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PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships Practical Instruments for Regional Development Riga 21 September 2007
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Page 1: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

PPP projects in water management: Risks and solutions in the Eastern European context

Roderick MackenzieSolicitorPinsent Masons

Public Private PartnershipsPractical Instruments for Regional Development

Riga21 September 2007

Page 2: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Quotes and Definitions

Page 3: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Quotes and Definitions“A concession contract is never accepted it is tolerated”

Page 4: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Quotes and Definitions“A concession contract is never accepted it is tolerated”Market Profile on Legal ServicesGlobal Water Intelligence – February 2005 (Page 19)

Page 5: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Quotes and Definitions“A concession contract is never accepted it is tolerated”Market Profile on Legal ServicesGlobal Water Intelligence – February 2005 (Page 19)

“There is an ongoing need for legal representation in the perpetualstruggle with politicians who want to be seen to gain ground against concession operators rather than complying with theoriginal contract conditions….

Page 6: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Quotes and Definitions“A concession contract is never accepted it is tolerated”Market Profile on Legal ServicesGlobal Water Intelligence – February 2005 (Page 19)

“There is an ongoing need for legal representation in the perpetualstruggle with politicians who want to be seen to gain ground against concession operators rather than complying with theoriginal contract conditions….

Indeed, given the need to build up a defence against this attitude,legal representatives are increasingly considered a “part of theteam” on concessions, where previously they had been moredistinct”

Page 7: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Quotes and Definitions“A concession contract is never accepted it is tolerated”Market Profile on Legal ServicesGlobal Water Intelligence – February 2005 (Page 19)

“There is an ongoing need for legal representation in the perpetualstruggle with politicians who want to be seen to gain ground against concession operators rather than complying with theoriginal contract conditions….

Indeed, given the need to build up a defence against this attitude,legal representatives are increasingly considered a “part of theteam” on concessions, where previously they had been moredistinct”

PPP is the art of allocating risk for any given service provision to theparty within a project team most suitably qualified to manage that risk

Page 8: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.
Page 9: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Public

Page 10: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Public

Page 11: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Public

Page 12: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

PublicPrivate

Page 13: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Municipal OwnedWater Company

PublicPrivate

Page 14: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Municipal OwnedWater Company

PublicPrivate

Page 15: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Municipal OwnedWater Company

PublicPrivate

100% share holder

Page 16: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Municipal OwnedWater Company

PublicPrivate

100% share holder

Page 17: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Municipal OwnedWater Company

PublicPrivate

100% share holder

Page 18: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Municipal OwnedWater Company

PublicPrivate

100% share holder

The Consumer

Page 19: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Municipal OwnedWater Company

PublicPrivate

100% share holder

The Consumer(The man who votes for the mayor)

Page 20: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Municipal OwnedWater Company

PublicPrivate

100% share holder

The Consumer

Bills

Pays

The Consumer(The man who votes for the mayor)

Page 21: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Municipal OwnedWater Company

PublicPrivate

100% share holderTariff Control

The Consumer

Bills

Pays

The Consumer(The man who votes for the mayor)

Page 22: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Municipal OwnedWater Company

PublicPrivate

100% share holderTariff Control

The Consumer

Bills

Pays

Bidder

Page 23: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Municipal OwnedWater Company

PublicPrivate

100% share holderTariff Control

The Consumer

Bills

Pays

Bidder

Bidder

Page 24: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Municipal OwnedWater Company

The Successful Bidder

PublicPrivate

100% share holderTariff Control

The Consumer

Bills

Pays

Bidder

Bidder

Page 25: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Municipal OwnedWater Company

The Successful Bidder

PublicPrivate

100% share holderTariff Control

The Consumer

Bills

Pays

Page 26: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Municipal OwnedWater Company

The Project Co(SPV)

PublicPrivate

100% share holderTariff Control

The Consumer

Bills

Pays

Page 27: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Municipal OwnedWater Company

The Project Co(SPV)

PublicPrivate

100% share holderTariff Control

The Consumer

Bills

Pays

Page 28: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Municipal OwnedWater Company

The Project Co(SPV)

PublicPrivate

The ProjectAgreement

100% share holderTariff Control

The Consumer

Bills

Pays

Page 29: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Municipal OwnedWater Company

The Project Co(SPV)

Sponsors

PublicPrivate

The ProjectAgreement

100% share holderTariff Control

The Consumer

Bills

Pays

Page 30: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Municipal OwnedWater Company

The Project Co(SPV)

Sponsors

PublicPrivate

The ProjectAgreement

100% share holderTariff Control

The Consumer

Bills

Pays

Page 31: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Municipal OwnedWater Company

The Project Co(SPV)

Sponsors

PublicPrivate

The ProjectAgreement

Equity

100% share holderTariff Control

The Consumer

Bills

Pays

Page 32: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Municipal OwnedWater Company

The Project Co(SPV)

BanksSponsors

PublicPrivate

The ProjectAgreement

Equity

100% share holderTariff Control

The Consumer

Bills

Pays

Page 33: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Municipal OwnedWater Company

The Project Co(SPV)

BanksSponsors

PublicPrivate

The ProjectAgreement

Equity

100% share holderTariff Control

The Consumer

Bills

Pays

Page 34: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Municipal OwnedWater Company

The Project Co(SPV)

BanksSponsors

PublicPrivate

The ProjectAgreement

DebtEquity

100% share holderTariff Control

The Consumer

Bills

Pays

Page 35: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Municipal OwnedWater Company

The Project Co(SPV)

BanksSponsors

PublicPrivate

The ProjectAgreement

DebtEquity

100% share holderTariff Control

The Consumer

Bills

Pays

Page 36: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Municipal OwnedWater Company

The Project Co(SPV)

BanksSponsors

PublicPrivate

The ProjectAgreement

Direct Agreement

DebtEquity

100% share holderTariff Control

The Consumer

Bills

Pays

Page 37: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Municipal OwnedWater Company

The Project Co(SPV)

BanksSponsors

PublicPrivate

The ProjectAgreement

Direct Agreement

DebtEquity

Builder

100% share holderTariff Control

The Consumer

Bills

Pays

Page 38: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Municipal OwnedWater Company

The Project Co(SPV)

BanksSponsors

PublicPrivate

The ProjectAgreement

Direct Agreement

DebtEquity

Builder Operator

100% share holderTariff Control

The Consumer

Bills

Pays

Page 39: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Municipal OwnedWater Company

The Project Co(SPV)

BanksSponsors

PublicPrivate

The ProjectAgreement

Direct Agreement

DebtEquity

Builder Operator

100% share holderTariff Control

The Consumer

Bills

Pays

Page 40: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Municipal OwnedWater Company

The Project Co(SPV)

BanksSponsors

PublicPrivate

The ProjectAgreement

Direct Agreement

DebtEquity

Builder Operator

100% share holderTariff Control

The Consumer

Bills

Pays

EPC Contract

Page 41: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Municipal OwnedWater Company

The Project Co(SPV)

BanksSponsors

PublicPrivate

The ProjectAgreement

Direct Agreement

DebtEquity

Builder Operator

100% share holderTariff Control

The Consumer

Bills

Pays

EPC Contract O&M Contract

Page 42: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Municipal OwnedWater Company

The Project Co(SPV)

BanksSponsors

PublicPrivate

The ProjectAgreement

Direct Agreement

DebtEquity

Builder Operator

100% share holderTariff Control

The Consumer

Bills

Pays

EPC Contract O&M Contract

Page 43: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Municipal OwnedWater Company

The Project Co(SPV)

BanksSponsors

PublicPrivate

The ProjectAgreement

Direct Agreement

DebtEquity

Builder Operator

100% share holderTariff Control

The Consumer

Bills

Pays

EPC Contract O&M ContractInterfaceAgreement

Page 44: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Municipal OwnedWater Company

The Project Co(SPV)

BanksSponsors

PublicPrivate

The ProjectAgreement

Direct Agreement

DebtEquity

Builder Operator

100% share holderTariff Control

The Consumer

Bills

Pays

EPC Contract O&M ContractInterfaceAgreement

Page 45: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Municipal OwnedWater Company

The Project Co(SPV)

BanksSponsors

PublicPrivate

The ProjectAgreement

Direct Agreement

DebtEquity

Builder Operator

100% share holderTariff Control

The Consumer

Bills

Pays

EPC Contract O&M Contract

Term – 25 years (for example)

InterfaceAgreement

Page 46: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Municipal OwnedWater Company

The Project Co(SPV)

BanksSponsors

PublicPrivate

The ProjectAgreement

Direct Agreement

DebtEquity

Builder Operator

100% share holderTariff Control

The Consumer

Bills

Pays

EPC Contract O&M Contract

Term – 25 years (for example)

InterfaceAgreement

2-3 yr build

Page 47: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Municipal OwnedWater Company

The Project Co(SPV)

BanksSponsors

PublicPrivate

The ProjectAgreement

Direct Agreement

DebtEquity

Builder Operator

100% share holderTariff Control

The Consumer

Bills

Pays

EPC Contract O&M Contract

Term – 25 years (for example)

InterfaceAgreement

2-3 yr build 22-23 yr operation

Page 48: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Municipal OwnedWater Company

The Project Co(SPV)

BanksSponsors

PublicPrivate

The ProjectAgreement

Direct Agreement

DebtEquity

Builder Operator

100% share holderTariff Control

The Consumer

Bills

Pays

EPC Contract O&M Contract

Term – 25 years (for example)

InterfaceAgreement

2-3 yr build 22-23 yr operation

Shareholders’Agreement

Page 49: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Municipal OwnedWater Company

The Project Co(SPV)

BanksSponsors

PublicPrivate

The ProjectAgreement

Direct Agreement

DebtEquity

Builder Operator

100% share holderTariff Control

The Consumer

Bills

Pays

EPC Contract O&M Contract

Term – 25 years (for example)

InterfaceAgreement

2-3 yr build 22-23 yr operation

Shareholders’Agreement

Page 50: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Municipal OwnedWater Company

The Project Co(SPV)

BanksSponsors

PublicPrivate

The ProjectAgreement

Direct Agreement

DebtEquity

Builder Operator

100% share holderTariff Control

The Consumer

Bills

Pays

EPC Contract O&M Contract

Term – 25 years (for example)

InterfaceAgreement

2-3 yr build 22-23 yr operation

Shareholders’Agreement

Insurance

Page 51: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Municipal OwnedWater Company

The Project Co(SPV)

BanksSponsors

PublicPrivate

The ProjectAgreement

Direct Agreement

DebtEquity

Builder Operator

100% share holderTariff Control

The Consumer

Bills

Pays

EPC Contract O&M Contract

Term – 25 years (for example)

InterfaceAgreement

2-3 yr build 22-23 yr operation

Shareholders’Agreement

Insurance

Page 52: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Municipal OwnedWater Company

The Project Co(SPV)

BanksSponsors

PublicPrivate

The ProjectAgreement

Direct Agreement

DebtEquity

Builder Operator

100% share holderTariff Control

The Consumer

Bills

Pays

EPC Contract O&M Contract

Term – 25 years (for example)

InterfaceAgreement

2-3 yr build 22-23 yr operation

Shareholders’Agreement

InsuranceSecurityBlanket

Page 53: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Municipal OwnedWater Company

The Project Co(SPV)

BanksSponsors

PublicPrivate

The ProjectAgreement

Direct Agreement

DebtEquity

Builder Operator

100% share holderTariff Control

The Consumer

Bills

Pays

EPC Contract O&M Contract

Term – 25 years (for example)

InterfaceAgreement

2-3 yr build 22-23 yr operation

Shareholders’Agreement

InsuranceSecurityBlanket

Page 54: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Any problems?

• The position of the Sponsors in the water sector has already been presented in the quotations at the start of this presentation.

• The Bank is getting anxious about the consumer, his relationship with the Mayor, the tariff negotiation mechanism and the impact on the availability payment.

• But what about the Mayor?

Page 55: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Any problems?

• The position of the Sponsors in the water sector has already been presented in the quotations at the start of this presentation.

• The Bank is getting anxious about the consumer, his relationship with the Mayor, the tariff negotiation mechanism and the impact on the availability payment.

• But what about the Mayor?PPP is the art of allocating risk for any given service provision to theparty within a project team most suitably qualified to manage that risk

Page 56: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

The Mayor

• Not looking forward to ongoing negotiation on tariff to support the availability payment

• Constraints on public spending prevent direct contracting of capital works projects

• EU Accession requirements necessitate the proposed expenditure in order to comply with environmental directives

• Typically, any Mayor faces the need to authorise capital works on water and wastewater infrastructure of, potentially €50m to $150m

• Privatisation is a dirty word

Page 57: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

The nature of municipal services

• Water is intensely political as a municipal service, not least owing to essential nature of water to life itself

• However, it is not unique as municipal solid waste faces similar challenges (public health, unwillingness of consumer to pay)

• District heating also faces challenges and levels of operational complexity comparable to water and solid waste

• Do nothing is not an option, as the State will be fined by the European Commission at the end of any derogations periods

• Can we find an alternative solution?

Page 58: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

The Hybrid Lease

• Hybrid – a cross between two species• Concession form (as previously detailed)• Lease – Common Law real property concept

– Lord Templeman in Street v Mountford [1985] AC 809 at p816

• Exclusive possession (for free use and enjoyment)• for a term (defined period of time)• at a rent

• A similar concept is available in Civil Law• The French water industry is based on lease

mechanisms through the affermage contract

Page 59: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.
Page 60: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Municipal OwnedWater Company

PublicPrivate

100% share holder

Page 61: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Municipal OwnedWater Company

PublicPrivate

100% share holder

Infrastructure Assets

Page 62: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Municipal OwnedWater Company

PublicPrivate

100% share holder

Infrastructure AssetsPeople

Page 63: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Municipal OwnedWater Company

PublicPrivate

100% share holder

Infrastructure AssetsPeople

Page 64: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Municipal OwnedWater Company

PublicPrivate

100% share holder

Infrastructure AssetsPeople

Bills

Pays

Page 65: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Municipal OwnedWater Company

PublicPrivate

100% share holder

Infrastructure AssetsPeopleRevenue stream

Bills

Pays

Page 66: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Municipal OwnedWater Company

PublicPrivate

100% share holder

Infrastructure AssetsPeopleRevenue stream

Massive capex demand

Bills

Pays

Page 67: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Municipal OwnedWater Company

PublicPrivate

Infrastructure AssetsPeopleRevenue stream

Massive capex demandImpaired creditworthiness

Bills

Pays

100% share holder

Page 68: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Municipal OwnedWater Company

PublicPrivate

Infrastructure AssetsPeopleRevenue stream

Massive capex demandImpaired creditworthiness

Bills

Pays

100% share holderTariff Control

Page 69: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Municipal OwnedWater Company

PublicPrivate

Infrastructure AssetsPeopleRevenue stream

Massive capex demandImpaired creditworthiness

Bills

Pays

100% share holderTariff Control

Page 70: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Municipal OwnedWater Company

PublicPrivate

Infrastructure AssetsPeopleRevenue stream

Massive capex demandImpaired creditworthiness

Bills

Pays

100% share holderTariff Control

Landlord

Page 71: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Municipal OwnedWater Company

PublicPrivate

Infrastructure AssetsPeopleRevenue stream

Massive capex demandImpaired creditworthiness

Bills

Pays

100% share holderTariff Control

Landlord Tenant

Page 72: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Municipal OwnedWater Company

PublicPrivate

Infrastructure AssetsPeopleRevenue stream

Massive capex demandImpaired creditworthiness

Bills

Pays

100% share holderTariff Control

Landlord Tenant

Page 73: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Municipal OwnedWater Company

PublicPrivate

Bills

Pays

100% share holder

Landlord Tenant

Private Operator

Page 74: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Municipal OwnedWater Company

PublicPrivate

Bills

Pays

100% share holderPrivate Operator

Page 75: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Municipal OwnedWater Company

PublicPrivate

Bills

Pays

100% share holderPrivate Operator

Page 76: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Municipal OwnedWater Company

PublicPrivate

Bills

Pays

100% share holderPrivate Operator

Page 77: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Municipal OwnedWater Company

PublicPrivate

Bills

Pays

100% share holderPrivate Operator

Contract?

Page 78: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Municipal OwnedWater Company

PublicPrivate

Bills

Pays

100% share holderPrivate Operator

Contract?

Management ContractsUseful first step

Page 79: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Municipal OwnedWater Company

PublicPrivate

Bills

Pays

100% share holderPrivate Operator

Contract?

Management ContractsUseful first step

Operation and Maintenance ContractsLimited transfer of risk to the private sector

Page 80: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Municipal OwnedWater Company

PublicPrivate

Bills

Pays

100% share holderPrivate Operator

Contract?

Management ContractsUseful first step

Operation and Maintenance ContractsLimited transfer of risk to the private sector

Page 81: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Municipal OwnedWater Company

PublicPrivate

Bills

Pays

100% share holderPrivate Operator

Page 82: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Municipal OwnedWater Company

PublicPrivate

Bills

Pays

100% share holderPrivate OperatorDivestiture?

Page 83: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Municipal OwnedWater Company

PublicPrivate

Bills

Pays

100% share holderPrivate OperatorDivestiture?

Privatisation is a dirty word

Page 84: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Municipal OwnedWater Company

PublicPrivate

Bills

Pays

100% share holderPrivate OperatorDivestiture?

Privatisation is a dirty word

Page 85: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Municipal OwnedWater Company

PublicPrivate

Bills

Pays

100% share holderPrivate Operator

Lease?

Page 86: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Municipal OwnedWater Company

PublicPrivate

Bills

Pays

100% share holderPrivate Operator

Lease?

No divestitureShares remain in public ownershipMunicipality has privatised nothing

Page 87: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Municipal OwnedWater Company

PublicPrivate

Bills

Pays

100% share holderPrivate Operator

Lease?

No divestitureShares remain in public ownershipMunicipality has privatised nothing

A recipe for a happy Mayor!

Page 88: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Municipal OwnedWater Company

PublicPrivate

Bills

Pays

100% share holderPrivate Operator

Lease

Page 89: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Municipal OwnedWater Company

PublicPrivate

Bills

Pays

100% share holderPrivate Operator

Lease

How?

Page 90: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Municipal OwnedWater Company

PublicPrivate

Bills

Pays

100% share holderPrivate Operator

Lease

How?

Assignment of certain rights over shares fora fixed term

Page 91: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Municipal OwnedWater Company

PublicPrivate

Bills

Pays

100% share holderPrivate Operator

Lease

How?

Assignment of certain rights over shares fora fixed term

• Dividend• Right to appoint directors• Right to contract• Right to enter loan agreements

Page 92: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Municipal OwnedWater Company

PublicPrivate

Bills

Pays

100% share holderPrivate Operator

Lease

How?

Assignment of certain rights (possession) over shares for a fixed term

• Dividend• Right to appoint directors• Right to contract• Right to enter loan agreements

Page 93: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Municipal OwnedWater Company

PublicPrivate

Bills

Pays

100% share holderPrivate Operator

Lease

The Lease

Can contain covenants in relation to:

• Creditworthiness• Improvements including capital works

Page 94: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Municipal OwnedWater Company

PublicPrivate

Bills

Pays

100% share holderPrivate Operator

Lease

Assignment of certain rights (possession)Covenants for improvement

Page 95: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Municipal OwnedWater Company

PublicPrivate

Bills

Pays

100% share holderPrivate Operator

Lease

Assignment of certain rights (possession)Covenants for improvement

Term – 10 to 15 years

Page 96: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Municipal OwnedWater Company

PublicPrivate

Bills

Pays

100% share holderPrivate Operator

Lease

Assignment of certain rights (possession)Covenants for improvement

Term – 15 years

Year 0-3:Creditworthiness

Page 97: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Municipal OwnedWater Company

PublicPrivate

Bills

Pays

100% share holderPrivate Operator

Lease

Assignment of certain rights (possession)Covenants for improvement

Term – 15 years

Year 0-3:Creditworthiness

The Cash Injection

Bank

Page 98: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Municipal OwnedWater Company

PublicPrivate

Bills

Pays

100% share holderPrivate Operator

Lease

Assignment of certain rights (possession)Covenants for improvement

Term – 15 years

Year 0-3:Creditworthiness

The Cash Injection

Bank

Vanilla Loan Agreement

Page 99: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Municipal OwnedWater Company

PublicPrivate

Bills

Pays

100% share holderPrivate Operator

Lease

Assignment of certain rights (possession)Covenants for improvement

Term – 15 years

Year 0-3:Creditworthiness

The Cash Injection

Bank

Vanilla Loan Agreement

Page 100: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Municipal OwnedWater Company

PublicPrivate

Bills

Pays

100% share holderPrivate Operator

Lease

Assignment of certain rights (possession)Covenants for improvement

Term – 15 years

Year 0-3:Creditworthiness

The Cash Injection

Bank

Vanilla Loan Agreement

Loan repayment15 years

Page 101: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Municipal OwnedWater Company

PublicPrivate

Bills

Pays

100% share holderPrivate Operator

Lease

Assignment of certain rights (possession)Covenants for improvement

Term – 15 years

Year 0-3:Creditworthiness

Builder

Bank

Vanilla Loan Agreement

Page 102: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Municipal OwnedWater Company

PublicPrivate

Bills

Pays

100% share holderPrivate Operator

Lease

Assignment of certain rights (possession)Covenants for improvement

Term – 15 years

Year 3-5Build Period

Builder

Bank

Vanilla Loan Agreement

Page 103: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Municipal OwnedWater Company

PublicPrivate

Bills

Pays

100% share holderPrivate Operator

Lease

Assignment of certain rights (possession)Covenants for improvement

Term – 15 years

Year 3-5Build Period

Builder

Bank

Vanilla Loan Agreement

Loan repayment15 years

Page 104: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Municipal OwnedWater Company

PublicPrivate

Bills

Pays

100% share holderPrivate Operator

Lease

Assignment of certain rights (possession)Covenants for improvement

Term – 15 years

Year 3-5Build Period

Builder

Bank

Loan repayment15 years

Page 105: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Municipal OwnedWater Company

PublicPrivate

Bills

Pays

100% share holderPrivate Operator

Lease

Term – 15 years

Year 3-5Build Period

Builder

Bank

Loan repayment15 years

Question:What happens now?

Page 106: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Municipal OwnedWater Company

PublicPrivate

Bills

Pays

100% share holderPrivate Operator

Lease

Term – 15 years

Year 3-5Build Period

Builder

Bank

Loan repayment15 years

Answer:Depends on the deal struck betweenthe Mayor and the Bank

Page 107: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

PublicPrivate

Bank

Page 108: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

PublicPrivate

Bank

Direct Agreement

Page 109: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

PublicPrivate

Bank

Direct Agreement

Sets out the conditions for Re-Leasingthe property (Company) at the end ofthe term of the first lease on similar termsand to a suitably qualified and competent operator

Page 110: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

PublicPrivate

Bank

Direct Agreement

Sets out the conditions for Re-Leasingthe property (Company) at the end ofthe term of the first lease on similar termsand to a suitably qualified and competent operatorOR repay all outstanding sums.

Page 111: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Municipal OwnedWater Company

PublicPrivate

Bills

Pays

100% share holderPrivate Operator

Lease

Term – 15 years

Year 3-5Build Period

Builder

Bank

Loan repayment15 years

Page 112: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Municipal OwnedWater Company

PublicPrivate

Bills

Pays

100% share holderPrivate Operator

Lease

Term – 15 years

Year 3-5Build Period

Builder

Bank

Loan repayment15 years

Competition time!(In line with European ProcurementDirectives)

Page 113: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Municipal OwnedWater Company

PublicPrivate

Bills

Pays

100% share holderPrivate OperatorRe - Lease

Term – 15 years

Year 3-5Build Period

Builder

Bank

Loan repayment15 years

Municipal OwnedWater Company

Term – 15 years

Page 114: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Municipality

Municipal OwnedWater Company

PublicPrivate

Bills

Pays

100% share holderPrivate OperatorRe - Lease

Term – 15 years

Year 3-5Build Period

Builder

Bank

Loan repayment15 years

Municipal OwnedWater Company

Term – 15 years

Subject to existing loan agreement

Page 115: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Why the Hybrid Lease?

• A cross between– a lease contract (for the company); and– a concession contract (for the procurement of capital

works)• There is no privatisation• Dramatic transfer of risk to private sector with

minimal political risk• Similarities between this form of PPP and the

French water industry – a civil jurisdiction with the longest standing municipal service sector engaging in PPP in the world!

Page 116: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Caveats• Clearly, not all companies will be in the right shape to enter a hybrid

lease and simpler forms of PPP (i.e. management contracts) will be required as a first step

• Suitability criteria clearly need to be considered (e.g. population served per employee, ratio between billing and collection) as these issues influence creditworthiness

• There is the need to check primary legislation within any jurisdiction to determine whether assignment of certain rights over publicly held shares is permitted

• Careful consideration is required in relation to which rights over shares are assigned in order to make hybrid leasing work while remaining politically acceptable

• Ultimately dependent on the vires of the Direct Agreement between the Municipality and the Bank

Page 117: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Who’s Happy (1)?

• Bank– Has either an existing loan covered by a new leasing

arrangement or been paid out at the end of the first lease term

• Operator– 15 years happy operation of a utility– Paid by the fee for running the company and by

dividends received on shares

• Contractor– Reduced time for procurement cycle– Deals directly with the utility

Page 118: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Who’s Happy (2)?

• Mayor– Because the much of the political risk associated with

privatisation has been removed– Tariff negotiation risk has been reduced into the

bidding process on Re-lease– The competition for the Re-lease acts as a natural

economic market regulator thereby improving regulation of the market

– The overall cost of procuring a project is massively reduced

Page 119: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Who’s Unhappy?

• Lawyers

Page 120: PPP projects in water management: Risks and solutions in the Eastern European context Roderick Mackenzie Solicitor Pinsent Masons Public Private Partnerships.

Thank you

Any questions?


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