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Session Description
Debtor estates and other distressed stakeholders can monetize formerly contaminated parcels which have no higher or better use than solar by leasing or selling those assets to specialized brownfields-to-solar developers. These niche developers can buy suitable parcels outright or offer twenty-year leases which can be transferred with the property. The Inflation Reduction Act and renewable energy-friendly states provide significant financial incentives which allow for generous lease rates. Bankruptcy trustees, debtor estates, creditors and other stakeholders have begun exploring this monetization strategy, which can be accomplished out of court, as long as the assets are at least partially remediated.
Learning Outcomes
What is the brownfields solar financial model, whether through lease or acquisition, and how much revenue would it generate in a sample project?
What types of real estate assets are suitable for solar siting (and no other, higher/better uses)?
What geographical locations/states provide the best financial incentives (tax incentives, rec programs, high power rates) to generate the highest lease rate or purchase price for a trustee, debtor estate or other stakeholder?
What are the relevant provisions of the Inflation Reduction Act?
What are some of the relevant provisions in states with favorable policies?
How can a trustee, debtor estate or other stakeholder mitigate the environmental risk associated with brownfields solar projects?
How can public sector creditors properly dispose of or monetize through lease brownfield properties where the property owner is missing or refuses to appear in court proceedings?
Can environmental liabilities be discharged under section 363 of the Bankruptcy Code? Is that necessary in the context of developing solar on brownfields?
Target Audience
Debtor
Suggested Speakers
Christy
Searl
christy@acpowerllc.com
First Name
Christy
Last Name
Searl
Email
christy@acpowerllc.com
Firm
AC Power LLC

The Architect of Detroit’s Bankruptcy Filing 10 Years Ago Says It Was the Best Fix for a Broken City

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Detroit’s newly hired emergency manager, Kevyn Orr, stood before reporters in March 2013 and issued a warning to city creditors, unions, vendors and others: “Don’t make me go to bankruptcy court. You won’t enjoy it,” the Associated Press reported. On July 18, 2013, the restructuring expert did just that, making Detroit the largest city in the U.S. to file for bankruptcy. What followed was months of negotiations, federal court hearings and an unlikely coming together of foundations to keep city-owned artwork from being sold to help pay off the debt. “Bankruptcy is a miserable process,” Orr said ahead of the 10th anniversary of the filing. “It puts everybody outside of their ordinary course, their common spaces.” Detroit was determined by a state-appointed review team to be in severe financial distress in 2012. Soon after, then-Michigan Gov. Rick Snyder hired Orr — an attorney with  Jones Day — to take on the heavy lift of fixing a broken city. Massive population loss that began in the 1950s and a decadeslong downturn in the auto industry and other manufacturers had severely slashed Detroit’s tax base. Many neighborhoods were rife with vacant and burned out houses. Empty lots became dumping grounds for trash, used tires and even boats. Poverty, unemployment and crime rates were among the highest in the nation. The city’s budget deficit was north of $300 million. In the months before the bankruptcy, state-backed bond money helped the city meet payroll for its 10,000 employees. In the bankruptcy filing, Orr cited debt of $18 billion or more. The city now boasts balanced budgets, improved services and a blight reduction effort that has led to the demolition of more than 24,000 vacant houses. Orr considers his experience in Detroit as among his top accomplishments.
 
In related news, in the aftermath of Detroit's 2013-14 bankruptcy, two bond insurance companies became owners for a time of some high-profile real estate, including the old Joe Louis Arena site and a lease to half of the car tunnel to Canada, the Detroit Free Press reported. The insurers were major creditors in the bankruptcy, having insured a $1.4 billion debt deal nearly a decade earlier that was supposed to shore up the city's underfunded pension systems. (Spoiler: It didn't work as planned.) Those bond insurers' guarantees allowed Detroit to sell the debt with stellar AAA credit ratings, despite the city's shaky financial situation. The overall pension deal, which involved complex interest rate swaps contracts, ultimately helped to push Detroit into insolvency. One of the insurers, Financial Guaranty Insurance Co., insured more than $1 billion of the debt in the deal. The other, Syncora Guarantee, insured the remaining approximately $400 million. For the insurers, the bankruptcy had the potential to be devastating. There wasn't enough money left in Detroit to make them even close to whole. The two insurers were among the last holdout creditors, eventually settling in September and October 2014 by accepting various city-owned real estate and leases on city assets, along with cash from future city bonds sales. The article details what was in the settlement deals with the two insurers as well as the current status of the real estate assets that were involved. Read more.

A Decade After Detroit’s Bankruptcy, City Employees Grapple with Retirement Insecurity and Health Care Concerns

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Thousands of city employees and retirees lost big on July 18, 2013, when a state-appointed manager made Detroit the largest U.S. city to file for bankruptcy, Fortune reported. A decade later, the Motor City has risen from the ashes of insolvency, with balanced budgets, revenue increases and millions of dollars socked away. Many who spent years on Detroit’s payroll say they can’t help but feel left behind. The city-funded health care also ends with retirement. The architect of the bankruptcy filing was Kevyn Orr, a lawyer hired by then-Gov. Rick Snyder in 2013 to fix Detroit’s budget deficit and its underfunded pensions, health care costs and bond payments. Detroit exited bankruptcy in December 2014 with about $7 billion in debt restructured or wiped out and $1.7 billion set aside to improve city services. Businesses, foundations and the state donated more than $800 million to soften the pension cuts and preclude the sale of city-owned art. The pension cuts were necessary, Orr insisted. In 2013, Detroit had some 21,000 retired workers who were owed benefits, with underfunded obligations of about $3.5 billion for pensions and $5.7 billion for retiree health coverage. In the months before the bankruptcy, state-backed bond money helped the city meet payroll for its 10,000 employees. The city has reported nine consecutive years of balanced budgets and strong cash surpluses.

Detroit Enclave Built on Auto Industry Struggles Under $20M Water Debt

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Highland Park, the community nearly surrounded by Detroit, is teetering on the edge of bankruptcy because it cannot pay its bills to the utility providing drinking water and sewage services to a city that was once a thriving auto manufacturing town, the Associated Press reported. It serves as an example of blue collar cities that lost their way amid changes to manufacturing and are now shells of their past, plagued by neighborhood malaise, neglect and deep poverty. More than 50,000 people lived there in 1930. Homes rivaled some of those built in Detroit. The city is just under 3 square miles and is a shell of its auto baron past, when manufacturing boomed and money flowed. Fewer than 9,000 now call it home. The auto companies are long gone, leaving strip malls and retail shops to bolster the city’s dwindling business tax base. Owing about $20 million to a regional water service, Highland Park is considering municipal bankruptcy to keep its financial future afloat. Highland Park and communities like it have been fading as jobs dry up and families move away, but before the decline began, the auto and manufacturing industries helped build up some of these inner ring suburbs. In 1907, Henry Ford bought 160 acres of land for what would be his Highland Park Ford Plant. The first moving assembly line started a few years later at the plant. Immigrants and other workers eager to earn $5 per day flocked to the area. A building boom followed that included thousands of homes along tree-canopied streets. The automaker would keep a tractor plant in Highland Park and Chrysler, now Stellantis, had its headquarters in the city. But both moved away in the 1990s. Like Detroit and other large urban cities, white residents began fleeing Highland Park in the 1950s for the suburbs. Jobs followed.

Bills in Michigan's Legislature Call for Ending State’s Nearly Decade-Long Oversight of Detroit

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State Sen. Sylvia Santana (D-Detroit) introduced legislation last week that would end nearly a decade of state oversight of Detroit, MichiganAdavance.com reported. The bills introduced on May 17 call for repealing conditions of the “Grand Bargain,” a controversial plan that used funds from foundations, corporations, unions and the state to protect the Detroit Institute of Arts and help the city dig out of bankruptcy. In exchange, the city placed restrictions on the city and created a nine-member commission of mostly unelected gubernatorial appointees to provide oversight of the city. “At the time, Detroit’s ‘Grand Bargain’ kept the city’s lights on and kept people safe during times of tragic upheaval in one of America’s great cities — but that time is over, and the state must cede control back to local elected officials,” Santana said in a statement. It’s not yet clear how much support the bills have in the GOP-controlled Legislature.

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Detroit a Notch Closer to Investment Grade as Moody’s Boosts Debt Rating

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Moody’s Investors Service raised its rating for Detroit’s debt, moving the city one step closer to investment grade in its latest stride since filing for bankruptcy in 2013, Bloomberg News reported. The credit rating company upgraded Detroit’s general obligation debt, which is backed by the city’s full faith and credit, one notch from Ba3 to Ba2 on Wednesday. Detroit has roughly $2 billion in debt outstanding, but its financial outlook remains positive given how the city has managed through challenges after emerging from court protection in 2014, Moody’s said. “The upgrade to Ba2 reflects the city’s healthy financial position supported by strong management that has successfully navigated challenges, such as weak property tax wealth, volatile revenue structure and limited revenue raising flexibility,” the Moody’s report said. Last year the city sold $175 million of bonds to finance a blight removal plan that began in the immediate aftermath of its emergence from court protection. That deal was just the third backed by the city’s creditworthiness since its bankruptcy and its first social bond offering.

Seven Years After Bankruptcy, Detroit Faces a New Crisis

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The late Coleman Young, who was Detroit mayor from 1974 to 1994, said that when the nation gets a cold, Detroit gets pneumonia. That’s sadly held true during the coronavirus pandemic: The city had recorded 7,904 cases of COVID-19 and 716 deaths from the disease as of April 21, making it a national hot spot and putting Wayne County, Mich., among the U.S. counties with the most deaths from the virus so far, Bloomberg Businessweek reported. The city of 670,000, Detroit is bracing for a recession as stay-at-home orders decimate businesses and the virus overwhelms medical and social resources. Casinos, which generate 17 percent of municipal revenue, are shuttered indefinitely. A quarter of all Michigan residents are already out of work. “While we have a health crisis, we have the biggest budget crisis this city has seen in seven years, and we have to solve it at the same time,” Mayor Mike Duggan said at an April 14 briefing. The pandemic is a major financial test for cities across America. In a recent survey conducted by the National League of Cities, more than 2,100 municipalities of all sizes said that they were expecting budget shortfalls. But Detroit is in an unusually precarious position. The crisis has hit five years after the city emerged from the largest-ever municipal bankruptcy and two years after it shed state financial oversight.

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