Troutman Sanders is an industry leader in the provision of legal services to transmission developers (utilities and/or independent parties), EPC contractors, financial institutions, tower manufacturers and other transmission-related service providers. The firm is well-positioned to serve clients involved in the ongoing U.S. transmission build-out which is estimated to require approximately $300 billion in new construction between 2010 and 2030.[1]
Our team is unique in that it combines the skill sets of attorneys who have vast experience in core business counseling for utilities and other power providers, with the skill sets of EPC, construction, environmental and real estate lawyers.
Notably, the firm has represented utilities in the electric industry since the 1920s on both electric generation and transmission matters. In transmission, the firm’s representations include major M&A transactions, all aspects of project development and ownership arrangements, line siting and permitting, EPC contracting, project trouble-shooting to avoid disputes, and construction ADR and litigation when disputes cannot be avoided. We have helped clients build transmission lines to serve traditional utility needs, to serve independent power producers, to serve renewable energy plants, and for purely merchant purposes.
We are especially skilled in the following areas:
- Obtaining federal and state regulatory approvals (covering ratemaking, financial, siting, and environmental);
- Front-end development contracting, including project development and ownership arrangements;
- EPC and other contracting and procurement agreements;
- Corporate structuring;
- Real estate and ROW acquisitions;
- Financing; and
- Construction ADR and litigation.
Our Construction and Energy Law teams are nationally ranked. Several of our lawyers are former construction contractors, engineers, and federal transmission regulators. We advise clients in all project phases, including pre-construction planning, contract negotiation, tailoring project documentation systems, problem-solving during construction, project closeout, and claims and dispute resolution and management.
Skill Set Highlights
Contract Preparation and Negotiation. We prepare and negotiate complex design and construction contracts, whether based upon lump sum, unit prices, guaranteed maximum price, cost plus, cost plus fixed fee, cost plus percentage of cost, target pricing, incentive contracts or other contract types. Although many energy-related contracts are “custom” documents and do not track construction industry standard form agreements, our attorneys are familiar with all of the standard industry forms including: American Institute of Architects (AIA), the ConsensusDOCS, Design Build Institute of America (DBIA), Construction Management Association of America (CMAA), and the Engineers Joint Contracts Documents Committee (EJCDC).
Contract Review and Risk Assessment. We review proposed and existing contracts and suggest modifications and identify terms that present significant risks to our clients. Our attorneys propose procedures and document controls to then manage and minimize the cost and schedule risks imposed by those contract terms and conditions that cannot be negotiated away.
Project Delivery Systems. We advise and assist in selecting the full array of delivery systems, including the customary design-bid-build, fast-track construction, design/build (D/B), construction manager (CM agency and at-risk), engineer-procure-construct (EPC or turnkey), finance-design-build (FD/B), build-own-operate-transfer (BOOT), design-build-operate-maintain (D/BOM) as well as other forms of project delivery systems.
Project Controls and Best Practices. We advise clients in creating and maintaining project controls necessary to administer and manage the design and construction process. Our attorneys also provide advice and consultation based upon their experience to establish “best practices” in assisting clients to manage and minimize risks at all levels. We frequently conduct in-house training programs for clients interested in making certain that project managers are well-equipped to document and deal with the many risks present on every major construction project.
Preliminary Project Development
- We assist in creating all forms of special purpose entities, whether public authorities, joint ventures, limited liability companies, teaming arrangements, or quasi public agencies and authorities.
- Preparation of confidentiality agreements, engagement letters with consultants and legal and financial advisors, letters of intent and like agreements with potential business associates and customers.
Transmission Siting. The firm has acted as lead counsel for public utilities in condemnation proceedings to acquire property for electric substations, transmission lines, and communications facilities and in litigation matters involving real property associated with such matters.
Energy Project Debt & Equity Financing. Our lawyers work with our clients to arrange for the funding of project development including accessing capital markets, commercial banks, and other financial institutions. Moreover, Troutman represents lenders, borrowers, issuers and underwriters in furnishing or obtaining interim and permanent debt financing, including drafting bank information memoranda; offering memoranda and registration documentation, and drafting and negotiating financing term sheets, loan and security documentation and underwriting agreements. Group attorneys are experienced in a wide array of financing arrangements, including project loan syndications, hybrid project and corporate credit financings, private placements, public bond offerings, Rule 144A offerings, leveraged, synthetic and other lease financings, construction and term financing, bridge financing and various structured financing arrangements.
On the equity side, the firm represents clients regarding the purchase and sale of equity interests, including advice on applicable securities laws, preparation of registration statements and other disclosure documents, and preparation and negotiation of constituent documentation such as share purchase, shareholder and partnership agreements and joint ownership agreement.
Transmission Development & Construction Key Representations
Creation and Representation of International Transmission Company. The firm was lead counsel in the creation of International Transmission Company (“ITC”) from DTE Energy, and its sale to private equity investors including Kohlberg Kravis & Roberts. Our client, the seller of ITC, received a record price for the asset (approximately 1.8x book value).
Transfer of Transmission Assets to American Transmission Company. The firm represented Wisconsin Energy on the transfer of its transmission assets to American Transmission Company.
Representation of Tower Manufacturing/EPC Company. The firm represents a transmission tower construction/ EPC company in identifying and securing transmission project opportunities in the United States.
Ameren Purchase of T&D Assets. The firm represented Ameren in the purchase of Illinois Power’s transmission and distribution assets from Dynegy Corporation.
Underwriter Representation. The firm represented the lead underwriter regarding a proposed transmission company IPO.
Transmission Project Development.
Represented major Pacific Northwestern utility in connection with multiple sales of undivided ownership interests in transmission facilities, together with associated property rights, and the ongoing joint ownership and operation of those facilities.
Represented major Pacific Northwestern utility in connection with the joint development, permitting, siting and construction of multi-state transmission lines.
Represented U.S. retail manufacturer in connection with construction and ownership of transmission line in El Salvador.
On behalf of an investor-owned electric utility, negotiated 138 kV transmission line undergrounding and river-crossing replacement agreement with condominium tower developer and customer-built line extension agreements for main-grid transmission facilities and distribution facilities.
Acted as counsel to developer establishing a "renewable energy park" in California and associated transmission facilities (above ground/ underground).
Represent Green Power Express, a subsidiary of ITC Holdings, regarding the development of a $12 billion AC network to interconnect wind generation in North Dakota, South Dakota and Iowa.
Underground Utility Line Dispute. Successfully represented a general contractor during the defense and prosecution of $2 million in construction contract claims (differing conditions, changes) involving a quasi-public utility and multiple subcontractors arising out of an underground utility cable project in western Massachusetts. (Forums: five state suits, one bankruptcy, one mediation).
Energy EPC: Contract Support and Litigation (General)
Represented one of the world’s largest EPC contractors on a $100 million dispute concerning multiple breaches of an EPC contract for work on a power plant.
Acted as lead legal advisor to a public utility in connection with drafting and negotiation of major equipment purchase agreements.
Represented EPC contractor in litigation on a large dispute concerning the construction of a coal-fired power plant in China.
Represented large power company in drafting EPC and Construction Management Agreement for 300 megawatt Integrated Gasification and Combined Cycle (IGCC) power facility in Florida pursuant to Interlocal Cooperation Act.
Litigation counsel to a large Midwestern electric utility in connection with performance issue disputes, delay claims and defective design claims arising out of utility construction project at large coal-fired generating facility.
Litigation counsel to a large general contractor in prosecuting and defending claims arising out of the construction of a storage and treatment facility for nuclear waste at the DOE’s Idaho Nuclear Technology and Engineering Center.
Legal advisor to a utility in connection with the drafting and negotiation of dozens of coal-fired power plant additions and retrofits.
On behalf of public utility, negotiated a turnkey EPC agreement for a new advanced two-unit nuclear plant.
In addition to the above, Troutman Sanders served as legal counsel for various energy companies in connection with the engineering, procurement and construction of all of the following facilities, each of which were successfully constructed and are now in operation. We served as counsel to these clients in all stages of each project’s development, from the initial RFPs to vendors, through commercial operation and post-COD warranty periods:
- a 650 MW gas-fired combined-cycle facility in Kingman, Arizona
- a 674 MW gas-fired facility near Antioch, California
- a 554 MW gas-fired facility West Terre Haute, Indiana
- a 837 MW gas-fired combined-cycle facility in Zeeland, Michigan
- a 533 MW gas-fired facility north of Las Vegas, Nevada
- a 750 MW gas-fired facility expansion in Haverstraw, New York
- a 400 MW gas-fired facility in Port Westward, Oregon
- a 538 MW gas-fired power generation facility in Brazos, Texas
- a 220 MW coal-fired cogeneration facility in Birchwood, Virginia
- a 319 MW gas-fired combined-cycle facility in Cowlitz County, Washington
- a 309 MW gas-fired power generation facility in Neenah, Wisconsin
- a 166 MW coal-fired generating facility in Mejillones, Republic of Chile
- a 162 MW coal-fired generating facility in Mejillones, Republic of Chile
- a 412 MW gas-fired power generation facility in Mejillones, Republic of Chile
- a 117 MW gas-fired facility expansion in Kingston, Jamaica
- a 1,046 km natural gas pipeline running from Salta Province, Argentina, through Jujuy Province, Argentina; over the Andean mountain range and concluding in Mejillones and Antofagasta, Chile
Gas Pipeline Project. Represented a major utility in connection with the drafting and negotiation of a major gas pipeline project through a metropolitan area, and assisted in the successful negotiation of contractor change orders, claims and disputes.
