Joint Development Frequently Asked Questions
These FAQs do not have the force and effect of law and are not meant to bind the public in any way. This document is intended only to provide clarity to the public regarding existing requirements under the law or agency policies. Grantees and subgrantees should refer to FTA’s statutes and regulations for applicable requirements.
Q. What are the substantive changes to FTA’s joint development guidance in the revised Circular 7050.1 B: FTA Guidance on Joint Development?
A. In the prior version of the Joint Development Circular, 7050.1A, FTA defined a “fair share of revenue” as the minimum threshold of revenue that a joint development project must produce for transit purposes in order to be deemed an eligible project; that minimum threshold was defined as the federal government's initial investment in the underlying transit assets and property to be included in the joint development project.
The updated Circular, 7050.1 B: FTA Guidance on Joint Development no longer defines a minimum revenue threshold to meet the “fair share of revenue” requirement. The determination is now to be made by the project sponsor. FTA recommends that a project sponsor should determine how to document its reasonable determination that the terms and conditions of the joint development improvement (including the share of revenue for public transportation that shall be provided thereunder) are reasonable and fair to the recipient.
Likewise, FTA does not define the fair share of operating and maintenance costs (see 49 U.S.C. § 5302(3)(G)(iv)) for tenants within a federally assisted transit facility. In the updated circular, FTA no longer reserves the right to decline project funding or approval if a rental payment, or other means, is less than the actual cost to the project sponsor to maintain the space in its facility. However, FTA recommends that the project sponsor should determine how to document its reasonable determination that a rental payment, or other means, is reasonable and fair to the recipient. This will allow project sponsors and their partners to determine the fair allocation of costs.
As a result of these changes, project sponsors are no longer required to submit a baseline market analysis or a certificate of compliance as part of the FTA’s Joint Development application and review process.
Q. How has the application and review process changed for project sponsors?
A. It has been simplified. Previously, formal project proposals were required to include: (1) a completed project request form that contained pertinent information about the joint development project, including how the statutory eligibility criteria were to be satisfied, (2) all proposed agreements between the project sponsor and project partners, (3) an executed certificate of compliance, and (4) two forms incorporating and referencing other required and supplemental documentation, including a baseline market analysis to demonstrate a good faith effort to provide a fair share of revenue to the project sponsor.
The FTA will no longer require project sponsors to submit either a baseline market analysis or a certificate of compliance. However, FTA encourages project sponsors to continue to conduct baseline market analyses to understand current market conditions and evaluate the viability of joint development projects.
FTA will still require project sponsors to submit a completed project request form (with information about the eligibility of the joint development project) and all proposed agreements between the project sponsor and project partners.
Q. What are the eligibility criteria for FTA-assisted joint development projects?
A. As required by statute (49 U.S.C. § 5302(3)(G)), joint development projects are eligible for FTA funding if they meet the following eligibility criteria:
- Criterion 1 – Economic Benefit: Projects must either enhance economic development, or incorporate private investment
- Criterion 2 – Transit Benefit: Projects must either enhance the effectiveness of transit and be related physically or functionally to public transportation, or establish new or enhanced coordination between public transportation and other transportation
- Criterion 3 – Fair Share of Revenue: Projects must provide a fair share of revenue that will be used for public transportation.
- Criterion 4 – Fair Share of Costs: A person making an agreement to occupy space in a transit facility must pay the project sponsor a fair share of the costs of the facility through rental payments and other means.
Q. Which joint development capital expenses are eligible for FTA funding?
A. Certain capital costs associated with joint development activities are eligible for FTA assistance. Some of these activities are included in the various definitions of capital project at 49 U.S.C. 5302(3). Activities not designated under 49 U.S.C. 5302(3)(G), joint development, must be associated with a project that has been identified through the transportation planning process. See 49 U.S.C. §§ 5303-5305. Circular 7050.1B provides a list of common eligible capital expenses on page III-6-8.
Common eligible capital costs of joint development projects may include, but are not limited to:
- Property acquisition, and the relocation of residents and businesses;
- Demolition of existing structures;
- Site preparation;
- Utilities, including utility relocation and construction;
- Building foundations, including substructure improvements for buildings constructed over transit facilities;
- Walkways, including bicycle lanes and pedestrian connections and access links between public transportation services and related development;
- Pedestrian and bicycle access to a public transportation facility;
- Construction, renovation, and improvement of intercity bus and intercity rail stations and terminals;
- Renovation and improvement of historic transportation facilities;
- Open space, including site amenities and related streetscape improvements such as functional landscaping and streetscaping;
- Safety and security equipment and facilities (including lighting, surveillance, and related intelligent transportation system applications);
- Facilities that incorporate community services13 such as daycare and health care;
- A capital project for, and improving, equipment or a facility for an intermodal transfer facility or transportation mall;
- Construction of space for commercial uses;
- Capital project and equipment for an intermodal transfer facility or transportation mall, including acquisition of facilities and equipment, roadbeds, tracks and bus ramps, pedestrian concourses, parking facilities, park-and-ride services, improvements to existing bus or rail transit terminals, stations, major transfer points, and shelters as well as other facilities directly related to the linking of public transportation facilities with other modes of transportation;
- Transportation-related furniture, fixtures, and equipment (FFE) are eligible costs in all cases;
- Parking improvements with a public transportation justification and use, or with an intercity bus or intercity rail justification and use, in connection with joint development;
- Project development activities, including design, engineering, construction cost estimating, environmental analysis, real estate packaging and financial projections (operating income and expenses, debt service, and cash flow analysis), and negotiations to secure financing and tenants; and
- Professional services, including reasonable and necessary costs incurred to hire professionals to prepare or perform the activities described above, or to assist the project sponsor in reviewing the same.
This broad eligibility can result in dynamic, mixed-use spaces with retail or community services, all closely connected to existing or planned transit facilities, in addition to the revenue- and cost-sharing arrangements of benefit to transit agencies.
Q. Does FTA require a competitive procurement process to select a joint development partner?
A. Per statute, any procurements assisted with FTA funds, including those for FTA-assisted joint development, must adhere to certain standards, among which is the requirement for full and open competition. See 49 U.S.C. 5325. If FTA is not funding the project, FTA encourages project sponsors to engage in fair and competitive procurement practices.
Q. How can I use real property previously acquired with FTA assistance for joint development?
A. Historically, FTA prohibited the encumbrance of title to FTA-assisted property because FTA viewed any lien against, or other conveyance of, FTA-assisted property as a disposition. In recognition of the fact that many joint development arrangements require conveyance of an interest in FTA-assisted property, FTA may now approve of conveyances for joint development.
However, a joint development project must not interfere with the project sponsor’s satisfactory continuing control over the use of the property or their ability to continue to carry out the originally authorized purpose for which the property was acquired. See FTA Master Agreement § 19(b)(1); 2 CFR §§ 200.311(b), 200.315(a). Furthermore, project sponsors must adhere to all requirements designated in the original FTA grant that assisted in the property’s acquisition, pursuant to the terms of the grant agreement. Additionally, the project must satisfy the statutory eligibility criteria provided in 49 U.S.C. 5302(3)(G) and any other applicable statutory or regulatory requirements.
Q. How do I demonstrate an “economic benefit” to FTA’s satisfaction?
A. While FTA does not set a value or monetary threshold for satisfying the Economic Benefit criterion, it does require project sponsors to demonstrate that the joint development meets the criteria. Per 49 U.S.C. 5302(3)(G)(i), to create an “economic benefit” a joint development project must either:
- enhance economic development, or
- incorporate private investment.
A project sponsor may satisfy this criterion by demonstrating that the project adds economic value to development activity occurring near a transit facility, including but not limited to new housing, office, retail, or other commercial activity. Private investment may be monetary or it may take the form of in-kind real property, commercial or residential development, or some other benefit to be generated initially or over the life of the joint development.
Q. How do I demonstrate a “transit benefit” to FTA’s satisfaction?
A. FTA does not set a threshold for satisfying the Transit Benefit criterion. Per 49 U.S.C. 5302(3)(G)(ii),A project sponsor may satisfy this criterion by demonstrating that the project either:
- enhances the effectiveness of public transportation (e.g., increases transit ridership, reduces travel times, or enhances transit operations) and is related physically or functionally to public transportation, or
- establishes new or enhanced coordination between public transportation and other transportation
A project sponsor should identify the forecasts, plans, or studies that demonstrate the satisfaction of the Transit Benefit criterion. Project sponsors are not required to submit these documents along with their joint development project requests.
Q. How do I protect the federal interest and maintain continuing control of FTA-assisted property through a joint development agreement?
A. Joint development agreements that convey FTA-assisted property must ensure that the transit access and use are not restricted and that access to the real property for its original transit purpose will be maintained. Furthermore, the agreement should ensure that all other pertinent FTA requirements for use of the real property for joint development, including crosscutting federal requirements, such as planning and environmental review, are satisfied by specific terms and conditions.
These joint development agreements must include provisions that:
- Extend the requirements of the original FTA grant as necessary;
- Ensure that the project sponsor maintains satisfactory continuing control of the property;
- Ensure that the federal interest in the property will be reasonably protected; and
- Ensure that the federal interest in the property is protected following any further transfer of the property.
These requirements should not be a deterrent to the pursuit of joint development. It is FTA’s policy to give project sponsors maximum flexibility within the law to enter arrangements with the private sector and others that are suitable to the joint development and the parties involved.
Q. If a joint development project replaces a parking facility for transit customers does the joint development need to replace the same number of parking spaces?
A. No. When surface parking is converted to joint development, FTA does not require the project sponsor to replace parking spaces at a one-to-one ratio.
However, as with any FTA-assisted joint development, the conversion of parking to joint development must benefit transit and must not cause a project sponsor to breach a full funding grant agreement, or similar contract, that requires construction of specific parking facilities or a certain number of parking spaces or a certain level of ridership. In addition, if an FTA-assisted parking facility is to be converted to joint development and useful life remains in the facility, the project sponsor must account for the remaining federal interest prior to any change or disposition (see FTA C 5010.1E, Chapter IV, Section 2j).
Q. Is there a dedicated FTA funding program for eligible joint development activities?
A. No, FTA does not have a dedicated funding program for joint development activities. Rather, eligible joint development expenses can be funded through all of FTA’s capital grant programs, including:
- §5307: Urbanized area formula grants
- §5309: Fixed guideway capital investment grants (New/Small Starts and Core Capacity)
- §5310: Formula grants for the enhanced mobility of seniors and individuals with disabilities
- §5311: Formula grants for rural areas
- §5337: State of good repair grants
- §5339: Bus and bus facilities formula grants
Q. What are the differences between FTA’s definitions of joint development, disposition, incidental use and shared use?
A. FTA Definition of Disposition: The settlement of the federal interest in project property that is no longer needed for the originally authorized purpose.
Distinction with Joint Development:
- Disposition allows a grant recipient and the federal government to cash out of property that is no longer needed, so that funds can be applied to other projects. In most cases, disposition involves selling the unneeded property to a third party. After disposition, the property is no longer subject to any federal grant agreements. Joint development may also involve the transfer of an interest in property to a third party. However, unlike disposition, the federal government does not receive its share of the property’s value, so the property remains subject to the federal grant agreement, and any development that occurs on the property must therefore comply with FTA’s joint development policy.
- Another distinction between disposition and joint development is the way that the proceeds can be used in relation to the recipient’s transit program. After a disposition, FTA’s share of proceeds must either be reimbursed to FTA, or applied to FTA’s share of another eligible capital project. Joint development revenue can be applied to transit capital or to operating expenses in the transit program.
FTA Definition of Incidental Use: The limited authorized non-transit use of project property. Such use must be compatible with the approved purposes of the project and may not interfere with the public transportation uses of the project property. An acceptable incidental use does not affect a property's transit capacity or use. FTA may concur in incidental use after award of the grant.
Distinction with Joint Development:
- The primary distinction between incidental use and joint development is that joint development is a “capital project” (see “Capital Project” at 49 U.S.C. §5302(3)). On the other hand, incidental use is a limited “use” of property.
- FTA approval of incidental use is requested after award of a grant, whereas approval of joint development can be requested at the time of award of a grant or after the grant is awarded.
- Like joint development, incidental use can generate revenue for transit. Proceeds received from incidental use may be retained by the recipients if it is used for eligible transit capital or operating expenses. This income cannot be used as part of the non-federal share of the award from which it was derived. However, it may be used as part of the non-federal share of another FTA award.
FTA Definition of Shared Use: Instances in which a project partner, separate from the recipient, occupies part of a facility and pays for its pro rata share of the construction, maintenance, and operation costs. Shared uses should be declared at the time of grant award.
Distinction with Joint Development:
- Again, shared use is a “use” whereas joint development is a “capital project,” including the coordinated development and improvement of transit and non-transit assets.
- Also, shared use should be requested and approved at the time of award of a grant to ensure the proper allocation and eligibility of costs in the grant, whereas FTA approval of joint development can be requested at the time of award of a grant or after the grant was awarded.
Q. What is a baseline market analysis and what analyses are required for an FTA-assisted joint development project?
A. A baseline market analysis evaluates the viability and expected outcomes of a joint development. As with any business transaction, a project sponsor should fully understand its relative position in participating in local/regional economic development activity and in negotiating the terms of the joint development based on the value of its contribution to the project. FTA does not prescribe which specific studies and analyses are required, nor who is responsible for developing them. A baseline market analysis can help identify the following information:
- Fair market value of any FTA-assisted property or assets contributed to the project;
- Expected amount of revenue generated by the project and the share of the revenue the project sponsor will receive; and
- Estimated total cost of the project and the parties responsible for each of them.
- Existing conditions of the project property;
- General economic and market conditions of the region/area;
- Current and planned economic development activity for the region/area; and
- Development risks and benefits to the project sponsor.
Project sponsors are not required to conduct or submit a baseline market analysis, though it is recommended by FTA.
Q. What is the difference between joint development and transit-oriented development (TOD)?
A. Although related in purpose, joint development and TOD differ in several ways.
First, in joint development, the transit agency is an active partner, contributing to and benefiting from the development of real estate around its system. In TOD, the transit agency should benefit indirectly, but is not necessarily a partner that contributes to, or shares in the direct proceeds from, the development.
Second, joint development usually has a smaller scope than TOD, but that’s not always the case. Joint development projects tend to focus on a single parcel of property or small area near a transit facility, whereas TOD is broader and tends to encompass several parcels or an entire station area or community.
Q. What is “FTA-assisted joint development?”
A. The definition of “joint development” in FTA Circular 7050.1B is “a public transportation project that integrally relates to, and often co-locates with commercial, residential, mixed-use, or other non-transit development. Joint development may include partnerships for public or private development associated with any mode of transit system that is being improved through new construction, renovation, or extension. Joint development may also include intermodal facilities, intercity bus and rail facilities, transit malls, or historic transportation facilities.”
When FTA contributes funds, or real property or assets acquired with FTA funds, to a joint development, the project is “FTA-assisted.”