The provision of infrastructure and public services in the United States is changing. As local, regional and state governments face infrastructure challenges, many are looking to public-private partnerships (P3s) as a way to access private capital and deliver projects in an efficient and effective manner. In addition, many communities are partnering with private companies that have innovative ideas to provide a broad range of public services and improve the quality of life for their citizens.
We have very broad experience in counseling both public and private clients related to implementation of P3s. Since P3s exist at the intersection of the public and private sectors, successful implementation requires deep knowledge of both state and local government laws and commercial, corporate and finance laws. Our attorneys have worked with both sectors, providing us with broad knowledge and experience that we use to develop flexible, innovative and commercially financeable P3s.
Our attorneys have experience with P3s in the following sectors:
- Highways and toll roads
- Passenger rail and mass transit
- Ports and marine terminals
- Railroads and intermodal facilities
- Public buildings
- Transit-oriented development
- Water supplies
- Water and wastewater treatment plants
- Broadband and telecommunications
- Education facilities
- Economic and tax incentives
We can be particularly helpful in designing projects fully responsive to public procurement selection criteria and that benefit from an array of financing tools, including innovative financing programs available within the DOT and TWDB, private activity bonds, the new Build America Bonds, EB5 loans, New Market Tax Credits and more traditional public financing options, such as tax increment financing, tax abatements and Chapter 380/381 grants.
Land Use and Real Estate
- Jackson Walker represented a client that proposed to develop a transit-oriented development at the intersection of two major highways and a Dallas Area Rapid Transit station. The property in this project involved two tracts. One tract consisted of approximately 38 acres and the second tract consisted of approximately 147 acres. Jackson Walker represented the client in two major roles. First, Jackson Walker assisted in processing and receiving approval of zoning and development rights. Second, Jackson Walker assisted the client in structuring a P3 with the city by preparing a development agreement whereby the developer could receive over $100 million in tax increment financing to help defray the costs of development.
- Assisted a client that proposed to develop a major regional mixed-use center at the intersection of two regional highways in Texas. Jackson Walker processed and received approval of zoning and development rights consisting of approximately 7 million square feet of office uses, 4 million square feet of retail uses, 1,000 lodging units and 4,000 multifamily units. Jackson Walker also assisted the client in structuring a P3 with the city represented, its Economic Development Corporation and its Community Development Corporation whereby the client is to receive grants over a period of years as part of an economic development program to help defray the costs of development.
- In Dallas, represented purchaser in obtaining development approvals on approximately 6,000 acres to be developed as a master-planned intermodal hub. Jackson Walker assisted in several important P3s whereby the developer and various units of local government financed key infrastructure necessary for the development of this unique project.
- In Dallas, Richardson, Plano, and throughout the Dallas metropolitan area, assisted builders of transit-oriented developments, creating pedestrian communities adjacent to downtown commuter rail lines.
- In Dallas, assisted with a 200-acre master planned development in Oak Cliff, including infrastructure incentives, tax increment financing, and a Municipal Management District.
- In Austin, represented two downtown projects with “smart growth” designations, resulting in expedited entitlements processing and municipal participation in infrastructure development.
- In Pasadena, California, performed regulatory analysis that enabled a new component of a downtown residential development to be carried out in connection with redevelopment of a regional mall.
- In Denver, Colorado, managed code revisions, rezoning, platting, right-of-way abandonments and infrastructure participation by the city and the urban renewal agency for a major mixed-use project, known as St. Luke’s project.
- In Riverside County, California, represented the Building Industry Association to negotiate a new General Plan for the County based on smart growth principles.
- In Fort Worth, assisted in the formation of the Downtown Tax Increment Financing District (TIF) – the city’s first – which enabled the development of Sundance Square, an award-winning 35-block entertainment, shopping, office, and residential development district.
- In McAllen, Texas, assisted a retail developer in obtaining an economic development agreement for construction of a major retail center.
- In Mesquite, Texas, represented a major rail company in facilitating an agreement with the city to provide right-of-way for development of a significant intermodal facility.
- Jackson Walker was engaged as a sub-consultant to the Lone Star Rail District to develop and provide documentation for proposed P3s associated with transit-oriented development on and around the Rail District’s proposed stations. Jackson Walker’s engagement included development of P3 business models, identification of prospective developers, equity investors and business structures for full implementation of a P3 value capture program. The Lone Star Rail District was created in 2003 as an independent public agency focused on the development of regional passenger rail between Austin and San Antonio.
- Assisted construction company with various issues, including utilities, waste management, and taxes in relation to construction of the $1.1 billion DFW Connector project.
- In Houston, represented residential developer facing condemnation of a portion of a large tract of undeveloped land in the path of the Texas Department of Transportation’s (TxDOT) Grand Parkway construction project. Jackson Walker assisted the client in reaching a settlement in which the developer agreed to donate the requisite land to Harris County in exchange for the County’s agreement to install drainage and detention facilities along the strip of land to be covered by the Grand Parkway. Subsequent to donation of the land, Harris County assigned its title to the land to TxDOT to allow TxDOT to construct the Grand Parkway across the property.
- Represented a California port authority for procurement of a container movement system from port terminals to an intermodal transportation hub. The purpose of the project was to reduce emissions generated by port operations, using innovative technology from the private sector.
- Represented a public authority in California to design a procurement process for a bridge replacement project through a P3 transaction.
Environmental – Water and Wastewater
- Advised a private company related to the proposed development of seawater desalination plants in California and Mexico, to be structured as a P3 with local municipally owned utilities.
- Represented a private developer of a project to supply 50,000 acre-feet per year of groundwater to the San Antonio Water System in Central Texas. In this project, the developer would be responsible for all aspects of the project, including design, construction, finance, operation, and maintenance of all facilities for the initial operating term of 30 years.
- Represented renewable energy company for a P3 transaction in which the company would design, build, finance, and transfer a tertiary wastewater treatment plant to a California city in exchange for the city delivering produced water for reuse at the renewable energy facility.
- Represented private company for negotiation and implementation of agreements with several California municipalities for design, construction, finance, and operation of new wastewater treatment facilities, including water reuse.
- Represented investor-owned water utility for the purchase of capacity in a water treatment plant owned by a local public agency in California. This project resulted in the enhancement of water supply reliability for the utility and financial assistance to the agency with excess infrastructure capacity.
Environmental – Conservation Easements
- Jackson Walker represented a private land trust in the purchase and negotiation of a phased conservation easement transaction, involving easements encumbering approximately 2,300 acres and 1,300 acres, respectively, utilizing federal funding awarded by the U.S. Fish and Wildlife Service through a section 6 HCP grant.
- Represented a local government agency and private national land trust working together in the acquisition of over 15,000 acres of fee interests and 10 conservation easements at a cost of over $65 million.
- Represented a local land trust and two local government agencies jointly funding and working together in the negotiation and acquisition of three conservation easements protecting over 1,200 acres of open space, water recharge features, and compliance with the NRCS grant funding requirements of its Farm and Ranch Lands Protection Program (FRPP).
- Represented private landowner in two transactions, each involving a local land trust and local government agency jointly funding the conveyance of conservation easements over 100 acres with the assistance of a FRPP grant from the NRCS.
- Represented a private landowner in a bargain sale of a conservation easement to a private national land trust and local governmental agency working together to protect over 1,500 acres of open space and significant water recharge features, and the sale of an additional 1,500 acres in fee to the local governmental entity for $30 million.
- Represented two local government agencies and working with private stakeholders and the USFWS in the development of a regional habitat conservation plan designed to protect multiple endangered species across a seven-county area.
Texas Tax Incentives
- Jackson Walker has successfully negotiated local property tax abatement agreements on behalf of wind energy generation facilities in West Texas and petrochemical facilities in East Texas. Chapter 313 valuation limitation applications generally involve a school district’s agreement to limit the value of improvements placed in service during a two-year window, and the value limitation applies over the following eight-year period. Value caps vary from $10 million in the most rural or economically-challenged areas up to $100 million in developed areas. In very general terms, the property tax savings is potentially the value of qualifying investments made during a qualifying period, less the statutory valuation cap multiplied by an annual school tax rate of approximately 1.04 percent. In return for the valuation limitation, local school districts negotiate a “reimbursement agreement” under which the property taxpayer makes a payment in lieu of taxes to the school district, which can be up to the greater of $100 per student per year in the school district or $50,000 per year.
- Negotiated numerous tax abatement agreements with counties and other local taxing jurisdictions pursuant to Chapter 312 of the Texas Tax Code, which authorizes abatements of up to 100 percent of the tax otherwise due on new property value placed on the district’s tax rolls for up to a 10-year period.
- Jackson Walker assisted the University of Texas at Austin in organizing the UT Communication Foundation, a Texas non-profit corporation created for the benefit of UT’s College of Communication. The Foundation, in turn, formed two limited liability companies to facilitate the raising of investor capital for filmmaking. Burnt Orange Productions, LLC was organized to produce films in close cooperation with UT’s Film Institute, an organized research unit within its College of Communication, and thereby provide filmmaking experience for students and faculty in projects intended for the commercial marketplace. A second Texas limited liability company was organized to be the general partner of Town Lake Films, LP, a Texas limited partnership which sold limited partnership interests to a limited number of accredited investors. The Partnership was the executive producer for several relatively low-budget feature-length motion pictures over a three-year period. Because of the associated educational benefits, UT agreed to provide or assist in arranging facilities and personnel for the production of these films in Austin, Texas. These arrangements were intended to provide the Partnership with access to UT talent and facilities in Austin while affording filmmaking experience and employment to UT students and faculty. The Partnership, however, was separate from UT, and UT was not responsible for any of the debts or obligations of the Partnership, the general partner, Burnt Orange or the Foundation.
- Provided entity and tax advice to a state university system in a project through an affiliated limited liability company to develop a facility for producing vaccines for a major drug manufacturer and the U.S. government. The project is funded through a combination of a federal grant, equity capital and loans from a state technology fund, and an investment from a university support group. To provide additional experience and funding for the project, the affiliate is negotiating a joint venture with a multinational company.
- Represented The University of Texas in the negotiation of a long-term ground lease to a student housing developer for a high-rise multifamily project.
- Represented The University of Texas in the negotiation of a long-term ground lease to a commercial developer for a mixed-use project, planned to include retail and other commercial uses.