Public Infrastructure/Public-Private Partnerships (P3s)
Ice Miller is nationally recognized for its P3 and public infrastructure experience, and we regularly advise public-and private-sector clients on project delivery, P3 structuring, asset monetization, and other tools to leverage public assets and develop public infrastructure.
Ice Miller’s clients include state and local governments and public institutions of higher education, as well as private developers, lending institutions, and infrastructure investors. Ice Miller advises clients on building effective partnerships with a projects financial and technical advisor for both transportation and social infrastructure projects and helps to evaluate and develop these partnerships by employing alternative procurement and project delivery methods that fit the size and scope of the project.
OUR MISSION
Ice Miller’s mission on each project is to provide legal advice and counsel to our clients to match their infrastructure needs with the appropriate method of project delivery, including the utilization of P3 and other alternative project delivery methods, while incorporating key goals and commitments such as inclusion of life cycle costs, equity, growth, project sustainability, and integrating ESG criteria into a thoughtful collaboration with private partners.
We have advised on projects in the following sectors:
Community Development & Social Infrastructure
- Affordable and workforce housing
- Justice centers
- Urban redevelopment
- Stadium and convention facilities
- Recycling of outdated public assets
- Convention facilities
- Correction facilities
- Courthouses
- Police and fire stations
- Economic development projects
Transportation and Infrastructure
- Airports
- Commuter rail
- Highways, toll roads and bridges
- Parking garages, parking meters and other parking facilities
- Renewable energy
- Recycling of outdated public assets
- Telecommunications, fiber optics and broadband
- Transit oriented development (TOD)
- Water and wastewater facilities
- Gas, electric and other energy facilities
Higher Education
- Energy infrastructure
- Office and administrative buildings
- Academic and research facilities
- Student housing
FROM CONCEPT TO COMPLIANCE – THE P3 PROCESS
Ice Miller works with its clients through every element of the P3 process, starting with concept development and issuance of a competitive solicitation and continuing through compliance and delivery. Our experience in public finance, public affairs, structured and project finance, tax, construction, real estate, and other related areas provides us with a unique skill and knowledge base to effciently structure key elements of the P3 process.
Statutory Structuring/Policy
PPublic entity participation in P3 relationships is typically governed by specific authorizing statutes, which must provide a clear, workable, and legally viable path for that public participation. Issues abound with respect to both functionality and legality of P3s. Ice Miller has significant experience in the preparation of these authorizing statutes in a variety of contexts, as well as in the defense of those statutes against legal challenges. For example:
- Ice Miller attorneys drafted (or participated in the drafting of) the statutes pursuant to which the Indiana Toll Road lease was authorized, approved by the courts, executed, and delivered, including IC 8-15.5 (the Indiana Finance Authority P3 statute) and the Public Lawsuit statute.
- Ice Miller participated in subsequent revisions to the IFA P3 statute, which enabled the Ohio River Bridges transactions and authorized the I-69 Section 5 PPA.
- Ice Miller drafted revisions to various statutes, which enabled a private operator to develop and toll a bridge in Lake County, Indiana.
Essential to a successful outcome is creating a project and procurement that will attract market interest and, ultimately, robust submissions of responses to an RFP. A key aspect of ensuring this and informing the procurement process is engagement with market participants to identify red flags for a project and clarify project goals in the context of community needs and industry interest. Ice Miller has the experience and understanding of the public-private partnership industry and key participants to help communities utilize this information to develop a transaction that can be successfully procured and completed.
Procurement Structuring/Partner Selection
The development of a fair and transparent process is critical to any P3 plan. Whether a P3 is developed from unsolicited proposals or an RFI/RFQ/RFP process, we strive to ensure each proposal process attracts interested investors and withstands legal challenges. Our team works with clients to develop and implement bidding processes and to select concessionaires or operators.
Project Agreement Negotiation
Our team has a breadth of experience in managing public-private transactions involving real estate transfer, capital project completion, and the provision of ongoing services. We understand the unique issues related to government land acquisition and sale; brownfield redevelopment, leasing and transfer; government contracting; and restrictions on government aid to private companies.
Project Due Diligence
The key to the successful implementation of any P3 is the development, negotiation, documentation, implementation, and monitoring of service and performance standards. Our construction and litigation teams understand how to develop agreements that ensure all parties understand their obligations and disputes are resolved quickly.
Project Finance
Even more important than the initial documentation and close of a transaction to its long-term success is the creation of enforceable and meaningful service and operational requirements, in tandem with the tracking and utilization of these requirements throughout the life of the project agreement (along with other consultants). The success of a project hinges on the community receiving the benefit of its intended bargain and Ice Miller can help achieve this goal. Finally, in situations where dispute or disagreements arise, our team is skilled and experienced in utilizing dispute resolution processes to seek favorable outcomes for our clients.
Operational Compliance
Even more important than the initial documentation and close of a transaction to its long-term success is the creation of enforceable and meaningful service and operational requirements, in tandem with the tracking and utilization of these requirements throughout the life of the project agreement (along with other consultants). The success of a project hinges on the community receiving the benefit of its intended bargain and Ice Miller can help achieve this goal. Finally, in situations where dispute or disagreements arise, our team is skilled and experienced in utilizing dispute resolution processes to seek favorable outcomes for our clients.
Representative Experience
Ice Miller is nationally recognized for its P3 and public infrastructure experience, and we regularly provide legal counsel to public-and private-sector clients on project delivery, P3 structuring, asset monetization, and other tools to leverage public assets and develop public infrastructure. Ice Miller’s clients include state and local governments and public institutions of higher education, as well as private developers, lending institutions, and infrastructure investors. Ice Miller advises clients on building effective partnerships with a projects financial and technical advisor for both transportation and social infrastructure projects and helps to evaluate and develop these partnerships by employing alternative procurement and project delivery methods that fit the size and scope of the project.
OUR MISSION
Ice Miller’s mission on each project is to provide legal advice and counsel to our clients to
match their infrastructure needs with the appropriate method of project delivery, including the
utilization of P3 and other alternative project delivery methods, while incorporating key goals
and commitments such as inclusion of life cycle costs, equity, growth, project sustainability,
and integrating ESG criteria into a thoughtful collaboration with private partners.
This project was analyzed in the Manhattan Institute’s report, “The Lessons of Long-Term Privatizations, Why Chicago Got It Wrong and Indiana Got it Right” by Aaron Renn. Read the report
here.
Ohio River Bridges East End Crossing Project. Ice Miller was on the team of lead counsel for the P3 procurement for the East End Crossing portion of the Ohio River Bridges project. The project was awarded to a private entity responsible for developing, designing, building, financing, operating and maintaining a tolled bridge, roadway facilities and associated tunnel, referred to as the East End Crossing, across the Ohio River east of downtown Louisville, Kentucky. The project utilized an availability payment structure with the private entity and includes a new tolling regime. Ice Miller was also counsel to IFA on a TIFIA loan and was counsel to the IFA as the issuer of private activity bonds used by the developer to finance its obligations on the project. Visit our
case study to learn more.
Ohio River Bridges Toll Services Agreement. Ice Miller represented the IFA, acting on behalf of the parties representing both Indiana and Kentucky, in its procurement under Indiana’s P3 statute of a Toll System Provider for the entire Ohio River Bridges Project. This was a bi-state procurement for both the development and installation of an all-electronic toll “AET” collection system and for the management of that AET system for an initial seven year period. Visit our
case study to learn more.
Ohio Department of Transportation. Ice Miller represented the Ohio Department of Transportation (ODOT) in analyzing various potential P3 projects, including Phase II of the Innerbelt Design Build Finance Project and the P3 project involving the interchange at Route 36/37 and Interstate Route 71. Ice Miller assisted ODOT in exploring various methods to finance these projects, including both traditional bond financing and P3 opportunities and provided general legal services in support of a host of technical and business/financial aspects of the projects including:
- Assessment of any legislative, statutory, financial market regulation or other legal issue impacting the design build finance procurement process
- Analysis of available economic development incentives
- Assistance in the preparation of the required RFP documents
- Assistance in the development of the RFP process including the preparation/review of draft and final versions of instructions to proposers
- Assistance in preparation of the draft and final versions of a DBF contract
- Advice on potential legal issues from the perspective of respondents and their lenders
- Assistance in proposal evaluation
- Coordination and implementation of closing
Interstate 69 (Section 5). Ice Miller’s broad range of experience in P3 projects is illustrated by a current engagement on behalf of Indiana with respect to Interstate 69 (I-69) Section 5. In 2014, the IFA and the Indiana Department of Transportation (INDOT) used a public-private partnership structure to facilitate the development of Section 5 of I-69 in Central Indiana. Ice Miller attorneys were the principal drafters of the authorizing statute for the I-69 project and served as issuer’s counsel to IFA on the private activity bond financing used by the developer to finance the project.
The project has had a troubled history, resulting in ongoing disputes with the developer and design-build contractor about delays and increased project costs. Ice Miller represented IFA and INFOT in connection with such disputes and the resolution of issues needed to complete the project. This experience, necessitated by unfortunate circumstances, has given Ice Miller valuable insights on what can go wrong on a well-conceived project, the impact of project disputes on the overall success of the project and how better to protect a governmental owner from the inception of the project.
Note: the IFA has recently approved the material terms of an agreement for a settlement of all disputes with respect to the I-69 Section 5 Project with bondholders and the developer of the project.
Indianapolis Airport. Ice Miller represented the Indianapolis Airport Authority (IAA) in its process of selecting an operator to manage the Indianapolis Airport and then in the negotiations to end that relationship when IAA determined that no further advantages of privatization were being realized. Ice Miller led initial negotiations and provided substantial experience during the course of the contract to ensure the relationship satisfied various issues important to IAA, including protecting all outstanding bonds and the ability to issue future tax-exempt bonds. In addition, Ice Miller served as construction counsel with reference to the Indiana Airport’s Mid-field Expansion (approximately $1 billion project).
STADIUMS
Indiana Stadium and Convention Building Authority. Ice Miller served as general and construction counsel to the Indiana Stadium and Convention Building Authority (ISCBA) since it was created in 2005. ISCBA was responsible for the development, design, financing and construction of Lucas Oil Stadium and the expansion of the Indiana Convention Center (combined cost of approximately $1 billion). Ice Miller was also lead real estate counsel to ISCBA and assisted the IFA in the restructuring of permanent financing for the overall project utilizing a variety of public and private sources of repayment. Visit our
case study to learn more.
PARKING
Indianapolis Parking. Ice Miller represented the City of Indianapolis, Indiana (City) in the privatization of the city's parking meters for a $20 million upfront payment and a revenue share between the city and the concessionaire over the remaining term of the lease. The Ice Miller team was instrumental in this unique structure, which helped to better align the concessionaire's interest with the city's interest, and ensured proceeds from the transaction would be available for future administrations and generations. In P3 circles, this structure is known as the "Indianapolis Model" and is now being considered in P3 deals as a possible alternative to an aggregate upfront payment.
Chicago Parking. Ice Miller was part of the legal team that represented Morgan Stanley Infrastructure Partners in its successful bid to lease the Chicago Downtown Public Parking System for $563 million. The Ice Miller team managed all legal aspects of the transaction related to real estate, environment and labor and employee benefits.
WATER
Indianapolis Water and Wastewater. Ice Miller represented Citizens Energy Group in its acquisition of the water and wastewater systems of the City, resulting in a payment to the City of approximately $2 billion. The Ice Miller team managed all legal aspects of the transaction, except for utility regulatory approvals, including contract negotiation, due diligence review, environmental regulatory approval, tax issues, all financing and bond-related needs, real estate and statutory compliance issues. Because Citizens Energy Group is itself a governmental entity, the City was able to sell the systems without adversely affecting the tax status of outstanding tax-exempt bonds. This transaction involved the issuance of approximately $1 billion of tax-exempt bonds and the substitution of another $1 billion of Citizens Energy Group bonds for the City's bonds. Visit our
case study to learn more.
Westfield Gas, Water and Wastewater. Ice Miller represented Citizens Westfield Utilities, LLC, a subsidiary of Citizens Energy Group, in the acquisition of the gas, water and wastewater systems of the City of Westfield, Indiana, resulting in the issuance of $92,725,000 in tax-exempt bonds to finance its acquisition. Similar to the Indianapolis Water and Wastewater transaction noted above, the Ice Miller team managed all legal aspects of the transaction, except for utility regulatory approvals, including contract negotiation, due diligence review, environmental regulatory approval, tax issues, all financing and bond-related needs, real estate and statutory compliance issues.
PUBLIC HIGHER EDUCATION INSTITUTIONS
Ice Miller has advised a number of higher education institutions, including Indiana University, Purdue University, Ivy Tech Community College and The Ohio State University, in various public private partnerships opportunities with respect to parking systems, energy and utility systems and other development project. Ice Miller’s role in reviewing these opportunities is identify the ability of the higher education institution to: (i) monetize existing assets or auxiliary systems, (ii) develop new projects jointly with private developers or (iii) both monetize and develop projects. Ice Miller has also represented developers working with higher education projects such as graduate or family housing developments.
The Ohio State University (OSU). Ice Miller was an integral part of the legal team on a P3 deal with a private concessionaire on a far-reaching P3 transaction involving the university’s energy and utility systems. The deal provides for a 50-year lease agreement with Ohio State Energy Partners and includes a $1.015 billion upfront payment to the university and a $150 million commitment to support academics, including financial aid and compensation for faculty and staff.
TELECOMMUNICATIONS, FIBER OPTICS AND BROADBAND
Ohio Academic Resources Network (OARnet). Ice Miller represented the OARnet in the development and implementation of its fiber optic network, the second largest state-owned fiber network in the country.
Ohio Board of Development. Ice Miller represented the Ohio Board of Development in the drafting of the Ohio Broadband Policy.
City of Columbus, Ohio. Ice Miller represented the City of Columbus, Ohio in drafting the formal telecommunications policy for the city. Columbus was named Intelligent Community of the year in 2016 by the Intelligent Community Forum and won a $40M Smart City grant through the U.S. Department of Transportation.
City of Dublin, Ohio. Ice Miller represented the City of Dublin, Ohio in the development and drafting of the "Dublink" municipally owned fiber/conduit and Wi-Fi system. The Firm subsequently represented the city in drafting agreements and negotiating transactions associated with the maintenance and sale of fibers for Dublink.
Ohio Department of Transportation. Ice Miller represents ODOT in the development of its 33 Smart Corridor, which is slated to be the longest automotive/connected vehicle testing corridor in the world.