Key Contract Provisions. Each Key Contract shall: 7.3.2.1 Require the Key Contractor to carry out its scope of work in accordance with the PPA Documents, the Governmental Approvals, applicable Law, and plans, systems and manuals developed and used by Developer pursuant to the PPA Documents; applicable Law; 7.3.2.2 Include a covenant to maintain all licenses required by 7.3.2.3 Set forth a standard of professional responsibility or a standard for commercial practice equal to the requirements of the PPA Documents and in accordance with Good Industry Practice for work of similar scope and scale; 7.3.2.4 Set forth representations, warranties, guaranties and liability provisions of the Key Contractor in accordance with Good Industry Practice for work of similar scope and scale; 7.3.2.5 Expressly state that all remaining warranties and guarantees, express or implied, shall inure to the benefit of IFA and its successors and assigns upon expiration of the term or earlier termination of this Agreement; 7.3.2.6 Require the Key Contractor to procure the applicable Payment Bond and Performance Security (as applicable) required under Section 17.2, if any, prior to commencement of any work by or on behalf of the Key Contractor; 7.3.2.7 Expressly provide that the Key Contractor shall have no right to suspend or demobilize unless and until it delivers to IFA Notice of the other contracting party’s breach or default; 7.3.2.8 Require the personal services of and not be assignable by the Key Contractor without Developer’s and IFA’s prior written consent, provided that this provision shall not prohibit the subcontracting of portions of the Work; 7.3.2.9 Expressly include the requirements and provisions set forth in this Agreement applicable to Contractors regarding Intellectual Property rights and licenses; 7.3.2.10 Expressly require the Key Contractor to participate in meetings between Developer and IFA concerning matters pertaining to such Key Contractor, its work or the coordination of its work with other Contractors, provided that all direction to such Key Contractor shall be provided by Developer or other party to the Key Contract, and provided further that nothing in this Section shall limit the authority of IFA to give such direction or take such action as in its opinion is necessary to remove an immediate and present threat to the safety of life or property; 7.3.2.11 Include an agreement by the Key Contractor to give evidence in any dispute resolution proceeding pursuant to Section 19.6, if such participation is requested by either IFA or Developer; 7.3.2.12 Without cost to Developer or IFA, and subject to the rights of the Collateral Agent set forth in Article 21 and any Direct Agreement, expressly permit assignment to IFA, the Collateral Agent or either of their respective successors, assignees or designees of all Developer’s or other contracting party’s rights under the Key Contract, contingent only upon delivery of written request from IFA following termination or expiration of this Agreement, allowing IFA or its successor, assign or designee to assume the benefit of Developer’s or other contracting party’s rights with liability only for those remaining obligations of Developer or the other contracting party accruing after the date of assumption, such assignment to include the benefit of all Key Contractor warranties, indemnities, guarantees and professional responsibility; 7.3.2.13 Expressly state that assumption of the Key Contract by IFA or its successor, assign or designee shall not operate to make the assignee responsible or liable for any breach of the Key Contract by Developer or the other contracting party or for any amounts due and owing under the Key Contract for work or services rendered prior to assumption, without prejudice, however, to any rights of the Contractor under the Key Contract or applicable Law to suspend work or terminate the Key Contract by reason of any such breach or failure to pay amounts due; 7.3.2.14 Expressly include (a) a covenant to recognize and attorn to IFA upon receipt of Notice from IFA that it has exercised step-in rights under this Agreement, without necessity for consent or approval from Developer or to determine whether IFA validly exercised its step-in rights, and (b) Developer’s covenant to waive and release any claim or cause of action against the Key Contractor arising out of or relating to its recognition and attornment in reliance on any such Notice; 7.3.2.15 Expressly include a covenant, expressly stated to survive termination of the Key Contract, to promptly execute and deliver to IFA or its successor, assign or designee a new contract between the Key Contractor and IFA or its successor, assign or designee on the same terms and conditions as the Key Contract, if (a) the Key Contract is rejected by Developer in bankruptcy or is wrongfully terminated by Developer and (b) IFA delivers written request for such new contract within 60 days following termination or expiration of this Agreement. The Key Contract also shall include a covenant, expressly stated to survive termination of the Key Contract, to the effect that if the Key Contractor was a party to an escrow agreement for an Intellectual Property Escrow and Developer terminates it, then the Key Contractor also shall execute and deliver to IFA, concurrently with such new contract, a new escrow agreement on the same terms and conditions as the terminated escrow agreement, and shall concurrently make the same deposits to the new Intellectual Property Escrow as made or provided under the terminated escrow agreement. The obligation to include the same terms and conditions is subject to the following exceptions: (i) terms and conditions of a Key Contract or Intellectual Property Escrow agreement rendered moot or inapplicable solely due to change in the identity of the contracting party to IFA or its successor, assign or designee; and (ii) terms and conditions of a Key Contract that must be adjusted due to schedule delay caused solely by Developer’s rejection in bankruptcy or wrongful termination. This Section shall not apply to Key Contracts with IFA or Governmental Entities; 7.3.2.16 Expressly include requirements that: the Key Contractor (a) will maintain usual and customary Books and Records for the type and scope of operations of business in which it is engaged (e.g., constructor, equipment Supplier, designer, service provider), and retain such Books and Records for the period set forth in Section 23.1.4 or other applicable period set forth in the PPA Documents, (b) permit audit thereof by IFA and (c) provide progress reports to Developer appropriate for the type of work it is performing sufficient to enable Developer to provide the reports it is required to furnish IFA under this Agreement; 7.3.2.17 Expressly include the Indemnified Parties as indemnitees, with direct right of enforcement, in any indemnity given by the Key Contractor under the Key Contract; 7.3.2.18 Expressly include an acknowledgement that the Key Contractor has no right or claim to any lien or encumbrance upon the Project or Project Right of Way for failure of the other contracting party to pay amounts due the Key Contractor, and a waiver of any such right or claim that may exist at Law or in equity; 7.3.2.19 Include the right of Developer to terminate the Key Contract in whole or in part upon any termination of this Agreement, in each case without liability of Developer or IFA for the Key Contractor’s lost profits or business opportunity; 7.3.2.20 Not contain any terms that do not comply or are inconsistent with the terms of the PPA Documents, including terms that do not comply or are inconsistent with this Article 7 or with the applicable requirements of Section 23.1 regarding maintenance of Books and Records, that fail to incorporate the applicable federal requirements set forth in Exhibit 23 (Federal Requirements), or that are inconsistent with the requirements of the relevant scope of Work; and 7.3.2.21 Expressly provide that any purported amendment with respect to any of the foregoing matters without the prior written consent of IFA shall be null and void. With respect to the Design-Build Contract, Developer shall not agree to any amendment to the Design-Build Contract with respect to, or relating to (a) any Milestone (as defined thereunder) or (b)(i) AP Delay Liquidated Damages or (ii) Milestone Delay Liquidated Damages (as each is defined thereunder), or both, in each case, without the prior, written consent of IFA, in its good faith discretion.
Appears in 1 contract
Sources: Public Private Agreement
Key Contract Provisions. Each Key Contract shall:
7.3.2.1 Require the Key Contractor to carry out its scope of work in accordance with the PPA Contract Documents, the Governmental Approvals, applicable Law, and plans, systems and manuals developed and used by Developer pursuant to the PPA Contract Documents; applicable Law;
7.3.2.2 Include a covenant to maintain all licenses required byby applicable Law;
7.3.2.3 Set forth a standard of professional responsibility or a standard for commercial practice equal to the requirements of the PPA Contract Documents and in accordance with Good Industry Best Management Practice for work of similar scope and scale;
7.3.2.4 Set forth representations, warranties, guaranties and liability provisions of the Key Contractor in accordance with Good Industry Best Management Practice for work of similar scope and scale;
7.3.2.5 Expressly state that all remaining warranties and guarantees, express or implied, shall inure to the benefit of IFA the Department and its successors and assigns upon expiration of the term or earlier termination of this Agreement;
7.3.2.6 Require the Key Contractor to procure the applicable Payment Bond and Performance Security (as applicable) required under Section 17.216.2, if any, prior to commencement of any work by or on behalf of the Key Contractor;
7.3.2.7 Expressly In the case of each Key Contractor that has provided a Payment Bond and/or Performance Security with the Department named as a dual obligee, expressly provide that the Key Contractor shall have no right to suspend or demobilize unless and until it delivers to IFA Notice the Department written notice of the other contracting partyDeveloper’s breach or default;
7.3.2.8 Require the personal services of and not be assignable by the Key Contractor without Developer’s and IFAthe Department’s prior written consent, provided that this provision shall not prohibit the subcontracting of portions of the Work;
7.3.2.9 Expressly include the requirements and provisions set forth in this Agreement applicable to Contractors regarding Intellectual Property rights and licenses;
7.3.2.10 Expressly require the Key Contractor to participate in meetings between Developer and IFA the Department concerning matters pertaining to such Key Contractor, its work or the coordination of its work with other Contractors, provided that all direction to such Key Contractor shall be provided by Developer or other party to the Key ContractDeveloper, and provided further that nothing in this Section 7.3.2.10 shall limit the authority of IFA the Department to give such direction or take such action as in its opinion is necessary to remove an immediate and present threat to the safety of life or property;
7.3.2.11 Include an agreement by the Key Contractor to give evidence participate in any dispute resolution proceeding pursuant to Section 19.6Article 24, if such participation is requested by either IFA the Department or Developer;
7.3.2.12 Without cost to Developer or IFA, and subject to the rights of the Collateral Agent set forth in Article 21 and any Direct Agreement, expressly permit assignment to IFA, the Collateral Agent or either of their respective successors, assignees or designees of all Developer’s or other contracting party’s rights under the Key Contract, contingent only upon delivery of written request from IFA following termination or expiration of this Agreement, allowing IFA or its successor, assign or designee to assume the benefit of Developer’s or other contracting party’s rights with liability only for those remaining obligations of Developer or the other contracting party accruing after the date of assumption, such assignment to include the benefit of all Key Contractor warranties, indemnities, guarantees and professional responsibility;
7.3.2.13 Expressly state that assumption of the Key Contract by IFA or its successor, assign or designee shall not operate to make the assignee responsible or liable for any breach of the Key Contract by Developer or the other contracting party or for any amounts due and owing under the Key Contract for work or services rendered prior to assumption, without prejudice, however, to any rights of the Contractor under the Key Contract or applicable Law to suspend work or terminate the Key Contract by reason of any such breach or failure to pay amounts due;
7.3.2.14 Expressly include (a) a covenant to recognize and attorn to IFA upon receipt of Notice from IFA that it has exercised step-in rights under this Agreement, without necessity for consent or approval from Developer or to determine whether IFA validly exercised its step-in rights, and (b) Developer’s covenant to waive and release any claim or cause of action against the Key Contractor arising out of or relating to its recognition and attornment in reliance on any such Notice;
7.3.2.15 Expressly include a covenant, expressly stated to survive termination of the Key Contract, to promptly execute and deliver to IFA or its successor, assign or designee a new contract between the Key Contractor and IFA or its successor, assign or designee on the same terms and conditions as the Key Contract, if (a) the Key Contract is rejected by Developer in bankruptcy or is wrongfully terminated by Developer and (b) IFA delivers written request for such new contract within 60 days following termination or expiration of this Agreement. The Key Contract also shall include a covenant, expressly stated to survive termination of the Key Contract, to the effect that if the Key Contractor was a party to an escrow agreement for an Intellectual Property Escrow and Developer terminates it, then the Key Contractor also shall execute and deliver to IFA, concurrently with such new contract, a new escrow agreement on the same terms and conditions as the terminated escrow agreement, and shall concurrently make the same deposits to the new Intellectual Property Escrow as made or provided under the terminated escrow agreement. The obligation to include the same terms and conditions is subject to the following exceptions: (i) terms and conditions of a Key Contract or Intellectual Property Escrow agreement rendered moot or inapplicable solely due to change in the identity of the contracting party to IFA or its successor, assign or designee; and (ii) terms and conditions of a Key Contract that must be adjusted due to schedule delay caused solely by Developer’s rejection in bankruptcy or wrongful termination. This Section shall not apply to Key Contracts with IFA or Governmental Entities;
7.3.2.16 Expressly include requirements that: the Key Contractor (a) will maintain usual and customary Books and Records for the type and scope of operations of business in which it is engaged (e.g., constructor, equipment Supplier, designer, service provider), and retain such Books and Records for the period set forth in Section 23.1.4 or other applicable period set forth in the PPA Documents, (b) permit audit thereof by IFA and (c) provide progress reports to Developer appropriate for the type of work it is performing sufficient to enable Developer to provide the reports it is required to furnish IFA under this Agreement;
7.3.2.17 Expressly include the Indemnified Parties as indemnitees, with direct right of enforcement, in any indemnity given by the Key Contractor under the Key Contract;
7.3.2.18 Expressly include an acknowledgement that the Key Contractor has no right or claim to any lien or encumbrance upon the Project or Project Right of Way for failure of the other contracting party to pay amounts due the Key Contractor, and a waiver of any such right or claim that may exist at Law or in equity;
7.3.2.19 Include the right of Developer to terminate the Key Contract in whole or in part upon any termination of this Agreement, in each case without liability of Developer or IFA for the Key Contractor’s lost profits or business opportunity;
7.3.2.20 Not contain any terms that do not comply or are inconsistent with the terms of the PPA Documents, including terms that do not comply or are inconsistent with this Article 7 or with the applicable requirements of Section 23.1 regarding maintenance of Books and Records, that fail to incorporate the applicable federal requirements set forth in Exhibit 23 (Federal Requirements), or that are inconsistent with the requirements of the relevant scope of Work; and
7.3.2.21 Expressly provide that any purported amendment with respect to any of the foregoing matters without the prior written consent of IFA shall be null and void. With respect to the Design-Build Contract, Developer shall not agree to any amendment to the Design-Build Contract with respect to, or relating to (a) any Milestone (as defined thereunder) or (b)(i) AP Delay Liquidated Damages or (ii) Milestone Delay Liquidated Damages (as each is defined thereunder), or both, in each case, without the prior, written consent of IFA, in its good faith discretion.
Appears in 1 contract
Sources: Public Private Partnership Agreement