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IN THE SUPERIOR COURT OF FULTON COUNTY STATE OF GEORGIA Defendants. Civil Action FileNo. 2014CV255137 BELLSOUTH TELECOMMUNICATJONS, LLC d/b/a AT&T GEORGIA, Plaintiff, v. METROPOLITAN A TLANT A RAND TRANSIT AUTHORITY and CITY OF ATLANTA,. FINAL ORDER GRANTING DEFENDANT METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY'S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO COUNT I Defendant Bellsouth Telecommunications, LLC d/b/a AT&T Georgia (AT&T) filed this action for reimbursement from Defendants City of Atlanta (the "City") and Metropolitan Rapid Transit Authority (MARTA) seeking to recover several million dollars in costs it incurred relocating certain of its utilities to facilitate construction of the Atlanta Streetcar. This project is a modern streetcar system operating a segment, approximately 2.7 miles long, between downtown Atlanta, the King Historic District and the Old Fourth Ward neighborhood (the "Atlanta Streetcar" or "Atlanta Streetcar Project" or the "Project"). 1 Previously, this Court granted the City's Motion for Judgment on the Pleadings, finding that it was "authorized to order [AT&T] to relocate its existing facilities from the public rights of way without compensation to accommodate the construction of the Atlanta Streetcar." (Order, entered October 14, 2015). Accordingly, AT&T Georgia's current claims for reimbursement concern only MARTA. The above matter is now before the Court on (a) Defendant Metropolitan Atlanta Rapid Transit Authority's Motion for Summary Judgment as to all claims and (b) Plaintiff's Motion for Partial Summary Judgment as to Count l. The parties appeared before the Court on November 29, 2016, for a hearing on I Mendoza Aff., '11 5-6. 1 Fulton County Superior Court ***EFILED***QW Date: 2/24/2017 3:51:07 PM Cathelene Robinson, Clerk
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Page 1: IN THE SUPERIOR COURT OF FULTON COUNTY STATE OF GEORGIApftlegal.com/wp-content/uploads/...Defendant-MARTAs... · IN THE SUPERIOR COURT OF FULTON COUNTY STATE OF ... MARTA Act is attached

IN THE SUPERIOR COURT OF FULTON COUNTY STATE OF GEORGIA

Defendants.

Civil Action FileNo. 2014CV255137

BELLSOUTH TELECOMMUNICATJONS, LLC d/b/a AT&T GEORGIA,

Plaintiff,

v.

METROPOLITAN A TLANT A RAND TRANSIT AUTHORITY and CITY OF ATLANTA,.

FINAL ORDER GRANTING DEFENDANT METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY'S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S

MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO COUNT I

Defendant Bellsouth Telecommunications, LLC d/b/a AT&T Georgia (AT&T) filed this action

for reimbursement from Defendants City of Atlanta (the "City") and Metropolitan Rapid Transit

Authority (MARTA) seeking to recover several million dollars in costs it incurred relocating certain of its

utilities to facilitate construction of the Atlanta Streetcar. This project is a modern streetcar system

operating a segment, approximately 2.7 miles long, between downtown Atlanta, the King Historic District

and the Old Fourth Ward neighborhood (the "Atlanta Streetcar" or "Atlanta Streetcar Project" or the

"Project"). 1 Previously, this Court granted the City's Motion for Judgment on the Pleadings, finding that

it was "authorized to order [AT&T] to relocate its existing facilities from the public rights of way without

compensation to accommodate the construction of the Atlanta Streetcar." (Order, entered October 14,

2015). Accordingly, AT&T Georgia's current claims for reimbursement concern only MARTA.

The above matter is now before the Court on (a) Defendant Metropolitan Atlanta Rapid Transit

Authority's Motion for Summary Judgment as to all claims and (b) Plaintiff's Motion for Partial Summary

Judgment as to Count l. The parties appeared before the Court on November 29, 2016, for a hearing on

I Mendoza Aff., '11 5-6.

1

Fulton County Superior Court ***EFILED***QW

Date: 2/24/2017 3:51:07 PMCathelene Robinson, Clerk

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these motions. Having reviewed the record and considered the arguments and submissions of counsel, the

Court finds as follows.

FINDINGS OF FACT

MARTA's Early Background

MARTA was created in 1965 with the enactment of the Metropolitan Atlanta Rapid Transit

Authority Act (the "MARTA Act")? It established MARTA's purpose to plan, design, construct, and

maintain a rapid transit system within the metropolitan Atlanta area.' It empowered MARTA not only to

establish its own rapid transit system but to work with other governmental bodies-federal, state, and

local - to coordinate "its rapid transit system with other transportation in the metropolitan area .... ""

In 1971, MARTA and the City as well as Fulton, DeKalb, Clayton, and Gwinnett counties

entered into a Rapid Transit Contract and Assistance Agreement (the "RTCAA").s The RTCAA

incorporated some "preliminary plans and recommendations ... for the acquisition and development of

MARTA's rapid transit system" which the RTCAA describes as the Engineering Report. Since 1971 the

Engineering Report has been periodically amended to reflect MART A's growth and change.

In 1975, MARTA and Southern Bell Telephone and Telegraph Company (the corporate

predecessor of AT&T Georgia) entered into a Uti I icy Cooperative Agreement (the "UCA ,,).6 As reflected

ill the prefatory language of the agreement, both parties recognized that, from time to time, MARTA's

efforts to construct and expand its system would require utility relocations. The UCA set forth a detailed

framework as to how the parties would approach such future relocations. It contemplates that once

MARTA identified a relocation project, the parties would discuss design details. The parties would then

negotiate a "Detailed Agreement" which is defined as a "supplemental agreement" that would include

2 MARTA Act (1965 Ga. Laws, p. 2243). The MART A Act is not codified. The most recent version of the MARTA Act is attached as Exhibit D to Plaintiff's Memo in Support of its MPSJ, filed September 30, 2016 or as Exhibit A to Defendant Metropolitan Atlanta Rapid Transit Authority's Brief in Support of Motion for Summary Judgment filed on September 30, 2016. 3 MARTA Act, § 7. " MARTA Act, § 8 (f). S A true and correct copy of the RTCAA may be found at Plaintiff's Partial MSJ, Ex. C; see Krisack Aff.1I6. For a description of where Engineering Report can be located within that exhibit, see Krisak Aff., fn 2. 6 A true and correct copy of the UCA is found in Plaintiff's Response to Defendant's MSJ, filed November 4,2016, Ex. 8.

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"technical specifications" and scheduling for the relocation work.' This Detailed Agreement, together

with the UCA, would govern any specific relocation project."

Development of tile Streetcar Project

In 2008 the RTCAA was amended for the thirteenth time so that the Engineering Report would

include "an integrated Atlanta circulation network with initial segments in or near the Peachtree Street

corridor from downtown to Midtown and segments serving the Martin Luther King, Jr. Historic District

and Centennial Olympic park .... (the "Thirteenth Amendment"). The latter part of this circulation

network described in the Thirteenth Amendment is consistent with the as-built Atlanta Streetcar Project."

However, sometime after the Thirteenth Amendment was adopted, the City -- not MARTA -- undertook

to construct the Project, obtaining a large federal grant from the United States Department of

Transportation ("DOT") as the primary source of funding. Other funding came from the City as well as

the Downtown Atlanta Community Improvement District ("DACID") acting through the Atlanta

Downtown Improvement District, 1nc. ("ADID") which represented the interests of the Atlanta business

community with regard to the Atlanta Streetcar. 10

MARTA assisted the City in preparing the grant application that was submitted to the DOT."

Once the grant was received, a formal grant agreement was reached. It named the DOT as the grantor, the

Federal Transit Administration, as the grant administrator, the City as the grant recipient, and MARTA as

the City's "Limited Agent I Designee" ("Paper Grant Agreement"). 12 In its capacity as the Limited Agent

7 UCA ~ 4 (i). 8 UCA ~ 22 provides that utility relocations,

shall be governed by [the UCA) and by DetaiJed Agreements. Each Detailed Agreement shall govern the specific details of the work of [relocation) for a specific Section of the System or portion thereof and shall be drafted in accordance with this Agreement. The parties shall enter into such Detailed Agreement upon completion of Detailed Design.

9 Plaintiff's Partial MSJ, Ex. B; Grether Dep. at p. 106); Ex. E (MARTA Resp. and Obj. To PI's First Req. for Admission, No. 17). 10 Mendoza Aff., ~~ 34-35; Construction £GA, Art. 5 (see fn, 14, infra). II Krisak Depo., pp. 25-28; Plaintiff's Memo in Support of its Partial MSJ, filed September 30, 2016; Ex. H. 12 Mendoza Aff, ~ II. A true and correct copy of the Paper Grant Agreement is located at Mendoza Aff., Ex. 1.

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I Designee, MARTA was responsible for administering the grant on behalf of the City, a task it received

based upon its prior experience working with these types of transportation grants. 13

Pursuant to other contractual agreements, MARTA assisted the City in developing the Atlanta

Streetcar Project. One such contract was an intergovernmental agreement between the City, MARTA,

DACfD and ADID (the "Construction IGA,,).14 Under this Construction IGA, MARTA was to provide

technical assistance regarding the planning and development for the Project, but the agreement clearly

states that the City would own the Atlanta Streetcar" and would exercise broad control over the Project.

The extent of this control is reflected in § 3.02 of the Construction IGA.

The City shall direct the budget and scope of the Project, the tasks to be performed by MARTA and its consultants, and the schedule for completion of the Project. No increase in the total project budget for the existing project scope or reduction in the current scope shall be made without the approval of the City and the concurrence of DACJDI ADTD. The City reserves the right to increase the scope of the project (i.e., additional video cameras, laying additional fiber, or other improvements) if the City is willing to fund the associated cost of the scope increase.l''

The Construction IGA was amended several times, but the City's ownership and control over the Project

remained the same. 17

In helping develop the Atlanta Streetcar, MARTA was interested in future interoperability so that

the project would not be restricted to streetcar use but could also serve future light rail transportation

projects that various entities were contemplating. IS At the time the Atlanta Streetcar was being planned,

MARTA, Cobb County, and a separate Beltline project were exploring light rail transportation projects

into the downtown Atlanta area." Consequently, MARTA sought to "ensure that there weren't any major

design decisions on the streetcar alignment that would prevent a normal light rail vehicle to operate on the

13 Gesick Aff., ~~ IO-LJ; Krisak Depo., p. 121. 1·1 A true and correct copy of the Construction IGA is identified and located at Menodoza Aff., ~ 12; Ex. 2. IS Construction IGA, § 3.01. 16 This broad control is also reflected in Construction UGA, § 7.04 which provides that, H[n]o party shall have the right to make any decision concerning the Project not specifically addressed in this Agreement without the express approval of the City and DAClD/ADID." 17 Mendoza Aff., ~~ 61,69,77,80; Ex. 21-24. IS Krisak Depo., pp. 123- 129. 19 Krisak Depo, p. 127.

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alignment ... [W]e wanted to be sure that [with any future light rail project] the vehicle could physically

fit on the track, use the power system, make the turns and corners and be able to negotiate the grades.,,2o

For this same reason, MARTA played a significant role in the procurement of the actual streetcars so that

those vehicles "could be used on a subsequently constructed light rail.,,21

The Relocation of Utilities to Accommodate the Streetcar Project

While MARTA and its consultants provided technical support to assist the City in identifying

utility conflicts," the City was responsible for the final decisions concerning resolution of utility conflicts

and utility relocations." In a letter dated July 27, 20J 1, the City officially notified AT&T Georgia of its

request to remove or relocate its utilities from the City's right of way to accommodate the Atlanta

Streetcar Project.i" The letter expressly stated that the relocation would be performed at AT&T Georgia's

expense. This commenced a round of communications where the design details and scheduling of the

utility relocations were being discussed. Throughout, AT&T Georgia reiterated its position that it would

require reimbursement for its relocations costs. 25 Subsequently, the City, acting on behalf of the "Atlanta

Streetcar Project Team," advised AT&T Georgia that "the City" had approved the relocations details and

directed AT&T Georgia to proceed with the relocation work.26 Later, on January 12, 20 12, AT&T

Georgia sent a letter to the City and MARTA acknowledging receipt of the City's notice to proceed with

the relocation work but preserving its claim for reimbursement against the City and / or MARTA.

While insisting upon entitlement to payment for the utility relocation costs related to the streetcar project, AT&T Georgia does not desire to delay relocation of conflicting utilities directed in furtherance of the streetcar project. Therefore, in order to facilitate the project ... , AT&T Georgia will proceed with the utility relocation while reserving its rights and without any prejudice to any rights, claims, and defenses, deferring determination and resolution of payment issues related to the streetcar project. 27

20 Krisak Depo., pp.123-124. 21 Krisak Depo., p. 125. 12 Krisak Dcpo., pp. 61 - 62. 93 - 96: Grether Dcpo .. p. ISO. 23 Construction IGA, § 3.12; Mendoza Aff., ~~ 36; 42-44. 2·1 Mendoza Aff. ~ 47; Ex. 9. 25 Mendoza Aff., ~~ 46; 49; 50 ; Ex. 8; 1 J -12. 26 Mendoza Aff., ~ 51; Ex. 12. 27 Plaintiff's Partial MSJ, Ex. T.

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Subsequently, the City sent AT&T Georgia similar notices to proceed with utility relocations via Letters

dated May 2,2012, May 10, 2012 and June 25, 2012.28 On March 25,2014, AT&T Georgia wrote the

City and MARTA, enclosing a final bill for approximately $5.8 million for the relocation work."

MARTA's Role ill the Operation of the Streetcar Project

On or around November 13, 2014, as the construction phase of the project was nearing its

completion, the City, MARTA, DAClD, and ADID entered into the Intergovernmental Agreement for the

Operation and Maintenance of the Atlanta Streetcar Project (the "O&M IGA,,).3o Section 3.4 of the O&M

I GA reflects that the City owns all the assets and infrastructure of the Atlanta Streetcar Project and

provides permission for the MARTA to manage the Project. Pursuant to Section 2.4.1, MARTA is

responsible for "the day to day management" of the Project but the agreement reflects that these

management responsibilities will transition to the City once it "has demonstrated the technical

competence and administrative expertise necessary to assume management of all operational and

maintenance activities ... "

LEGAL CONCLUSIONS

AT&T Georgia initiated this action on December 19, 2014 and filed a Second Amended

Complaint on July 27, 2015 which asserts five counts, all relating to its claim for reimbursement of its

utility relocation expenses.

SUMMARY JUDGMENT IN FAVOR OF MARTA IS WARRANTED ON COUNT 1- AT&T GEORGIA'S CLAIM FOR REIMBURSEMENT UNDER THE MARTA ACT

Both MARTA and AT&T Georgia move for summary judgment on Count I of the Second

Amended Complaint, involving MARTA's obligation provide reimbursement for the relocation of

utilities under Section 13(a) of the MARTA Act. 1t provides, in pertinent part:

28 Mendoza Aff., ~~ 56-57; 59; Ex. 17; Ex. 18; Ex. 20. 29 Plaintiff's Partial MSJ, Ex. U. 30 Mendoza Affidavit, ~ 93; Krisak Aff., ~ 16. A true and correct copy of the O&M IGA is identified and found at Mendoza Aff., ~ 93, Ex. 26.

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The Authority shall have the power to require any public utility ... owning or operating any installations, structures, equipment, apparatus, appliances or facilities in, upon, under, over, across or along any ways on which the Authority has the right to own, construct, operate, or maintain its rapid transit system, to remove or relocate such installation, structures, equipment, apparatus, appliances or facilities from their location . . . . The Authority shall reimburse the public utility ... for the cost of the relocations .... (emphasis supplied).

The Court finds this claim may be resolved by looking at the terms and definitions found within the

MARTA Act. Key to this particular dispute is the interpretation of the phrase "rapid transit system" as

MARTA is only obligated to provide reimbursement for utility relocations that benefit "its rapid transit

system."

Under the MART A Act, a "rapid transit system" is defined as a particular type of "transportation

system." MARTA Act § 2 (i). The MARTA Act defines a "transportation system" as, "[alll property,

real or personal, useful for the public transportation of passengers for hire including but not limited to

[lengthy list of places, items, and infrastructure such as terminals, garages, bridges, trains, street cars,

buses, poles, wire, etc.] rights and Licenses therefore ... (emphasis supplied)." MARTA Act § 2 (g).

As so defined, a transportation system (as well as a rapid transit system which incorporates this

definition) is formed through a collection of rights in property, both real and personal, useful for the

transportation of passengers. While MARTA played an active role in the development of the Atlanta

Streetcar and now plays an active role in its daily operations, MARTA has no rights in the "property, real

or personal" that comprise the Atlanta Streetcar Project. The Paper Grant Agreement, the Construction

IGA, and the O&M IGA all unequivocally confirm the City's ownership of the Atlanta Streetcar Project.

Further, unrefuted affidavit testimony reflects that MART A owns no rights or interests in the real

property, infrastructure, or assets required to construct and lor operate the Atlanta Streetcar Project.31

In opposing MARTA's motion, AT&T Georgia makes a number of arguments as to why the

Atlanta Streetcar Project could be considered part of MARTA's rapid transit system. It urges the Court to

consider MARTA's degree of participation in the development and operation of the Atlanta Streetcar

31 Krisak Aff., ~~ 32,34.

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Project as creating a disputed question about whether the Project was made part of MARTA's rapid

transit system. 11 also urges the Court to focus on MARTA's concerns about interoperability that would

allow the Atlanta Streetcar Project to possibly work with light rail enhancements that MARTA or some

other entity might pursue in the future as creating a similar question of fact. These arguments ignore that

"rapid transit system" is a defined term under the MARTA Act. None of the "disputed facts" proffered

by AT&T Georgia are rooted in or correlated with this statutory definition. AT&T Georgia only

addresses this definition in a cursory footnote with no attempt to either analyze the full definition or apply

it to the facts of this case. (Plaintiffs Memorandum in Opposition to MARTA's MSJ, filed November 4,

2016, fn. 17). The Court rejects AT&T Georgia's efforts to claim reimbursement under one part of the

MARTA Act that addresses improvements to MARTA's "rapid transit system" while failing to engage

with the definition of a "rapid transit system" found in that very same legislation.

Moreover, AT&T Georgia's arguments ignore another pertinent portion of the MARTA Act. As

noted above, the Section 8 (f) of the MART A Act expressly empowers MARTA to "participate" with

governing bodies, including municipalities, "in the execution of ... projects designed for the coordination

of its rapid transit system with other transportation" in the Atlanta area. Thus, MARTA is statutorily

permitted to work on other transportation projects that are not part of "its rapid transit system" with the

goal that these other projects may better coordinate with MARTA's rapid transit system. Thus, the Court

rejects AT&T Georgia's assertion that MARTA's participation in the Atlanta Streetcar Project creates

some material disputed issue as to whether MARTA incorporated the Project into its own rapid transit

system.

In light of the foregoing, the Court finds MARTA has no obligation to reimburse AT&T Georgia

for the relocations necessitated by the construction of the Atlanta Streetcar Project under Section 13 (a) of

the MARTA Act.

While the grant of summary judgment to MARTA on Count I of the Second Amended Complaint

would necessarily result in the denial of AT&T Georgia's motion for summary judgment on that count,

the Court offers an alternative basis as to why AT&T Georgia's cross motion should be denied. AT&T

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Georgia argues that the 131h Amendment to the RTCAA's Engineering Report which mentioned the

"integrated Atlanta circulation network" incorporated the Streetcar Project into MARTA's rapid transit

system. (Plaintiffs Memorandum in Support of its Partial MSJ, filed September 30,2016, p. 14) The

Court disagrees, finding that the Engineering Report and its various amendments do not define MARTA's

rapid transit system.32

The 1971 RTCAA describes the Engineering Report as containing "preliminary plans and

recommendations . . . for the acq u isition and construction" of MARTA's rapid transit system. The

Thirteenth Amendment, at issue here, adopted in 2008 again provides that the Engineering Report

"embodies preliminary plans and recommendations for the acquisition and construction" for MARTA's

rapid transit system. MARTA's former Chief Operating Officer described the RTCAA and Engineering

Report as serving as a "placeholder for projects" MART A had under consideration" She noted that the

document, "in no way commits the agency authority to projects ... it doesn't give you funding. It doesn't

give you priority. It doesn't necessarily get you to the top of the line, but it at least puts you on the

plate.,,3~ For a variety of reasons, the Court agrees with MARTA's position that the Engineering Report

is a merely a planning document that MARTA uses to coordinate its expansion efforts and not a list of

additions to its rapid transit system.

First, the document simply outlines projects where MARTA is to direct its focus. It only

generally identities the areas and plans for expansion. This lack of specificity demonstrates the

document's status as a planning tool. 35 Moreover, the Engineering Report does not provide MARTA

with the ability to acquire, build or construct within any identified corridorr" Indeed, MARTA's capital

improvement decisions must be properly identified and budgeted pursuant to Section 17 (c) of the

MARTA Act which requires that the MARTA Board to:

33 Scott Depo., p. 60 . .1·1 Scott Depo, p. 3S Krisak Aff., ~~ 10. II. 36 Krisak Aff., ~ 9.

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propose and adopt an annual capital improvements budget. The proposed capital improvements budget shall show all capital improvement projects in the process of completion, those to be undertaken during the ensuing fiscal year and those anticipated to be undertaken during the ensuing ten years. The proposed budget shall also show the proposed method of financing each proposed project and the effect thereof on the debt structure of the Authority. After a public hearing the Board shall review its proposed budget and on or before the last day of the fiscal year it shall adopt an annual capital improvements budget for the ensuing fiscal year. No contract for the purchase or construction of any capital improvement project shall be authorized, except to meet a public emergency certified as such by the Board, unless it is included in the annual capital improvements budget ....

The Atlanta Streetcar Project was never so identified or budgeted." Finally, MARTA has evidenced that

the Engineering Report includes projects that have never been or have yet to be pursued such that they are

not part of its rapid transit system." It has also evidenced a number of projects and improvements that

have become part of its rapid transit system although they were never specifically mentioned in the

Engineering Report, as amended." Thus, the Court finds that AT&T Georgia'S argument imbues the

Engineering Report with a degree of significance in defining MARTA's rapid transit system that it simply

does not merit. Accordingly, in addition to the reasons outlined above, AT&T Georgia's motion for

summary judgment on Count I is denied.

SUMMARY JUDGMENT IN FAVOR OF MARTA IS WARRANTED ON COUNT n . AT&T GEORGIA'S CLAIM FOR REIMBURSEMENT UNDER THE UTILITY

COOPERATIVE AGREEMENT

AT&T Georgia alternatively claims that MARTA is liable for utility relocations under the UCA.

AS outlined above, the UCA contemplates that once MARTA has identified projects that will require

relocation, the parties will discuss design issues and then enter into a "Detailed Agreement" which is

defined as a "supplemental agreement" that will govern the specifics of that relocation." Paragraph 25 (f)

37 Krisak Aff., ~ 31. 38 Krisak Aff., ~~ 12, 13. 39 Krisak Aff., ~ 14 ( parts of MARTA's rapid transit system that are not mentioned in the RTCAA or Engineering Report, as amended, include the Avondale Yard, the South Line Rail Facility, the Armour Yard Rail Facility, the Memorial Drive Arterial Bus Rapid Transit Improvements, and the Brady Avenue Bus Facility). ·10 UCA, ~~ 22; 4 (i).

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of the DCA provides: "[tjhe issuance ofa Work Order shall obligate [MARTA] to reimburse [AT&T GA]

for each [relocation] in accordance with the terms of this fUCA] and the Detailed Agreement." Here, the

parties never reached a Detailed Agreement and a Work Order was never issued.

In its Second Amended Complaint, AT&T Georgia asserts that MARTA breached the UCA by

"ignoring the processes established thereby and has refused to comply with the relocation reimbursement

requirement." (Second Amended Complaint, ~ 45) However, the Court finds that the UCA, standing by

itself, is insufficient to impose any reimbursement obligation upon MARTA. The UCA simply

establishes a framework for approaching relocation efforts. It contemplates that a "supplemental

agreement" will be negotiated when a particular relocation project is announced. Accordingly, the Court

finds that the UCA alone is simply an agreement to agree at some point in the future. Such agreements

are unenforceable.

If there was in fact any essential part of the contract upon which the minds of the parties had not met, or upon which there was not an agreement, even though the negotiations evidenced a complete willingness, or even an announced determination, to agree in the future upon such issues as might subsequently arise, it must follow tbat a valid and binding contract was not made as of the earlier date. Unless all the terms and conditions are agreed on, and nothing is left to further negotiations, a contract to enter into a contract in the future is of no effect. An agreement to reach an agreement is a contradiction in terms and imposes no obligation on the parties thereto.

(ns. Indus. Consultants. Inc. v. Essex illv .. Inc., 249 Ga. App. 837, 842-43 (200 I) citing Jackson v.

Easters, 190 Ga. App. 713,714-715 (1989). Accordingly, because MARTA and AT&T Georgia never

reached a Detailed Agreement about relocation work involving the Atlanta Streetcar, the UCA alone is

unenforceable and imposes no reimbursement obi igation upon MARTA fOJ such relocation work.

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SUMMARY JUDGMENT IN FAVOR OF MARTA IS WARRANTED ON COUNT m - AT &T'S CONSTITUTIONAL AND COMMON LAW CLAIMS FOR REIMBURSEMENT

AND COUNT IV - DECLARATORY JUDGMENT CLAIMS

As concerns Count [IT and Count TV, respectively, AT&T Georgia lodged eight different claims,

many of which appear to be directed solely at the City. In some of the different claims, AT&T Georgia

seeks to hold MARTA liable as ajoint venturer in the Atlanta Streetcar Project. AT&T Georgia offered

no argument or authority in its brief on any of the eight claims outlined in Count ill or Count TV and

simply incorporated the briefing it prepared in opposition to the City's earlier Motion for Judgment on the

Pleadings. (Plaintiffs Memo in Opposition to MARTA's MSJ, filed November 4, 2016, pp. 34-35)

Neither party addressed Count III or Count IV in any meaningful way during oral argument.

The Court specifically rejects AT &T Georgia's assertion that MARTA is a liable to reimburse it

for relocation costs based upon its alleged status as ajoint venturer in the Atlanta Streetcar Project.

A joint venture arises where two or more parties combine their property or labor, or both, in a joint undertaking for profit, with rights of mutual control. There must be not only a joint interest in the objects and purposes of the undertaking, but also a right, express or implied of each member of the joint venture to direct and control the conduct of the other.

Thomas v. Tenet Healthsystem GR, Inc., A16A216Q, 2017 WL238841, at *3 (Ga. Ct. App. Jan.

19,2017) The Court finds as a matter of law that no joint venture existed between MARTA and the City

as AT&T Georgia has failed to demonstrate a disputed question of fact regarding the essential elements of

a joint venture, outl ined in Thomas. AT&T Georgia has produced no evidence of an agreement between

the City and MARTA to share profits (or losses) from the operation of the Atlanta Streetcar. Moreover,

pursuant to the unambiguous terms ofthe Construction IGA and the O&M IGA, the City had broad

power to control the Atlanta Streetcar Project that MARTA did not share. MARTA's current Chief

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Operating Officer reiterated the subservient role that MART A played on the Project in relation to the City

and the DAClD/ADlD, testifying that MARTA "could not make a move without them.?"

To the extent that Counts III and IV direct claims towards MARTA based upon joint venture

liability or any other theory, the Court grants MARTA's motion for summary judgment. 42

SUMMARY JUDGMENT IN FAVOR OF MARTA IS WARRANTED ON COUNT V THIRD PARTY BENEFICIARY CLAIM

In Count V, AT&T Georgia claims it is a third party beneficiary to § 3.12 of the Construction

JGA that provides:

The City will use reasonable efforts to coordinate the relocation of utilities in a manner that will facilitate the construction and implementation of the Project and will seek to have all utility providers cooperate to the fullest extent of their agreements with the City. The costs necessary for the relocation of utilities in a manner that will facilitate the construction and implementation of the Project may be paid from the funds awarded for the Project. (emphasis suppl ied)

Pursuant to O.C.G.A. § 9-2-20 (b), "[t]he beneficiary of a contract made between other parties for his

benefit may maintain an action against the promisor on the contract." However, "in order to confer third-

party beneficiary status, the contract must show on its face that the parties to the contract clearly intended

to confer such a benefit." COP Event Servs .. Inc. v. Atcheson, 289 Ga. App. 183, 186 (2008). "The issue

becomes one of whether intention is manifest in the contract [that the third party was the intended

beneficiary]. Unless such an intention is shown on the face of the contract, defendant is under no duty

and consequently plaintiff acquires no right as the third party beneficiary." Plantation Pipeline Co. v. 3-D

41 KrisakDepo., p. 280. 42 With regard to Count IV, the Court further notes that "declaratory relief is proper only where the party seeking such relieffaces some uncertainty or insecurity as to rights, status, or legal relations, upon which its future conduct depends." SJN Properties. LLC v. Fulton Cry. Bd. of Assessors, 296 Ga. 793,802-03 (2015). As noted above, AT&T Georgia completed the relocation work and sent a final bill for reimbursement in March of20 14, several months before the present action was filed. See 111.26, supra. AT&T Georgia has not outlined any claim of future uncertainty regarding its legal rights and relations with MARTA. Rather, it is seeking a declaration regarding the viability of its legal claims that MARTA's has improperly failed to reimburse it, claims that had already accrued at the time this action was tiled.

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Excavators. Ins., 160 Ga. App. 756, 757 (1981 ). MARTA encourages the COUIt to look at the "face of

the entire contract" to determine intent of the executing parties. (MARTA Brief in Support ofMSJ, p. 36)

However, Georgia law provides that, "[n]otwithstanding the ultimate purpose of the agreement, individual

contract provisions may be intended to benefit a stranger to the contract, thus creating a third-party

beneficiary." Starrett v. Commercial Bank of Ga., 226 Ga. App. 598, 601 (1) (1997).

The Court finds that while Section 3.12 of the Construction IGA does contemplate that payments

may be owed to utility providers for relocations, the contract provision does not clearly reflect the intent

that utility providers should be reimbursed for utility relocations. Rather, the section simply delineates

that such reimbursements "may be paid from the funds awarded for the Project (emphasis supplied)."

In arguing the intent of this provision, AT&T Georgia argues that the word "may" as used in the

Construction lGA should be interpreted to mean "shall" under O.C.G .A. § 1-3-3 (10). This statute

provides that when construing sections of the Georgia code and other Georgia laws, the word "'[m]ay'

ordinarily denotes permission and not command. However, where the word as used concerns the public

interest or affects the rights of third persons, it shall be construed to mean 'must' or 'shall." (Plaintiffs

Memo in Opposition to MARTA's MSJ, filed November 4, 2016, p.35, fn. 24) Yet, AT&T Georgia

offers no authority holding that this provision, which governs the interpretation of statutes, also governs

the interpretation of contracts. To the contrary, O.C.G.A. § 13-3-2 (2) which outlines the rules for

interpreting contracts, directs that "[ w]ords generally bear their usual and common signification." As

addressed above, the Georgia legislature has determined that the word "[m]ay ordinarily denotes

permission and not command." O.C.G.A. § 1-3-3 (IO),

Thus, in reviewing Construction IGA § 3.12, the Court finds that this provision reflects executing

parties' agreement that it was permissible to use "funds awarded for the Project" to compensate third

party utility providers, such as AT&T Georgia, for utility relocations. It does not reflect the intent to

mandate such reimbursements. Accordingly, the Court finds that AT&T Georgia is not a third party

beneficiary to this provision of the Construction lOA.

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In light of the foregoing, it is hereby ordered and adjudged that Defendant Metropolitan

Atlanta Rapid Transit Authority's Motion/or Summary Judgment as to all claims be GRANTED and

that Plaintiff's Motion for Partial Summary Judgment as to Count I be DENIED.

-Ionorable Doris L. Downs _ Judge, Superior Court of Fulton County

Atlanta Georgia

Filed and Served Electronically via OdysseyeFileGA

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