Implementation Agreement (Example 3)

Region
Africa

Sector:

Energy

Name of Agreement:

Model Implementation Agreement between [Government] and [Company]

Type of Agreement:

Implementation Agreement for Energy Project.

Part of a suite of model documents comprising this and power purchase agreement

Region (if known):

Africa

Year of Agreement/ Draft:

2007

Prepared by international law firm - modified by World Bank staff

Annotated by

Victoria Delmon/ Mark Moseley, LEGPS, World Bank

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:

Short-form document to go with short-form ppa.

Common law country, but could be amended to be used in civil law country

Main Features:

Company to undertake every aspect of project in accordance with Agreement, PPA and Applicable Laws (3.1), to maintain complete and accurate records (3.2), carry out an environmental impact assessment if required by law and comply with environmental and health and safety laws (3.3), ensure that no fuel purchased for the project is dumped into local markets (3.4) and make arrangements for delivery and receipt of equipment and materials necessary to perform its obligations under PPA (3.5)

Initial term - [  ] months - renewable for additional [  ] months (2).  [Possibility of including a provision to renew will partly depend on terms of procurement documents and applicable procurement laws].

 

Government shall use its good offices to support the company's performance of its obligations (5.1)

 

Government shall ensure that the Utility performs its obligations under the PPA (this is short of a guarantee) (5.2)

  Government to waive import and re-export duties on materials used for project (other than fuel) (5.3)
 

Representations and warranties by each party (6) - relativly standard provisions

No assignment by either party without consent of other party (7.1)

 

Change of law - Government to bear risk of change of law that has material adverse effect project (9), other than change in taxation, which is borne by company unless it is a change that applies only to company (8.2)

Limitation of liability (13) - liability for indirect and consequential damage excluded.  Mutual indemnity re losses arising indirectly or directly from gross negligence or intentional act of omission of the other party (unless other party can recover this under insurances) (13.2.2).  No indemnification for fines and penalties (13.3). Double jeopardy provision re claims, settlement and waviers under PPA (13.4)

Resolution of disputes (14 and 18 of PPA) - amicable settlement, referral to an adjudicator, arbitration (ICSID - as per PPA)

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:

Force majeure provision (11) is fair and comprehensive.

Double jeopardy provision (13.4)

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

N/A

Tracking Number:

Energyimplementation3

 

Last Updated : Fri,2017-01-20