Public and Project Finance

The Public and Project Finance Service Team provides public, project and economic development financial insights to borrowing entities, banks and numerous state, county and local governmental entities. We focus on all of the interrelated areas of infrastructure finance, including municipal finance, economic development and redevelopment, real estate finance, securitizations, and public-private partnerships.

Diverse Roles as Counsel

Across our footprint and throughout the United States, our lawyers provide innovative, cost-effective financing mechanisms to all our clients. We have worked with virtually every major national, regional and local commercial and investment banking firm, while utilizing state and local governments as issuers, sponsors or public private partners. The diversity of our experienced lawyers include roles such as: bond counsel, underwriter’s counsel, municipal advisor’s counsel, counsel for nonprofit entities, healthcare providers, developers, letter of credit banks, bond insurers and trustees on public finance transactions.

As part of our public finance representation we assist clients in both pre-issuance and post-issuance compliance with local laws and federal tax and securities laws; including tax audit work and responses to governmental initiatives like the Securities and Exchange Commission’s MCDC (Municipal Continuing Disclosure Compliance) initiative. 

Resources for Regional Health Care Providers

We serve as bond counsel, underwriter's counsel or borrower’s counsel for healthcare and hospital financings throughout the United States, and in our footprint we have worked with many providers, which includes:

Catholic Healthcare Partners, based in Cincinnati, Ohio (and its affiliates in Ohio, Kentucky, Tennessee, Indiana and Pennsylvania); Jewish Hospital Health Services, Louisville, Kentucky; Ashland Hospital Corporation d/b/a King's Daughters' Hospital, Ashland, Kentucky; Ephraim McDowell Hospital, Danville Kentucky; TJ Samson Hospital, Glasgow, Kentucky; Clark Memorial Hospital, Jeffersonville, Indiana; Caritas Peace Center, Louisville, Kentucky; Sisters of Nazareth Literary and Benevolent Society, Louisville, Kentucky, the Wendell Foster Home in Owensboro, Kentucky, Christ Hospital, Cincinnati, Ohio, and Southwest General Health Center, Middleburg Heights, Ohio. 

Creative Options for Nonprofit Corporation Borrowings

As bond counsel, issuer’s counsel and charitable corporation counsel, we provide expertise and experience in financing for 501(c)(3) non-profits, including public offerings, small issue “bank qualified bonds" and direct bank purchases for nonprofit organizations. We offer effective and creative financing for a diverse group of organizations as:

The Nashville Symphony Orchestra; Speed Museum, Inc; YMCA of Greater Louisville; Ashland Area YMCA; Georgetown College; Brescia University; Union College; Fund for the Arts, Inc., Louisville, Kentucky; St. Xavier High School, Louisville, Kentucky; numerous elementary school projects for the Roman Catholic Archdiocese of Louisville; Seven Counties Services; The Morton Center, Inc.; Southern Baptist Theological Seminary; Montessori Schools in Indiana; Knowledge Works Foundation; Goodwill Industries of Southern Ohio, Inc.; The Seven Hills School; Cincinnati Country Day School; Health Foundation of Greater Cincinnati; Beechwood Home; Beech Acres; The Cincinnati Opera and Millennium Monument Center, Inc.  Out firm was also instrumental in establishing the Louisville Community Development Bank.

Private Activity Bonds

We have extensive experience with private activity bond financing, including energy finance, solid waste disposal and other exempt facility bonds, and qualified small issue manufacturing bonds. The attorneys of Frost Brown Todd have experience acting as the lead structuring and bond counsel for such financings for over 35 years. Our lawyers also work closely with all major commercial banks using direct bank purchase structures, credit enhanced financings and derivative structures, including all types of variable rate demand debt. We have also represented all major banks in the area, including:

Bank of America, JP Morgan Chase, BB&T, Fifth Third Bank, PNC Bank, U.S. Bank, Wells Fargo, Key Bank and The Huntington National Bank, on their direct purchase programs.

Single and Multi-Family Housing Bonds

Our attorneys have acted as bond counsel and as counsel to developers, issuers and underwriters on numerous single and multifamily revenue bond issues. We have also acted as bond or corporation counsel to:

The Kentucky Housing Corporation, Housing Authority of Louisville and the Cincinnati Metropolitan Housing Authority, numerous private developers providing innovative and creative financing for low and moderate income housing and student housing and federal and state new market and historic tax credits and public-private partnership housing solutions.

Tax and Economic Incentives

The Public Finance Team also has a national practice devoted to the representation of governmental entities, bankers and domestic and foreign developer and business clients in researching, negotiating and documenting local and state tax and economic incentive transactions. These transactions can consist of numerous structures and arrangements, including tax-exempt bond issues, real estate and personal property tax abatement agreements, tax increment financings, special assessment bonds, sales tax abatement capital lease financings, job training and other state grant arrangements, local or state income tax credits, enterprise zone and redevelopment areas, and low or no interest loans.

The Public Finance Group draws from the experience and expertise of other practice groups of Frost Brown Todd, including taxation, real estate and commercial lending. One focus of the Public Finance Group is to ensure that the secured incentives are structured and documented to complement the client's economic development, business and transactional objectives.

Innovative Economic Development Finance

In addition to working on traditional economic incentives work, we work with communities and developers to structure innovative economic development finance solutions. These include utilizing PACE (Property Assessed Clean Energy) bonds to finance new alternative energy facilities and energy efficiency renovation of existing facilities; assisting energy efficiency upgrades through qualified energy conservation bonds (QECBs); representing economic development agencies, including Ohio port authorities and other governmental entities providing capital and synthetic lease financings that provide significant tax savings to private borrowers; and structuring and documenting project finance structures and public-private partnerships, from DBFOM (Design Build Finance Operate and Maintain) contracts to incentive-plus operating agreements that allow private savvy to combine with public savvy.

Project Finance and Public Private Partnerships

The Public Finance Group has worked on project finance solutions for delivery and implantation of major infrastructure projects in more than 15 states. We have extensive experience with design-build and DBFOM (design build finance operate and maintain) public-private partnerships utilizing availability payments, tolls, at-risk and other innovative delivery methods. We pride ourselves on our comprehensive approach to project finance, advising clients from the earliest stages of each project through to financing, construction, and project administration. Our attorneys also write and advise on local law, enabling legislation, policy and financing issues, procurement methods, contract negotiations, and environment/permitting issues. We can help you bring together the parties and structures you need for a successful project. 

Our knowledge of project finance structures and our approach are unique. We offer services including:

  • Analysis of legal structures, with an eye on deal economics, including market and financial feasibility and deal structuring;
  • Public and project finance tools, including Taxable Loans or Revenue Bonds, Credit Tenant Leases, Tax Increment Financing, Special Finance Districts, New Markets Tax Credits, Low Income Housing Tax Credits, Grants, Capital Leases and Synthetic Leases, Job Tax Credits and Cost-Sharing Arrangements; and
  • Advising on appropriate risk-sharing and cost-sharing arrangements between public and private entities.

The firm’s extensive experience is complemented by a commitment to problem solving and finding innovative solutions, whether old or new, including analyzing SPV (special purpose vehicle) revenue finance options, P1 (traditional public finance), P2 (public-public transfers and tax-exempt finance) or P3 (public-private partnerships).  We also recognize the importance of public perception, public support, transparency and education. 

We have worked on project finance and P3 structures for the following types of projects:

  • Parking
  • Convention Facilities
  • Downtown and Neighborhood Revitalization
  • Bridges
  • Transit-Oriented Development
  • Office, Research Park and Industrial Projects
  • Retail Projects
  • Residential Development
  • Affordable Housing
  • Mixed-Use Developments
  • Community Facilities
  • Institutional Projects
  • Hospitals
  • Universities

As a result of our experience in project finance and P3 transactions, we recognize that it is important to provide education to our clients about those areas, especially public-private partnerships.

Myths About Public-Private Partnerships

Government agencies and political officials from all spectrums have endorsed the idea of combining the resources of the public and private sectors to manage, and in some cases finance, their community’s infrastructure using public-private partnerships.  These partnerships are enabling local officials to access private capital and solve some of their most pressing challenges.  In fact, public-private partnerships are at work in many North American communities. 

Of course, every decision to do a P3 should be carefully considered.  It may be that traditional solutions work well; or that a hybrid solution will provide benefits comparable to a true P3 transaction where a private company takes over operation, and maybe even financing, in a classic DBFOM (Design Build Finance Operate and Maintain) scenario, for a long period of time, i.e. 20 to 70 years.  An example of a “hybrid” deal is a “public-public” (P2) partnership where a municipality’s infrastructure asset, system or building is leased for a long-term to another public entity or 501(c)(3) special purpose entity, allowing for the use of tax-exempt financing to finance constructions or improvements.

Myth: A private company will own your infrastructure asset.

Fact: In a public-private partnership, the public maintains ownership of all assets – and the public authority sets rates.  The contractual arrangements ensure public control and ownership. 

Myth: A private company will set your rates and control fees.

Fact: Rate-setting authority should remain the responsibility of the municipal government (city, town, regional authority, etc.)  A P3 is not a regulated utility, where a private-sector company owns assets and seeks rate increases.  Under a properly structured P3 contract the public partner:

  • Owns the assets
  • Controls the ultimate management of the assets
  • Establishes user rates.

In short, a public-private partnership is not privatization. 

Myth: A private company will only drive costs up – in order to make a profit.

Fact: Private companies interested in P3 contracts may in fact have dozens, hundreds or even thousands of workers that would take issue with this statement.  Many have devoted their life’s work to providing solutions to the world’s infrastructure, governmental and environmental problems.  Because of the use of modern operational techniques and better revenue and data gathering, many communities served by public-private partnerships have reported cost reductions of 10 to 30 percent. 

Myth: Legal and regulatory compliance will erode. 

Fact: The P3 contract can provide monetary penalties for failures of this type; and private-sector companies are often hired specifically to address a municipality’s past compliance issues. 

Myth: Private companies pad the bottom line by cutting costs and laying off employees.

Fact: Municipalities typically determine staffing level requirements in the P3 contract.  And companies want to take advantage of employees’ local knowledge.  For that reason, many employees of privates companies in P3 deals are former public-sector employees who are local to their individual communities. 

Myth: Private companies only care about profit, so the public should always manage public resources.

Fact: In a properly structured and documented P3 contract, private-sector profit does not come at the public’s expense.  Lower costs and service improvements result from the new arrangement regardless of whether a private-sector company generates a profit.  Savings for municipalities frequently range from 10 to 30 percent.  Further, P3’s still enable local control and flexibility to meet the community’s needs. 

Myth: The municipality will be left with a run-down asset.

Fact: Contracts should always be written so that assets are properly maintained and serviced.  The municipal customer will conduct “check-ups” to ensure proper functioning of assets.  Finally, the public-sector customer should participate in maintenance spending decisions to help preserve the life of assets. 

Myth: A new company just won’t understand your system. 

Fact: Many companies working in this sector find it necessary as part of their business model to drive innovation in the use of technology and operations.  Municipal employees are usually encouraged to either join the private-sector company, or work with it, so that their local, public experience is blended with private-sector expertise.

Summary: After examining all the data, is a P3, or other project finance solution right for any particular community?  Only a thorough examination of alternatives can tell.  By blending public-sector experience with private-sector experience and technical expertise, a public-private partnership can offer immediate results for managing infrastructure assets, ensuring quality services are provided to the public, and also potentially financing new or improved facilities through a DBFOM or hybrid P2 arrangement. 

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Practice Highlights

Municipal Finance

  • Bond Counsel on a variety of general obligation, utility revenue and special obligation financings for Ohio, Indiana and Kentucky, including their agencies and political subdivisions, totaling more than $3 billion.
  • Bond Counsel to Dayton City School District for two refunding issuances of bonds and notes totaling $192 million.
  • Bond Counsel to a Columbus area school district for a refunding bond issue in the amount of $38 million.
  • Bond Counsel to County of Franklin, Ohio with respect to its 2013 $43 million General Obligation bond issue. 
  • Bond Counsel to City of Cincinnati, Ohio.

Tax and Economic Incentives

  • Bond Counsel for tax-exempt bonds to finance public parking structure constructed at the first lifestyle center developed in Cincinnati since 2005.
  • Special Counsel to an Indiana municipality as it restructured several hundred million dollars of risky “high-yield" tax increment financing (TIF) bonds into double-barreled TIF and general obligation backed bonds.
  • Bond Counsel to the City of Norwood, Ohio providing TIF financing packages to three major development projects in the city in less than two years.
  • Counsel to Waggenbrenner Development on financing of public infrastructure with TIF bonds at a new urban residential development.
  • Representation of a Fortune 500 company in securing tax abatements for a web hosting facility through a taxable bond issue.
  • Representation of a middle market company in securing tax abatements for a regional distribution facility through a taxable bond issue, in addition to stare grants and tax credits.

  • Representation of a securities brokerage firm in securing property tax abatements through a taxable bond issue, structuring the transaction to accommodate off-balance sheet financing, in addition to job training grants, for a national operations center.

  • Representation of a Fortune 500 drugstore chain in securing local tax abatements, forgivable loans and grants and tax credits for a major regional distribution facility.

  • Representation of a major middle market company in securing local tax abatements and state job training grant and other tax credits for an ice-cream processing facility.

  • Representation of a Fortune 500 company in reviewing and providing legal advice to avert the assessment of tax penalties in connection with non-compliance with an enterprise zone agreement.

  • Representation of a national bank to secure TIF financing and state incentives for development of a major data processing facility on a brownfield site.

  • Representation of 2 national food products company in structuring and documenting local tax benefits for a major expansion of its West Coast operation.

  • Representation of an international food products company in auditing and redocumenting several incentive arrangements in 8 states as part of a reorganization of its U.S. operations. 

Healthcare

  • Bond Counsel for Southwest General Health Center, for both its new money and refunding bond issues.
  • Hospital Counsel for Christ Hospital, for its $600 million financing for a new patient tower.
  • Bond Counsel and Corporate Counsel to Willow Brook Christian Communities, for its new money and refunding bond issues.
  • Bond Counsel to Wexner Heritage Village, for its new money and refunding bond issues.

Non-Profit Corporations

  • 2014 "Excellence in Bond Finance Award" winning Issuer's Counsel and Bond Counsel for tax-exempt economic development revenue bonds financing parking facilities in Cincinnati, Ohio.
  • Issuer's Counsel and Bond Counsel for a non-profit cancer treatment center development in Ohio. 
  • Counsel to various charitable 501(c)(3) organizations providing fundraising, and taxable and tax-exempt bond financing advice.

Private Activity Bonds

  • Bond Counsel for Ohio Air Quality Development Authority tax-exempt solid waste disposal bonds for first recycling facility financed with its "air quality facility" bonds.
  • Bond Counsel and Borrower's Counsel for 3-state refinancing of tax-exempt bonds for solid waste facilities at a major steel provider's plants located in Ohio, Indiana and Pennsylvania.
  • Borrower’s Counsel and Bank Counsel for tax-exempt financing of new anaerobic digester facilities, a private company installed as part of a municipal waste water treatment system. 

Project Finance and Public-Private Partnerships

  • Development counsel to Cuyahoga County in connection with its successful and transformative Medical Mart financing in 2010, and counsel to the underwriters of the bonds used to finance the $450 million project; which is leased, operated and maintained by an affiliate of Merchandise Mart Properties.
  • Counsel on two Ohio public-public P2 downtown parking modernization projects; both involving transfers of downtown parking facilities to local Ohio port authorities; allowing for tax-exempt bond financing to help fund each city’s budget.
  • Counsel to Queensland Investment Corporation and its affiliate CampusParc LP for its $483 million public-private partnership (P3) lease/acquisition of a 50-year concession to operate all on-street and off-street parking facilities at The Ohio State University.
  • Counsel to the State of Ohio on the $2.7 billion Cincinnati Brent Spence Bridge P3 replacement, renovation and modernization project.

Single and Multi-Family Housing Bonds

  • Borrower's Counsel for a major national senior living and health care provider in restructuring of retirement community.
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