC Transit or its employees or passengers for any of the premises, facilities, rights, licenses, and privileges granted in this Agreement to AC Transit or its employees or passengers. (What is this Sec. suppose to address? BTW, there is no mention in the Agreement that AC Transit will assess a $.25 Passenger Facilities Charge. Perhaps how AC Transit finances the Capital Contribution Charge is its business and doesn’t need to be in the Agreement.)
Section 10. Quiet Enjoyment. TJPA represents that it has the right to lease the Exclusive Use Space together with all the premises and facilities, easements, rights, licenses, and privileges granted in this Agreement, and has full power and authority to enter into this Agreement. The TJPA further covenants that AC Transbay Transit Center Program Lease and Use Agreement
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Transit shall peaceably have and enjoy the Exclusive Use Space and the premises and facilities, easements, rights, licenses, and privileges during the time this Agreement is in effectfor the Term.
Section 11. Indemnity. A.
AC Transit agrees to defend, indemnify, and hold harmless the TJPA and its directors, officers, employees, agents, and representatives from any and all damages, claims, demands, obligations, suits, judgments, penalties, causes of action, losses, or liabilities at any time received, incurred, or accrued by the TJPA as a result of or arising out of the acts, omissions, use, occupancy, or operations of AC Transit on, about, or related to the Temporary Terminal and the Terminal during the tTerm for which AC Transit, but not the TJPA, is liable to any person by law.
B.
The TJPA agrees to defend, indemnify, and hold harmless AC Transit and its directors, officers, employees, agents, and representatives from any and all damages, claims, demands, obligations, suits, judgments, penalties, causes of action, losses, or liabilities at any time received, incurred, or accrued by AC Transit as a result of or arising out of the acts, omissions, use, occupancy, or operations of the TJPA on, about, or related to the Temporary Terminal and Terminal during the tTerm for which the TJPA, but not AC Transit, is liable to any person by law.
C.
If either of the parties hereto receives a claim, demand, suit, or judgment for which the other party has hereinabove agreed to indemnify it, then the indemnitee shall promptly notify the indemnitor of such claim, demand, suit, or judgment, and the indemnitor shall have the right to investigate, settle, compromise, satisfy, or defend the same. (Little hard to “investigate, settle, compromise, satisfy, or defend” an action if there already is a judgment, except for appeal, but that avenue is dependent on the record at the trial/hearing level. The horse is pretty much out of the barn at that stage.)
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D.
To the extent that the allocation of loss or liability between the parties hereto is for any reason not covered by the provisions hereof, the parties agree that the rights of implied indemnity and contribution provided by law shall be fully applicable to the relationship of the parties under this Agreement.
Section 12. Public Liability and Property Damage Insurance. A.
Throughout the Term, AC Transit, at its own cost and expense, shall maintain an insurance policy or policies issued by an insurance company or companies satisfactory to the Director and in a form approved by the TJPA’s Attorney. Said policy or policies shall afford liability insurance covering the operations of AC Transit on, in, or about the Temporary Terminal and the Terminal. Said policy or policies shall be expanded to include automobile and contractual liability assumed under this Agreement, with respect to bodily injuries, personal injuries and property damage. Said policy or policies shall cover loss or liability for damages in the amount of Twenty-five Million Dollars ($25,000,000) Combined Single Limit for each accident for bodily injury, death or property damage occurring by reason of AC Transit’s operations in, on or about the Temporary Terminal and the Terminal.
B.
AC Transit shall increase the aforesaid limits upon the written demand of the Director, provided that such increases are reasonable and necessary. (Who decides? It would appear AC Transit makes the determination. A written justification for any proposed increases should be required, at a minimum.)
C.
As evidence that said policy or policies are in full force and effect, AC Transit shall provide the TJPA with a Certificate of Insurance from the issuing company or companies.
D.
Said policy or policies shall include the TJPA, and all of its officers, agents and employees as additional insureds.
E.
Said policy or policies shall provide that written notice of cancellation or of any material change in said policy shall be delivered to the Director by the issuing
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company or companies forty-five (45) days in advance of the effective date thereof. F.
On renewal anniversaries of said policy or policies, AC Transit will provide the TJPA with a certificate of insurance from the issuing company or companies within thirty (30) days after said renewal.
G.
Said policy or policies shall provide that the term “the insured” is used severally and not collectively, and the insurance afforded under the liability coverage applies separately to each insured against whom claim is made or suit is brought, but the inclusion herein of more than one insured shall not operate to increase the limits of the company’s liability.
H.
In lieu of insurance as required above required and subject to prior and continuing approval by the Director, AC Transit may provide equivalent protection under a self-insurance plan acceptable to the Director and in a form approved by the TJPA’s Attorney; provided however, that the granting of such permission shall in no way affect the level of coverage required herein nor shall it constitute a waiver of the right to demand insurance coverage other than se1f-insurance at a later date.
Section 13. Nondiscrimination.
Section 13.1. AC Transit Shall Not Discriminate. In the performance of this Agreement, AC Transit agrees not to discriminate against any AC Transit employee or TJPA employee working with AC Transit, or against any person seeking accommodations, advantages, facilities, privileges, services, or membership in all business, social, or other establishments or organizations, on the basis of the fact or perception of a person’s race, color, creed, religion, national origin, ancestry, age, sex, sexual orientation, gender identity, domestic partner status, marital status, disability or Acquired Immune Deficiency Syndrome or Human Immunodeficiency Virus (AIDS/HIV) status, or association with members of such protected classes, or in retaliation for opposition to discrimination against such classes. Transbay Transit Center Program Lease and Use Agreement
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AC Transit agrees to comply with the Equal Employment Opportunity Non-Discrimination Policy No. 004 attached as Exhibit H. (Need to see Exhibit H. The prohibition is beyond what AC Transit does, e.g. what is meant by “advantages” or “privileges” or “membership in all business, social, or other establishments or organizations”? As a public agency the District cannot discriminate on the various grounds identified above and commits to that in the receipt of grant funds.)
Section 13.2. Non-Discrimination in Benefits. AC Transit does not as of the date of this Agreement and will not during the term of this Agreement, in any of its operations in San Francisco, on real property owned by San Francisco, or where the work is being performed for the TJPA elsewhere within the United States, discriminate in the provision of bereavement leave, family medical leave, health benefits, membership or membership discounts, moving expenses, pension and retirement benefits or travel benefits, as well as any benefits other than the benefits specified above, between employees with domestic partners and employees with spouses, and/or between the domestic partners and spouses of such employees, where the domestic partnership has been registered with a governmental entity pursuant to state or local law authorizing such registration, subject to the conditions set forth in Section 12B.2(b) of the San Francisco Administrative Code.
Section 13.3. Condition to Contract. As a condition to this Agreement, AC Transit shall execute the “San Francisco Administrative Code Chapters 12B & 12C Declaration: Nondiscrimination in Contracts and Benefits” form (posted at http://www.transbaycenter.org/TransBay/content.aspx?id=311) with supporting documentation.
Section 13.4. Incorporation of Administrative Code Provisions by Reference. The provisions of Chapters 12B and 12C of the San Francisco Administrative Code are incorporated in this section by reference and made a part of this Agreement as though fully set forth herein. AC Transit shall comply fully with and be bound by all of the provisions that apply Transbay Transit Center Program Lease and Use Agreement
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to this Agreement under such Chapters of the Administrative Code, including but not limited to the remedies provided in such Chapters. Without limiting the foregoing, the Contractor (?) understands that pursuant to Section 12B.2(h) of the San Francisco Administrative Code, a penalty of $50 for each person for each calendar day during which such person was discriminated against in violation of the provisions of this Agreement may be assessed against the Contractor (?) and/or deducted from any payments due the Contractor. (?)
Section 13.5. TJPA’s Nondiscrimination Policy. The provisions of the TJPA Equal Employment Opportunity/Non-Discrimination Policy No. 004 is set forth in Exhibit H to this Agreement. These provisions are incorporated herein and made a part of this Agreement as if fully set forth herein to the extent such provisions are required to be and are applicable to Tenant under the law. (How is this different from 13.1?)
Section 14. Conflict of Interest. Through its execution of this Agreement, AC Transit acknowledges that it is familiar with the provisions of the Conflict of Interest Code of the TJPA, Section 15.103 of the San Francisco City Charter, Article III, Chapter 2 of San Francisco’s Campaign and Governmental Conduct Code, and Sections 87100 et seq. and Sections 1090 et seq. of the Government Code of the State of California, and certifies that it does not know of any facts which constitute a violation of said provisions.
Section 15. Assignment and Subletting. AC Transit agrees not to assign this Agreement or any part hereof in any manner whatsoever or to sublet the Exclusive Use Space or any part thereof or any of the privileges recited herein without the prior written consent of the TJPA. AC Transit shall have the right to assign all or any part of its rights and interests under this Agreement to any successor to its services through consolidation or reorganization or transfer of substantially all of its assets, or as required by Legislative action, and the consent of the TJPA thereto shall not be required, but due notice of any such assignment shall be given to the TJPA within sixty (60) days after such assignment Transbay Transit Center Program Lease and Use Agreement
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hereunder. It is understood and agreed that the TJPA does not release AC Transit from any of its obligations with respect to the terms hereof.
Section 16. Termination. Section 16.1. TJPA’s Right to Terminate. The TJPA, in addition to any other rights given to it herein or to which it may be entitled by law, may terminate this Agreement in its entirety, subject to and in the manner provided in Section 16.3, upon or after the occurrence of any one or more of the following events and may exercise all rights of entry and re-entry, provided by law, upon the Exclusive Use Space: A.
The filing by AC Transit of any request for relief under any state insolvency statute;
B.
Any action of any governmental authority, legislative body, board, agency or officer, other than the TJPA and anyone working for it, having jurisdiction thereof ceasing or suspending AC Transit operations at the Terminal;
C.
The voluntary abandonment by AC Transit of the conduct of its transportation business at the Terminal;
D.
The substantial breach by AC Transit of any of the covenants or agreements herein contained and the failure of AC Transit to remedy such breach in accordance with Section 16.3; or
E.
Failure of AC Transit to make full payment to the TJPA of any amount due and payable hereunder within thirty (30) days after the same becomes due and payable.
Section 16.2. AC Transit’s Right to Terminate. AC Transit, in addition to any other rights given to it herein or to which it may be entitled by law, may terminate this Agreement in its entirety, subject to and in the manner provided in Section 16.3, upon or after the occurrence of any one or more of the following events: A.
Issuance of a permanent injunction by any court of competent jurisdiction substantially restraining or preventing AC Transit from using all or major portions
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of the Temporary Terminal or the Terminal and its remaining in force for one hundred and twenty (120) days; provided, however, that the TJPA, if a party to the litigation, shall not have taken such steps as may be necessary to effect an appeal of ? to the appropriate appellate courts; B.
Any action of any governmental authority, legislative body, board, agency or officer having jurisdiction thereof (1)
preventing AC Transit from conducting its transportation services in its entirety at the Temporary Terminal or the Terminal, or
(2)
taking, directly or indirectly, in whole or substantial part, the Exclusive Use Space or premises required for actual operation of AC Transit’s vehicles to and from the Temporary Terminal or the Terminal; or
C.
The substantial breach by the TJPA of any of the covenants or agreements herein contained and the failure of the TJPA to remedy such breach in accordance with Section 16.3.
Section 16.3. Procedure for Termination or Repossession. No termination declared by either party shall be effective and the TJPA shall not take possession of AC Transit’s Exclusive Use Sthe Exclusive Use Space unless and until not less than sixty (60) days have elapsed after written notice by either party to the other specifying the date upon which such termination will take effect and specifying the cause for which this Agreement is being terminated or for which theAC Transit’s Exclusive Use Space isare being repossessed; and no such termination shall be effective nor shall the TJPA retake possession of the Exclusive Use Space, if (1)
such cause of default is cured within sixty (60) days or
(2)
the default by its nature cannot be cured within such sixty (60) day period and the party in default commences to correct such default within said sixty (60) days and corrects the same as promptly as is reasonably practicable.
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Section 17. Surrender of Possession. AC Transit shall yield and deliver to the TJPA’s possession the Exclusive Use Space at the termination of this Agreement by expiration or otherwise, or of any renewal or extension hereof (there is no provision for doing either of these and there should be), in good condition in accordance with its express obligation hereunder, except for damage or loss due to reasonable wear and tear, fire or other casualty, or other cause beyond AC Transit’s control, and AC Transit shall have the right at any time during said term or renewal or extension (doesn’t exist, yet, so how can it be referenced?) thereof and for thirty (30) days after the termination of this Agreement to remove all fixtures and equipment and other property installed or placed by it at its expense, in, on, or about the Exclusive Use Space, subject, however, to any valid lien which the TJPA may have thereon for unpaid rentals or fees. Such removal shall not damage the Exclusive Use Space. If such damage results from such removal, AC Transit shall restore the Exclusive Use Space to as good condition as they were prior to removal.
Section 18. Holding Over. If AC Transit shall, with the concurrence of the TJPA, hold over after the expiration or sooner termination of the term of this Agreement, the resulting tenancy shall, unless otherwise mutually agreed, be on a month-to-month basis. During such month-to-month tenancy, AC Transit shall pay to the TJPA the same rate of Tenant Operating Charges as are set forth herein, unless different rates shall be agreed upon, and the parties shall be bound by all of the provisions of this Agreement, insofar as they may be pertinent, unless different terms and conditions shall be agreed upon.
Section 19. No Personal Liability. No director, officer, agent or employee of either party shall be charged personally charged by or contractually liable by or to the other party under any term or provision of this Agreement or because of any breach thereof or because of its or their execution or attempted execution.
Section 20. Agreements With Governments. Transbay Transit Center Program Lease and Use Agreement
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Except for the payment of rentals and fees provided for herein, this Agreement is subject and subordinate to the provisions of any agreement and amendments thereto heretofore made between the TJPA and the United States or the State of California, relative to the construction, operation or maintenance of the Terminal. ,However, any agreement or arrangement the TJPA makes with any federal, State or local government or any other entity or any agency thereof for the use, maintenance or operation of the Temporary Terminal or the Terminal, or any substantial part thereof, shall not substantially interfere with AC Transit’s rights under this Agreement.
Section 21. Miscellaneous.
Section 21.1. Governing Law. This Agreement shall be deemed to have been made in, and be construed in accordance with, the laws of the State of California.
Section 21.2. Notices. All notices required to be given to AC Transit hereunder shall be in writing and given by registered mail addressed to AC Transit as follows: _____________________________________ _____________________________________ _____________________________________ with a copy to: AC Transit at the Exclusive Use Space.
All notices required to be given to TJPA hereunder shall be in writing and given by registered mail addressed to TJPA as follows: Executive Director, TJPA 201 Mission Street, Suite 1960 San Francisco CA 94105
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Either party may designate in writing from time to time any changes in addresses or any addresses of substitute or supplementary persons in connection with said notices. The effective date of service of any such notice shall be the date such notice is mailed to AC Transit, or to the TJPA. Any provision herein that one party shall notify the other of some matter is to be construed as a requirement that notice is to be given in accordance with the provisions of this Section 1804.
Section 21.3. Waivers. No waiver of default by either party of any of the terms, covenants and conditions hereof to be performed, kept and observed by the other party shall be construed as, or operate as, a waiver of any subsequent default of any of the terms, covenants or conditions herein contained, to be performed, kept and observed by the other party.
Section 21.4. Contracting on More Favorable Terms. The TJPA covenants and agrees that in the event it enters into any lease, contract, or any other agreement with any other Primary Tenant containing more favorable terms than this Agreement, or grants to any Primary Tenant rights, privileges, or concessions with respect to the Terminal which are not accorded AC Transit hereunder, it shall advise AC Transit of such action and this Agreement shall, at AC Transit’s option, be amended to incorporate such rights, terms, privileges and concessions, or any of them, as part of this Agreement.
Section 21.4. Force Majeure. Neither the TJPA nor AC Transit shall be deemed in violation of this Agreement if it is prevented from performing any of its obligations hereunder by reason of strikes, boycotts, labor disputes, embargoes, shortages of material, acts of terrorism, riots, rebellion, sabotage or any other casualty which is not within its control; provided, however, that these provisions shall not excuse AC Transit from payment of the Tenant Operating Charge for the Temporary Terminal or the Tenant Operating Charge for the Terminals. (At some point, if AC Transit is not receiving the benefit of the bargain why should it be paying for something it can’t use? BTW, the Tenant Transbay Transit Center Program Lease and Use Agreement
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Att. B to GM Memo No. 08-101 \Attachment B
Operating Charge is only for operation and maintenance of the terminal (temp or permanent) not the Obligations. Was it the Obligations that were intended to be covered?)
Section 21.5. Invalid Provisions. In the event any covenant, condition or provision herein contained is held to be invalid by a court of competent jurisdiction, the invalidity of any such covenant, condition or provision shall in no way affect any other covenant, condition or provision herein contained, provided the invalidity of any such covenant, condition or provision does not materially prejudice either the TJPA or AC Transit in their respective rights and obligations contained in the valid covenants, conditions and provisions of this Agreement.
Section 21.6. Headings. The headings of the several Sections of this Agreement are inserted only as a matter of convenience and for reference and in no way define, limit or describe the scope or intent of any provisions of this Agreement, and shall not be construed to affect in any manner the term and provisions hereof or the interpretation or construction thereof.
Section 21.7. Withholding Required Approvals. Whenever the approval of the Director, the TJPA, or of AC Transit is required herein, no such approval shall be unreasonably refused, withheld, or delayed.
Section 21.8. Subordination of Agreement. Subject to the provisions of Section 16.2, this Agreement and all rights of Primary Tenants and the TJPA hereunder are expressly subject to the lien of any pledge, transfer, hypothecation, or assignment made at any time by the TJPA to secure Obligations.
Section 21.9. Inspection of Records. AC Transit and the TJPA, each at its own expense and upon reasonable notice, shall have the right to inspect the books, records, and other data of the other party relating to the provisions and Transbay Transit Center Program Lease and Use Agreement
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requirements hereof, provided such inspection is made during regular business hours. The TJPA agrees to provide AC Transit with a copy of the report of the annual audit covering the Temporary Terminal and the Terminal. (Does the content of the “audit” need to be more exact?)
Section 21.10. Successors and Assigns. All of the terms, provisions, covenants, stipulations, conditions and considerations in this Agreement shall extend to and bind the legal representatives, successors, sub-lessees (except as to the rentals, fees and other charges), and assigns of the respective parties hereto.
Section 21.11. Taxes, Assessments, and Liens. AC Transit agrees to pay and discharge promptly all lawful taxes properly levied and to which AC Transit is subject by reason of its use of the Temporary Terminal and the Terminal and occupancy of the Exclusive Use Space. AC Transit further agrees not to permit or suffer any liens to be imposed upon the Exclusive Use Space as a result of its activities without promptly discharging the same; provided, however, that AC Transit may, if it so desires, contest the legality of such taxes and liens without being in breach of this Agreement. (What taxes would AC Transit be subject to as a public entity? We don’t pay taxes at the existing terminal and shouldn’t pay any at the temp or new terminal.)
Section 21.12. Faithful Performance Bond. (DELETE THIS SECTION IN TOTO) A.
Prior to this Agreement becoming effective, AC Transit shall deposit with the TJPA treasury bonds of the United States of America, or such other securities acceptable to the TJPA, or an irrevocable letter of credit in an amount equa1 to two (2) months’ Tenant Operating Charges hereunder as security for faithful performance by AC Transit as hereinabove provided, and AC Transit may have the right to reserve to itself interest payable on said United States Bonds or such other securities
B.
In lieu of such deposit, AC Transit may deliver to the Director a faithful performance bond, in the above amounts, executed by a surety company which
Transbay Transit Center Program Lease and Use Agreement
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meets with the written approval of the Director and in a form approved by the TJPA’s Attorney, under which bond said surety company guarantees to the TJPA full and complete performance of all of the terms, conditions and covenants herein to be performed on the part of AC Transit, including the payment of Tenant Operating Charges. Said bond shall be maintained at the cost of AC Transit throughout the existence of this Agreement and shall be renewed annually. In the event AC Transit is the lessee of lands or space at the Terminal other than those herein demised, and under the terms of such other lease has provided the TJPA with a faithful performance bond, AC Transit may provide the TJPA, in lieu of the new aforesaid bond, with a rider or endorsement on said other bond extending the coverage thereof in the amount and for the purposes and subject to the terms hereof. Said surety shall give the Director thirty (30) days prior written notice of cancellation or material change in said bond.
Section 21.13. Exhibits and Schedules. All exhibits and schedules referred to herein which may, from time to time, be referred to in any duly executed amendment hereto are (and with respect to future amendments, shall be) by such reference incorporated herein and shall be deemed a part of this Agreement as fully as if set forth herein.
Section 21.14. Amendment. This Agreement may be amended by a duly executed, mutual agreement of the parties to this Agreement in writing.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement in duplicate by their duly authorized officers the day and year first hereinabove written.
TRANSBAY JOINT POWERS AUTHORITY Transbay Transit Center Program Lease and Use Agreement
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Att. B to GM Memo No. 08-101 \Attachment B
______________________________________ Executive Director AUTHORIZED BY:
TJPA BOARD OF DIRECTORS Resolution No.: ________________________ Adopted: ______________________________ ATTEST: ______________________________________ Secretary
APPROVED AS TO FORM
TJPA Attorney By ________________________
ATTEST:
ALAMEDA-CONTRA COSTA TRANSIT DISTRICT
____________________________ ________________________________________ Secretary (SEAL):
APPROVED AS TO FORM
Transbay Transit Center Program Lease and Use Agreement
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Kenneth C. Scheidig AC Transit General Counsel
ATTEST: JOINT POWERS BOARD
PENINSULA CORRIDOR
____________________________ Secretary
________________________________________ (SEAL):
Transbay Transit Center Program Lease and Use Agreement
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Att. B to GM Memo No. 08-101 \Attachment B
Exhibit A Transbay Transit Center Program Description
Transbay Transit Center Program Lease and Use Agreement
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Exhibit B Temporary Terminal Exclusive Use Space and Space Allocations
Transbay Transit Center Program Lease and Use Agreement
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Exhibit C Terminal Exclusive Use Space and Space Allocations
Phase I AC Transit
S.F. 192,378
Greyhound 9,420 Muni 70,089 Caltrain 271,887
Transbay Transit Center Program Lease and Use Agreement
AWS Draft 1 August 2008
Att. B to GM Memo No. 08-101 \Attachment B
Phase II AC Transit
S.F. 192,378
Greyhound 128,344 Muni 70,089 Caltrain 378,657 769,468
Transbay Transit Center Program Lease and Use Agreement
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Att. B to GM Memo No. 08-101 \Attachment B
Exhibit D Estimate of First Year AC Transit Tenant Operating Charges for New Terminal Terminal Net Expenses Phase I Operating Cost
$6,019,799
$7,658,865
Less: Net Revenue/Loss from Retail/Office
(2,618,000)
(3,330,827)
Less: SB916 for P1 Op Cost Subtotal -- Phase I
(3,000,000) $401,799
(4,231,796) $96,242
Operating Expenses by Primary Tenants 2014 Phase I AC Transit
S.F. 192,378
$5,419,153
9,420
265,355
70,089
1,974,358
Greyhound Muni Caltrain
271,887
$7,658,865
Tenant Operating Charges by Primary Tenant 2014 Phase I AC Transit
S.F. 192,378
$68,098
9,420
3,334
70,089
24,810
Greyhound Muni Caltrain
271,887
Transbay Transit Center Program Lease and Use Agreement
$96,242
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Att. B to GM Memo No. 08-101 \Attachment B
Exhibit E
AC Transit Capital Contribution Repayment Schedule Annual Payments
Fiscal Year Ending
Amount Due
2014
1,691,439
2015
1,789,268
2016
1,866,391
2017
1,945,558
2018
2,026,816
2019
2,160,455
2020
2,246,858
2021
2,335,510
2022
2,479,210
2023
2,573,374
2024
2,669,955
2025
2,824,388
2026
2,926,872
2027
3,089,160
2028
3,255,974
2029
3,368,325
2030
3,543,540
2031
3,723,586
2032 2033
3,908,574
Transbay Transit Center Program Lease and Use Agreement
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Att. B to GM Memo No. 08-101 \Attachment B
4,035,562 2034
4,229,745
2035
4,429,201
2036
4,634,051
2037
4,844,416
2038
5,128,808
2039
5,351,705
2040
5,580,521
2041
5,887,186
2042
6,129,421
2043
6,452,168
2044
6,708,457
2045
7,048,013
2046
7,396,882
2047
7,676,143
2048
8,042,991
2049
8,419,785
2050
8,806,755
Total
161,227,063
Transbay Transit Center Program Lease and Use Agreement
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Att. B to GM Memo No. 08-101 \Attachment B
Exhibit F
AC Transit Lump Sum Capital Contribution Option
Amount Due
Transbay Transit Center Program Lease and Use Agreement
$
63,293,490
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Att. B to GM Memo No. 08-101 \Attachment B
Exhibit G Obligations of TJPA and Primary Tenants to Provide Services in Terminal Public Space
Transbay Transit Center Program Lease and Use Agreement
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Att. B to GM Memo No. 08-101 \Attachment B
Exhibit H Equal Employment Opportunity/Non-Discrimination Policy No. 004
Transbay Transit Center Program Lease and Use Agreement
AWS Draft 1 August 2008
