Ireland: The Projects And Construction Review, 4th Ed. - Ireland Chapter

I INTRODUCTION

Project finance is a well understood and widely used model for carrying out infrastructure projects in Ireland across all sectors including health, education, roads, rail, waste, water, IT and energy.

Public-private partnerships (PPPs) are the most widely used model of project finance in Ireland. The government set up the National Development Finance Agency (NDFA) in 2006 to procure all infrastructure projects with a capital value in excess of €30 million. The NDFA procures all PPP projects other than in the transport and water sectors.

Roads projects are carried out by the National Roads Authority (NRA) and rail projects are carried out by the Railway Procurement Agency or by Iarnród Éireann.

Project finance is also widely used in the energy sector, particularly on renewable energy projects such as wind farms. This is not the PPP model but is a very typical structure where finance is secured by way of a power purchase agreement.

II THE YEAR IN REVIEW

Ireland has gone through a deep recession in recent years and has correspondingly seen the number of construction and project transactions diminish. Banks are not lending and the government has cut back its capital spending as part of the austerity package agreed with the International Monetary Fund (IMF) and European Central Bank (ECB). Indeed, as part of the government's deficit reduction programme of the past four years, a number of PPPs were no longer affordable and were stopped: the government office 'decentralisation' programme; the major prison relocation and expansion project; the third level institutions PPP programme; and the Dublin Metro and Underground Rail Link, to name a few.

Residential construction has been the biggest area of decline. Large commercial projects and infrastructure projects are still being developed, but at a slower pace (N11 Roads Contract – financial close in April 2013).

Banks are still lending for 25-year periods in the more straightforward PPP projects such as schools projects (Schools Bundle 3, November 2012) and Justice projects (Courthouse developments and 3 Divisional Garda Head Quarters developments), but long-term finance is harder to secure for more risky projects. For example, a large number of roads PPP projects were carried out in the past decade on the basis of the user-pays PPP model, but banks will not now take a risk on traffic forecasts, and the NRA is currently developing PPP projects using the availability PPP model.

Notwithstanding the aforementioned, it is important to note that the government, in May 2014, announced its intention to proceed with a package of measures known as 'Construction 2020'. The central aim of the strategy is to triple housing output by 2020 and to create 60,000 jobs in the construction sector. The stimulus package is not solely aimed at housing but road projects as well. Of the proposed new building projects worth up to €200 million, €50 million is allocated to social housing provision with a further €50 million allocated to regional and local road projects.

III DOCUMENTS AND TRANSACTIONAL STRUCTURES

i Transactional structures

By far the predominant model for project finance in Ireland is the PPP model, whereby the private sector PPP company designs, builds, finances and operates or maintains the asset. In almost all cases of public infrastructure, however, the PPP company at no point owns the asset. It is usually granted a licence by the procuring entity to occupy and operate the land and asset for the length of the project finance deal – typically 25 years, or such time as is necessary to recoup the costs of construction, operation and financing, and to return a profit to the equity investors. At the end of this period the licence terminates at the same time as the project agreement, and the asset remains at all times in the ownership of the procuring public body.

The reason for the use of this model, rather than a build-operate-transfer (BOT) or build-operate-lease (BOL) model, is to avoid landlord and tenant law in Ireland, which provides that where a tenant has leased a property and conducted a business for more than five years, it may be entitled to a perpetual lease. Furthermore, projects carried out in Ireland have typically been in the education and transport sectors, where it is desirable that the asset remains in the ownership of the state or reverts to the state.

ii Documentation

A typical suite of documents in a PPP transaction in Ireland will include the following:

Project or concession agreement

The NDFA and NRA have carried out the majority of project finance deals in Ireland by way of PPP and both have template project agreements that have been used and banked successfully for several years. They are similar to the UK standard PFI and roads concession templates with a few important differences. This means that the key London and Spanish project finance banks such as Barclays and BBVA are very comfortable investing in Irish projects and have invested more heavily than the Irish banks.

Construction documents

The Irish government has a suite of construction documents that it uses for traditional construction and engineering projects, but these are not used for project finance deals as design and construction risks must be passed down fully from the PPP company to the design and construction company, almost always by way of a lump-sum fixedprice contract; therefore, a bespoke contract is used. Typically, this will include a design and construction contract between the PPP company and the design and construction company, and subcontracts between the design and construction company to the design team and construction contractors. The bank and public procuring body typically require collateral warranties from all design and construction team members.

Service provider agreement and O&M agreements

This is a bespoke contract that accepts all of the operating and maintenance risk from the project agreement.

Funding documents

This will be the typical suite of funding documents that would be expected in any project finance deal: facility agreement, syndication documents, account documents, hedging agreement and funder direct agreements.

Equity and shareholder documents

These will consist of a joint venture agreement between the investing consortium that will be replaced by a shareholder agreement governing ownership of shares in the PPP company SPV. Unlike in the United Kingdom, the Irish government does not take shareholdings in PPP companies and so this is simply a standard company established under Irish company law with articles and a memorandum of understanding.

Corporate documents

These relate to the establishment of the various companies involved in the transaction.

Property documents

These relate to the ownership of the land being developed.

iii Delivery methods and standard forms

A variety of standard contracts are used in Ireland for private sector construction including FIDIC, JCT, NEC, MF1 and IChemE. The Royal Institute of Architects of Ireland produces its own template documents, which are also used, but modified as necessary.

Public construction contracts are carried out using a suite of standard government design, construction and engineering contracts. These have been controversial since their introduction in 2007, as they transfer most of the cost and time overrun risk to the private sector, they are cumbersome to use, and no amendment of the contracts is permitted.

To read this Chapter in full, please click here.

Originally published by Law Business Research Ltd.

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