Sector:

Energy

Name of Agreement:

Model Implementation Agreement between [Government] and [Project Company]

Type of Agreement:

Implementation Agreement

Part of a suite of model documents comprising also: 

• Fuel Supply Agreement
• Power Purchase Agreement (PPA)
• Land Lease Agreement

Prepared in connection with sector reform as a sample agreement for a country in South East Asia.

Region (if known):

South East Asia

Year of Agreement/ Draft:

2003

Annotated by:

Victoria Delmon/Mark Moseley (LEGPS)

Prepared by:

International law firm

Purpose and Context:

Agreement sets out terms on which Government to provide incentives and assistance to the prospective Project Company awarded the project to design, construct and operate the energy facility and sell energy to the state owned Utility. It also sets out undertakings of the Project Company.

Circumstances where this contract may be appropriate:

This could be used in civil law or common law context, subject to local law advice.

Main Features:

• Project Company granted exclusive right to develop the Project and sell energy to the Utility (2.1).

• [Project Company to transfer Plant at the end of the Term in fair operational condition (2.2)].

• Term – duration of the PPA and all outstanding obligations of Utility have been performed under PPA.

• Financial Closing to occur within 12 months of the Effective Date (4.1). Project company to deliver a Security Deposit to Government (4.2). Failure to achieve Financial Closing gives Government right to terminate the Agreement. . If failure to achieve Financial Closing is not due to force majeure or non-fulfilment of Government of its obligations, Security Deposit to be forfeited (4.5). Otherwise Security Deposit is returned.

• Government obligations (5): 
  • Ensure Governmental Approvals granted in a timely manner, and are renewed;
  • No Governmental Approval is revoked without Cause;
  • Cause all reasonable efforts to expedite consideration of Application for Governmental Approvals;
  • Ensure Critical Consents are granted prior to date scheduled for Financial Closing;
  • [Guarantee obligations of Utility under PPA];
  • Procure guarantee by Ministry prior to Financial Closing in respect of payment and performance obligations of Utility and Government or any other Authority arising under or pursuant to this Implementation Agreement and the PPA;
  • Ensure no expropriation occurs of project assets;
  • Not intervene in construction, operation, maintenance of Project in a manner that is adverse to the Project or the Project Company;
  • Not to take discriminatory action that materially and adversely affects the Project.

• Project Company undertakings (6): 
  • To make and diligently pursue applications for Governmental Approvals.
  • Design build, finance, insure, own operate Project in accordance with applicable laws and PPA, this Agreement and the Lease.
  • Comply with laws and PPA re environmental protection, health and safety.

• Project Company with right to open bank accounts in host country (8.2).

• Representations and warranties (9) – comprehensive.

• No assignment other than to Lenders (10).
• Change of control of Project Company requires prior consent of the Government (10.4).

• Insurance (14) – well-drafted and clear. In the case of Total Loss Lenders with right of election to have proceeds applied to repair or replacement or not (14.5); if Lenders choose not to apply proceeds to repair, Purchaser may terminate agreement (14.6). There are a number of endorsements to be applied to the insurance set out in Schedule 7 (part 2) and care should be taken that these are available in the particular jurisdiction.

• Force Majeure (12) – events which materially and adversely affect performance of party of its obligations, provided that such effect could not have been prevented by diligence and reasonable care.
• FM events divided into Political FM Events and Other FM Events. Political FM Events are extensive (include events outside the host country that directly involve the host country).
• Inability of Transmission System to accept electricity generated by Project Company, unless due to unlawful act of omission of the non-affected party, lack of flow of water to Facility or electric output from Facility (unless caused by an FM event itself), lack of funds are not to be deemed to be FM Events.
• Consequences of FM – Affected Party not liable for failure or delay, and time limits and deadlines shall be extended. [not entirely sure what 12.4 and 12.5 are doing in addition to 12.3.1].

• In the event of termination of Agreement, Project Company has right to enter agreements to sell capacity and electricity to any persons and [Utility] to provide access to Transmission System on reasonable terms and conditions (13.5.1).

• Liability – limitation of liability no liability other than for loss for breach of this Agreement. No liability for indirect, consequential, incidental, punitive or exemplary damages (11.1).

• Double jeopardy (13.6) – to extent that [Utility] settles a dispute with Project Company or an award has been issued against seller under PPA, Government shall be precluded from pursuing any claim that would otherwise have against Project Company based on same facts and acts or omissions by Project Company for breach of substantially the same or related obligations.

• Dispute resolution (Schedule 4) – comprehensive provision
  • Resolution in good faith by parties.
  • Technical Disputes to go to expert determination (to be binding and final).
  • Other disputes, or where expert fails to make a determination, to Arbitration to a single arbitrator under [Singapore International Arbitration Center ] rules.

Possible additional provisions that it might be appropriate to include:

Provisions that may not be advisable to replicate/ may need further thought:

Provisions of wider general use:

Agreement clear and well drafted.

Schedule 10 – comprehensive list of representations and warranties

Double jeopardy clause (13.6) is a useful precedent in projects involving more than one agreement.

Indemnification clause (11.2 – 11.8) is comprehensive.

Waiver of sovereign immunity (11.9).

Experience Since Coming Into Force (including any amendments)/ if draft form, whether it has been applied:

N/A

Tracking Number:

Implementation Agreeement 1_2007_English