1. Concession Agreements: Critical Provisions That Require Higher Levels of Consideration
Presented to American College of Real Estate Lawyers
2015 Mid-Year Meeting
March 27, 2015
Greg Gilbert
Holland & Hart, LLP
9555 Hillwood Drive 2nd Floor
Las Vegas, Nevada 89134

2. You Are Here

3. P3 Puzzles What are the pieces? The Who Owner Concessionaire
Financing Consortium
Lenders and Investors
Contractors
Operators
Maintenance
Consultants
The End Users

4. P3 Puzzles – The What and Why
Expectations
Funding
Performance
Revenue
Risks
Policies
Obligations
Politics
The What and Why?

5. This Little Piggy Used Bricks
When is the foundation constructed and why it matters?
P3 Procurement
Examples of Procurement Models Around the Country
Solicited, Unsolicited and Hybrids
Legal framework (if any) will dictate how Concession Agreement are drafted

6. Is it Soup Yet? Commercial Close Financial Close When Can Funding Flow
Is Funding Secure Over Time?
Are There Off-Ramps That Could Undo the Deal?

7. With Great Risk Comes… Permits Site Control Legislation Risk
Political Approvals
Environmental Issues
What is “Shovel Ready?”

8. Do I Have to Give Back The Assets?
Useful Life
Condition Requirements
Normal Wear and Tear
Does the Asset Really Need to be Maintained to a Specified Standard?

9. The Dog Ate My Homework
When can the Concessionaire be excused from performing?

10. Pigs Get Fat and Hogs Get…
What freedom does the Concessionaire have to adjust financing over time, and who bears the downside risk and receives the upside benefits?

11. Excuse Me, Do We Know Each Other?
Changes in Law
Impacts of Change
Change Orders
Costs of the Work

12. This Should Only Hurt a Bit!
Insurance
Who does it cover?
What does it cover?
When does coverage apply?
Indemnification
The kitchen sink or something less?

13. It’s Not You, It’s Me… Wait It Is Actually You!!
Default
Cure
Termination
Cause and Convenience

14. If You Want Something Done, Then Do It Yourself!
Step-in-Rights
Who takes control when performance becomes a significant problem?
What are the risks?

15. It Is All About Control
Who has the keys to the kingdom, how many sets are there, and who gets to use them?

16. I Expected More From You
Long term relationships vs. short term relationships

17. Protect Your Property Is it worth protecting? Who owns what?
What can you do to protect it?

18. Excuse Me Sir, May I Have Another…?
Can you adjust for unanticipated changes that impact the financial model?
Is too much too much, or too little not enough?

19. I Thought You Were Dealing with the EPA
Delay
Force Majeure
Schedule Impacts
Claims
Compensation

20. We Will Gladly Pay You Tuesday
What is Appropriations Risk?
Owner’s obligations and what happens if there is a shortfall?
What can the Concessionaire do if the money runs out?

21. Tap In – Tap Out Who is your partner? When can your partner change?
What rules apply?

22. The Project Is In Mint Condition
Who restores the asset after damage or destruction?
What rules apply?

23. You Complete Me! Can you expect exclusivity?
Preventing competition that could impact performance.