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GEOFFREY S. YAREMA NOSSAMAN GUTHNER KNOX ELLIOTT LLP

2. Nossaman. Law and consulting firm with unique specialty in procuring, contracting and financing large infrastructure projectsWork exclusively for owners, not civil contractorsHonored to work for more than 30 State DOTs and regional transportation authorities around the countryNamed by Public W

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GEOFFREY S. YAREMA NOSSAMAN GUTHNER KNOX ELLIOTT LLP

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    1. 1 GEOFFREY S. YAREMA NOSSAMAN GUTHNER KNOX & ELLIOTT LLP

    2. 2 Nossaman Law and consulting firm with unique specialty in procuring, contracting and financing large infrastructure projects Work exclusively for owners, not civil contractors Honored to work for more than 30 State DOTs and regional transportation authorities around the country Named by Public Works Financing as the #1 owner advisor each year since rankings began Projects named #1 of the year by AASHTO, Institutional Investor, Bond Buyer, ASCE, DBIA, ARTBA and many others Proud of our clients’ record of success

    3. 3 Focus of Discussion 1.0 Key Elements of a Successful Institutional Framework 2.0 Selecting a Project Delivery Plan 3.0 Implementing the Project Delivery Plan 4.0 Private Concessions: the Next Frontier?

    4. 4 Key Elements of Successful Institutional Framework 1.1 Anticipating sources of funds and knowing legal or market requirements each will impose 1.2 Identifying entity(ies) that will own and operate project and assuring they have needed state-level organization and legal powers 1.3 Securing the third party approvals required to build and operate 1.4 Are there good reasons to deliver project differently?

    5. 5 1.1 Sources of Funds Each funding source has its own: Legal “strings” Market “strings” As a result, finance/funding plan is key “driver” of project delivery strategy

    6. 6 1.1 Sources of Funds: Examples Federal funds Title 23/49 purposes Procurement restrictions Design-Build Rule SEP 14, 15 TE-045 Davis Bacon Tax-exempt debt Great asset BUT current IRS restrictions No long-term concessions No revenue sharing No private equity Proposed changes to private activity bond rules

    7. 7 1.1 Sources of Funds: Examples

    8. 8 1.2 State–Level Organization and Legal Powers Goals Institutional commitment to project Efficient project administration Need to ensure government sponsor(s) possesses all powers project will require Organizational Options Existing government agency Pass state legislation to supplement existing agency powers Create special office or division within existing agency Form and empower new special purpose agency to finance, build and operate Form special purpose agency to build and then transfer to existing agency to operate

    9. 9 1.2 State–Level Organization and Legal Powers Selected Legal Powers Pre-Qualification Negotiation “Best value” selection Best “project plan” selection Long term durations Unsolicited proposals Call for projects Flexible agreement terms and conditions Utilize range of financing tools

    10. 10 1.3 Third Party Approvals Arising from land use NEPA and/or State equivalent Federal, state and local resource agency permits Arising from use of special assets Connecting to networks, like state highway systems Tolling interstate highways Concessioning existing assets originally funded with government grants

    11. 11 1.3 Third Party Approvals Arising from public debt issuance restrictions Volume caps Vote requirements Referenda Off balance sheet options Europe: shadow tolls USA: 63-20 non-profit corporations

    12. 12 1.4 Are There Good Reasons to Deliver Project Differently? To justify deviating from tried and true, project delivery plans should offer significant advantages: Accelerate project delivery Fix costs/schedule early in design phase Involve private sector early in project development process Shift risk and reduce claims Use private capital to leverage limited traditional government funding

    13. 13 2.0 Selecting a Project Delivery Plan 2.1 Options 2.2 Inputs and outputs for decision-making 2.3 How to make the decisions

    14. 14 2.1 Selecting a Project Delivery Plan: Options Every project is delivered through a public-private partnership! Continuum from traditional approach to privatization What are the major options to consider?

    15. 15 2.1 Selecting a Project Delivery Plan: Options 2.1.1 Traditional Pay-As-You-Go Tax Funding using Design-Bid-Build and Public Operations / Maintenance Most all U.S. surface transportation projects! Widely authorized by state legislatures with built-in federal bias Compelled in many jurisdictions Alternatives frequently require special state legislation and, where “federalized,” sometimes federal exemptions

    16. 16 2.1.2 Traditional Funding Using Design-Build and Public Operations Utah I-15 Colorado T-REX Minnesota Hiawatha LRT and Highway Program Reno ReTRAC Pasadena Gold Line LRT

    17. 17 2.1.3 Traditional Funding using DBOM River Line LRT Hudson-Bergen LRT 2.1 Selecting a Project Delivery Plan: Options

    18. 18 2.1.4 Dedicated Revenue Stream using DBOM or DBM Massachusetts Route 3 North Seattle Monorail Project 2.1 Selecting a Project Delivery Plan: Options

    19. 19 2.1.5 Project Revenue Financing Using Design-Build and Public Operations TCA – San Joaquin Hills and Eastern TxDOT – SH 130 (Private Capital Maintenance) Colorado E-470 WSDOT – Tacoma Narrows Bridge (GO Bonds sized to match anticipated toll revenues)

    20. 20 2.1.6 Project Revenue Financing Using Non-Profit Concession Las Vegas Monorail SCDOT - Greenville Connector VDOT - Pocahontas Parkway

    21. 21 2.1.7 Project Revenue Financing Using For-Profit Concession Caltrans - CPTC SR-91 (pre-acquisition) Caltrans - CTV SR-125 VDOT - Dulles Greenway Provinance of Ontario - Toronto Highway 407 TxDOT – Cintra/Zachry SH 130 (5-6) (under negotiation) TxDOT - I-635, SH 121, I-820/SH 183 (under procurement)

    22. 22

    23. 23 2.2.1 Input: Project Characteristics How mature are: Project definition and configuration Environmental process Regulatory approvals Engineering and technical investigations ROW acquisitions Finance plan Traffic and revenue studies? How neatly packaged and ready for hard proposals/bids is a project? Has project progressed to point where private sector is willing to invest sweat equity and cost-share to help owner achieve feasibility?

    24. 24 2.2.1 Input: Sponsor Priorities Congestion relief? Reduce impact to public? Encourage innovation? Accelerate project delivery? Leverage limited traditional government funding?

    25. 25 2.2.2 Output: Contract Structure Pre-Development Agreement v. Implementation Agreement Design-Build DBM or DBOM Concession Private Equity with return on investment Tax-exempt financing with fees for services

    26. 26 2.2.2 Output: Competition Structure Initiating the Competition Solicitating Propsals Accepting unsolicited Call for projects v. project - specific RFPs Submittal Requirements and Evaluation Options Qualifications-Based Proposal with Development/Financing Plan Proposals include plan of development and plan of finance Use where one or more major project elements are uncertain Typically procured and executed before record of decision on environmental impact assessment

    27. 27 Qualifications / Hard Pricing / Firm Financing Proposals Proposal includes definitive pricing and/or firm financing commitment Financial closing and notice to proceed expected within short time after selection Typically requires defined project with reasonable certainty and reasonably matured pre-development work May be procured and/or executed before or after record of decision on environmental impact assessment Best value (price and other factors) selection Results in concession or DB/DBOM 2.2.2 Output: Competition Structure

    28. 28 Qualifications-based Proposals with Conditional Financing Proposals include conditional financing commitment Sufficient project definition and maturity of pre-development work to enable a conditional financing commitment Developer completes pre-development work to achieve financial closing May be procured before or after record of decision on environmental impact assessment Best value selection Results in concession 2.2.2 Output: Competition Structure

    29. 29 2.3 Making the Decisions

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    34. 34 3.0 Implementing the Project Delivery Plan

    35. 35 4.0 Private Concessions: A New Frontier? No! Extensive International Experience Some U.S. Experience

    36. 36 4.0 Overview of Concessions 4.1 Nomenclature 4.2 Key Contractual Elements 4.3 Concession Market

    37. 37 4.1 Nomenclature Concession Franchise Public-Private Partnership (P3) Build-Operate-Transfer (BOT) Build-Transfer-Operate (BTO) Design-Build-Finance-Operate (DBFO) Private Finance Initiative (PFI)

    38. 38 4.2 Key Contractual Elements Developer takes over project Completes development and operates and maintains Meets DOT standard Specified maximum term/duration Developer to provide Project financing with limited/no DOT financial commitment Developer entitled to collect project revenues subject to one or more limitations Direct: Toll Rate Caps Indirect: ROI/ROE Caps

    39. 39 4.2 Key Contractual Elements If revenue positive project, revenue sharing and/or upfront payment to DOT Developer obligation to add capacity as LOS degrades or based on other measure/time DOT right to terminate for convenience with payment to Developer based upon pre-determined formula Extent (if any) to which DOT should compensate Developer for unanticipated economic effects on project revenues

    40. 40 4.3 Concession Market 4.3.1 Examples Where Used 4.3.2 Examples of Market Players 4.3.3 U.S. Market Trends 4.3.4 Role of Traditional U.S. Design-Builders

    41. 41 4.3.1 Examples Where Used US SR 125 (CA) SR 91 (CA) Dulles Greenway (VA) Canada 407 (Toronto) Sea to Sky Highway (BC) [non-tolled highway] UK M6 Toll N4-N6 Kinnegad-Kilcock (Ireland) Shadow Toll Projects Australia M2/M4/M5 Motorways M7 Western Sydney Orbital

    42. 42 Europe A86 (Paris ring road) A28 (France) Radial-4 (Spain) Vasco de Gama Bridge (Portugal) South America Maipo (Chile) Talca-Chillan (Chile) Asia/Middle East Cross-Israel Highway – (Highway 6) Manila North Tollway 4.3.1 Examples Where Used

    43. 43 4.3.2 Examples of Market Players Australia Macquarie Transurban Spain Cintra/Ferrovial Dragados Abengoa France Vinci Egis

    44. 44 UK AMEC Balfour Beatty Germany Hochtief Bilfinger Berger Hong Kong Cheung Kong Sweden Skanska 4.3.2 Examples of Market Players

    45. 45 Current U.S. tax laws generally preclude mixing of tax exempt financing with private equity/debt or revenue sharing Over the last 5-8 years, most US highway agencies/advisors have favored the tax-exempt markets as the most efficient tool for financing infrastructure Result = Less U.S. concessions 4.3.3 U.S. Market Trends

    46. 46 Recent developments suggest a larger role for the private finance/concession model SR 125 (CA) and Detroit-Windsor Tunnel purchases by Macquarie Chicago Skyway Lease by between City of Chicago and Cintra Private Activity Bonds (PABs) included within current reauthorization bill would allow for up to $15 billion in tax exempt-financing to be mixed with private equity Trans-Texas Corridor 35 Agreement between TxDOT and Cintra Zachry 4.3.3 U.S. Market Trends

    47. 47 4.3.4 Role of Traditional U.S. Design-Builders

    48. 48 4.3.3 Role of Traditional U.S. Design-Builders Typical DB business model = design, build, get paid and leave Bringing significant $, retaining responsibility/risk during long-term O&M period poses challenges to them In concession, still have critical role, but less likely to lead teams unless they restructure their business model Concessionaire/Developer will award a DB contract to DB contractor team

    49. 49 Geoffrey S. Yarema Nossaman Guthner Knox & Elliott LLP 445 S. Figueroa Street Thirty-First Floor Los Angeles, CA 90071 (213) 612-7842 gyarema@nossaman.com www.nossaman.com Contact:

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