Eversheds Sutherland (US) LLP

Eversheds Sutherland’s cross-practice Public-Private Partnerships (P3) team advises clients on the formation, financing, transaction, management, and conclusion of public-private partnership construction projects. The team provides innovative, government-oriented project delivery solutions to construction, infrastructure, and energy clients seeking to connect private construction and financing to public needs.

Public-Private Partnerships (PPP or P3) represent a critical and developing tool in the arsenal of governments and municipalities throughout the United States and around the world to rebuild, construct, improve, operate and maintain essential infrastructure, including roads and highways, bridges, mass transit and rail, ports and aviation facilities, water distribution and treatment, energy production, and social infrastructure such as schools, prisons, courthouses, and public housing. As cities, counties and states with limited public funding struggle to develop new infrastructure and to repair and conserve existing facilities, the private sector possesses the financial ability and incentive, design creativity, and construction expertise to partner with civic entities to provide solutions that mutually benefit public owners, private companies, and individual users and taxpayers.

Win-win-win outcomes, however, do not come to fruition without first overcoming the significant complexities and relative novelty of P3s in the United States. Among these P3 challenges are the variety of statutory schemes across different jurisdictions; structuring corporate partnerships and joint ventures to maximize institutional knowledge while properly allocating risk; raising equity and acquiring debt from innumerable financial resources; working with government agencies and officials; drafting and negotiating a host of legal documents including new arrangements rarely seen before in the United States (but common abroad); assigning responsibility and drafting contracts for the design and construction of cutting-edge and massive infrastructure and energy projects; and resolving disputes in an expedited, efficient, and productive manner. Eversheds Sutherland’s P3 team has devoted substantial time and resources to tackling these challenges in many states.

A select, cross-practice team of Eversheds Sutherland attorneys focuses on P3s and draws on our substantial experience in construction documents and construction dispute resolution, energy development and asset acquisition, public and private finance, corporate structuring and formation, real estate transactions, environmental regulation, and tax planning and credit maximization.

Why Eversheds Sutherland

Intimate knowledge of infrastructure. Eversheds Sutherland clients have designed, built, operated, financed, insured, acquired, or managed every type of significant built infrastructure in the United States and abroad, from highways to airports, wastewater treatment to hydroelectric power, solar to wind generation, and schools to hospitals—just to name a few. We understand the technical complexities and needs of these projects and know how to structure partnerships to take advantage of our clients’ experience.

Value-added approach. Eversheds Sutherland enjoys access to some of the most extraordinary clients in the world—with expertise in cutting-edge technology such as building information modeling (BIM), alternative energy production and distribution, innovative construction techniques, and emerging financing and insurance products. We strive to connect the experience of the private sector with public owners who need investment, construction, maintenance, and modernization.

Seeing the whole picture. Our cross-practice approach means that the Eversheds Sutherland P3 team appreciates all facets of successful private finance and construction on a public project, from complicated pitches and unsolicited proposals to substantial completion, operation and maintenance, asset transfer, and debt retirement. We guide our clients through the entire process.

Creative finance experience. Eversheds Sutherland keeps abreast and advises clients on all manner of new and innovative financing products, including Transportation Infrastructure Finance and Investment Act (TIFIA) and Section 129 loans available to public entities, private activity bonds and dedicated project finance for private entities, and important subsidies such as new markets and historic rehabilitation tax credits.

Desire to achieve. Public-private partnerships enable governments to build and maintain some of the most exciting, groundbreaking, and essential construction projects in the world. Eversheds Sutherland attorneys view enabling these projects as not only important for our clients but also for the greater good—helping to create a remarkable, lasting, affordable and sustainable built environment for everyone to enjoy and use.

Nuts and Bolts

Eversheds Sutherland has experience with all types of construction projects where P3 is possible:

• Roads, highways, and tunnels
  
  • Contract negotiations with the Federal Highway Administration (FHWA) and various state departments of transportation
  • Disputes regarding environmental issues, cost overruns and delays, latent construction defects, and bid protests against public owners, engineers, contractors and joint venture partners
• Aviation, mass transit, rail, ports and ferries
• Traditional energy production
  
  • Acquisition, disposal, and financing of new coal-fired and gas-fired power plants
  • Drafting engineer-procure-construct (EPC) agreements for new power plants and emissions components
  • Litigation regarding delay, labor and equipment productivity, design, and defects
• Renewable wind, solar, hydro, nuclear, biomass, and geothermal energy
  
  • Project development and asset purchases
  • Transactions related to power purchase, transmission, and distribution
  • Intellectual property protection for new technologies
  • EPC and design/build agreements for new or upgraded wind, solar, hydro, nuclear, and biomass projects
  • Litigation regarding performance guarantees, delay, defects, and warranties
• Water supply, conservation, and treatment
  
  • Watershed management and development of treatment facilities
  • Litigation regarding sewer repair
• Social infrastructure
  
  • Construction contracts for schools and multi-family housing
  • Litigation over hospitals, prisons, schools and housing

Eversheds Sutherland advises clients on all aspects of potential and current P3 projects:

• Public-private partnership opportunities and creation
  
  • Knowledge of federal and state enabling legislation and regulations
  • Matching client expertise with public needs
  • Fostering relationships with government officials and agencies at all levels
  • Corporate formation and establishing joint ventures and partnerships
  • P3 project finance
  • Acquiring, structuring and documenting public and private project finance
  • Understanding of public debt, private financing options such as venture capital, and pioneering and evolving financing options unique to P3
  • Restructuring, procuring, or divesting equity and debt during a project
  • Innovative products and options such as private activity bonds, state infrastructure banks, TIFIA assistance, Section 129 loans, and EB-5 financing
• Tax credits and incentives
  
  • New Markets Tax Credit
  • Historic Rehabilitation Tax Credits
  • State and local credits
• Real estate acquisition, management, and disposal
  
  • Lease documents
  • Operations and maintenance agreements
• Construction transactions
  
  • Drafting and negotiation of all types of construction contracts, including American Institute of Architects (AIA), ConsensusDocs, Associated General Contractors, Design-Build Institute of America, and International Federation of Consulting Engineers (FIDIC) forms
  • Extensive experience with alternate project delivery systems and documents, such as fast track construction, design/build contracts, EPC agreements, and integrated project delivery (IPD)
  • New contracting mechanisms such as Design-Build-Operate-Maintain (DBOM), Design-Build-Finance (DBF), Design-Build-Finance-Operate (DBFO), Design-Build-Finance-Operate-Maintain (DBFOM), Build-Transfer-Operate (BTO), Lease-Build-Operate (LBO), Build-Operate-Transfer (BOT), and Build-Own-Operate-Transfer (BOOT)
  • Corporate and project-specific insurance and bonding requirements and acquisition
  • Intellectual property concerns
• Asset management
  
  • Toll and fee collection, accounting, and taxation
• Dispute resolution
  
  • Crafting and utilizing expedited dispute resolution mechanisms for fast and cost-effective decisions
  • Understanding the availability and limitations of liens, surety bonds and insurance
  • Claims recognition and avoidance
  • Advice on cost and schedule mitigation
  • Mediation, arbitration, and litigation

Take Action

§  “Diversity at Sutherland Asbill & Brennan LLP” to “Diversity at Eversheds Sutherland (US) LLP”

§  “Diversity” section:

o   The firm’s emphasis on diversity is reflected in numerous ways throughout the firm, such as the manner in which we recruit lawyers and other employees, our work-life policies and our professional service efforts. We have been recognized for our achievements in diversity.  More importantly, we understand the significant role a diverse community plays in the firm's growth and development.

§  “Our Awards and Recognitions” section:

o   Eversheds Sutherland (US) LLP continues to be recognized for its efforts to promote diversity in the workplace and in the legal profession. In 2016 we were named a “Best Place to Work for LGBT Equality,” having earned a perfect 100 score on the Human Rights Campaign’s Corporate Equality Index, and we also were ranked a Top 100 Firm for Minority Attorneys by Law360. In addition, the firm was awarded the Gold Standard Certification for the fifth consecutive year by the Women in Law Empowerment Forum.

§  “Our Commitment” section:

o   Eversheds Sutherland (US) LLP is committed to promoting diversity within the firm and in the legal profession.  We believe that diverse skills, knowledge and viewpoints make us a stronger, more productive law firm.  We hire and promote qualified lawyers and other professionals regardless of race, color, national origin, religion, disability, gender, gender identity or sexual orientation.  We understand that diversity enhances our value to clients by allowing us to staff our client teams with professionals who possess broad experiences and a spectrum of perspectives.

o   Eversheds Sutherland (US) LLP has a cross-office Diversity Committee with responsibility for supporting and enhancing our firm culture.  Our committee has helped coordinate and lead a number of efforts to advance diversity within our firm and the community. Affinity groups at the firm serve as support networks for attorneys of color; women lawyers; and gay, lesbian, bisexual and transgender attorneys.

o   We are committed to working with our clients as they pursue the common goal of a professional workplace where opportunity is available to all.