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From page 85... ... 61 5.1 Introduction and Summary of Best Practices This is the last in a series of four chapters addressing the sequential stages of the JD process. It covers the execution of a project once a preliminary developer selection has been made. Read the entire page →
From page 86... ... 62 Guide to Joint Development for Public Transportation Agencies 5.2 Joint Development Agreement The period between the preliminary selection of a developer and the final closing on the real estate transaction revolves around the negotiation of a JDA. In this negotiation, the details of the physical project and the business transaction are refined, the developer's selection is finalized, and the conditions governing the closing and the actual construction and operation of the project are established. Read the entire page →
From page 87... ... Executing a Joint Development Project 63 some cases, the transfer of the property to a joint venture or LLC in which the transit agency and the developer are partners. The determination of which type of conveyance to use will presumably have been made during the pre-solicitation planning phase of the project and then articulated in the solicitation document. Read the entire page →
From page 88... ... 64 Guide to Joint Development for Public Transportation Agencies Table of Contents: Key Joint Development Agreement Issues The contents of a JDA vary among transit agencies and among projects of differing scope and complexity. Figure 30 presents a sample table of contents, encompassing items generally applicable to projects of moderate to high complexity. Read the entire page →
From page 89... ... Executing a Joint Development Project 65 5.3 From Joint Development Agreement to Closing Community Relations and Project Approvals The JDA normally assigns the developer the responsibility for securing the project's remaining entitlements, permits, and approvals, including regulatory outcomes as well as the financing necessary to complete the privately-funded parts of the project. However, this does not necessarily mean that the developer is solely responsible for initiating and maintaining contact with other public agencies and officials. Read the entire page →
From page 90... ... 66 Guide to Joint Development for Public Transportation Agencies There are tradeoffs involved, with pros and cons to both approaches. In general, the relative abilities of the transit agency and the developer to lead this critical function will reflect the actual people involved, their experience, and their relationships with the relevant jurisdictions and stakeholders. Read the entire page →
From page 91... ... Executing a Joint Development Project 67 Design Review The JDA must address a key asset stewardship issue: the extent to which transit agencies review the designs of their JD partners and supervise their construction activities. In the survey of transit agencies, the following practices emerged with respect to design review. Read the entire page →
From page 92... ... 68 Guide to Joint Development for Public Transportation Agencies • The stage of project development to be achieved at the time of the closing; this discussion assumes the common (but not universal) practice of conducting the closing when the project is ready for construction; • The closing conditions -- a series of requirements for which the responsible party must produce satisfactory documentation as a precondition for the closing to take place; and • The deadline for the closing to occur (sometimes called an outside closing date) Read the entire page →
From page 93... ... Executing a Joint Development Project 69 by the conveyance instrument in its entirety, or that it will be superseded except for certain provisions specifically designated as surviving the closing. The final project description and recitation of financial terms are generally set forth in the conveyance instrument, since they represent the core of the conveyance and in many cases will have changed since the JDA. Read the entire page →
From page 94... ... 70 Guide to Joint Development for Public Transportation Agencies • Construction of buildings or other facilities that will belong to the transit agency or be used by it must be consistent with the design criteria and construction contract documents approved by the agency. • The conveyance instrument should prohibit any interference with transit operations unless approved by the agency. Read the entire page →
From page 95... ... Executing a Joint Development Project 71 Management of the Project • Preconditions for the construction forces to gain access to the site • Evidence of required insurance, certificate of indemnification, and documentation of all required plans and procedures • A construction schedule with deadlines for substantial and final completion • Requirement to submit a full set of as-built drawings on completion • Standards and procedures for substantial completion and acceptance Field Oversight of Construction • Coordinating meetings attended or led as appropriate by the agency's construction oversight project manager or owner's representative, keeping affected departments in the loop • For facilities built for the transit agency or in immediate proximity to operating transit facilities: periodic inspection to ensure site safety, construction quality, conformity with the approved design, and protection of agency assets • Adherence to required clearances, load limits, and other engineering parameters Site Safety During Construction: Project-Specific Safety Plan • Site security (fencing, electronic surveillance, patrols, lighting, badging, etc.) • Safety training for all personnel • Design and operating protocols for cranes • Emergency vehicle access and egress at all times • Requirements for barriers, overhead protection, and shielding • Limits of operations • Flag protection and escorts Monitoring Program • Preconstruction survey • Instrumented monitoring of existing structures to ensure that no horizontal or vertical movement has occurred Maintenance of Operations and Access • Detailed plan for maintenance of rail and bus service at the station, including drop-off, park & ride if applicable; interference with transit prohibited without agency approval • If applicable, approved diversions of service or adjustments to parking and site access • Maintenance of ADA-compliant accessibility throughout any pedestrian detours or temporary relocation of platforms • Maintenance of traffic on-site and, if applicable, off-site Impacts on Abutters and Neighbors • Construction-period impacts to surrounding communities identified and addressed in a written mitigation plan and in the construction documents • Compliance with mitigation measures required as part of any environmental review, entitlement, or permit Force Account • Provisions for the agency to use its own forces for certain flagging and detour operations and for specified construction on operating trackage or guideways • Requirement for the developer or contractor to execute and fund a force account agreement to that effect Table 5. Read the entire page →
From page 96... ... 72 Guide to Joint Development for Public Transportation Agencies If the development entity is a joint venture or LLC in which the transit agency and the developer are members, their rights and obligations to each other (and those of any third-party investor member) are set forth in the joint venture or LLC agreement, which supersedes the JDA. Read the entire page →
From page 97... ... Executing a Joint Development Project 73 at a sensitive time in the life of the project without the transit agency's approval. While the full variety of circumstances cannot be captured here, some broad guidelines emerge from practice: • Prior to the closing, an outright transfer or assignment of the development interest, or a material change in the composition of the development entity, should not be allowed without the agency's written approval. Read the entire page →
From page 98... ... 74 Guide to Joint Development for Public Transportation Agencies payments, the landlord has the right to terminate the lease and reclaim the land. If the developer (as borrower) Read the entire page →
From page 99... ... Executing a Joint Development Project 75 a reappraisal process in which the parties might disagree over the results. Similarly, basing the performance rent on gross revenue, rather than a higher percentage of net revenue, is the preferred practice because while reporting and monitoring are still involved, the complex and potentially disputable calculation of net revenue is avoided. Read the entire page →
From page 100... ... 76 Guide to Joint Development for Public Transportation Agencies developer's presence and actions, and maintain insurance policies of prescribed coverages and levels. The insurance requirement alone, while necessary, is generally not sufficient to protect the agency's interests. Read the entire page →
From page 101... ... Executing a Joint Development Project 77 The framework of defaults and remedies applies, in one way or another, at all stages of the JD project: • Between the JDA and the closing, the developer could default by failing to advance design, financing, permitting, or other closing conditions, eventually failing to meet the outside closing deadline or any extension. • At any time after the closing, the developer could default by failing to make scheduled lease payments, failing to meet any other substantive or procedural obligation, or by seeking to transfer its interests without the agency's approval in violation of the agreements. Read the entire page →
From page 102... ... 78 Guide to Joint Development for Public Transportation Agencies mad_handbook_2018-0509.pdf; WMATA: https://www.wmata.com/business/adjacent-construction/ upload/ACPM-Rev-5a-09-21-15.pdf; Miami-Dade: https://www.miamidade.gov/procurement/library/ dtpw-adjacent-construction-manual.pdf; CTA: https://www.transitchicago.com/assets/1/28/CTA_Adjacent_ Construction_Manual_2017-Nov.pdf; Translink: https://www.translink.ca/-/media/Documents/about_ translink/doing_business_with_translink/real_estate/aid_guide_for_developers.pdf? la=en&hash=96C7D 7CB47641220472804C253991F3EACC804AE. Read the entire page →

From page 85...

... 61 5.1 Introduction and Summary of Best Practices This is the last in a series of four chapters addressing the sequential stages of the JD process. It covers the execution of a project once a preliminary developer selection has been made.