Closing Time: 2:00 p.m. Vancouver time, Thursday, February 10, 2005
Instructions:
Proposals and their
envelopes are to be clearly marked with the name and address of the
Proponent, the Request for Proposal number indicated above, and the
project title indicated above.
Nine (9) complete sets
(the original and eight copies) of each Proposal are to be
received no later than the closing time stated above at the following
location and addressed as follows:
RFP #
SR-2004-001, SKYTRAIN RETAIL
Materials Manager
British Columbia
Rapid Transit Company Ltd.
6800 14th
Avenue
Burnaby BC
V3N 4S7
Proposals are not to be
sent by facsimile or e-mail.
4.1
Ownership of Proposals
4.2 Governing Law and Submission
4.3 Sub-licensing
4.4 Assignment by Proponents
4.5 Costs and expenses
4.6 Expressly reserved
5.1
No lobbying or indirect communication
5.2 Considerations for Proponents
5.3 Compatibility restrictions
5.4 Identification and Background
checks etc
5.5 Inquiries / Addenda
5.6 Freedom of Information and
Protection of Privacy
5.7 Security and orientation program
5.8 Confidentiality
5.9 Submission Instructions
5.10 Multiple Retail Spaces in a
single Proposal, and more than one Proposal
5.11 Currency
(a)Greater Vancouver Transportation Authority (“TransLink”) is
responsible for planning, financing and operating a regional
transportation system that moves people and goods efficiently throughout
the Greater Vancouver Regional District.
(b)British Columbia Rapid Transit Company Ltd. (“BCRTC”), is a
subsidiary of TransLink. BCRTC operates, on behalf of TransLink, the
internationally respected advanced rapid transit system known as SkyTrain.
SkyTrain is a vital component of TransLink’s integrated, multi-modal
transit system (“Transit”). SkyTrain is currently made up of two lines
(the Expo Line and the Millennium Line), consisting of 49 kilometres of
track and 32 stations, linking downtown Vancouver with the municipalities
of Burnaby, New Westminster and Surrey. SkyTrain is one of Canada’s
largest distribution channels of customers and people. It is estimated to
carry over 65 million people annually, and is growing.
(c)TransLink is permitting selective retail development at SkyTrain
stations and under parts of the SkyTrain rail guideway. Opportunities
exist for a wide range of retail operations, including kiosks/carts,
convenience stores, food and beverage outlets, and general and specialty
merchandise and services outlets. It is hoped that this Request for
Proposals will attract broad interest, from local businesses and
organisations and from national chains and operators, and will identify a
large variety of retail opportunities.
(d)The character of the retail opportunities that would be optimal
varies by location, and is influenced by factors such as the size of the
retail space available, station ridership, future development plans,
safety and operational limitations, utilities and other servicing
available, and zoning and regulatory requirements.
(e)This Request for Proposals is not intended to attract proposals for
short-term (less than one year) or seasonal retail opportunities. Any such
opportunities are outside of the scope of this Request for Proposals. Any
interest in short term or seasonal opportunities should be directed to the
Materials Manager of BCRTC, separately from any inquiries or interest in
this Request for Proposals.
(a)As previously stated, BCRTC is a subsidiary of TransLink. In
connection with this Request for Proposals and the Operating Licences and
Kiosk Licences which are to be entered into, BCRTC is agent for TransLink.
(b)Proponents acknowledge and accept that:
(i)all rights, powers and entitlements of TransLink in connection with
this Request for Proposals, Operating Licences, Kiosk Licences, Proposals
submitted by Proponents, and letters of credit provided by Proponents may
be exercised and enforced by BCRTC, either in its own name (if BCRTC so
elects) or in its name on behalf of TransLink, will also extend and apply
to BCRTC; and
(a)SkyTrain Ridership statistics, by station, are attached as Appendix
1.
(b)SkyTrain ridership is expected to increase, reflecting the major
expansion of the system and its strong integration with the bus network
and population growth of the region as a whole. SkyTrain’s new Millennium
Line, capacity improvements on the Expo Line, the U-Pass program at SFU
and UBC, proposed increases of 2 to 3 percent per year in additional bus
and minibus (community shuttle) service, construction of extensions to
existing rapid transit lines, and other measures, are all expected to
bolster Transit ridership.
(c)One of TransLink’s priorities is increasing Transit use by
commuters and post-secondary students in prime target areas during the
peak and mid-day time periods. One of the greatest opportunities for
growth in Transit use is on SkyTrain. Introduction of the SkyTrain retail
program is intended to support increased ridership by enhancing ambience,
convenience, scope of service, and overall experience for users of the
TransLink system.
(a)As stated in NOTE 1 of Schedule A of the Form of Proposal,
Proponents may, as they wish, choose to propose a Kiosk Licence or
an Operating Licence for any Retail Space, by selecting one or the
other as is provided for in Schedule A of the Form of Proposal.
Proponents may do so regardless of how extensive the proposed equipment
and any installations may be – whether a “cart” style kiosk, or a fixture
or structure with millwork and other design, or a full scale improvement.
Of course, in many cases the size (i.e. the area) of the Retail Space or
the capital investment required may dictate that a lesser use, or a
shorter assured term of years, would not be optimal or practicable.
Proponents are left to their creativity, and their own assessments, as to
how best to address the opportunities and present their Proposals.
(i)If “Kiosk Licence” is selected by the Proponent for a Retail
Space, then, for that Retail Space, for the Proponent’s Proposal:
·the Proforma Kiosk Licence shall
apply;
·the initial Term of the Kiosk Licence
shall be ONE YEAR; and
·the Kiosk Licence will provide for
THREE successive renewal periods, at the option of the Proponent, for ONE
YEAR EACH.
(ii)If “Operating Licence” is selected by the Proponent for a
Retail Space, then, for that Retail Space, for the Proponent’s Proposal:
·the Proforma Operating Licence
shall apply;
·the initial Term of the Operating
Licence shall be FIVE YEARS; and
·the Operating Licence will provide
for TWO successive renewal periods, at the option of the Proponent, for
FIVE YEARS EACH.
(b)In this Request for Proposals:
(i)“Proforma Kiosk Licence” refers to the document identified
as “Proforma for RFP # SR-2004-001, SKYTRAIN RETAIL SPACE, Kiosk
Licence”, of which a copy can be obtained at BCRTC’s website,www.skytrain.info; and
(ii)“Proforma Operating Licence” refers to the document
identified as “Proforma for RFP # SR-2004-001, SKYTRAIN RETAIL SPACE,
Operating Licence”, of which a copy can be obtained at BCRTC’s
website,www.skytrain.info.
Copies of the Proforma
Operating Licence and the Proforma Kiosk
Licence can also be picked up from:
Material Manager
British Columbia Rapid Transit Company Ltd.
6800 14th Avenue
Burnaby BC, V3N 4S7
Information regarding servicing and utilities is set out in Schedule C of this Request for Proposals. See also Schedule D - [PROTOCOL FOR SERVICING] of this Request for
Proposals.
Zoning
and regulatory requirements must be considered on a location-by-location
basis. It may be necessary to amend existing zoning bylaws, or obtain
development variances or other approvals, to permit retailing in areas
where it is currently restricted. See Schedule E - [ZONING AND REGULATORY REQUIREMENTS] of this Request
for Proposals.
(a)This process does not constitute an offer by TransLink or BCRTC. No
contract results from the issuance of this Request for Proposals or the
submission of Proposals, except only with the Proponents, if any, whose
proposals are accepted by TransLink. TransLink reserves the right to
accept any proposal that TransLink considers to be most beneficial and
advantageous to TransLink, and reserves the right to reject any or all
Proposals.
(b)TransLink may accept a non-compliant Proposal. TransLink may waive,
regardless of severity, any non-conformity, non-compliance, lateness or
delay, irregularity or error. TransLink may at any time elect to request
re-submissions, and may undertake the entire process over again, in the
same or an altered format, and with the same or different participants.
(c)Before any contract or obligation relative to the subject matter
herein becomes binding on TransLink approval thereof by the Chief
Executive Officer of BCRTC will be required. Before such approval, the
Chief Executive Officer of BCRTC might choose to submit the matter for
approval of the Board of Directors of TransLink.
(d)Proposals will be opened privately.
(e)TransLink may seek clarification or confirmation from any one or
more Proponents, and may give any one or more Proponent an opportunity to
correct its Proposal or to cure, regardless of severity, any
non-conformity, non-compliance, irregularity or error relative to its
Proposal.
(a)The evaluation of Proposals will be based on a number of factors,
weighted and applied according to the needs and interests of TransLink.
The highest or any Proposal will not necessarily be accepted. TransLink
intends to consider the following:
·proposed design concepts
·compatibility and complementary aspects
·services and products proposed
·pricing
·length of term relative to capital costs
·construction timeline
·projected annual sales forecasts and
expenses
·proposed rent
·covenant / credit‑worthiness / co‑covenantor(s)
·quality of the submission, and conformity
of the Proposal to requirements set forth
·experience and proficiency of the
Proponent, and past dealings (if any)
·the overall best value or best projected
impact or result to TransLink
·other factors that may arise or are
reasonably considered by TransLink to be relevant
(b)Selection of licensees for the Retail Spaces will also be governed
and influenced by factors such as:
·requirements for on-site and off-site
services and utilities
·perceived or anticipated potential:
·affect or impact on Transit operations
(which must not be impeded by retail development and operations)
·affect or impact on pedestrian flow in
and around Transit property, line-ups (queuing) of customers, and measures
to mitigate
·affect or impact on and enhancements to
general safety and security
·affect or impact of shipping and
receiving to and from the retail location
·needs for amenities (washrooms, etc) by
licensees and their staff;
·objectives of TransLink, such as:
·increasing ridership
·enhancing ambience, convenience, scope of
service, and overall experience for users of the Transit system
·complementary retail mix
·supporting the customer’s desire for an
increased sense of safety and security at SkyTrain stations
·providing optimal return on investment
·balancing the interests of communities
and businesses
·making SkyTrain stations more people and
community friendly
·perceived or anticipated potential impact
of operations on the community, and community involvement including
support through advertising and sponsorship
·operational needs of the SkyTrain, as a
functioning rail transportation system, including future planning needs
·future planning for retail opportunities
(c)In connection with this Request for Proposals and the SkyTrain
retail program, TransLink reserves the right and flexibility to select
among the Proposals received and negotiate and deal with Proponents, so as
to make optimal choices, as judged and perceived by TransLink, for
TransLink its operations, regardless of how individual Proponents are
affected.
(d)The evaluation process might apply certain criteria or sets of
criteria on a “pass/fail” basis, pursuant to which failing Proposals are
eliminated. For example, it is intended that safety and security will be
applied as a “pass/fail” criteria. Other criteria or sets of criteria
might be applied so as to require a “minimum requisite score”, pursuant to
which Proposals that do not satisfy the threshold “minimum requisite
score” are eliminated.
(e)Evaluation of proposals will be by a committee formed by BCRTC and
may include employees and contractors of BCRTC and TransLink and
consultants.
(f)The evaluation committee will not be required to keep the financial
bids separate or undisclosed while carrying out the evaluation of
non-financial criteria. The financial bid submitted by Proponents may be
known by the evaluation committee at the outset of the evaluations,
regardless of when other criteria are to be evaluated or scored or the
sequence in which they are to be evaluated or scored.
The
evaluation committee may consult with and take into account the input,
comments and views of senior management of BCRTC and TransLink, in
applying the relevant criteria.
TransLink may engage in discussions with one or more Proponents, as
TransLink sees fit, to explore ways to alter, refine or improve the
opportunity or the ultimate arrangement or agreement, and to attempt to
reconcile among Proposals received and to achieve optimal overall results,
and to negotiate and finalise agreements based on such discussions, and
TransLink will not be obligated to offer any modified terms to any other
Proponent.
TransLink may invite one or more Proponents to make a presentation or
presentations, without inviting others to do so.
(a)Each Proponent, by submitting a Proposal, accepts all of the
conditions and stipulations set out herein and in the Form of Proposal,
and acknowledges and agrees that TransLink will have no liability or
obligation to any Proponent except only as to any one or more of the
Retail Spaces awarded to the Proponent by TransLink, and agrees that,
other than as previously stated, whether or not any express or implied
obligation has been discharged by TransLink, TransLink shall be fully and
forever released and discharged of all liability and obligation in
connection with the Request for Proposals and all related matters, and all
actions and procedures which preceded.
(b)Any and all claims for damages or other recovery against TransLink,
in connection with any claims regarding the conduct or outcome of the
Request for Proposals and related matters, will be limited to $10,000 in
the aggregate for all Proponents making such claims. TransLink may at any
time elect to proceed with one or more Proponents, or with none, and will
have no further liability to the other(s), or to any of the Proponents (if
TransLink proceeds with none), as the case may be, in connection with the
Request for Proposals and related matters and the conduct or outcome of
the Request for Proposals and related matters.
(c)Proponents also agree that if a court of competent jurisdiction
determines that TransLink or BCRTC has any liability, it is a term of this
Request for Proposals that the maximum claim recoverable by anyone
affected is limited to the out of pocket costs of that person of preparing
the Proposal, up to $1,000.
Proposals will be open for acceptance by TransLink at any time on or
before April 27, 2005, and will be irrevocable until then. Proponents
agree that Proposals shall be irrevocable and open for acceptance as
previously stated even if the Proposal is non-compliant.
TransLink contemplates that if a suitable operator has not been selected
or terms have not been settled upon, for a particular location, retailing
sector or product or service, by this date, then TransLink may wish to
elicit offers from other parties (whether or not such parties have
previously submitted a proposal in response to this Request for Proposals)
or engage in another request for proposals. TransLink will be at liberty
to do so.
TransLink and BCRTC contemplate that the assignment of
the Retail Spaces with Proponents will be settled with groups of
Proponents, or groups of Retail Spaces, in stages, based on factors such
as location, nature of operations (i.e. cart/kiosk), operational impact,
transitional considerations, and so on. The target dates for such stages
are:
Closing Time:
2:00 p.m. Vancouver time, Thursday, February 10, 2005
Recommendation(s) by
BCRTC to be made by:
Approval by the Chief Executive Officer of
BCRTC and if applicable the Board of Directors of TransLink:
It is
Proponent’s responsibility to ensure that Proponent has reviewed and kept
itself apprised of all addenda issued from time to time respecting this
Request for Proposals. Addenda will be posted at BCRTC’s website, as
follows:
All
addenda from time to time issued by BCRTC or TransLink respecting this
Request for Proposals are expressly incorporated as part of Proponents’
Proposals.
No
addenda will be issued
on the Closing Date or the two days prior to the Closing Date.
Proposals become the property of TransLink. All writings, programs, plans,
drawings and specifications prepared by or on behalf of a Proponent may be
used by TransLink for any purpose.
This
Request for Proposals shall be governed by and construed in accordance
with the laws of the Province of British Columbia, which shall be the
proper law hereof. Proponents agree to attorn and submit to the
jurisdictions the Courts of British Columbia as to all matters, claims and
disputes arising out of or in any way connected with this Request for
Proposals.
(a)TransLink will consider Proposals which contemplate sub-licensing
by the Proponent.
(b)Proponents are instructed to provide comparable information and
material, relative to proposed sub-licensee(s), as is called for in the
Form of Proposal for Proponents themselves.
(c)Where a Proposal contemplates sub-licensing by the Proponent:
(i)the Proponent agrees that, if awarded one or more of the Retail
Spaces for which sub-licensing is proposed, the Proponent will execute and
deliver to TransLink and will cause the proposed sub-licensee to execute
and deliver to TransLink a “consent to sub-license” instrument, including
covenants of the Proponent and the sub-licensee in favour of TransLink, on
terms and conditions reasonably prescribed by TransLink; and
(ii)no additional sub-licensing will be permitted, nor other changes
permitted, as to the sub-licensees named in the Proposal, unless approved
in writing by BCRTC.
(d)TransLink and BCRTC are resolute that sub-licensing will not be
effective as a means of circumventing disclosure of information or
requirements that would be applicable if the sub-licensee had submitted a
Proposal directly as a Proponent.
(e)Once the Operating Licence or Kiosk Licence (as the case may be)
has been entered into, then the provisions therein respecting
sub-licensing will govern as to any subsequent sub-licensing.
Assignment by the Proponent before the Operating Licence or Kiosk Licence
(as the case may be) has been entered into is not permitted. Once the
Operating Licence or Kiosk Licence (as the case may be) has been entered
into, then the provisions therein respecting assignment will govern.
TransLink and BCRTC reserve the right at any time to assign Retail Spaces
to and enter into kiosk or operating licences with retail operators who
have not responded to this Request for Proposals, for short term or long
term periods.
TransLink and BCRTC reserve the right to decline to proceed with retail
development of any one or more or all the Retail Spaces.
Proponents are instructed that they are not to attempt to communicate
directly or indirectly with any employee, contractor or representative of
BCRTC or TransLink, including the evaluation committee and any officers or
directors of BCRTC or TransLink or with members of the public or the
media, about the project described in this Request for Proposals or
otherwise in respect of the Request for Proposals, other than as expressly
stated in this Request for Proposals or expressly directed or permitted by
BCRTC. Any such lobbying or other communication will constitute sufficient
grounds for disqualification.
In
responding to this Request for Proposals, potential retailers should
consider and take into account:
(a) the factors and objectives described in Sections 3.2 above;
(b)the specific circumstances of each Retail Space as set out in the
Schedules to this Request for Proposals;
(c)their own assessment of the opportunities, and the results of their
own due diligence and investigations;
(d)the compatibility restrictions described in Section 5.3 below;
(e)the following limitations and requirements:
(i)Transit operations must not be materially impeded by retail
development and operations;
(ii)pedestrian flow in and around Transit property must not be
materially impeded;
(iii)retail development and operations must not detract from or
adversely affect passenger and employee safety and security, but should
provide enhancements to safety and security;
(iv)building improvements, including additions, will be permitted at
some stations and under some guideway sections;
(v)all improvements must meet local zoning and building regulations;
(vi)BCRTC must approve any station improvement;
(vii)any expenditure associated with station improvements will be the
retailer’s responsibility;
(viii)many in-station opportunities will be within a “fare paid zone”
requiring any potential customers to have paid the appropriate Transit
fare and be able to produce proof of payment;
(ix)advertising on Transit property is contracted out to a third party
contractor and any advertising by retailers on Transit property must be
conducted through this third party contractor, the cost of which will be
the retailer’s responsibility. TransLink has limited control over
advertising, the form of advertising or the proximity of any advertising
to the retailer’s location; and
(x)signage at retail locations and any advertising within the retail
location visible from outside (including any signage and advertising
placed in windows) will be subject to approval by TransLink and must
conform to the applicable elements of TransLink’s policy in effect from
time to time for Transit Advertising. For the current policy, see Appendix
2
(f)potential retailers are encouraged to demonstrate that they and
their retail outlets: (A) have a history of good management; (B) are
community-minded; and (C) are financially stable.
At any
stage in the Request for Proposals process, TransLink or BCRTC may require
consents, for persons associated with the Proponent including employees,
for police, credit, financial and reference background checks. TransLink
or BCRTC may also require such consents from time to time during the Term,
as provided for in the Operating Licence and the Kiosk Licence.
Proponents are advised that retail personnel operating on Transit property
will be required to obtain photo identification cards issued by BCRTC,
which must be produced upon request while engaged in retail operations.
Proponents are instructed to submit inquiries in writing marked for the
attention of the “Materials Manager” for BCRTC and sent by fax to. (604)
520-1598. Please make reference to RFP # SR-2004-001.
The
Materials Manager’s telephone number is (604) 520-3641.
If
TransLink or BCRTC determines that a clarification is required, a written
and numbered addendum will be issued. TransLink and BCRTC may at any time
issue addenda, for clarification as previously described, or to alter or
supplement this Request for Proposals. See Section 3.7 above.
Proponents are instructed not to make inquiries except through the
Materials Manager. Proponents are instructed not to make inquiries
regarding this Request for Proposals with departments of TransLink or
BCRTC, or staff, board members or consultants.
TransLink and BCRTC will not be bound by any informal explanations,
clarifications or interpretations, whether given orally or in writing, by
whomsoever made, that are not incorporated into an addendum to this
Request for Proposals.
TransLink is subject to the Freedom of Information and Protection of
Privacy Act of British Columbia. All Proponents are advised to review
this Act and to seek legal advice regarding the categories of records that
may be exempted from disclosure under that Act. All Proposals and any
other information supplied to TransLink or BCRTC by Proponents pursuant to
this Request for Proposals and related matters are supplied subject to the
terms of that Act. Proponents are advised that TransLink will comply fully
with its obligations under that Act, as such obligations may be
interpreted and applied by TransLink from time to time and case by case.
Proponent accepts that TransLink will be entitled to do so.
Retail
development and operations must not detract from or adversely affect
passenger and employee safety and security but should provide enhancements
to safety and security. TransLink will require that retail personnel
attend and participate in a short training session on safety and security,
including general information on Transit operations and an overview of the
Transit network.
Information and materials provided by TransLink or BCRTC in connection
with this Request for Proposal will be treated as confidential, and will
be used and disseminated only as is strictly necessary for the purpose of
making a Proposal. On the request of TransLink or BCRTC, Proponents will
return all written materials (including drawings and plans), and retrieve
them from others so that they can be returned.
(a)comply with the instructions on the first page of this Request for
Proposals; and
(b)use and follow the Form of Proposal supplied by BCRTC for this
Request for Proposals. Alterations to this Form of Proposal are
discouraged. TransLink is entitled to assume that no alterations have been
made, unless clearly marked and highlighted.
It is
anticipated that from time to time new retail spaces will be added to the
SkyTrain retail program, or existing retail spaces will become available.
BCRTC intends to keep a record of proponents who have submitted bids. From
time to time, BCRTC may draw from among past proponents, other identified
interested parties, and suitable target candidates, where considered
appropriate, for future opportunities. A request for proposals process
might be followed for future opportunities, or a less formal process might
be followed. In some cases prospects might be approached directly.
The following provisions are contained in the Kiosk
Licence and the Operating Licence:
“SkyTrain is an operating rail transportation system
and is part of an integrated, multi-modal transit system. The Licensee
recognises that the operation of SkyTrain and the multi-modal transit
system is paramount, that the Licensor at all times retains the right and
power to conduct operations thereof as the Licensor determines, that
disruptions to the Licensee’s operation will from time to time occur, and
that operating requirements, events and activities relating to the
SkyTrain or the rest of the transit system will from time to time
adversely impact the Licensee’s operation. The Licensee acknowledges that
the Licensor will have no liability to the Licensee in connection with any
of the foregoing (including for negligence by the Licensor towards the
Licensee in connection with any of the foregoing), and despite the
foregoing the Licensee will remain liable to pay the Fees and otherwise
fully comply with this Licence.
The Licensee acknowledges that: (i) passenger flow must
not at any time be obstructed or impeded by or in connection with
Licensee’s operations; (ii) any inconvenience to passengers, by or in
connection with Licensee’s operations, must at all times be minimal and
minimized; and (iii) the Licensee will at all times take and implement
such steps and measures as the Licensor may from time to time prescribe,
to give effect to the foregoing, and such steps and measures might entail
temporary closure of the Licensee’s retail operations for peak passenger
flow periods (for example, concerts and sporting events).
The foregoing applies during any period of construction
or refurbishment of the Licensed Space. Specific written approval must be
obtained in writing from the Licensor, for any exceptions.”
The
2010 Olympic and Paralympic Games may take place during the term or
renewal periods of some of the licenses being entered into as a result of
this Request for Proposals. Proponents are advised that Transit
operations, including the SkyTrain, may be subject to restrictions,
possible black-out periods, closures and interruptions from time to time,
which will affect retail operations, which may include prohibitions or
restrictions on signage, sponsorship and advertising (including within
retail locations) and system-wide or location specific shutdowns which may
prevent or curtail all or some retail operations. Details are not known at
this time. These may be in effect before, during and potentially after the
Olympic and Paralympic Games.
The
Proforma Operating Licence and the Proforma Kiosk Licence contain specific
provisions recognising that the Licensee will be subject to the foregoing
and will have no claim or recourse against TransLink or BCRTC therefor.
Material Manager
British Columbia Rapid Transit Company Ltd.
6800 14th Avenue
Burnaby BC, V3N 4S7
Fax. no. (604) 520-1598
Tel. no. (604) 520-3641
This is the only report put
forward by TransLink and BCRTC, for the purpose of this Request for
Proposals.
The statistics and other
information in this report are not exact. Assumptions and extrapolations
may have been applied. TransLink and BCRTC do not warrant these statistics
and information, except only to state that they believe them to be a
reasonable representation of what they purport to represent. TransLink
does not accept liability if they are inaccurate in any way. Proponents
must make their own investigations and judgements.
Proponents agree that any claim
based on any inaccuracy in connection with the above report, or in
connection with any other statistics or information disseminated in
connection with the Request For Information for Sky Train Retail issued
February 12, 2004, shall be limited to $100.
1.Servicing Work to be carried out by
Trade Contractors and Consultants prescribed or approved by BCRTC
In this
Schedule, “Servicing Work” refers to all work concerning services and
utilities (including any work potentially affecting structural aspects, or
carried out in proximity to existing utilities and services) and related
consulting (such as mechanical, electrical, and engineering), and includes
work for:
(a)electrical, water and drainage, and telephone (if proposed by the
Proponent for the
Proponent's proposed use for the subject Retail Space); and
(b)any other servicing or utilities (e.g. other communications, or
exhaust ) that is proposed by
the
Proponent for the Proponent's proposed use for the subject Retail Space),
whether
or not it has been taken into account by TransLink in assigning the
Allocated Servicing Amount as is described in Schedule C.
All
Servicing Work shall (unless exempted in specific instances from this
requirement, by BCRTC in writing) be carried out by trade contractors and
consultants prescribed in writing by BCRTC or approved in writing by BCRTC.
Trade contractors and consultants prescribed or approved by BCRTC may vary
from SkyTrain station to station, or from site to site.
2.Contracts will be entered into with
TransLink (or BCRTC)
TransLink requires that the trade contractors and consultants engaged for
Servicing Work will have direct and primary responsibility to TransLink
(or BCRTC). Accordingly, the contracts for Servicing Work shall be entered
into with TransLink (or BCRTC), in accordance with contract documents
prescribed by TransLink (or BCRTC).
3.Costs of Servicing Work, and related
matters
(a)Costs will be paid by Licensee
The
Licensee will reimburse TransLink and BCRTC for all Servicing Work.
Payment will be made within 30 days after demand.
(b)Indemnity
The
Licensee agrees to indemnify and save harmless TransLink and BCRTC from
and against all costs related to Servicing Work, and from and against all
claims in connection therewith including claims by trade contractors under
the contracts entered into with them and claims by persons claims through
such trade contractors. BCRTC may require that the Licensee execute a
specific indemnity, in a form prescribed by BCRTC, at any time (before the
commencement of the Servicing Work, while the Servicing Work is being
carried out, or after) in favour of BCRTC and TransLink. This indemnity
extends to claims of builder liens.
(c)Administration Charge
The
Licensee will pay an administration charge to BCRTC in the amount of 12%
(the “Administration Charge”) of the cost of the Servicing Work. The
reasonable calculation and determination by BCRTC of the amount of this
Administration Charge will be binding upon the Licensee.
(d)Letter of Credit to be posted by
Proponent before work is commenced
The
Licensee will post a letter of credit, in an amount reasonably required by
BCRTC, before any physical work is commenced. The Licensee may also
require that this letter of credit be posted at an earlier time (for
example, if consulting fees will be substantial, BCRTC might require that
the letter of credit be posted sooner).
The
amount of the letter of credit required will be approximately equal to the
costs of the Servicing Work, as reasonably estimated by BCRTC at the time
the letter of credit is to be posted, plus the Administration Charge. If
in the reasonable determination of BCRTC it appears at any time that the
costs of the Servicing Work will exceed the previous estimate(s), then
BCRTC may revise the amount of the letter of credit required (for which a
replacement or revised letter of credit shall be provided by the Licensee
to BCRTC within 7 days after request therefor made by BCRTC).
The
form of the letter of credit will comply with the requirements for letters
of credit under the Operating Licence (see Section 7.2) and the Kiosk
Licence (see Section 6.2), as applicable.
4.Allocated Servicing Amount
(a)Amount not warranted
TransLink does not warrant that the Allocated Servicing Amount is
accurate, or that it reflects a reasonable estimate. See NOTE (2) of
Schedule C of this Request for Proposals.
(b)If Allocated Servicing Amount exceeded
If,
after the Licensee has carried out investigations, or at any time, it
appears that the Allocated Servicing Amount will be exceeded, then:
If the
Licensee demonstrates to the reasonable satisfaction of BCRTC that the
probable cost of Servicing Work plus the Administration Charge, for the
subject Retail Space, will be more than double the Allocated Servicing
Amount stated in the Retail Space Matrix, or BCRTC otherwise makes the
determination that the probable cost will be more than double, then:
A. the Proponent may
decline to proceed with the Operating Licence or Kiosk Licence (as the
case may be) as to that Retail Space. If the Proponent wishes to decline
to proceed on this basis, then the Proponent must give notice in writing
to that effect to BCRTC not later than 45 days prior to the date set out
in the Retail Space Matrix for commencement of operation in that Retail
Space. Provided that TransLink may elect to pay the excess (that is, over
double), in which case: (1) the Proponent will, notwithstanding the
foregoing, be obligated to proceed; and (2) for greater certainty, the
abatement set out in Clause 4(b)(ii) of this Schedule will apply as to the costs over the
Allocated Servicing Amount that are paid by the Proponent for that Retail
Space; and
B. TransLink may also
(rather than face the abatement set out in Clause 4(b)(ii) of this Schedule) decline to proceed with the Operating
Licence or Kiosk Licence (as the case may be) with the Proponent as to
that Retail Space. If TransLink wishes to decline to proceed on this
basis, then TransLink must give notice in writing to that effect to the
Proponent before the contracts for the work with the trade contractors are
executed by TransLink;
and provided further that, in any case, the Proponent’s
obligations for other Retail Space (if any) in the Proponent’s Proposal
will remain in effect.
Except
as otherwise stipulated in Clause 4(b)(i) of this Schedule, the Proponent will remain obligated
to proceed, provided that abatement will apply as follows:
The
amount if any by which the costs for Servicing Work paid by the Proponent
for the subject Retail Space exceed (as reasonably calculated and assessed
by BCRTC) the Allocated Servicing Amount for that Retail Space by more
than 25% will be credited to the Proponent by way of an abatement of Fees
(without interest), applying straight line amortization over the initial
term.
For
example, for Retail Space for which the
initial term (disregarding renewal periods) is five (5) years, if the
Allocated Servicing Amount was $50,000 and the actual costs for Servicing
Work inclusive of the Administration Charge was $90,000, then $27,500
[i.e. $90,000 less $62,500, which is 125% of $50,000] will be credited to
the Licensee over 60 months @ $458.33 per month. Accordingly, the Fees
payable as otherwise determined under the Operating Licence or Kiosk
Licence (as the case may be) will be reduced by $458.33 per month for the
initial five (5) years.
5.
Keep BCRTC informed and apprised, and
report
The
Proponent shall keep BCRTC informed and apprised, on a timely basis, of
the status of proposed Servicing Work and related costs. Upon request by
BCRTC from time to time, the Proponent shall within 7 days report to BCRTC
as to all material information concerning proposed Servicing Work and
related costs.
If the
Proponent has been awarded more than one Retail Space, then the Allocated
Servicing Amount for them and the actual costs for Servicing Work for them
will be aggregated for the purpose of calculating and applying the
abatement allowed for in Clause 4(b)(ii) of this Schedule.
7.No liability other than abatement
Except
for the abatement provided for in Clauses 4(b)(ii) and 6 of this Schedule, and whether not the Operating Licence
or Kiosk Licence (as the case may be) proceeds, TransLink and BCRTC will
have no liability whatsoever to any Proponent for any variance between the
Allocated Servicing Amount and the costs (actual, or estimated) for
Servicing Work.
It
would be impractical to seek approvals of regulatory authorities without
having ascertained the specific uses for which each Retail Space will be
developed. In some cases, development permits will be necessary - which
will require submissions of plans and details of the development proposed
by the Proponent and of the alterations and improvements proposed by the
Proponent.
2.Authorities Having Jurisdiction
In this
Schedule, “Authorities Having Jurisdiction”, with respect to each Retail
Space respectively, refers to all regulatory authorities, including local
government, having jurisdiction or authority with respect to development
of that Retail Space for the proposed retail uses or having jurisdiction
or authority with respect to construction of work or improvements in
connection with such development.
3.Mutual subject condition
The
obligations of TransLink and the Proponent in connection with the
Proponent’s Proposal are subject to, with respect to each Retail Space
respectively, obtaining requisite approvals of Authorities Having
Jurisdiction, as follows:
(a) As
to each Retail Space for which the Proponent has submitted its Proposal,
the Proponent shall make all commercial practicable best efforts to obtain
requisite approvals of the Authorities Having Jurisdiction for the use
proposed by the Proponent for such Retail Space and for the construction
of work or improvements proposed by the Proponent therefor. The Proponent
shall continue to make shall make all commercial practicable best efforts
until the Subject Removal Date (with respect to that Retail Space, as set
out herein) has passed.
(b) If
requisite approvals of Authorities Having Jurisdiction have not been
obtained by the Subject Removal Date for such Retail Space, then each of
TransLink and the Proponent may decline to proceed with the Operating
Licence or Kiosk Licence (as the case may be) as to that Retail Space.
Provided that the Proponent’s obligations for other Retail Space (if any)
in the Proponent’s Proposal will remain in effect (unless the Proponent
may likewise decline to proceed as to such other Retail Space, because
approvals of Authorities Having Jurisdiction have not been obtained, or
the Proponent is otherwise entitled to decline to proceed according to the
terms and conditions set out in this Request for Proposal).
This
subject condition is to be removed, as to each Retail Space, by an
instrument executed by both TransLink and the Proponent and delivered on
or prior to the Subject Removal Date for that Retail Space, failing which
this subject condition will be deemed not to have been satisfied or waived
as to that Retail Space.
The
Proponent shall keep BCRTC informed and apprised, on a timely basis, of
the status of approvals of Authorities Having Jurisdiction. Upon request
by BCRTC from time to time, the Proponent shall within 7 days report to
BCRTC as to all material information concerning approvals of Authorities
Having Jurisdiction.
5.No liability
Neither
BCRTC nor TransLink will have any liability to Proponents, in connection
with zoning and regulatory requirements or failure to obtain approvals of
Authorities Having Jurisdiction.
6.Commencement Date Likewise extended
If, for
any Retail Space, the Subject Removal Date is extended as is provided for
in Section 3(c) of this Schedule, then the Commencement Date for the
Retail Space shall also, in each instance, be extended, by the same
period.
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