SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ALAMEDA, UNLIMITED JURISDICTION

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1 1 OFFICE OF THE GENERAL COUNSEL SAN FRANCISCO BAY AREA RAPID TRANSIT DISTRICT VICTORIA R. NUETZEL (SBN ) 00 Lakeside Drive, rd Floor West Oakland, CA - Tel: () -0 Fax: () -0 vnuetze@bart.gov Attorneys for Defendant San Francisco Bay Area Rapid Transit District SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ALAMEDA, UNLIMITED JURISDICTION 1 1 SHERMAN LEWIS, an individual, RAY NAKADEGAWA, an individual, and TRANSPORTATION SOLUTIONS DEFENSE FUND, a California non-profit public benefit corporation, vs. Plaintiff, METROPOLITAN TRANSPORTATION COMMISSION, et al. Defendant. Case No.: RG-0 DEFENDANT SAN FRANCISCO BAY AREA RAPID TRANSIT DISTRICT'S JOINDER IN OPPOSITION AND MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR PRELIMINARY INJUNCTION DATE: March, 0 TIME: :00 a.m. DEPARTlVIENT: 1 San Francisco Bay Area Rapid Transit District ("BART") hereby joins and adopts the Memorandum of Points and Authorities in Opposition to Motion of Preliminary Injunction filed by Defendants Metropolitan Transportation Commission ("MTC) and Alameda County Transportation Improvement Authority ("ACTIA") and submits the following Memorandum of Points and Authorities in Support of its Opposition to Motion for Preliminary Injunction: v1-1 BART MEMOOFPOINTS & AUTHORITES IN OPPOSITION TOREQUEST FOR PRELIMINARY INJUCTION

2 1 INTRODUCTION On February, 0, Plaintiffs appeared ex parte seeking a Temporary Restraining Order enjoining Defendants MTC and ACTIA from the transfer of funds from the Dumbarton Rail project to BART's Warm Springs Extension ("WSX") Project. This Court denied that application and thereafter set the matter for hearing on an Order to Show Cause re: Preliminary Injunction. BART was not named as party to that action; however, pursuant to stipulation Plaintiffs have agreed that BART is a necessary party and stipulated to join BART as a party Defendant. BART has a direct and immediate interest in the funds that are the subject matter of this litigation. The funds, the transfer of which Plaintiffs seek to enjoin, include $1 million of Regional Measure (RM) funds that had initially been programmed for the Dumbarton Rail Corridor Project and which MTC reallocated to BART's WSX Project. Plaintiffs challenge the propriety of that allocation and, based on the faulty premise that the re-allocation was improper, further challenge ACTIA's commitment of RM funds to the WSX Project. BART herby joins and fully supports the oppositions of both MTC 1 and ACTIA. This brief does not address Plaintiffs' challenge to MTC's and ATCIA's actions, rather it 1 addresses solely the potential harm to BART if the requested preliminary injunction is granted. As noted, the funds at issue in this matter are RM funds that MTC has programmed for the WSX Project. BART has a direct and immediate interest in the litigation and BART, as well as the public, will sustain irreparable harm in the event that the injunction is granted. The funds at issue are necessary and essential to BART's ability to proceed with the WSX Project, a project that is currently poised to commence construction. The construction contract has been advertised for bid. The bid opening is scheduled for March 1, 0 and BART anticipates that the Notice to Proceed will be issued in June 0. All funds allocated by MTC and ACTIA to WSX are required in order to proceed with that construction. These funds are indispensable to the ongoing viability of the project. If the funds are delayed then the project's costs will escalate significantly. If the funds are not received then it is possible the project will not proceed and BART will lose the $ million in public funds already invested in the WSX Project.,,1 - BART MEMOOFPOINTS & AUTHORITES IN OPPOSITION TO REQUEST FOR PRELIMINARY INJUCTION

3 ~ 1 FACTUALBACKGROl~D The WSX Project was initially developed by BART over years ago. It was specified as one of the extension programs as set forth in MTC's Resolution No. adopted in. Declaration of Stacey Perkins ("Perkins Decl.") <JI. Also included in that Resolution was BART's proposed service extension to Dublin/Pleasanton. At that time WSX had a $ million funding shortfall. Id. In SB 1 was approved and designated the Dublin/Pleasanton Extension as a priority. The WSX Project was to commence construction no later than 1 provided that the Dublin/Pleasanton extension was fully funded and ready for implementation. Perkins Decl. <JI. From through 00 the WSX project was essentially on hold because of budget and other ongoing difficulties. Perkins Decl. <JI; Declaration of Paul Medved ("Medved Decl.") <JI. In 00 the voters passed a new Measure B in Alameda County that designated significant funds to the WSX. Perkins Decl. <JI. The project was reactivated and BART proceeded with the required environmental clearances and to obtain the necessary Right-of-Way. Medved Decl. <JI. In 1' 1 0, Regional Measure passed. That measure raised bridge tolls and allocated an additional $ million in funds to the WSX Project. Perkins Decl. <JIll. In 0 MTC revised its Resolution No. and provided for full funding of WSX. As part of that funding BART was required to contribute an additional $ million to the Project. The plan provided a "swap" of RM funds from the Dumbarton Rail Project to WSX. Perkins Decl. <JI1. The funds originally designated for Dumbarton are to be returned to that project through Alameda Regional Transportation Improvement Program funds. Id. The WSX project is currently fully funded. Id. After completion of the environmental clearance, BART determined that he WSX Project could proceed more expeditiously if the northern subway portion were separated out for early delivery and the project were developed in two phases, the fist phase is the construction of the subway portion and the second is the line/track and station construction. The subway construction is a traditional designbid -build construction. Medved Decl. <JI. The design and engineering of that portion is complete and the phase one contract was advertised for bid on February, 0 with a bid due date of April,0. Medved Decl. <JI. Approximately 0 potential contractors attended the pre-bid meeting. Medved,,1 - BART MEMO OF POINTS & AUTHORITES IN OPPOSITION TO REQUEST FOR PRELIMINARY INJUCTION

4 Decl.<J[. The construction is scheduled to commence in June 0 and the entire WSX Project is v1 1 1 scheduled for completion in 1. Medved Decl. g[<j[,. ARGUMENT A determination of whether to issue a preliminary injunction requires the trial court to evaluate two factors: (1) the likelihood that plaintiff will prevail on the merits and () the interim harm that plaintiff may suffer compared to the harm that the defendant may suffer if the injunction is granted. Tahoe Keys Property Owners Association v. State Water Res. Co. Cal.App. th 1, 11 (). As set forth in the Memorandum of Points and Authorities of MTC and ACTIA, it is clear that Plaintiffs cannot prevail on the merits.: What is also clear is that in balancing the potential harm to plaintiff and the potential harm to defendants that the equities require that the requested injunction be denied. A. Plaintiffs will sustain no harm if the injunction is not granted. Plaintiffs seek injunctive relief to prevent what they characterize as a diversion of funds from one project to another; however they have failed to identify any cognizable harm that will be sustained by the public in the event that the relief is not granted. Plaintiffs seek relief pursuant to Cal. Code of Ci v. Pro a which permits a challenge to an illegal expenditure or waste of public funds. Plaintffs, in order to prevail, must cite specific facts and reasons for the belief that the alleged illegal expenditure or injury to the public is occurring or will occur. See Waste Management ofalameda County, Inc. v County ofalameda Cal.App.zl'", 0 (00). Plaintiffs have not demonstrated any waste of public funds that will occur if the funds at issue are allocated to WSX. Although Plaintiffs have, apparently determined that the Dumbarton Rail project is preferable to the WSX project, preference of one project over another does not constitute a waste of public funds. The WSX project has been identified by MTC since and the public has now twice voted to support that project. See Perkins Decl. <J[<J[,. Because the WSX Project is a - BART MEMO OF POINTS & AUTHORITES IN OPPOSITION TO REQUEST FOR PRELIMINARY INJUCTION

5 \' viable project approved by the public there is no potential waste of public funds if the injunction is not granted. Moreover, the Dumbarton Rail project will not suffer as a result of the re-programming of funds. The Dumbarton Rail project funds have been replaced by other funds and thus that project will not be delayed or otherwise sustain any injury as a result of the action of MTC or ACTIA. Perkins Dec!. q{. There is simply no evidence of a waste of public funds or any harm to the public if MTC and ACTIA's proposed actions are not enjoined, and thus there is no justification for Plaintiff's requested relief. B. BART will sustain significant injury if the injunctive relief is granted. In direct contrast to the lack of injury to Plaintiffs if the injunction is not granted is the direct and immediate harm to BART if the injunction is granted. BART could loose $1 million in funding for WSX, the loss of which may prove to be the death knell for that Project. The funds, the transfer of which Plaintiffs seek to enjoin, are essential for the Project to move forward. Perkins Dec!.lJ[. These are not funds that have been allocated for a project that mayor may not be constructed in the future; they are funds for a project that has been extensively developed and is now ready for immediate construction. Perkins Decl. lj[, Medved Dec!. q{. All preliminary Project work has been completed and the first construction contract is currently out for bid. Construction is scheduled to commence in June 0. Medved DecllJ[. If the injunction is issued and any portion of the funding is not received, then the contract cannot be awarded. Perkins Decl ]. BART has, to date, incurred $ million in costs in Project development. Medved Decl q{. BART has completed the design for phase one, has completed the acquisition of the necessary rightof-way and is ready for the construction of phase one. Medved Dec!. lj[. If the project is cancelled all those costs, already incurred by the public will be lost. - BART MEMO OFPOINTS & AUTHORITES IN OPPOSITION TO REQUEST FOR PRELIMINARY INJUCTION

6 \' Moreover, even if the funds are merely delayed, the Project itself would be delayed. Delay alone would result in significant damages to BART. Escalation costs are estimated to be approximately $ million a year, thus for each month the project is delayed an additional $ million in funding is required. Medved Decl, 'J[IO, Perkins Decl 'J[. Further, based on the number of currently interested bidders and the current state of the economy, competition for this contract is expected to be high and, as a result, the bid price lower. If there is a delay in the issuance of the award then other projects benefiting from potential Federal Economic Stimulus money could cause the market to become less competitive, thereby resulting in higher bid prices. Delay will also impact BART's current Project management team. BART has approximately 0 full time equivalent individuals employed on this project. If there is a project delay, BART may be forced to reassign those individuals and may lose the efficiencies arising from the current project team. Medved Decl. [. The potential damage to BART if the requested injunction is granted is manifest. If the injunction is granted, the WSX project will either be cancelled or delayed. Either alternative will result in significant loss and/or significant additional expense. C. The Public will also suffer harm if the injunction is granted. The requested injunctive relief will harm not only BART but also the public. The public has twice voted in support of the WSX project and has clearly indicated that this BART extension is necessary and desirable to the voters. BART's environmental study conducted before proceeding with the project development demonstrates that there is a significant beneficial impact to the public. Medved Decl. 'J[, Ex A. Not only will the public potentially lose this valuable rail extension and alternative to the congested 0 corridor, but it will also lose the benefits of a large public construction contract. The construction contract currently out for bid is estimated to be $ million. That contract will involve a large number of construction trades and employ thousands of people. Medved Decl. 'J[. Not only - BART MEMO OFPOINTS & AUTHORITES fn OPPOSITION TOREQUEST FOR PRELIMINARY INJUCTION

7 1 would the construction project result in a significant number of immediate jobs, the funds would also be returned to the public as the funds are expended for the project. Clearly, not only BART but the public will sustain significant harm if this requested injunction were granted. CONCLUSION Plaintiffs have neither demonstrated probable success on the merits nor significant harm resulting if the injunction were not granted. To the contrary, it is BART and the public that will suffer cognizable and significant harm if the injunction is granted.. The equities in this matter weigh in favor of the defendants and it is respectfully requested that 1 1 the prposed preliminary injunction be denied. DATED: March, 0 Respectfully submitted, OFFICE OF THE GENERAL COUNSEL SAN FRANCISCO BAY AREA RAPID TRANSIT BY.~--= DISTRICT Attorney for Defendant San Francisco Bay Area Rapid Transit District v1 - BART MEMO OF POINTS & AUTHORITES IN OPPOSITION TO REQUEST FOR PRELIMINARY INJUCTION