Public-Private Partnerships

Ice Miller is nationally recognized for its Public-Private Partnerships (P3s) experience, and we regularly advise public- and private-sector clients on P3 transactions, asset monetization and other tools to leverage public assets and develop public infrastructure.

Ice Miller’s clients include state and local governments, public institutions of higher education, as well as private developers, lending institutions and infrastructure investors. Ice Miller advises clients on building effective partnerships for both transportation and social infrastructure projects.

We help our clients evaluate and develop partnerships and alternative procurement and project delivery systems, including greenfield and brownfield projects.

OUR MISSION

We structure effective P3s for infrastructure projects that leverage private dollars to improve public services.
 

We have advised on projects in the following areas:

  • Affordable housing
  • Airports
  • Campus energy facilities
  • Campus office and commercial buildings
  • Educational facilities
  • Highways, toll roads and bridges
  • Justice centers 
  • Natural gas utilities
  • Parking garages, parking meters and other parking facilities 
  • Redevelopment of publicly-owned brownfield projects 
  • Stadium and convention facilities 
  • Student housing 
  • Telecommunications, fiber optics and broadband 
  • Urban redevelopment
  • Water and wastewater facilities 
FROM CONCEPT TO COMPLIANCE – THE P3 PROCESS

Ice Miller’s P3 Group works with its clients through every element of the P3 process, starting with concept development and issuance of a request for interest (or similar document) and continuing through compliance and delivery. Our experience in public finance, public law, structured and project finance, tax, construction, real estate and other related areas provides us with the knowledge and skills to efficiently structure key elements of the P3 process.
 
Authorizing Legislation - Public entity participation in P3 relationships is typically governed by specific authorizing statutes, which must provide a clear, workable, 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 and also 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.  
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.

Asset Sales, Purchases and Leases – Our team has a breadth of experience in managing public-private transactions involving real estate transfer and the provision of ongoing service. 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.

Service Standards – 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.

Financial Terms – P3 transactions involve financial instruments that are often foreign to government entities, while private investors may be unfamiliar with government funding restrictions and financing mechanisms. Our firm has a robust combination of bond, public law, private finance and banking expertise that allows us to have a deep understanding of the needs of each party in the transaction.

Project Finance – P3 projects must still be financed, and Ice Miller is among the nation’s preeminent public finance law firms. Our firm has significant experience in financing projects using alternative construction programs, including traditional bond finance techniques, private activity bonds for transportation projects, corporate finance structures used by investors and developers in P3 transactions and specialized finance plans such as TIFIA loans for highway projects.
 
HONORS AND AWARDS 

  • The Bond Buyer 12th annual National Deal of the Year 2013
  • North American Project Bond Deal of the Year by IJGlobal 2013
  • Nominated as the Deal of the Year – Transport by Infrastructure Journal Awards 2014
  • Partnerships Bulletin – Partnership Award (International) for Best Road Project 2014
Ice Miller’s P3 practice is closely related to its status as one of the nation’s premier bond counsel firms. For example, according to The Bond Buyer 2016 statistics, Ice Miller was ranked 3rd by dollar volume of bond counsel transactions in an eleven-state Midwest Region, ranking 1st, 4th and 5th, respectively in Indiana, Ohio and Illinois. The firm served as counsel in the financing of major transportation projects, and we worked with numerous other public entities in bond transactions, including:
 
  • $1,014,335,000 Chicago O’Hare International Airport General Airport Senior Lien Revenue Refunding Bonds, Series 2016A (AMT), Series 2016B (Non-AMT) and Series 2016C Serior Lien Revenue Bonds, Series 2016C (Non-AMT) (Underwriter’s Counsel)
  • $176,780,000 The Indianapolis Local Public Improvement Bond Bank Refunding Bonds, Series 2016A-1 (AMT) and Series 2016A-2 (Taxable) (Indianapolis Airport Authority Project) (Bond Counsel)
  • $178,690,000 The Indianapolis Local Public Improvement Bond Bank Refunding Bonds, Series 2015I (Indianapolis Airport Authority Project) (Bond Counsel)
  • $29,860,000 Gary/Chicago International Airport Authority Airport Development Zone Revenue Bonds, Series 2014 (Underwriter’s Counsel)
  • $249,130,000 Louisville Regional Airport Authority Airport System Revenue Refunding Bonds, Series A, Series B and Series C (Taxable) (Issuer’s Counsel)
  • $333,060,000 The Illinois State Toll Highway Authority Toll Highway Senior Revenue Refunding Bonds, Series 2016A (Underwriter’s Counsel).
  • $400,000,000 The Illinois State Toll Highway Authority Toll Highway Senior Revenue Bonds, Series 2015A (Underwriter’s Counsel).
  • $98,660,000 City of Chicago Motor Fuel Tax Revenue TIFIA Bond (Wacker Drive Reconstruction Project including the Chicago Riverwalk Expansion: TIFIA – 2013-1004A) (Bond Counsel).
 

Representative Clients

Representative Experience

Our team members have played a leading role and various support roles in many of the most important and innovative P3 transactions in the United States as highlighted below.
 
TRANSPORTATION
 
Indiana Toll Road. Ice Miller represented the Indiana Finance Authority (IFA) as its lead counsel in structuring and negotiating the lease of the Indiana Toll Road for $3.8 billion along with an additional $500 million in mandatory expansion projects. From start to finish, the process took less than nine months with the initial RFP in September 2005, a winning bidder selected in January 2006 and the closing in June 2006. Ice Miller assisted the IFA in preparing the RFP; drafting and negotiating the concession agreement; drafting legislation; obtaining legislative approval and defending three lawsuits seeking to prevent the IFA from moving forward with the transaction. Ice Miller continues to represent the IFA in its ongoing monitoring of the lease and handling of disputes with the concessionaire.
 
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 principal counsel for the P3 procurement for the East End Crossing, which is the Indiana portion of the Ohio River Bridges project. The public private agreement for 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, Ky. This project utilizes an availability payment structure with the private entity and includes a new tolling regime. Ice Miller also was counsel to the Indiana Finance Authority (IFA) on a TIFIA loan for the overall project 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 Indiana Finance Authority (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 Indiana Finance Authority and the Indiana Department of Transportation (collectively, “Indiana”) 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 further served as issuer’s counsel for Indiana 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. We have also extensively represented Indiana in connection with such disputes and the resolution of issues needed to complete the project. This latter 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 in its process of selecting an operator to manage the Indianapolis Airport and then in the negotiations to end that relationship when the Authority 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 the Authority, 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 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 since it was created in 2005. The Authority 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 the Authority and assisted the Indiana Finance Authority 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 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 of Indianapolis, 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 could sell the systems without adversely affecting the 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 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 the acquisition. Similarly 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 served as counsel and bond counsel for many years to a host of higher education institutions. Ice Miller attorneys have advised a number of them, including Indiana University, Purdue University, Ivy Tech Community College and The Ohio State University, in various potential public private partnerships, regarding parking systems, energy and utility systems and other developments. The goal is either 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 OSU legal team on a P3 deal with a private concessionaire on a far-reaching 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. 
 
Ice Miller represents municipalities with their Requests for Information (RFIs) and negotiates the creation and construction of fiber optic systems for cities and towns including the cities of: New Albany, Gahanna and Dublin. The Firm also represented the cities of Dublin, Dayton, Grove City, Gahanna and Worthington and drafted and negotiated various types of WiFi agreements. 
 
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.
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