Rail Projects in Chicago and Ohio Receive U.S. Department of Transportation INFRA Grant Funding

Last week the U.S. Secretary of Transportation Elaine Chao notified Congress of DOT’s INFRA grant winners.  The Chicago CREATE program will receive over $132 million to reduce congestion where multiple railroads intersect and to eliminate automobile traffic delays by separating rail and automobile traffic.  In Ohio, the Ohio Rail Development Commission will receive over $16.2 million to improve 30 miles of rail line.

The INFRA program formerly known as the FASTLANE program focuses on highway projects, but projects that shift freight to other modes of transportation are eligible.

Under the INFRA program, DOT prioritizes projects that have considerable local investment.    The CREATE program is an example of local commitment to a transportation infrastructure project.  In addition to the $132 million in federal funds, the Illinois DOT ($111M), Cook County ($78M), and Chicago ($9M) are contributing to the project as well as Metra ($23M) and Amtrak ($5M).  The Association of American Railroads is also contributing $116 million.

The INFRA grant funding will allow the CREATE Program to fund three of these proposals:

  • The Forest Hill flyover consists of a new north-south flyover structure eliminating conflicts between north-south and east-west train movements at the Foresthill Junction;
  • The 71st Street Grade Separation will separate the Western Avenue rail corridor from 71st street;
  • The Argo Connections component will improve connections at the Argo and Cana junction, address the 87th Street chokepoint, and increase capacity at Argo yard.

These projects are part of the larger CREATE program, which has identified over 70 projects needed throughout Chicago to relieve rail related congestion.

The INFRA grant to the Ohio Rail Development Commission is another example where the sponsor, a division of the Ohio Department of Transportation, is partnering with a railroad. The Norfolk Southern is contributing 40% of the funding to improve 30 miles of rail line along the Ohio River in Jefferson and Belmont County which includes capacity improvement at two rail yards.  Local officials in this rural area hope that the track improvements will attract an ethane cracker plant.



Financial Close for Automated People Mover (APM) Project at LAX

On June 8, 2018, the City of Los Angeles, acting through the Los Angeles World Airports (LAWA) Board of Airport Commissioners, and LAX Integrated Express Solutions, LLC (LINXS) successfully reached financial close on the $4.9 billion agreement for the APM project.

After reaching commercial close with LAWA on April 11, 2018, LINXS proceeded to secure equity contributions and to arrange and close both bond and bank financings for the project.  Private financing for the project is comprised of approximately (a) $1.2 billion in private activity bonds issued by the California Municipal Finance Authority on behalf of LINXS; (b) a $270 million construction period credit facility with loan commitments from Canadian Imperial Bank of Commerce New York Branch, Mizuho Bank Ltd., Sumitomo Mitsui Banking Corporation, Korea Development Bank and Toronto-Dominion Bank; and (c) an aggregate equity contribution of $103 million secured by letters of credit provided by Fluor Enterprises, Inc. (27%), Balfour Beatty Investments, Inc. (27%), HOCHTIEF LINXS Holding, LLC (18%), ACS LINXS Holdings, LLC (18%) and  Bombardier Transportation (Holdings) USA Inc. (10%).

Courtesy of LAWA

The bonds were underwritten by Merrill Lynch, Pierce, Fenner & Smith Incorporated, Citigroup Global Markets Inc. and Ramirez & Co., Inc. Certain maturities of the bonds have the benefit of bond insurance provided by Assured Guaranty Municipal Corp.

Fitch Ratings assigned a rating of “BBB+” to the bonds (other than the insured bonds) and S&P Global Ratings assigned a rating of “AA” to the insured bonds.

LINXS’ debt obligations under the bonds and to the banks, and distributions to equity providers, will be paid through revenues generated by the APM project.  The revenues generated by the project are the payments from LAWA to Developer under the terms of the project agreement, comprised of (a) five Milestone Payments, together with certain additional D&C payments, paid by LAWA during the construction period and a sixth Milestone Payment paid after final completion; and (b) “availability payments” that commence when the APM system is available for passenger service and continue through the operations and maintenance period.

Under the terms of the project agreement LAWA may make downward adjustments to availability payments if the APM system does not meet specified availability and performance requirements.  As such, Developer’s private financing is at risk to performance, creating a strong incentive for Developer to provide high quality infrastructure and service throughout the operating period.  LAWA’s APM is the first APM system to be procured through an availability payment P3 delivery model.

The APM will directly benefit airport users and the community by vastly improving mobility and access at the airport. The APM system will include six stations and up to nine electric powered trains, each with four cars, in simultaneous operation.  The APM trains will travel on an elevated 2.25-mile long guideway, easing access into and out of the second busiest airport in the United States (LAX) and connecting travelers to LA Metro’s Crenshaw Light Rail Line, intermodal transportation facilities and a consolidated rental car center.



PhilaPort Wins $25.5M INFRA Grant for Packer Avenue Marine Terminal Modernization

Today, US DOT is formally announcing 26 INFRA grant award winners.  The INFRA program is the Administration’s rebranding of the former FASTLANE grant program, authorized by the 2015 FAST Act.  Both programs were intended to prioritize highway projects, although congestion-reducing rail and port infrastructure projects are eligible.

Among the 26 winners is the Philadelphia Regional Port Authority (“PhilaPort”), which received a $25.5M grant for a $110.5M project to improve the Packer Avenue Marine Terminal. The project will add capacity to modernize the Terminal, including deeper berths (45-feet) to match the new 45-foot depth of the Delaware River’s main channel; four new electric engine cranes; two crane conversions (diesel to electric); demolition of antiquated warehouse facilities and construction of a new temperature controlled warehouse, with related offsite warehouse improvements; and added crane rail tracks.

Courtesy of The Port of Philadelphia

The Packer Avenue Marine Terminal improvements will increase PhilaPort’s ability and efficiency service marine vessels visiting the port, including the large Post-Panamax vessels.

PhilaPort is leveraging the INFRA grant with State and private sector investment and incorporating the life-cycle costs of the Packer Avenue Marine Terminal improvements. Astro Holdings, Inc., the tenant of the Packer Avenue Marine Terminal, will purchase one of the new cranes for the terminal and dedicate significant privately-owned port acreage as part of the project.

USDOT is required to notify the congressional authorizing committees of jurisdiction of the proposed projects selected under the INFRA program. The list must remain with the committees for a 60-day review period before the agency can award the grants.

GAO Report Critiques FTA’s Failure to Implement MAP-21 and FAST Act Mandates

A new Government Accounting Office report says the Federal Transit Administration has failed to meet three statutory requirements (two from MAP-21 and one from the FAST Act) related to the Capital Investments Grant program, the primary source of federal funding for commuter, light rail, subway, ferry and bus rapid transit projects.  FTA says it has no plans to do so.

GAO says FTA has not issued regulations for rating Core Capacity Improvement projects; established a grant program for simultaneous development of multiple transit projects; or implemented a pilot program for fast-track transit project approval.

These are not trivial matters.  Core Capacity Improvement projects are investments in existing commuter, light rail, subway, ferry and BRT systems designed to increase corridor capacity, so a rating system could ensure that the best projects get funding.  A grant program for simultaneous development of multiple transit projects (aka, a “program of interrelated projects”) could help transit systems in fast-growing cities deliver multiple, complementary projects more efficiently.  Implementation of a pilot program for fast-track transit project approval, a FAST Act mandate, would facilitate faster clearance and funding of capital grants.

FTA told GAO they had no immediate plans to advance any of these requirements, in part because the Trump Administration has proposed to phase out the Capital Investments grant program. GAO notes that the FY2018 omnibus spending bill appropriated $2.6 billion and “required FTA to continue to administer the program in accordance with the procedural and substantive requirements specified in statute.” This, by the way, is as pointed as GAO gets.

Even recognizing the other important work of the agency, I am surprised FTA is not moving to implement these statutory requirements.  FTA might be missing an opportunity to make the Capital Investments Grant program better, stronger and faster, which would do a lot to ensure the program’s survival.

New Federal Transit Administration Rule Seeks to Remove Barriers to P3s

In an effort to promote project flexibility, funding innovation, efficiencies and timely implementation, this week the Federal Transit Administration (FTA) released its final rule regarding P3s (and other private involvement) in public transportation projects.

The “primary goal” of FTA’s “Private Investment Project Procedures” (or “PIPP”), new 49 C.F.R. Part 650, is to “identify and address” FTA requirements that are “impediments to the greater use of public-private partnerships and private investment in public transportation capital projects, while protecting the public interest and any public investment in such projects.”  This new FTA rule was promulgated under authority granted under 2012’s MAP-21 Act.[1]

MAP-21 directed the U.S. Secretary of Transportation to develop policies that promote public understanding of the role of private investment in public transportation and to coordinate private sector participation in delivery of public transportation services.  The mandate was then, among other things, to identify and address impediments to “greater use” of P3 delivery and “private investment in public transportation projects.”[2]

FTA elected a strategy to set out special procedures outlined in the PIPP by which project sponsors may petition for modification to some federal, non-statutory requirements that pose the impediments described just above, not unlike the Federal Highway Administration’s strategy via SEP-15 authority.  Put another way, FTA wants to encourage modifications to these federal requirements that will “accelerate the project development process, attract private investment and lead to increased project management flexibility, more innovation, improved efficiency, and/or new revenue streams.”[3]  FTA is not trying to change the rules themselves.  Rather, it is using a flexibility strategy that lends itself to project-specific sensitivity.

Sponsors may not, however, seek to modify or waive NEPA requirements or statutory requirements, as this is outside FTA’s statutory authority under MAP-21.[4]

PIPP pertains only to public transportation projects that intend to involve private sector investment or developers – essentially P3 public transportation in specific forms.  PIPP defines P3 broadly as “a contractual agreement formed between a public agency and a private sector entity that is characterized by private sector investment and risk-sharing in the delivery, financing and operation of a project.”[5]  PIPP outlines an application process and the factors with respect to any eligible project[6] that the sponsor must demonstrate to FTA in order for FTA to consider waiving or modifying its non-statutory, non-NEPA requirement.[7]  The factors[8] are essentially whether the waiver or modification:

  • Would remove an impediment or “discouragement” to use of P3 (joint development or private sector investment);
  • Would encourage use of P3 (joint development or private sector investment);
  • Likely private sector investment or risk transfer “warrants” modification/waiver; and
  • Still protects the public interest and public investment in the project.

Project sponsors retain post-waiver/modification reporting responsibilities.  Central to the application is “evidence of committed financing,” including private sector investment, but FTA seeks further comment as to whether this is feasible at the time of the application – a chicken-and-egg issue.  Public comment to the final rule is invited, so further changes to PIPP may be forthcoming.

PIPP is largely unchanged from the July 31, 2017 proposed rulemaking.  PIPP outlines substantive changes, largely relating to project identification in long-term planning and other administrative matters regarding applications.

FTA’s move here fulfills the MAP-21 requirements but also is consistent with the Executive Branch’s “roadmap” for infrastructure, released in February, itself a principled extension and proposed implementation of MAP-21’s subsequent transportation bill, 2015’s “Fixing America’s Surface Transportation (FAST) Act.”[9]  Specifically, the PIPP supports the proposal’s key principle that project sponsors are to prioritize projects and make investment decisions. The natural extension through PIPP is to identify, and propose to remove, impediments to private investment via P3.

[1] Nossaman’s 2012 blog and more information on the then-remaining challenges to P3s that MAP-21 retained can be found here.

[2] P.L. 112-141 § 20013(b); see 49 U.S.C. § 5315.

[3] FTA-drafted Executive Summary of PIPP.

[4] 49 C.F.R. § 650.13

[5] 49 C.F.R. § 650.5

[6] Defined at 49 C.F.R. § 650.5 as “any surface transportation capital project that is subject to 49 U.S.C. ch. 53 [public transportation projects] and that will be implemented as a public-private partnership, a joint development, or with other private sector investment.”  See 49 C.F.R. § 650.5 for other relevant definitions.

[7] See 49 C.F.R. § 650, Subparts B and D.

[8] 49 C.F.R. § 650.11(b)(1) to (4).

[9] https://www.infrainsightblog.com/2018/02/articles/news/white-house-releases-roadmap-for-nations-infrastructure-congress-takes-the-wheel/

FRA Releases Latest Railroad Progress Report as PTC Deadline Looms

As the December 31, 2018 deadline approaches for freight, passenger, and commuter railroads to implement Positive Train Control (“PTC”), the Federal Railroad Administration (“FRA”) is reporting on the progress of individual railroads in complying with the mandate.

In 2008, Congress passed the Rail Safety Improvement Act and mandated that certain railroads carrying passengers or hazardous materials are required to install PTC.  The FRA describes PTC as a “communication-based/processor-based train control technology” designed to prevent “train-to-train collisions, overspeed derailments, incursions into established work zone limits, and the movement of a train through a main line switch in the wrong position.”

Congress initially established December 31, 2015 as the deadline for railroads to implement PTC, but later extended the deadline to December 31, 2018.[1]  Railroads may receive an additional extension of time to comply if the following statutorily mandated criteria are satisfied: all PTC hardware is installed, all necessary spectrum is acquired, all relevant personnel are trained, a revised PTC Implementation Plan is submitted to FRA, and the railroad has made sufficient progress on Revenue Service Demonstration.[2]

The FRA report of railroad PTC progress is collected from the railroads Quarterly PTC Progress Reports and FRA’s latest data is current up to the first quarter of 2018.  In this latest update, the FRA is reporting:

  • Railroad Progress Towards Meeting Statutory Criteria for an Alternative Schedule (i.e., extension)
  • Latest PTC Implementation Status By Railroad
  • PTC Implementation Status By Freight and Passenger Rail

This latest railroad status report is located on FRA’s Positive Train Control website.

[1] Positive Train Control Enforcement and Implementation Act of 2015, Pub. L. 114-73, § 1302, 129 Stat.  568, 576 (2015).
[2] 49 U.S.C. 20157 (a)(3)(B).

Senator Highlights Concerns Regarding Freight Train Interference of Amtrak Passenger Trains

The U.S. Senate Committee on Commerce, Science, & Transportation (“Commerce Committee”) recently held a nomination hearing to fill two vacancies on the Surface Transportation Board (“STB”), the economic regulator of railroads.  The nomination hearing of Patrick Fuchs and Michelle Schultz provided Senators with a venue to vent concerns related to the U.S. rail system.  In particular, Senator Wicker (R-MS) voiced concern over freight train interference of Amtrak passenger trains.

Congress created Amtrak in 1970 to relieve freight railroads of their responsibility to provide intercity passenger rail service.  In exchange, Congress required the freight railroads to permit Amtrak to have access to their rail lines.[1]  In 1973, Congress codified the requirement to give Amtrak trains “preference” over freight trains.  Under federal law, “Amtrak has preference over freight transportation in using a rail line, junction, or crossing.”[2]

In the Commerce Committee hearing, Senator Wicker prefaced his questions to the nominees with a monologue about Amtrak’s right to proceed ahead of freight traffic when Amtrak and a freight train converge at the same time.  Senator Wicker explained that under the current legislative framework, “Amtrak has preference over freight transportation in using a rail line.”  But, he  expressed concern that the law is not stringently followed – “in reality freight railroads have consistently denied such preference to Amtrak, in fact only 47% of long distance [passenger] trains were on-time at stations in FY 2017 and this is largely attributable to freight’s refusing to provide preference to passenger rail.”

See Senator Wicker’s statement here: (skip to 1:14:20 – 1:15:16)

At this time, preference can only be enforced through U.S. Department of Justice action.[3]  The STB’s authority to hear on-time performance complaints relating to preference is in question after a decision at the 8th Circuit and a series of decisions in the D.C. Circuit.[4]  Amtrak has asked Congress to provide it with a private right of action to enforce its statutory preference rights.[5]

[1] Rail Passenger Service Act of 1970, P.L. 91-518, 84 Stat. 1334 – 35 (Oct. 30, 1970).
[2] Amtrak Improvement Act of 1973, P.L. 93-146, 87 Stat. 552 (Nov. 3, 1973).
[3] 49 U.S.C. § 24103.
[4] See Union Pac. R.R. Co. v. Surface Transp. Bd., 863 F.3d 816 (8th Cir. Feb. 8, 2017); Assoc. of American R.R. v. Dept. of Transp., et al., No. 11-1499 (JEB) (D.D.C. Mar. 23, 2017)
[5] Rail Safety and Infrastructure-Stakeholder Perspectives: Hearing Before Comm. of Approp. Subcomm. on Transp., Housing, and Urban Development, and Related Agencies, 115 Cong. (2018)(testimony of Stephen Gardner, Executive VP & CCO, Amtrak). Available here.

Commercial Close Achieved for the Automated People Mover (APM) Project at LAX

The Automated People Mover (APM) train system project at Los Angeles International Airport (LAX) reached a remarkable milestone this week with Los Angeles City Council’s unanimous approval of a $4.9 billion agreement with  LAX Integrated Express Solutions (LINXS).

With City Council’s approval in hand, the City, acting through the Los Angeles World Airports (LAWA) Board of Airport Commissioners (BOAC), and LINXS reached commercial close on April 11th, signing the project agreement. LINXS will now proceed to obtain private financing for the project, and financial close is expected in mid-June.

Courtesy of LAWA

The agreement provides that LINXS (Developer) will design, build and partially finance the APM system, and then operate and maintain the APM system over a 25 year period.  LAWA will make milestone payments to LINXS during construction. Once the APM system is available for passenger service, LAWA will make “availability payments” to LINXS, which may be adjusted downward if the APM system does not meet specified availability and performance requirements.  LAWA’s APM is the first APM system to be procured through an availability payment P3 delivery model.

LINXS is the proposer that LAWA selected in January 2018 through LAWA’s comprehensive APM procurement process.  LINXS is comprised of ACS Infrastructure Development, Balfour Beatty, Bombardier Transportation, Fluor and HOCHTIEF PPP Solutions.

The APM system will include six stations and up to 9 electric powered trains, each with four cars, in simultaneous operation.  The APM trains will travel on an elevated 2.25-mile long guideway, easing access into and out of the second largest airport in the United States (LAX) and connecting travelers to LA Metro’s Crenshaw Light Rail Line, intermodal transportation facilities and a consolidated rental car center.

Northern Lights Express Proposed Passenger Rail Service Receives Federal Environmental Approval

Courtesy of the Minnesota Department of Transportation

The Northern Lights Express intercity rail proposal, connecting Minneapolis and Duluth, Minnesota with a stop in Superior, Wisconsin, advanced forward following a Finding of No Significant Impact (“FONSI”) from the Federal Railroad Administration (“FRA”).  The FRA’s decision found that the proposed rail project would not have any significant environmental impacts and allows the project to advance beyond the environmental phase.

Project proponents envision a rail service connecting six stations operating across existing BNSF Railway track.  The Northern Lights Express trains would travel at 90 miles per hour over 152 miles.  The new rail service would operate four round trips per day.  The majority of the track is in Minnesota, but 23 miles will cross Wisconsin.

The project would require construction of 42 miles of mainline and sidings to permit the Northern Lights Express passenger trains to share the corridor with BNSF Railway’s freight trains.  In order to accommodate higher passenger train speeds, the project requires rehabilitating the existing rail line, which will require new turnouts, crossovers, and improving the ballast.

The FRA, acting as the lead federal agency, provided $5 million in grant funding and the Minnesota DOT provided $3 million for the environmental analysis, preliminary engineering, service development, and financial management plan.   Although, FRA’s issuance of a FONSI is a significant step forward for the project, funding for the final design and construction has so far not been identified.

Contract Awarded for GO Transit Improvements in Scarborough and Unionville

Infrastructure Ontario and Metrolinx have awarded a fixed-price design-build-finance $245.5 million contract to upgrade Agincourt, Milliken, and Unionville GO stations on the Stouffville GO corridor.  The winning bidder, EllisDon Transit Infrastructure (EDTI), will deliver the project using Infrastructure Ontario’s Alternative Financing and Procurement model.  EllisDon constituents will provide financing and construction while WSP / MMM Group will be in charge of the design.  The project includes upgrades to tracks, platforms with canopies, new pedestrian connections, and new amenities at the three stations.

The scope of work also includes a new grade separation with a railway overpass bridge at Steeles Avenue.  Design work is expected to begin this month, with construction beginning in September 2018 and substantial completion planned for December 2020.

                                      The Stouffville Corridor Stations Improvement project is part of the larger GO Regional Express Rail (RER) program, one of the largest transit infrastructure investments in North America.  The Province of Ontario is investing $21.3 billion to transform the GO Transit Network from a commuter transit system to a regional rapid transit system, with electrified service on core segments, across the Greater Toronto and Hamilton Area over the next decade.  The number of weekly trips across the entire GO rail network is projected to grow from 1,500 to 6,000 by 2024-2025.