Public Private Partnerships (P3)
Public-Private Partnerships (P3), which involve significant risk sharing between the public and private sectors, require a comprehensive and multi-disciplinary approach. Providing legal counsel regarding P3 projects is no different. FBT combines specialized knowledge with real-world business experience to successfully develop and implement P3 projects in a cost-effective manner, using a comprehensive team approach. We advise a wide variety of public and private clients – from small businesses to corporate giants; from municipalities to multi-state redevelopment authorities; from investors and financial institutions to joint ventures; from sole sponsors to joint venture consortiums – by providing strategic advice on planning, developing funding and financing solutions, and structuring comprehensive project agreements, through project development to completion and beyond.
P3 is critical to the growth of our infrastructure and our communities. As the size, scope and visibility of P3 projects grow, so do the potential benefits and problems. P3 projects create jobs, improve the quality of life for local residents and raise revenues, both public and private. However, there is also increased competition for limited capital along with more difficult regulatory and legislative hurdles to ensure accountability in this ever-emerging area of development.
Our P3 team is well-equipped to address the full spectrum of legal issues encountered on P3 projects. Our professionals have extensive experience dealing with complex real estate, public law and finance and governmental transactions. We represent state and local authorities and municipalities as well as national and international investors, developers and contractors in financings, real estate acquisitions and construction projects. Our nationally-renowned team of attorneys has experience in all sectors of Public-Private Partnerships including:
Project Counsel Services
As the complexity of major development projects continues to evolve, with multiple sources of funding and financing, advances in design and construction means and methods, more sophisticated project delivery systems, and innovative risk-sharing and management approaches, so does the need for Project Counsel with hands-on experience and a comprehensive team approach. Our Project Counsel approach brings innovation and effective, creative problem-solving, as well as the ability to work effectively and efficiently with project teams, including in-house and external professional advisors. Thanks to the diversity of our client base, FBT has served as Project Counsel to public and private entities throughout all phases of complex projects, working side-by-side with the public and private sectors. We have experience on both the “buy” side and the “sell” side of complex P3 transactions.
Project Development to Project Close out
Our P3 team has extensive experience in assisting public entities and private developers, contractors and equity entities. We have worked closely with public owners and private entities through all stages of the RFP process, including conducting extensive due diligence on potential development partners and clearly establishing the parameters for critical elements of the project.
In the context of concession and/or availability payment structures based on toll and other revenues, allocation of risk for revenue flow must also be addressed and determined. We have protected the interests of our public owner clients through the preparation and implementation of performance-based agreements designed to address the key project interests of cost, quality, schedule and safety through an integrated process. We also have negotiated appropriate and innovative control and operational mechanisms, allowing both the public and private parties to participate in project management. As counsel to the private sector, we use that knowledge to streamline the process and focus on the core issues.
Each agreement is designed to be performance outcome-based with the goal of coordinating and streamlining project management, operation and delivery.
The goal of establishing such elements is to ensure appropriate allocation of risk and responsibility for project delivery and long term asset performance. Our clients value our pragmatic and straightforward advice throughout all stages of the project.
Project Funding and Financing
Due to the scarcity of public funds, governments and public authorities are increasingly relying on P3s to structure projects. FBT works closely with its clients to investigate, identify and secure sources of public/private funding and financing, and to assist in the identification and pursuit of other strategies to deliver projects in a cost-effective and expeditious manner. Sources of funding and financing often include Availability Payments, federal, state and local grants, TIFIA, GARVEE bonds, Private Activity Bonds, and toll-based concession structures.
Tax and Economic Incentives
The P3 team draws on the knowledge and experience of FBT’s Public and Project Finance Group and its national practice devoted to the representation of domestic and foreign 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, job training and other state grant arrangements, local or state income tax credits, enterprise zone and redevelopment areas, and low, no interest or forgivable loans. In addition, our P3 team includes tax counsel with skills in contemplating and negotiating federal, state and local tax issues throughout the term of project agreements.
The P3 team also works with the members of FBT’s Construction Law Practice Group, which has extensive experience in P3 projects related to the critical capabilities necessary to ensure that projects are designed and constructed to meet current and future needs, are completed as designed -on budget - and ready to be operated efficiently and as intended by the cooperating public and private parties.
Project Counsel Return on Investment
In the role as Project Counsel, we have successfully negotiated and structured innovative agreements that resulted in millions of dollars in savings in project and life-cycle costs for our clients. We have also developed comprehensive and appropriate contract terms and conditions designed to mitigate project risks and avoid costly claims and disputes.
The “Smart P3” Concept
In recent years, P3 projects have typically focused on one industry area, such as transportation or energy. However, as P3 projects increase in complexity and scope, the FBT team has developed an all-encompassing approach to serving as P3 counsel, integrating the following elements:
- Transportation and multi-modal transit
- Public Buildings and Facilities
- Community Facilities
Specifically, FBT has introduced a new P3 concept - the Smart P3. The Smart P3 project contains two or more of the P3 elements mentioned above. Instead of addressing each independent component individually, the Smart P3 considers all components and/or applications to ensure that the project as a whole is delivered on time, within budget, and that the programming meets all of the parties’ objectives. For example, a mixed-use development project may contain transit and transportation elements, parking, housing, and public buildings, all of which could be separately delivered via a Public-Private Partnership project delivery model. However, by viewing the project as a whole, comprehensive funding and financing strategies can be developed and tailored to each specific component, all while still meeting the overall project objectives. Combining multiple P3 applications requires thorough knowledge of complex finance, development, regulation, banking, environmental, municipal, finance, construction, public contracting, tax, real estate, state and federal lobbying, and dispute resolution.
The Smart P3 requires specialized legal counsel proficient in various modes of funding and financing alternatives for each element. As Project Counsel, FBT manages all elements of a complex project and views all P3 elements when structuring deals. Our approach requires specialized knowledge and experience to determine the need for alternative delivery methodologies and well-defined agreements that clearly set forth the duties and responsibilities of each project team member.
Our P3 team is comprised of recognized leaders in project finance, development, regulatory, banking, environmental, municipal, construction, public contracting, tax, real estate, state and federal lobbying, and dispute resolution. FBT has assembled a dedicated P3 team with substantial knowledge and experience in the following disciplines:
- Public-Private Partnership Structures (P3)
- Project Finance
- Project Development
- Public Procurement and Contracting
- Project Delivery Methodologies
- Design-Build (DB)
- Design-Build-Finance (DBF)
- Design-Build-Finance-Operate/Maintain (DBFOM)
- Integrated Project Delivery
- RFI/RFQ/RFP Document Development, Process and Selection
- ·Federal and State Grants and Loans
- Project Implementation and Management Issues
- Regulatory and Code Compliance matters
- Surety Bonding
- Insurance and Risk Management
- Property Acquisition/Eminent Domain
- Small and Disadvantaged Business/Economic Inclusion
- Labor and Employment
- Intellectual Property
- Dispute Avoidance and Resolution
- Consolidation and Restructuring
Our team has worked with the public and private finance markets, states and municipalities, property developers, concessionaires, banks, investment banks, designers and contractors. We know and understand the markets in which major projects are being developed. We also have the knowledge and experience to assist with all aspects of project development, including negotiating agreements that appropriately allocate risk and responsibility for every aspect of the project from development, funding and financing, to design, construction and operation.
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