Outplayed:

Conclusions 11

• CL1 Page 26
  From the beginning, the City was impatient and overmatched in its negotiation posture with the 49ers to the long-term detriment of the City/Stadium Authority. The Civil Grand Jury heard repeatedly that during the negotiation process, the City’s primary concern was protecting the City’s General Fund and not ending up in the same situation as other cities that had built stadiums for major sports teams and lost public money. City staff members worried about the political dangers of bringing such a big entity to a small city, but they also believed the long-term revenue projections were optimistic and that they would be able to insulate the City. However, the mostly eager City Council gave the upper hand to the 49ers from the beginning. At a December 15, 2009, City Council meeting, the City Council voted to put its own ballot measure on hold to allow a “citizen-sponsored” Stadium initiative written and funded by the 49ers to move forward. A qualifying initiative requiring voter signatures guaranteed that the Stadium measure would be on the June 8, 2010, ballot and less likely to be challenged. If the measure had been put on the ballot solely by a City Council vote, the measure could have been subject to potential legal challenges and delayed (Mintz, 2009). In addition to writing the initiative and funding the collection of signatures by “Santa Clarans for Economic Progress,” the 49ers spent $4.5 million to make sure it passed (Mintz, August 2, 2010). The Civil Grand Jury learned that some things were non-negotiables for the 49ers from the start. Specifically (a) they would not change their name from the “San Francisco 49ers” to the “Santa Clara 49ers,” (b) the lucrative luxury suites would be owned by the 49ers and all revenue from the suites for both NFL and non-NFL events would belong to the 49ers, (c) a 49er company would manage the Stadium year-round, and (d) all advertising media revenue would belong to the 49ers, except the Naming Rights revenue. After Measure J passed, City staff began negotiating the key agreements that would define the relationships between the Stadium Authority, the 49ers, StadCo, and ManCo for the next 40 years. These key agreements were the Ground Lease; the Stadium Lease, which included the terms for the SBLs; the Naming Rights Agreement; and the Management Agreement. City staff had recognized during the term sheet negotiations that the 49ers did not want the Stadium on their balance sheet. To that end, the Stadium was leased to the 49ers. This allowed the 49ers to reduce taxes by keeping the Stadium asset off their balance sheet and by keeping large income streams, such as from the sale of SBLs and Stadium Naming Rights, off their income statement. Using the 49ers as the management company concerned City staff at the time, who recognized it was a conflict of interest for the 49ers to simultaneously be a tenant and a property manager; but the City had used the now defunct local Chamber of Commerce for decades as the manager of the Convention Center, which was also considered a conflict. That arrangement made management of the Stadium by the 49ers more palatable to the City Council. In retrospect, overlooking this conflict of interest was a major negotiating mistake. Overall, City staff would spend the years 2007-2013 negotiating complex terms, contracts, and amendments to those contracts with the 49ers. During that time, as many as three days per week of City staff time were devoted exclusively to these negotiations. The Civil Grand Jury learned that after so many years of negotiating, the City Council was frustrated and impatient to finalize the Stadium’s legal agreements, ultimately allowing themselves to be outmaneuvered by the 49ers on some key terms discussed below. Property Tax Reassessment While Property Tax does not affect Stadium Authority revenues or the General Fund directly, Measure J did state that in addition to providing funding for libraries, senior activities, and youth sports, the Stadium would “also provide substantial new revenue for the Santa Clara Unified School District” (SCUSD) (Measure J at Section 2.A.4, 2010). Nevertheless, one of the best examples of the sophistication of the 49ers contract bargaining position is regarding property taxes, or possessory interest taxes, for the Stadium. Property tax assessment for the Stadium is explained as follows: California’s property tax system assesses all property at its full value. (Cal. Const., art. XIII, g 1; Rev. & Tax. Code, $ 401.) Full value is the cash price that the property would bring on the open market, assuming neither buyer nor seller could take advantage of the exigencies of the other, i.e., fair market value. Newly constructed property is assessed at its fair market value as of the date of completion and upon a change in ownership, with increases otherwise limited to two percent per year. While publicly owned property is generally either immune or exempt from taxation, private possessory rights in public property are subject to taxation… Possessory interests in public property encompass a wide array of rights, including concessions, leases, airport permits, air rights, and mining rights. Taxation of possessory interests places rights holders in public property on equal competitive footing with rights holders in private, taxable property, who pay rent or contract prices informed by the owner’s property tax. And, in doing so, taxation of possessory interests fulfills the constitutional mandate that all owners of non-exempt property pay their fair share of the property taxes funding provision of local, public services. (County of Santa Clara et al. vs. Santa Clara County Assessment Appeals Board No. 1, Superior Court of California, County of Santa Clara, Case No. 19-CV-347946) The 49ers and the Stadium Authority share year-round Stadium expenses. There is an exception per Article 4.3.1 of the Stadium Lease, in that some of the most valuable sections of the Stadium are designated as exclusive “areas” and are reserved for year-round use by the 49ers. These include the 49ers museum, all commercial areas (restaurants and team store), an owner’s club and team suite, the locker rooms and training spaces, an auditorium, an audio/visual hub, and, most valuable of all, the suite tower and all 174 suites. The contract also gives the 49ers year- round rights to lease the commercial areas of the Stadium for retail, restaurant, or other purposes. Finally, the 49ers can use the Stadium year-round for marketing, promotional events, tours, and meetings as stated in the Stadium Lease: 4.3.1 Tenant’s Exclusive Facilities. (a) For the entirety of each Lease Year during the Lease Term, including during each the Stadium Authority Season, Tenant shall have the right to use and operate Tenant’s Exclusive Facilities, including (i) the Stadium Commercial Areas, including the Team Store and the Hall of Fame, depicted on the Stadium Plans, the revenues from which shall constitute Tenant Revenue as provided in ARTICLE 13 below, (ii) Tenant’s Administrative Space depicted on the Stadium Plans, (iii) locker rooms and related training space, (iv) the Stadium Audio Video Facilities, (v) the Owners’ Club, including the Team Suite, and (vi) the Suite Tower and all of the Suites in the Stadium, but excluding any Premium the Stadium Areas and Press Areas located in the Suite Tower. Tenant will have the exclusive use of Tenant’s Exclusive Facilities, the Tenant’s Parking Spaces, and the Intellectual Property Rights attendant thereto, at all times during the Lease Term, subject only to the provisions of the Stadium Lease Documents Because of the 49ers’ year-round ownership of these “exclusive areas” and the resulting revenues from non-NFL events, the Office of the Assessor, County of Santa Clara (County Assessor’s Office) assigned the full value of the Stadium to StadCo’s possessory interest. The 49ers appealed its 12-month property tax assessment to a County Assessment Appeals Board (AAB), the local forum for property owners to challenge property tax assessments. The 49ers contended that they officially operated the Stadium for only six months because the Stadium Lease established two six-month seasons, one for StadCo and one for the Stadium Authority (Stadium Lease at Section 1.2.1, 2012). The AAB agreed with StadCo’s argument and reduced the original property tax assessment by half. The County Assessor filed a lawsuit to reverse this decision stating that StadCo was the principal at the Stadium (and the Stadium Authority was subordinate) with its year-round access and control to key areas and revenue streams, notably the luxury suites, restaurants, and other commercial areas. However, on January 23, 2024, the Superior Court of California, County of Santa Clara (Superior Court) denied this challenge, allowing the AAB property tax reassessment to stand resulting in a $180 million cut in property taxes over 30 years (County of Santa Clara et al. vs. Santa Clara County Assessment Appeals Board No. 1, Superior Court of California, County of Santa Clara, Case No. 19-CV-347946). The revenue shortfall from the AAB decision is large. The impact is decreased funding for multiple entities: • SCUSD: 40% (-$2.4 million per year). • West Valley College: 11%. • City of Santa Clara: 10%. • County of Santa Clara: 18% • Santa Clara County Office of Education: 4%. • A fund created under state law for augmenting local education revenue: 15%. • A local water district: 2%. The judgment also caused the same entities to have to issue a one-time refund of $36 million to the 49ers, including $13 million from SCUSD. In hindsight, this appears to be another well-planned long-term play by the 49ers as the Stadium Lease specifically gave them authority to challenge a property tax assessment (Stadium Lease at Section 9.1.2, 2013). The Civil Grand Jury learned that the 49ers designed the contract so a year- long property tax bill could eventually be contested. While this may have been a winning tax minimization strategy and a well-calculated and sophisticated 49ers negotiating position, local schools and the greater community are the losers. Measure J – New Jobs
• CL2 Page 66
  A Multi-Use Community Facility at the Stadium was one of Measure J’s original promises and was memorialized in the Stadium Lease. The current designated space for the Community Room at the Stadium is not easily accessible nor is it pragmatic for most civic events. In a letter dated January 10, 2012, from 49er CEO Jed York to Santa Clara Youth Soccer League Executive Board Members, the 49ers stated that they were cognizant that “NFL game day traffic will make trips to the [Youth Soccer] park more complicated.” The letter further stated: To demonstrate our commitment to our community’s young soccer players and their families we are proposing that the 49ers underwrite several regulation-sized additional soccer fields in Santa Clara. These fields would be dedicated and maintained for the use of the Santa Clara Youth Soccer League during NFL game days...We have been part of the Santa Clara community for 22 years and we are committed to remaining a good neighbor to the soccer community. Instead of following through with the above-stated intentions, the 49ers spent years trying to gain access to the 10.8 acres of fields near the Stadium to use as parking during NFL events, including a complicated offer in 2015 where the 49ers would lease the fields year-round, with the promise of eventually underwriting the construction of new fields. The offer died at a City Council meeting packed with angry soccer parents (City of Santa Clara, 2015). Since 2017 (excluding 2020), half of the 49ers’ 44 weekend home games overlap with soccer matches at the Santa Clara Youth Soccer Park (SCYSP), which means children and their families have to get special passes to access roads and deal with rowdy fans who think they can cut through the SCYSP parking lot to get to the Stadium (Simon, 2024). In addition to failing to exhibit goodwill towards their neighbors by not following through on promises made to SCYSP, the 49ers have failed to provide a usable space as a Community Room within the Stadium. Measure J promoted the idea of the Stadium as a Community Facility and in the Stadium Lease, the 49ers agreed to provide a meeting space, as outlined in the Stadium Plans, for community groups and non-profits. The Stadium Authority could schedule Civic Events at any time but would need approval from StadCo during the NFL Season. (Stadium Lease, Amended, Section 4.7.2, 2013). The Stadium Authority has been negotiating for access to a suitable room since 2012; at one point the 49ers offered the Stadium Authority a space being used as a storage area. The peak negotiations occurred in 2017 and 2018, during which time the Stadium Authority developed a reservation process and policy in anticipation of getting a space. Rental of the room includes a minimum four-hour commitment; the associated costs include, at a minimum, security, Guest Services/Engineering, Janitorial, and Room Logistics (set up and tear down of room). If the civic group requires any of the following, the cost is extra: catering (only Stadium concessionaire), furniture rental, AV rental, and IT support (City of Santa Clara, Council Meeting, 2017). Based on all of these factors, the use of the Community Room is likely very costly and has proven to not be very pragmatic. Although there is currently a space called the “Community Room” in the Stadium, it has been used exclusively by the 49ers Foundation primarily to host the 49ers STEAM (Science, Technology, Engineering, Arts and Math) Education program. The room is currently located on the field level of the Stadium, in a service area, lacks windows, and has a maximum occupancy of 225 people. Even if the Stadium Authority had full access to that particular room, escorts are required to enter and leave the Stadium; this is an issue if a civic event is in the evening. Functions at night require additional staff including security, and some staff require a four-hour minimum for a booked event. Additionally, it is a 15-minute walk from the parking lot and there is a fee. To date, the promise of the Community Room for civic events has not come to fruition. FIFA – World Cup Soccer 2026
• CL3 Page 67
  The FIFA World Cup commitments for the City and the Stadium Authority were made without consultation with the City/Stadium Authority. The City and the Stadium will host six FIFA World Cup games in 2026. Selection as a host city/site is a prestigious recognition for the City, the Bay Area, and the Stadium as a world-class venue. Beyond the recognition, the games are expected to provide economic benefits for many City and Bay Area businesses from an influx of out-of-town visitors. The World Cup bid was negotiated and controlled by ManCo and the Bay Area Host Committee (BAHC), without any initial input from City staff or the Stadium Authority. The BAHC is a local organization that was initially created in preparation for Super Bowl 50. Recently it has restructured itself and now works to attract major sporting events to the Bay Area. The President of the 49ers, and ManCo, Al Guido, was also the President of the BAHC when he signed agreements relating to FIFA on behalf of the Stadium Authority. Many consider his multiple roles representing the Stadium’s management company and the BAHC a conflict of interest. Until recently, City/Stadium Authority leaders had no information about the obligations and costs that they had been committed to. The Civil Grand Jury learned that the City/Stadium Authority requested documents relating to their host obligations from the 49ers, BAHC, and FIFA before February 2023 and they were initially denied. Since then, City/Stadium Authority staff have negotiated access to some documents and successfully made redacted copies available via the City’s public website.. Additionally, City/Stadium Authority staff is working on an Assignment and Assumption Agreement and other agreements with ManCo and the BAHC, which will outline all of the services that will be required from the City including public safety commitments. The Civil Grand Jury learned that City officials are counting on the BAHC to raise the funds that will be needed to pay for all of the PSCs for the World Cup. Recent media reporting has stated that the City Attorney has informed the City Council that the Stadium Authority could face multimillion-dollar losses, as much as $38 million, from hosting the World Cup (Williams and Kroichick, 2024). Other large cities hosting World Cup games, such as Vancouver, Toronto, and Los Angeles, each estimate hosting costs of over $100 million. The World Cup matches are not expected to make any money for the Stadium Authority or contribute any money to the City’s General Fund, and extensive efforts to prepare the Stadium for World Cup matches will limit opportunities for other large non-NFL events in 2026. So, while many area businesses will profit from having World Cup events at the Stadium, the Stadium Authority may be financially penalized. The 49ers/ManCo are supposed to make every effort to maximize the Stadium Authority non-NFL events income, but by successfully bidding for the World Cup without consulting with the Stadium Authority officials, the 49ers/ManCo will likely drive down 2026 Stadium Authority income and Performance Rent for the City. Stadium Authority Staff As noted previously, City directors have a dual role as Stadium Authority officers. The lack of a separate Stadium Authority department structure requires staff to divide their time between City business and Stadium Authority business. The relationship between the City, Stadium Authority, and the various 49er entities is complex, but an added dimension has been the difficult partner the 49ers have proven to be. The Civil Grand Jury wants to point out that many of the problems detailed above were the work of City and Stadium Authority staff who are no longer with the organization. The City and Stadium Authority has recently brought in new leadership. The Civil Grand Jury acknowledges that the City/Stadium Authority staff were responsive to the Civil Grand Jury investigation and cooperative. While it remains unclear whether new staff can hold StadCo/ManCo accountable because that will also take the willingness of the City Council/Board, the Civil Grand Jury is encouraged by knowledgeable and professional staff. CONCLUSION Rick Eckstein, a Villanova University sociology professor who co-wrote a book about public financing of stadiums, said that sports teams are typically much more sophisticated than the cities and counties with whom they negotiate stadium deals. “The teams are always about two or three steps ahead of the municipalities in being clever,” Eckstein said. (Weider, 2019) Ten years after the Stadium opened, this report provides a critical retrospective on the promises of Measure J and the resulting contracts between the 49ers, the City, and the Stadium Authority. With the benefit of hindsight, it is clear that some important aspects of Measure J have gone well, especially the taxpayer protections for the City and its residents. For other benefits promised under Measure J, the results, as detailed in this report, are decidedly mixed. While many of Measure J's promises have been fulfilled, the voters anticipated greater benefits. City leaders were excited to entice a major sports franchise with the prospect of a new world- class stadium, and they were impatient to finalize negotiations on contractual terms and conditions for the Stadium. The City appeared to be outmatched by the expertise of the 49ers’ negotiators. City staff understood then that many of the terms in the agreements strongly favored the interests of the 49ers, and some of the staff even understood that the 49ers had sophisticated long-term goals that would significantly favor 49er interests. The resulting Stadium contracts are complicated and intricately interwoven. At the heart of the relationship between the 49ers and Stadium Authority, there is an imbalance of power. The Stadium Authority and City negotiators bear great responsibility for this imbalance. Stadium contracts ceded control and important benefits to the 49ers. Since then, while the 49ers have been difficult partners/tenants, the 49ers were emboldened by the agreements, and the Stadium Authority has historically failed to assert its remaining limited rights and controls. This report has a number of Findings that fault the Stadium Authority’s actions. Sadly, there are fewer Recommendations, as many of the Findings relate to poor Board decisions made for over a decade that cannot easily be undone. The City and the Stadium Authority were clearly outplayed by the San Francisco 49ers. FINDINGS AND RECOMMENDATIONS
• CL4 Page 30
  The City has not studied the actual economic impact of the Stadium. The 49ers have produced their own studies, which they use to tout long-term unverified benefits and frame all discussions surrounding the success of the Stadium. The text of Measure J projected that there would be significant economic benefits resulting from activities that support the Convention Center, local hotels, and restaurants, and that the Stadium would “encourage new restaurant and retail services to support daily business activity” (Measure J at Section 2.B.1, 2010). The broader long-term economic benefits from the Stadium that were cited in Measure J are either unproved or unrealized. Recent media reports issued by the 49ers purporting to show large economic benefits from the Stadium are self-serving and incomplete (Simon, 2023). In fact, the City has never done a comprehensive assessment of the City-wide local economic benefit of the Stadium, which could support or refute the claims made by the report conducted by the 49ers. Although the Stadium’s website continues to advertise opportunities for temporary gameday and special event positions, it is unclear how many permanent positions were created after the initial construction of the Stadium (Avalos, 2014). Additionally, there is no evidence that the Stadium has increased Convention Center business, or that the Convention Center has benefitted from NFL and non-NFL events. Likewise, Measure J’s promise that the City’s Northside would become an entertainment destination has not come to fruition. Local hotels have seen an increase in their revenues due to large NFL and non-NFL events, as was expressed by general managers who called into the August 30, 2022, City Council meeting, during which the Council, acting in its capacity as the Board, was going to decide on a settlement agreement with the 49ers. The settlement agreement was related to the termination dispute with ManCo, and the Civil Grand Jury learned that the calls were coordinated by 49ers staff. In sum, Measure J’s promise to create new jobs and realize economic benefits related to the Convention Center has not been meaningfully evaluated. Nevertheless, the 49ers tout this benefit to the City during disputes with the Stadium Authority. This topic is beyond the scope of the Civil Grand Jury’s investigation. However, it is an important element in understanding the success of Measure J and should be evaluated by the City. Measure J – Taxpayer Protections
• CL5 Page 31
  Measure J’s promise to protect the City’s General Fund has been realized. The funding structure from the Stadium Lease has successfully allowed the Stadium Authority to pay off Stadium construction loans and fund required Waterfall reserves faster than originally planned. Measure J stated that the Stadium development would not require or impose new or increased City taxes. Stadium Authority would lease the Stadium to an affiliate of the 49ers (StadCo) for an initial term of 40 years. The affiliate would pay a minimum base rent as well as the Stadium’s operating expenses if the expenses exceeded the Stadium Authority’s operating revenues. This would ensure that the Stadium Authority would have the funds required to pay both the rent to the City and operating expenses of the Stadium. The promise of taxpayer protections has worked out well for the City and, by extension, the Stadium Authority. City taxpayers have been well-protected from covering the cost of building and operating the Stadium. In addition, the Stadium’s funding structure has allowed the Stadium Authority to pay down construction loans and fund reserve accounts ahead of schedule. The Stadium Authority has sufficient revenue flows to pay for its share of the Stadium operations expenses, to pay for the Stadium Authority staff, to pay down the loans incurred building the Stadium, and to provide funding for various reserve accounts related to long-term Stadium operations. Measure J Promise on City Revenue: Missed Opportunities, Unfavorable Contracts The Stadium’s operating contracts have favored the interests of the 49ers to the long-term detriment of the City. This section contains some of the analysis and commentary created by the Grand Jury Expert’s thorough review of Stadium Authority and the 49ers records. The topics covered in this section are: • How the Money Flows to the City. • How the Money Flows and Does Not Flow to the Stadium Authority. • The Challenge with PSCs. • Deficiencies in the Management Agreement with ManCo. • Luxury Suite Revenue. • Buffet Costs. How the Money Flows to the City In the early years of the Stadium’s operations, the total money estimated to flow annually to the City was approximately $3 million, or roughly 1% of the City’s annual budget. According to information learned by the Civil Grand Jury through its investigation, this was estimated to grow to about $4 million in fiscal year 2024-2025. Measure J contains a provision for excess revenues to be paid to the City, but this provision has not been realized as of today. The City receives money primarily from the following three sources (Measure J at Section 4.3, Article 4, 2010) which are broken out below. 1) Fixed Base Rent As noted above, fair market rent for the City’s land, as defined by Measure J, consists of Fixed Base Rent and Performance Rent. The annual fixed rent from the Stadium Authority to the City increases yearly. It started at $180,000 and beginning in year 11, has grown to $1 million for the current fiscal year (Measure J at Section 17.20.020 (f)), 2010). The Fixed Ground Rent has been consistently paid as outlined in Measure J. 2) Senior and Youth Fee There is a 35-cent Youth and Seniors Program NFL game ticket surcharge. The surcharge has delivered $230,000-$250,000 to the City annually (Santa Clara Stadium Authority, 2024). The May 2024 settlement agreement increases the surcharge to 40 cents per NFL game ticket, raising approximately an extra $30,000 annually. 3) Performance Rent Performance Rent is the other element that is designed to make up part of the calculation that results in a payment of fair market value to the City. Performance Rent is a complicated feature in Measure J. Performance Rent is derived from the profits from the Stadium Authority-owned non-NFL events. For a variety of reasons, the City’s General Fund has not consistently received as much of the anticipated money as expected. And the lack of Performance Rent has been a major source of mistrust between the City, the Stadium Authority, and the 49ers. Additionally, it has become the most controversial and most discussed Stadium-related item during Council meetings. Per the Stadium Lease Article 6.4.2, Performance Rent is calculated from half of the Stadium Authority’s profits from non-NFL events (Figure 4, row 1), less credits for half of the Fixed Ground Rent (Figure 4, row 5), and less credits for accumulated overages in PSCs not reimbursed to StadCo from the current and prior years. Figure 4 below uses information obtained from the Stadium Authority financial records as referenced in the Methodology section of this report. All figures $K Actual Actual Actual Actual Actual Actual Actual Actual Actual TBD Budget 2014-15 2015-16 2016-17 2017-18 2018-19 2019-20 2020-21 2021-22 2022-23 2023-24 2024-25 1 Non-NFL Events (NNE) Net Income $5,208 $6,079 $5,317 $5,163 $19 ($2,741) ($510) ($286) $8,809 $7,756 $6,000 2 Original 2013 Forecast $5,000 $5,150 $5,305 $5,464 $5,628 $5,796 $5,970 $6,149 $6,334 $6,524 $6,720 3 % Actual vs. 2013 Forecast 104% 118% 100% 94% 0% -47% -9% -5% 139% 119% 89% 4 City Performance Rent = 50% NNE NI $2,604 $3,040 $2,659 $2,582 $9 ($1,371) ($255) ($143) $4,405 $3,878 $3,000 5 Credit – 50% Base Ground Rent ($90) ($108) ($125) ($143) ($160) ($178) ($195) ($213) ($230) ($248) ($500) 6 Credit – PSCs over threshold $0 $0 $0 ($660) $0 $0 $0 $0 $0 $0 $0 7 Net Performance Rent to City $2,514 $2,932 $2,534 $1,779 $0 $0 $0 $0 tbd tbd tbd 8 Fixed Ground Rent Paid to City $180 $215 $250 $285 $320 $355 $390 $425 $460 $495 $1,000 9 Senior and Youth fees to City (estimate $230 $230 $230 $230 $230 $250 $100 $230 $250 $250 $230 10 Actual Payments to City General Fund $2,924 $3,377 $3,014 $2,294 $550 $605 $490 $655 $710 $745 $1,230 11 Original Measure J Estimates $2,820 $2,913 $3,007 $3,104 $3,204 $3,306 $3,410 $3,517 $3,627 $3,739 $4,090 12 % Actual vs. 2013 Forecast 104% 116% 100% 74% 17% 18% 14% 19% 20% 20% 30% Figure 4: History of non-NFL Events Income and Stadium Authority payments to the General Fund Figure 4, Rows 1-3 show that net income from non-NFL events was at or near original expectations for the first four years of the Stadium operations, and the City received almost $10 million in Performance Rent. Since then, the City has received zero Performance Rent due to: 1) Two controversial years of zero profits or losses on ManCo-managed non-NFL events (fiscal years 2018-2020). 2) Two years of almost no non-NFL event activity due to COVID-19 (fiscal years 2020-2022). 3) Most recently, despite a non-NFL event net income record high, due to the dispute over PSCs (fiscal years 2022-2024). The May 2024 settlement agreement allowed $7.1 million of Stadium Authority litigation reserves to be liquidated and paid to the City as Performance Rent for the fiscal years 2022-2024. The May 2024 settlement agreement is explained fully in the section of this report titled “Management Agreement Termination, Litigation, and Settlements.” How the Money Flows and Does Not Flow to the Stadium Authority Stadium Authority Revenues The bulk of the Stadium Authority revenue comes from five sources: 1) Facility Rent paid by the 49ers. 2) A 10% ticket surcharge on all NFL ticket sales. 3) The Stadium Naming Rights payments received from Levi Strauss & Co. 4) The SBL revenue from payments for new or transferred seat licenses. Page 32 of 83 ot ENN ot stnemyaP ASCS aralC atnaS fo ytiC 5) Revenue from non-NFL events. Other much smaller sources of revenue include interest income and a $4 ticket surcharge for non-NFL events. Figure 5 below shows a revenue budget of $62.8 million for fiscal year 2024- 2025 (Santa Clara Stadium Authority, 2024). Figure 5: Stadium Authority 2024-25 Revenue Budget The May 2024 settlement agreement will change the Stadium Authority’s fiscal year 2024-2025 budget. It should increase revenue in future years by raising the non-NFL ticket surcharge from $4 to $8. Stadium Authority Expenses The Stadium Authority’s expense budget has six main categories: 1) The Stadium operations expenses shared with the 49ers, including items such as engineering, groundskeeping, and insurance. 2) Stadium operations and management expenses owned by the Stadium Authority, including the costs of servicing and marketing SBLs, utilities, and the Stadium Authority administrative expenses. 3) Payments to the City for Fixed Ground Rent, Youth and Senior Services, and Performance Rent derived from non-NFL events net income. As noted previously, Performance Rent has been zero in recent years because of the legal dispute with the 49ers over PSC. 4) Debt Service: The Stadium Authority has been successfully paying down the Stadium loans over the past 10 years. 5) “Excess revenue”: All excess revenue flows through what is known as the “Waterfall,” described in the next section. 6) Payments to legal contingency reserves related to the two disputes: PSCs and buffet costs. Figure 6 shows the six categories of the Stadium Authority’s $62.8 million fiscal year 2024- 25 expense budget (Santa Clara Stadium Authority, 2024). Figure 6: Santa Clara the Stadium Authority 2024-25 Budget – Expenses The May 2024 settlement agreement eliminates the expense category 6 (above) Legal Contingency Reserves. All of the money held in litigation reserves is now freed up. Under the settlement agreement, the City will receive approximately $7.1 million of Performance Rent for the 2022-23 and 2023-24 lease years (City of Santa Clara, May 23, 2024). Stadium Authority Excess Revenue and the Waterfall Any Stadium Authority money left after payment of operating expenses and debt service is known as “Excess Revenue” (Stadium Lease Agreement, 2013). The Stadium Authority has had Excess Revenue yearly since the Stadium began operations in 2014. Article 14 of the Stadium Lease prescribes exactly how all the Stadium Authority Excess Revenue is applied. The structure of how Excess Revenue is applied is frequently referred to in the Stadium Authority budget presentations as the Waterfall. The Waterfall ensures sufficient funds are available for ongoing Stadium operating expenses, capital improvements, end-of-life demolition, and paying off any revolving or subordinate loans. The Waterfall can be likened to a forced savings plan. The Waterfall conceptually contains eight cascading buckets of different funds. The first bucket/fund is filled with Excess Revenue from the Stadium Authority budget before the second bucket receives any funds. The second bucket must be filled before the third budget receives funds. The process continues until seven buckets are filled. The key point is that the Stadium Authority has no flexibility in the distribution of Excess Revenues until all the first seven buckets are filled. As of the release of this report, Buckets 1 through 6 are filled. Bucket 7, which requires $70 million for the Stadium Demolition Fund, is approximately 50% filled. Once Bucket 7 is filled, which could happen by the end of this decade, Stadium Authority leadership could have more latitude in deciding how to allocate Excess Revenue, including more diversions to the City’s General Fund. However, the Stadium is aging, and Capital Reserves will be nearly depleted in 2025, so additional Excess Revenues may be needed to fund capital improvement/renovation projects. Figure 7 uses information obtained by the Civil Grand Jury to demonstrate how funds are distributed throughout the Waterfall. Figure 7: Stadium Authority Excess Revenue Distribution Waterfall The rigidity of the Waterfall has frustrated some City officials, who have been vocal about wanting more of the Stadium/Stadium Authority revenue to reach the City’s General Fund. However, this same rigidity ensures the Stadium Authority's long-term financial health and the Stadium’s continued financial viability by requiring the Stadium Authority to set aside sufficient funds for future needs, including long-term infrastructure maintenance and improvements. The May 2024 settlement agreement allows for significant changes to how Waterfall Bucket 7, the Renovation/Demolition Fund, will receive Excess Revenues. Instead of receiving 100% of Excess Revenues, the Renovation/Demolition Fund will only receive 50% and the remaining 50% will go to StadCo to repay the outstanding PSC balance. Once the $11.5 million PSC balance is paid off after the 50% allocation to the Renovation/Demolition Fund, the remaining amounts will flow to the Stadium Authority, with the option to distribute these funds to the City’s General Fund. The Problem with PSCs The costliest and longest continuous dispute between the 49ers and the Stadium Authority has been over PSCs. The core of the dispute has been over a $170,000 per-game Public Safety Cost Threshold (Threshold), or maximum value, originally specified under Measure J that the 49ers must pay for the cost of public safety services at NFL events. Measure J also provided a 4% annual increase to the Threshold. The Threshold could be renegotiated if the costs exceeded the Threshold for three consecutive years. The Threshold was greatly underestimated; in fact, since the Stadium opened in 2014, PSCs have increased substantially and have been well over the Threshold for all games/seasons. Because of the complicated Performance Rent calculations (i.e., any dollar amount over the Threshold becomes an expense or “credit” taken out of Performance Rent revenue), the City has been the biggest loser in the PSC dispute. Public Safety Staffing PSCs for Stadium events include all the costs of planning for safety at stadium events, safety equipment costs, and the full costs of public safety officers for controlling traffic and pedestrian flows, monitoring parking areas, monitoring stadium entrances/exits, monitoring adjacent residential neighborhoods, and providing backup support for any Stadium incidents. PSCs also include fire and public works services. PSCs for 49ers games are paid as follows: • The City bills StadCo for PSCs for each 49er game. • StadCo reimburses the City. • The Stadium Authority reimburses the 49ers for all PSCs above the Threshold. City Police Officers can be mandated to work at Stadium events when staffing and security needs dictate. Even with mandated overtime, the City must rely on officers from other jurisdictions, such as surrounding city police departments, the County Sheriff’s Office, and the California Highway Patrol. Normally, at least 200 badged officers are deployed for large events, and the total costs, including overtime and benefits, are included in the PSC bill from the City. It should be noted that the full security costs for Stadium events also include private security personnel hired by ManCo. Private security personnel are often in the range of 500-800 additional staff. These costs are separate and in addition to PSCs. The Civil Grand Jury did not widely investigate safety costs and contracts at other comparable sports venues but learned that PSCs for Stadium events are among the highest for any stadium in the U.S. for a variety of reasons, including: • The Bay Area is an expensive location, and pay rates for local police officers, including the Santa Clara Police Department (SCPD), can be among the highest in the nation. • Venues like the Oakland-Alameda County Coliseum (Oakland) or Oracle Park (San Francisco) are in larger cities with larger police forces. These cities have more flexibility in assigning officers or getting volunteers to work at stadium events. The SCPD is not as large, and, per a 2021 Memorandum of Understanding (MOU) between the City and its Police Officers Association (POA), the City pays its officers double-overtime (2x regular pay rate) purportedly to incentivize enough officers to volunteer to work at 49ers games. • Unlike some stadiums (e.g., Oakland-Alameda County Coliseum), the Stadium is located near suburban neighborhoods, not near major highway exits. It has access from multiple ingress points and a distributed parking footprint, which requires more traffic/pedestrian control officers than at other stadiums. Public Safety Cost History Figure 8 below shows a history of PSCs from fiscal years 2014-2024 and what the payments entail based on information obtained from Stadium Authority financial records as referenced in the Methodology section of this report. Row 8 shows how much over the Threshold the PSCs have been each year. Since the 2019-20 football season, the gap between actual PSCs and the Threshold value has been about $3 million per year (except for the COVID-19-shortened 2020-21 season). Row 5 shows that PSC per game have more than doubled between the 2014-15 and 2023-24 seasons. All figures $K, except for $ football games Actual Actual Actual Actual Actual Actual Actual Actual Actual TBD Budget 2014-15 2015-16 2016-17 2017-18 2018-19 2019-20 2020-21 2021-22 2022-23 2023-24 2024-25 1 Total PSCs $2,455 $2,438 $3,085 $2,633 $2,995 $5,417 $888 $5,303 $5,716 $6,034 2 PSC adjustments (1) $0 $0 $0 $4 $8 $790 $128 $308 $94 $0 3 Billable PSCs $2,455 $2,438 $3,085 $2,637 $3,003 $6,207 $1,016 $5,611 $5,810 $6,034 4 # 49ers Games @ Levi's 10 10 10 10 10 12 5 10 12 12 5 PSCs per game $246 $244 $309 $264 $300 $517 $203 $561 $484 $503 6 PSCs Threshold Per Game (+4%/yr) $170 $177 $184 $191 $199 $207 $215 $224 $233 $242 $360 7 Allowable PSCs for season $1,700 $1,768 $1,839 $1,912 $1,989 $2,482 $1,076 $2,237 $2,792 $2,904 8 PSCs Over Threshold $755 $670 $1,246 $725 $1,014 $3,725 ($60) $3,374 $3,018 $3,130 9 PSCs Paid by 49ers (StadCo) $1,257 $1,478 $1,557 $1,680 $1,671 $2,006 $890 $1,814 $2,241 $0 10 PSCs Paid by Offsite Parking Fees $443 $290 $355 $293 $317 $476 $0 $423 $551 $613 11 PSCs Paid by SCSA Discretionary Fund $755 $670 $1,173 $0 $0 $0 $0 $0 $0 $0 12 PSCs Paid by 49ers pending litigation $0 $0 $0 $664 $1,013 $3,664 $3,165 $2,856 $3,632 13 Total PSCs Paid $2,455 $2,438 $3,085 $2,637 $3,001 $6,146 $890 $5,402 $5,648 $4,245 14 Unpaid PSCs (contested depreciation) $0 $0 $0 $0 $1 $61 $126 $209 $162 $0 1. Includes Workers Comp & Depreciation adjustments Figure 8: History of PSCs, PSC Threshold, and PSCs Over the Threshold It is difficult to ascertain why the costs have increased so much. In general, the increase has been attributed to a revised safety plan to provide a heightened level of security; increases in Worker’s Page 38 of 83 ytefaS cilbuP stsoC ytefaS cilbuP stnemyaP Compensation costs; the previously mentioned move to double-overtime pay for SCPD; an increase in the City-calculated overhead rates applied to all City staff working at the Stadium events; and general pay raises. All of these factors appear to have contributed to the increase; however, the Civil Grand Jury could not confirm that there was a definitive cause that accounted for the escalation. History of the PSC Dispute Critical to the PSC dispute and ensuing litigation are the stipulations in Measure J and in the Stadium Lease regarding the Threshold limit; the relationship to Performance Rent; and the allowable three-year renegotiation of the Threshold. The Stadium Lease states if the Stadium Authority cannot or will not reimburse StadCo for PSCs above the Threshold value, then StadCo can credit any unpaid PSCs against Performance Rent (from the profits of non-NFL events) owed by the Stadium Authority to the City’s General Fund (Stadium Lease at Section 7.5.3(a), 2012). Additionally, if the Threshold is exceeded over a consecutive three-year period the amount can be renegotiated (Stadium Lease at Section 7.5.4(b), 2012). In 2017, the Stadium Authority called for negotiations on the Threshold at the end of the third season. The Stadium Authority contends the 49ers did not negotiate in good faith, and the Threshold remained unchanged. Thereafter, the Stadium Authority stopped reimbursing StadCo for PSCs above the Threshold. In 2018, StadCo contested payments to the City for PSC overages (Figure 8, Row 12), and they began to accumulate PSC overages as credits against Performance Rent. Income from non-NFL events was negligible from fiscal years 2018 through 22. Therefore, there was no Performance Rent, and StadCo’s PSC credits had no impact. Income from non-NFL events for the past two seasons, however, has been good (via performances from the likes of Taylor Swift, Beyoncé, Ed Sheeran, etc.), but the Stadium Authority prudently put this income into litigation reserves instead of paying Performance Rent payments to the City. The PSC dispute was settled in May 2024. The agreement includes: • The 49ers allowed a one-time Threshold increase of $108,000 to $360,000 per game. The original 4% annual inflation adjustment stayed in place. • The non-NFL ticket surcharge that attendees pay will double from $4 to $8, and this money will go towards paying the 49ers for PSCs over the new Threshold. • The 49ers agreed to allow the Stadium Authority to pay unpaid PSCs from prior seasons (approximately $11.5 million) by diverting 25% of excess revenues that flow through the Waterfall over the next several years. Consistent with Measure J, the Stadium Lease gave sole discretion to the 49ers to approve any changes to the PSC Threshold (Stadium Lease 7.5.4(b), 2012). This has proven to be an expensive arrangement that gives StadCo control over determining the key element affecting Performance Rent. The Problem with the Management Agreement “The Stadium Authority will be responsible for the management and operation of the Stadium for NFL Events, non-NFL Events and Civic Events, and 49ers Stadium Company will cooperate with the Stadium Authority in the operation of the Stadium.” (Measure J, Article 8) As noted previously, the Management Agreement is a three-way agreement between the Stadium Authority, StadCo, and ManCo, which was signed in March 2012. It is a glaring example of the Stadium contract provisions that heavily favor the 49ers’ interests and something that was never anticipated by Measure J. The Stadium Authority Accepted a Conflicting Interest
• CL6 Page 41
  The City/Stadium Authority agreed to use ManCo, an affiliate of the 49ers, with an inherent conflict of interest to handle the Stadium Authority’s financial interests in non-NFL events. While Measure J contemplated that the Stadium Authority may contract with a Stadium management firm to oversee the day-to-day operations of the Stadium, Measure J made clear that the Stadium Authority was supposed to be responsible for managing the Stadium. (Measure J at Section 8.1(a), 2010). Measure J further states that StadCo is required to “cooperate” with the Stadium Authority in that regard. (Measure J at Section 8.1, 2010). That is not the reality of the current arrangement. The first problem began when the Stadium Authority agreed to use ManCo. The Civil Grand Jury learned that, during negotiations, the 49ers demanded that the Stadium Authority agree to hire ManCo, an affiliate of the 49ers, and it agreed. When the Stadium Authority agreed to use ManCo to provide management of Stadium Authority’s non- NFL events, it should have protected itself from risks associated with the inherent conflicts of interest in performing this role, particularly given StadCo’s competing financial interests in non- NFL events. Specifically, StadCo can earn revenues at the same non-NFL events for which ManCo is responsible for negotiating event terms on behalf of the Stadium Authority. The terms negotiated by ManCo directly impact the profitability the Stadium Authority achieves at these events. The Stadium Authority Agreed to a Lopsided Termination Provision
• CL7 Page 42
  The City/Stadium Authority failed to ensure that the Management Agreement included a fair termination clause. The Management Agreement states that the Stadium Authority may terminate the agreement only by written notice upon the occurrence of any of the following (Management Agreement, Article 8.1.1, 2012): 1. Fraud or intentional and material misrepresentation by or at the direction of the ManCo in connection with this Agreement. 2. Misappropriation or conversion of any funds received pursuant to this Agreement by or at the direction for ManCo. 3. Willful misconduct of ManCo resulting in an Event of Default, which Event of Default is not cured in accordance with Article 11 of the Management Agreement. It is notable that the contract termination bar is lower for both StadCo and ManCo, requiring only an occurrence of an Event of Default specified in Article 11 of the Management Agreement. An Event of Default is a failure to pay or failure to perform. The Stadium Authority, however, can only terminate in the Event of Default if they also demonstrate that the Event of Default is caused by “willful misconduct of ManCo.” This is a much harder standard to establish, typically requiring proof of intentional conduct done with the knowledge that the event will occur. Barring fraud, misappropriation of funds, or willful misconduct, the Stadium Authority can terminate the Management Agreement only if StadCo also gives approval. This is a prime example of the superior negotiation position that StadCo and ManCo have established over the Stadium Authority, and it is/was a large shift from the cooperative spirit written under Measure J. The Civil Grand Jury also reviewed the termination clauses for the management agreements at Petco Park (San Diego), Golden 1 Center (Sacramento), and SAP Arena (San José) and found no similar termination language. Lack of Financial Transparency
• CL8 Page 64
  Per the Stadium Lease, the Stadium Authority failed to negotiate pertinent details about buffet costs in the contract, such as parameters on cost thresholds and alcohol. The Stadium Authority accepted responsibility for buffet costs but failed to follow up when the expense was omitted from ManCo’s budgets. The Stadium Authority owns the SBLs and all associated revenues. SBL sales were a major source of money for financing the Stadium's construction. There are 942 “Legacy” SBL holders that originally paid at least $80,000 for their seat licenses, and they were promised forty years of complimentary buffets at 49ers games. The Stadium Authority does not dispute that it is responsible for these costs. The buffet cost per season was approximately $1 million. Since the Stadium opened in 2014, ManCo has been responsible for providing a buffet amenity to these SBL holders. However, ManCo did not bill the Stadium Authority for the buffet costs for the first four years of the Stadium operations, and buffet costs were not included in the annual budgets submitted to the Stadium Authority for approval. If buffet costs had been budgeted, these costs would presumably have been included in the rent re-set arbitration. A legal dispute started in 2019 when ManCo billed the Stadium Authority for over $4 million for buffet costs for the fiscal years covering 2014-2018. The Stadium Authority leaders do not dispute they are responsible to pay for the costs of buffets. The dispute over the $4 million invoice has occurred for several reasons. The bills were all submitted after the budget years had concluded; the most delinquent invoice was four years old. During the annual budget process, ManCo failed to include the buffet costs in the annual Stadium operations budgets. When finally submitted, the invoices provided insufficient details to support the more than $4 million of expenses. The information on the invoices often included an expense incurred for alcoholic beverages served at the expense of the Stadium Authority, a public entity. When City staff became aware that the Stadium Authority was expected to cover the cost of alcohol, they were surprised. Almost all of the invoices charge for the same number of guests for every single game during a particular season, with no variation. The invoices lacked any details regarding what kind of food was served and lacked any supporting documentation. The lack of information makes it difficult to know how StadCo determines the number of guests served. This legal dispute over expensive high-end buffets appears to be another example of a naïve or uninformed contract negotiating position by City/Stadium Authority leaders. The Stadium Lease clearly says that the Stadium Authority will provide buffets for high-end SBL holders. However, the Stadium Authority failed to ensure the Stadium Lease, until now, had any limitations on buffet costs (like a PSC Threshold), and it had/has no clarity about whether alcoholic beverages are covered under buffet costs. This dispute was settled under the May 2024 settlement agreement key elements include: • The Stadium Authority must pay all costs for all future buffets for the 942 “Legacy” SBL holders for all 49ers games. • The cost per game is, for the first time, capped at $90,000 per game with a 3% annual inflation adjustment. • All claims by StadCo for payment of buffet costs for all prior years, from 2014 forward, are dismissed. Community Promises Not Fulfilled
• CL9 Page 74
  An analysis of the market revenue potential for non-NFL events at the Stadium.
• CL10 Page 74
  An analysis of ManCo's Marketing Plans, comparing successful (FY 2022-23) and unsuccessful (FY 2017-18) bookings to potential market revenue.
• CL11 Page 74
  A plan with measurable objectives and incentives for ManCo to achieve these results. This recommendation should be implemented by December 31, 2024. Finding 11 Per the Stadium Lease, the Stadium Authority failed to negotiate pertinent details about buffet costs in the contract, such as parameters on cost thresholds and alcohol. The Stadium Authority accepted responsibility for buffet costs but failed to follow up when the expense was omitted from ManCo’s budgets.

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