Transit Bus Stops: Ownership, Liability, and Access (2008)

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38 • Allowed with a variance. • Prohibited altogether. • Prohibited in the state right-of-way. • Prohibited in residential zones. • Allowed on bus shelters installed by public operators only, subject to restrictions. Washoe County, Nevada, for example, restricts bus shelter advertising to bus shelters installed and main- tained by public transit operators. The code also re- stricts the size of bus shelter advertising displays and requires that they not restrict visibility.443 In addition, sign codes may restrict the advertising medium. For example, sign codes may prohibit flashing or otherwise moving signs, or signs that emit odors.444 Where advertising is prohibited, the transit agency may have to engage the political process in order to be able to access this source of revenue.445 Provided that advertising is allowed, restrictions on content will be subject to constitutional limitations. Categorical limitations on the amount, if any, and placement of advertising that can be related to political campaigns, alcohol, tobacco, and firearms are generally permissible, as are prohibitions on obscene material. Restrictions as to specific content will raise constitu- tional issues. For example, as noted, supra, while the public entity may ban political advertising altogether, it cannot allow such advertising but reject specific politi- cal advertisements based on the political views ex- pressed. Regardless of municipal restrictions on advertising, the responsible public entity should ensure that, for passenger security, advertising does not obscure too much of the shelter area.446 VII. AGREEMENTS: MAJOR ISSUES Transit agencies may be party to—or may be con- sulted by the parties to—specific bus stop-related agreements: franchise agreements, service agreements, and agreements allowing access to private property. This part covers issues that are unique to transit stop 443 Washoe County Development Code, § 110.502.23 Bus Shelters, www.co.washoe.nv.us/comdev_files/dc/031406_division_five.pdf . 444 Rachel Gordon, Ad Firm With a First—But Will It Whiff by Mixing Cookies, Muni?, SAN FRANCISCO CHRONICLE, Nov. 30, 2006. www.sfgate.com/cgi-bin/article.cgi?f- /c/a/2006bin/article.cgi?f=/c/a/2006/11/30/BAGC2MMHUO1.DT L. 445 Letter of Advice: Bus Shelter Advertising in Seattle, Dec. 22, 2006, www.metrokc.gov/kcdot/getinvolved/tac/advice_06shelterads.st m. 446 See San Diego Police Department Neighborhood Policing Resource Team, Crime Prevention Through Environmental Design (CPTED) for Urban Village Centers, May 2005 (recom- mending bus shelters be transparent so that their interiors can be viewed from the surrounding area), www.sandiego.gov/police/pdf/CPTEDvillagesmay2005.pdf. agreements as well as selected issues that should be covered in other types of municipal contracts but are particularly important in the context of bus stop agreements. Bus stop agreements should also include any provisions required by the particular jurisdiction where the bus stops are located and/or provisions re- quired by the Federal Transit Administration. Those additional required provisions are not reviewed here. A. Major Issues to Cover in Bus Shelter Franchise Agreements Based on a review of franchise agreements447 and the case law, the following issues in particular should be addressed in bus shelter franchise agreements: Exclusivity: Whether the franchise agreement is ex- clusive. Term: Length of the agreement, renewal options, ownership of shelters at the end of the term, and any bonus for a lengthy term.448 Generally these agreements are long term, between 10 and 20 years. The District of Columbia negotiated a bonus payment in exchange for granting a 20-year franchise. Number and location of shelters: Specify actual num- bers and locations or parameters for determining num- bers and locations, including geographic distribution requirements and parameters for increasing initial numbers, and adding or changing locations. Design: Who is responsible, timeframe for final design approval, public input requirements,; transit agency’s right of input/approval; state-of-the art requirements; and franchisor’s rights of ownership to specified design elements. Permits/permission: Allowable timeframe for obtain- ing necessary permission from private property owners and permits from local jurisdictions;449 local processes that must be followed.450 Contingency for no-advertising areas: Iin the case of transit agencies that provide service in more than one jurisdiction, specify responsibilities for jurisdictions that do not allow advertising (e.g., transit agency to provide and maintain shelters in those jurisdictions, or franchisee to do so at additional cost). Transfer, subcontracts: Whether franchisee can trans- fer the franchise, and if so under what conditions, in- 447 See appendices for additional details. 448 District DOT Bus Shelter Franchise Agreement. Attach- ment G—Payment and Compensation Schedule, www.ddot.dc.gov/ddot/frames.asp?doc=/ddot/lib/ddot/informatio n/studies/busshelter/Bus_Shelter_2.pdf. 449 San Mateo County Transit District, Minutes of Finance Committee Meeting, Feb. 22, 2006, www.samtrans.org/pdf/BOD_Agenda_Reports/03_15_06/FIN_1 _Minutes.pdf. 450 Exhibit A—Recommended Appendix G Ordinance Changes (dated Aug. 14, 2006), at 7-8, www.ci.minneapolis.mn.us/council/2006- meetings/iingstings/20060901/docs/02_Appendix_G_revision_0 81406_v2.pdf.

39 cluding right of refusal;451 requirements to notify of change in control of franchisee and franchisor’s options; parameters of allowed subcontracting and right of re- fusal. Fee structure: Options include a percentage of adver- tising revenues and minimum guarantee fee; in-kind payments from franchisee (free advertising about mu- nicipality in advertising placed by franchisee in other locations); enhanced revenue sharing near high-value advertising locations. Construction: Compliance with ADA and all other ac- cessibility-related laws, including sight and hearing- impaired features; construction tasks, per construction management schedule; electrical requirements, includ- ing code requirements; signage; right to modify shel- ters. Placement: Parties with placement input; site plans ensuring pedestrian access; public hearing require- ments. Installation: Scheduling; transit agency’s right to in- spect and require changes; responsibility for cost of changes required by franchisor; responsibility for coor- dinating with utility companies and responsibility for utility damage; progress reports on installation; pa- rameters for relocating existing shelters. Illumination: Standards; responsibility for electrical work, utility payments. Right of abutting property owners: If abutting prop- erty owners have a right of first refusal on shelter con- struction, specify time frame for exercising right and terms under which such shelters shall be constructed Coordination: Franchisee to coordinate all required work with utility companies and all relevant govern- ment agencies. Licensing: Require all work be done by licensed pro- fessionals. Maintenance requirements: Precise description of scope of requirements for areas surrounding bus stop/shelter, including sidewalks to be maintained, re- paired, and replaced; cleaning/graffiti removal cycles; inspection requirements, and time frame for making needed repairs or replacements; system for receiving and responding to complaints; standards for re- pair/replacement parts. Trash: Containers (who provides, who empties, how frequently), other trash (who removes, within what area, how frequently); cost, if any, for franchisee to re- move trash; if public entity has responsibility for trash, consider whether minimum guarantees exceed costs. Advertising: Space limits, restrictions on type of ad- vertising, public service requirements, including neighborhood specific information; minimum/maximum amounts of advertising displayed per shelter and over- all throughout system; geographic restrictions on adver- 451 Minneapolis requires notice to and approval by the city before the franchisee may transfer the franchise. Request for City Council Committee Action from the Department of Public Works, Aug. 22, 2006, www.ci.minneapolis.mn.us/council/2006- meetings/20060922/Docs/04_Bus_Shelter_Franchise.pdf. tising; noncompete clauses; transit agency’s right of review. Ancillary programs: Inclusion of programs such as public bike rental and historic trails. Insurance and bonding: Duty to obtain liability, worker’s comp, auto insurance; appropriate levels of insurance, type of insurance company; public enti- ties/individuals that must be covered by liability insur- ance; requirement that any subcontracts contain equivalent liability insurance provision in favor of tran- sit agency; performance and prompt payment bonds. Indemnification: Specify indemnification language, pro- viding maximum indemnification allowed under state law (but no more); specify obligation to defend; require that any subcontracts contain equivalent provision in favor of transit agency. Disposition of shelters: Terms for conveying shelters to successor franchisee; conditions under which removal is required; terms for removal, including restoration of street/sidewalk; penalties, if any, for failing to remove as required. While not necessarily a major issue, transit agencies may want to consider mandating the use of new tech- nology in bus shelter design. The Design Article of the WMATA Franchise Agreement, for example, requires that the franchisee provide a bus map program with NextBus-ready capabilities.452 B. Major Issues to Cover in Service Provider Agreements The issues that should be included in service provider agreements depend in part on the type and scope of service to be provided. For example, a maintenance-only agreement should not require design or construction provisions; an installation-only agreement should not require maintenance provisions. However, regardless of the type of service to be provided, the following issues should be included in service agreements: Exclusivity: Whether the service provider agreement is exclusive. Term: Length of the agreement; renewal options; bo- nus for lengthy term. Permits/permission: Allowable timeframe for obtain- ing necessary permission from private property owners and permits from local jurisdictions; local processes that must be followed. Transfer, subcontracts: Whether the service provider can transfer the agreement, and if so, under what con- ditions, including right of refusal; requirements to no- tify of change in control of service provider’s company, public entity’s options; parameters of allowed subcon- tracting, right of refusal. Fee structure: Type and frequency of payments. 452 Bus Shelter Franchise Agreement, art. IV, Design, § 9, www.ddot.dc.gov/ddot/frames.asp?doc=/ddot/lib/ddot/informatio n/studies/busshelter/Bus_Shelter_1.pdf. NextBus is a real-time passenger information system, www.nextbus.com/corporate/press/index.htm.