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the evelwho to to slow o the proj"taxd to e the h the e ex- ssing n the omanamarand now " ConOsler, nity rted, will king need er to ; for used the cal ors. aces INFRASTRUCTURE PROJECTS |11 to fund part of the project, there are certain restrictions as to what you can do even to do a design/build project, so to jump from a design/build to a design/build/finance/maintenance model there are legislative hurdles in different states that impede the ability to implement a P3 model." Having said that, "there certainly have been P3 projects done in California, Florida and Texas, and now more recently in Colorado (delivery of transportation and transit projects using either a P3 or modified P3 model), so there are pockets of activity," he says. "But what's new for many Canadian development and construction companies is these projects will involve the investment of equity. For a lot of Canadian companies this will be a bit of a new play," says Sebastiano. "To put this into a global perspective, this type of investment isn't new to European players who are keen about this type of investment opportunity in addition to the construction side." MODEL EVOLVES Still, as the P3 model evolves, taking a broader view of what public-partnership means could translate into increased opportunities for Canadian companies, says Alain Massicotte, partner and head of the Montréal Infrastructure/P3 Group at Blake, Cassels & Graydon LLP. "WHILE A NUMBER OF US STATES ARE LOOKING AT EMBRACING THE P3 MODEL, MANY WOULD NEED TO IMPLEMENT LEGISLATIVE CHANGES IN ORDER TO PERMIT P3 MODELS TO BE ADOPTED." "With P3s, people see the building, the concrete, but to my way of thinking, this is not really the case; P3 is a service, [where] the private sector builds public works to deliver a service, and gets its return based on the performance of the infrastructure," he says. "One of the advantages of the P3 is it imposes discipline on the private sector, who receive payment only if the infrastructure is operational and meets the requirements and performance criteria that were designed by the public sector." So going one step further, he feels it's possible to see more performance-based contracts between the public and private sector. Take as example, he says, "a private company that retrofits an electrical facility, with part of the mandate being to lower consumption. The public sector says 'I want you to reduce the energy consumption by X amount, for which you'll be paid, and also a bonus if you are more efficient'." In this scenario, says Massicotte, "P3s may be defined in a different fashion. If you have a more restrictive definition of P3 it is design/ build/finance/operate. If you use a broader definition, you say it's any kind of contractual relationship between private and public sector where the private sector will render service and assume some risk." Bev Cline is a freelance business and legal-affairs writer and editor in Toronto. Lexpert®Ranked Lawyers Clark, Richard E. Clark, Ron W. Coburn, F. F. (Rick) Cornett, Lloyd F. Cusano, Luigi A. (Lou) Stikeman Elliott LLP (416) 869-5546 rclark@stikeman.com Aird & Berlis LLP (416) 865-7701 rclark@airdberlis.com Borden Ladner Gervais LLP (416) 367-6038 rcoburn@blg.com Aird & Berlis LLP (416) 865-7757 lcornett@airdberlis.com Torys LLP (403) 776-3797 lcusano@torys.com Mr. Clark's business law practice embraces PPPs, infrastructure, joint ventures and M&A. He has a broadly based clientele, representing virtually every industry sector with a large number of international clients. Mr. Clark advises stakeholders, retailers, distributors and generators on policy matters in national and international electricity markets. He works on power procurements, generation facilities developments and Ontario's clean energy supply RFPs. Mr. Cornett counsels investors, developers, lenders, brokers, owners and managers in various real estate matters. His work includes commercial leasing, acquisitions, developments, sales, joint ventures, construction contracts and project management. Mr. Cusano's practice focuses on administrative, regulatory and environmental law and commercial litigation in the energy sector, including regulatory work in the electricity and oil and gas sectors. ROB-Infrastructure.indd 11 Mr. Coburn's land use planning and environmental law practice emphasizes the environmental aspects of brownfields development, corporate acquisitions and financing. He also acts for clients on regulatory matters, including before the OMB and the ERT. Dagenais, Jean-François BCF LLP (514) 397-2645 jean-francois.dagenais@ bcf.ca Mr. Dagenais's practice engages PPPs in the health sector, construction, real estate development law and ADR. Working with major associations of contractors, he consults on amendments to the regulatory framework governing the construction industry. 13-08-06 9:57 AM

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