Transit Agency Intergovernmental Agreements: Common Issues and Solutions (2012)

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18 When an action requires the consent of the governmental entity and another party, the action is contractual or ad- ministrative. The give-and-take involved when a govern- ment entity negotiates an agreement with a sovereign In- dian tribe is not legislation, but is a process requiring the consent of both contracting parties…. The MOU in this case addresses mitigation of potential impacts of the future casino project; it does not state a policy of constructing casinos on county land or decide whether or how the casino project should proceed.…The MOU sets out no rule and contains no regulatory provi- sions. It is a contract, not a law. The fundamental policy decision and regulation of the location of tribal land and its use for a casino is made, not by the local government, but by the Tribe and the federal authorities. Whether a local government approves or chooses to voice its disap- proval is not legislation and therefore is not subject to referendum.200 The court agreed with the City that the City’s ap- proval of the MOU was an administrative act that was not subject to the referendum process.201 12. Miscellaneous Besides claims for damages for breach of contract, an IGA in the State of Georgia has been the subject of mandamus and injunction proceedings.202 V. CHECKLIST FOR NEGOTIATING AND DRAFTING AN IGA OR MOU A. Introduction Of the 31 agencies using IGAs and MOUs, 16 re- ported that they could not identify any particular tran- sit-related issues to avoid or resolve when negotiating or drafting an IGA or MOU. The agencies’ other com- ments regarding the drafting of IGAs and MOUs are discussed in Section V. Based on the transit agencies’ responses to the survey and on the agreements they provided, a checklist of matters to consider when draft- ing an agreement is set forth in Part B of this section of the digest. As with any contract, careful drafting is important. An IGA should be clear in its delineation of duties and responsibilities, including those not assumed under the 763, 775, 38 Cal. Rptr. 2d 699, 889 P.2d 1019 (1995); Wheelright v. County of Marin, 2 Cal. 3d 448, 457, 85 Cal. Rptr. 809, 467 P.2d 537 (1970)). 200 Id., 130 Cal. App. 4th at 1143, 31 Cal. Rptr. 3d at 67. Al- though the court referred to the MOU as a contract, based on the court’s description of the MOU at issue and on the court’s opinion, there is no indication that the MOU was anything other than a nonbinding agreement. 201 Id., 130 Cal. App. 4th at 1140, 31 Cal. Rptr. 3d at 64. 202 Hicks v. Khoury, 283 Ga. 407, 658 S.E.2d 616 (2008) (holding that the allocation of funds in the amended IGA was not inconsistent with the purpose approved by the voters at issue in the case). agreement.203 In an Arizona case, the court stated that there was an issue regarding whether the state trans- portation department “may have actually ceded control of aspects of the design, operation or maintenance [of an intersection] to the city” and whether “the city accepted such responsibility through an intergovernmental agreement or otherwise….”204 The court stated that the interpretation of an IGA normally is resolved based on “the four corners of the Agreement.”205 However, ex- trinsic evidence may be admissible when an IGA is am- biguous.206 B. General Provisions There are general provisions, some of which may be required by a state enabling act,207 that typically are found in IGAs and MOUs: 1. Formation • The statutory authority for the agreement. • A statement of authority to provide transit ser- vices.208 • The purpose(s) of the agreement. • The parties’ reasons for making an agreement that are often set forth in a series of recitals.209 • The power(s) or function(s) to be exercised jointly by the parties. • The method by which the purpose(s) of the agree- ment and the parties’ intent will be accomplished or the manner in which the power(s) or function(s) will be ex- ercised. • The procedure for amending the agreement.210 203 State v. City of Kingman, 217 Ariz. 485, 176 P.3d 53 (Ariz. Ct. App. 2008). 204 Id. 217 Ariz. at 489, 176 P.3d at 57. The court held that “before a city can be held liable for actual control of an inter- section that is part of the state highway system absent an IGA, the city must assume responsibility for the planning or design of the intersection, or it must actually participate in maintain- ing or operating it.” Id. at 59. See also Vill. of Montgomery v. Aurora Twp., 387 Ill. App. 3d 353, 899 N.E.2d 567 (Ill. App. 2008) (holding that although an IGA reflected duties to plow and salt the bridge, neither municipality formally agreed to assume maintenance responsibility). 205 DeKalb County, 297 Ga. App. at 325, 677 S.E.2d at 393. 206 E. Baton Rouge Parish Sch. Bd. v. City of Baker Sch. Bd., 2006 La. App. LEXIS 2005 (La. App. 2006). 207 See Pt. II of this digest, supra. 208 App. A., Item 8, CATS/Mecklenburg County, N.C. ¶ II, at 2. 209 App. A, Item 13, Chicago Office of Emergency Manage- ment and Communication (Chicago OEMC)/CTA ¶ 2 (sharing of real-time data). 210 App. A, Item 10, Avondale, Ariz./Tolleson, Ariz., at 3 (re- imbursement of prorated cost of transit services); Item 41, El Paso County, Colo./Colorado Springs, Colo. et al., at 9 (funding of roadway capital improvements and transit service).

19 2. Date and Duration • The date of the agreement, the date it commences, or its effective date.211 • The term or duration of the agreement, including any transition period desired by the parties.212 • Whether the effective date is subject either to the voters’ approval in the parties’ respective jurisdictions and/or to the state attorney general’s approval.213 • A clause for the agreement’s extension or renewal, including renewal on an automatic basis.214 3. Relationship of the Parties • The relationship of the parties, such as: • No party being an agent or employee of any other party because of the agreement.215 • The agreement not creating a partnership or joint venture of the parties.216 • An option for additional agencies to become parties and/or for additional territory to become subject to the agreement.217 • The right of each party to withdraw before or after each phase of a project.218 C. Scope of the Agreement Several transit agencies responding to the survey commented that the scope of any agreement should be clearly defined. Thus, an agreement may: • Designate the party or parties having the respon- sibility for developing the scope of the work.219 • Define the project.220 211 App. A, Item 11, Bend, Or./Central Oregon Intergovern- mental Council (COIC), at 3 (combining of two transit systems under a single governing body). 212 Id., at 2. 213 App. A, Item 41, El Paso County, Colo./Colorado Springs, Colo. et al., at 8 (funding of roadway capital improvements and transit service); Item 17, Sandy Springs, Colo./Oregon DOT, at 1 (integrating transportation land use planning). 214 App. A, Item 11, Bend, Or./COIC, at 3; Item 48, Capital Metro. Transp. Auth. of Harris County (Harris County MTA)/TxDOT et al., at 1 (establishing structure of a regional transportation management consortium). 215 App. A, Item 10, Avondale, Ariz./Tolleson, Ariz., at 3 (re- imbursement of prorated cost of transit services). 216 App. A, Item 15, Phoenix Public Transit Dep’t. (Phoenix PTD)/Tempe, Ariz. ¶ 13, at 3 (cooperative purchasing agree- ment). 217 App. A, Item 41, El Paso County, Colo./Colorado Springs, Colo. et al., at 10. 218 App. A, Item 53, Omnitrans/Chaffey Community College Dist., at 1 (transit center). 219 App. A, Item 2, CDTA/Albany, N.Y., at 2 (develop tran- sit-oriented development zoning ordinance and guidebook). • State that the scope of the work includes certain milestones and deliverables.221 • Designate the types of programs being provided.222 • Define the services and any required service ap- pointments and work authorizations.223 D. Representations and Warranties Many of the agreements reviewed include a state- ment of the parties’ representations and warranties as of the time of the signing of the agreement, some of which are:224 • The parties have conducted their due diligence prior to signing the agreement.225 • The agreement describes the due diligence con- ducted by the parties. • The agencies are authorized by their board or other governing authority to enter into the agree- ment.226 • The agencies have sufficient funds to implement the agreement and/or to participate in the described program or project.227 • The parties have performed all material obliga- tions required by any related agreements.228 • The parties are in substantial compliance with all applicable federal, state, and local laws, orders, rules, codes, regulations, and ordinances.229 • Any assets being transferred pursuant to the agreement are in good repair and operating condition, reasonable wear and tear excepted.230 • The party or parties transferring any assets for the purpose of the agreement have good title thereto free from any and all liens, security interests, and other encumbrances except as noted in the agreement.231 220 App. A, Item 38, Metra/Vill. of Downers Grove, art. I, at 1 (e.g., changes to signal and electrical lines, drainage, and other specified facilities). 221 App. A, Item 40, Metra/Western Ill. U. ¶ I(A), at 3 (uni- versity-provided consulting services). 222 App. A, Item 14, City of Lincoln, Neb., Star Tran (Star- Tran)/U. of Nebraska ¶ V, at 2 (e.g., establishment of a transit pass or “no fare” program for qualified riders). 223 App. A, Item 80, MetroLink/Springfield Mass Transit Dist. (SMTD) ¶ 5, at 2 (paratransit vehicles). 224 App. A, Item 106, Tri-Met/Clackamas County Dev. Agency, art. 9.2, at 22–24 (LRT project preliminary engineer- ing, final design, and construction). 225 App. A, Item 11, Bend, Or./COIC, at 3. 226 Id. at 1; Item 23, LYNX/Seminole County, Fla. § 17(a), at 16 (funding for service within county). 227 App. A, Item 17, Sandy Springs, Colo./Oregon DOT, at 3– 4 and 8 (integrating transportation land use planning); Item 12, Chicago/CTA § 3(d) (CTA’s rehabilitation of regional transit location and other work). 228 App. A, Item 11, Bend, Or./COIC, at 3. 229 Id. 230 Id. 231 Id.

20 E. Administration 1. Separate Entity for Administration An agreement may establish or otherwise authorize a separate entity to administer the agreement, in which case the agreement may include provisions stating: • A corporation or other entity will be or has been formed to implement the agreement.232 • The separate authority will serve the purposes and conduct the activities created or authorized by the agreement.233 • The administering entity will serve as the policy- making body for a project or projects.234 • The details regarding the separate entity’s govern- ing body, such as a commission, board of directors, offi- cers, or otherwise, including: • The method of electing or appointing mem- bers, directors, and/or officers. • Their compensation. • The term of office. • The process for the removal of a member, di- rector, or officer. • The procedure for the filling of any vacancies. • The disqualification of any member, director, or officer for a violation of law or ethics or for a conflict of interest. • The administering entity is authorized in its own name: • To make and enter into contracts. • To employ agencies, employees, or others as required. • To acquire, construct, manage, maintain, or operate transit or related facilities. • To acquire, hold, or dispose of property. • To incur debts, liabilities, or obligations that do not constitute the debts, liabilities, or obligations of any of the parties to the agreement.235 • To exercise, if applicable, the power of emi- nent domain.236 • To exercise, if applicable, any taxing author- ity.237 • To exercise, if applicable, alone or jointly, any authorized procurement functions. • To promulgate policies and procedures with respect to the foregoing and other powers and func- tions.238 232 App. A, Item 15, Phoenix PTD/Tempe, Ariz. § 2.3, at 1 (light rail project); Item 93, San Francisco MTA/Santa Clara Transp. Auth. et al. § 2, at 3 (expand purposes and powers of Peninsula Corridor Study Joint Powers Bd.). 233 App. A, Item 41, El Paso County, Colo./Colorado Springs, Colo. et al., at 2. 234 App. A, Item 93, San Francisco MTA/Santa Clara Transp. Auth. et al. § 5, at 6 (e.g., a Joint Powers Bd.). 235 See App. A, Item 41, El Paso County, Colo./Colorado Springs, Colo. et al., at 7–8. 236 Id. at 8. 237 Id. at 2–3, 8. • A transit committee or other body will be created for the purpose of advising the administering entity or the parties on transit issues.239 2. Administration by a Party In the absence of a separate entity for management, an agreement may state that: • One of the parties will serve as the managing agency, implement the agreement, and oversee the ob- jectives of a project or projects.240 • The agreement will be administered by a chief transit official241 or by an executive director or execu- tive committee.242 • A coordinator is identified or will be appointed to oversee activities authorized by the agreement. • A single point of contact is designated for the agreement or project.243 3. Extent of Administrative Authority Regardless of the type of administration, an agree- ment may provide for: • The responsibility for written operating proce- dures, salary administration, compensation policies, office rental, consultant services, and other expenses to administer the agreement.244 • The manner in which funds will be paid to and disbursed by a party to the agreement or by any sepa- rate entity created or authorized by the agreement. • The making and promulgation of any rules or regulations for the purpose of implementing, adminis- tering, or enforcing the agreement and/or the prepara- tion of an operating or procedure manual that is specific to the agreement.245 • The manner in which purchases will be made and contracts entered into. • A limit on the administrative or other expenses chargeable to a party.246 • An allocation of funds subject to the agreement for capital improvements and maintenance, as well as for future adjustments of any allocation.247 238 Id. at 4–5. 239 App. A, Item 11, Bend, Or./COIC, at 9. 240 App. A, Item 93, San Francisco MTA/Santa Clara Transp. Auth. et al. § 6, at 7–8 (e.g., implementing capital pro- grams and/or awarding operating contracts). 241 App. A, Item 8, CATS/Mecklenburg County, N.C. ¶ VI, at 5 (integrated regional transit system). 242 Item 48, Harris County MTA/TxDOT et al., at 7. 243 App. A, Item 7, CATS/City of Charlotte, N.C. ¶ 5, at 6 (e.g., a project manager); Item 29, LYNX/Osceola County, Fla. (highway corridor alternatives analysis). 244 App. A, Item 4, CDTA/Capital Dist. Transp. Comm. ¶¶ 1 and 3, at 1–3 (transit authority acting as financial agent). 245 App. A, Item 48, Harris County MTA/TxDOT et al., at 8. 246 App. A, Item 41, El Paso County, Colo./Colorado Springs, Colo. et al., at 3. 247 Id. at 4–5.

21 • The designation and definition of the boundaries of any service area(s) subject to or affected by the agree- ment.248 4. Implementation Agreements often provide that: • The parties will determine whether and when to proceed with the planning and conceptual engineering for a project.249 • Further agreements or commitments will be made regarding an implementation phase, construction phase, and/or operational phase of a project’s develop- ment.250 • The implementation phase will include, for exam- ple, right-of-way needs, construction management ser- vices, and utilities.251 • The parties’ representatives will meet to discuss the economic feasibility of the project after each phase.252 • When vehicles are involved, the agreement may state that: • Changes are authorized to the vehicles’ ex- ternal appearance.253 • Vehicles will be inspected prior to or upon de- livery.254 • A party is assigned the responsibility for maintaining and insuring equipment after delivery.255 • Any leased vehicles will comply with all fed- eral, state, and local laws.256 F. Transfer or Assignment of Personnel or Assets An agreement may provide for the assignment or sharing of personnel and/or designate equipment or assets and state: 1. Personnel • The manner of employing, engaging, compensat- ing, transferring, or discharging necessary personnel, subject to applicable civil service rules or employment contracts. • The appointment of an individual to perform a par- ticular function.257 248 App. A, Item 10, Avondale, Ariz./Tolleson, Ariz., at 1. 249 App. A, Item 53, Omnitrans/Chaffey Community College Dist., at 2. 250 App. A, Item 50, Omnitrans/Loma Linda, Cal. ¶ 3, at 3 (street corridor bus rapid transit project). 251 Id. ¶ 4.1, at 3–4. 252 App. A, Item 53, Omnitrans/Chaffey Community College Dist., at 1–2. 253 App. A, Item 81, MetroLink/Rockford Mass Transit Dist., art. II ¶ 3, at 2. 254 Id. ¶ 2, at 3. 255 Id., art. II ¶¶ 3 and 5, at 3. 256 Id., art. III, at 4. • The designation of the persons to serve on a joint development or other committee.258 • The authorization for personnel of one party to be used in lieu of or in addition to other contributions or advances by a party.259 • The permission of a party, in lieu of a contractor, to use its own employees in the party’s discretion for some of the work contemplated by an agreement.260 • The transfer of personnel of one party to another party without loss of existing employment rights or benefits. 2. Assets • The acquisition, ownership, custody, operation, maintenance, or sale or lease of real or personal prop- erty as needed in connection with the agreement. • The parties’ commitment to incur capital expendi- tures for equipment, facilities, or other property.261 • The transfer of any property free of or subject to any liens and encumbrances.262 G. Financial Relationship 1. In General When an agreement requires income or funding for a program or project, the IGAs and MOUs reviewed for the digest often include one or more of the following categories that are outlined in more detail in the sec- tions that follow: • The financial means to support the agreement’s in- tended purposes. • The payment for services by one party to the other parties. • The parties’ exchange of services or property. • The use of grant funds. • The payment of costs and expenses. • The accounting and auditing of the books and re- cords for a program or project subject to the agreement. 2. Participant Contributions An agreement may specify: • Each party is to furnish an initial contribution.263 257 App. A, Item 92, SANDAG/Caltrans ¶¶ 5.9 and 5.12, at 11 (e.g., a corridor director). 258 App. A, Item 76, MetroLink/Moline, Ill. ¶ 4, at 3 (multi- modal facility project). 259 App. A, Item 11, Bend, Or./COIC, at 10. 260 App. A, Item 38, Metra/Vill. of Downers Grove, art. II(3), at 2. 261 App. A, Item 10, Avondale, Ariz./Tolleson, Ariz., at 2. 262 App. A, Item 11, Bend, Or./COIC, at 8. 263 App. A, Item 15, Phoenix PTD/Tempe, Ariz. § 3.2, at 2.

22 • A party is contributing a design at its cost or the use or maintenance of its facilities or equipment on a cost-reimbursement or other basis.264 • The parties’ obligations are contingent on state and/or FTA consent or funding.265 • A party under specified circumstances has the right to withhold funding.266 • A party is designated as the recipient of funds for a project or projects.267 • The requirement that the parties will cooperate to secure funding sources.268 • The procedures by which the parties are to make their monetary contributions.269 • If applicable, each participant is to pay its portion of the local share of the costs of a service or project, stating:270 • The estimated funding requirements are to be provided, for example, for a 12-month period.271 • The parties’ obligation to make annual capi- tal contributions.272 • A party’s agreement to provide enumerated services without payment and/or without any other con- tribution being required.273 • A party’s obligation to maintain facilities or equipment on a cost-reimbursement or other basis. • A party’s financial obligation to be conditioned on its funding being authorized.274 3. Revenue Agreements whose activities or functions are de- pendent on revenue may need to include one or more of the following provisions. • The separate entity or party primarily responsible for the management and disbursement of funds will: • Prepare an annual operating budget.275 264 App. A, Item 46, Greater Cleveland RTA/Shaker Heights ¶ 2, at 1 (Greater Cleveland RTA to provide at its cost a design of the rail signals for incorporation in the project). 265 App. A, Item 76, MetroLink/Moline, Ill. ¶ 8, at 3. 266 App. A, Item 28, LYNX/Orange County, Fla. § 5(A)(11), at 11. 267 App. A, Item 29, LYNX/Osceola County, Fla. ¶ 3, at 1. 268 Id. 269 App. A, Item 93, San Francisco MTA/Santa Clara Transp. Auth., et al. § 7(D), at 11. 270 App. A, Item 47, La Crosse Mun. Transit Utility/City of Cresent ¶ 1, at 1 (route deviation bus service). 271 App. A, Item 92, SANDAG/Caltrans ¶ 4.21, at 9 (also re- quiring an estimated quarterly funding requirement for all activities for a 12-month period). 272 App. A, Item 49, Metro-North/N.J. Transit Rail Opera- tions (N.J. Transit), art. 8.01, at 27 (operation of rail passenger service). 273 App. A, Item 46, Greater Cleveland RTA/Shaker Heights ¶ 2, at 1. 274 App. A, Item 41, El Paso County, Colo./Colorado Springs, Colo. et al., at 2; Item 48, Harris County MTA/TxDOT et al., at 11. • Determine necessary appropriations.276 • Determine whether, how, or the order in which projects will be funded.277 • Have the responsibility for invoicing and col- lecting payments when they become due.278 • Establish the method or formula for allocat- ing and financing any capital and operating costs.279 • Determine net revenue.280 • Determine any loss of revenue.281 In addition, an agreement may include clauses stat- ing: • The specification of the funding level required for providing transit services within an area covered by the agreement.282 • The determination of the source or sources of reve- nue or other financial support. • The time and manner of payment of any funds, as well as any repayment of funds on the termination of the agreement. • The establishment and collection of any applicable charges, rates, rents, fees, or other revenue relating to the agreement. • The identification of any required requisition form and supporting documentation to secure payment.283 • A limit on payments or contributions.284 • A requirement for payments to be made on a monthly, quarterly, or other basis.285 • A requirement for payment on an interim basis while awaiting the receipt of grant funds or other fund- ing.286 • Adjustment of payments for inflation.287 • The allocation of revenues from specific sources for capital improvements and maintenance.288 275 App. A, Item 48, Harris County MTA/TxDOT, et al., at 9. 276 App. A, Item 41, El Paso County, Colo./Colorado Springs, Colo. et al., at 2. 277 App. A, Item 41, El Paso County, Colo./Colorado Springs, Colo. et al., at 2. 278 App. A, Item 11, Bend, Or./COIC, at 7. 279 Regional Transportation District (RTA)/DUS Metropoli- tan District No. 1, et al. (setting forth the terms pursuant to which a certain levy on property will be used to fund RTD’s services); Item 63, RTA/CDOT (relating to financing, design- ing, building, operation, and the processes for the RTD Fas- Track’s I-225 light rail line and addressing the impacts and crossings of the corridor over portions of CDOT). 280 App. A, Item 26, LYNX/Orlando, Fla. § 8, at 8 (placement of transit shelters). 281 App. A, Item 49, Metro-North/N.J. Transit, art. 6.05, at 21. 282 App. A, Item 29, LYNX/Osceola County, Fla., at 1. 283 App. A, Item 12, Chicago/CTA § 5(a). 284 Id. at 1. 285 App. A, Item 11, Bend, Or./COIC, at 5. 286 Id. 287 Id.

23 • The allocation of transit sales tax revenues, fares, fees, and rents,289 including, for example: • The standardization of fees collected by a transit agency, a municipality, or other entity.290 • The control of fares such as between certain destinations or stations.291 • When applicable, whether nonresidents may be discriminated against in the setting of fees.292 4. Grants When grant funds are expected, agreements re- viewed for the digest included provisions, such as: • The identification of the party having responsibil- ity to apply for and accept federal or state aid or grants.293 • A party’s assignment of all or part of its federal or state transit grants or funding.294 • A designation of the recipient for federal fund- ing,295 including the designation of the entity responsi- ble for entering into a Full Funding Grant Agreement with the FTA.296 • A description of the responsibilities of a grant re- cipient.297 • The party responsible for administering federal funding and the state match.298 288 App. A, Item 39, Metra/Vill. of New Lenox ¶ 6, at 3 (e.g., parking receipts). 289 App. A, Item 8, CATS/Mecklenburg County, N.C. ¶ VIII, at 9. 290 App. A, Item 39, Metra/Vill. of New Lenox ¶ 2, at 2. 291 App. A, Item 49, Metro-North/N.J. Transit, art. 6.01, at 16; art. 6.02, at 18. 292 App. A, Item 39, Metra/Vill. of New Lenox ¶ 2, at 2 (e.g., a municipality’s setting of parking fees). 293 App. A, Item 70, RTA/CDOT (pursuant to a Master IGA, RTD as the Local Agency to provide funds to CDOT to con- struct segment Number 1 of a transportation corridor that is part of the FasTracks plan approved by voters). 294 App. A, Item 11, Bend, Or./COIC, at 18. See also Item 59, RTA/Special Transportation for Boulder County, Inc. (Special Transit) (relating to SAFETEA-LU funds and Special Transit’s waiver of its rights to receive federal grant funds pursuant to 49 U.S.C. § 5309 and its authorization of RTD to seek those funds for eligible RTD projects with RTD agreeing to provide funds to Special Transit). 295 App. A, Item 75, MetroLink/SMTD, at 2 (natural gas buses). 296 As advised by the FTA, the full funding grant agreement (FFGA) is the final step of the New Starts planning and project development process. FTA and sponsors of New Starts projects enter into this multi-year contractual agreement that formally establishes the maximum level of federal financial assistance and outlines the terms and conditions of federal participation. See App. A, Item 106, TriMet/Clackamas County Dev. Agency ¶ M, at 2. 297 App. A, Item 106, TriMet/Clackamas County Dev. Agency ¶ M, at 2. 298 App. A, Item 2, CDTA/Albany, N.Y., at 2; Item 75, MetroLink/SMTD, at 2; Item 11, Bend, Or./COIC, at 7. • The parties’ agreement to cooperate and be bound by and comply with applicable federal funding require- ments.299 • A stipulation that all or part of any grant funds will be transferred for the purpose of the agreement.300 • A requirement that preliminary engineering will be undertaken in conformity with FTA’s grant require- ments.301 • The parties’ obligation to renegotiate payment and related terms of the agreement if federal transit fund- ing changes by a certain percentage or if additional grant funding becomes available.302 • The reimbursement of FTA for any unallowable costs.303 • The status of the project if federal funding is not awarded.304 5. Expenses The agreements frequently provide for: • The parties’ responsibility to pay their proportion- ate or other share of expenses incurred by reason of the agreement.305 • The amount budgeted for a program or project and also:306 • The handling of disbursements, cost reports, and interim payments for expenses. • An authorization to shift dollars from one type of service to another to balance the amount of money paid under the agreement.307 • The effect of a party’s failure to make a re- quired payment (e.g., reimbursement of expenses). The agreements reviewed for the digest identify other expenses for which the participants are responsi- ble: • Various direct costs such as expenses for utilities, maintenance, snow removal, and the like.308 • Third-party expenses that the administering agency or the parties have agreed to pay.309 299 App. A, Item 15, Phoenix PTD/Tempe, Ariz. § 4, at 2. 300 App. A, Item 11, Bend, Or./COIC, at 6. 301 App. A, Item 106, Tri-Met/Clackamas County Dev. Agency, art. 3.4, at 9. 302 App. A, Item 11, Bend, Or./COIC, at 5. 303 App. A, Item 88, SANDAG/North San Diego County Transit Dev. Bd. et al., art. II § 7(3), at 3 (management of FTA grants). 304 App. A, Item 7, CATS/Charlotte, N.C. ¶ 2, at 3. 305 App. A, Item 11, Bend, Or./COIC, at 10. 306 App. A, Item 8, CATS/Mecklenburg County, N.C. ¶ VII, at 6. 307 App. A, Item 13, LYNX/Osceola County, Fla. ¶ 2.0, at 2– 3. 308 App. A, Item 11, Bend, Or./COIC, at 2 and 6; Item 10, Avondale, Ariz./Tolleson, Ariz.; Item 79, MetroLink/Moline, Ill. ¶ 7, at 3. 309 App. A, Item 11, Bend, Or./COIC, at 7.

24 • Staff and other operating expenses.310 • Costs for the state or a local government’s services related to the project.311 • Costs for services provided pursuant to the agree- ment such as the hourly rate for bus service.312 6. Payments The agreements address how and when payments are to be made, for example: • The details regarding invoicing and payment ar- rangements.313 • A specified method of payment.314 • The use of reimbursement rates for an initial term and thereafter based on actual costs of service.315 • A requirement for the prefinancing of central staff operations prior to reimbursement.316 • Any dollar amount over or under budget to be dis- tributed annually based on a cost-per-hour formula.317 7. Accounts, Audits, and Reports IGAs and MOUs may state, for example: • The manner in which strict accountability of all funds will be assured, including a periodic audit of any accounts associated with or required by the agree- ment.318 • The entity or party responsible for arranging an audit. • The parties’ responsibility to pay for the cost of any accounting and audits. • The establishment and maintenance of a separate set of accounts for each project.319 • The documenting of project costs320 or in-kind ex- penditures.321 310 App. A, Item 4, CDTA/Capital Dist. Transp. Comm. ¶ 2, at 3. 311 App. A, Item 91, SANDAG/North San Diego County Transit Dev. Bd. et al. ¶ 7, at 8 (e.g., processing plans, code review inspection). 312 App. A, Item 52, Omnitrans/Southern California Re- gional Rail Auth., art. 2, at 2 (bus bridge service during service disruptions); Item 14, Star Tran/U. of Nebraska ¶ VI, at 2. 313 App. A, Item 14, StarTran/U. of Nebraska ¶ III, at 1. 314 App. A, Item 32, LYNX/Volusia County ¶ 8, at 3 (e.g., in- volving allocation of fare revenue). 315 Id. ¶ 3, at 2–3 (commuter bus service). 316 App. A, Item 4, CDTA/Capital Dist. Transp. Comm. ¶ 2, at 3. 317 App. A, Item 47, La Crosse Mun. Transit Utility/City of Cresent ¶ 4, at 1. 318 App. A, Item 11, Bend, Or./COIC, at 7. 319 App. A, Item 88, SANDAG/North San Diego County Transit Dev. Bd. et al., art. II, § 7(a), at 2. 320 App. A, Item 27, LYNX/Orlando Urban Area Metropoli- tan Planning Organization (Orlando Urban MPO) ¶ 5, at 6–7 (transit authority providing professional services). 321 App. A, Item 2, CDTA/Albany, N.Y., at 2. • The responsibility of an entity or a party to retain records for audit and inspection.322 • The documentation required for all income and costs for a program, project, or service.323 • The manner in which reports of all receipts and disbursements are to be prepared and presented to each party to the agreement. • The right to inspect the books and records on rea- sonable prior notice.324 • A requirement for separate accountings, for exam- ple, of advertising or other revenue.325 • A requirement for a written report.326 • A requirement that technical reports, studies, and calculations be submitted.327 H. Participants’ Responsibilities 1. Operational Decisions The operational decisions necessitated by an agree- ment may include: • The maintenance of stations and system service.328 • The installation of park-and-ride signs on a state right-of-way.329 • The authorization of encroachment permits.330 • Other provisions appearing in IGAs and MOUs are: • The determination of fees, rates, service ar- eas, levels of service, and routes and route schedules.331 • The responsibility for transit facilities includ- ing those in rights-of-way.332 • The responsibility for projects that are within a city’s right-of-way or that are owned, operated, and maintained by a city or other governmental entity.333 • The payment of fees and expenses for per- mits, right-of-way and encroachment permits, and util- ity relocations.334 322 App. A, Item 27, LYNX/Orlando Urban MPO ¶ 3(A), at 1. 323 App. A, Item 88, SANDAG/North San Diego County Transit Dev. Bd. et al., art. II, § 7(c), at 3. 324 App. A, Item 48, Harris County MTA/TxDOT, et al., at 10. 325 App. A, Item 26, LYNX/Orlando, Fla. § 8, at 8. 326 App. A, Item 29, LYNX/Osceola County, Fla. ¶ 2.02, at 3 (e.g., quarterly reporting). 327 App. A, Item 91, SANDAG/North San Diego County Transit Dev. Bd. et al. ¶ 5.2, at 5. 328 App. A, Item 50, Omnitrans/Loma Linda, Cal. ¶ 4.3, at 5–6. 329 App. A, Item 54, Omnitrans/Caltrans § 1(1), at 2 (main- tenance of transcenter). 330 Id. § 1(7), at 3 (e.g., to install and maintain call boxes and ticket vending machines). 331 App. A, Item 11, Bend, Or./COIC, at 10. 332 Id. at 11. 333 App. A, Item 91, SANDAG/North San Diego County Transit Dev. Bd. et al. ¶ 3, at 3.

25 • The responsibility for project review, traffic coordination and control, and handling of hazardous materials.335 • Equipment use, landscaping and irrigation, right-of-way, street lighting, traffic control signals, transit signal priority, signage, and station location.336 • Periodic meetings of the parties to review op- erations.337 2. Coordination Some of the agreements reviewed required the par- ties to coordinate and communicate in the development and review of a program or project, thus including pro- visions regarding:338 • A description of the coordination process.339 • The provision of technical assistance, data, consul- tation, and reviews and comments.340 • The authorization to use one party’s structures for another party’s operations.341 • The parties’ obligation to cooperate: • To maximize funding and the reduction of costs.342 • To obtain waivers in some instances of cer- tain permits or other approvals.343 • To provide construction bid plans and docu- ments on a timely basis.344 • To agree on the location, installation, and maintenance of all jointly-used bus stops and on the establishment of bus stops in another party’s jurisdic- tion or service area.345 • The reservation of a party’s right: • To approve or disapprove of the location of a facility.346 • To require removal or relocation of a facil- ity.347 334 App. A, Item 50, Omnitrans/Loma Linda, Cal. ¶ 5.1, at 6. 335 Id. ¶ 5.2, at 6–7. 336 Id. ¶ 5.3, at 8–9. 337 App. A, Item 49, Metro-North/N.J. Transit, art. 3.04(f), at 8 (quarterly meetings). 338 App. A, Item 7, CATS/Charlotte, N.C., at 2. 339 App. A, Item 56, Omnitrans/Southern California Asso- ciation of Governments (SCAG) (Cal.) et al. § 1.4, at 3 (regional transportation plan). 340 App. A, Item 2, CDTA/Albany, N.Y., at 2. 341 App. A, Item 97, San Francisco MTA/BART ¶ 4, at 5 (free transfer tickets). 342 App. A, Item 92, SANDAG/Caltrans ¶ 4.2, at 7. 343 App. A, Item 91, SANDAG/North San Diego County Transit Dev. Bd. et al. ¶ 2.1, at 2 (e.g., bond estimates, building permits, construction permits). 344 Id. ¶ 6.1, at 6. 345 App. A, Item 51, Omnitrans/Riverside Transit Agency, art. 2, at 2 (coordination of route planning, scheduling, stops, transfers, and fares); Item 66, RTA/Boulder County, Colo. (in- stallation of improvements to bus stops). 346 App. A, Item 26, LYNX/Orlando, Fla. § 9, at 9 (e.g., a transit shelter). • To enter the right-of-way as necessary to use and maintain a structure.348 • To give its prior approval for other actions.349 • A limitation on the use or content of advertising.350 • The parties’ joint development of a marketing pro- gram.351 • The parties’ cooperation by entering into further agreements as needed.352 3. Service Commitments and Standards Besides designating representatives to meet periodi- cally for the purpose of evaluating the adequacy of ser- vice,353 the IGAs and MOUs may: • Proscribe any material revisions to minimum lev- els of service in the absence of an amendment to an agreement.354 • Describe the circumstances under which a transit authority is not in default for failing to maintain mini- mum levels of prescribed services.355 • Designate performance standards including vehicle and facility standards356 or require adherence to service standards attached to the agreement.357 • Provide for the preparation and amendment of service specifications.358 4. Provisions Applicable to Third Parties Agreements also may include provisions that are ap- plicable to a third party, such as: • A vendor must consent to the assignment of a con- tract with one of the parties to an IGA or MOU.359 • Any agreement with a third-party developer must include certain provisions as specified in an IGA or MOU.360 347 Id. § 9.1, at 9. 348 App. A, Item 38, Metra/Vill. of Downers Grove, art. II, at 2–3. 349 App. A, Item 39, Metra/Vill. of New Lenox ¶ 8, at 3. 350 App. A, Item 28, LYNX/Orange County, Fla. § 5(A)(7); Item 26, LYNX/Orlando, Fla. § 10, at 10 (relating to transit shelters). 351 App. A, Item 32, LYNX/Volusia County, Fla. ¶ 13, at 14 (commuter bus service). 352 App. A, Item 30, LYNX/Altamonte Springs, Fla. ¶ 3, at 3 (other agreements needed to deploy FlexBus on-demand de- mand-responsive transit service). 353 App. A, Item 23, LYNX/Seminole County, Fla. § 2.01(c), at 3. 354 Id. 355 Id. § 2.01(e), at 3 (e.g., terrorism or unusually severe weather). 356 App. A, Item 32, LYNX/Volusia County ¶ 15, at 4–8. 357 App. A, Item 49, Metro-North/N.J. Transit, art. 3.04(b), at 8. 358 App. A, Item 10, Avondale, Ariz./Tolleson, Ariz., at 2. 359 App. A, Item 6, CATS/Hampton Roads Transit, et al. (op- tions to purchase light rail vehicles).

26 • Access arrangements with other transit companies may be required.361 5. Consultants Agreements regarding consulting services included provisions for: • The responsibility for selecting and contracting with a consultant.362 • The parties’ prior agreement to use consultants, subconsultants, or others.363 • A statement of the scope of the work and the con- sultant’s responsibilities, as well as other details re- garding a consultancy contract.364 • The consultant’s compensation, as well as a state- ment of itemized deliverable costs, ongoing deliverable costs, and indirect cost rate.365 • On termination other than for cause of the con- sultant’s contract, the consultant’s unpaid costs to the date of termination as the consultant’s sole remedy.366 • A covenant that no fees were paid to anyone for the purpose of obtaining the consulting agreement.367 • A provision for a recovery schedule in the event of missed deadlines.368 • A revolving door prohibition.369 6. Procurement The agreements furnished by the responding transit agencies contained clauses regarding: • The responsibility for adhering to federal procure- ment guidelines.370 • The compliance by each party with all applicable procurement rules.371 • The parties’ cooperation in providing to another party warehousing, equipment, and other services to improve the efficiency of each party’s procurement.372 • A nondiscrimination clause to be included in any agreement for a procurement covered by an IGA or MOU.373 360 App. A, Item 7, CATS/Charlotte, N.C. ¶ 4, at 4; Item 42, Greater Cleveland RTA/Cuyahoga County, OH ¶ 4, at 2 (con- tractor is to be required to construct county’s communication lines in accordance with the transit agency’s contract). 361 App. A, Item 49, Metro-North/N.J. Transit, art. 3.01, at 6. 362 App. A, Item 19, LYNX/Orlando, Fla. ¶ 4, at 6 (relating to the Downtown Orlando Transp. Plan). 363 App. A, Item 40, Metra/Western Ill. U. ¶ 3(E), at 6. 364 App. A, Item 17, Sandy Springs, Colo./Oregon DOT, at 7. 365 App. A, Item 40, Metra/Western Ill. U. ¶ 2, at 5. 366 Id. ¶ 5(A), at 7. 367 App. A, Item 40, Metra/Western Ill. U. ¶ 7(A), at 8. 368 Id. ¶ I(B)(4), at 4. 369 Id. ¶ 8(E), at 11. 370 App. A, Item 2, CDTA/Albany, N.Y., at 2. 371 App. A, Item 15, Phoenix PTD/Tempe, Ariz. ¶ 7, at 2. 372 Id. ¶ 8, at 2. I. Transportation Planning Agreements relating in whole or in part to transpor- tation planning that had some of the following clauses were reviewed: • The identity of the party with the overall responsi- bility for comprehensive regional planning.374 • Each agency’s responsibility for fulfilling state and federal transportation and land-use planning obliga- tions and policies relating to transit.375 • The designation of the lead agency and its respon- sibility for the development of a regional transportation plan. • The role of the participating agencies. • A description of the planning process, for example, for the development of a regional transit or land-use plan.376 • The parties’ intent that planning will extend be- yond the role of a traditional MPO.377 • A requirement that short-term and long-term safety education, enforcement, and engineering con- cerns would be considered.378 • The engagement of consulting engineering services to evaluate the feasibility of a project.379 • A designation of an official project lead for any analysis of alternatives, as well as:380 • The scope of an alternatives analysis study.381 • The budget for a study.382 • The engagement of a “qualified private sup- plier” to perform the services necessary to complete the study.383 • The creation of a technical working group whose responsibilities include: • A study of various options for the alignment of a project.384 373 Id. ¶ 10, at 3. 374 App. A, Item 56, Omnitrans/SCAG et al. § 1.1, at 2. See also Item 74, RTA/City and County of Denver (providing for cooperation between RTD and the city regarding that portion of the East Corridor that will be located on aviation property, the East Corridor being a commuter rail transit line connecting Denver Union Station and Denver International Airport). 375 App. A, Item 11, Bend, Or./COIC, at 11. 376 App. A, Item 8, CATS/Mecklenburg County, N.C. ¶ I, at 1. 377 App. A, Item 5, CDTA/Capital Dist. Transp. Comm., at 2 (compliance regarding metropolitan transportation planning and programming). 378 App. A, Item 34, Metra/IDOT, at 1 (e.g., regarding sta- tions and crossings along a rail corridor). 379 Id. ¶ II, at 2. 380 App. A, Item 29, LYNX/Osceola County, Fla. ¶ 2, at 1. 381 App. A, Item 19, LYNX/Orlando, Fla. ¶ 3, at 5. 382 Id. ¶ 7, at 7. 383 Id., at 3. 384 App. A, Item 109, Utah Transit Auth./Salt Lake City Corp., art. 6.3.1, at 14 (design and construction of downtown to airport LRT project).

27 • The consideration of integration alterna- tives.385 • An evaluation of the advantages, disadvan- tages, and costs associated with proposed alterna- tives.386 • The submission to a policy committee of a re- port on any findings.387 • The creation of and consultation with a citizen transit advisory group.388 • The participation of various stakeholders in the planning process.389 • The parties’ adherence to planning and investment principles.390 • The state DOT’s contributions to the planning process, including information, coordination, estimates, and allocation of funding.391 J. Designing Transit Facilities and Improvements 1. Party Responsibilities One agreement annexed to the digest is a master agreement for collaboration on project development of several types of transportation improvements.392 Other agreements furnished by transit agencies contain spe- cific provisions applicable to the design of transit facili- ties and improvements. The agreements contain provi- sions, for example, that require: • The identification of the party responsible for plans and specifications, environmental conditions, pub- lic safety, and supervision of a project.393 • A statement of the interests and objectives of each party and the establishment of minimum project re- quirements.394 • The achievement of critical path milestones.395 • A requirement that arrangements be made with persons owning facilities that are or would be affected by a project.396 • A commitment to design and construct a project so as to prevent or minimize any disruption of service.397 385 Id., art. 8.2, at 22. 386 Id. 387 Id. 388 App. A, Item 8, CATS/Mecklenburg County, N.C. ¶ V, at 4. 389 App. A, Item 5, CDTA/Capital Dist. Transp. Comm., at 2. 390 Id. 391 Id. at 4. 392 App. A, Item 92, SANDAG/Caltrans ¶ 1.2, at 1 (e.g., transit and multimodal facilities). 393 App. A, Item 12, Chicago/CTA §§ 7 and (3)(b). 394 App. A, Item 109, Utah Transit Auth./Salt Lake City Corp., art. 2.3.1, at 10. 395 Id., art. 2.3.4, at 11 (e.g., obtaining any necessary federal approvals). 396 App. A, Item 38, Metra/Vill. of Downers Grove, art. III(5), at 3. • The identification of deliverable elements.398 • The parties’ commitment to negotiate in good faith other agreements needed to design, construct, and maintain a project.399 • A stipulation that the parties are to approve the choice of the contractor for the update of final design documents.400 • A stipulation to undertake public outreach, com- munication, and coordination.401 • A provision for a project management group, its membership, and responsibilities.402 • The creation and description of the duties of pro- ject integration and project execution teams.403 2. Preliminary Engineering and Design Clauses in IGAs and MOUs also address: • A preliminary engineering budget with assigned contributions for the participants.404 • The administration of funds for a project’s plan or design phase.405 • The mutual development and adoption of design standards.406 • The specification of design standards or require- ments.407 • The coordination of design review procedures.408 • A requirement for documenting deviations from design standards in a manner approved, for example, by the city engineer.409 397 App. A, Item 46, Greater Cleveland RTA/Shaker Heights ¶ 8, at 3. 398 App. A, Item 7, CATS/Charlotte, N.C. ¶ 1, at 2 (e.g., sur- veys, environmental impact statements, feasibility studies, final designs, grant documents). 399 App. A, Item 106, Tri-Met/Clackamas County Dev. Agency, art. VIII, at 21–22. 400 App. A, Item 30, LYNX/Altamonte Springs, Fla. ¶ 1(b)(iii), at 3 (FlexBus transit system). 401 App. A, Item 109, Utah Transit Auth./Salt Lake City Corp., art. 19.1, at 44. 402 App. A, Item 106, Tri-Met/Clackamas County Dev. Agency, art. 2.1, at 4. 403 App. A, Item 109, Utah Transit Auth./Salt Lake City Corp., art. 22, at 49–51. 404 App. A, Item 106, Tri-Met/Clackamas County Dev. Agency, art. III, at 7. See also Item 57, RTA/CDOT (addressing the environmental study preliminary engineering phase of the I-225 corridor project, pursuant to a Master IGA dated Apr. 12, 2004, and RTD’s Environmental Evaluation for the project). 405 App. A, Item 106, Tri-Met/Clackamas County Dev. Agency, art. VI, at 12–16. 406 App. A, Item 45, Greater Cleveland RTA/Cleveland, Ohio, art. 2.1, at 6 (city-provided preliminary engineering). 407 App. A, Item 24, LYNX/Winter Park ¶ 10, at 6 (e.g., shel- ters). 408 App. A, Item 45, Greater Cleveland RTA/Cleveland, Ohio, art. 2.2, at 6. 409 App. A, Item 91, SANDAG/North San Diego County Transit Dev. Bd. et al. ¶ 3.2, at 3.

28 • The submittal and approval requirements at the end of the conceptual and preliminary design phases of the preliminary engineering.410 • The planning, designing, and funding of a system to provide general public access.411 • The identification of critical features of transit- oriented development.412 • The maintaining of vertical and horizontal clear- ances.413 • The identification of matters to address in the final product.414 3. Budget for the Project Many of the transit agencies’ IGAs and MOUs in- clude clauses concerning the funding for approved ele- ments of a plan or design, such as:415 • An allocation of the cost of planning, designing, constructing, and operating a program, project, or ser- vice.416 • The responsibility for the design and implementa- tion, for example, of communication infrastructure, net- work interface, and software.417 • A method of handling project cost underruns and overruns.418 • A periodic review by the representatives of the budget for the project.419 • The designation of an entity or party with respon- sibility for ensuring that transit capital as well as oper- ating needs are considered.420 K. Construction and Maintenance The agreements reviewed contain a variety of com- mitments relating to the construction and maintenance of transit properties or improvements.421 410 App. A, Item 45, Greater Cleveland RTA/Cleveland, Ohio, art. 2.3, at 7. 411 App. A, Item 33, LYNX/Polk County ¶¶ 1 and 3, at 1–2 (e.g., to paratransit services in and near rural areas). 412 App. A, Item 2, CDTA/Albany, N.Y., at 2 (e.g., pedestrian priority, mixed uses, and limited parking). 413 App. A, Item 38, Metra/Vill. of Downers Grove, art. III(3), at 3. 414 App. A, Item 2, CDTA/Albany, N.Y., at 3. 415 App. A, Item 53, Omnitrans/Chaffey Community College Dist. § 1, at 4. 416 App. A, Item 15, Phoenix PTD/Tempe, Ariz. § 3, at 1. 417 App. A, Item 13, Chicago OEMC/CTA ¶ 3. See also Item 58, RTA/Arapahoe County (Joint occupancy of the county ad- ministration building for the use of RTA’s radio communica- tions equipment); Item 60, RTA/State of Colorado, Governor’s Office of Information Technology (setting a framework for al- lowing RTD to share access to state-owned communication sites). 418 App. A, Item 106, Tri-Met/Clackamas County Dev. Agency, arts. 7.2 and 7.3, at 17–18. 419 Id., art. 5.13, at 11. 420 App. A, Item 56, Omnitrans/SCAG et al. § 1.2, at 2. 1. Construction Among the agreements’ provisions are requirements for: • The submission of a site plan and contractor draw- ings for a locality’s prior approval.422 • The submission of construction drawings, for ex- ample, to the city for review and comment.423 • The preparation of a traffic and access plan, traffic control plan, and construction staging plan.424 • The installation of additional signage to increase passenger awareness.425 • The timely application for permits.426 • The obligation to comply with the requirements of any land development laws.427 • A clause designating ownership of the work on its completion.428 • The need for prior approval to install and maintain additional equipment or appurtenances.429 • Any provisions that are required to be included in a contract with a contractor performing any of the work.430 • The providing by contractors of performance and payment bonds.431 • A requirement that contractors and subcontractors must permit inspections by the FTA and state DOT.432 • Provisions that must be included in subcon- tracts.433 • The certifications needed to demonstrate that sums owed to subcontractors and suppliers were paid from a previous progress payment made to a contrac- tor.434 421 See App. A, Item 64, RTA/CDOT (allowing the perpetual use, operation, maintenance, and future modifications of the CDOT transportation facilities to allow for the construction, use, and maintenance of certain RTD-owned facilities jointly in, on, over, and under the property subject to the agreement); Item 67, RTA/CDOT (setting forth rights, duties, and obliga- tions of the parties arising out of the ownership, operation, and maintenance of the T-Rex Project involving I-25 and I-225). 422 App. A, Item 26, LYNX/Orlando, Fla. § 9.4, at 9. 423 App. A, Item 91, SANDAG/North San Diego County Transit Dev. Bd. et al. ¶¶ 5, at 4. 424 App. A, Item 109, Utah Transit Auth./Salt Lake City Corp., art. 18.1, at 43. 425 App. A, Item 34, Metra/IDOT ¶ I, at 2. 426 App. A, Item 28, LYNX/Orange County § 5(A)(4), at 9. 427 Id. 428 App. A, Item 54, Omnitrans/Caltrans § V(4), at 6. 429 App. A, Item 97, San Francisco MTA/BART ¶ 3, at 5. 430 App. A, Item 38, Metra/Vill. of Downers Grove, art. III(12), at 4–5; art. III(14), at 5 (e.g., fiber optic and cable lines). 431 App. A, Item 53, Omnitrans/Chaffey Community College Dist. § II(2), at 6 (e.g., for 100 percent of the contract price). 432 App. A, Item 27, LYNX/Orlando Urban MPO ¶ 3(A), at 1 (e.g., work, materials, payroll, and other relevant records). 433 Id. ¶ 3(F), at 6. 434 App. A, Item 27, LYNX/Orlando Urban MPO ¶ 6(A), at 7.

29 • The preservation of the parties’ rights to any copy- rights, patents, or other intellectual property.435 • The right to inspect a project.436 • The reimbursement of other parties or third par- ties for emergency work necessitated by the conduct of a party’s contractor.437 2. Maintenance As for maintenance commitments and requirements, the IGAs and MOUs referred to a transit agency’s obli- gation to arrange for: • The maintenance of right-of-way, equipment, tran- sit stations, and other facilities.438 • The maintenance of traffic control devices, street lighting, shelters and seating, and restrooms.439 • The applicability of maintenance standards440 and a requirement of inspections.441 • An agreement to relocate a facility when necessary for county or state construction, repairs, or mainte- nance.442 • The responsibility for parking facility management and maintenance.443 L. Real Property Issues Real property issues are often a part of transit agency IGAs and MOUs with provisions regarding: • The parties’ acquisition of property, including the use of eminent domain.444 • The acquisition of property for joint develop- ment.445 • The acquisition of surface, subsurface, and air rights.446 • Other acquisition-related activity, including ap- praisals, purchase negotiations, escrows, and eminent domain actions.447 435 App. A, Item 13, Chicago OEMC/CTA ¶ 2(b). 436 Id. § 7. 437 App. A, Item 38, Metra/Vill. of Downers Grove, art. II(4), at 2. 438 App. A, Item 22, LYNX/Winter Park Town Center § 4, at 3 (placement of transit station); Item 49, Metro-North/N.J. Transit, art. 4.01, at 12; Item 24, LYNX/Winter Park ¶ 11, at 7. 439 App. A, Item 54, Omnitrans/Caltrans §§ III and II, at 3–4. 440 App. A, Item 26, LYNX/Orlando, Fla. § 12, at 3. 441 Id. § 13, at 15. 442 App. A, Item 28, LYNX/Orange County, Fla. § 5(A)(10), at 10. 443 App. A, Item 39, Metra/Vill. of New Lenox ¶¶ 4, at 2. See also Item 69, RTA/Longmont, Colo. (improvements to a parking facility and construction of additional parking). 444 App. A, Item 15, Phoenix PTD/Tempe, Ariz. § 5, at 2. 445 App. A, Item 78, MetroLink/Moline, Ill. ¶ 5, at 3 (com- munity transportation center). 446 App. A, Item 76, MetroLink/Moline, Ill. ¶ 1, at 2; Item 78, MetroLink/Moline, Ill. ¶ 1, at 2. • The responsibility for planning, zoning, and per- mits.448 • The development of adjacent properties.449 • The exchange and development of state proper- ties.450 • The granting of easements for the establishment of a transit station451 or the granting of rights of access to rail properties.452 • The granting of licenses.453 • The granting of subleasing rights.454 • The retention of access rights.455 • The responsibility for paying certain administra- tive costs associated with maintenance activities.456 • The allocation of any tax increment if any real property is returned to the tax roles.457 M. Compliance with Federal and State Laws 1. Environmental Compliance Numerous agreements include requirements for en- vironmental compliance, such as: • A statement of the applicable laws and the envi- ronmental responsibilities of the parties.458 • A designation of the individuals who are to admin- ister an agreement for environmental compliance.459 • A requirement that both proven and innovative techniques to enhance environmental protection are to be incorporated into a project.460 • The need to review and provide guidance of work involving hazardous materials or investigations of the same.461 447 App. A, Item 7, CATS/Charlotte, N.C. ¶ 3, at 3; Item 55, Omnitrans/San Bernadino Associated Governments ¶ 4.02, at 2 (regional commuter transit center). 448 App. A, Item 55, Omnitrans/San Bernadino Associated Governments ¶¶ 4.03, at 3. 449 App. A, Item 76, MetroLink/Moline, Ill. ¶ 7, at 3. 450 App. A, Item 55, Omnitrans/San Bernadino Associated Governments ¶¶ 4.05 and 4.06, at 3. 451 App. A, Item 22, LYNX/Winter Park Town Center § 1, at 2. 452 App. A, Item 49, Metro-North/N.J. Transit, art. 3.02, at 7. 453 App. A, Item 28, LYNX/Orange County § 5(A)(1), at 8 (e.g., to install certain customer amenities at transit stops on right-of-way, subject to further required approvals). 454 App. A, Item 78, MetroLink/Moline, Ill. ¶ 7, at 3. 455 Id. ¶ 11, at 9. 456 App. A, Item 55, Omnitrans/San Bernadino Associated Governments ¶ 4.02, at 2. 457 Id. ¶ 8.02, at 5. 458 App. A, Item 92, SANDAG/Caltrans ¶ 10, at 17–19. 459 App. A, Item 14, StarTran/U. of Nebraska ¶ I, at 1. 460 App. A, Item 109, Utah Transit Auth./Salt Lake City Corp., art. 11.2, at 27. 461 App. A, Item 105, Tri-Met/Oregon ¶ 2(a), at 2 (compli- ance with environmental standards).

30 • A requirement that contractors prepare a Hazard- ous and Contaminated Substance Health and Safety Plan or the equivalent in the applicable jurisdiction.462 • A mandate that a transit authority perform certain prescribed actions when dictated by site conditions.463 • A statement of the approvals required by state or local environmental offices.464 • An authorization to enter sites to observe a transit authority’s or contractor’s work and to conduct tests.465 • The requirements to sample and progressively monitor a project for quality assurance.466 • The obligation to reimburse a state or locality for costs incurred in connection with environmental com- pliance for a project.467 2. Compliance with Civil Rights and Disadvantaged Business Enterprise Laws The agreements often contain broad provisions to as- sure compliance with federal and state laws against discrimination and to promote disadvantaged business enterprises (DBE).468 Clauses include: • A statement of the applicable civil rights laws and the requirement to comply with them.469 • A requirement to comply with DBE laws, goals, or commitments.470 • A requirement that a contract with any contractor include provisions affirming that the contractor will comply with federal DOT regulations relating to non- discrimination in federally assisted programs.471 N. Transit Pass Programs Transit agencies have established a variety of transit pass programs. The agreements may include provisions such as: • Establishing eligibility criteria for participation in an unlimited access, transit pass program.472 462 Id. ¶ 2(b), at 3. 463 Id. ¶ 2(c), at 3 (underground storage tank and cleanup). 464 Id. ¶ 2(d), at 4. 465 Id. ¶ 4, at 4–5. 466 Id. ¶¶ 5, 6, and 7, at 5–6. 467 Id. ¶ 9, at 6. • Designating a state or other office to determine eligibility of participants.473 • Advertising and promoting an access program.474 • Monitoring an incentive program to prevent fraud and abuse.475 • Designating ridership services starting with a base-year count.476 • Paying on a per-rider basis after a card-validation system is activated.477 • Enabling the use of transit cards on other transit providers.478 • Providing for reimbursement, including the rate of reimbursement, required data, and maximum amount of reimbursement.479 • Providing for general public transportation fund- ing.480 • Including a link on a university Web site for cus- tomer information and routing.481 The IGAs and MOUs also may include provisions such as for: • Complying with state laws on security.482 • Creating a software package to permit issuance of passes.483 • Requiring that reports (e.g., quarterly) be pro- vided.484 • Including a party’s logo on transit cards.485 • Assigning responsibility for: • Printing or procurement of passes. • Distribution of passes, their specifications, and quality control. • Acquisition and maintenance of necessary equipment for a transit pass program.486 • Providing a toll-free telephone number.487 • Creating and maintaining a database for the program.488 473 App. A, Item 1, CDTA/SUNY, at 2. 474 Id. at 1. 475 Id. at 2. 476 App. A, Item 3, CDTA/SUNY ¶ 3, at 1 (provide ridership services as needed beginning with a base year count of riders). 477 Id. ¶ 4, at 2. 478 App. A, Item 37, Metra/CTA, et al. ¶ 5, at 3 (providing of transit services to Rail-Volution participants). 468 App. A, Item 14, StarTran/U. of Nebraska ¶ VIII, at 3; Item 40, Metra/Western Ill. U. ¶ 8, at 9–11. 479 App. A, Item 94, San Francisco MTA/BART § 2, at 3 (in- ter-operator monthly pass). 469 App. A, Item 12, Chicago/CTA § 9 (e.g., Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d; 49 U.S.C. § 5332 (prohibiting discrimination on the basis of race, color, creed, national origin, sex, or age and prohibiting discrimination in employment or business opportunity); and 49 C.F.R. Pt. 21, at 21.7). 480 App. A, Item 28, LYNX/Orange County, Fla. § 3(B), at 5. 481 App. A, Item 3, CDTA/SUNY ¶ 5, at 2. 482 Id. ¶ 15, at 3. 483 App. A, Item 28, LYNX/Orange County, Fla. § 3(B), at 6. 470 Id. § 9. 484 Id. at 6–7. 471 App. A, Item 27, LYNX/Orlando Urban MPO ¶ 3, at 2–4. 485 App. A, Item 37, Metra/CTA, et al. ¶ 2, at 1. 472 App. A, Item 1, CDTA/SUNY, at 1 (unlimited access transit passes). See also 486 App. A, Item 94, San Francisco MTA/BART § 3, at 4 (FastPass®). Item 73, RTA/Denver Public Schools (To provide District students who are eligible for the free or reduced price lunch program with transit passes at a 2 percent discount). 487 App. A, Item 31, LYNX/FDOT (FlexBus transit system). 488 Id.

31 • Directing that monetary damages will be sought for a contractor’s, subcontractor’s, or consultant’s sub- mission of false claims.489 O. Technology Some agreements refer to technology, stating, for in- stance, that the participants will: • Commit to develop and implement programs and project management tools for transportation improve- ments.490 • Provide a server to enable the use of a service or equipment.491 • Require prior review and approval of any content to be downloaded to a transit agency’s server.492 • Acquire compatible technology to facilitate the in- tent of the agreement.493 P. Claims, Insurance, Indemnity, and Immunity 1. Claims In regard to claims, an agreement may provide for: • The identification of the party responsible for re- sponding to any claims arising out of the agreement. • The obligation of the parties to contribute to the cost of responding to and paying claims. 2. Insurance As for insurance, agreements include clauses that: • Identify the party having responsibility for secur- ing insurance. • Specify the coverage and limits.494 • Require a party to provide proof of insurance.495 • Require that facilities not be used for a purpose that would affect or invalidate an insurance policy.496 • Obligate a party to disclose that it is self-insured in whole or in part.497 • Specify that self-insurance will not be limited by an indemnification clause or by any judicial limitation on an indemnity provided for by an agreement.498 • Require that property on the premises also be in- sured.499 3. Indemnity Numerous agreements reviewed for the digest in- clude an indemnification clause and require parties:500 • To reimburse for claims or expenses, including fines imposed by any state or local agency.501 • To require that related contracts have indemnifica- tion clauses.502 4. Immunity Some agreements include a clause stating that a governmental unit or agency has not waived its immu- nity by entering into the agreement.503 Q. Termination and Distribution of Property Many agreements that were reviewed include a ter- mination provision, but the clauses vary considerably. Termination provisions may include: • The method by which a party to an agreement may cancel or terminate its participation.504 • The termination of an agreement for cause or for convenience.505 • The termination of an agreement without cause on 120 days prior notice.506 • The automatic renewal of an agreement for succes- sive terms if no prior notice of termination has been given.507 • A defaulting or breaching party’s 30-day right to cure a default or breach.508 • A right of withdrawal from an agreement as pro- vided in a party’s by-laws.509 497 App. A, Item 12, Chicago/CTA § 8 (party’s certification by letter of self-insurance). 489 App. A, Item 94, San Francisco MTA/BART § 7(I), at 10– 11. 498 Id. 499 App. A, Item 79, MetroLink/Moline, Ill. ¶ 3, at 2. 490 App. A, Item 92, SANDAG/Caltrans ¶¶ 5.14.1.1 and 5.14.12.1, at 13. 500 App. A, Item 10, Avondale, Ariz./Tolleson, Ariz., at 2. See also Item 11, Bend, Or./COIC, at 11; Item 12, Chicago/CTA § 10. 491 App. A, Item 43, Greater Cleveland RTA/Cleveland St. U. ¶ 2(A), at 2 (touch-screen kiosks). 501 App. A, Item 53, Omnitrans/Chaffey Community College Dist 492 Id. ¶ 2(B), at 2 (e.g., to serve as the host site for touch- screen kiosks). . § I(8), at 5. 502 App. A, Item 28, LYNX/Orange County, Fla. § 8, at 13. 493 App. A, Item 33, LYNX/Polk County ¶ 3, at 2 (FTA funded demonstration project). 503 App. A, Item 48, Harris County MTA/TxDOT et al., at 20. 494 App. A, Item 11, Bend, Or./COIC, at 10; Item 12, Chi- cago/CTA § 8; 504 Id., at 21; Item 17, Sandy Springs, Colo./Oregon DOT, at 8. Item 53, Omnitrans/Chaffey Community College Dist. § 18, at 8–10 (stating that required insurance coverage includes commercial general liability insurance, business and automobile liability insurance, public and property damage liability insurance, workers’ compensation insurance, and er- rors and omissions and professional liability insurance). 505 App. A, Item 19, LYNX/Orlando, Fla. ¶ 29.1 and 2, at 13. 506 App. A, Item 32, LYNX/Volusia County, Fla. ¶ 20, at 8. 507 App. A, Item 49, Metro-North/N.J. Transit, art. 2.02, at 4. 495 App. A, Item 79, MetroLink/Moline, Ill. ¶ 4, at 3. 508 App. A, Item 23, LYNX/Seminole County, Fla. § 16(i), at 14. 496 App. A, Item 39, Metra/Vill. of New Lenox ¶ 9, at 4.

32 • Any delays not beyond a party’s or consultant’s “reasonable control” as constituting a material breach.510 • A clause permitting termination of an agreement for the purpose of negotiating a new agreement.511 • The termination of an agreement for the reason that federal or state funds are not available.512 • The disposition, distribution, or return of any property that either was transferred to the agreement or was acquired during the term of the agreement.513 • The distribution of any funds or surplus money or property in proportion to the contributions made by the parties or on some other basis. 514 • The survival of certain provisions of a prior but terminated agreement.515 • A stipulation that there is no monetary claim un- der the agreement by one party against another party.516 • A statement of the actions that are required to be completed after the termination of the contract.517 R. Dispute Resolution Dispute settlement procedures in agreements fur- nished by transit agencies provide for several methods, such as: • The parties are to mediate any disputes infor- mally.518 • The parties are to arbitrate any dispute. • The parties submit to a multistage conflict resolu- tion process and include a forum selection clause for any judicial resolution of a dispute.519 S. Other Common and Concluding Provisions The agreements furnished by transit agencies tend to include a variety of provisions or clauses that are found in other types of contracts, such as: • An integration clause.520 • A clause regarding liability for attorney’s fees,521 such as a party having to bear its own attorney’s fees in the event of litigation.522 • A severability clause.523 • A clause identifying any agreements that are to be assigned.524 • A clause prohibiting assignment of the agreement without the prior written consent of the other party or parties to the agreement.525 • A nonwaiver clause in the event of a breach of the agreement.526 • A statement that an agreement is in compliance with all applicable laws.527 • A clause identifying which state’s law governs the agreement.528 • A forum selection clause. • The form of any notices required by the agreement and the method(s) of service or delivery.529 • Approval of the agreement by the state’s attorney general as required by some states’ laws.530 • A disclaimer of warranties.531 520 App. A, Item 10, Avondale, Ariz./Tolleson, Ariz., at 3 (i.e., providing that all prior discussions and documents are deemed to be merged in the agreement as the parties’ only agreement). 521 Id. 522 App. A, Item 50, Omnitrans/Loma Linda, Cal. ¶ 13, at 12. 523 App. A, Item 10, Avondale, Ariz./Tolleson, Ariz., at 3; Item 13, Chicago OEMC/CTA ¶ 10 (providing for the survival of the remainder of the agreement even if a provision is held to be invalid). 509 App. A, Item 15, Phoenix PTD/Tempe, Ariz. §§ 6 and 7, at 2. 524 App. A, Item 11, Bend, Or./COIC, at 2 (e.g., grant sub- recipient agreements; property use agreements; assignments of existing contracts; documentation regarding assignment or transfers of personnel). 510 App. A, Item 40, Metra/Western Ill. U. ¶ I(C), at 4. 511 App. A, Item 49, Metro-North/N.J. Transit, art. 2.03, at 5. 512 App. A, Item 27, LYNX/Orlando Urban MPO ¶ 6(B)(6), at 8. 525 App. A, Item 10, Avondale, Ariz./Tolleson, Ariz., at 3; Item 11, Bend, Or./COIC, at 12; Item 13, Chicago OEMC/CTA ¶ 9 (sharing of real-time data); 513 App. A, Item 11, Bend, Or./COIC, at 4 and 9. Item 23, LYNX/Seminole County, Fla. § 14, at 11. 514 App. A, Item 41, El Paso County, Colo./Colorado Springs, Colo. et al., at 9. 526 App. A, Item 10, Avondale, Ariz./Tolleson, Ariz., at 3; Item 13, Chicago OEMC/CTA ¶ 18 (providing that the failure to object to a party’s breach of a provision of the IGA does not constitute a waiver of the noncomplainant party’s breach). 515 App. A, Item 49, Metro-North/N.J. Transit, art. 2.01, at 4 (e.g., compensation for prior revenue loss). 516 App. A, Item 51, Omnitrans/Riverside Transit Agency, art. 10, at 4 (coordination of route planning, scheduling, stops, transfers, and fares). 527 App. A, Item 13, Chicago OEMC/CTA ¶ 11. 528 App. A, Item 11, Bend, Or./COIC, at 12; Item 13, Chicago OEMC/CTA, ¶ 12. 517 App. A, Item 23, LYNX/Seminole County, Fla. § 16(c), at 12–13 (e.g., preparation of all necessary reports and docu- ments, return of property); 529 App. A, Item 10, Avondale, Ariz./Tolleson, Ariz., at 3–4; Item 27, LYNX/Orlando Urban MPO Item 11, Bend, Or./COIC, at 11–12; Item 12, Chicago/CTA § 11; ¶ 7(B), at 9 (e.g., cease from obligating new costs and remit portions of financing or advance payments). Item 13, Chicago OEMC/CTA ¶ 19. 530 App. A, Item 47, La Crosse Mun. Transit Utility/City of Cresent518 App. A, Item 11, Bend, Or./COIC, at 5 (providing for re- negotiation of the agreement). ¶ 11, at 2. 531 App. A, Item 80, MetroLink/SMTD ¶ 8, at 3 (paratransit vehicles). 519 App. A, Item 17, Sandy Springs, Colo./Oregon DOT, at 9.