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

Below is the uncorrected machine-read text of this chapter, intended to provide our own search engines and external engines with highly rich, chapter-representative searchable text of each book. Because it is UNCORRECTED material, please consider the following text as a useful but insufficient proxy for the authoritative book pages.

33 • A successor-in-interest clause.532 • A clause stipulating that no personal liability is in- tended or created by the agreement.533 • A commitment by the parties to resolve issues re- sulting from changed conditions.534 • The assumption of the risk of loss in regard to real or personal property.535 VI. DISCUSSION OF THE TRANSIT AGENCIES’ OTHER RESPONSES TO THE SURVEY A. Annual Ridership of Transit Agencies Responding to the Survey As may be seen in Tables 2 and 3, the transit agen- cies responding to the survey varied significantly in the number of patrons for their rail and bus service in 2010 and 2011. Table 2. Transit Agency Ridership by Rail 2010/2011 No. of Passenger Trips No. of Transit Agencies Responding 100,000,000 to 250,000,000 1 50,000,000 to 99,999,999 4 10,000,000 to 49,999,999 4 1,000,000 to 9,999,999 4 100,000 to 999,999 1 0 15 No response 5 Table 3. Transit Agency Ridership by Bus 2010/2011 No. of Passenger Trips No. of Transit Agencies Responding 300,000,000 to 400,000,000 1 200,000,000 to 299,999,999 0 100,000,000 to 199,999,999 4536 50,000,000 to 99,999,999 1 25,000,000 to 49,999,999 4 10,000,000 to 24,999,999 6 1,000,000 to 9,999,999 9 500,000 to 999,999 2 100,000 to 499,999 1 0 2 No response 4 B. Benefits Derived by Transit Agencies Using IGAs and MOUs Transit agencies were asked to identify benefits that they have derived from their use of IGAs and MOUs. The agencies’ responses were that the agreements es- tablish a clear purpose and expectations;537 identify, define, and clarify the parties’ responsibilities538 and areas of agreement;539 set forth obligations and sched- ules for action; provide greater flexibility;540 and are legally defensible.541 Moreover, the agreements may establish broad public support542 and create goodwill,543 in part because the agreements may require the ap- proval of each party’s governing body or of the voters.544 The agreements permit “advanced agreement on proce- dures and/or liability generally [and] lead to streamlin- ing and lower risk.”545 Other reasons given include ne- cessity, budgetary economies, an increase in service efficiency, an improvement in customer service, and 536 One agency’s ridership includes trolley coach service. 537 Survey response of LYNX. 538 Survey responses of Columbia Transit, Greater Portland Transit Dist., Greater Cleveland RTA (define roles and respon- sibilities), Suburban Bus Division of the Regional Transp. Auth. (PACE). 532 App. A, Item 23, LYNX/Seminole County, Fla. § 15, at 12 (providing that the agreement is binding on successors in in- terest, transferees, and assigns). 539 Survey response of New Jersey Transit Corp. 540 Survey response of Omnitrans. 541 Survey response of LYNX. 533 App. A, Item 24, LYNX/Winter Park ¶ 15, at 7. 542 Id. 534 App. A, Item 50, Omnitrans/Loma Linda, Cal. ¶ 11, at 11. 543 Survey response of CT Transit. 544 Survey response of LYNX. 535 App. A, Item 49, Metro-North/N.J. Transit, art. 9.05, at 32. 545 SANDAG.

34 procurement savings,546 such as the ability to obtain insurance, fuel, and supplies at a lower cost.547 Various transit agencies reported that the agree- ments allowed the agency to advance projects it could not implement on its own and to increase its relevance to the communities the agency serves by stretching available resources.548 The Greater Cleveland Regional Transit Authority (RTA) uses MOUs to “tie down key deal points” before negotiating an agreement.549 Metra said that IGAs may be used to manage a regional op- eration and also noted that it does not have eminent domain power, “but locals do.”550 The Utah Transit Au- thority observed that MOUs may provide an agency with long-term documentation of working relationships that endure well beyond the terms of elected officials who are in office at the time of signing.551 According to the Los Angeles MTA, “[s]ometimes us- ing an MOU will help get a project started. Most times, the parties do not want to begin unless they have a general commitment. An MOU helps to move a project along to the next stage where funding or in-kind ser- vices may be required.”552 TriMet advised that IGAs provide enforceable agreements between the trans- acting parties, with clear framework/structure, including dispute resolution procedures. TriMet obtains the bene- fits of the authorizing authority, resources and special- ized expertise from other governmental entities to assist in furthering TriMet’s business objectives and statutory mandates. The use of IGAs can result in efficiencies and cost savings to TriMet. Vital regional relationships can be established that assist in facilitating TriMet’s regional transportation planning and service goals and objectives. MOUs are often used as [a] planning tool, i.e., the path to an IGA, and are useful to establish the intent of the par- ties with respect to development of further agree- ments.553 However, the Greater Cleveland RTA observed that agencies may have difficulty meeting their respective funding timelines and that priorities may change, thus rendering “problematic” the meeting of requirements established with third parties. The Los Angeles MTA stated: Usually the issues arise because staff [does] not under- stand what authority is needed to sign an MOU or who is authorized to sign an MOU because they believe it is a non-binding document. This is especially true if the MOU does not commit any funds, only commits in-kind services or is an agreement where LACMTA receives funds to per- form a certain task. As stated previously, we treat MOUs as any other agreement or contract and will require the appropriate approvals prior to approving the form of the MOU. Metro-North said that the agreements are difficult to amend and that some issues are not dealt with and left to a “political solution” that can be elusive. Similarly, Omnitrans reported that it “frequently runs into the challenge of negotiating with and coordinating projects with other public agencies as some agency’s and/or their constituents may not be as invested in a project which can may make it politically difficult to reach agree- ment.” C. Issues to Avoid or Resolve When Drafting IGAs and MOUs Of the 31 agencies using IGAs or MOUs, 16 reported that they could not identify any particular transit- related issues to avoid or resolve when negotiating or drafting an IGA or MOU. The Capital District Trans- portation Agency’s response was that [a] major purpose of these types of agreements is clarifi- cation of [the] roles and responsibilities in implementing projects. This frequently includes provisions to avoid fraud or abuse in benefit programs (like our pass subsidy MOUs), provisions on required reporting to meeting regu- lations governing the fund source, and mutual indemnity provisions.554 Other agencies emphasized that there may be both indemnification and coordination issues in regard to service, infrastructure, and procurement;555 that the parties’ funding responsibilities should be clearly iden- tified;556 and that a transit agency should make it clear that its own service commitments take priority.557 Other issues said to be important include allocating responsibility and liability;558 determining the appro- priate cost-allocation and payment methodologies be- tween transit agencies and the budgetary impacts of setting fares;559 defining the scope of the agreement;560 and taking care to identify permitting and zoning re- quirements.561 Metro-North stated that the modification of funding issues is the most difficult to resolve.562 Commitments must be sought to provide for the development of facili- ties, operation, and maintenance in accordance with the agency’s standards.563 According to the Greater Cleve- land RTA, establishing the federal interest in real es- tate agreements is sometimes difficult to accomplish, 554 Survey response of CDTA. 546 Survey response of San Francisco MTA. 555 Survey response of Phoenix PTD. 547 Survey responses of SARTA and WTA (the latter agency stating that the sharing of services between government enti- ties results in savings). 556 Survey response of Central Arkansas Transit Auth. 557 Survey response of CT Transit. 548 558 Survey response of CDTA. Survey response of SANDAG. 549 559 Survey response of Greater Cleveland RTA. Survey response of San Francisco MTA. 550 560 Survey response of Metra. Id. 551 561 Survey response of Utah Transit Auth. Utah Transit Auth. 552 562 Survey response of Los Angeles MTA. Survey response of Metro-North. 553 563 Survey response of TriMet. Survey response of Metra.