Infrastructure and Public-Private Partnerships

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Governments today are increasingly addressing the need to build, repair, or replace infrastructure and to provide unaltered or additional services while they are facing progressively shrinking budgets. Consequently, they are looking for non-traditional ways to finance and deliver these solutions. Public-private partnerships (P3) enable the public sector to benefit from private sector capital, leverage their unique or progressive experience, and take advantage of other resources to help achieve their goals. Those involved in P3 projects must seek ways to gain from the unprecedented opportunities offered while resolving the tough challenges and risks inherently involved in these endeavors. Dickinson Wright’s Infrastructure and Public-Private Partnerships team has extensive experience with a wide variety of P3 and infrastructure projects. We can effectively address a vast range of legal issues related to these complicated transactions.

Industry Leaders with Extensive Experience

We have advised on many complex projects in the United States, including roads, bridges, hospitals, recreational facilities, public buildings, university housing facilities, university parking facilities, and other transportation, energy, utility, and communications projects. Our expansive industry knowledge and experience positions us well to ensure on-time, on-budget delivery of infrastructure projects.

We work closely with our clients throughout the entire project lifecycle and advise on design, building, financing, operations, regulatory compliance, and dispute resolution. No matter the transaction structure, our multi-disciplinary team has the skills and experience needed to provide the valued guidance that contributes to the ultimate success of a P3 project.

Collaborative, Multi-Disciplinary Approach

Our P3 team’s agility, responsive fee arrangements, cooperative, multi-disciplinary approach, and experience differentiate us from our competitors. We take a collaborative approach and work closely with colleagues in our construction, real estate, environmental, tax, project finance, public finance, financial services, procurement, and government contracts practices to help our clients take advantage of opportunities, arrive at creative solutions, and complete projects within budget and on time.

We routinely work as fully integrated members of our P3 clients’ project teams and have acquired an in-depth understanding of and a high-sensitivity level to the complex financial, technical, legal, and non-legal aspects of infrastructure projects. This awareness allows us to work efficiently and effectively with our clients’ other professional advisors and consultants to provide fully informed, practical advice and innovative solutions that often make the difference between winning or losing a bid and, ultimately, the success or failure of a project.

Sensible Fee Arrangements

Recognizing that infrastructure and P3 transactions are intricate, time-consuming, expensive, and often unpredictable undertakings, we can offer sensible fee arrangements that demonstrate our commitment to share in the risks and rewards of our clients’ transaction. Understanding the financial risks the private sector parties take when pursuing procurement projects and the economic environment under which public entities operate, we design fee arrangements that are conscious of their circumstances.

Areas of Proficiency

Representing a diverse clientele, including all levels of government, members of the private sector, including design, architectural, engineering, construction, facilities management, maintenance, operations, equipment supply companies, debt providers, and equity investors.

Our experience consists of the following sorts of infrastructure, P3 projects, and transactions:

• Advising on transactions involving transportation facilities, public transit systems, hospital and healthcare facilities, university housing and parking facilities, public arenas, public schools, and public utilities
• Counseling on environmentally sensitive projects such as water treatment, sewage and pollution control facilities, casinos and gaming facilities, sports and convention facilities, social housing projects, police stations and other public facilities
• Navigating through statutory requirements and P3-enabling legislation
• Advising on the creation and implementation of procurement processes and the various procurement laws, rules, and requirements impacting government contracts and procurement projects such as handling documentation
• Negotiating consortium and joint venture agreements
• Assisting with project and public finance, including handling financings for transportation projects, local units of government, building authorities, utilities, housing projects, university and higher education facilities, hospital and healthcare facilities, school districts, universities, private colleges, and community colleges.
• Advising on all manner of design, construction, facility management, operation, maintenance, and equipment supply issues and contracts
• Counseling on real estate, environmental assessments, compliance issues, and other regulatory matters
• Asserting claims and resolving disputes through alternative dispute resolution (ADR) and litigation, as well as representation in audits, investigations, and enforcement actions
• Acting as lenders’ counsel, bond counsel, underwriter’s counsel, trustee’s counsel, credit enhancement providers counsel, and borrower’s counsel on the full range of financing transactions

We also provide advice on the full range of related areas that touch P3 projects: labor law, tax issues, and securities regulation matters. Our prior work with governments and private-sector parties allows us to structure, negotiate, and complete financeable transactions that appropriately and effectively allocate project risks and balance the interests of all of the involved parties.

Representative Projects

Eastern Michigan University’s Campus Parking System: Counsel to Eastern Michigan University (EMU) from inception through developer selection to financial close for a $55,000,000 monetization of the university’s campus parking system through a Concession Agreement between EMU and Preston Hollow Capital, LLC, as initial concessionaire (the “EMU Parking P3”). Dickinson Wright was responsible for drafting substantially all of the documentation for this P3 development. We worked closely with the EMU management team and its financial advisor (PFM), in connection with the RFP process, the selection of parking concessionaire/operator, the negotiation of the Concession Agreement and the operating standards for the parking system, and the tax-exempt bond financing that provided the concessionaire’s source of funds for the financial close.

Counsel to Corvias Campus Living for Wayne State University Student Housing: Counsel to Corvias Campus Living—WSU, LLC (Corvias) in connection with the negotiation and development of a Service Concession Agreement for the Operation and Management of Student Housing between the Board of Governors of Wayne State University (WSU) and Corvias that closed in November 2017 (the “WSU Housing P3”). Dickinson Wright was the local Michigan counsel to Corvias. Corvias retained a different national law firm as its lead counsel to negotiate and draft the Concession Agreement and other related documents for the WSU Housing P3. In our capacity as local Michigan counsel, we rendered advice to Corvias with respect to structuring the transaction to comply with Michigan law, and we rendered legal opinions required by WSU and the development lender with respect to matters of Michigan law as it related to the transaction. We were required to assist with a range of Michigan legal issues arising from this innovative P3 transaction, including matters of construction law, labor law, municipal law, and property tax law.

Development Agreement and Stadium Lease for a Major League Soccer Franchise in Nashville, TN: Counsel to The Sports Authority of the Metropolitan Government of Nashville and Davidson County (Sports Authority) in connection with the drafting and negotiation of a Development Agreement and Stadium Lease between the Sports Authority and a private entity created to own and operate the Major League Soccer (MLS) franchise awarded to the City of Nashville, Tennessee (MLS Team). The Development Agreement sets forth the term, obligations and conditions for the construction of a new MLS soccer stadium and the contributions and duties of the Sports Authority and the MLS Team to finance and manage the construction. The Stadium Lease sets forth the terms and conditions for the lease, management, maintenance and operation of the stadium between the Sports Authority, as lessor and the MLS Team, as lessee.

Bond Counsel to the Michigan Strategic Fund for the Construction of Little Caesars Arena, Detroit, Michigan: Bond counsel to the Michigan Strategic Fund in connection with the issuance of $450 million of bonds to finance the construction of the Little Caesars Arena in 2014 in a public-private partnership that required contributions from the State of Michigan, the City of Detroit Downtown Development Authority and Olympia Development of Michigan. This was a complex financing involving the capture of certain tax increment revenues derived from both local property taxes and state school taxes levied in the downtown Detroit district to support tax exempt bonds and the pledge of concession payments to be paid by an entity controlled by Olympia Development of Michigan, as concessionaire of the arena, to support taxable bonds.

Counsel to Palace Sports & Entertainment for the Expansion of Little Caesars Arena: Counsel to Palace Sports & Entertainment in 2017 in connection with an expansion of the Little Caesars Arena development to include the relocation of the Detroit Pistons to the new arena as a sub-concessionaire of Olympia Development of Michigan. The relocation of the Detroit Pistons required negotiation of a restructuring of the public-private partnership arrangement, modifications to the arena development plan and additional bond financing by the City of Detroit Downtown Development Authority.

Oakland University’s Installation of “Green” Central Heating Plant: Counsel to Oakland University in connection with its acquisition and installation of a new “green” central heating plant for the university’s main campus. We represented Oakland University as its counsel in connection with discussions with the energy services provider and as bond counsel in connection with the issuance of certificates of participation secured by contract payments to be made by the university to the equipment provider. The structure of the certificates of participation was unique and represented one of the earliest P3-type financings in Michigan involving a public university.

Comerica Park/Ford Field: Counsel to the Downtown Development Authority of the City of Detroit in connection with the acquisition and development of Comerica Park, a professional baseball stadium for use by the Detroit Tigers, and Ford Field, a professional football stadium for use by the Detroit Lions, in Detroit, Michigan, USA.

MGM Grand Casino/Hotel: Counsel to MGM Resorts International in connection with the development, acquisition, and construction of the MGM Grand Detroit Casino and Hotel in Detroit, Michigan, USA.

Detroit Opera House: Counsel to Michigan Opera Theater, a non-profit corporation, in connection with the acquisition, construction, and financing of the Detroit Opera House and a related parking facility in Detroit, Michigan, USA.

Kent County Resource Recovery Facility: Counsel to the County of Kent, Michigan in connection with the acquisition, construction and financing of the Kent County Resource Recovery Facility in Grand Rapids, Michigan, USA.

City of Mesa Cubs’ Spring Training Facilities: Counsel to the City of Mesa, the largest suburban community in the United States, in connection with the development, design, construction, and operation of the new $84 million Chicago Cubs’ Spring Training Facility and Stadium. We also revised and integrated all of the City’s construction and architectural agreements and procurement procedures, including the incorporation of alternative project delivery and contracting concepts.

Public-Private Development/Infrastructure Transactions: Counsel to both public and private sector clients in connection with numerous public-private partnerships for integrated private development/public infrastructure projects in Arizona and Colorado utilizing a variety of transaction structures, including transactions involving economic development and incentive agreements, sales tax reimbursement agreements, government property lease excise tax (GPLET) structures, environmental remediation agreements, and public infrastructure construction agreements. Notable transactions include the expansion of Scottsdale Fashion Square (the largest enclosed mall in Arizona and one of the largest facilities of its kind in the United States) and development plans for the remainder of the “Scottsdale Waterfront” area in Scottsdale, Arizona; retail development projects in Broomfield, Superior and Aurora, Colorado; the Spur Cross Ranch Conservation Area project in Cave Creek, Arizona; and the Eastmark project to be constructed on the former General Motors Proving Grounds in the City of Mesa, Arizona.

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