Infra Insight Blog

The UC Merced 2020 Project was a big winner at P3 Bulletin’s annual P3 Awards ceremony held in Washington D.C. last month, claiming the Gold Award for Best Social Infrastructure Project, along with the Silver Award in the Government Agency of the Year category. The award comes approximately one year after the historic groundbreaking on the project, which is currently under construction.

The project consists of the comprehensive development, design, construction, financing, operations, and maintenance of academic, administrative, research, recreational, student ...

The Sonoma-Marin Area Rail Transit (SMART) District kicked off passenger rail revenue service in Sonoma and Marin counties last week. The 43-mile rail line includes ten stations from the Sonoma County Airport to Downtown San Rafael.

The new service operates across former Northwestern Pacific Railway Co. (NWP) rail line. Acquisition of the rail line dates back to 1969 when the California Legislature directed the Golden Gate Bridge, Highway, and Transportation District to develop a transportation facilities plan. In its plan, the district recommended the preservation of ...

In the early hours of August 15, 2017, the Denver City Council approved a $1.8 billion development agreement between the City and County of Denver’s Department of Aviation and Denver Great Hall, LLC, a consortium led by Madrid-based Ferrovial, for the Great Hall Project. The City Council’s approval follows a 12-month predevelopment and negotiation phase and represents an opportunity for the airport to leverage the expertise of the Ferrovial-led team to relocate and modernize its security screening facilities and revitalize and expand concessions offerings within the ...

As part of an effort to facilitate the use of public-private partnerships (P3s) in public transportation capital projects, the Federal Transit Administration (FTA) issued on Monday a Notice of Proposed Rulemaking (NPRM) that aims to streamline the project approval process.

Under the proposed Private Investment Project Procedures (PIPP) set forth in the NPRM, recipients of Federal funding for public transportation projects would be able to request a modification or waiver of specific FTA requirements if the recipient demonstrates that those requirements discourage the use of ...

Los Angeles World Airports (LAWA) released the Final Request for Proposals (Final RFP) for the procurement of the elevated 2.25-mile Automated People Mover train (APM) at Los Angeles International Airport (LAX) on July 28, 2017. The Final RFP was provided to the three short-listed Proposer teams participating in the APM procurement.

The project is the first APM system to be procured through an availability payment public private partnership (P3) delivery model.  The selected Proposer will design, build and partially finance the APM system, and then will operate and maintain the ...

SH 130 Concession Company, the private entity that operates and maintains the 41-mile southern section of State Highway 130, has emerged from Chapter 11 protection with new ownership, new senior management and $260 million in new financing. The financial reorganization has removed $1.4 billion in debt from the balance sheet of SH 130 Concession Company and will significantly improve the liquidity of the business.

SH 130 Concession Co. operates and maintains Segments 5 & 6 of SH 130 from Mustang Ridge to Seguin, Texas. The road is owned by the Texas Department of Transportation, which ...

In Florida, All Aboard Florida, a private entity, is about to launch passenger rail service from Miami to West Palm Beach, with future service extending to Orlando. In California, the California High-Speed Rail Authority is currently constructing a high-speed passenger rail line with the long-term goal of connecting the metro areas of San Francisco and the Los Angeles.  These projects have a common denominator: each envisions intercity passenger rail service entirely within one state.  But when it comes to economic regulation by the federal government, these projects are treated ...

President Trump kicked off infrastructure week on Monday, June 5^th, by proposing to corporatize the U.S. air traffic control system, shifting about 35,000 workers, including unionized traffic controllers, technicians, and others, off of the government payroll, and removing the Federal Aviation Administration from its role operating the business that it regulates.  It’s an idea that has been in the national discourse since at least the 1980’s, and is supported by the major U.S. airlines and other key industry players, including the union representing air traffic ...

Among other policy initiatives, the Trump Administration has advocated for the need to improve the nation’s infrastructure in order to maintain America’s economic competitiveness. In its recently released 2018 proposed budget, the Administration included $200 billion in outlays related to its infrastructure initiatives.  The Administration’s budget also focuses on leveraging private sector involvement as part of the overall solution to reform and change how infrastructure projects are regulated, funded, delivered and maintained.

There have been reports that one ...

On Tuesday, May 16, 2017 the Senate’s Committee on Environment and Public Works Subcommittee on Transportation and Infrastructure will hold a hearing titled Leveraging Federal Funding; Innovative Solutions for Infrastructure.

The stated purpose of the hearing is for Senators to examine the need for more public sector funding and private sector financing in the Federal Highway Program.  To this end, the Subcommittee has scheduled the following individuals to testify on this topic:

• Eric Garcetti (Mayor, City of Los Angeles; Chair of U.S. Conference of Mayors Infrastructure ...

The Angels^® Flight Railway Foundation, represented by Nossaman LLP and Shumaker Mallory LLP, reached a historic agreement with a team led by ACS Group and including Sener Engineering and Systems, to put the iconic Angels Flight^® Railway in downtown Los Angeles back into service by this coming Labor Day.

The agreement utilizes a public-private partnership to restore the Railway to passenger service, through full-scale modernization and state-of-the-art safety improvements, and to operate and maintain it to industry standards for 30 years. Borrowing  a revenue risk concession ...

Last week the Orange County Transportation Authority executed the design/build contract for the I-405 Improvement Project with OC405 Partners, a joint venture consisting of OHL USA and Astaldi Construction Corporation.  With a contract price of $1,217,065,000 and a total estimated project cost of $1.9 billion, the project, which consists of 16 miles of reconstruction of one of the most congested corridors in the United States including 14 miles of tolled express lanes, is the largest highway project in California currently under development.

OCTA is a multi-modal county ...

A three-judge panel of the California Court of Appeal for the Third District heard oral arguments last week in the longstanding companion cases challenging the legality of AB 32’s cap and trade auctions. (California Chamber of Commerce v. California Air Resources Board and Morning Star Packing Co. v. California Air Resources Board)  The questions most frequently posed by the Justices related to the nature of payments made for greenhouse gas (GHG) emission credits, a contributor in the billions of dollars to the state general fund for programs designed to reduce greenhouse gasses ...

Federal Transit Administration (FTA) grant recipients and the firms that work on the projects have a twenty years in the making, updated resource to assist them in one of the more complex areas of FTA projects. The FTA last week published its Buy America Handbook, which contains the FTA’s best practices for conducting pre-award and post-delivery audits for rolling stock procurements.  The Handbook replaces the FTA’s 1995 handbooks for both rail vehicles and buses and is a nonbinding guidance document for use by grant recipients, auditors, manufacturers and suppliers.

FTA’s ...

It’s been a productive time for advocates of water in the U.S. with President Obama signing into law the Water Infrastructure Improvements for the Nation Act (WIIN).  WIIN includes the Water Resources Development Act of 2016 (WRDA), together with provisions to authorize critical water projects  and improve drinking water infrastructure, water storage and supply, flood control and waterways across the nation.

A summary of some of WIIN’s key attributes are set out below:

• WIIN authorizes Congress to provide $20 million for the Water Infrastructure Finance and Innovation Act ...

The National Council for Public Private Partnerships (NCPPP) and the Kentucky Chamber of Commerce recently concluded on October 28 a very well-attended two day conference in Lexington, Kentucky on the Commonwealth’s new public-private partnership (P3) enabling legislation, the so-called "HB-309.  HB-309’s chief drafter, Rep. Leslie Combs, was on-hand, participating in nearly every panel discussion, either as a panelist or from the audience.  Rep. Combs reflected on HB-309 as if she were a proud mama, and her and fellow Kentuckians’ enthusiasm for its flexibility ...

The U.S. Department of Transportation (USDOT) is calling for project applications for $850 million in transportation infrastructure grants, representing the second opportunity for funding from a program that has already received tremendous interest from public project sponsors and the infrastructure community. The grants, announced in a Notice of Funding Opportunity posted on the USDOT website on October 28, find their genesis and funding authorization in the FAST Act (P.L. 114-94), which President Obama signed into law on December 4, 2015.

The FAST Act created a ...

Over a thousand US public finance attorneys converged on the City of Chicago last week for the annual National Association of Bond Lawyers Bond Attorneys Workshop.  The conference, the oldest and largest of its kind, featured a number of breakout sessions devoted to a wide range of issues facing the public finance legal community, including the new management contract rules recently issued by the IRS, Revenue Procedure 2016-44 .  As I wrote sometime ago, NABL was a major influence proposing changes to the rules to make them less formulaic and more flexible given the range of business ...

Public agencies with toll-setting authority should take note of a recent federal court decision relating to the uses of user fees and toll revenue, as well as the stated goals of the plaintiff in that case.

The U.S. District Court for the Southern District of New York recently clarified the constitutional uses of toll revenue in American Trucking Associations v. New York State Thruway Authority, 13 Civ. 8123 (CM) (S.D.N.Y. Aug. 10, 2016). In this case, commercial trucking companies and the American Trucking Associations (ATA) claimed that the New York State Thruway Authority ...

Los Angeles World Airports (LAWA) reached a milestone in its estimated $5 billion Landside Access Modernization Program (LAMP) this week when it received statements of qualifications to design, build, finance, operate and maintain an automated people mover, in response to a request for qualifications issued by LAWA on June 9, 2016.  The five statements of qualification submitted on August 11, 2016 show significant interest by the industry in this program.  LAWA’s official press release has a complete list of the five teams.

The automated people mover, which will be approximately ...

The Regents of the University of California reached financial close on the UC Merced 2020 Project on August 16, 2016.  The project is the first higher education availability payment P3 project to be awarded in the United States, and may well serve as a template for future higher education capital projects, both within the UC system and nationally.

The Regents entered into the Project Agreement with Plenary Properties Merced LLC (PPM) for a 39-year contract term.  The PPM team includes Plenary Group, as sole equity member of PPM, Webcor Builders, as lead contractor, Skidmore, Owings & ...

The need to spend significant dollars on the repair and expansion of the nation’s public infrastructure is a major concern expressed by many.  Even the two presidential candidates for the major political parties, who don’t seem to agree on anything else, agree that a commitment to repair and rebuild the nation’s infrastructure is critical to economic productivity and opportunity for its citizens.

In a recent paper published by the Center for American Progress, a public policy and research organization, entitled Assessing Claims About Public-Private Partnerships, the ...

With the rapid pace of innovation and deployment of intelligent transportation systems (ITS) to enhance existing transportation infrastructure, transportation officials frequently procure and manage sophisticated systems that collect, use and maintain vast amounts of data. Today’s transportation officials must possess considerable technological proficiency in addition to their traditional expertise in civil engineering and construction.

Identifying technology to optimize infrastructure, and crafting complex technical specifications to procure the same, is ...

U.S. Transportation Secretary Anthony Foxx, senior Department staff, and even an official from the White House gathered at U.S. Department of Transportation headquarters on July 20th to celebrate the grand opening of the Build America Bureau. After sharing a cake emblazoned with its logo, the dignitaries led a tour through the Bureau’s new office space in what used to be the library, replete with glass offices, motorized desks, and curved computer monitors. Compared to the cubical-farm offices of the modal administrations, the Bureau is clearly something different and new, and ...

Public entities have recently been looking for new ways to harness right of way (ROW) for broadband public-private partnership (P3) projects.  Last year, the city of Santa Cruz made history by entering into a roughly $50 million P3 with local Internet service provider Cruzio to deliver 1-gigabit broadband access to every property in the city’s jurisdiction.  Construction began this month.  San Francisco is now considering pursuit of a similar P3.  On the other side of the country, the Pennsylvania Turnpike Commission (PTC) recently released requests for proposals for legal and ...

In response to a request from the California Department of Transportation, 5,000 California drivers signed up for the state’s nine month pilot program to replace the state’s gas tax with a charge based on vehicle miles traveled.  Starting July 1 of this year, the volunteers will make simulated payments based on how many miles they travel.  Participants include drivers from every part of the state and from every socioeconomic background, according to Malcolm Dougherty, Caltrans executive director.  The opportunity to provide valuable input and evaluate the viability of a ...

The National Council for Public Private Partnerships, reengineered its 2016 P3 Connect annual conference June 27 to 29, 2016, posing the question What’s Next for public-private partnerships in the United States.  NCPPP (as it is widely known in the P3 space) launched four Institutes to offer answers.  NCPPP created four separate Transportation, Energy, Real Estate and Social Infrastructure and Water institutes, each of which met in Chicago over the three day conference starting discussions with where are we now and ending with where do we go from here.

In parallel, NCPPP reprised ...

Financing for the Maryland Purple Line closed on Friday, June 17 – marking an important milestone for the Maryland Transit Administration’s (and Maryland Department of Transportation’s) plan to deliver a transit solution to ease travel between the Maryland suburbs and Washington, D.C.

Once the project reached commercial close in early April, the winning concessionaire, Purple Line Transit Partners LLC (PLTP), worked closely with the MTA/MDOT team to finalize the financing structure and various other issues. This culminated in a week of financial closings which allowed ...

The Regents of the University of California announced on June 15, 2016 that it has selected Plenary Properties Merced as the successful proposer for the UC Merced 2020 Project.

We are impressed by the creativity, efficiency and aesthetic qualities evident throughout the winning proposal, said UC Merced Chancellor Dorothy Leland.  Plenary Properties Merced has produced a compact, environmentally sensitive design that blends beautifully with our existing campus, facilitates our multi-disciplinary teaching and research methods, and provides flexibility for future changes in ...

Public agencies and private entities are increasing collaboration to develop, operate and maintain a variety of transportation and building projects.  The involvement of a public agency in these public-private partnerships or P3s may necessitate compliance with statutes or regulations not otherwise applicable to privately developed projects, including a requirement to pay prevailing wages to construction workers.  In a recent decision, the U.S. Court of Appeals held that a private project developed on land leased from the District of Columbia (D.C.) is not subject to the Davis ...

Commonly when we think about state government owned railways, the image of commuter or light rail operations come to mind.  But many states own freight railroads as well.  In a few instances a state may have started its own line, while in other situations a state may have stepped in to preserve a rail line from abandonment.

Oklahoma is one of these states that have purchased rail corridors facing abandonment.  One such example is the Cowboy Sub, a 22-mile rail line originally purchased from the BNSF Railway Company in 1998 to save the rail line from abandonment.  Now, the Oklahoma DOT seeks to ...

The Federal Aviation Administration (FAA) proposes to amend (81 Fed. Reg. at 26611) (May 3, 2016) a 2004 rule, restricting expenditure of proceeds from passenger facility charges (PFC) funds to airport access infrastructure used only by airport patrons and workers, in order to allow more flexibility on the use of PFCs on airport rail projects. The proposed PFC policy change could provide additional funding and finance options for airports and transit systems working to improve intermodal connections and give the public better access to the nation's airports.

PFCs are airline ...

On May 13th, the Federal Transit Administration (FTA) published the Final Environmental Impact Statement (FEIS) on the Metropolitan Council’s Southwest LRT Project, a major step forward for the $1.79 billion project. The Met Council is the regional policy-making body, planning agency, and a provider of essential services for the Minneapolis-St. Paul metropolitan region.

The FEIS

The FEIS outlines the Met Council’s commitments to deal with those impacts throughout construction and operation of the Southwest LRT Project.

Input from the public directly shaped the ...

Lower gas prices and decreased revenue from California’s Price Based Excise Tax (PBET) on gasoline are taking their toll on the state’s transportation funding.  California Transportation Commission (CTC) staff recently recommended enormous decreases in the upcoming five-year State Transportation Improvement Program (STIP).  The CTC Commission will consider the staff’s recommendations and is expected to make a final decision at its meeting on May 18 and 19.

The staff’s recommendations include no new transportation projects in the next five years, as well as ...

Voting and registration are officially open for the P3 Awards Gala hosted by InfraAmericas and The Performance Based Building Coalition (PBBC) which takes place on Monday, June 13 in New York City prior to the annual US P3 Forum held on June 15-16. The US P3 Forum is the P3 industry’s premier gathering of infrastructure professionals including infrastructure developers, investors, financiers, state and federal public officials and regional transportation authorities.

Voting

This industry awards dinner recognizes individual achievement in advancing P3 projects. The ...

On April 18, 2016, Los Angeles World Airports (LAWA) reached an initial milestone in its Landside Access Modernization Program (LAMP) by issuing instructions for how automated people mover operating system suppliers can request a determination of their eligibility to participate in an upcoming procurement.

As part of an overall modernization program at Los Angeles International Airport (LAX), LAWA is undertaking LAMP to alleviate congestion and provide better landside passenger movement around LAX.  The major elements of LAMP include a consolidated rental car center ...

Governor Pete Rickets followed through on a promise to rethink infrastructure delivery in Nebraska.  Signing LB 960, the Transportation Innovation Act, into law, Nebraska is poised to clear its backlog of highway development in the state.  The new law passed unanimously in mid-April.

The Transportation Innovation Act reserved $50 million of Nebraska’s cash reserve and allocated approximately $400 million of gas tax revenue to the end of completing a 132-mile portion of an envisioned 600 mile expressway system within the State by 2033.  New tools available to the Nebraska ...

For years, policymakers and economists around the country have been well aware that the federal gas tax is dying.

In its report to Congress, the National Surface Transportation Infrastructure Financing Commission, on which I was honored to serve, made clear that we must replace the 18.4 cent federal gas tax with other means of funding transportation in order to maintain and improve our highways, bridges and transit systems in the United States.

The commission recommended a road user charge as the most effective approach to solving this problem.

[If] we fail to address the immediate ...

On April 6, 2016, the Maryland Board of Public Works unanimously approved the public-private partnership (P3) agreement for the Maryland Purple Line light-rail transit project, concluding the 30-day review period described in our previous blog.  The contract documents previously signed by the concessionaire have now been signed by the Maryland Department of Transportation’s (MDOT) Secretary Pete Rahn and the Maryland Transit Administration’s (MTA) Administrator, Paul Comfort.

At the Board of Public Works hearing, Comptroller Peter Franchot praised both the Governor ...

On Wednesday, March 30, 2016, Florida’s Governor Rick Scott signed two bills that further advance the state’s existing public-private partnership (P3) framework and provide additional guidance for implementing P3s. The two new laws will go into effect on July 1, 2016.

SB 124 amends the 2013 law that authorizes counties, municipalities, school boards, and other political subdivisions to use P3s for a wide range of facilities, including education facilities, transportation facilities, water/wastewater facilities, roads, highways and bridges, healthcare facilities ...

Drivers of the I-405 in Orange County California are one step closer to an improved facility.  Today the Orange County Transportation Authority (OCTA) authorized release of a final request for proposals to design and construct the I-405 Improvement Project, the largest highway project in Southern California.  The project includes upgrading 16 miles of the I-405 between SR-73 in Costa Mesa and I-605 near the Los Angeles County line, adding a general purpose lane in each direction.  A new lane will also be added next to the current HOV lane between SR-73 and SR-22, and both lanes, in each ...

The Illinois Senate is currently reviewing a bill that would greatly expand the authority of public agencies in Illinois to enter into public-private partnership (P3) agreements.  To date, such authority has been limited to the Illinois DOT, the State Toll Highway Authority and, in limited circumstances, local governments.

Democratic Senator Heather Steans introduced the bill on February 19th.  Shortly thereafter, in a show a bi-partisan support, Republican Senator Karen McConnaughay became a chief co-sponsor of the bill.

The bill, known as the Public-Private Partnerships ...

The wait is nearly over: for those living on the Westside of Los Angeles, passenger rail transit will be available in just a few short months. Officials announced last month that the final extension of the Expo Line will open on May 20, extending service from Culver City to just a few blocks from the Santa Monica pier.

This will be the first passenger rail transit service to the far Westside since Pacific Electric streetcars stopped running to Santa Monica in 1953. The project completes the 15-mile Expo Line between downtown Los Angeles and Santa Monica. Train trips between downtown Santa ...

New Mexico will now allow certain highway and projects funded in whole or in part by federal funds to use the design-build delivery method.  On the last day (March 9, 2016) to sign bills from the most recent legislative session, Governor Susana Martinez signed HB 206 , which permits the Department of Transportation to use the design-build delivery method for road and highway projects above $50 million.   Previously, road and highway projects were specifically prohibited from using design-build delivery unless part of a very limited number of demonstration projects.  Opening road and ...

On March 2, Governor Larry Hogan and Maryland Department of Transportation (MDOT) Secretary Pete Rahn greenlighted procurement of the Purple Line by MDOT and the Maryland Transit Administration (MTA). The contract has been posted and is scheduled for review by the Maryland Board of Public Works in early April.

Part of the region’s ambitious transit strategic plan, the Purple Line is a 16.2 mile, 21 station light rail line that provides additional mobility to the region. MTA estimates total daily ridership will be 69,000 per day by 2030 (74,000 by 2040). The new line will interface ...

Introduction

On Wednesday, February 24, 2016, Florida’s Governor Rick Scott signed two bills which exempt trade secret financial information from the state’s Sunshine Laws. The change is significant in a state known for expansive open records and meetings laws, and should provide comfort to private sector participants pursuing P3 projects and otherwise doing business in Florida. Both acts take effect on October 1, 2016.

SBs 180 and 182

SB 180 amends Section 812.081 of the Florida Statutes by expanding the definition of trade secret to include financial information ...

State and local governments can now obtain railroad bridge inspection reports by making requests on the website of the Federal Railroad Administration (FRA). This new tool will help state and local governments gain better information regarding this important aspect of railroad safety in their communities.

Access to the public version of bridge inspection reports is required by section 11405 of the Fixing America’s Surface Transportation Act (FAST Act). Under the FAST Act, the following information about a bridge will be included in the report:

• The date of the last inspection;

At the end of 2015, two modal administrations of the United States Department of Transportation (US DOT) have encountered changes to their Buy America programs.  Both the Federal Transit Administration (FTA) and the Federal Highway Administration (FHWA) have had changes imposed upon their Buy America procedures – the FTA by Congress through provisions in the Fixing America’s Surface Transportation Act (or, FAST Act) and the FHWA through a recent opinion in the United States District Court for the District of Columbia (United Steel, Paper and Forestry, Rubber, Manufacturing ...

Design liability and right-of-way risk allocation are topics addressed in a legal research digest recently published by the Transportation Research Board’s National Cooperative Highway Research Program (NCHRP).  The report, which can be downloaded here, discusses statutes, case law and contract language relevant to design liability, addresses how the right of way acquisition process interrelates with design-build projects, and analyzes how design-build contracts allocate the related risks.  The report was authored by Michael Loulakis (Capital Project Strategies ...

We all know how hard it is to change federal statutes these days—you need an Act of Congress and the President to sign the bill.  Last week, a group of the top public finance lawyers in the US offered an approach relating to the use of tax exempt bonds that wouldn’t require a change in tax statutes but instead could be accomplished through a change in the regulations relating to the so-called private use test.  As the group pointed out in its letter to high ranking US Treasury officials, Congress itself has made it clear that Treasury had the authority to adopt other, more flexible rules.

The ...