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Nossaman LLP

John P. Smolen

Partner

T 202.887.1466
F 202.466.3215
1666 K Street, NW, Suite 500
Washington, DC 20006

John Smolen uses his skills in project development, procurement, administration and finance to help clients advance many of the nation’s largest and most complex design-build and public-private partnership (P3) infrastructure projects.  Mr. Smolen’s experience includes having been among the core team of outside counsel for Maryland’s Purple Line light rail transit P3 project through its procurement, negotiation, closing and financing.  He continues as outside project administration counsel for the Purple Line.  Mr. Smolen also served similar roles for Indiana’s P3 transportation projects as well as significant supporting roles for public sector clients in Massachusetts, North Carolina, California and Texas. 

He also offers expertise in engineering, procurement and construction (EPC) project delivery strategies within the energy and emerging technology industries, leading Nossaman’s recent appointment as Special Energy Counsel to the State of Maryland.  Mr. Smolen has led project developments and served as counsel for wind, solar, geothermal and waste-to-energy projects.  Mr. Smolen has helped private clients commercialize energy-related technology, and he has played a major role in advising on Nossaman’s "coal synergy" projects in Virginia.  In those projects, heavy industry and mining companies use their equipment and skills to build roads as part of their mining operations.

Before becoming a lawyer, Mr. Smolen spent more than a decade as a U.S. Navy officer, serving as an aviator, flight instructor and Naval ROTC instructor at Virginia Tech.  

Representative Work

  • Virginia Department of Transportation – Coalfields Expressway.  Member of the legal team advising on a four-lane highway project that will stretch from Beckley, West Virginia to Pound, Virginia, connecting I-77/I-64 to U.S. Route 23.  To deliver the project, which sits in mountainous terrain with limited access, the transportation department is taking an innovative approach – utilizing coal mining operations and equipment to provide a rough-grade roadbed, resulting in a substantial reduction in anticipated costs compared with traditional methods.  After completion of the rough-grade roadbed, the road will be paved to complete the project.  Mr. Smolen’s role includes preparing the procurement documents and participating in contract negotiations with the project’s two concessionaires.  
  • Virginia Department of Transportation – U.S. 460 Corridor – Phase II.  Member of the legal team that advised on the Phase II development of a 6.2-mile rough-grade roadbed for the broader US 460 corridor project, also a coal synergy project and part of the Appalachian Development Highway System.  Mr. Smolen’s role included preparing the sole-source procurement documents and updating VDOT’s design-build contract templates.  In July 2013, the Department closed the contract to deliver the $108 million project, which is currently under construction.
  • Chesapeake Bay Bridge and Tunnel District – Parallel Thimble Shoal Tunnel.  Member of the legal team advising on a new $756 million tunnel beneath the Thimble Shoal Channel in Virginia’s lower Chesapeake Bay.  The second two-lane tunnel will expand capacity and improve safety for travelers utilizing the Chesapeake Bay Bridge-Tunnel, the sole connection between Delmarva Peninsula and the Hampton Roads area. The District awarded the design-build contract in August 2016 to a joint venture of Dragados USA, Inc. and Schiavone Construction Co. LLC.  Construction began in 2017 and is estimated to be completed in 2022.  Mr. Smolen prepared the first draft of this complex design-build agreement. 
  • Massachusetts Bay Transportation Authority – Green Line Extension Project.  Key member of the legal team advising on $2-3 billion 5-mile extensions of the Green Line light rail service from a relocated Lechmere Station in East Cambridge to Union Square in Somerville and College Avenue in Medford.  The transportation agency has retained the Firm to examine the deployed construction manager/general contractor (CM/GC) delivery method, consider alternatives and make recommendations on the optimal delivery method going forward.  The agency terminated several of its existing contracts in December 2015 and conducted a redefinition process of the project.  A procurement for a design-build contract for the completion of the project was conducted, on which Mr. Smolen led the review and coordination of the Technical Provisions with the design-build contract, as well as legal review of Alternative Technical Concepts.  The procurement included the use of an affordability limit, as well as the identification of six prioritized additive options for scope that could potentially be included back in the design-build scope.  In November 2017, the agency awarded a design-build contract to GLX Constructors that was approximately $237 million below the affordability limit, and included all six additive options in the design-build contract scope.
  • Nebraska Department of Transportation – Scribner-West Point Design-Build Project.  Member of the two-attorney team advising the State of Nebraska on its first design-build contract.  The project is Nebraska’s first foray into innovative project delivery.  The project involves new construction and rehabilitation of approximately 18.5 miles of Highway US-275 from a two-lane highway to a four-lane divided expressway in Cuming and Dodge Counties of Nebraska, and involves bypass design and construction as well as relocation of portions of a levee on the Elkhorn River.  The project has been planned for over 30 years, and Nebraska elected to implement new design-build enabling legislation through this project.  Mr. Smolen leads development of the procurement and technical provisions for the project.
  • Riverside County Transportation Authority I-15 “HOT” Lanes (October 2016 to January 2017).  Member of the legal team advising on development, procurement and financing of a project to add tolled express lanes along a portion of the heavily traveled I-15 in Riverside County, California.  The $425 million-$450 million upgrade will feature 15 miles of managed lanes in the median in each direction from Cajalco Road north to SR-60.  The project is undergoing separate procurements for a toll services provider, initiated in December 2015, and a design-build contractor, launched in January 2016.  Mr. Smolen’s role included review of the design-build contract and evaluation of shortlisted proposer bids, risk analysis, and advising on federal requirements.
  • Maryland Transit Administration and Maryland Department of Transportation – Purple Line Light Rail.  Key member of the primary legal team that advised on Maryland’s first transit P3 project – an approximately $2 billion (capital cost) light rail system that will significantly ease travel between the Maryland suburbs and Washington, D.C.  The Purple Line Light Rail system will run 16.2 miles between Bethesda and New Carrollton with 21 new stations along the route.  The project, Maryland’s largest P3 and, at financing, was the nation’s largest full DBFOM P3, will provide a direct link to the Metrorail Red, Green and Orange lines and connect to the MARC train, Amtrak and local bus services.  In July 2014, MTA issued the final RFP for an availability payment concession to shortlisted teams.  Proposals were received in late 2015 and, in March 2016, the agencies selected a consortium led by Fluor and Meridiam.  The project reached commercial close in April 2016 and financial close in June 2016.  Construction commenced in September 2017 and completion is expected in spring 2022.  The Purple Line’s financing plan includes an $874 million TIFIA loan, $313 million in PABs, $138 million in private equity and approximately $900 million in anticipated federal “New Starts” funding.  Maryland taxpayers will save more than $550 million over the 36-year contract term from the original bid amounts, due to rate and credit spread risk sharing under the P3 agreement.  The PABs utilized on the project were sold at the lowest interest rates ever achieved in the U.S. P3 market.  In 2016, the project earned a P3 Bulletin “Gold Award” for Best Transit and Aviation Project and IJGlobal named the project “North America Rail Deal of the Year.”  Mr. Smolen assisted with primary subject matter responsibility, helped to draft commercial and financial contract documents, assisted with project negotiations, facilitated the financing for MTA and is currently working with the Office of the Attorney General on various matters relating to project implementation and administration. 
  • Indiana Finance Authority – East End Crossing (Lewis and Clark Bridge).  Member of the legal team that advised on a precedent-setting P3 for the development of a $1.18 billion, six-lane toll bridge across the Ohio River which opened in December 2016. The 8.5-mile-long, 2,500-foot cable-stayed East End Crossing (now known as Lewis and Clark Bridge), is a key piece of the $2.3 billion Ohio River Bridges Project – two bridges designed to provide safer, more reliable travel between Louisville, Kentucky and southern Indiana.  East End was the first bridge procured via an availability payment P3 transaction in the United States.  Among other industry “firsts,” it included the first availability payment debt to receive a “flat” investment-grade rating by both Standard & Poor’s and Fitch, and at financial close was the first P3 transportation transaction to not use TIFIA funds in its capital structure.  Financing included $194.5 million in short-term bonds secured by milestone payments and $482 million in long-term bonds secured by availability payments.  Nossaman assisted the Authority in contracting with a joint venture of Walsh/VINCI/Bilfinger for the approximately 35-year DBFOM project, which achieved procurement in record time.  It won numerous industry honors.  Mr. Smolen’s role included assisting with drafting and finalizing the RFP documents, developing and implementing the evaluation process, and negotiating and closing the public-private agreement and financing.  He is also primary outside projects counsel, involved with ongoing project management, administration and implementation.  
  • Private Sector Heavy Industry Client – Coal Processing Facility.  Lead counsel to a private sector client in development of an EPC project to design and build a commercial scale coal processing facility.  Mr. Smolen’s role included preparing and negotiating the EPC contract, contract administration and dispute resolution assistance and follow-on development of other proprietary technology commercialization opportunities.
  • Private Sector Renewable Energy Project Developer – Renewable Energy Projects.  Counsel to an early-stage development client in renewable energy power producing facilities in the mountain states and Hawaii.  Mr. Smolen’s role included extensive corporate and finance representation, real property negotiations and drafting, extensive interface with local counsel regarding permitting and real property matters, mergers and acquisitions and other general counseling matters.
  • Private Sector Wind Energy Project Owner – Renewable Energy Projects.  Counsel on a portfolio of joint project development efforts for renewable energy projects throughout the Midwest, representing the owner in project development and construction matters.  Mr. Smolen’s role included developing, drafting and negotiating several EPC and other construction contracts, real property matters and preparations for portfolio capital markets financings.

Awards & Honors

Selected to the Rising Stars list for 2014-2017.

John P. Smolen
John P. Smolen

Practices

Education

J.D., University of Kansas School of Law, 2007

M.A., Virginia Polytechnic Institute and State University, 2004

B.S., United States Naval Academy, 1995, with merit

Admissions

District of Columbia

Kansas

Maryland

United States Supreme Court

Professional Affiliations

National Council for Public-Private Partnerships, Executive Committee, Vice President (Education)

Kansas Bar Association

Maryland State Bar Association

Young Professionals in Transportation – Baltimore

Awards & Honors

Selected to the Rising Stars list for 2014-2017.

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