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Standard Form Project Agreement
(hub DBFM Projects)
Version 2.1: October 2013
THIS STANDARD FORM PROJECT AGREEMENT MUST BE USED IN CONJUNCTION WITH THE STANDARD PROJECT AGREEMENTS USERS GUIDE (VERSION 2) PUBLISHED BY THE SCOTTISH FUTURES TRUST
AGREEMENT
between
[AUTHORITY]
and
[SUB-HUBCO]
[Project]
[Date]
.
1DEFINITIONS AND INTERPRETATION5
2EXECUTION AND DELIVERY OF DOCUMENTS5
3COMMENCEMENT AND DURATION5
4PROJECT DOCUMENTS5
5THE PROJECT OPERATIONS7
6GENERAL OBLIGATIONS AND RESPONSIBILITIES OF SUB-HUBCO8
7AUTHORITY'S DATA9
8REPRESENTATIVES10
9NATURE OF LAND INTERESTS12
10THE SITE13
11CONSENTS & PLANNING APPROVAL14
12THE DESIGN CONSTRUCTION AND COMMISSIONING PROCESS16
13RIGHT OF ACCESS OF AUTHORITY'S REPRESENTATIVE18
14PROGRAMME AND DATES FOR COMPLETION19
15INDEPENDENT TESTER20
16EQUIPMENT21
17PRE-COMPLETION COMMISSIONING AND COMPLETION21
18POST COMPLETION COMMISSIONING24
19FOSSILS AND ANTIQUITIES25
20QUALITY ASSURANCE27
21INFORMATION TECHNOLOGY29
22THE SERVICES30
23MAINTENANCE31
24MONITORING OF PERFORMANCE35
25TUPE AND EMPLOYMENT MATTERS38
26PENSIONS47
27SITE SECURITY AND PERSONNEL ISSUES48
28STOCKS CONSUMABLES, MATERIALS AND EQUIPMENT51
29DELAY EVENTS54
30RELIEF EVENTS57
31FORCE MAJEURE58
32CHANGES IN LAW61
33CHANGE PROTOCOL64
34PAYMENT65
35VAT AND CONSTRUCTION INDUSTRY TAX DEDUCTION SCHEME67
36IRR SHARING AND CAP70
37FINANCIAL MODEL71
38RECORDS AND OPEN BOOK ACCOUNTING72
39AUTHORITY EVENTS OF DEFAULT73
40SUB-HUBCO EVENT OF DEFAULT73
41TERMINATION RESULTING FROM FORCE MAJEURE77
42AUTHORITY VOLUNTARY TERMINATION77
43EXPIRY78
44CORRUPT GIFTS AND PAYMENTS78
45BREACH OF IRR SHARING AND CAP PROVISIONS80
46COMPENSATION ON TERMINATION81
47CONSEQUENCES OF TERMINATION83
48HANDBACK PROCEDURE86
49INDEMNITIES87
49AMALICIOUS DAMAGE90
50TAX ON INDEMNITY PAYMENTS90
51EXCUSING CAUSES92
52WARRANTIES94
53INSURANCE94
54EXCLUSIONS AND LIMITATIONS ON LIABILITY103
55INTELLECTUAL PROPERTY105
56DISPUTE RESOLUTION PROCEDURE106
57ASSIGNATION AND SUB-CONTRACTING106
58OWNERSHIP INFORMATION AND CHANGES IN CONTROL108
59MITIGATION109
60DATA PROTECTION109
61CONFIDENTIALITY110
62FREEDOM OF INFORMATION113
63INFORMATION AND AUDIT ACCESS114
64NOTICES115
65NO WAIVER116
66NO AGENCY116
67ENTIRE AGREEMENT116
68THIRD PARTY RIGHTS116
69SEVERABILITY117
70CONFLICTS OF AGREEMENTS117
71COSTS AND EXPENSES117
72FURTHER ASSURANCE117
73GOVERNING LAW AND JURISDICTION117
SCHEDULES
SCHEDULE PART 1 DEFINITIONS AND INTERPRETATION118
SCHEDULE PART 2 COMPLETION DOCUMENTS150
SCHEDULE PART 3 KEY WORKS PERSONNEL153
SCHEDULE PART 4 FUNDERS' DIRECT AGREEMENT154
SCHEDULE PART 5 LAND MATTERS168
SCHEDULE PART 6 CONSTRUCTION MATTERS170
SCHEDULE PART 7 THE PROGRAMME179
SCHEDULE PART 8 REVIEW PROCEDURE180
SCHEDULE PART 9 COLLATERAL AGREEMENTS191
SCHEDULE PART 10 OUTLINE COMMISSIONING PROGRAMME230
SCHEDULE PART 11 EQUIPMENT231
SCHEDULE PART 12 SERVICE REQUIREMENTS232
SCHEDULE PART 13 INDEPENDENT TESTER CONTRACT235
SCHEDULE PART 14 PAYMENT MECHANISM250
SCHEDULE PART 15 INSURANCE REQUIREMENTS266
SCHEDULE PART 16 CHANGE PROTOCOL284
SCHEDULE PART 17 COMPENSATION ON TERMINATION325
SCHEDULE PART 18 HANDBACK PROCEDURE339
SCHEDULE PART 19 RECORD PROVISIONS353
SCHEDULE PART 20 DISPUTE RESOLUTION PROCEDURE357
SCHEDULE PART 21 SUB-HUBCO INFORMATION363
SCHEDULE PART 21 CERTIFICATES365
SCHEDULE PART 23 REFINANCING369
SCHEDULE PART 24 EMPLOYMENT AND PENSIONS372
SCHEDULE PART 25 INSURANCE PROCEEDS ACCOUNT AGREEMENT382
SCHEDULE PART 25 COMMERCIALLY SENSITIVE INFORMATION390
TABLE OF CONTENTS
ClauseHeadingPage No.
iv
BETWEEN:
(1)[] (the "Authority"); and
(2)[ ] (registered under number [ ]) whose registered office is [ ] ("Sub-hubco").
WHEREAS:
[]
NOW IT IS HEREBY AGREED as follows:
PART 1: GENERAL
DEFINITIONS AND INTERPRETATION
Schedule Part 1 (Definitions and Interpretation) shall apply.
EXECUTION AND DELIVERY OF DOCUMENTS
On or prior to execution of this Agreement:
Sub-hubco shall deliver to the Authority the documents referred to in Section 1 (Documents to be delivered by Sub-hubco) of Schedule Part 2 (Completion Documents) (unless the requirement to deliver any such document is waived by the Authority by written notice to Sub-hubco); and
the Authority shall deliver to Sub-hubco the documents referred to in Section 2 (Documents to be delivered by the Authority) of Schedule Part 2 (Completion Documents) (unless the requirement to deliver any such document is waived by Sub-hubco by written notice to the Authority).
COMMENCEMENT AND DURATION
This Agreement, and the rights and obligations of the parties, shall commence on the date of execution of this Agreement and, without prejudice to Clause 47.6, shall terminate automatically on the expiry of the Project Term.
PROJECT DOCUMENTS
Ancillary Documents
Sub-hubco shall perform its obligations under, and observe all of the provisions of, the Project Documents to which it is a party and shall not:
terminate or agree to the termination of all or part of any Ancillary Document;
make or agree to any material variation of any Ancillary Document;
in any material respect depart from its obligations (or waive or allow to lapse any rights it may have in a material respect), or procure that others in any material respect depart from their obligations (or waive or allow to lapse any rights they may have in a material respect), under any Ancillary Document; or
enter into (or permit the entry into by any other person of) any agreement replacing all or part of (or otherwise materially and adversely affecting the interpretation of) any Ancillary Document,
unless the proposed course of action (and any relevant documentation) has been submitted to the Authority's Representative for review under Schedule Part 8 (Review Procedure) and either:
there has been no objection in accordance with paragraph 3 of Schedule Part 8 (Review Procedure) within twenty (20) Business Days of receipt by the Authority's Representative of the submission of the proposed course of action (and any relevant documentation), or such shorter period as may be agreed by the parties; or
Sub-hubco is acting in accordance with the comments of the Authority as provided in paragraph 4.2 of Schedule Part 8 (Review Procedure);
and, in the circumstances specified in Clause 4.1.1, Sub-hubco has complied with Clause 57 (Assignation and Sub-contracting).
Changes to Funding Agreements and Refinancing
Subject to Clauses 4.3, 4.4 and 4.5, Sub-hubco shall be free, at any time, to enter into, terminate, amend, waive its rights and generally deal with its Funding Agreements on such terms and conditions as it sees fit without the prior written consent of the Authority provided that (at the time such action is contemplated and effected) the same will not materially and adversely affect the ability of Sub-hubco to perform its obligations under the Project Documents or this Agreement.
No amendment, waiver or exercise of a right under any Funding Agreement or Ancillary Document shall have the effect of increasing the Authority's liabilities on early termination of this Agreement unless:
Sub-hubco has obtained the prior written consent of the Authority to such increased liability for the purposes of this Clause 4.3; or
it is a Permitted Borrowing.
Any amendment or variation of any Funding Agreements which constitutes a Refinancing shall be carried out in accordance with the provisions of Schedule Part 23 (Refinancing).
Without prejudice to Clause 4.2, Sub-hubco shall liaise with the Authority, and shall use all reasonable endeavours to provide the Authority with a copy of the relevant agreement in settled draft form, not less than ten (10) Business Days before it enters into any Funding Agreement (other than the Initial Funding Agreements).
Delivery
Without prejudice to the provisions of this Clause 4 (Project Documents), if at any time an amendment is made to any Project Document, or Sub-hubco enters into a new Project Document (or any agreement which affects the interpretation or application of any Project Document), Sub-hubco shall deliver to the Authority a conformed copy of each such amendment or agreement within ten (10) Business Days of the date of its execution or creation, certified as a true copy by an officer of Sub-hubco.
Funding Default
Sub-hubco shall promptly upon the occurrence of a [Funding Default] notify the Authority of such [Funding Default].
The Authority may, in circumstances referred to in Clause 4.7 above (regardless of whether the Senior Funders have exercised any enforcement or similar rights under the Senior Funding Agreements), require Sub-hubco to provide an [Interim Project Report] and to attend, and use all reasonable endeavours to ensure that the Senior Funders attend, such meetings as the Authority may convene to discuss s