Draft Toll Concessions Public-Private Partnership Model Contract Guide Addendum

Gregory G. Nadeau
Federal Highway Administration
January 16, 2015

[Federal Register Volume 80, Number 11 (Friday, January 16, 2015)]
[Notices]
[Pages 2469-2470]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2015-00552]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

[Docket No. FHWA-2014-0006]


Draft Toll Concessions Public-Private Partnership Model Contract 
Guide Addendum

AGENCY: Federal Highway Administration (FHWA), Department of 
Transportation (DOT).

ACTION: Notice; Request for comments.

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SUMMARY: The Moving Ahead for Progress in the 21st Century Act (MAP-21) 
requires DOT and FHWA to develop public-private partnership (P3) 
transaction model contracts for the most popular type of P3s for 
transportation projects. Based on public input favoring an educational, 
rather than prescriptive contract model, FHWA is publishing a series of 
guides describing terms and conditions typically adopted in P3 
concession agreements. The publication and deployment of these model 
contracts is important to supporting the Administration's Build America 
Investment Initiative. As part of this Initiative, the U.S. Department 
of Transportation is committed to providing technical assistance to 
help project sponsors consider project financing options, including 
P3s.
    To address the most popular types of P3s, FHWA is producing 
separate guides for the two most common agreements for concessionaire 
compensation: User tolls and availability payments. The Toll 
Concessions Guide (Guide) is being published in two parts. The first 
part, addressing the highest profile (core) provisions, comprises 
chapters 1 through 8 of the Guide. On September 10, 2014, at 79 FR 
53825, FHWA published a Final Core Toll Concessions Model Contract 
Guide (``Core Guide'') incorporating public comments received in 
response to the Draft Core Guide published February 6, 2014.
    The second part, described herein as ``the Draft Addendum,'' 
addresses additional substantive provisions that are proposed to 
comprise chapters 9 through 28 of the Guide. It addresses a range of 
additional topics, such as construction performance security, 
insurance, lenders' rights and direct agreements, performance standards 
and non-compliance points, consumer protections, government approvals 
and permits, and a number of other topics described further below. With 
this notice, FHWA publishes the Draft Addendum so that the general 
public and interested stakeholders may provide comments. The Draft 
Addendum can be found on the Docket (FHWA-2014-0006) and at the 
following link: http://www.fhwa.gov/ipd/pdfs/p3/model_p3_toll_concessions_addendum.pdf. This model contract guide has 
been prepared solely for informational purposes and should not be 
construed as a statement of DOT or FHWA policy.
    The FHWA values public input in the development of the model 
contract guides, and seeks continuing input. All documents in this 
series are available at the same docket (FHWA-2014-0006).

DATES: Comments must be received on or before February 6, 2015. Late 
comments will be considered to the extent practicable.

ADDRESSES: To ensure that you do not duplicate your docket submissions, 
please submit them by only one of the following means:
     Federal eRulemaking Portal: Go to http://www.regulations.gov and follow the online instructions for submitting 
comments.
     Mail: Docket Management Facility, U.S. Department of 
Transportation, 1200 New Jersey Avenue SE., W12-140, Washington, DC 
20590-0001.
     Hand Delivery: West Building Ground Floor, Room W12-140, 
1200 New Jersey Avenue SE., between 9 a.m. and 5 p.m., Monday through 
Friday, except Federal holidays. The telephone number is (202) 366-
9329.
     Instructions: You must include the agency name and docket 
number at the beginning of your comments. All comments received will be 
posted without change to http://www.regulations.gov, including any 
personal information provided.

FOR FURTHER INFORMATION CONTACT: Mark Sullivan, Office of Innovative 
Program Delivery, (202) 366-5785, mark.sullivan@dot.gov, Federal 
Highway Administration, 1200 New Jersey Avenue SE., Washington DC 
20590; Alla Shaw, Office of the Chief Counsel, (202) 366-1042, 
alla.shaw@dot.gov, Federal Highway Administration, 1200 New Jersey 
Avenue SE., Washington DC 20590, or Prabhat Diksit, (720) 963-3202, 
prabhat.diksit@dot.gov, 12300 W. Dakota Avenue, Suite 370, Lakewood, CO 
80228.

SUPPLEMENTARY INFORMATION:

Electronic Access and Filing

    You may submit or retrieve comments online through the Federal 
eRulemaking portal at: http://www.regulations.gov. The Web site is 
available 24 hours every day of the year. Electronic submission and 
retrieval help and guidelines are available under the help section of 
the Web site.
    An electronic copy of this document may also be downloaded from the 
Office of the Federal Register's home page at: http://www.archives.gov/federal_register and the Government Printing Office's Web page at: 
http://www.gpoaccess.gov.

Background

    The P3s are contractual arrangements between public and private 
sector entities that allow for greater participation by the private 
sector in the delivery of surface transportation projects and 
associated services. Generally, in addition to designing or building a 
project, a private partner in a P3 may be involved in financing, 
operating, and maintaining the project. By transferring certain risks 
and responsibilities to the private partner, P3s can result in more 
efficient and effective project delivery. However, P3 contracts are 
more complex and of a much longer duration than traditional 
construction contracts. Their terms and conditions address many non-
traditional requirements, such as financing arrangements and 
performance during the lengthy concession period. Public agencies need 
expertise to negotiate P3 concession agreements successfully. Section 
1534(d) of MAP-21 (Pub. L. 112-41; 126 Stat. 405) requires the DOT to 
develop P3 contracts that could serve as a model to States and other 
public transportation providers in developing their own P3 contracts.
    After considering written comments responding to a notice published 
at 78 FR 1918 on January 9, 2013, as well as those received during a 
Listening Session on January 16, 2013, FHWA

[[Page 2470]]

chose to develop the model contracts as informational guides, rather 
than prescriptive templates, for State and local governments entering 
into P3 transactions.

About the Toll Concessions Model P3 Contract Guide

    The Toll Concessions Model P3 Contract Guide focuses on issues 
critical to achieving public sector objectives and protecting the 
interest of the taxpaying and traveling public. The Core Guide 
discusses seven specific issues, per the following Table of Contents:

1. Introduction
2. Tolling Regulation
3. Benefit-Sharing
4. Supervening Events
5. Changes in Equity Interests
6. Change in Law
7. Defaults, Early Termination, and Compensation
8. Handback

    The FHWA is not accepting any further comments on the Core Guide, 
which was published on September 10, 2014, and can be found on the 
Docket (FHWA-2014-0006) and at http://www.fhwa.dot.gov/ipd/pdfs/p3/model_p3_core_toll_concessions.pdf.
    There are, of course, many substantive P3 contract provisions in 
addition to the seven discussed in the Core Guide. With today's 
publication of the draft Addendum, FHWA proposes to complete the Toll 
Concessions Guide with the following chapter topics:

9. Construction Performance Security
10. Insurance
11. Lenders Rights and Direct Agreement
12. Department step-in
13. Performance Standards and Non-Compliance Points
14. Consumer Protections
15. Federal Requirements
16. Governmental Approvals and Permits
17. Utilities and Third Party Rights
18. Financial Model Adjustments
19. Department and Developer Changes
20. Additional Capacity Construction Requirements
21. Nature of Proprietary Interest
22. Contract Term
23. Developer Indemnities
24. Dispute Resolution
25. Intellectual Property
26. Amendments to Key Developer Documents
27. Assignment
28. General Provisions

    The Draft Addendum also includes the Glossary of Terms developed 
for the Core Guide. Comments suggesting changes to glossary terms will 
be evaluated in light of their impact on the entire Toll Concessions 
Guide.
    The Draft Addendum can be found on the Docket (FHWA-2014-0006) and 
at the following link: http://www.fhwa.gov/ipd/pdfs/p3/model_p3_toll_concessions_addendum.pdf.
    In coming months, FHWA will publish a draft guide to availability 
payment concessions, in which government appropriations are the source 
of compensation to the private sector partner. The use of availability 
payments in P3 transactions is increasing, and many provisions in the 
Toll Concessions Model P3 Contract Guide will be germane to the 
Availability Payment Concessions Model P3 Contract Guide, which will be 
published from the start as a single, complete draft. Similar to the 
toll guides, FHWA will invite public comments on the Availability 
Payment Concessions Model P3 Contract Guide.

    Authority:  Section 1534 (d) of Moving Ahead for Progress in the 
21st Century, MAP-21, enacted October 1, 2012.

    Issued on: December 1, 2014.
Gregory G. Nadeau,
Acting Administrator, Federal Highway Administration.
[FR Doc. 2015-00552 Filed 1-15-15; 8:45 am]
BILLING CODE 4910-22-P