The Transit Cooperative Research Program (TCRP) plans to award a contract for a study and report. Legal research reports sponsored by this project are published in TCRP's Legal Research Digest (LRD) series in electronic format. Publications are made available to some libraries and to approximately 4,000 transportation lawyers and officials through the TRB distribution network.
Increasingly, transit agencies are exploring ways to leverage their FTA-funded property to increase revenue. Occasionally, such property also may be used to support affordable housing.
The FTA supports such projects and, in August 2014, issued guidance on joint development (JD), including transit-oriented development (TOD), in Circular FTA C 7050.1A.
TCRP has addressed TOD and JD in past TCRP LRDs [TCRP Legal Research Digest 36: Transit Oriented Development and Joint Development Case Studies and Legal Issues (2010)], which updated TCRP Legal Research Digest 12: The Zoning and Real Estate Implications of Transit-Oriented Development. These past digests have focused on legal and other planning tools available to transit agencies and municipalities to encourage TOD and joint development projects.
For example, the Washington Metropolitan Area Transit Authority (WMATA) has adopted joint development policies and guidelines, and has completed at least 18 JD projects since 2006. The Los Angeles County Metropolitan Transportation Authority (LA Metro) also has adopted JD policies, and since 1995 has completed at least 14 JD projects and has at least 16 projects in the pipeline. The San Francisco Bay Area Rapid Transit District (BART) recently updated its TOD policy and performance targets and aims to build 20,000 housing units (35% affordable) and 4.5 million square feet of commercial space by 2040. With this growth, requests for JD agreement examples, templates, or provisions have increased.
The objective of this research is to produce a digest that addresses both FTA requirements for JD projects with FTA assistance or FTA-funded assets, and develops model provisions to include in JD agreements. As background, the report should discuss the essential requirements of the Circular referenced above—including definitions of JD and TOD, eligibility for a JD project, and the JD process—in order to help FTA grantees navigate the process. For example, what role does the FTA play in the process, and to what timelines should grantees adhere to receive any necessary FTA guidance or approvals? If there are other federal and state agencies providing funding, what role should they play (e.g., in the environmental process), and to what extent will the FTA accept their decisions?
In determining appropriate provisions to be contained in a JD agreement, the author should consider the structure of the agreement (e.g., lease or sale), model provisions to ensure satisfactorily continuing to control and protect the federal interest, and assignment of risk. The author should identify and interview agencies that have undertaken JD projects to determine issues that have arisen in the solicitation of proposals and the negotiation of the agreement. In addition, the author should discuss lessons learned, including issues that became apparent post development that were not adequately addressed in the agreement (e.g., bankruptcy, enforcement, contamination, liens, foreclosures, insurance, maintenance, management). The report should include sample agreements, with special emphasis on transit-specific provisions that transit agencies have successfully negotiated to protect adjacent or future transit uses.
This research will be conducted in four tasks pursuant to a firm fixed price agreement. The tasks will be as follows:
Task 1. Research Plan and Detailed Report Outline. The consultant will conduct background research and collect relevant material. Based on the initial but complete review of the source material, consultant will propose a detailed report outline. The outline should be at least 8 to12 pages, include a proposed survey if one is to be used, and contain sufficient detail to inform the TCRP project panel of what a 75- to 100-page report will contain. This outline should also contain the estimated pagination for each proposed section and/or subsection. This material will be submitted to TCRP for consideration and approval.
Task 2. After approval of the work plan, the consultant should conduct additional research, and case and statutory/regulatory analysis.
Task 3. Draft report in accordance with the approved work plan (including modifications required by TCRP).
Task 4. Revise report as necessary. The consultant should estimate that two revisions will be necessary. One revision may be required after review by the TCRP staff and members of a select subcommittee. Additional revisions may be required after the full committee has reviewed the report.
Status: Research in progress