Responsible Agencies are required to adopt the suite of template contractual documentation (Template Project Documents) that has been developed by NSW Treasury for PPP projects, unless otherwise agreed with NSW Treasury.
The aim of the Template Project Documents is to provide a consistent and efficient risk allocation, whilst recognising that the Responsible Agency may require flexibility to accommodate project specific requirements. By maintaining consistency in approach across projects, the Responsible Agency and the private sector participants are collectively incentivised to minimise time and resources required to draft and negotiate project documentation. This enables the Responsible Agency and the private sector to focus on key project issues and provides greater certainty around the terms on which both parties consented to contract and undertake the project.
The Template Project Documents, which include templates for the project deed, the financier's tripartite agreement, and other key project documents, will form the basis of contractual documentation to be released to bidders as part of the RFP documentation. The Responsible Agency must prepare a document based on the NSW Treasury Project Deed Commercial Principles to confirm agreement and consistency with the project approach. Where a Responsible Agency has a project-specific reason to deviate from provisions in the Template Project Documents, the Responsible Agency must show cause and seek approval from NSW Treasury for any departures.
The Template Project Documents vary from, or are in addition to, the National PPP Guidelines in certain key respects, including:
• adjustment of the relief and compensation regimes to align with the delivery and operational stages of a project
• inclusion of a two-stage completion process comprising technical completion and commercial acceptance
• an ability of the State to pay down a portion of senior debt once the facility is operational
• reduced 'asset-related' requirements
• adjustments to the treatment of uninsurable risks
• requirement to comply with relevant building codes, including the NSW Code and Guidelines for the Building and Construction Industry; and
• provisions in relation to privacy, governance, community, health and safety.
Key areas of the Template Project Documents that will need to be adjusted for project specific requirements are:
• the services specification
• payment mechanism; and
• the associated Key Performance Indicators (KPIs).