Public-Private Partnerships Forum PPP Law, Structures and Contracting

Transcription

1 Public-Private Partnerships Forum PPP Law, Structures and Contracting AGC California Fall Conference 2010 Hyatt Grand Champions, Indian Wells November 4, 2010 MAKING IT HAPPEN.

2 Overview California PPP Laws Public Sector Objectives Structuring PPPs Differences from Traditional Contracting Closing Observations 2

3 California PPP Laws State and Regional Transportation S.&H. Code 143 (SBX2 4) Authorizes PPP method of procurement and contracting By Caltrans and regional transportation agencies For transportation projects (highway, public streets, rail) Authorizes contracting entity to impose tolls or user fees Project selection subject to CTC approval At all times, project must be publicly owned Authorizes solicited and unsolicited proposals. If unsolicited, subject to competitive process if public sponsor wishes to proceed Authorizes RFQ/RFP procurement process Selection may be based on low bid or best value Unlimited number of projects Sunset PPP agreement must be signed by 12/31/2016 3

4 California PPP Laws Local Government Infrastructure G. Code (AB2660) Authority for local governments to use private investment capital to design, build, operating fee producing infrastructure Includes drainage, energy or power production, water, sewage, flood control, waterways, harbors, municipal improvements, commuter and light rail, highways and bridges, tunnels, airports and runways, refuse disposal, structures and buildings (including schools, community colleges) Drawbacks and limitations No state projects, projects receiving state funding, toll roads on state highways Clearly authorizes only private sector equity investment, but not debt financing Maximum term of 35 years No property tax exemption Procurement authority limited to competitive negotiation, with demonstrated competence and qualifications being the primary selection criteria. Competitive bidding barred No alternative to 100% payment and performance bonds 4

5 California PPP Laws High Speed Rail (P.U. Code ) CHSRA authorized to enter into Contracts with public or private entities for design, construction and operation of high speed trains Joint development agreements with local governments and private entities Power was conditioned on voter approval of a financial plan providing the necessary funding for the high speed network Voters approved $9.95B HSR Bond Act in November 2008 Formal AG Opinion (from Brown) found that Bond Act met condition and vested CHSRA with its P3 authority Finance plan includes $4.5B $7B of capital investment via PPPs 5

6 California PPP Laws State courts (G. Code (a), 70391(b) Judicial Council responsible for all state court facilities construction, operation and maintenance Authority to enter into leases or service contracts with private sector participants to undertake some of the risks associated with the financing, design, construction, or operation Solicited PPP for Long Beach courthouse replacement facilities 6

7 Public Sector Objectives Maximize up-front capital formation, or redirect public funding across more needed projects Accelerate project delivery Value for money overall better value to public owner than traditional project delivery Risk transfer to private sector Improved cost and schedule certainty, early in design phase Life cycle cost efficiency via private sector profit motivation Improved project quality and performance via Design and construction innovations early in project development Performance standards Long-term asset condition requirements 7

8 Structuring PPPs Many varieties. Most significant in California will be: Toll concession Availability concession 8

9 Structuring PPPs Toll Concession Independent Engineer Equity Investors D-B Contractor Public Owner Public Surplus Public Subsidy Concessionaire $ Tolls Users Operator Lenders Lender s Engineer Engineers Trade Contractors 9

10 Structuring PPPs Attributes of Toll Concessions Brings new (non-public) $ to the table Typically attracts greatest amount of upfront private capital Public owner Performs conceptual/preliminary design Achieves environmental clearance Decides on toll rate setting mechanism over contract life Establishes performance requirements and less regulation of means and methods Reduces exposure to claims and change orders 10

11 Structuring PPPs Attributes of Toll Concessions Private sector takes on Design risk Schedule risk Traffic and revenue risk Financing risk Long term asset condition and performance risk Life cycle cost risk Obligation to return project in pre-agreed condition Can accelerate project delivery through fast track design and construction Significant synergies between design and construction Continued O&M acts like an extended warranty Term is typically years Competition structure Auction best price (highest concession payment, lowest use of public funds, or most project for set amount of public funds) Best value (price and other factors) 11

12 Structuring PPPs Availability Concession Users Tolls / Other Revenues Equity Investors D-B Contractor Engineers Government Milestone Payments Availability Payments Concessionaire Trade Contractors Operator Must be earned Capped at amount bid (adjusted for inflation) Lenders 12

13 Structuring PPPs Attributes of Availability Payment Concessions Project either does not generate direct revenue or public owner retains revenue rights and risks Public owner pays concessionaire periodic maximum availability payments based upon project availability and objective performance measures over term Unavailability = no or reduced payment Typically APs do not start until substantial completion Performance measures can be tailored to project e.g., pure availability, safety, environmental, others 13

14 Structuring PPPs Attributes of Availability Payment Concessions Private sector assesses availability payments differently than toll revenue/traffic risk projects Focus on likelihood of achieving performance measures Less risky because of no/limited traffic and revenue risk Less upside (AP is maximum the private sector can receive) Term typically is years Competition structure Auction lowest MAP Best value (MAP and other factors) 14

15 Presidio Parkway PPP Project 15

16 Structuring PPPs Presidio Parkway PPP Project 1 ½ mile, $1.1B project to replace Doyle Drive from Golden Gate Bridge through the Presidio in SF, CA Includes two viaducts, two twin cut and cover tunnels, surface street improvements, protection of historical structures Originally, traditional design-bid-build, divided into 8 separate contracts, with 17 sources of federal, state and local funding Scope for contracts 5-8 converted to availability payment PPP Winning proposer: Concessionaire Golden Link Partners (single purpose entity) Equity investors Hochtief and Meridiam subsidiaries Design-build contractor Kiewit and Flatiron joint venture (parent guarantees) Lead engineer HNTB Financial advisors and underwriters Barclays Capital, Merrill Lynch, Scotia Capital 16

17 Structuring PPPs Presidio Parkway Project Financing elements: Private entity borrowing using senior private activity bonds and subordinate TIFIA loan Plus private equity (12.5% of total capital) At substantial completion, one-time Milestone Payment from Caltrans of $173.43M, PABs repaid, TIFIA becomes senior debt. Annual Availability Payment of $28.55M Subject to adjustment up to financial close based on movement in interest rates and changes in key financial term assumptions 15% adjusted annually by CPI to cover O&M cost escalation Source of APs will be State Highway Account, subject to appropriations % equity internal rate of return Caltrans will receive local government payments as reimbursement for portion of costs. Contract execution late December. Financial close summer Commence construction late Substantial completion

18 Differences from Traditional Contracting Risk transfer Design risk Public sponsor delivers sufficient design to enable firm pricing and scheduling early in development phase Payment risk toll revenues or APs don t commence until asset is placed in service. Many delay risks shifted to concessionaire, placing expected revenue at risk Differing site conditions risk transfer varies by project, but often only schedule relief Presence and release of hazardous materials Governmental approvals major permits (except NEPA/CEQA actions) become concessionaire responsibility Force majeure narrowly defined, and often only schedule relief 18

19 Differences from Traditional Contracting Risk allocation between concessionaire and DB contractor Lenders very concerned with risk transfers Want all concessionaire risks insured or passed through to other project participants, especially DB contractor Degree to which risks rest with concessionaire can make or break financing and investment grade rating So, concessionaire often seeks to: Pass through delay liquidated damages Retain right to lost toll revenues as element of damages for DB contractor delay or defective work Resist rights to change orders and claims for risks it cannot assert against public owner Pass through liquidated damages and other consequences for failure to meet project performance requirements 19

20 Differences from Traditional Contracting Role of project owner in design and construction oversight Typically, less public owner control Concessionaire takes primary responsibility for QA/QC, monitoring, testing and inspection Passes through many of these functions to DB contractor Public owner, Independent Engineer and Lender s engineer undertake audit-level reviews and inspections of practices, documentation and field work 20

21 Differences from Traditional Contracting Design and construction standards Generally, less prescriptive, more performance- or outcome-based specifications Leaves room for private sector innovation with design, means and methods in order to achieve required outcomes More responsibility on concessionaire, contractors to figure out how to achieve required outcomes consistently, efficiently 21

22 Differences from Traditional Contracting Warranties and guarantees Contractor warranties typically must run to each party up the chain DB contractor, concessionaire and public owner Public owner review, certification of substantial completion and final acceptance do not prejudice or waive rights in event of defective work or failure to meet continuing standards during operating phase Concessionaire often requires design and construction warranties beyond one year, due to long-term exposure to impact of defects on Operations and maintenance costs Ability to meet asset condition requirements and performance standards 22

23 Differences from Traditional Contracting Payment and performance security 143 gives public owner broad discretion for type and amount of security Some international concessionaires do not have access to sureties and resist bonding requirements Letters of credit often allowed as alternative Presidio Parkway 15% performance bond or letter of credit; 15% payment bond, at DB contractor level or concessionaire level Lenders have their own requirements. Avoiding duplication of security always an issue Subcontractor selection Subcontractor listing law may not apply under Section 143 Caltrans put anti-bid shopping constraints in its RFP and concession agreement for Presidio Parkway 23

24 Differences from Traditional Contracting Insurance CCIPs are common OCIP in place for Presidio Parkway Indemnifications Public owner requires thorough contractual indemnifications reflecting risk transfers Concessionaire will flow down indemnifications to contractors Dispute resolution Caltrans is using disputes review board under its existing administrative rules for design and construction claims only Non-binding. Thereafter, litigation. No arbitration Can expect concessionaire to adopt similar dispute resolution mechanisms with its contractors 24

25 Closing Observations Real opportunities exist for CA contractors to participate in PPP projects Major transportation PPP projects are on horizon LA Metro Board has initially screened PPPs for I-710 South Corridor SR 710 North Extension High Desert Corridor Crenshaw Corridor LRT Westside Subway Extension Regional Connector LRT Caltrans? RCTC MTC Will next administration continue to support PPPs? More action with regional transportation agencies than Caltrans Judicial Counsel may do more Little PPP activity for local government infrastructure Understand which firms are leaders as concessionaires and design-build contractors. Build relationships. They have good track record using local contractors. 25

26 Contact: Fredric W. Kessler, Esq. Nossaman LLP 445 S. Figueroa Street, 31st Floor Los Angeles, CA (213)