Draft Availability Payment Concessions Public-Private Partnership Model Contract Guide |
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Gregory G. Nadeau
Federal Highway Administration
October 8, 2015
[Federal Register Volume 80, Number 195 (Thursday, October 8, 2015)]
[Notices]
[Pages 60950-60952]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-25656]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
[Docket No. FHWA-2014-0006]
Draft Availability Payment Concessions Public-Private Partnership
Model Contract Guide
AGENCY: Federal Highway Administration (FHWA), Department of
Transportation (DOT).
ACTION: Notice; request for comments.
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SUMMARY: On July 17, 2014, the President announced the Build America
Investment Initiative, a government-wide effort to increase
infrastructure investment and economic growth by engaging with state
and local governments and private sector investors to encourage
collaboration, expand the market for public-private partnerships (P3s)
and put Federal credit programs to greater use. As part of that effort,
the Presidential Memorandum tasked the U.S.
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Department of Transportation (USDOT) to establish the Build America
Transportation Investment Center (BATIC), a one-stop-shop for state and
local governments, public and private developers and investors seeking
to utilize innovative financing and P3s to deliver transportation
projects. USDOT has made significant progress in its work to expand
access to USDOT credit programs, spread innovation through tools that
build capacity across the country, and deliver project-focused
technical assistance to help high-impact projects develop plans,
navigate Federal programs and requirements, and evaluate and pursue
financing opportunities. This includes an effort to provide a range of
technical assistance tools to project sponsors, including a series of
model contract provisions for popular P3 project types. Development of
these tools fulfills a requirement under Moving Ahead for Progress in
the 21st Century Act (MAP-21) that 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 FHWA values public input in
the development of the model contract guides, and seeks continuing
input. All documents in this series share the same Docket Number (FHWA-
2014-0006).
To address the most popular types of P3s, FHWA is producing
separate guides to the two most common agreements for concessionaire
compensation: user tolls and availability payments (APs). For the
purpose of public comment, the Toll Concessions Guide was divided into
two parts. The first part, addressing the highest profile (``Core'')
provisions, was published in final form on September 10, 2014. The
second part (the ``Addendum''), addressing additional substantive
provisions, was published in draft form on January 16, 2015. As
described below, FHWA is deferring publication of the final version of
the Addendum in order to obtain public comment on additional material
(provided with this announcement) relevant to the concessions guides.
With this notice, FHWA publishes a Draft Availability Payment
Concessions P3 Model Contract Guide (``AP Concessions Guide'') so that
the general public and interested stakeholders may provide comments.
The AP Concessions Guide can be found on the Docket (FHWA-2014-0006)
and at the following link:http://www.fhwa.dot.gov/ipd/pdfs/p3/apguide.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.
In addition, a separate chapter on Labor Best Practices recommended
by the U.S. Department of Labor has been added to the Docket and is
available at the following link: http://www.fhwa.dot.gov/ipd/pdfs/p3/laborbestpractices.pdf. This chapter discusses labor provisions
recommended by the U.S. Department of Labor for all P3 concession
agreements, following a collaboration with USDOT, regardless of source
of funding (i.e., Federal, State, or private) or form of compensation
(i.e., user tolls or APs). The FHWA intends to incorporate this chapter
into the final contract guides for both user toll and AP concessions;
therefore, FHWA is seeking public comment on this document prior to
finalizing the Toll Concession Addendum.
DATES: Comments must be received on or before October 29, 2015. Late
comments will be considered to the extent possible.
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, or 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.
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
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. 112-141; 126 Stat. 584) 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 chose to develop the model
contracts as informational guides, rather than prescriptive templates,
for State and local governments entering into P3 transactions.
About the Availability Payment Concessions P3 Model Contract Guide
The second most common P3 contract uses APs to compensate a
concessionaire. In an AP concession, scheduled government
appropriations provide periodic payment to the concessionaire during
the term of the agreement, which is typically 30 to 40 years. Payments
can be adjusted for
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non-availability of the facility or for operational non-performance.
Many provisions in AP contracts are similar to those in toll revenue
contracts.
The AP Concessions Guide focuses on issues critical to achieving
public sector objectives and protecting the interest of the taxpaying
and traveling public. The Draft AP Concessions Guide focuses on
nineteen specific provisions. Unlike the Toll Concessions Guide, which
for reasons of public comment was split into separate Core and Addendum
sections, the AP Concessions Guide incorporates all provisions into a
single document, with the following chapter headings:
1. Introduction
2. Completion Testing and Performance Security
3. Availability Requirements
4. Maintenance and Handback Requirements
5. Payment Mechanism, Performance Monitoring and Financial Model
Adjustments
6. Insurance
7. Contract Term and Nature of the Proprietary Interest
8. Supervening Events
9. Change in Law
10. Department and Developer Changes
11. Assignment and Changes in Equity Interests
12. Defaults, Early Termination, and Termination Compensation
13. Indemnities
14. Federal Requirements
15. Amendment to Key Developer Documents
16. Lenders Rights and Direct Agreement
17. Department Step-In
18. Disputes
19. Intellectual Property
20. General Provisions
The AP Guide Concessions Guide can be found on the Docket (FHWA-
2014-0006) and at the following link: http://www.fhwa.dot.gov/ipd/pdfs/p3/apguide.pdf.
About the Labor Best Practices Recommendations
Any project, including a P3 concession, that receives Federal
assistance pursuant to title 23 of the United States Code, must comply
with all Federal laws, including labor laws, pertaining to the use of
Federal funds. However, as a best practice, the U.S. Department of
Labor encourages parties to a P3 agreement to consider adopting labor
practices that provide worker protections beyond those required by law.
With this notice, FHWA is also publishing for public comment a
separate chapter, authored by the U.S. Department of Labor, in
collaboration with USDOT, on Labor Best Practices in P3 concessions.
Because this chapter discusses issues applicable to both toll and AP
concession contracts, FHWA will defer publication of the Final Toll
Concessions P3 Model Contract Guide Addendum until receiving comments
on this additional document. The Labor Best Practices chapter includes
the following topics:
Prevailing Wages and Fringe Benefits
Employee Benefits
Incumbent Worker Nondisplacement and Protections
Workforce Development and Apprenticeship
Workplace Health and Safety
Wage and Classification Transparency
Equal Employment Opportunity
Project Labor Agreements
Responsible Contractor Policy
The Labor Best Practices chapter can be found on the Docket (FHWA-
2014-0006) and at the following link: http://www.fhwa.dot.gov/ipd/pdfs/p3/laborbestpractices.pdf.
The FHWA intends to incorporate the Labor Best Practices chapter
into both of its P3 concession guides. Upon conclusion of the public
comment process, the final Toll Concessions Guide (combining the Core
and Addendum provisions) and the final AP Concessions Guide will be
posted on the FHWA Web site at http://www.fhwa.dot.gov/ipd/p3/.
Authority: Section 1534(d) of Moving Ahead for Progress in the
21st Century, MAP-21, enacted Oct 1 2012.
Issued on: September 21, 2015.
Gregory G. Nadeau,
Administrator, Federal Highway Administration.
[FR Doc. 2015-25656 Filed 10-7-15; 8:45 am]
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