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The Port Authority of New York and New Jersey Project Agreement Goethals Bridge Replacement Project August 30, 2013
THE GOETHALS BRIDGE REPLACEMENT PROJECT
PROJECT AGREEMENT
dated as of August 30, 2013
between
THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY
and
NYNJ LINK DEVELOPER LLC
as Developer
(Execution Version)
The Port Authority of New York and New Jersey i Project Agreement Goethals Bridge Replacement Project August 30, 2013
TABLE OF CONTENTS
ARTICLE 1. DEFINITIONS; PROJECT DOCUMENTS ................................................................ 9
1.1 Definitions; Construction and Interpretation of Agreement ....................................... 9
1.2 Project Documents; Order of Precedence .............................................................. 10
1.3 Responsibility for Related Parties ........................................................................... 11
ARTICLE 2. EFFECTIVENESS, CONDITIONS PRECEDENT TO CLOSING ........................... 12
2.1 Immediately Effective Articles ................................................................................. 12
2.2 Conditions Precedent to the Commercial Closing Date .......................................... 12
2.3 Financial Closing Date ............................................................................................ 12
2.4 Conditions Precedent to the Financial Closing Date ............................................... 12
2.5 Achievement of or Failure to Achieve the Financial Closing Date .......................... 14
2.6 Term ........................................................................................................................ 17
ARTICLE 3. GRANT OF RIGHT ................................................................................................. 18
3.1 Grant of Right .......................................................................................................... 18
3.2 Access to Project Right of Way ............................................................................... 18
3.3 Disclosed Information ............................................................................................. 19
3.4 Collaborative Nature of the Project ......................................................................... 21
ARTICLE 4. REVIEW OF SUBMITTALS .................................................................................... 22
4.1 Submittals ............................................................................................................... 22
ARTICLE 5. GOVERNMENTAL APPROVALS; UTILITIES; MASTER UTILITY AGREEMENTS AND THIRD-PARTY AGREEMENTS ............................................................... 26
5.1 Governmental Approvals ........................................................................................ 26
5.2 Utilities .................................................................................................................... 27
5.3 Master Utility Agreements and Third-Party Agreements ......................................... 29
ARTICLE 6. HAZARDOUS MATERIALS .................................................................................... 31
6.1 General Obligations ................................................................................................ 31
6.2 Third Party Claims .................................................................................................. 32
6.3 Generator Status ..................................................................................................... 32
6.4 Management of Hazardous Materials Releases ..................................................... 32
ARTICLE 7. DESIGN AND CONSTRUCTION ........................................................................... 34
7.1 Obligations of Developer ......................................................................................... 34
7.2 Nonconforming and Defective Work ....................................................................... 35
7.3 Safety Compliance .................................................................................................. 35
7.4 Conditions to NTP 1 ................................................................................................ 36
7.5 Conditions to NTP 2 ................................................................................................ 36
7.6 Advance Construction Work ................................................................................... 37
7.7 Partial Completion ................................................................................................... 37
7.8 NTP 3 and Service Commencement ...................................................................... 39
The Port Authority of New York and New Jersey ii Project Agreement Goethals Bridge Replacement Project August 30, 2013
7.9 Conditions to Demolition Work and NTP4 .............................................................. 42
7.10 Substantial Completion ........................................................................................... 43
7.11 Demolition Completion ............................................................................................ 46
7.12 Final Acceptance .................................................................................................... 47
7.13 Suspension of Construction Work or Demolition Work ........................................... 49
ARTICLE 8. MAINTENANCE, RENEWAL AND HANDBACK WORK ........................................ 51
8.1 Commencement of Maintenance Work ................................................................... 51
8.2 Maintenance Work Standards and Requirements .................................................. 51
8.3 Police Services ....................................................................................................... 52
8.4 Maintenance Management Plan ............................................................................. 53
8.5 Handback Requirements ........................................................................................ 53
8.6 Handback Reserve Account ................................................................................... 54
ARTICLE 9. CONTRACTORS AND KEY PERSONNEL ............................................................ 57
9.1 Relationship with Contractors ................................................................................. 57
9.2 Key Personnel ......................................................................................................... 57
9.3 Certain Public Policy Requirements ........................................................................ 58
ARTICLE 10. AUTHORITY AND DEVELOPER CHANGES ....................................................... 59
10.1 Authority Changes .................................................................................................. 59
10.2 Directive Letter ........................................................................................................ 60
10.3 Developer’s Estimate of Authority Change Requests ............................................. 60
10.4 Review and Evaluation of Developer’s Estimate .................................................... 61
10.5 Funding ................................................................................................................... 62
10.6 Developer Changes ................................................................................................ 63
10.7 No Cost Change Order ........................................................................................... 64
10.8 Commencement of Extra Work ............................................................................... 64
10.9 Decreased Costs .................................................................................................... 64
10.10 Performance ........................................................................................................... 65
ARTICLE 11. NONCOMPLIANCE EVENTS ............................................................................... 66
11.1 Noncompliance Points System ............................................................................... 66
11.2 Notification of Noncompliance Events .................................................................... 66
11.3 Assessment of Noncompliance Points .................................................................... 67
ARTICLE 12. SUPERVENING EVENTS .................................................................................... 69
12.1 Delays ..................................................................................................................... 69
12.2 Compensation Events ............................................................................................. 70
12.3 Relief Events ........................................................................................................... 76
ARTICLE 13. CHANGE IN LAW ................................................................................................. 80
13.1 Occurrence ............................................................................................................. 80
13.2 Notification .............................................................................................................. 80
13.3 Qualifying Changes in Law ..................................................................................... 80
ARTICLE 14. PAYMENTS TO DEVELOPER ............................................................................. 81
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14.1 Consideration for D&C Work ................................................................................... 81
14.2 Maintenance Payments Calculation ........................................................................ 82
14.3 Invoicing .................................................................................................................. 83
14.4 Disputed Amounts ................................................................................................... 84
ARTICLE 15. CHANGE IN OWNERSHIP ................................................................................... 85
15.1 Restricted Changes in Ownership .......................................................................... 85
15.2 Notification of Changes in Ownership ..................................................................... 86
ARTICLE 16. FINANCIAL MODEL ADJUSTMENTS .................................................................. 87
16.1 General ................................................................................................................... 87
16.2 Application to the Financial Model .......................................................................... 87
16.3 No Better and No Worse ......................................................................................... 87
16.4 Replacement of Financial Model ............................................................................. 88
16.5 Amendments to Logic and/or Formulae .................................................................. 88
16.6 Financial Model Audits; Accuracy ........................................................................... 88
16.7 Copies of the Revised Financial Model ................................................................... 89
ARTICLE 17. REFINANCING ..................................................................................................... 90
17.1 Requirement for Authority Consent ......................................................................... 90
17.2 Share of Gain .......................................................................................................... 90
17.3 Developer Details .................................................................................................... 90
17.4 Receipt of Gain ....................................................................................................... 90
17.5 Method of Calculation ............................................................................................. 90
17.6 Costs ....................................................................................................................... 91
17.7 Notifiable Financings ............................................................................................... 91
ARTICLE 18. PRINCIPAL DEVELOPER DOCUMENTS ............................................................ 92
18.1 Key Contracts ......................................................................................................... 92
18.2 Delivery of Changed Principal Developer Documents ............................................ 92
18.3 No Increased Termination Liabilities ....................................................................... 92
18.4 Replacement of Key Contractors ............................................................................ 93
ARTICLE 19. INSURANCE ......................................................................................................... 94
19.1 Insurance Policies and Coverage ........................................................................... 94
19.2 General Insurance Requirements ........................................................................... 94
19.3 Uninsurable Risks ................................................................................................... 99
19.4 Consequences of a risk becoming an Uninsurable Risk ......................................... 99
19.5 Unavailability of Insurance Terms ......................................................................... 101
19.6 Alternative Insurance Terms ................................................................................. 103
19.7 Benchmarking of Insurance Costs ........................................................................ 106
ARTICLE 20. DEVELOPER INDEMNITY ................................................................................. 109
20.1 Indemnified Losses ............................................................................................... 109
20.2 Exclusions from Indemnity .................................................................................... 109
20.3 Limitation of Indemnity .......................................................................................... 109
The Port Authority of New York and New Jersey iv Project Agreement Goethals Bridge Replacement Project August 30, 2013
20.4 Conduct of Third-Party Claims .............................................................................. 109
ARTICLE 21. REPRESENTATIONS AND WARRANTIES ....................................................... 111
21.1 Developer Representations and Warranties ......................................................... 111
21.2 Authority Representations and Warranties ........................................................... 115
21.3 Repetition and survival of Representations and Warranties ................................. 116
ARTICLE 22. DEVELOPER DEFAULT .................................................................................... 117
22.1 Developer Default ................................................................................................. 117
22.2 Termination for Persistent Breach by Developer .................................................. 119
22.3 Initial Notice and Cure Periods ............................................................................. 120
22.4 Authority Remedies for Developer Default ............................................................ 120
ARTICLE 23. AUTHORITY DEFAULT ...................................................................................... 122
23.1 Authority Default ................................................................................................... 122
23.2 Initial Notice and Cure Periods ............................................................................. 123
23.3 Right of Termination .............................................................................................. 123
ARTICLE 24. TERMINATION ................................................................................................... 124
24.1 Termination for Convenience ................................................................................ 124
24.2 Termination for Authority Default .......................................................................... 124
24.3 Termination for Extended Force Majeure ............................................................. 125
24.4 Termination for Developer Default ........................................................................ 126
24.5 Termination for Terrorism ..................................................................................... 127
24.6 Termination Procedures and Duties ..................................................................... 127
24.7 Exclusive Termination Rights ................................................................................ 128
ARTICLE 25. AUTHORITY STEP-IN ........................................................................................ 129
25.1 Right to Step-in ..................................................................................................... 129
25.2 Notice to Developer .............................................................................................. 129
25.3 Action by Authority ................................................................................................ 129
25.4 Step-in without Developer Breach ........................................................................ 130
25.5 Step-in on Developer Breach ................................................................................ 130
ARTICLE 26. MAINTENANCE AND INSPECTION OF RECORDS ......................................... 131
26.1 Maintenance and Inspection of Records ............................................................... 131
26.2 Audits .................................................................................................................... 131
ARTICLE 27. INTELLECTUAL PROPERTY ............................................................................. 133
27.1 Intellectual Property .............................................................................................. 133
27.2 Maintenance of Data ............................................................................................. 134
27.3 Indemnity .............................................................................................................. 135
ARTICLE 28. FEDERAL REQUIREMENTS ............................................................................. 136
28.1 Compliance with Federal Requirements ............................................................... 136
28.2 Cooperation with FHWA ....................................................................................... 136
ARTICLE 29. ASSIGNMENT AND TRANSFER; FUNDAMENTAL CHANGES ....................... 137
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29.1 Assignment ........................................................................................................... 137
29.2 Security ................................................................................................................. 137
29.3 Change of Organization or Name ......................................................................... 137
ARTICLE 30. DISPUTE RESOLUTION PROCEDURES ......................................................... 138
30.1 General ................................................................................................................. 138
30.2 Consultation .......................................................................................................... 138
30.3 Written Protest to Authority ................................................................................... 138
30.4 Disputes Review Board ......................................................................................... 138
30.5 Right to Litigate Dispute ........................................................................................ 141
30.6 Continuance of Work During Dispute .................................................................... 141
30.7 Joinder of Disputes ............................................................................................... 141
30.8 Chief Engineer’s Jurisdiction ................................................................................. 142
30.9 Costs of Dispute Resolution .................................................................................. 142
ARTICLE 31. SOLE REMEDY AND LIABILITIES .................................................................... 143
31.1 Common Law Rights for Developer ...................................................................... 143
31.2 Common Law Rights of the Authority ................................................................... 143
31.3 Consequential Losses ........................................................................................... 144
31.4 No Double Recovery ............................................................................................. 144
ARTICLE 32. MISCELLANEOUS ............................................................................................. 145
32.1 Amendments ......................................................................................................... 145
32.2 Waiver ................................................................................................................... 145
32.3 Independent Contractor ........................................................................................ 145
32.4 Successors and Assigns ....................................................................................... 146
32.5 Designation of Representatives; Cooperation with Representatives .................... 146
32.6 Survival ................................................................................................................. 146
32.7 Limitation on Third-Party Beneficiaries ................................................................. 146
32.8 Submission to Jurisdiction .................................................................................... 147
32.9 Waiver of Jury Trial ............................................................................................... 147
32.10 Governing Law ...................................................................................................... 147
32.11 Notices and Communications ............................................................................... 147
32.12 Integration of Project Documents; Compliance ..................................................... 148
32.13 Severability ........................................................................................................... 149
32.14 Headings ............................................................................................................... 149
32.15 Entire Agreement .................................................................................................. 149
32.16 Counterparts ......................................................................................................... 149
32.17 No State Obligations ............................................................................................. 149
32.18 No Personal Liability ............................................................................................. 150
32.19 Interest on Late Payments .................................................................................... 150
32.20 Public Release of Information ............................................................................... 150
32.21 Confidentiality and Public Disclosure Duties ......................................................... 150
32.22 TIFIA Improvements ............................................................................................. 152
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Exhibits
Exhibit 1 Definitions
Exhibit 2 Project ROW Turnover Schedule & Project ROW Plans
Exhibit 3 Authority Obtained Governmental Approvals
Exhibit 4 Hazardous Materials Baseline Report
Exhibit 5 Calculation of Handback Amounts
Exhibit 6 Compensation on Termination
Exhibit 7 Non-Compliance Points Tables
Exhibit 8 Payment Mechanism
Exhibit 9 [NOT USED]
Exhibit 10 Insurance Coverage Requirements
Exhibit 11-A Form of Disputes Review Board Agreement
Exhibit 11-B Disputes Review Board Procedures
Exhibit 12 Initial Designation of Authorized Representatives
Exhibit 13 Geotechnical Reports
Exhibit 14 Monthly Performance Report
Exhibit 15 Certain Public Policy Requirements
Exhibit 16 [NOT USED]
Exhibit 17 Additional Federal Requirements
Exhibit 18 Utility Data
Exhibit 19 Third-Party Agreements
Exhibit 20 Confidentiality and Public Disclosure
Exhibit 21 Requirements and Provisions for Work
Exhibit 22 [NOT USED]
Exhibit 23 Developer Financing Arrangements
Exhibit 24 Extra Work Costs
Forms and Appendices
Form 1 Form of Direct Agreement Form 2 Form of Authority General Counsel's Legal Opinion Form 3 Form of D&C Direct Agreement Form 4 Form of Financial Model Form 5 Form of Closing Security
Appendix 1 Developer’s Proposal Commitments Appendix 2 List of Equity Members, Qualified Investors and Related Entities
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THE GOETHALS BRIDGE REPLACEMENT PROJECT
PROJECT AGREEMENT
This PROJECT AGREEMENT dated as of August 30, 2013 (this “Agreement”) is entered into by and between:
(a) The Port Authority of New York and New Jersey, a municipal corporate instrumentality and political subdivision of the States of New York and New Jersey, created and existing by virtue of the Compact of April 30, 1921, made by and between the two States, and thereafter consented to by the Congress of the United States (the “Port Authority” or “Authority”); and
(b) NYNJ Link Developer LLC, a Delaware limited liability company (“Developer”).
The Authority and Developer are hereinafter sometimes referred to individually as a “Party” and collectively as the “Parties”.
BACKGROUND
(a) The Goethals Bridge opened on June 29, 1928 and connects Elizabeth, New Jersey to Staten Island, New York. The Goethals Bridge is currently operated by the Authority and forms a key part of the regional transportation network.
(b) The Authority wishes to replace the Existing Bridge in its entirety with a new Goethals Bridge (the “Replacement Bridge”) through a public-private partnership project, as contemplated herein. This project will consist of the development, design, construction, financing, and maintenance of the Replacement Bridge, the demolition and removal of the Existing Bridge and all associated work products and activities related thereto, as more fully described herein (collectively, the “Project”).
(c) In October 2010, the Authority issued a Request for Qualifications (collectively with all subsequently issued addenda thereto, the “RFQ”) regarding a proposed future solicitation for the Project.
(d) In June 2011, pursuant to the process outlined in the RFQ, the Authority selected three (3) respondents to be “Prequalified Teams” and “Proposers” that would be eligible to submit proposals in response to the Request for Proposals issued by the Authority based on their respective financial and technical qualifications as detailed in their responses to the RFQ.
(e) In April 2012, the Authority issued the Request for Proposals to such Prequalified Teams, such issuance was comprised of various documents and addenda thereto, including a form of this Agreement (collectively, the “RFP”).
(f) In May 2013, pursuant to the evaluation process outlined in the RFP, the Authority selected Developer as the “Successful Proposer” under the RFP. The Authority’s decision was based on its overall evaluation of the proposals received from the Proposers and the Authority’s conclusion that the Proposal sufficiently satisfied all quality criteria required by the RFP and offered the most advantageous price for the Project.
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(g) On April 24, 2013, the Authority’s Board of Commissioners issued the Goethals Bridge Modernization Program Project Authorization which authorizes the Authority, amongst other things, to advance the implementation and delivery of the replacement of the Goethals Bridge as a public-private partnership project and enter into this Agreement.
NOW, THEREFORE, in consideration of the sums to be paid by the Authority to Developer, the Works to be financed and performed by Developer and the covenants and agreements set forth herein, the Parties hereby agree as follows:
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ARTICLE 1. DEFINITIONS; PROJECT DOCUMENTS
1.1 Definitions; Construction and Interpretation of Agreement
1.1.1 Definitions for all capitalized terms used in this Agreement are contained in Exhibit 1 (Definitions) hereto. If any such terms are used in any other Project Document, unless expressly provided otherwise, they shall have the same respective meanings therein as defined herein.
1.1.2 The language in all parts of this Agreement shall in all cases be construed simply, as a whole and in accordance with its fair meaning and not strictly for or against any Party. The Parties hereto acknowledge and agree that this Agreement has been prepared jointly by the Parties and has been the subject of arm’s length and careful negotiation over a considerable period of time, that each Party has been given the opportunity to independently review this Agreement with legal counsel, and that each Party has the requisite experience and sophistication to understand, interpret and agree to the particular language of the provisions hereof. Accordingly, in the event of an ambiguity in or Dispute regarding the interpretation of this Agreement, this Agreement shall not be interpreted or construed against the Party preparing it, and instead other applicable rules of interpretation and construction shall be utilized.
1.1.3 Any references to any covenant, condition, obligation and/or undertaking “herein,” “hereunder” or “pursuant hereto” (or language of like import) mean, refer to and include the covenants, conditions, obligations and undertakings existing in this Agreement and any Exhibits, Forms, Appendices, addenda, attachments or other documents affixed to or expressly incorporated by reference in this Agreement. The words “herein”, “hereof” and “hereunder” and any other words of similar import shall be construed to refer to this Agreement in its entirety and not to any particular provision of this Agreement. All terms defined in this Agreement shall be deemed to have the same meanings in all Exhibits, Forms, Appendices, addenda, attachments or other documents affixed to or expressly incorporated by reference in this Agreement, unless the context thereof clearly requires the contrary. All references to this Agreement, the Project Agreement or any other agreement shall include all Exhibits, Forms, Appendices, addenda, attachments or other documents affixed to or expressly incorporated herein or therein by reference. Unless expressly provided otherwise, all references to Articles, Sections, subsections, clauses, Exhibits, Forms and Appendices refer to the Articles, Sections, subsections, clauses, Exhibits, Forms and Appendices set forth in or attached to this Agreement, as applicable. Unless otherwise stated in this Agreement or the other Project Documents, words which have well-known technical or construction
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industry meanings are used in this Agreement or the other Project Documents in accordance with such recognized meanings. All references to a subsection or clause “above” or “below” refer to the denoted subsection or clause within the Section in which the reference appears. Wherever the word “including,” “includes” or “include” is used in the Project Documents, it shall be deemed to be followed by the words “without limitation”. In the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including” and the words “to” and “until” mean “to but excluding”.
1.1.4 As used in this Agreement and as the context may require, (a) the singular includes the plural and vice versa, and the masculine gender includes the feminine and vice versa; (b) any definition of or reference to any agreement, instrument or other document shall be construed as referring to such agreement, instrument or other document as amended, supplemented or otherwise modified from time to time (subject to any restrictions on such amendments, supplements or modifications set forth herein); and (c) any reference to a Person shall be construed to include such Person’s successors and assigns.
1.1.5 Portions of the Project Documents are written in active voice, imperative mood. In sentences using the imperative mood, unless otherwise specifically stated, the subject “Developer,” is implied, and it is understood Developer shall perform such work, comply with the requirements of, furnish such material, or take such action. The word “shall” is also implied, and when implied or stated, is to be considered mandatory and, unless otherwise specifically stated, to pertain to requirements or actions of Developer.
1.1.6 Unless indicated to the contrary, all determinations, consents or approvals of the Authority shall not be unreasonably withheld or delayed.
1.2 Project Documents; Order of Precedence
1.2.1 In the event of any conflict, ambiguity or inconsistency between any terms or provisions of this Agreement, the order of precedence, from highest to lowest, shall, except as provided otherwise in this Section 1.2 (Project Documents; Order of Precedence) be as follows:
1.2.1.1 the main body of this Agreement;
1.2.1.2 the Exhibits to this Agreement other than Appendix 1 (Developer’s Proposal Commitments); and
1.2.1.3 the Developer’s Proposal Commitments set out in Appendix 1 (Developer’s Proposal Commitments).
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1.2.2 In the event of any conflict, ambiguity or inconsistency between the General Conditions, the Applicable Standards and/or the Requirements and Provisions for Work (excluding the General Conditions and the Applicable Standards), the order of precedence, from highest to lowest, shall, except as provided otherwise in this Section 1.2 (Project Documents; Order of Precedence) be as follows:
1.2.2.1 General Conditions;
1.2.2.2 the Requirements and Provisions for Work (excluding the General Conditions and the Applicable Standards); and
1.2.2.3 the Applicable Standards;
1.2.3 In the event of any conflict, ambiguity or inconsistency between or among any of the provisions in this Agreement, or between two or more Project Documents having the same order of precedence, the more stringent standard will prevail.
1.2.4 If the Developer’s Proposal Commitments include statements, terms, concepts or designs that can reasonably be interpreted as offering to provide higher quality items than otherwise required by the other Project Documents or to perform services or meet standards in addition to or better than those otherwise required, then Developer’s obligations hereunder shall include compliance with all such statements, terms, concepts and designs as set forth in the Developer's Proposal Commitments.
1.2.5 Additional or supplemental details or requirements in a lower priority Project Document shall be given effect except to the extent they irreconcilably conflict with requirements, provisions and practices contained in the higher priority Project Document.
1.2.6 Notwithstanding the order of precedence among Project Documents set forth in this Section 1.2 (Project Documents; Order of Precedence), in the event of a conflict among the D&C Standards, the provisions of Section 30.8 (Chief Engineer’s Jurisdiction) shall apply.
1.3 Responsibility for Related Parties
Subject to the provisions of this Agreement, in respect of Developer's performance or non-performance of the Project Documents, Developer shall be responsible for the acts and omissions of the Developer-Related Entities as if they were the acts and omissions of Developer. Developer shall be responsible for the selection of and pricing by any Contractor.
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ARTICLE 2. EFFECTIVENESS, CONDITIONS PRECEDENT TO CLOSING
2.1 Immediately Effective Articles
The following Articles and Sections shall come into effect on and from the date of this Agreement: 1 (Definitions; Project Documents); 2 (Effectiveness; Conditions Precedent to Closing); 3.3 (Disclosed Information); 3.4 (Collaborative Nature of the Project); 4 (Review of Submittals); 5.1.1.2 (Governmental Approvals; Responsibility); 7.6 (Advance Construction Work), 15 (Change in Ownership); 16 (Financial Model Adjustments); 17 (Refinancing); 20 (Developer Indemnity); 21 (Representations and Warranties); 26 (Maintenance and Inspection of Records); 29 (Assignment and Transfer; Fundamental Changes); 30 (Dispute Resolution Procedures); 31 (Sole Remedy and Liabilities); and 32 (Miscellaneous) (the “Immediately Effective Articles”).
2.2 Conditions Precedent to the Commercial Closing Date
The occurrence of the Commercial Closing Date is subject to (i) the Closing Security having been executed and delivered to the Authority and having become fully effective in accordance with its terms and (ii) Developer’s compliance with Sections 1.3.1 and 1.4.2 of Attachment GC6 to the General Conditions.
2.3 Financial Closing Date
All the provisions of this Agreement other than the Immediately Effective Articles shall come into effect on the Financial Closing Date.
2.4 Conditions Precedent to the Financial Closing Date
The occurrence of the Financial Closing Date is subject to the fulfillment of the following conditions:
2.4.1 Project Documents. Each of the following shall have been executed by the relevant parties thereto (other than the Authority, as applicable) and be in form and substance approved by the Authority (such approval only to be capable of being withheld by the Authority if the relevant document is materially inconsistent with the relevant term sheet included with the Developer's Financial Proposal) and a copy of each such document, certified by Developer as being true, complete and accurate, shall have been delivered to the Authority:
2.4.1.1 each Key Contract;
2.4.1.2 the D&C Direct Agreement;
2.4.1.3 the Construction Security (if any);
2.4.1.4 the Direct Agreement;
2.4.1.5 the Financing Documents; and
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2.4.1.6 the Equity Members Funding Agreements.
2.4.2 Authority documents: The Authority shall have executed each of the documents specified in Section 2.4.1 to which it is a party.
2.4.3 Financial Model. Developer shall have delivered to the Authority, no later than one (1) Business Day prior to the anticipated date for Financial Close, unrestricted electronic versions of the Financial Model in the form attached hereto as Form 4 (Form of Financial Model), which version incorporates any amendments agreed between the date of this Agreement and such date of delivery of the Financial Model, together with any documentation necessary or reasonably requested by the Authority to operate the Financial Model.
2.4.4 Financial Close. Developer shall have delivered to the Authority a certificate confirming that Financial Close has occurred.
2.4.5 Corporate Documents. Developer shall have delivered to the Authority such documents and certificates as the Authority may reasonably request evidencing the organization, existence and good standing of Developer and Borrower, the authorization of the entry by Developer or Borrower, as the case may be, into the Project Documents and any Key Contracts to which it is a party, all in form and substance satisfactory to the Authority.
2.4.6 Developer Opinions. Developer shall have provided to the Authority legal opinions, addressed to the Authority, from external legal, or in respect of the opinion contemplated in Section 2.4.6.4 below, internal, counsel as to:
2.4.6.1 organization and existence of Developer and Borrower;
2.4.6.2 due authorization and execution of the Project Documents;
2.4.6.3 enforceability of, no violation of law or Developer's or Borrower’s organizational documents, as the case may be, with respect to, each Project Document and Key Contract that Developer or Borrower are parties to; and
2.4.6.4 the absence of material litigation,
in each case in form and substance reasonably satisfactory to the Authority.
2.4.7 Authority Opinions. The Authority shall have provided to Developer a legal opinion from the general counsel to the Authority, addressed to Developer, the Lenders and the Equity Members, in substantially the form attached hereto as Form 2 (Form of Authority General Counsel's Legal Opinion).
2.4.8 Representations and Warranties of Developer. The representations and warranties of Developer set out in Section 21.1 (Developer
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Representations and Warranties) of this Agreement shall be true and correct when made and at the Financial Closing Date (other than any such representation and warranty expressed to be made as of a specified date in which case it shall be true and correct in all material respects as of such specified date).
2.4.9 Representations and Warranties of the Authority. The representations and warranties of the Authority set out in Section 21.2 (Authority Representations and Warranties) of this Agreement shall be true and correct when made and at the Financial Closing Date (other than any such representation and warranty expressed to be made as of a specified date in which case it shall be true and correct in all material respects as of such specified date).
2.4.10 Reimbursement. The Authority shall have received from Developer $2,800,000 in same day cleared funds as reimbursements for the Authority's costs, or evidence satisfactory to the Authority (acting reasonably) that these funds will be provided from the proceeds of the first utilization by Developer of the Project Debt on or about the Financial Closing Date.
2.4.11 Required Equity Investment. Developer shall have provided evidence to the Authority's reasonable satisfaction that the Construction Equity Ratio between the Financial Closing Date and the D&C Work Completion Date shall be greater than or equal to ten percent (10%).
2.4.12 Commercial Closing Date. The Commercial Closing Date shall have occurred.
2.4.13 Disclosure. The Authority shall have cooperated with Developer in providing disclosure information to Developer about the Authority and shall have provided to Developer customary certifications and opinions and executed an agreement with respect to any continuing disclosure requirements that Borrower is required to comply with in accordance with any Applicable Law.
2.4.14 TIFIA Improvements. The Parties have finally agreed upon any amendments to the Financial Model required to reflect the incremental benefit of any TIFIA Improvement in accordance with Section 32.22 (TIFIA Improvements), to the extent applicable.
2.5 Achievement of or Failure to Achieve the Financial Closing Date
2.5.1 The Parties agree to comply with their respective obligations set forth in the sections of the ITP referred to below, and such sections of the ITP are hereby incorporated into this Agreement mutatis mutandis.
2.5.2 Developer shall deliver to the Authority, on the Business Day following Financial Close, unrestricted electronic versions of the Financial Model in the form attached hereto as Form 4 (Form of Financial Model), which version incorporates any amendments agreed between the date
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of this Agreement and the date of Financial Close (including any revision to the Base DFA Payment pursuant to Section 7.2.2(b)(iii) of the ITP), together with the books and documents setting forth all assumptions, calculations and methodology used in the preparation of the Financial Model and any other documentation necessary or reasonably requested by the Authority to operate the Financial Model.
2.5.3 Developer shall have delivered to the Authority, on the date following Financial Close, proposed revisions (each a "Project Agreement Amendment") to the Project Agreement, which Project Agreement Amendments will reflect any adjustments or amendments which have been accepted or agreed, as applicable, by the Authority and/or Developer in accordance with Section 7 of the ITP, including the replacement of the Financial Model attached hereto as Form 4 (Form of Financial Model) with the version delivered pursuant to Section 2.5.2.
2.5.4 Upon the satisfaction of each of the Financial Closing Conditions Precedent and receipt of the Financial Model and Project Agreement Amendments pursuant to Sections 2.5.2 and 2.5.3, respectively, (unless otherwise agreed by the Parties) (i) the Authority and Developer shall sign a certificate specifying the Financial Closing Date, (ii) the Authority shall return the Closing Security to Developer within 10 days, and (iii) the contents of each Project Agreement Amendment shall be incorporated into this Agreement by way of a written amendment.
2.5.5 If any Developer Condition Precedent is not satisfied or waived in writing by the Authority on or before the Financial Closing Deadline, the Authority shall have the right to:
2.5.5.1 terminate this Agreement in its entirety, other than as provided for in Section 2.5.8, by written notice to Developer with immediate effect; and/or
2.5.5.2 draw and retain the full amount of the Closing Security as the sole remedy of the Authority against Developer hereunder.
2.5.6 The right of the Authority to draw upon the Closing Security under Section 2.5.5.2 above is not intended to constitute a penalty, but is intended to be, and shall constitute, liquidated damages to compensate the Authority for the cost of forgoing alternative opportunities and for other costs incurred by the Authority in reliance upon Developer's agreement to enter into the transactions contemplated hereby. The Parties acknowledge that it is difficult to ascertain the amount of actual damages that would be incurred by the Authority in such circumstances, and that such liquidated damages are a reasonable estimate of the presumed actual damages that would be incurred by the Authority.
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2.5.7 In the event that any of the circumstances set forth in Section 7.2.3(a)(i) or (ii) of the ITP (Mitigation of Key Financial Events) exists, then the Authority shall have the right, in its sole discretion, by written notice to Developer, to make an election under either:
2.5.7.1 subject to Section 7.2.3(c) (Mitigation of Key Financial Events) of the ITP, Section 7.2.3(a)(x) (Mitigation of Key Financial Events) of the ITP; or
2.5.7.2 one or more of the options set forth in Section 7.2.3(a)(y) (Mitigation of Key Financial Events) of the ITP.
2.5.8 To the extent that the Authority makes an election pursuant to Section 2.5.7.1 above, then this Agreement shall terminate in its entirety, other than as provided for in Section 2.5.10, by written notice to Developer with immediate effect. To the extent that the Authority makes an election pursuant to Section 2.5.7.2 above, then the Parties shall comply with Section 7.2.3(b) (Mitigation of Key Financial Events) of the ITP.
2.5.9 If each Developer Condition Precedent (other than the conditions referred to in Sections 2.4.4, 2.4.8 (to the extent it requires that representations and warranties be correct as at the Financial Closing Date) and 2.4.10) has been satisfied and any Authority Condition Precedent is not satisfied (unless otherwise agreed by the Parties) on or before the Financial Closing Deadline, or (ii) any of the circumstances set forth in Section 7.2.3(d) (Mitigation of Key Financial Events) of the ITP exist, then Developer shall have the right to terminate this Agreement in its entirety by written notice to the Authority with immediate effect. Within ten (10) days following receipt of such notice in accordance with this Agreement, and so long as the Authority is not disputing pursuant to Article 30 (Dispute Resolution Procedures) whether Developer has the right to terminate this Agreement, the Authority shall return the Closing Security to Developer.
2.5.10 If this Agreement terminates pursuant to this Section 2.5, neither Party shall have any obligation or liability to the other Party, except:
2.5.10.1 if the Agreement is terminated pursuant to Section 2.5.5, as set out in Section 2.5.5.2 or Section 2.5.11;
2.5.10.2 in respect of any antecedent breach of the Immediately Effective Articles; or
2.5.10.3 in respect of Section 32.21 (Confidentiality and Public Disclosure Duties), which shall remain in full force and effect notwithstanding the non-satisfaction of the Financial Closing Conditions Precedent.
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2.5.11 Developer shall be entitled to receive a Payment for Work Product (as defined in the ITP) of $2,000,000 if:
2.5.11.1 the Authority terminates this Agreement pursuant to Section 2.5.7.1; or
2.5.11.2 Developer terminates this Agreement pursuant to Section 2.5.9.
2.6 Term
The term of this Agreement shall commence on the date of this Agreement and shall end on the earlier of (a) the last day of the Term or (b) the Early Termination Date.
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ARTICLE 3. GRANT OF RIGHT
3.1 Grant of Right
3.1.1 Subject to the terms and conditions of the Project Documents, the Authority hereby grants to Developer the exclusive right, and Developer accepts such right and acknowledges its obligation, to (a) develop, design, construct and finance the Project, and (b) operate and maintain the Project in accordance with the terms of the Project Documents.
3.1.2 It is the express intent and agreement of the Parties that this Agreement shall in no way be deemed to constitute a lease to Developer (whether an operating lease or a financing lease) or, except as expressly provided herein, a grant (regardless of the characterization of such grant, including by way of easement, purchase option, conveyance, lien or mortgage), in each case, of any right, title, interest or estate in the Project, the Project Right of Way, or of any assets incorporated into, appurtenant to, or in any way connected with the Project. It is the express agreement and intent of the Parties that Developer shall not be treated as or deemed to be the legal or equitable owner of the Project ROW for any purpose. Developer’s rights hereunder are derived solely from its status as a Developer and independent contractor as described in this Agreement, and not as a tenant, lessee, easement holder, optionee, lienor, mortgagee, purchaser or owner of any other interest in real property. The payments to be received by Developer under this Agreement are not payments in the nature of rent, fees with respect to real property or purchase price of real property.
3.2 Access to Project Right of Way
3.2.1 For the purposes of performing its obligations under the Project Documents only, Developer shall, subject to the terms and conditions of the Project Documents, have the right to enter onto (and engage in the activities contemplated herein on) the Project Right of Way.
3.2.2 The Authority will, at its own cost, obtain and provide Developer with Access to each part of the Project Right of Way no later than the applicable dates set out in Exhibit 2 (Project ROW Turnover Schedule & Project ROW Plans).
3.2.3 The Authority will employ all commercially reasonable efforts to arrange for Developer’s early entry to individual parcels of the Project ROW for the purposes only of making surveys, inspections, examinations, soil tests, or other activities as approved by the Authority. Developer shall provide written notice to request entry,
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stating purpose, applicable Project ROW parcel(s), and date on which entry is desired at least fourteen (14) Days prior to that date.
3.2.4 The Authority shall not in any way materially or unduly interfere with Developer in the performance of its obligations under the Project Documents in accordance with the terms of the Project Documents (having regard always to the interactive nature of the activities of the Authority and of Developer and to the use of the Project Facilities and any other operations or activities carried out by the Authority in the Project Right of Way in order to perform its functions).
3.3 Disclosed Information
3.3.1 The Authority does not give any warranty or undertaking as to the relevance, completeness, accuracy or fitness for any purpose of any of the Disclosed Information. The Disclosed Information is for information only, and is not mandatory or binding on Developer. Developer is not entitled to rely on the Disclosed Information as accurately describing existing conditions, presenting design, engineering or maintenance solutions or directions, or defining means or methods for complying with the requirements of the Project Documents, Governmental Approvals or Applicable Law.
3.3.2 Subject to the terms of the Project Documents, neither the Authority nor any of its agents or employees shall have any liability to Developer in respect of any:
3.3.2.1 inaccuracy, omission, unfitness for any purpose or inadequacy of any kind whatsoever in the Disclosed Information;
3.3.2.2 failure to make available to Developer any materials, documents, drawings, plans or other information relating to the Project; or
3.3.2.3 causes of action, claims or Losses whatsoever suffered by any Developer-Related Entity by reason of any use of information contained in, or any action or forbearance in reliance on, the Disclosed Information.
3.3.3 Developer shall, subject to the terms of the Project Documents, be deemed to have:
3.3.3.1 satisfied itself as to the assets to which it will receive rights (including each part of the Project Right of Way and, where applicable, any existing structures, Utilities or work on, over or under such part of the Project Right of Way) and the nature and extent of the risks assumed by it under the Project Documents;
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3.3.3.2 satisfied itself as to the nature of the geotechnical, climatic, hydrological, ecological, environmental and general conditions of each part of the Project Right of Way, the nature of the ground and subsoil, the form and nature of each part of the Project Right of Way, the risk of injury or damage to property near to or affecting each part of the Project Right of Way and to occupiers of such property, the nature of the materials (whether natural or otherwise) to be excavated, and the nature of the design, work, materials, plant, machinery or equipment necessary for the purpose of carrying out its obligations under the Project Documents; and
3.3.3.3 satisfied itself as to:
(a) the access to and through each part of the Project Right of Way and the adequacy of the Access in respect thereof for the purpose of carrying out its obligations under the Project Documents;
(b) the precautions and times and methods of working necessary to prevent or (if it is not possible to prevent) to mitigate or reduce, any nuisance or interference, whether public or private, being caused to any third parties, including the Project Third Parties; and
(c) the scope of the Hazardous Materials Baseline Report, the Geotechnical Reports and the Utility Data.
3.3.4 Developer acknowledges and confirms that it has not entered into this Agreement on the basis of, and has not relied upon, any statement or representation (whether negligent, innocent or otherwise) or warranty or other provision (in each case whether oral, written, express or implied) made or agreed to by the Authority or any of its agents or employees, except those expressly repeated or referred to in the Project Documents and the only remedy or remedies available in respect of any misrepresentation or untrue statement made to it shall be any remedy available under this Agreement.
3.3.5 Subject to any rights that Developer has pursuant to the terms of the Project Documents, Developer shall not in any way be relieved from any obligation under the Project Documents nor shall it be entitled to claim against the Authority on grounds that any information, whether obtained from the Authority or otherwise (including information made available by the Authority), is incorrect or insufficient and shall make its own enquiries as to the accuracy and adequacy of that information.
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3.3.6 Nothing in this Section 3.3 (Disclosed Information) shall:
3.3.6.1 prejudice Developer’s express rights and remedies under or pursuant to the Project Documents; or
3.3.6.2 exclude any liability which the Authority or any of its agents or employees would otherwise have to Developer in respect of any statements made fraudulently or in bad faith or constituting willful misconduct.
3.4 Collaborative Nature of the Project
Each Party agrees to cooperate, at its own expense, with the other Party in the fulfillment of the purposes and intent of this Agreement. Neither Party shall be under any obligation to perform any of the other Party’s obligations under the Project Documents.
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ARTICLE 4. REVIEW OF SUBMITTALS
4.1 Submittals
4.1.1 General
The terms and procedures set forth in this Section 4.1 (Submittals) shall govern all Submittals to the Authority pursuant to the Project Documents.
4.1.2 No D&C Work Prior to Review
Developer shall not commence or permit the commencement of any D&C Work that is the subject of, governed by or dependent upon a Reviewable Submittal until it has submitted the relevant Reviewable Submittal to the Authority and:
4.1.2.1 in respect of a Discretionary Submittal, the Authority has provided its approval or consent to the relevant Discretionary Submittal;
4.1.2.2 in respect of a Non-Discretionary Submittal:
(a) within seven (7) days of receiving written notice from Developer that the Authority failed to respond to the Non-Discretionary Submittal within the initial period required under the Project Documents, the Authority fails to respond to such Submittal;
(b) the Authority approves or consents to such Non-Discretionary Submittal in accordance with this Article 4 (Review of Submittals); or
(c) if the Authority comments, objects or rejects the relevant Submittal in the manner contemplated in this Article 4 (Review of Submittals), the Authority approves or consents to any re-submission of that Non-Discretionary Submittal in accordance with this Article 4 (Review of Submittals); or
4.1.2.3 in respect of an R&C Submittal, the time period during which the Authority is entitled to raise comments has expired, whether or not the Authority made comments, save that in the event that the Authority made comments and it is subsequently determined that the Authority’s comments were permitted under Section 4.1.3.1, Developer shall forthwith undo, modify or remove from the Project Right of Way and replace (in a manner complying with this Agreement) the relevant parts of the Works to reflect the Authority’s comments.
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For the avoidance of doubt, nothing in this Section 4.1.2 shall, in and of itself, require Developer to have been issued NTP 1 prior to commencing any Design Work or taking any steps required to obtain any Governmental Approvals including, without limitation, communicating with the relevant Governmental Entities.
4.1.3 Grounds for Objection and/or Comment
4.1.3.1 In respect of any Submittal that is not a Discretionary Submittal, the Authority may comment on or withhold its approval or consent to that Submittal, but only to the extent that:
(a) the Work that is the subject of the Submittal fails to comply with any applicable covenant, condition, requirement, term or provision of the Project Documents;
(b) the Work that is the subject of the relevant Submittal is not to a standard equal to or exceeding Best Management Practice; or
(c) Developer has not provided all content or information required in respect of the Submittal; provided, that Developer shall have an opportunity to re-submit the Submittal with the required content or information.
4.1.3.2 Developer shall respond to all of the Authority’s comments and objections to a Submittal provided in accordance with the terms hereof and, except as provided below, make modifications to the Submittal as necessary to fully reflect and resolve all such comments and objections, in accordance with the review processes set forth in this Section 4.1.3 (Grounds for Objection and/or Comment). Developer acknowledges that the Authority may provide comments and objections, which reflect concerns regarding interpretation or its preferences or which otherwise do not directly relate to grounds set forth in Section 4.1.3.1. Developer agrees to use its Reasonable Efforts to accommodate or otherwise resolve any such comments or objections through the review processes described in this Section 4.1 (Submittals). If Developer does not accommodate or otherwise resolve any comment or objection, Developer shall deliver to the Authority within thirty (30) days after receipt of the Authority’s comments or objections, a written explanation as to why modifications based on such comment or objection are not required or why the relevant comment or objection in relation to the Submittal does not relate (directly or indirectly) to any of the grounds set forth in Section 4.1.3.1 (as applicable). The
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explanation shall include the facts, analyses and reasons that support the conclusion.
4.1.3.3 If Developer fails to notify the Authority within such time period, then such failure shall constitute Developer’s agreement to make all changes necessary to accommodate and resolve the comment or objection and full acceptance of all responsibility for such changes at Developer’s risk.
4.1.3.4 After the Authority receives Developer’s explanation as to why the modifications are not required or why the relevant comment or objection in relation to the Submittal does not relate (directly or indirectly) to any of the grounds set forth in Section 4.1.3.1 (as applicable) as provided in Section 4.1.3.2, the Parties shall attempt in good faith to resolve the Dispute. If they are unable to resolve the Dispute, the Dispute shall be resolved according to Article 30 (Dispute Resolution Procedures), provided, however, that Developer shall not be required to implement any comments or objections that do not relate (directly or indirectly) to any of the grounds set forth in Section 4.1.3.1.
4.1.4 Limitations on Developer’s Right to Rely
4.1.4.1 Nothing in this Article 4 (Review of Submittals) (including any act or omission of the Authority pursuant to this Article 4 (Review of Submittals)) shall:
(a) relieve Developer from the performance of its obligations under the Project Documents;
(b) constitute acceptance by the Authority that the Work satisfies the requirements of the Project Documents; or
(c) prevent the Authority from subsequently raising an objection or comment on a Submittal in accordance with this Article 4 (Review of Submittals) if the same objection and/or comment was not made by the Authority on a previous Submittal.
4.1.5 Time Periods
4.1.5.1 Except as otherwise provided in this Section 4.1.5 (Time Periods), whenever the Authority is entitled to review and comment on, or to affirmatively approve, a Submittal, the Authority shall, as soon as practicable within a period of up to 21 days after the date the Authority receives an accurate and complete Submittal in conformance with the Project Documents, review, comment upon, or approve, as the case may be, the Submittal. The Authority’s review period
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in respect of any re-submission of any Submittal shall, unless provided otherwise in the Project Documents, be fourteen (14) days; provided, that this reduced period of fourteen (14) days for Authority review of a re-submission shall not apply if the reason for the re-submission was due to a rejection in accordance with the terms hereof of a prior Submittal because it was incomplete.
4.1.5.2 If any provision of the Project Documents expressly provides a longer or shorter period for the Authority to act, such period shall take precedence over the time period set forth in Section 4.1.5.1.
4.1.5.3 Developer shall schedule, prioritize and coordinate all Submittals to allow an efficient and orderly Submittal review process. To the extent that Developer exceeds any of the limits on Submittals set forth in Section 2.4.9.12 of the Requirements and Provisions for Work, the Parties shall (taking into account the number and nature of any other Submittals that the Authority may concurrently be in the process of reviewing) agree in good faith to a reasonable time period for the review by the Authority of the Submittals that exceed such limit.
4.1.5.4 The applicable period for the Authority to act on any Submittals received during an Increased Monitoring Period shall automatically be extended by 10 days.
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ARTICLE 5. GOVERNMENTAL APPROVALS; UTILITIES; MASTER UTILITY AGREEMENTS AND
THIRD-PARTY AGREEMENTS
5.1 Governmental Approvals
5.1.1 Responsibility
5.1.1.1 Except in respect of Authority Obtained Governmental Approvals and subject to the terms of the Project Documents, Developer shall be solely responsible for securing and obtaining all Governmental Approvals (including any revision, modification, amendment, supplement, renewal or extension thereof), required in connection with its performance of this Agreement.
5.1.1.2 Without prejudice to Section 5.1.2.2, the Authority shall obtain for Developer the benefit of each of the Authority Obtained Governmental Approvals so as to ensure that Developer shall have the use and benefit of the Authority Obtained Governmental Approvals no later than the relevant date set forth in Exhibit 3 (Authority Obtained Governmental Approvals).
5.1.1.3 Notwithstanding Section 5.1.1.1, Developer shall be responsible for obtaining amendments or modifications to any Authority Obtained Governmental Approval necessary to reflect Developer’s Final Design and/or means and methods should the Final Design and/or means and methods deviate from the basis upon which the Authority Obtained Governmental Approval was initially granted by the Governmental Entity. In the event that any modifications are not permitted by the Governmental Entity, Developer shall be responsible, at its own risk of delay and cost, for revising its Final Design and/or means and methods as necessary to satisfy the requirements and conditions of the relevant Governmental Entity.
5.1.1.4 Developer shall at all times perform its obligations under this Agreement in compliance with all Governmental Approvals.
5.1.1.5 Developer shall promptly deliver to the Authority true and complete copies of all applications for Governmental Approvals and new or amended Governmental Approvals obtained by it.
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5.1.2 Cooperation with respect to Governmental Approvals
5.1.2.1 The Authority will cooperate with Developer in relation to any application by Developer for a Governmental Approval and will, at the reasonable request of Developer and at Developer’s costs, and where necessary to obtain, renew, replace, extend the validity of, or arrange necessary amendments to any Governmental Approval:
(a) execute such documents as can only be executed by the Authority;
(b) make such applications, either in its own name or jointly with Developer, as can only be made by the Authority or in joint names of Developer and the Authority, as the case may be; and
(c) attend meetings with appropriately qualified staff and cooperate with approval bodies as reasonably requested by Developer,
in each case within a reasonable period of time of being requested to do so by Developer.
5.1.2.2 Developer shall take all steps and perform all acts to facilitate the application by the Authority for any Authority Obtained Governmental Approvals, at the times and in the manner reasonably requested by the Authority, including providing supporting drawings, data and technical information and the filing by Developer of appropriate applications for the relevant Authority Obtained Governmental Approvals with the relevant Governmental Entity.
5.1.2.3 Any wetland and open water mitigation measures to be undertaken by the Authority pursuant to Section 7.4.2.3.4 of the Requirements and Provisions for Work shall be carried out by the Authority in a manner that will not cause any delay or additional cost to Developer.
5.2 Utilities
5.2.1 Developer’s General Responsibilities
Subject to the terms of this Agreement, Developer shall be responsible for coordinating and causing all Utility Adjustments necessary in order to comply with its obligations under the Project Documents. Developer shall ensure that all Utility Adjustments, whether performed by Developer or a Utility Owner, comply with the Project Documents and applicable Utility Adjustment Agreement.
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5.2.2 Utility Adjustment Agreements
The Authority shall be responsible for negotiating, preparing and executing each Master Utility Agreement. Developer shall be responsible for negotiating, preparing and executing Utility Adjustment Agreements to accomplish the Utility Adjustments in accordance with the Project Documents and each relevant Master Utility Agreement. The Authority agrees to cooperate as reasonably requested by Developer in preparing, and to provide its reasonable assistance in good faith in connection with the negotiation of, any such Utility Adjustment Agreements and the resolution of any disputes with the Utility Owners in connection with the Utility Adjustment Agreements. All Utility Adjustment Agreements shall be: (a) reasonably acceptable to the Authority in form and substance; (b) consistent with the requirements of the Project Documents and Master Utility Agreement related to the applicable Utility Adjustment; and (c) submitted to the Authority as provided in Section 6 (Utilities) of the Requirements and Provisions for Work.
5.2.3 Utility Adjustment Costs
5.2.3.1 Developer is responsible for all costs of the Utility Adjustment Work. Developer shall fulfill this responsibility either by performing the Utility Adjustment Work itself at its own cost, or by reimbursing the Utility Owner for the Utility Adjustment Work. Developer is solely responsible for collecting directly from the Utility Owner any reimbursement due for other costs for which the Utility Owner is considered responsible under Applicable Law or the relevant Utility Adjustment Agreement.
5.2.3.2 Subject to the terms of the Project Documents, if for any reason Developer is unable to collect any amounts due to Developer from any Utility Owner, then (a) the Authority shall have no liability for such amounts, (b) Developer shall have no right to collect such amounts from the Authority or to offset such amounts against amounts otherwise owing from Developer to the Authority, and (c) Developer shall have no right to suspend the Works or to exercise any other remedies against the Authority on account of such failure to pay.
5.2.3.3 For each Utility Adjustment, Developer shall maintain or cause (by way of contract and enforcement thereof) a Utility Owner to maintain cost records in accordance with the recordkeeping and audit requirements of the Project Documents and Applicable Law. Developer shall cause (by way of contract and enforcement thereof) each Utility Owner to provide a complete set of records of the Utility Owner’s costs incurred for any Utility Adjustment Work. All records maintained pursuant to this Section 5.2.3.3 shall be in a format compatible with any related estimates and in sufficient detail for analysis. For both Utility Owner costs and Developer costs, the totals for each cost category shall
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be shown in such manner as to permit comparison with the categories stated on the estimate.
5.2.4 Utility Permit Applications
For reasons unrelated to a Utility Adjustment, it is anticipated that from time to time during the Work, Utility Owners will apply for Utility permits to install new Utilities that would cross or longitudinally occupy those areas of the Project Right of Way that are subject to the Authority’s permitting jurisdiction, or to modify, upgrade, relocate or expand existing Utilities within such areas. For such Utility permit applications pending as of or submitted after the Financial Closing Date, Developer shall, as reasonably requested, assist the Authority in its consideration of each Utility permit application in accordance with the Project Documents. Further, Developer shall (a) make available upon request the most recent Project design information and/or As-Built Documents, as applicable, to the applicants; (b) assist each applicant, as reasonably requested, with information regarding the location of other proposed and existing Utilities; and (c) use Reasonable Efforts to coordinate work schedules with such applicants as appropriate to avoid interference with the Project Working Schedule by their activities.
5.3 Master Utility Agreements and Third-Party Agreements
5.3.1 The Authority shall obtain for Developer the benefit of the Master Utility Agreements and the Third-Party Agreements so as to ensure that Developer shall have the use and benefit of the Master Utility Agreements and the Third-Party Agreements no later than the relevant date set forth in Part A of Exhibit 18 (Utility Data) and Part A of Exhibit 19 (Third-Party Agreements), respectively.
5.3.2 Without prejudice to the rights of the Developer to claim Compensation Events pursuant to Section 12.2 (Compensation Events) hereof and subject to Section 5.3.3 below, Developer shall be responsible for all amounts that become due and payable by the Authority or Developer under the Third Party Agreements in connection with the performance of the Works and shall reimburse the Authority in respect of any such amounts.
5.3.3 Developer shall not be responsible under Section 5.3.2 for any amounts that become due and payable by the Authority or Developer under the Third Party Agreements to the extent that they represent amounts that either relate to or arise from:
5.3.3.1 the occurrence of any Compensation Event including, without limitation, (a) any failure by the Authority to provide Access to the Project Right of Way in accordance with Section 3.2.2, and (b) the discovery of any Undisclosed Utility during the carrying out of the Construction Work or Demolition Work;
5.3.3.2 any claim made against the Authority by a Project Third Party pursuant to an indemnity provision set forth in a Third Party Agreement;
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5.3.3.3 fees, costs or other consideration payable by the Authority in respect of the provision by a Project Third Party of any rights of access or rights of use relating to property or aerial space including, without limitation, any entry permit, easement or right of way; or
5.3.3.4 any costs of complying with the requirements of Item IV of Exhibit B of the Master Utility Agreement with Etown Services and the City of Elizabeth, but only to the extent such costs are in excess of $20,000.
5.3.4 For the avoidance of doubt, no force account estimate provided in any Third Party Agreement shall be construed as a cap or limitation on Developer’s reimbursement obligation under this Section 5.3 and such estimates have been provided to Developer for information purposes only.
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ARTICLE 6. HAZARDOUS MATERIALS
6.1 General Obligations
6.1.1 Subject to the terms of the Project Documents, Developer will be responsible for the management, treatment, handling, storage, monitoring, remediation, removal, transport, and disposal of any Hazardous Materials in, under or on the Project Right of Way during the Term, in each case to the extent required by any Applicable Law, Governmental Entity, Governmental Approvals or the Project Documents.
6.1.2 Before any Remedial Action (other than with respect to a Developer Release of Hazardous Materials) is taken that would inhibit the Authority’s ability to ascertain the nature and extent of the relevant Hazardous Environmental Condition, Developer will afford the Authority the reasonable opportunity to inspect areas and locations that require Remedial Action within a reasonable time period; provided, that in the case of a sudden Hazardous Materials Release, Developer may take the minimum action necessary to stabilize and contain the relevant Hazardous Materials Release without prior notice or inspection, but will immediately notify the Authority of the sudden Hazardous Materials Release and its location; provided, further, that nothing herein shall prevent Developer from complying with Applicable Law or the requirements of any Governmental Entity.
6.1.3 Subject to the terms of the Project Documents, Developer will (without accepting or assuming responsibility under any Applicable Law) be responsible for obtaining and maintaining all Governmental Approvals relating to any Remedial Action and will be solely responsible for compliance with all Governmental Approvals and Applicable Laws concerning or relating to Hazardous Materials in respect thereof. In carrying out any Remedial Action that is the subject of a Compensation Event, Developer will take such steps and actions as the Authority may reasonably require in order to protect and preserve the Authority’s potential claims of contribution and indemnity, statutory or otherwise, against potentially responsible parties, provided that any such steps and actions are not inconsistent with all Applicable Laws and the requirements of the Project Documents and any relevant Governmental Entities or Governmental Approvals.
6.1.4 Subject to the terms of the Project Documents, Developer will bear all costs and expenses of complying with this Article 6 (Hazardous Materials) during the Term.
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6.2 Third Party Claims
6.2.1 To the extent permitted by Applicable Law, the Authority shall indemnify, save, protect and defend Developer and any Developer-Related Entity from any claims, causes of action and Losses initiated, prosecuted, incurred or suffered by the Developer (or such Developer-Related Entity) as a result of or arising out of any Hazardous Materials for which the Authority is deemed to be the generator or arranger pursuant to this Article 6 (Hazardous Materials).
6.2.2 To the extent permitted by Applicable Law, Developer shall indemnify, save, protect and defend the Indemnified Parties from any claims, causes of action and Losses initiated, prosecuted, incurred or suffered by any Indemnified Party as a result of or arising out of any Hazardous Materials for which Developer is deemed to be the generator or arranger pursuant to this Article 6 (Hazardous Materials).
6.3 Generator Status
6.3.1 As between the Authority and Developer, Developer will be deemed the sole generator and arranger under 40 CFR, Part 262 in respect of any Developer Release of Hazardous Materials. Developer agrees to be identified as the sole generator and arranger of such Hazardous Materials on waste manifests and any other documentation submitted to transporters, disposal facilities and any Governmental Entity.
6.3.2 As between the Authority and Developer, the Authority will be deemed the sole generator and arranger under 40 CFR, Part 262 in respect of any Hazardous Materials for which Developer has not agreed to be identified as the generator and arranger pursuant to Section 6.3.1. Subject to Section 6.4 (Management of Hazardous Materials Releases), Authority agrees to be identified as the generator and arranger of such Hazardous Materials on waste manifests and any other documentation submitted to transporters, disposal facilities and any Governmental Entity.
6.4 Management of Hazardous Materials Releases
6.4.1 With respect to any Hazardous Materials Release from a vehicle operating or located within the Project Right of Way or from such vehicle's cargo that occurs at any time after Access has been granted to the relevant part of the Project Right of Way pursuant to the terms of this Agreement, Developer shall use diligent efforts (in consultation with the Authority) to handle disposal of the relevant Hazardous Materials in a manner that does not place either a Developer-Related Entity or the Authority in the position of assuming generator or arranger liability.
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6.4.2 If, notwithstanding Developer's use of diligent efforts in accordance with Section 6.4.1 above, a Developer-Related Entity is unable to avoid generator or arranger liability for the Authority or the Developer-Related Entities with respect to the relevant Hazardous Materials Release and Section 6.3.1 does not apply with respect to such Hazardous Materials Release, the Authority will undertake arranger (and, if necessary, generator) liability under 40 CFR, Part 262 in respect of such Hazardous Materials Release and the provisions of Section 6.2.1 shall apply in respect of such Hazardous Materials Release.
6.4.3 The Authority shall have the exclusive decision-making authority regarding selection of the destination facility to which Hazardous Materials will be transported whenever it acts as generator or arranger, provided that the Authority acts in accordance with all Applicable Laws and the requirements of the Project Documents and any relevant Governmental Entities or Governmental Approvals.
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ARTICLE 7. DESIGN AND CONSTRUCTION
7.1 Obligations of Developer
7.1.1 General Duties
In addition to performing all other requirements of the Project Documents, Developer shall:
7.1.1.1 furnish all design and other services, provide all materials, equipment and labor and undertake all efforts necessary or appropriate (excluding only those materials, services and efforts which the Project Documents expressly specify will be undertaken by the Authority or other Persons) to construct the Project and to maintain it during construction and to achieve D&C Work Completion by the Long Stop Deadline;
7.1.1.2 ensure all Construction Work and Demolition Work is performed in accordance with Released For Construction Documents;
7.1.1.3 ensure that the Project Manager, or a designated person thereof previously approved by the Authority, is present at the Project Right of Way at all times during the performance of any Construction Work or Demolition Work to perform the obligations required under the Project Documents;
7.1.1.4 comply with, and require that all Contractors and other Persons performing any of the Works comply with, all requirements of all Applicable Laws;
7.1.1.5 cooperate with the Authority and Governmental Entities with jurisdiction in all matters relating to the D&C Work, including their review, inspection and oversight of the design and construction (including, demolition activities) of the Project as required by Applicable Law or required herein; and
7.1.1.6 exercise Reasonable Efforts to mitigate any delay and any damages due to delay regardless of the cause of the delay, including by re-sequencing, reallocating, or redeploying Developer’s and its Contractors’ employees to other work, as appropriate.
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7.1.2 Performance, Design and Construction Standards
7.1.2.1 Developer shall perform the D&C Work in accordance with (a) Best Management Practice, (b) the requirements, terms and conditions set forth in the Project Documents, (c) all Applicable Laws, and (d) the requirements, terms and conditions set forth in all Governmental Approvals.
7.2 Nonconforming and Defective Work
7.2.1 Developer shall be responsible for the rectification of all Nonconforming Work including, to the extent necessary, through removal and/or replacement, whether discovered by Developer or by the Authority.
7.2.2 Subject to Section 31.3 (Consequential Losses), nothing contained in the Project Documents shall in any way limit the right of the Authority to assert claims for damages resulting from Defects in the Works for the period of limitations prescribed by Applicable Law, and the foregoing shall be in addition to any other rights or remedies the Authority may have hereunder or under Applicable Law.
7.3 Safety Compliance
7.3.1 Safety Compliance Orders
7.3.1.1 The Authority shall use good faith efforts to inform Developer at the earliest practicable time of any circumstance or information relating to the Project which in the Authority’s reasonable judgment is likely to result in a Safety Compliance Order. Except in the case of an Emergency, the Authority shall consult with Developer prior to issuing a Safety Compliance Order concerning the risk to public or worker safety, alternative compliance measures, and cost impacts.
7.3.1.2 Subject to conducting such prior consultation, the Authority may issue Safety Compliance Orders to Developer at any time from and after the Financial Closing Date.
7.3.2 Duty to Comply
7.3.2.1 Subject to Section 7.3.1 (Safety Compliance Orders), Developer shall implement all Safety Compliance as expeditiously as reasonably possible following issuance of the Safety Compliance Order. Developer shall diligently perform the work necessary to achieve such Safety Compliance until completion.
7.3.2.2 Developer shall perform all work required to implement Safety Compliance.
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7.3.2.3 Developer shall undertake Reasonable Efforts to overcome any inability to comply with any Safety Compliance Order caused by a Relief Event.
7.4 Conditions to NTP 1
Within ten (10) days after satisfaction of the conditions set forth in this Section 7.4 (Conditions to NTP 1), the Authority shall issue NTP 1 to Developer, authorizing commencement of the Design Work. Whether or not the Authority has issued NTP 1, any Design Work shall be at Developer’s sole risk and expense. Conditions to the Authority’s issuance of NTP 1 are:
7.4.1 Insurance Policies identified in Sections 1.3 and 1.4 of Exhibit 10 (Insurance Coverage Requirements) have been obtained and are in full force and effect in accordance with Article 19 (Insurance) and Developer has delivered to the Authority verification of insurance coverage as required by Article 19 (Insurance);
7.4.2 Developer has caused to be developed and delivered to the Authority and the Authority has approved the Project Baseline Schedule and the Project Management Plan in accordance with the requirements set forth in Section 0.3.2 (Project Scheduling) of the General Conditions and Section 2 (Project Management) of the Requirements and Provisions for Work; and
7.4.3 Developer has satisfied all other requirements of the Project Documents that are required to be satisfied prior to commencement of the applicable portion of the Design Work, including delivery to the Authority of all Submittals relating to the applicable portion of the Design Work required by the Project Management Plan or Project Documents, in the form and content required by such Project Management Plan or Project Documents.
7.5 Conditions to NTP 2
Except as may be allowed under Section 7.6.1 for Advance Construction Work, Developer shall not commence or permit commencement of the Construction Work, or of any portion thereof, until the Authority’s issuance of NTP 2 for the Construction Work. The Authority shall issue NTP 2 within ten (10) days after request by Developer and provided all the conditions of this Section 7.5 (Conditions to NTP 2) have been satisfied:
7.5.1 Insurance Policies identified in Part 1 of Exhibit 10 (Insurance Coverage Requirements) have been obtained and are in full force and effect in accordance with Article 19 (Insurance) and Developer has delivered to the Authority written verification of insurance coverage as required by Article 19 (Insurance);
7.5.2 all Governmental Approvals necessary to begin the applicable portion of the Construction Work have been obtained and Developer has furnished to the Authority fully executed copies of such Governmental Approvals;
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7.5.3 Developer has satisfied (to the extent required) all applicable Environmental Commitments and other Governmental Approvals for the applicable portion of the Construction Work;
7.5.4 Developer has caused to be developed and delivered to the Authority, and the Authority has approved, the Project Baseline Schedule and all component parts thereof and each other plan required to be approved prior to commencement of the Construction Work as described in the General Conditions and Section 2 (Project Management) of the Requirements and Provisions for Work;
7.5.5 Developer has satisfied all other requirements of the Project Documents that are required to be satisfied prior to commencement of the applicable portion of the Construction Work, including delivery to the Authority of all Submittals relating to the applicable portion of the Construction Work required by the Project Management Plan or Project Documents, in the form and content required by such Project Management Plan or Project Documents; and
7.5.6 facilities to be provided by Developer for the use of the Authority as set forth in Section 0.1.13 (Site Facilities for the Authority) of the General Conditions are operational.
7.6 Advance Construction Work
7.6.1 To reduce and minimize the impacts to the traveling public, the Authority may authorize Developer to perform Advance Construction Work prior to NTP 2. In the event the Authority authorizes Developer to perform Advance Construction Work, Developer shall satisfy and comply with the conditions and requirements imposed by the Authority in respect of such Advance Construction Work, which may include certain conditions and requirements identified in Section 7.5 (Conditions to NTP 2), prior to commencing such activities.
7.7 Partial Completion
7.7.1 Developer shall apply in writing for a Certificate of Partial Completion, such certificate being required whenever Developer contemplates in the sequencing of its Construction Work, any part of the Project, being made available for use by Patrons prior to Substantial Completion. The Authority will issue, following Developer’s request and within the time periods set forth in Sections 7.7.3 through 7.7.6 below, written certificate(s) of Partial Completion (the “Certificate of Partial Completion”) at such time as Partial Completion occurs. The Authority will not, prior to Service Commencement, permit any part of the Project (whether new construction or modification to existing construction) to be used by Patrons until a Certificate of Partial Completion has been issued by the Authority. Notwithstanding the previous issue by the Authority of a Certificate of Partial Completion, a new application for such certificate will be required and the Authority shall have issued a new Certificate of Partial Completion before
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additional new construction or additional modifications to existing construction may be brought into use by Patrons.
7.7.2 In determining whether Partial Completion has occurred, the Authority will determine the conditions on a case by case basis depending upon Developer’s request and the nature of the new construction or modification to existing construction. The Authority anticipates consideration and requirement of satisfaction of the following conditions:
7.7.2.1 all major safety features are installed and functional; such major safety features to include shoulders, guard rails, striping and delineations, concrete traffic barriers, bridge railings, cable safety systems, metal beam guard fences, safety end treatments, terminal anchor sections, and crash attenuators;
7.7.2.2 fire safety systems are installed and functional;
7.7.2.3 all major security features required by the Project Documents are installed and functional;
7.7.2.4 required illumination is installed and functional;
7.7.2.5 required signs and signals are installed and functional;
7.7.2.6 certain lanes of traffic (including ramps, interchanges, overpasses, underpasses, other crossings and frontage roads) set forth in the Design Documents are in their approved configuration and available for public use;
7.7.2.7 ITS and safety features for ITS components are installed and functional, as applicable;
7.7.2.8 load ratings and inspection reports have been submitted;
7.7.2.9 Developer has completed the relevant Work in accordance with the Project Documents, Final Design Documents and Construction Documents, such that a discrete portion of the Project is in a condition that it can be used for normal and safe vehicular travel, subject only to Punch List items;
7.7.2.10 Developer has complied with all other aspects of the Project Documents with respect to completion of the relevant Work; and
7.7.2.11 Insurance Policies required under Article 19 (Insurance) and Exhibit 10 (Insurance Coverage Requirements) for the Maintenance Work are in full force and effect with respect to the relevant part of the Project that will be made available for use by Patrons and Developer has delivered to the
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Authority written verification of insurance coverage as required by Article 19 (Insurance).
7.7.3 Developer shall provide the Authority with not less than 60 days’ prior written notification of the date Developer expects to achieve Partial Completion so as to allow the Authority to commence its review of those conditions to Partial Completion. Notification shall include a list of all requirements that will be achieved to allow the Authority's issuance of a Certificate of Partial Completion.
7.7.4 Forty (40) days prior to expected Partial Completion, Developer shall meet and confer with the Authority to confirm that the list of requirements provided for in Section 7.7.3 is in accordance with the Project Documents. Subsequent to this initial meeting, Developer and the Authority shall meet, confer and exchange information on a regular basis with the goal being to facilitate the Authority’s timely inspection and determination of whether Developer has satisfied all of the conditions required to achieve Partial Completion.
7.7.5 Developer shall thereafter provide written notification of the date it has achieved Partial Completion. Within thirty (30) days of receipt of Developer’s written notification and all required conditions and submittals per the Project Documents, the Authority shall conduct an inspection of the Project and its components, a review of the Final Design Documents and Construction Documents and such other investigation as may be necessary to evaluate whether Partial Completion has been achieved.
7.7.6 Within this thirty (30) day period, the Authority shall either (a) issue a Certificate of Partial Completion, effective as of the date that the Authority accepts that conditions to Partial Completion were satisfied; or (b) notify Developer in writing of the reasons why the conditions to Partial Completion have not been achieved, provided that, in the event that any condition has not been satisfied, Developer shall be entitled to resubmit the notification provided pursuant to Section 7.7.5 once the relevant condition has been satisfied, whereupon the Authority shall promptly issue a Certificate of Partial Completion in accordance with this Section 7.7.6. If the Authority and Developer cannot agree as to the date upon which the conditions to Partial Completion have been satisfied, such Dispute shall be resolved in accordance with the Dispute Resolution Procedures provided, however, that, with respect to any such Dispute, the Parties may proceed directly to the relevant Disputes Review Board.
7.8 NTP 3 and Service Commencement
7.8.1 Conditions to NTP 3
Notwithstanding the prior issue of one or more Certificates of Partial Completion authorizing the use by Patrons of a part of the Project, the Authority will not permit Patrons to use any part of the Replacement Bridge to cross the Arthur Kill in
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either direction and Developer shall not initiate, permit or suffer Service Commencement until the Authority issues NTP 3 authorizing Service Commencement. The Authority’s issuance of NTP 3 shall be subject to satisfaction of all of the following conditions:
7.8.1.1 Insurance Policies identified in Part 2 of Exhibit 10 (Insurance Coverage Requirements) have been obtained and are in full force and effect in accordance with Article 19 (Insurance) and Developer has delivered to the Authority written verification of insurance coverage as required by Article 19 (Insurance);
7.8.1.2 the Authority has issued all necessary certificates of Partial Completion covering all of the Works necessary to achieve Service Commencement;
7.8.1.3 all component parts, plans and documentation of the Project Management Plan required to be prepared, submitted and approved prior to Service Commencement have been so prepared, submitted and approved, including all operations and maintenance plans, maintenance and protection of traffic (“MPT”) plans, procedures, rules, schedules and manuals, and including manuals and procedures respecting safety, security and Emergency Response, as identified in the Project Management Plan;
7.8.1.4 all Submittals required by the Project Management Plan or Project Documents prior to Service Commencement have been submitted to and reviewed by or approved by the Authority in the form and content required by the Project Management Plan or Project Documents;
7.8.1.5 Developer has completed, in consultation with the Authority (including as contemplated in Section 7.8.6), preparation of the Punch List for NTP 3 in accordance with the procedures and schedules set forth in the Project Management Plan; and
7.8.1.6 Developer has certified that it has completed necessary training of personnel that will be performing the Maintenance Work and has provided the Authority with copies of training records and course completion certificates issued to each of the relevant personnel.
7.8.2 Approximately ninety (90) days prior to the date on which Developer expects to achieve all of the conditions to NTP 3, Developer shall provide written notice to the Authority so as to allow the Authority to commence its review of those conditions to NTP 3 amenable to being reviewed at the time of such notice. Notification shall include a list of all requirements that will be achieved to allow the Authority issuance of NTP 3.
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7.8.3 Sixty (60) days prior to the anticipated date of satisfying all conditions of NTP 3, Developer shall meet and confer with the Authority to confirm that the list of requirements provided for in Section 7.8.2 is in accordance with the Project Documents. Subsequent to this initial meeting, Developer and the Authority shall meet, confer and exchange information on a regular basis with the goal being to facilitate the Authority's timely inspection and determination of whether Developer has satisfied all of the conditions required for the Authority's issuance of NTP 3.
7.8.4 Developer shall provide written notification of the date it has satisfied all requirements for the Authority’s issuance of NTP 3. Within thirty (30) days of receipt of Developer’s written notification and all required conditions and Submittals per the Project Documents, the Authority shall conduct an inspection of the Project and its components, review of the Final Design Documents, Construction Documents, other Submittals and such other investigation as may be necessary to evaluate whether Service Commencement has been achieved.
7.8.5 Within this thirty (30) day period, the Authority shall either (a) issue NTP 3, effective as of the date that the Authority accepts that conditions to NTP 3 were satisfied; or (b) notify Developer in writing of the reasons why the conditions to NTP 3 have not been satisfied, provided that, in the event that any condition has not been satisfied, Developer shall be entitled to resubmit the notification provided pursuant to Section 7.8.4 once the relevant condition has been satisfied, whereupon the Authority shall promptly issue NTP3 in accordance with this Section 7.8.5. If the Authority and Developer cannot agree as to the date upon which the conditions to NTP 3 have been satisfied, such Dispute shall be resolved according to the Dispute Resolution Procedures provided, however, that with respect to any such Dispute, the Parties may proceed directly to the relevant Disputes Review Board.
7.8.6 In connection with the Authority’s issuance of NTP 3, the Authority shall have the right, in its reasonable discretion, to add or remove items to or from the Punch List for NTP 3. Any Dispute regarding whether an item added by the Authority is appropriately included on the Punch List for NTP 3 shall be resolved according to the Dispute Resolution Procedures.
7.8.7 The issuance of NTP 3 shall not be relevant for determining Substantial Completion, Final Acceptance or Demolition Completion.
7.8.8 Requirements Following NTP 3 and Service Commencement
7.8.8.1 Upon the issuance by the Authority of NTP 3, Developer shall be entitled, upon twenty-four (24) hours' written notice to the Authority, to implement a permanent closure of the Existing Bridge and to effect a simultaneous opening to Patrons of all or part of the Replacement Bridge. Such
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actions, once complete, shall signify Service Commencement.
7.8.8.2 Upon Service Commencement:
(a) Developer shall take all necessary measures to prevent public use of any part of the Existing Bridge and shall not be permitted to bring any part of the Existing Bridge back into operational service;
(b) the Authority shall be entitled to assess Noncompliance Points for Noncompliance Events associated with use by Patrons of the Replacement Bridge as set forth in Article 11 (Noncompliance Events); and
(c) the Authority shall be entitled to assess Hourly Unavailability Events as set forth in Exhibit 8 (Payment Mechanism).
7.9 Conditions to Demolition Work and NTP4
7.9.1 Conditions to Demolition Work and NTP 4
Developer shall not commence or permit commencement of the Demolition Work or of any portion thereof, without issuance of NTP 4 by the Authority. Provided that all the conditions of Demolition Work are satisfied, the Authority shall issue the following NTPs for demolition: (i) NTP for demolition of the New Jersey Eastbound Approach Structure (Bridge Identification Number 3800071 over the NJTA) and (ii) NTP 4 for the demolition of remaining portions of the Existing Bridge. The Authority’s issuance of NTP for Demolition Work shall be subject to the satisfaction of each of the following conditions:
7.9.1.1 Insurance Policies identified in Part 1 of Exhibit 10 (Insurance Coverage Requirements) have been obtained and are in full force and effect in accordance with Article 19 (Insurance) and Developer has delivered to the Authority written verification of insurance coverage as required by Article 19 (Insurance);
7.9.1.2 all Environmental Commitments that relate to the Existing Bridge have been satisfied;
7.9.1.3 all Governmental Approvals necessary to begin the Demolition Work have been obtained and Developer has furnished to the Authority fully executed copies of such Governmental Approvals;
7.9.1.4 Developer has satisfied all other requirements of the Project Documents that are required prior to commencement of the Demolition Work, including delivery to the Authority of all
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Submittals relating to the applicable portion of the Demolition Work required by Third-Party Agreements, the Project Management Plan, Project Documents and Section 20 (Bridge Demolition) of the Requirements and Provisions for Work; and
7.9.1.5 the Authority has issued NTP 3.
7.10 Substantial Completion
7.10.1 Substantial Completion
7.10.1.1 The Authority will promptly issue a written certificate that Developer has achieved Substantial Completion (the “Certificate of Substantial Completion”) upon satisfaction of all of the following conditions for the Project:
(a) Developer has completed the Design Work and Construction Work in accordance with the Project Documents as necessary to satisfy the following conditions (including, without limitation, installation and commissioning of all Project equipment and systems required to be installed and commissioned by Developer);
(b) all certifications for the Final Design Documents, independent design check of the Final Design Documents, all mechanical, electrical and electronics systems, and bridge inspection and load rating reports have been submitted;
(c) all lanes of traffic as set forth in the Design Documents are in their final configuration and Developer has certified that such lanes have been constructed in accordance with the requirements of the Project Documents and are available for continuous use by traffic subject only to Permitted Closures or Closures necessary for Planned Maintenance;
(d) Developer has certified that all Design Work and Construction Work for the replacement of Travis Spur Rail Bridge has been completed in accordance with the requirements of the Project Documents;
(e) certification that all Utility Adjustment Work (excluding any Utility Adjustment Work that relates to the Demolition Work) has been completed in accordance with the requirements of the relevant Utility Adjustment Agreement(s);
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(f) certification that Developer has received, and paid all associated fees due and owing for, all applicable Governmental Approvals required for maintenance of the Replacement Bridge, and there exists no uncured violation of the terms and conditions of any such Governmental Approval (except to the extent contested in good faith);
(g) all plans, manuals and reports for the Maintenance Work to be performed during the Maintenance Period have been submitted and, if applicable, approved by the Authority as required under the Project Documents;
(h) Developer has prepared, in consultation with the Authority (including as contemplated in Section 7.10.1.6), and submitted the Punch List in respect of the Replacement Bridge in accordance with the procedures and schedules set forth in the Project Management Plan and there remains no Construction Work to be completed other than the Construction Work described in the definition of "Punch List";
(i) all Insurance Policies required under Article 19 (Insurance) for the Maintenance Work have been obtained and are in full force and effect, and Developer has delivered to the Authority verification of insurance coverage as required by Article 19 (Insurance);
(j) Developer has certified that it has completed necessary training of personnel that will be performing the Maintenance Work and has provided the Authority with copies of training records and course completion certificates issued to each of the relevant personnel; and
(k) the Authority has issued NTP 3,
provided that, for the avoidance of doubt, neither the commencement of the Demolition Work nor the achievement of Demolition Completion is a condition to the achievement of Substantial Completion.
7.10.1.2 Approximately ninety (90) days prior to the date on which Developer expects to achieve all of the conditions to Substantial Completion, Developer shall provide written notice to the Authority so as to allow the Authority to commence its review of those conditions to Substantial Completion amenable to being reviewed at the time of such
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notice. Notification shall include a list of all requirements that will be achieved to allow the Authority's issuance of a Certificate of Substantial Completion.
7.10.1.3 Sixty (60) days prior to satisfying all conditions of Substantial Completion, Developer shall meet and confer with the Authority to confirm that the list of requirements provided for in Section 7.10.1.2 is in accordance with the Project Documents. Subsequent to this initial meeting, Developer and the Authority will meet, confer and exchange information on a regular basis with the goal being the Authority's orderly, timely inspection of the Project, review of the Final Design Documents and final Construction Documents and determination of whether Developer has satisfied all of the conditions required for the Authority's issuance of a Certificate of Substantial Completion.
7.10.1.4 Developer shall thereafter provide written notification of the day it has satisfied all requirements for the Authority's issuance of a Certificate of Substantial Completion. Within thirty (30) days of receipt of Developer's written notification and all required conditions and submittals per the Project Documents, the Authority shall conduct an inspection of the Project and its components, a review of the Final Design Documents, Construction Documents, other Submittals and such other investigation as may be necessary to evaluate whether Substantial Completion has been achieved.
7.10.1.5 Within this thirty (30) day period, the Authority shall either: (a) issue the Certificate of Substantial Completion, effective as of the date the conditions to Substantial Completion were actually satisfied; or (b) notify Developer in writing of the reasons why Substantial Completion has not been achieved provided that, in the event that any condition has not been satisfied, Developer shall be entitled to resubmit the notification provided pursuant to Section 7.10.1.4 once the relevant condition has been satisfied, whereupon the Authority shall promptly issue a Certificate of Substantial Completion in accordance with this Section 7.10.1.5. If the Authority and Developer cannot agree as to the date of Substantial Completion, such Dispute shall be resolved according to the Dispute Resolution Procedures provided, however, that with respect to any such Dispute, the Parties may proceed directly to the relevant Disputes Review Board.
7.10.1.6 In connection with the Authority’s issuance of the Certificate of Substantial Completion, the Authority shall have the right in its reasonable discretion to add or remove items to or from the Punch List. Any Dispute regarding whether an item added by the Authority is appropriately included on the
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Punch List shall be resolved according to the Dispute Resolution Procedures provided, however, that with respect to any such Dispute, the Parties may proceed directly to the relevant Disputes Review Board.
7.11 Demolition Completion
7.11.1 The Authority will promptly issue a written certificate that Developer has achieved Demolition Completion (the “Certificate of Demolition Completion”) upon satisfaction of all the following conditions for the Project:
7.11.1.1 all Demolition Work has been completed in accordance with the requirements of Section 20 of the Requirements and Provisions for Work and all other Project Documents;
7.11.1.2 Developer has delivered to the Authority all required Submittals and certifications relevant to Demolition Work in accordance with the Project Documents;
7.11.1.3 certification that Developer has received, and paid all associated fees due and owing for, all applicable Governmental Approvals required for the demolition of the Existing Bridge, and there exists no uncured violation of the terms and conditions of any such Governmental Approval or other third-party approvals (except to the extent contested in good faith); and
7.11.1.4 all demobilization from relevant parts of the Project Right of Way is complete, including the removal of temporary work and equipment used in performance of the Demolition Work and necessary Project Right of Way restoration has been performed in accordance with the Project Documents and Governmental Approvals.
7.11.2 Within forty-five (45) days prior to the date on which Developer expects to achieve all of the conditions of Demolition Completion, Developer shall provide written notice to the Authority so as to allow the Authority to commence its review of those conditions amenable to being reviewed at the time of such notice. Notification shall include a list of all requirements that will be achieved to allow the Authority to issue the Certificate of Demolition Completion.
7.11.3 Thirty (30) days prior to the anticipated date of satisfying all conditions of Demolition Completion, Developer shall meet and confer with the Authority to confirm that the list of requirements provided for in Section 7.11.2 is in accordance with the Project Documents. Subsequent to this initial meeting, Developer and the Authority shall meet, confer and exchange information on a regular basis as necessary with the goal being to facilitate the Authority's timely inspection and determination of
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whether Developer has satisfied all of the conditions required for the Authority's issuance of a Certificate of Demolition Completion.
7.11.4 Thereafter, Developer shall provide written notification of the date it has satisfied all requirements for the Authority's issuance of Certificate of Demolition Completion. Within twenty (20) days of receipt of Developer's written notification and all required conditions and submittals per the Project Documents, the Authority shall conduct an inspection as may be necessary to evaluate whether Developer has satisfied all of the conditions to achieve Demolition Completion.
7.11.5 Within such twenty (20) day period, the Authority shall either: (a) issue a Certificate of Demolition Completion effective as of the date that the conditions to Demolition Completion were actually satisfied; or (b) notify Developer in writing of the reasons why Demolition Completion has not been achieved provided that, in the event that any condition has not been satisfied, Developer shall be entitled to resubmit the notification provided pursuant to Section 7.11.4 once the relevant conditions have been resolved, whereupon the Authority shall promptly issue a Certificate of Demolition Completion in accordance with this Section 7.11.5. If the Authority and Developer cannot agree as to the date of Demolition Completion, such Dispute shall be resolved according to the Dispute Resolution Procedures; provided, however, that with respect to any such Dispute, the Parties may proceed directly to the relevant Disputes Review Board.
7.12 Final Acceptance
7.12.1 The Authority will promptly issue a written certificate that Developer has achieved Final Acceptance (the “Certificate of Final Acceptance”) upon satisfaction of all the following conditions for the Project:
7.12.1.1 all Punch List items have been completed in accordance with the requirements of the Project Documents;
7.12.1.2 Developer has certified that it has acquired and properly stored, or arranged for immediate availability, a reasonable inventory of all spare parts, spare components, spare equipment, special tools, materials, expendables and consumables necessary for maintenance of the Project as identified in the Maintenance Management Plan for the Maintenance Period;
7.12.1.3 all Submittals for the Design Work and Construction Work that Developer is required by the Project Documents to submit after Substantial Completion have been submitted to the Authority;
7.12.1.4 the Authority has received a complete set of the As-Built Documents in the form required by the Project Documents;
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7.12.1.5 if any Governmental Entity with jurisdiction requires any form of certification of design, engineering or construction with respect to the Project or any portion thereof, including any certifications from the Engineer of Record for the Project, Developer has caused such certificates to be delivered and has concurrently issued identical certificates to the Authority;
7.12.1.6 Developer has restored to their original condition any lands provided by the Authority for temporary access and other activities not part of the permanent work;
7.12.1.7 all aesthetic and landscaping work with the exception of vegetative ground covering is complete and operational including aesthetic lighting;
7.12.1.8 the system testing and commissioning plan – final revision has been submitted to and approved by the Authority;
7.12.1.9 all demobilization from relevant parts of the Project Right of Way is complete, including the removal of temporary work and equipment used in performance of the Construction Work, but not required for the Maintenance Work;
7.12.1.10 Developer has certified to the Authority in writing that no overdue amounts owing to any Contractor or their respective subcontractors remain unpaid (except disputed amounts for which Developer has established adequate reserves);
7.12.1.11 all obligations associated with permits obtained by Developer for the Construction Work have been completed, including the payment to any permitting agency of any amounts due as a result of any breaches of permits by Developer; and
7.12.1.12 all permits required by Developer to perform the Maintenance Work are in place, have been submitted to the Authority and are not subject to appeal,
provided that, for the avoidance of doubt, neither the commencement of the Demolition Work nor the achievement of Demolition Completion is a condition to the achievement of Final Acceptance.
7.12.2 Within forty-five (45) days prior to the date on which Developer expects to achieve all of the conditions of Final Acceptance, Developer shall provide written notice to the Authority so as to allow the Authority to commence its review of those conditions amenable to being reviewed at the time of such notice. Notification shall include a list of all requirements that will be achieved to allow the Authority to issue the Certificate of Final Acceptance.
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7.12.3 Thirty (30) days prior to the anticipated date of satisfying all conditions of Final Acceptance, Developer shall meet and confer with the Authority to confirm that the list of requirements provided for in Section 7.12.2 is in accordance with the Project Documents. Subsequent to this initial meeting, Developer and the Authority shall meet, confer and exchange information on a regular basis as necessary with the goal being to facilitate the Authority's timely inspection and determination of whether Developer has satisfied all of the conditions required for the Authority's issuance of a Certificate of Final Acceptance.
7.12.4 Thereafter, Developer shall provide written notification of the date it has satisfied all requirements for the Authority's issuance of Certificate of Final Acceptance. Within twenty (20) days of receipt of Developer's written notification and all required conditions and submittals per the Project Documents, the Authority shall conduct an inspection of the Punch List items, a review of the As-Built Submittals and such other investigation as may be necessary to evaluate whether Developer has satisfied all of the conditions to achieve Final Acceptance.
7.12.5 Within such twenty (20) day period, the Authority shall either: (a) issue a Certificate of Final Acceptance effective as of the date that the conditions to Final Acceptance were actually satisfied; or (b) notify Developer in writing of the reasons why Final Acceptance has not been achieved provided that, in the event that any condition has not been satisfied, Developer shall be entitled to resubmit the notification provided pursuant to Section 7.12.4 once the relevant condition has been satisfied, whereupon the Authority shall promptly issue a Certificate of Final Acceptance in accordance with this Section 7.12.5. If the Authority and Developer cannot agree as to the date of Final Acceptance, such Dispute shall be resolved according to the Dispute Resolution Procedures; provided, however, that with respect to any such Dispute, the Parties may proceed directly to the relevant Disputes Review Board.
7.13 Suspension of Construction Work or Demolition Work
7.13.1 The Authority shall at any time have the right and authority to suspend, in whole or in part, the Construction Work or the Demolition Work by written order to Developer. Any such written order will be supported by the Authority’s reasons for the required suspension of the Construction Work or Demolition Work.
7.13.2 Except where any suspension of the Construction Work or Demolition Work by the Authority pursuant to this Section 7.13 (Suspension of Construction Work or Demolition Work) is made in response to:
7.13.2.1 any failure by Developer to comply with any Applicable Law or Governmental Approval (including failure to handle, preserve and protect archaeological, paleontological or historic resources, or failure to handle Hazardous Materials,
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in accordance with Applicable Laws and Governmental Approvals); or
7.13.2.2 the existence of conditions unsafe for workers, other Project personnel or the general public, including failures to comply with Safety Standards or perform Safety Compliance as set forth in Section 7.4 (Conditions to NTP 1),
any such suspension order shall constitute a Compensation Event and any suspension order made in response to matters referred to in Sections 7.13.2.1 or 7.13.2.2 shall cease to apply as soon as the relevant matter has been rectified or remedied to the reasonable satisfaction of the Authority.
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ARTICLE 8. MAINTENANCE, RENEWAL AND HANDBACK WORK
8.1 Commencement of Maintenance Work
8.1.1 Maintenance Work Following Certificate of Partial Completion
Immediately following issuance (if any) by the Authority of a Certificate of Partial Completion as governed by Article 7 (Design and Construction), Developer shall commence Maintenance Work associated with any new construction or modification to existing construction described in such Certificate of Partial Completion.
8.1.2 Maintenance Work Following Service Commencement Immediately following Service Commencement as governed by Article 7 (Design and Construction), Developer shall commence Maintenance Work for all parts of the Replacement Bridge that are the subject of NTP 3 and shall, prior to the commencement of Demolition Work in accordance with the Project Documents, assume certain obligations in respect of the maintenance of the Existing Bridge in accordance with Section 23 of the Requirements and Provisions for Work.
8.1.3 Maintenance Work Following Substantial Completion
Following Substantial Completion, Developer shall commence Maintenance Work for the Replacement Bridge.
8.2 Maintenance Work Standards and Requirements
8.2.1 General Obligations
8.2.1.1 Developer shall carry out the Maintenance Work within the applicable Maintenance Limits in accordance with (a) Best Management Practice, as it evolves from time to time, (b) the requirements, terms and conditions set forth in the Project Documents, (c) all Applicable Laws, and (d) the requirements, terms and conditions set forth in all Governmental Approvals.
8.2.1.2 Developer shall at all times undertake sufficient Maintenance Work to ensure ongoing compliance with the Performance Requirements.
8.2.2 Utility Accommodation
8.2.2.1 It is anticipated that from time to time during the Maintenance Work, Utility Owners will apply for additional Utility permits to install new Utilities that would cross or longitudinally occupy areas of the Project that are subject to the Authority’s permitting jurisdiction, or to modify, repair,
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upgrade, relocate or expand existing Utilities within such areas. For such Utility permit applications submitted after the Substantial Completion Date, Developer shall use Reasonable Efforts to assist the Authority in its consideration of each Utility permit application in accordance with the Project Documents. Further, Developer shall use Reasonable Efforts to (a) make available upon request the most recent Project design information and/or As-Built Documents, as applicable, to the applicants; (b) assist each applicant with information regarding the location of other proposed and existing Utilities; and (c) coordinate work schedules with such applicants as appropriate to avoid interference with the operation of the Project Facilities.
8.2.2.2 Throughout the performance of the Maintenance Work, Developer shall use Reasonable Efforts to monitor Utilities and Utility Owners within the Project Right of Way for compliance with applicable Utility permits, the Authority regulations, policies and other requirements, and other Applicable Law and Governmental Approvals, and shall use Reasonable Efforts to obtain the cooperation of each Utility Owner having Utilities within the Project Right of Way in accordance with the Project Documents.
8.3 Police Services
8.3.1 Developer acknowledges that any Governmental Entity empowered to enforce all Applicable Laws is free to enter the Project at any and all times to carry out its law enforcement duties. No provision of this Agreement is intended to surrender, waive or limit any police powers of any Governmental Entity, and all such police powers are hereby expressly reserved.
8.3.2 The Authority and Developer shall not have any liability or obligation to each other resulting from, arising out of or relating to the failure of a public law enforcement agency to provide services, or its negligence or misconduct in providing services (except, in the case of the Authority, the Authority Police); provided, that no failure by a law enforcement agency to provide services shall excuse Developer from performance of any of its obligations under this Agreement.
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8.4 Maintenance Management Plan
8.4.1 Notwithstanding any other provision of this Agreement to the contrary, the Authority shall be required to approve each Maintenance Management Plan prepared by Developer in accordance with Section 23 (Maintenance) of the Requirements and Provisions for Work. The Authority may only withhold its approval of any such Maintenance Management Plan if:
8.4.1.1 it does not comply with the requirements of Section 23 (Maintenance) of the Requirements and Provisions for Work;
8.4.1.2 with respect to any annual or five year Renewal Work Schedule, it does not set out a proposed program of Renewal Work that is reasonably likely to ensure that the condition of the Project Facilities will meet or exceed the Maintenance Performance Requirements over the period to which the proposed Renewal Work Schedule relates; or
8.4.1.3 during the Handback Period only, the proposed Renewal Work Schedule is not consistent with the Handback Renewal Work Plan.
8.4.2 At the Authority’s request, Developer and its Maintenance Contractor(s), if any, shall promptly meet and confer with the Authority to review and discuss any annual or five year Renewal Work Schedule submitted to the Authority pursuant to Section 23 (Maintenance) of the Requirements and Provisions for Work.
8.5 Handback Requirements
8.5.1 Handback Condition
8.5.1.1 Upon the Termination Date, Developer shall transfer the Project, including any Upgrades, to the Authority, at no charge to the Authority, in the condition and meeting all of the requirements set forth in Section 25 (Handback) of the Requirements and Provisions for Work (collectively, the “Handback Requirements”).
8.5.1.2 In the event of Early Termination, Developer shall only be required to comply with the requirements of this Section 8.5 (Handback Requirements) to the extent that any Renewal Work under the Handback Requirements was scheduled to have been performed prior to the Early Termination Date.
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8.6 Handback Reserve Account
8.6.1 Establishment and Security
8.6.1.1 No later than the first Business Day of the Handback Period, Developer shall establish a reserve account (the “Handback Reserve Account”) to be held and controlled by a third party (the “Escrow Agent”) to be agreed between the Parties. Within three (3) Business Days of establishing the Handback Reserve Account, Developer shall provide to the Authority the details regarding the Handback Reserve Account, including the name, address and contact information for the depository institution and the account number.
8.6.1.2 The Parties agree that (a) withdrawals from the Handback Reserve Account will be controlled by the operation of an account control agreement to be agreed between and entered into by the Parties no later than the first Business Day of the Handback Period and (b) any withdrawal from the Handback Reserve Account will require the prior written approval of the Authority, such approval to be provided in accordance with this Section 8.6 (Handback Reserve Account).
8.6.1.3 Developer shall not be permitted to grant any security interest to any third party in relation to the Handback Reserve Account or any amounts standing to the credit of it.
8.6.2 Funding
8.6.2.1 No later than sixty (60) days prior to the commencement of each consecutive 12-month period during the Handback Period (each a "Handback Year"), Developer shall deliver to the Authority a report setting out its calculations of the Handback Reserve Amount in accordance with Exhibit 5. Within thirty (30) days of any such report being delivered to the Authority, the Parties shall seek to agree upon the Handback Reserve Amount, and in the absence of agreement, the Handback Reserve Amount shall be finally determined pursuant to the Dispute Resolution Procedures.
8.6.2.2 To the extent that the balance standing to the credit of the Handback Reserve Account is not, on the date five (5) Business Days following each date of agreement or determination of the Handback Reserve Amount, at least equal to the Handback Reserve Amount, the Authority shall, until such time as the balance standing to the credit of the Handback Reserve Account is equal to the Handback Reserve Amount then required, make deductions from
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subsequent Monthly Disbursements, and pay such amounts into the Handback Reserve Account.
8.6.2.3 To the extent that the balance standing to the credit of the Handback Reserve Account, on any date of agreement or determination of the Handback Reserve Amount, exceeds the Handback Reserve Amount, such excess shall (at the request of Developer) be paid by the Escrow Agent to Developer in accordance with the account control agreement entered into pursuant to Section 8.6.1.2 above.
8.6.3 Withdrawal from Handback Reserve Account
8.6.3.1 Subject to Section 8.6.3.2, Developer shall be entitled to withdraw funds from the Handback Reserve Account in such amounts and at such times as needed only to pay for the improvement, repair, renewal or replacement of any Residual Element that was taken into account in the calculation of the Handback Reserve Amount.
8.6.3.2 Prior to drawing funds from the Handback Reserve Account, Developer shall give written notice to the Authority of the amount to be drawn and the purpose for which funds will be used, together with such other supporting information as the Authority may reasonably require. Within five (5) Business Days from the date of the receipt of such notice, the Authority shall either approve or withhold its approval to Developer’s proposed withdrawal. The Authority may only withhold its approval to any proposed withdrawal from the Handback Reserve Account to the extent that:
(a) Developer is unable to demonstrate to the reasonable satisfaction of the Authority that the proposed withdrawal amount will be used to meet costs incurred by Developer in undertaking improvement, repair, renewal or replacement of any Residual Element that was taken into account in the calculation of the Handback Reserve Amount; or
(b) the balance standing to the credit of the Handback Reserve Account plus the aggregate amount of all withdrawals made from the Handback Reserve Account since the Handback Renewal Elements Amount was most recently agreed is less than the Handback Renewal Elements Amount,
provided, that if the Authority fails to respond within such five (5) Business Day period, the Authority will be deemed to have given its approval to such withdrawal request.
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8.6.3.3 On the Termination Date, the Escrow Agent shall pay any amounts standing to the credit of the Handback Reserve Account to the Parties in the following order of priority:
(a) first, an amount equal to the Handback Renewal Elements Amount shall be paid by the Escrow Agent to the Authority;
(b) second, an amount equal to that required to improve, repair, renew or replace each Renewal Element to the extent required for Developer to have performed all of its obligations under the Handback Requirements as at the Termination Date, shall be paid by the Escrow Agent to the Authority; and
(c) third, the remaining balance standing to the credit of the Handback Reserve Account shall be paid by the Escrow Agent to Developer.
8.6.4 Handback Letters of Credit
In lieu of the establishment or ongoing funding of the Handback Reserve Account, Developer may deliver to the Authority one or more letters of credit (each in a form and from an issuer reasonably acceptable to the Authority and on the basis that the Authority shall be the sole beneficiary) with aggregate value equal to the ongoing Handback Reserve Amount, whereupon (to the extent that the Handback Reserve Account has already been established) the Escrow Agent shall pay all amounts standing to the credit of the Handback Reserve Account to Developer.
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ARTICLE 9. CONTRACTORS AND KEY PERSONNEL
9.1 Relationship with Contractors
9.1.1 Nothing in this Agreement will create any contractual relationship between the Authority and any Contractor. No Contract entered into by or under Developer shall impose any obligation or liability upon the Authority to any Contractor or any of its employees.
9.1.2 The retention of Contractors by Developer will not relieve Developer of its obligations under the Project Documents and Developer will at all times be held fully responsible under the Project Documents for the acts and omissions of all Contractors, in relation to the Project, as if they were the acts and omissions of Developer.
9.2 Key Personnel
9.2.1 Developer shall (or shall procure that the relevant Key Contractor shall) retain, employ and utilize the individuals specifically listed as Key Personnel in Appendix 1 (Developer’s Proposal Commitments) or in the Project Management Plan to fill the corresponding positions until such time as all relevant activities have been completed. Developer shall not, prior to Substantial Completion or Demolition Completion, change or substitute any such individuals, except due to retirement, death, disability, incapacity, or voluntary or involuntary termination of employment or with the prior consent of the Authority (such consent not to be unreasonably withheld, delayed or conditioned if the proposed substitute individual possesses equal or greater experience, skill, knowledge and professional expertise in the relevant fields than the individual being replaced).
9.2.2 Developer shall notify the Authority in writing of any proposed replacement for any Key Personnel position. The Authority shall have the right to review the qualifications and character of each individual to be appointed to a Key Personnel position (including personnel employed by Contractors to fill any such position) as set forth in Section 2 of the Requirements and Provisions for Work and to approve or disapprove (acting reasonably) use of such individual in such position prior to the commencement of any Works by such individual.
9.2.3 Developer shall cause each individual filling a Key Personnel position to dedicate the full amount of time necessary for the proper prosecution and performance of the Works.
9.2.4 Developer shall provide the Authority with phone and cell phone numbers as well as e-mail addresses for all Key Personnel. Developer shall provide to the Authority two (2) personnel and a minimum of three (3) Key Personnel (two (2) from the Lead Contractor and one (1) from
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the CEI) who the Authority can contact twenty-four (24) hours per Day, seven (7) days per week as required, and who will be able to, in turn, contact the other Key Personnel promptly thereafter.
9.3 Certain Public Policy Requirements
9.3.1 Authority Minority- and Women-Owned Business Enterprises Program
9.3.1.1 To the extent that the requirements set forth in Section II (Nondiscrimination) of Attachment 2 (FHWA Form 1273) and Attachment 9 (Disadvantaged Business Enterprises) of Exhibit 17 (Additional Federal Requirements) do not apply to the D&C Work hereunder or otherwise, Developer shall perform the D&C Work in compliance with Part A (Minority- and Women-Owned Business Enterprises) of Exhibit 15 (Certain Pubic Policy Requirements); and
9.3.1.2 To the extent that the requirements set forth in Section II (Nondiscrimination) of Attachment 2 (FHWA Form 1273) and Attachment 9 (Disadvantaged Business Enterprises) of Exhibit 17 (Additional Federal Requirements) do not apply to the Maintenance Work hereunder or otherwise, Developer shall perform the Maintenance Work in compliance with Part A (Minority- and Women-Owned Business Enterprises) of Exhibit 15 (Certain Pubic Policy Requirements).
9.3.2 Authority Prevailing Wage
9.3.2.1 To the extent that the requirements of Section IV (Davis-Bacon and Related Act Provisions) of Attachment 2 (FHWA Form 1273) of Exhibit 17 (Additional Federal Requirements) do not apply to the D&C Work hereunder or otherwise, Developer shall perform the D&C Work in compliance with Part B (Authority Prevailing Wage) of Exhibit 15 (Certain Pubic Policy Requirements).
9.3.2.2 To the extent that the requirements of Section IV (Davis-Bacon and Related Act Provisions) of Attachment 2 (FHWA Form 1273) do not apply to the Maintenance Work hereunder or otherwise, Developer shall perform the Maintenance Work in compliance with Part B (Authority Prevailing Wage) of Exhibit 15 (Certain Pubic Policy Requirements).
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ARTICLE 10. AUTHORITY AND DEVELOPER CHANGES
10.1 Authority Changes
10.1.1 The Authority has the right to propose Authority Changes in accordance with this Article 10 (Authority and Developer Changes).
10.1.2 In order to request an Authority Change, the Authority shall deliver to Developer a document setting forth (each, an “Authority Change Request”):
10.1.2.1 the Authority’s requirements for a change in the Work or a change to the terms and conditions of the Requirements and Provisions for Work (including a change in the standards applicable to the Work), in sufficient detail to enable Developer to calculate and provide the Developer's Estimate in accordance with Section 10.3 (Developer’s Estimate of Authority Change Requests); and
10.1.2.2 the method of compensation for the change.
10.1.3 Developer shall be entitled to refuse an Authority Change Request which:
10.1.3.1 requires the Works to be performed in a way that infringes Applicable Law or is inconsistent with Best Management Practice;
10.1.3.2 would cause any existing consent or permit to be revoked (or would require Developer to obtain a new consent or permit or materially amend or modify an existing consent or permit to implement the relevant change in the Works);
10.1.3.3 would require Developer to undertake an additional or new review under NEPA or the New York State Environmental Quality Review Act;
10.1.3.4 would adversely affect the health and safety of any person; or
10.1.3.5 would, if implemented, materially and adversely change the nature of the totality of the Project.
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10.2 Directive Letter
Subject to Section 10.1.3, the Authority may in its sole discretion deliver to Developer a “Directive Letter,” directing Developer to proceed with the performance of the Extra Work envisioned in an Authority Change Request. The Directive Letter shall also set forth the kind, character, and limits of the work. Upon receipt of the Directive Letter, Developer shall implement and perform the work in question as directed by the Authority and Developer may claim for a Compensation Event in accordance with and subject to the provisions of Article 12 (Supervening Events).
10.3 Developer’s Estimate of Authority Change Requests
10.3.1 As soon as practicable and in any event within fifteen (15) Business Days after having received an Authority Change Request, Developer shall deliver to the Authority an estimate of costs and expenses and other matters with respect to such Authority Change Request (a “Developer’s Estimate”), or confirmation as to when a Developer’s Estimate is to be provided to the Authority (provided, that Developer shall use all Reasonable Efforts to prepare its Developer’s Estimate within thirty (30) Business Days after having received the Authority Change Request, unless further extended by the Authority acting reasonably). A Developer’s Estimate shall include the following:
10.3.1.1 whether relief from compliance with its obligations under this Agreement is required during the implementation of the Authority Change;
10.3.1.2 any impact on the provision of the Works, including whether the proposed change is in contravention of Section 10.1 (Authority Changes);
10.3.1.3 any amendment required to this Agreement as a result of the Authority Change;
10.3.1.4 any amounts that Developer would propose to claim in respect of the Authority Change pursuant to Section 12.2 (Compensation Events);
10.3.1.5 any consents or permits which are required;
10.3.1.6 the proposed method of certification of any construction or operational aspects of the Extra Work required by the proposed Authority Change if not covered by the procedures set out in this Agreement;
10.3.1.7 a scope of work, which shall be described in sufficient detail and broken down into suitable components and activities to enable pricing. The work breakdown shall include all activities associated with the proposed modification, including a description of additions, deletions and modifications to the Requirements and Provisions for Work;
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10.3.1.8 a cost estimate that will enable the Authority to review and evaluate the reasonableness of the Developer's Estimate. Developer’s cost estimate shall identify a “base amount” representing the amount established based on estimated quantities and unit rates presented according to line or pay items typically included on construction project bid sheets by the Authority and separated by labor, materials and equipment. The cost estimate shall include a pricing form identifying which Work items have been priced based on estimated quantities and unit rates and which items have been priced on another basis, with reasons;
10.3.1.9 a Time Impact Analysis (based on the Project Working Schedule most recently agreed pursuant to Section 0.3.2 of the General Conditions) demonstrating that the proposed Authority Change will result in an identifiable and measurable disruption to the Work, which will impact a Critical Path activity (i.e. would consume all available float and would extend the time required to achieve Substantial Completion, Final Acceptance or D&C Work Completion, as applicable);
10.3.1.10 acceleration costs, but only when the Authority requires Developer pricing to accommodate an acceleration in any D&C Work; and
10.3.1.11 such other supporting documentation as may be reasonably required by the Authority.
10.3.2 The Developer’s Estimate shall be accompanied by a certification by Developer stating that: (a) to the best of Developer's knowledge, the amount of time and/or compensation requested is justified as to entitlement and amount, (b) the amount of time and/or compensation requested includes all known and anticipated impacts or amount, direct, indirect and consequential, which may be incurred as a result of the event or matter giving rise to the proposed change, and (c) the cost and pricing data is complete, accurate and current.
10.3.3 Developer’s requested compensation for the Authority Change in a Developer’s Estimate shall be subject to audit review by the Authority in accordance with Section 26.2 (Audits).
10.4 Review and Evaluation of Developer’s Estimate
10.4.1 As soon as practicable after the Authority receives the Developer’s Estimate, Developer shall meet with the Authority to review, discuss and agree on the Developer’s Estimate. During such discussions, the Authority may modify the Authority Change Request, and may require Developer to seek and evaluate competitive tenders for the relevant capital works in connection with such Authority Change, as applicable. In each case Developer shall, within fifteen (15) Business Days or such
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longer period as may be mutually agreed to by the Parties, after receipt of such modification, notify the Authority of any consequential changes to the Developer’s Estimate.
10.4.2 Within twenty-one (21) days from the date of meetings, or the date additional information is received, pursuant to Section 10.4.1 above, the Authority shall:
10.4.2.1 confirm in writing to Developer the Developer’s Estimate (as may be modified); or
10.4.2.2 withdraw the Authority Change Request.
10.4.3 If the Authority confirms the Developer’s Estimate (as may be modified), the implementation of the relevant Extra Work shall be commenced on the later of five (5) Business Days of the Authority’s written confirmation and the date set forth in the Developer’s Estimate and Developer may claim for a Compensation Event in accordance with and subject to the provisions of Article 12 (Supervening Events). Within this period, the Parties shall consult and agree on the remaining details as soon as practicable and shall enter into an appropriate change order to give effect to the relevant Authority Change Request.
10.4.4 In the event that an Authority Change Request is withdrawn, the Authority will reimburse Developer for all reasonable and documented costs incurred by Developer in connection with such Authority Change Request.
10.5 Funding
10.5.1 Where an Authority Change involves estimated Capital Expenditures or other costs agreed by the Parties or an adjustment in Maintenance Payments or any other payments, then:
10.5.1.1 the Authority and Developer shall agree upon a payment schedule in respect of the payment of such sums;
10.5.1.2 the Authority shall make a payment to Developer within thirty (30) days of receipt by the Authority of invoices presented to the Authority (complete in all material respects) in accordance with the agreed payment schedule accompanied by the relevant evidence (where applicable) that the relevant part of the Authority Change has been carried out; and
10.5.1.3 any late payments made by the Authority shall incur interest at the Late Payment Rate.
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10.6 Developer Changes
10.6.1 If Developer wishes to introduce a change in the Work (a “Developer Change”), it must deliver written notice (the “Developer Change Request”) to the Authority setting out the following:
10.6.1.1 the proposed change to the Works in sufficient detail to enable the Authority to evaluate it in full;
10.6.1.2 Developer’s reasons for proposing the change to the Works;
10.6.1.3 a request to the Authority to consult with Developer with a view to deciding whether to agree to the change to the Works and, if so, what consequential changes the Authority requires due to the Developer Change;
10.6.1.4 any implications of the change to the Works;
10.6.1.5 details regarding proposed variations to the Maintenance Payment, if any (and, if so, giving a detailed cost estimate of such proposed change);
10.6.1.6 any dates by which a decision by the Authority is critical; and
10.6.1.7 all of the information enumerated above in Section 10.3.1.
10.6.2 The Authority shall evaluate the Developer Change Request in good faith, taking into account all relevant issues, including whether:
10.6.2.1 a change in the Maintenance Payments will occur;
10.6.2.2 the change affects the quality of the Works or the likelihood of successful delivery of the Works;
10.6.2.3 the change will adversely interfere with the relationship of the Authority with third parties;
10.6.2.4 the financial strength of Developer is sufficient to perform the changed Work;
10.6.2.5 the residual value of the Project is reduced; or
10.6.2.6 the change materially affects the risk or costs to which the Authority is exposed.
10.6.3 As soon as practicable after receiving the Developer Change Request, the Parties shall meet and discuss the matters referred to in it. During their discussions the Authority may propose modifications or, subject to Section 10.6.7, approve or reject the Developer Change Request. Upon receipt of a Developer Change Request, the Authority shall issue
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a response to Developer as soon as practicable and in no event later than fifteen (15) days.
10.6.4 If the Authority approves the Developer Change Request (with or without modification), the implementation of the relevant change to the Works shall be commenced within five (5) Business Days of the Authority’s acceptance. Within this period, the Parties shall consult and agree on the remaining details as soon as practicable and shall enter into an appropriate change order to give effect to the relevant Developer Change Request.
10.6.5 If the Authority rejects the Developer Change Request, it shall not be obliged to give its reasons for such a rejection.
10.6.6 Unless the Authority’s acceptance specifically agrees to an increase in the Maintenance Payments there shall be no increase in the Maintenance Payments as a result of a change to the Works proposed by Developer.
10.6.7 The Authority shall not be entitled to reject a Developer Change Request, which is required in order to conform to a Change in Law. The costs of introducing a change to the Work resulting from a Qualifying Change in Law (including any resulting variation in the Maintenance Payments) shall be calculated and paid in accordance with Article 13 (Change in Law), and to the extent such costs are not compensable pursuant to Article 13 (Change in Law), they shall be borne by Developer.
10.7 No Cost Change Order
Changes in the Work, which have no net effect on the amount of compensation due to Developer may be approved in writing by Authority and shall be processed as a no cost change order.
10.8 Commencement of Extra Work
Other than when Developer is in receipt of a Directive Letter, Developer shall not be entitled or required to commence any Extra Work described in an Authority Change Request prior to the Authority confirming the Developer’s Estimate in accordance with Section 10.4.2 and as set forth therein.
10.9 Decreased Costs
10.9.1 If a Developer Change Request results in a decrease in the cost of any of the Works, then any payment due from the Authority under this Agreement may be adjusted downwards (or a credit may be owed in the future) in accordance with Article 16 (Financial Model Adjustments) to reflect the sharing in the decrease in costs 50:50 as to the Authority and Developer, respectively.
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10.9.2 If an Authority Change Request results in a decrease in the cost of any of the Works, then any payment due from the Authority under this Agreement may be adjusted downwards (or a credit may be owed in the future) in accordance with Article 16 (Financial Model Adjustments) to reflect the reduction in the cost of the relevant Works.
10.10 Performance
Developer shall not suspend performance of the Work during the negotiation of any Authority Change Request or Developer Change Request, except (i) as may be otherwise directed by the Authority in writing, or (ii) to the extent that such suspensions are otherwise permitted under the terms of this Agreement.
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ARTICLE 11. NONCOMPLIANCE EVENTS
11.1 Noncompliance Points System
11.1.1 Tables 7.1 and 7.2 in Exhibit 7 (Non-Compliance Points Tables) identify certain Developer breaches or failures in performance of obligations under the Project Documents (each, a “Noncompliance Event”).
11.1.2 The Noncompliance Events in Table 7.1 of Exhibit 7 (Non-Compliance Points Tables) shall apply to the period between the Financial Closing Date and D&C Work Completion Date. The Noncompliance Events in Table 7.2 of Exhibit 7 (Non-Compliance Points Tables) shall apply to the period between Service Commencement and the Termination Date.
11.1.3 During the period between Service Commencement and D&C Work Completion Date, Developer may, subject to Section 11.3.1.5, concurrently accrue Noncompliance Points in respect of Noncompliance Events listed in both Tables 7.1 and 7.2 of Exhibit 7 (Non-Compliance Points Tables).
11.2 Notification of Noncompliance Events
11.2.1 Notification Initiated by Developer
11.2.1.1 Developer shall notify the Authority in writing of the date of the occurrence of any Noncompliance Event as soon as reasonably practicable, and in any event within forty-eight (48) hours after the earlier of the time Developer first obtains knowledge of or first should have reasonably known of the occurrence of the Noncompliance Event. The notice shall provide reasonable detail of the circumstances of the Noncompliance Event and shall identify the Noncompliance Event, Grace Period and Cure Period that Developer considers to be applicable to the relevant Noncompliance Event. Within ten (10) days of receiving such notice, the Authority shall deliver to Developer a written notice setting forth the Authority’s determination of the occurrence of the Noncompliance Event and the applicable Grace Period and Cure Period (a “Notice of Determination”).
11.2.1.2 Developer shall notify the Authority in writing of the occurrence of any Noncompliance Start Date and any Noncompliance Rectification Date (together with a detailed description of the manner in which the Noncompliance Event was cured and measures taken by Developer to prevent the reoccurrence of the Noncompliance).
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11.2.2 Notification Initiated by the Authority
If the Authority believes any Noncompliance Event has occurred, for which the Authority has not received notification from Developer in accordance with Section 11.2.1.1, the Authority may deliver to Developer a Notice of Determination setting forth the Noncompliance Event, the relevant Noncompliance Start Date, any applicable Cure Period and the number of Noncompliance Points to be assessed with respect thereto in accordance with Exhibit 7 (Non-Compliance Points Tables).
11.3 Assessment of Noncompliance Points
11.3.1 Each Noncompliance Event shall accrue Noncompliance Points in accordance with the following principles:
11.3.1.1 In respect of a Noncompliance Event that has a Cure Period, for each full or part Cure Period arising between the Noncompliance Start Date and the Noncompliance Rectification Date, the Noncompliance Event shall, subject to Section 11.3.1.3, accrue the number of Noncompliance Points set out against that Noncompliance Event in Exhibit 7 (Non-Compliance Points Tables).
11.3.1.2 All Noncompliance Points in respect of a Cure Period shall be deemed to accrue in the month that the relevant Cure Period commenced.
11.3.1.3 To the extent that any Noncompliance Event benefits from a Grace Period and the Noncompliance Rectification Date occurs within the relevant Grace Period, such Noncompliance Event shall not accrue any Noncompliance Points.
11.3.1.4 In respect of a Noncompliance Event that has no Cure Period, that Noncompliance Event shall accrue the number of Noncompliance Points set out against that Noncompliance Event in Exhibit 7 (Non-Compliance Points Tables), but shall not attract any further Noncompliance Points during the period that such Noncompliance Events continue to subsist. Notwithstanding the foregoing, any subsequent recurrence of the same Noncompliance Event shall be treated as a separate Noncompliance Event and shall accrue Noncompliance Points.
11.3.1.5 To the extent that any breach or failure to perform obligations under the Project Documents would cause simultaneous occurrence of more than one Noncompliance Event (including, without limitation, with respect to a Noncompliance Event that appears in both Tables 7.1 and 7.2 of Exhibit 7 (Non-Compliance Points Tables)), Noncompliance Points shall only accrue in respect of the Noncompliance Event that accrues the highest number of
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Noncompliance Points (such accrual of Noncompliance Points for Noncompliance Events with a Cure Period applying up until the Noncompliance Rectification Date) and each other Noncompliance Event that simultaneously occurred as a result of the same breach or failure to perform obligations under the Project Documents shall be deemed to have not occurred.
11.3.1.6 Notwithstanding Section 11.3.1.3, nothing in this Agreement shall prevent the accrual of Noncompliance Points for both the occurrence of a Noncompliance Event and the failure to notify the Authority of the same Noncompliance Event in accordance with this Agreement.
11.3.1.7 To the extent that both an Hourly Unavailability Event and a Noncompliance Event simultaneously occur as a direct result of the same breach of or failure to perform obligations under the Project Documents, the relevant Noncompliance Event will be deemed not to have occurred for the purposes of this Agreement.
11.3.2 Developer is responsible for keeping and providing the Authority with current records of all Noncompliance Events that it is required to have notified the Authority about pursuant to the terms hereof and the number of Noncompliance Points assessed for all such Noncompliance Events, the date of each assessment, and each Noncompliance Start Date and Noncompliance Rectification Date.
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ARTICLE 12. SUPERVENING EVENTS
12.1 Delays
12.1.1 Notice
If at any time Developer becomes aware that there will be or is likely to be a delay in the Works such that:
12.1.1.1 commencement of the Construction Work will not occur by the Construction Commencement Deadline or (following the Construction Commencement Deadline) suffer further delay in the commencement of the Construction Work; and/or
12.1.1.2 Substantial Completion will not occur by the Original Substantial Completion Deadline or (following the Original Substantial Completion Deadline) suffer further delay in the achievement of Substantial Completion; and/or
12.1.1.3 Final Acceptance will not occur by the Original Final Acceptance Deadline or (following the Original Final Acceptance Deadline), suffer further delay in the achievement of Final Acceptance; and/or
12.1.1.4 D&C Work Completion will not occur by the Original D&C Work Completion Deadline or (following the Original D&C Work Completion Deadline) suffer further delay in the achievement of D&C Work Completion,
Developer shall as soon as reasonably practicable and in any event within ten (10) Business Days of becoming aware of the likely delay give notice to the Authority to that effect specifying:
12.1.1.5 the reason for the delay or likely delay; and
12.1.1.6 an estimate of the likely effect on the most recent Project Working Schedule of the delay in commencement of the Construction Work or achieving Substantial Completion, Final Acceptance or D&C Work Completion (as relevant) taking into account any measures that Developer proposes to adopt to mitigate the consequences of the delay in accordance with Section 12.1.3 (Duty to Mitigate).
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12.1.2 Supply of Information
Following delivery of a notice by Developer pursuant to Section 12.1.1 (Notice), Developer shall promptly supply to the Authority any further information relating to the delay which:
12.1.2.1 is received by Developer; or
12.1.2.2 is reasonably requested by the Authority.
12.1.3 Duty to Mitigate
Developer shall use Reasonable Efforts to mitigate the delay and consequences of any delay, which is the subject of a notice pursuant to Section 12.1.1 (Notice), including all reasonable steps requested by the Authority.
12.2 Compensation Events
12.2.1 If, as a direct result of the occurrence of a Compensation Event, Developer becomes aware that the Compensation Event has caused or is likely to cause Developer (or, solely with respect to Section 12.2.1.6, Borrower) to:
12.2.1.1 fail to commence the Construction Work by the Construction Commencement Deadline or (following the Construction Commencement Deadline) suffer further delay in the commencement of the Construction Work; and/or
12.2.1.2 fail to achieve Substantial Completion by the Original Substantial Completion Deadline or (following the Original Substantial Completion Deadline) suffer further delay in the achievement of Substantial Completion; and/or
12.2.1.3 fail to achieve Final Acceptance by the Original Final Acceptance Deadline or (following the Original Final Acceptance Deadline) suffer further delay in the achievement of Final Acceptance; and/or
12.2.1.4 fail to achieve D&C Work Completion by the Original D&C Work Completion Deadline or (following the D&C Work Completion Deadline) suffer further delay in the achievement of D&C Work Completion; and/or
12.2.1.5 fail to comply with its obligations under this Agreement; and/or
12.2.1.6 incur costs or lose revenue,
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then Developer is entitled to claim:
(a) an extension to the Construction Commencement Deadline, and/or the D&C Work Completion Deadline and/or the Long Stop Deadline (as relevant); and/or
(b) relief from compliance with its obligations under this Agreement; and/or
(c) compensation for any Change in Costs or Financing Costs that Developer or Borrower will incur as a direct result of such Compensation Event, in each case in accordance with this Article 12 (Supervening Events).
12.2.2 Procedure for Relief and Compensation
Subject to Section 12.2.4 (Late Provision of Notice or Information), any claim made by Developer pursuant to Section 12.2.1 must:
12.2.2.1 be submitted to the Authority as soon as practicable, and in any event within twenty (20) Business Days of Developer first becoming aware that the relevant Compensation Event would have the effect that is the subject of Developer’s claim;
12.2.2.2 as soon as is reasonably practicable following receipt by the Authority of the claim referred to in Section 12.2.2.1, give full details of the relevant Compensation Event (as available to it having made due enquiry) and the extension of time and/or relief from its obligations under this Agreement and/or any Change in Costs or Financing Costs claimed or reasonably likely to be claimed, including:
(a) a Time Impact Analysis (based on the Project Working Schedule most recently agreed pursuant to Section 0.3.2 of the General Conditions) demonstrating that the relevant Compensation Event will result in an identifiable and measurable disruption to the Work, which will impact a Critical Path activity (i.e. would consume all available float and would extend the time required to achieve commencement of the Construction Work, or Substantial Completion, Final Acceptance or D&C Work Completion, as applicable);
(b) evidence reasonably satisfactory to the Authority that no other concurrent unrelated delay to a Critical Path activity that is Developer’s responsibility has occurred that has contributed to the delay for which relief is being sought; and
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(c) evidence reasonably satisfactory to the Authority that such event could not reasonably be avoided by Developer without material cost or delay, including by re-sequencing, reallocating or redeploying its forces to other portions of the Work; and
12.2.2.3 demonstrate to the reasonable satisfaction of the Authority that:
(a) the Compensation Event was the direct cause or is reasonably likely to be the direct cause of:
(i) Change in Costs or Financing Costs; and/or
(ii) any failure to commence the Construction Work by the Construction Commencement Deadline or (following the Construction Commencement Deadline) further delay in the commencement of the Construction Work; and/or
(iii) a delay in achieving Substantial Completion by the Original Substantial Completion Deadline or (following the Original Substantial Completion Date) further delay in the achievement of Substantial Completion; and/or
(iv) a delay in achieving Final Acceptance by the Original Final Acceptance Deadline or (following the Original Final Acceptance Deadline) further delay in the achievement of Final Acceptance; and/or
(v) a delay in achieving D&C Work Completion by the Original D&C Work Completion Deadline or (following the Original D&C Work Completion Deadline) further delay in the achievement of D&C Work Completion; and/or
(vi) Developer failing to comply with its obligations under this Agreement;
(b) any Financing Costs (including, without limitation, Financing Costs of Borrower) claimed by Developer will only be incurred during the period (if any) that Substantial Completion is delayed beyond the Original Substantial Completion Deadline as a direct result of the relevant Compensation Event; and
(c) the Change in Costs, Financing Costs, extension of time and/or relief from the obligations under this Agreement claimed, could not reasonably be
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expected to be mitigated or recovered by Developer acting in accordance with Best Management Practice.
12.2.3 Giving of Relief and Compensation
In the event that Developer has complied with its obligations under Section 12.2.2 (Procedure for Relief and Compensation), then:
12.2.3.1 in the case of a delay as demonstrated pursuant to Section 12.2.2:
(a) the Construction Commencement Deadline; and/or
(b) the D&C Work Completion Deadline or (following the D&C Work Completion Deadline) the Long Stop Deadline,
shall be extended by such time as shall be reasonable for such a Compensation Event but only to the extent that Developer demonstrates to the Authority by way of Time Impact Analysis (based on the Project Working Schedule mostly recently agreed pursuant to Section 0.3.2 of the General Conditions) that the relevant Compensation Event will result in an identifiable and measurable disruption to the Work, which will impact a Critical Path activity (i.e. would consume all available float and would extend the time required to achieve commencement of Construction Work, or Substantial Completion, Final Acceptance or D&C Work Completion, as applicable);
12.2.3.2 in the case of:
(a) Capital Expenditure incurred by Developer at any time; or
(b) any other Change in Costs arising prior to Substantial Completion,
then, the Authority shall, within twenty (20) Business Days of its receipt of a written demand by Developer (supported by all relevant information), compensate Developer for the relevant Capital Expenditure or Change in Costs (each as adjusted to reflect the actual costs incurred by Developer or Borrower, as the case may be) that Developer or Borrower, as the case may be, incurs as a direct result of the relevant Compensation Event, provided that if the Authority agrees to make a one-off lump-sum payment in respect of Capital Expenditure to be incurred in the future, such payment shall be equal to the net present value of all future Capital Expenditure, with the then applicable yield on two-year U.S. Treasury bonds to be used as the discount rate;
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12.2.3.3 in the case of any Financing Costs incurred by Developer or Borrower, the Authority shall compensate Developer in accordance with Section 12.2.6 (Financing Costs);
12.2.3.4 to the extent that any Noncompliance Event or Closure would, but for the occurrence of the Compensation Event, have not occurred, such Noncompliance Event or Closure shall, for the purposes of this Agreement, be deemed to have not occurred;
12.2.3.5 in the case of any Change in Costs that are not the subject of Section 12.2.3.2, the Authority shall compensate Developer in accordance with Article 16 (Financial Model Adjustments) or in such other manner as the Parties may agree (acting reasonably);
12.2.3.6 in the case of any categories of Change in Costs that are subject to Exhibit 24 (Extra Work Costs), such Change in Costs shall be calculated in accordance with Exhibit 24 (Extra Work Costs);
12.2.3.7 to the extent that any Developer Default would, but for the occurrence of the Compensation Event, have not occurred, such Developer Default shall, for the purposes of this Agreement, be deemed to have not occurred; and
12.2.3.8 the Authority shall give Developer such relief only from its relevant obligations under this Agreement as is reasonable for such a Compensation Event.
12.2.4 Late Provision of Notice or Information
To the extent that information is not provided to the Authority in accordance with the requirements of Section 12.2.2 (Procedure for Relief and Compensation), Developer shall not be entitled to any extension of time, compensation or relief from its obligations under this Agreement with respect to the relevant Compensation Event.
12.2.5 Failure to Agree
If the Parties cannot agree on the extent of any compensation, delay incurred, relief from Developer’s obligations under this Agreement, or the Authority disagrees that a Compensation Event has occurred (or as to its consequences), or that Developer is entitled to relief under this Article 12 (Supervening Events), the Parties shall resolve the matter in accordance with the Dispute Resolution Procedures.
12.2.6 Financing Costs
12.2.6.1 To the extent that Substantial Completion has not occurred by the Original Substantial Completion Deadline or (following the Original Substantial Completion Deadline) Substantial Completion is further delayed, the Parties shall
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determine, in accordance with the principles set out in Section 12.2.3.1, the aggregate number of days (the "Authority Delay Period") beyond the Original Substantial Completion Deadline that Substantial Completion will be delayed as a direct result of the occurrence and subsistence of any Compensation Event(s).
12.2.6.2 To the extent that any Financing Costs become due for payment or repayment by Developer or Borrower during the Authority Delay Period, the Authority shall pay to Developer an amount equal to such Financing Costs no later than five (5) Business Days prior to the date that such Financing Costs become due for payment or repayment.
12.2.6.3 No later than twenty (20) Business Days after the Substantial Completion Date, the Parties shall calculate (such calculation being referred to below as the "Reconciliation"), in accordance with Article 16 (Financial Model Adjustments), the extent to which Developer and Borrower, taken as a whole, were left in a better or worse position as a result of the Authority Delay Period caused by the Compensation Event, taking into account the payments made to Developer by the Authority pursuant to Section 12.2.6.2.
12.2.6.4 To the extent that the Reconciliation demonstrates that Developer and Borrower, taken as a whole, were left in a worse position notwithstanding the payments made to Developer by Authority pursuant to Section 12.2.6.2, the Authority shall, within thirty (30) days of completion of the Reconciliation, make a lump-sum payment to Developer in an amount equal to that which would result in Developer and Borrower, taken as a whole, being left in a no better and no worse position.
12.2.6.5 To the extent that the Reconciliation demonstrates that Developer and Borrower, taken as a whole, were left in a better position as a result of the payments made to Developer by Authority pursuant to Section 12.2.6.2, Developer shall, in accordance with Section 12.2.6.6, make a lump-sum payment to the Authority in an amount equal to that which would result in Developer and Borrower, taken as a whole, being left in a no better and no worse position.
12.2.6.6 Any payment that Developer is required to make to the Authority pursuant to Section 12.2.6.5 shall be made in kind, by way of providing the Authority a credit in the equivalent amount that may be applied against amounts payable to Developer by the Authority pursuant to Exhibit 23 (Developer Financing Arrangements), such credit to be
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applied against such amounts in inverse order of scheduled payment.
12.2.7 Deductible for Terrorism Claims
Notwithstanding any other provision of this Agreement to the contrary, nothing in this Section 12.2 (Compensation Events) shall require the Authority to pay any compensation to Developer in respect of:
12.2.7.1 the first $1,000,000 of reinstatement costs arising as a direct result of physical damage to the Project caused by each and every act of Terrorism; and
12.2.7.2 any loss of revenue arising as a direct result of each and every act of Terrorism that causes physical damage to the Project, to the extent such loss of revenue arose in the first sixty (60) days after the relevant act of Terrorism.
12.2.8 Deductible for Shared Compensation Events
12.2.8.1 Notwithstanding any other provision of this Agreement to the contrary, in respect of any Shared Compensation Events only and subject to the limitation set forth in Section 12.2.8.2 below, 50% of any amounts required to be paid to Developer pursuant to Section 12.2.3.2 in respect of such Shared Compensation Events shall be borne by Developer; provided that nothing herein shall diminish or reduce the Authority’s obligation to pay the remaining 50% in accordance with the terms hereof.
12.2.8.2 The deductible and sharing contemplated in Section 12.2.8.1 above shall be limited to the Pooled Deductible Cap in the aggregate for all such Shared Compensation Events. Developer shall at no time be required to share in the amounts required to be paid by the Authority pursuant to Section 12.2.3.2 in respect of the aggregate of all Shared Compensation Events in excess of 50% of the Pooled Deductible Cap and any such amounts in excess thereof shall be paid by the Authority without any deduction or sharing (and shall not be borne by Developer) in accordance with the terms hereof.
12.3 Relief Events
12.3.1 If, as a direct result of the occurrence of a Relief Event, Developer becomes aware that the Relief Event has caused or is likely to cause Developer to fail to:
12.3.1.1 commence the Construction Work by the Construction Commencement Deadline or (following the Construction
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Commencement Deadline), suffer further delay in the achievement of Construction Commencement; and/or
12.3.1.2 achieve D&C Work Completion by the Original D&C Work Completion Deadline or (following the D&C Work Completion Deadline) suffer further delay in the achievement of D&C Work Completion; and/or
12.3.1.3 comply with any of its obligations under this Agreement,
then Developer is entitled to claim an extension to the Construction Commencement Deadline and/or the Long Stop Deadline and/or relief from any rights of the Authority arising under Section 24.4 (Termination for Developer Default), in each case in accordance with this Article 12 (Supervening Events).
12.3.2 Procedure for Relief
Subject to Section 12.3.4 (Late Provision of Notice or Information), any claim made by Developer pursuant to Section 12.3.1 must:
12.3.2.1 be submitted to the Authority as soon as practicable, and in any event within twenty (20) Business Days of Developer first becoming aware that the relevant Relief Event would have the effect that is the subject of Developer’s claim;
12.3.2.2 within ten (10) Business Days of receipt by the Authority of the notice referred to in Section 12.3.2.1, give full details of the relevant Relief Event (as available to it having made due enquiry), the extension of time and/or relief claimed, including:
(a) a Time Impact Analysis (based on the Project Working Schedule most recently agreed pursuant to Section 0.3.2 of the General Conditions) demonstrating that the relevant Relief Event will result in an identifiable and measurable disruption to the Work, which will impact a Critical Path activity (i.e. would consume all available float and would extend the time required to achieve commencement of the Construction Work, or Substantial Completion, Final Acceptance or D&C Work Completion, as applicable);
(b) evidence reasonably satisfactory to the Authority that no other concurrent unrelated delay to a Critical Path activity that is Developer’s responsibility has occurred that has contributed to the delay for which relief is being sought; and
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(c) evidence reasonably satisfactory to the Authority that such event could not reasonably be avoided by Developer without material cost or delay, including by re-sequencing, reallocating or redeploying its forces to other portions of the Work.
12.3.2.3 demonstrate to the reasonable satisfaction of the Authority that:
(a) Developer and its Key Contractors could not have avoided such occurrence or consequences by steps which they might reasonably be expected to have taken, without incurring material expenditure;
(b) the Relief Event was the direct cause of or is reasonably likely to be the direct cause of:
(i) any failure to commence the Construction Work by the Construction Commencement Deadline or (following the Construction Commencement Deadline) further delay in the achievement of Construction Commencement;
(ii) a delay in achieving D&C Work Completion by the Original D&C Work Completion Deadline or (following the Original D&C Work Completion Deadline) further delay in the achievement of D&C Work Completion; and/or
(iii) Developer failing to comply with its obligations under this Agreement;
(c) the extension of time and/or relief from the obligations under this Agreement claimed could not reasonably be expected to be mitigated or recovered by Developer acting in accordance with Best Management Practice; and
(d) Developer is using Reasonable Efforts to perform its obligations under this Agreement.
12.3.3 Giving of Relief
In the event that Developer has complied with its obligations under Section 12.3.2 (Procedure for Relief), then:
12.3.3.1 in the case of a delay demonstrated pursuant to Section 12.3.2 (Procedure for Relief):
(a) the Construction Commencement Deadline; and/or
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(b) the Long Stop Deadline,
shall be extended by such time as shall be reasonable for such a Relief Event, but only to the extent that Developer demonstrates to the Authority by way of Time Impact Analysis (based on the Project Working Schedule most recently agreed pursuant to Section 0.3.2 of the General Conditions) that the relevant Relief Event will result in an identifiable and measurable disruption to the Work, which will impact a Critical Path activity (i.e. would consume all available float and would extend the time required to achieve commencement of Construction Work, or Substantial Completion, Final Acceptance or D&C Work Completion, as applicable);
12.3.3.2 to the extent that any Developer Default arises solely as a result of the existence of any Relief Event, such Developer Default shall, for the purposes of this Agreement, be deemed not to have occurred; and
12.3.3.3 nothing in Section 12.3 (Relief Events) shall affect the accrual of any Noncompliance Points and Hourly Unavailability Events during the period in which the Relief Event is subsisting; provided, that any such Noncompliance Points and Hourly Unavailability Events shall be disregarded for the purposes of determining whether or not a Developer Noncompliance Trigger Event or a Persistent Closure has occurred.
12.3.4 Late Provision of Notice or Information
In the event that information is provided after the dates referred to in Section 12.3.2 (Procedure for Relief) then Developer shall not be entitled to any extension of time or relief from termination with respect to the period between the date on which the relevant information is required to have been provided pursuant to the terms hereof and the date on which the relevant information is provided.
12.3.5 Failure to Agree
If the Parties cannot agree on the extent of any delay incurred or relief from Developer’s obligations under this Agreement, or the Authority disagrees that a Relief Event has occurred (or as to its consequences), or that Developer is entitled to relief under this Article 12 (Supervening Events), the Parties shall resolve the matter in accordance with the Dispute Resolution Procedures.
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ARTICLE 13. CHANGE IN LAW
13.1 Occurrence
Developer shall take all steps necessary to ensure that the Works are performed in accordance with the terms of this Agreement following any Change in Law.
13.2 Notification
13.2.1 If a Change in Law (other than a Qualifying Change in Law) occurs or is shortly to occur, then either Party may notify the other to express an opinion on its likely effects, giving details of its opinion of:
13.2.1.1 any necessary change to the Works; and
13.2.1.2 whether any amendments are required to the terms of this Agreement to deal with the Change in Law,
in each case giving in full detail the procedure for implementing the change in the Works.
13.2.2 As soon as practicable after receipt of any notice from either Party under Section 13.2.1, the Parties shall discuss and agree on the issues referred to in Section 13.2.1 and any ways in which Developer can mitigate the effect of the relevant Change in Law.
13.3 Qualifying Changes in Law
The provisions of Section 12.2 (Compensation Events) shall apply in respect of any Qualifying Change in Law.
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ARTICLE 14. PAYMENTS TO DEVELOPER
14.1 Consideration for D&C Work
14.1.1 General
As consideration for the performance by Developer of the D&C Work and all obligations relating thereto, the Authority will pay Developer:
14.1.1.1 each Milestone Payment; and
14.1.1.2 the DFA Satisfaction Amount,
in each case in accordance with this Article 14 (Payments to Developer).
14.1.2 Milestone Payments
14.1.2.1 Each Milestone Payment shall be paid to Developer in accordance with the terms of this Section 14.1.2 (Milestone Payments).
14.1.2.2 Within thirty (30) days of the occurrence of the First Construction Milestone, the Authority shall pay the First Milestone Payment to Developer.
14.1.2.3 Within thirty (30) days of the occurrence of the Second Construction Milestone, the Authority shall pay the Second Milestone Payment to Developer.
14.1.2.4 At any time following the occurrence of the Substantial Completion Date, Developer shall be entitled to deliver to the Authority an invoice for payment of the Substantial Completion Payment, such invoice to be accompanied by a detailed calculation of the Substantial Completion Payment, together with such supporting information and details as the Authority may reasonably request. The Authority shall pay the Substantial Completion Payment to Developer within thirty (30) days of receipt by the Authority of the invoice being submitted to the Authority in accordance with the requirements of this Section 14.1.2.4.
14.1.2.5 Within thirty (30) days of the Final Acceptance Date, the Authority shall pay the Final Acceptance Payment to Developer.
14.1.2.6 Within thirty (30) days of the D&C Work Completion Date, the Authority shall pay the D&C Work Completion Payment to Developer.
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14.1.3 Monthly Performance Reports Prior to Substantial Completion
14.1.3.1 For so long as Substantial Completion has not occurred, Developer shall submit a Monthly Performance Report to the Authority no later than the 10th day of each month following the Financial Closing Date.
14.1.3.2 The Monthly Performance Report shall contain the information required by Exhibit 14 (Monthly Performance Report).
14.1.3.3 The Authority shall notify Developer in writing within ten (10) Business Days of receipt of the relevant Monthly Performance Report if there is any part of it which the Authority disputes and shall submit to Developer such supporting evidence as the Authority may have in respect of any such disputed part.
14.1.4 DFA Satisfaction Amount
14.1.4.1 The DFA Satisfaction Amount shall become due to Developer on the date that:
(a) the Substantial Completion Date has occurred; and
(b) Developer has, pursuant to the terms of Exhibit 23 (Developer Financing Arrangements) extended the DFA Loan to the Authority in an amount equal to the DFA Satisfaction Amount.
14.1.5 DFA Payments
The Authority and Developer shall comply with their respective obligations under Exhibit 23 (Developer Financing Arrangements).
14.2 Maintenance Payments Calculation
Maintenance Payments shall be calculated and earned by Developer according to the methodology set forth in Exhibit 8 (Payment Mechanism).
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14.3 Invoicing
14.3.1 Upon receipt by the Authority of a monthly invoice for the Maintenance Payments due in such month (an “Invoice”), the Authority shall pay Developer such Maintenance Payments within thirty (30) days of the receipt of such Invoice. Notwithstanding the foregoing, the Authority has no obligation to make a Maintenance Payment until Developer submits a proper Invoice therefor and a Monthly Performance Report in accordance with the following provisions of this Section 14.3.1:
14.3.1.1 Developer shall submit an Invoice and a Monthly Performance Report no later than the 10th day of each month following the Substantial Completion Date.
14.3.1.2 The Invoice must set forth the amount and calculation of the Maintenance Payments due. Any interest payable by the Authority in respect of any Maintenance Payments shall be set forth and submitted in a separate Invoice. The Authority shall return any Invoices that are incomplete and/or incorrect in any material respect to Developer for correction and resubmission, and no interest shall accrue on late payments arising from any such returned Invoices to the extent so incomplete or incorrect.
14.3.1.3 The Monthly Performance Report shall contain the information required by Exhibit 14 (Monthly Performance Report).
14.3.1.4 In the event that Developer has failed to file a Monthly Performance Report required to be filed for that month in the form set forth in Exhibit 14 (Monthly Performance Report), the Authority shall be required to pay only the amounts due less the maximum possible Monthly Payment Deduction applicable under such circumstances. If it is determined that any Monthly Performance Report submitted by Developer is found to be inaccurate, which, had it been accurate, would have revealed that an event resulting in a Monthly Payment Deduction had occurred, then the Authority shall be required to pay only the amounts due less the maximum possible Monthly Payment Deduction applicable under such circumstances, unless and until a revised Monthly Performance Report, which is accurate to the reasonable satisfaction of the Authority is subsequently submitted to the Authority. Once the required or revised Monthly Performance Report is filed, the Authority shall process the Invoice for payment. In no event shall the Authority be obligated to pay interest on any late payments arising due to delayed or resubmitted Monthly Performance Reports pursuant to this Section 14.3.1.4.
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14.3.1.5 With respect to the final Monthly Disbursement to be made under this Agreement, the Authority may delay payment of such Monthly Disbursement for an additional thirty (30) days in order to verify the Monthly Performance Report in respect of such final Monthly Disbursement.
14.3.2 In the event that the Monthly Payment Deduction exceeds the aggregate of the Maximum Operational Maintenance Payment and the Maximum Capital Maintenance Payment in a given month, then such excess shall be considered a payment liability by Developer to the Authority, and the Authority shall be entitled to set off such amount against the DFA Payment for such month or any future month, or any subsequent month’s Maintenance Payment.
14.4 Disputed Amounts
14.4.1 Both Developer and the Authority shall have the right to dispute, in good faith, any amount specified in an Invoice or Monthly Performance Report submitted pursuant to this Article 14 (Payments to Developer). The Party disputing any such amount will pay the amount of the Invoice in question that is not in dispute and will be entitled to withhold the balance pending resolution of the Dispute.
14.4.2 Any amount determined to be due pursuant to the Dispute Resolution Procedures will be paid within thirty (30) days following resolution of the Dispute, together with interest thereon in accordance with Section 32.19.
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ARTICLE 15. CHANGE IN OWNERSHIP
15.1 Restricted Changes in Ownership
15.1.1 A “Restricted Change in Ownership” shall arise if:
15.1.1.1 prior to the second anniversary of the D&C Work Completion Date, without the prior written consent of the Authority, any Qualified Investor ceases to own (directly or indirectly) the same percentage of the issued share capital or membership interests in Developer or Borrower that it owned (directly or indirectly) at the date of this Agreement, other than as a result of an Additional Equity Investment;
15.1.1.2 any Change in Ownership occurs which involves the transfer of any shares or membership interests to a Prohibited Person; or
15.1.1.3 any Change in Ownership occurs which would be reasonably likely to have a material adverse effect on Developer's ability to perform its obligations under the Project Documents in respect of the Maintenance Work, taking into account the financial strength and integrity of the transferee, compared to that of the transferor.
15.1.2 Any Restricted Change in Ownership will constitute a Developer Default for the purposes of Section 22.1.
15.1.3 A Restricted Change in Ownership shall not arise pursuant to Section 15.1.1 as a direct result of:
15.1.3.1 the grant or enforcement of security in favor of the Lenders over or in relation to any shares or membership interests in Developer under a Security Document;
15.1.3.2 a change in legal or beneficial ownership of any shares that are listed on a recognized stock exchange, including without limitation such transactions involving any initial public offering;
15.1.3.3 a transfer of interests from Macquarie Infrastructure and Real Assets Inc. (“MIRA”) to Macquarie Infrastructure Partners II U.S., L.P., Macquarie Infrastructure Partners II International, L.P. or Macquarie Infrastructure Partners III, L.P. (and any parallel limited partnerships or alternative investment vehicles managed by the same manager on behalf of any limited partners of Macquarie Infrastructure Partners III, L.P. existing as of the last closing date of the fund); and
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15.1.3.4 a transfer of interests between managed funds that are under common ownership or control or between the general partner, manager or the parent company of such general partner or manager and any managed funds under common ownership or control with such general partner or manager (or parent company of such general partner or manager), provided that the relevant funds and the general partner or manager of such funds (or the parent company of such general partner or manager) have been approved by the Port Authority in writing prior to the date of this Agreement.
15.1.4 For the purposes of this Section 15.1, a person will only be deemed to own shares or membership interests in another person if such person owns the legal, beneficial and equitable interest in the relevant shares or membership interests of that other person.
15.2 Notification of Changes in Ownership
15.2.1 Developer shall provide the Authority with at least twenty (20) Business Days' prior written notice of any Change in Ownership.
15.2.2 For the purposes of this Section 15.2, any change in legal or beneficial ownership of any shares that are listed on a recognized investment exchange shall be disregarded.
15.2.3 Developer agrees to reimburse the Authority for all reasonable out-of-pocket expenses (including, without limitation, reasonable and proper fees of consultants and legal counsel) incurred by the Authority in connection with its review of any Change in Ownership notified to it in accordance with Section 15.2.1.
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ARTICLE 16. FINANCIAL MODEL ADJUSTMENTS
16.1 General
Whenever a Relevant Event occurs, the financial consequence shall (save where otherwise provided in this Agreement or where the Parties mutually agree otherwise) be determined in accordance with this Article 16 (Financial Model Adjustments). Where for the purposes of this Article 16 (Financial Model Adjustments) the Financial Model is to be adjusted by reference to a Relevant Event, this shall be carried out by Developer, in consultation with the Authority, to reflect the impact of the Relevant Event in respect of which such adjustment is being undertaken. In calculating the Change in Costs and/or Revenue Impact and in assessing other adjustments to be made to the Financial Model arising from the Relevant Event, Developer shall be entitled to take into account, inter alia, any Change in Costs and (with respect to any Reconciliation (as defined in Section 12.2.6.3)) Revenue Impact; provided, that the Authority shall not be required (and Developer shall not be entitled) to take into account the financial impact up to or after the date of the Relevant Event of those risks which Developer expressly bears under the terms of this Agreement, including (to the extent so expressly borne by Developer under this Agreement) changes in taxation rates, inflation and the impact of any deductions made by the Authority pursuant to Exhibit 8 (Payment Mechanism).
16.2 Application to the Financial Model
Where, pursuant to this Agreement, either Party is entitled to payment of any sum the assessment of which properly requires reference to the Financial Model (with the exception of payment of the Authority’s share of any Refinancing Gain to which Article 17 (Refinancing) shall apply), the adjustment or credits to the payments between the Parties hereunder shall be that required to ensure that, by reference to the Financial Model adjusted under this Article 16 (Financial Model Adjustments), Developer and Borrower, taken as a whole, are left in a no better and no worse position than under the version of the Financial Model applicable immediately prior to the relevant adjustment, and shall be ascertained by determining the adjustment or credits to the payments between the Parties hereunder required to maintain Developer and Borrower, taken as a whole, in the financial position they would have been in under the version of the Financial Model applicable immediately prior to the relevant adjustment.
16.3 No Better and No Worse
16.3.1 Any reference in this Agreement to “no better and no worse” or to leaving Developer in a “no better and no worse position” shall be construed by reference to Developer’s (and, solely with respect to the Financing Documents to which it is a party, Borrower’s):
16.3.1.1 rights, duties and liabilities under or arising pursuant to performance of this Agreement, the Financing Documents and the Key Contracts; and
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16.3.1.2 ability to perform its obligations and exercise its rights under this Agreement, the Financing Documents and the Key Contracts, so as to ensure that:
(a) Developer and Borrower, taken as a whole, are left in a position which is no better and no worse in relation to the Key Ratios and the Equity IRR by reference to the version of the Financial Model applicable immediately prior to the Relevant Event than had the Relevant Event not occurred; and
(b) the ability of Developer to comply with this Agreement is not adversely affected or improved as a consequence of the Relevant Event.
16.4 Replacement of Financial Model
Any Financial Model produced following adjustments in accordance with this Article 16 (Financial Model Adjustments) shall, when it is approved by the Authority (such approval not to be unreasonably withheld), become the Financial Model for the purposes of this Agreement until its further amendment in accordance with this Agreement.
16.5 Amendments to Logic and/or Formulae
16.5.1 Where it is necessary to amend the logic or formulae incorporated in the Financial Model to permit adjustments to be made, this shall be done to the extent necessary.
16.5.2 If any amendment is to be made to the logic or formulae incorporated in the Financial Model, the Financial Model shall first be run immediately prior to the making of any such amendment to ensure that the Key Ratios from the Financial Model are maintained at levels that are neither lower nor higher than the Key Ratios existing immediately after making such amendment, and the difference in the Equity IRR after and immediately prior to making such amendment does not differ by more than one (1) basis point (being zero point zero one percent (0.01%) as shown in the resulting figure).
16.6 Financial Model Audits; Accuracy
16.6.1 In connection with any adjustments made to the Financial Model, including amendments to the logic or formulae incorporated in the Financial Model under Section 16.5 (Amendments to Logic and/or Formulae), and as a condition to providing approval for any amended version of the Financial Model, Developer shall (at its own cost) deliver to the Authority an audit of such amended version of the Financial Model from an independent audit firm with nationally recognized reputation.
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16.6.2 Developer shall bear the entire risk of any errors in or omissions from the Financial Model and shall not be entitled to any compensation or other relief from the Authority in relation to any loss or damage that it suffers as a result of such error or omission.
16.7 Copies of the Revised Financial Model
Following any adjustment to the Financial Model under the provisions of this Article 16 (Financial Model Adjustments), Developer shall promptly deliver a copy of the revised Financial Model to the Authority in the same form as the versions delivered pursuant to Section 2 prior to Financial Close or in such other form as may be agreed between the Parties.
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ARTICLE 17. REFINANCING
17.1 Requirement for Authority Consent
Developer shall obtain the Authority’s prior written consent to any Qualifying Refinancing.
17.2 Share of Gain
The Authority shall be entitled to receive a fifty percent (50%) share of any Refinancing Gain arising from a Qualifying Refinancing; provided, that the Authority shall not withhold or delay its consent to a Qualifying Refinancing in order to obtain a greater than fifty percent (50%) share of the Refinancing Gain.
17.3 Developer Details
Developer shall promptly provide the Authority with full details of any proposed Qualifying Refinancing, including a copy of the proposed financial model relating to it (if any) and the basis for the assumptions used in the proposed financial model. The Authority shall (before, during and at any time after any Refinancing) have unrestricted rights of audit over any financial model and documentation (including any aspect of the calculation of the Refinancing Gain) used in connection with that Refinancing whether the Refinancing is a Qualifying Refinancing or not.
17.4 Receipt of Gain
The Authority shall have the right to elect to receive its share of any Refinancing Gain as either:
17.4.1 a single payment in an amount less than or equal to any Distribution made on or about the date of the Refinancing;
17.4.2 a series of payments or credits that are applied pro rata to each DFA Payment over the remainder of the Term; or
17.4.3 a combination of the choices in Sections 17.4.1 and 17.4.2.
17.5 Method of Calculation
Following Developer’s delivery of the details regarding a proposed Qualifying Refinancing pursuant to Section 17.3 (Developer Details), the Authority and Developer will agree on the amount of the Refinancing Gain resulting from such Qualifying Refinancing and negotiate in good faith to agree on the basis of payment of the Authority’s share of the Refinancing Gain (taking into account how the Authority has elected to receive its share of the Refinancing Gain under Section 17.4 (Receipt of Gain)). If Developer and the Authority fail to agree the determination of the Refinancing Gain or the payment of the Authority’s share, the Dispute shall be determined in accordance with the Dispute Resolution Procedures.
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17.6 Costs
The Refinancing Gain shall be calculated after taking into account the reasonable and proper professional costs that each Party directly incurs in relation to the Qualifying Refinancing and on the basis that all reasonable and proper professional costs incurred by the Authority will be paid to the Authority by Developer within twenty (20) Business Days of any Qualifying Refinancing.
17.7 Notifiable Financings
Without prejudice to the other provisions of this Article 17 (Refinancing), Developer shall notify the Authority of all Notifiable Financings on becoming aware of the same and again when they are entered into and provide full details of the same within twenty (20) Business Days of the date a Notifiable Financing is entered into by the parties thereto.
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ARTICLE 18. PRINCIPAL DEVELOPER DOCUMENTS
18.1 Key Contracts
Developer shall perform its obligations under, and observe all of the provisions of, the Key Contracts and shall not, without the prior written consent of the Authority:
18.1.1 terminate or agree to termination of all or any part of any Key Contract;
18.1.2 amend or vary any Key Contract;
18.1.3 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 Key Contract; or
18.1.4 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 Key Contract,
if in each case the proposed course of action may reasonably be expected to have a material adverse effect on the ability of Developer to perform its obligations under the Project Documents.
18.2 Delivery of Changed Principal Developer Documents
At any time an amendment is made to any Principal Developer Document or Developer (or Borrower, as applicable) enters into a new Principal Developer Document (or any agreement, which affects the interpretation or application of any Principal Developer Document), Developer 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 (as the case may be) certified as a true copy by an officer of Developer.
18.3 No Increased Termination Liabilities
No amendment, waiver or exercise of a right under any Principal Developer Document shall have the effect of increasing the amount of the Authority’s liabilities on Early Termination, unless Developer has obtained the prior written consent of the Authority to such increased liability for the purposes of this Section 18.3 (No Increased Termination Liabilities). In the event of any conflict between the provisions of this Section 18.3 (No Increased Termination Liabilities) and any other provision of this Agreement, the provisions of this Section 18.3 (No Increased Termination Liabilities) shall prevail.
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18.4 Replacement of Key Contractors
18.4.1 Nothing in this Agreement shall prohibit Developer from providing or procuring the provision of the Works from any Key Contractor that Developer demonstrates to the reasonable satisfaction of the Authority has the legal capacity, power and authority to become a party to and perform the obligations of the relevant Key Contract and employs persons having appropriate qualifications, experience, integrity and technical competence and has the resources available to it, which are sufficient to enable it to perform the obligations of the Key Contractor under the relevant Key Contract, and otherwise comply with the requirements of this Agreement. By entering into this Agreement, the Authority approves each of the Key Contractors appointed by Developer as at the date of this Agreement.
18.4.2 Developer shall not enter into any D&C Contract without first delivering to the Authority a D&C Direct Agreement duly executed by Developer and the relevant D&C Contractor.
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ARTICLE 19. INSURANCE
19.1 Insurance Policies and Coverage
Developer shall procure and maintain, or cause to be procured or maintained, the Insurance Policies identified in this Article 19 (Insurance) and in Exhibit 10 (Insurance Coverage Requirements) strictly in accordance with the minimum coverage requirements and terms of coverage as set forth in this Article 19 (Insurance) and in Exhibit 10 (Insurance Coverage Requirements).
19.2 General Insurance Requirements
19.2.1 Insurers
All insurance required hereunder shall be procured from insurers that at the time coverage commences have a current policyholder’s management and financial size category rating of not less than “A-X” according to A.M. Best’s Financial Strength Rating and Financial Size Category (or an equivalent rating issued by Standard and Poor's), except as approved in writing by the Authority in its reasonable discretion.
19.2.2 Deductibles and Self-Insured Retentions
Except to the extent expressly provided otherwise in the Project Documents, Developer or its Contractor, as the case may be, shall be responsible for paying all insurance deductibles and the Authority shall have no liability for deductibles, self-insured retentions and claim amounts in excess of the required coverage. In the event that any required coverage involves a self-insured retention, the entity responsible for the self-insured retention shall have an authorized representative issue a letter to the Authority, at the same time the Insurance Policy is to be procured, stating that it shall protect and defend the Authority to the same extent as if an insurer provided coverage for the Authority.
19.2.3 Primary Coverage
Each insurance policy required herein shall provide that the coverage thereof is primary and noncontributory with respect to all named and additional insureds. For each property policy, such policy shall provide that the coverage thereof is primary and noncontributory with respect to all insureds and loss payees, as their interest may appear. Any insurance or self-insurance beyond that specified in this Agreement that is maintained by an insured or any such additional insured shall be excess of such insurance and shall not contribute with it.
19.2.4 Language and Law
19.2.4.1 All Insurance Policies shall be issued in the English language and, subject to Section 19.2.4.2, governed by the laws of New York.
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19.2.4.2 If Developer can demonstrate to the Authority's satisfaction (acting reasonably) that the cost to it of obtaining a particular Insurance Policy governed by the laws of New York is materially greater than the cost to it of obtaining the Insurance Policy governed by the laws of England, Bermuda, Canada or Australia, the Insurance Policy may be governed by the laws of England, Bermuda, Canada or Australia (as applicable).
19.2.5 Verification of Coverage
19.2.5.1 At each time Developer is required to initially obtain or cause to be obtained each Insurance Policy, and thereafter not less than five (5) Business Days prior to the expiration date of each Insurance Policy, Developer shall deliver to the Authority a written certificate(s) of insurance. The certificate of insurance shall be on the most recent ACORD form consistent with the required coverage. Each certificate must be in standard form, state the identity of all insurers, named insureds and additional insureds, state the type and limits of coverage, include as attachments all additional insured endorsements, and be signed by an authorized representative of the insurance company shown on the binder, including its licensed agent or broker.
19.2.5.2 In addition, as soon as they become available, but not to exceed 90 days from the effectiveness of each Insurance Policy, Developer shall deliver to the Authority (a) a true and complete certified copy of each such Insurance Policy or modification, or renewal or replacement Insurance Policy and all endorsements thereto and (b) evidence of payment of any premium then due that is satisfactory to the Authority (acting reasonably).
19.2.5.3 If Developer has not provided the Authority with the foregoing proof of coverage via certificate of insurance and payment within ten (10) days after receipt of written request therefor, or otherwise fails or refuses to obtain or maintain in force the insurance required by this Article 19 and Exhibit 10 (Insurance Coverage Requirements), the Authority may, upon three (3) Business Days’ written notice to Developer, in addition to any other available remedy, without obligation and without further inquiry as to whether such insurance is actually in force, obtain such an Insurance Policy; and Developer shall reimburse the Authority for the cost thereof upon demand. In addition, the Authority shall have the right, without obligation or liability, to suspend all or any portion of Work during any time that such proofs of coverage, in compliance with this Article 19 (Insurance), have not been provided as required herein.
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19.2.6 Contractor Insurance Requirements
19.2.6.1 Developer shall cause each Contractor to obtain (prior to commencing any Work) and maintain all insurance that a reasonable and commercially prudent contractor in North America performing work similar to that to be performed by the Contractor would maintain, to the extent that such Contractor is not covered by Developer-provided liability insurance. Developer shall cause each such Contractor to include the additional insureds specified in the applicable insurance policies as required under Exhibit 10 (Insurance Coverage Requirements). Developer shall cause each such Contractor to require that its insurer agree to waive any subrogation rights the insurers may have against such additional insureds. If requested by the Authority, Developer shall promptly provide certificates of insurance evidencing coverage for each Contractor.
19.2.7 Project-Specific Insurance
All insurance coverage required to be provided by Developer, the D&C Contractor, Lead Engineering Firm and Lead Maintenance Firm, other than any business automobile liability, aircraft liability, watercraft liability insurance or commercial general liability insurance for the Operating Period, shall be purchased specifically and exclusively for the Project and extend to all aspects of the Work, with coverage limits devoted solely to the Project. Insurance coverage with dedicated Project-specific limits and identified premiums are acceptable; provided, that they otherwise meet all requirements described in Exhibit 10 (Insurance Coverage Requirements) and this Article 19 (Insurance).
19.2.8 Endorsements and Waivers
All Insurance Policies Developer is required to provide hereunder shall contain or be endorsed to comply with all requirements specified in the Project Documents, as well as the following provisions; provided, that for the workers’ compensation and professional liability policies, only Sections 19.2.8.3 and 19.2.8.8 below shall be applicable:
19.2.8.1 any failure on the part of a named insured to comply with reporting provisions or other conditions of the policies, any breach of warranty, any action or inaction of a named insured or others, or any change in ownership of all or any portion of the Project or Developer’s Interest shall not affect coverage provided to the other named insureds or additional insureds (and their respective members, directors, officers, employees, agents and Project consultants);
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19.2.8.2 the insurance shall apply separately to each named insured and additional insured against whom a claim is made or suit is brought, except with respect to the limits of the insurer’s liability;
19.2.8.3 each policy shall be endorsed to state that coverage cannot be canceled, voided, suspended, lapsed, modified or reduced in coverage or in limits except after thirty (30) days’ (or for non-payment of premium, ten (10) days’) prior written notice by registered or certified mail, return receipt requested, has been given to the Authority. Such endorsement shall not include any limitation of liability of the insurer for failure to provide such notice;
19.2.8.4 endorsements adding additional insureds to required policies shall contain no limitations, conditions, restrictions or exceptions to coverage beyond those that apply under the policy generally, and shall state that the interests and protections of each additional insured shall not be affected by any misrepresentation, act or omission of a named insured or any breach by a named insured of any provision in the policy which would otherwise result in forfeiture or reduction of coverage. The commercial general liability policy shall contain an endorsement providing additional insureds with coverage for “completed operations”;
19.2.8.5 the certificate of insurance and liability policy(ies) must contain the following endorsement for the above liability coverages:
“The insurer(s) shall not, without obtaining the express advance written permission from the General Counsel of the Port Authority, raise any defense involving in any way the jurisdiction of a Tribunal over the person of Port Authority, the immunity of Port Authority, its Commissioners, Directors, officers, agents or employees, the governmental nature of Port Authority, or the provisions of any statutes respecting suits against Port Authority.”;
19.2.8.6 the commercial general liability policy shall cover liability arising out of the acts or omissions of Developer’s employees and employees of Contractors engaged in the Work on the terms and to the extent Developer or relevant Contractor is provided coverage under such liability policy;
19.2.8.7 the automobile liability insurance policy shall be endorsed as required to include Motor Carrier Act Endorsement-Hazardous Materials Clean up (“MCS-90”) for those Contractors who will at any time transport Hazardous Materials; and
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19.2.8.8 unless specified otherwise in Exhibit 10 (Insurance Coverage Requirements), each policy shall provide coverage on an “occurrence” basis and not a “claims made” basis.
19.2.9 Waivers of Subrogation
The Authority and Developer waive all rights against each other, against each of their agents, employees and Project consultants, and against Contractors and their respective members, directors, officers, employees, subcontractors, consultants and agents for any claims to the extent covered and paid by insurance obtained pursuant to this Article 19 (Insurance), except such rights as they may have to the proceeds of such insurance. Developer shall require all Contractors to provide similar waivers in writing each in favor of all other parties specified above. Each policy for which Developer is required to provide coverage for the additional insureds shall include a waiver of any right of subrogation against the additional insureds (and their respective members, directors, officers, employees, agents and Project consultants).
19.2.10 No Recourse
Except as expressly provided herein, there shall be no recourse against the Authority for payment of premiums or other amounts with respect to the insurance Developer is required to provide hereunder.
19.2.11 Support of Indemnifications
The insurance coverage Developer is required to provide hereunder shall support but is not intended to limit Developer’s indemnification obligations otherwise set forth under the Project Documents.
19.2.12 Adjustments in Coverage Amounts
19.2.12.1 At least once every two years during the Term (commencing initially on the D&C Work Completion Date), the Authority and Developer shall review and adjust, as appropriate, the per occurrence and aggregate limits for the Insurance Policies that have stated dollar amounts set forth in Exhibit 10 (Insurance Coverage Requirements), other than any professional liability errors and omissions or pollution liability Insurance Policies.
19.2.12.2 In determining adjustments, Developer and the Authority shall take into account (a) claims and loss experience for the Project, (b) the condition of the Project, (c) the Safety Compliance and Noncompliance Points record for the Project, and (iv) then prevailing Best Management Practice for insuring comparable transportation projects.
19.2.12.3 Except to the extent otherwise set forth in this Article 19 (Insurance), the costs of any changes in the Insurance
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Policies determined by this Section 19.2.12 shall be borne by Developer.
19.2.12.4 Any Dispute regarding insurance limit adjustments shall be resolved according to the Dispute Resolution Procedures.
19.3 Uninsurable Risks
19.3.1 If a risk usually covered by construction all risks, material damage, third party liability, business interruption (but excluding loss of profits) or delay in start up (but excluding loss of profits) or statutory insurances, in each case required under this Agreement, becomes an Uninsurable Risk then Developer shall notify the Authority as soon as reasonably practicable and in any event within fifteen (15) Business Days of the earlier of:
19.3.1.1 Developer becoming aware that the risk is likely to be an Uninsurable Risk; and
19.3.1.2 the risk becoming an Uninsurable Risk,
and in any event at least 5 Business Days before expiry or cancellation of any existing insurance in respect of that risk (in each case irrespective of the reason for the same). Developer shall provide the Authority with such information as the Authority reasonably requests regarding the Uninsurable Risk.
19.3.2 If both Parties agree, or it is determined pursuant to the Dispute Resolution Procedures, that the risk is an Uninsurable Risk the Authority and Developer shall consider in good faith alternative insurance packages and programs that provide coverage as comparable to that contemplated in this Article 19 (Insurance) as is possible under then-existing insurance market conditions and other means by which the risk should be managed or shared (including considering the issue of self-insurance by either party).
19.3.3 If the Authority and Developer are not able to reach an agreement as to how to manage or share the relevant Uninsurable Risk within five (5) Business Days of the date on which Developer provides notice under Section 19.3.1, the Authority may refer the matter to a mediator acceptable to the Authority and Developer.
19.4 Consequences of a risk becoming an Uninsurable Risk
19.4.1 If:
19.4.1.1 both Parties agree, or it is determined pursuant to the Dispute Resolution Procedures, that the risk is an Uninsurable Risk in accordance with Section 19.3.2 and the parties cannot agree how to manage or share the relevant Uninsurable Risk within twenty (20) Business Days of the
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date on which Developer provides notice under Section 19.3.1 (irrespective of whether the matter has been referred to mediation under Section 19.3.3 in that period); and
19.4.1.2 both parties agree or it is determined pursuant to the Dispute Resolution Procedures that the risk being an Uninsurable Risk is not caused by the actions, breaches, omissions or defaults of:
(a) Developer, other than the making of any claim in relation to the Insurance Policies by Developer or any inadvertent acts of the Developer (provided that Developer has used best endeavors to remedy, overcome or otherwise mitigate the effect of any such inadvertent acts); or
(b) a sub-contractor unless Developer has used best endeavors to remedy, overcome or otherwise mitigate the effect of the sub-contractor's action, breach, omission or default,
then the Authority shall (at the Authority's option) either:
19.4.1.3 pay to Developer an amount equal to the amount calculated in accordance with Section 24.3.5 (Consequences of Termination) and this Agreement will terminate; or
19.4.1.4 elect to allow this Agreement to continue, in which case this Agreement shall continue and on the occurrence of the risk (but only for as long as such risk remains an Uninsurable Risk) the Authority shall (at the Authority's option) either pay to Developer an amount equal to the Insurance Proceeds that would have been payable had the relevant insurance continued to be available (subject to the limitations, conditions and exclusions set out in the certificates and policies of insurance relating to such coverage previously provided by Developer and provided that Developer shall remain responsible for the deductibles referred to in Exhibit 10 (Insurance Coverage Requirements) (the "Relevant Insurance Amount") and this Agreement will continue, or an amount equal to the amount calculated in accordance with Section 24.3.5 (Consequences of Termination) plus (in relation to third party liability insurance only) the Relevant Insurance Amount for that third party liability insurance, whereupon this Agreement will terminate. To the extent the Authority assumes any Uninsurable Risk in accordance with this Section 19.4.1.4, the Authority shall provide a full waiver of subrogation to Developer.
19.4.2 If pursuant to Section 19.4.1.4 this Agreement continues:
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19.4.2.1 Developer's obligations in this Article 19 (Insurance) and/or Exhibit 10 (Insurance Coverage Requirements) to maintain insurance in respect of the Uninsurable Risk are waived and Developer shall not be considered in breach of its obligations regarding the maintenance of insurance pursuant to this Agreement as a result of the failure to maintain insurance in respect of such Uninsurable Risk for so long as the risk is an Uninsurable Risk (and for such time as is required for Developer to take out insurance as required under Section 19.4.2.2);
19.4.2.2 Developer must be vigilant in reviewing the insurance market generally, to ascertain whether an Uninsurable Risk has become insurable and in any event shall approach (or require its insurance brokers to approach) the insurance market at least once every twelve (12) months to establish whether the risk remains an Uninsurable Risk. Promptly upon Developer becoming aware that the risk is no longer an Uninsurable Risk, Developer shall take out and maintain or procure the taking out and maintenance of insurance (to be incepted as soon as is reasonably practicable) for such risk in accordance with this Agreement; and
19.4.2.3 the Authority shall be entitled to deduct from the Maintenance Payments and/or the DFA Payment an amount equal to one-twelfth of the annual premium most recently paid (or which would have been paid) by Developer in respect of the relevant risk prior to it becoming an Uninsurable Risk (using a reasonable estimate of such amount where a precise figure is not available) and indexed from the date that the Uninsurable Risk first arose in accordance with Section 2.11 of Exhibit 8 (Payment Mechanism) from the date on which the risk became an Uninsurable Risk.
19.5 Unavailability of Insurance Terms
If, upon the renewal of any insurance which Developer is required to maintain or to procure the maintenance of pursuant to this Agreement:
19.5.1 any Insurance Term is not available to Developer in the worldwide insurance market with reputable insurers of good standing; and/or
19.5.2 the insurance premium payable for insurance incorporating such Insurance Term is such that the Insurance Term is not generally being incorporated in insurance procured in the worldwide insurance market with reputable insurers of good standing by contractors in North America,
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(in either case the relevant Insurance Term being an Unavailable Term), then:
19.5.3 Developer shall notify the Authority as soon as reasonably practicable and in any event within fifteen (15) Business Days of the earlier of:
19.5.3.1 Developer becoming aware that the Insurance Term is likely to be an Unavailable Term; and
19.5.3.2 the Insurance Term becoming an Unavailable Term,
and in any event at least 5 Business Days before expiry or cancellation of any existing insurance in respect of that risk (in each case irrespective of the reason for the same). Developer shall provide the Authority with such information as the Authority reasonably requests regarding the unavailability of the Insurance Term and the Parties shall meet to discuss the means by which such unavailability should be managed as soon as is reasonably practicable;
19.5.4 subject to Section 19.6, if both Parties agree (acting reasonably), or it is determined pursuant to the Dispute Resolution Procedures, that the Insurance Term is an Unavailable Term, Developer's obligations in this Article 19 (Insurance) and/or Exhibit 10 (Insurance Coverage Requirements) in respect of that particular Insurance Term are waived and Developer shall not be considered in breach of its obligations regarding the maintenance of insurance incorporating the Unavailable Term for so long as the Insurance Term is an Unavailable Term (and for such time as is required for Developer to take out insurance as required under Section 19.5.5), unless the Insurance Term is an Unavailable Term by reason of the actions, breaches, omissions or defaults of Developer or a Contractor (except where caused by the making of any claim in relation to the relevant Insurance Policy by Developer or any inadvertent acts of Developer or a Contractor, provided that Developer has used best endeavors to remedy, overcome or otherwise mitigate the effect of any such inadvertent acts);
19.5.5 Developer must be vigilant in reviewing the insurance market generally, to ascertain whether an Insurance Term is no longer an Unavailable Term and in any event shall approach (or require its insurance brokers to approach) the insurance market at least once every twelve (12) months to establish whether the Insurance Term remains an Unavailable Term. Promptly upon Developer becoming aware that the Insurance Term is no longer an Unavailable Term, Developer shall take out and maintain or procure the taking out and maintenance of insurance (to be incepted as soon as is reasonably practicable) incorporating such Insurance Term in accordance with this Agreement; and
19.5.6 the Authority shall be entitled to deduct from the Maintenance Payments and/or the DFA Payment an amount equal to one-twelfth of the annual amount most recently paid for the particular Insurance Term
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(using a reasonable estimate of such amount where a precise figure is not available and indexed from the date that the Unavailable Term first arose in accordance with Section 2.11 of Exhibit 8 (Payment Mechanism) from the date on which the Insurance Term became an Unavailable Term), less any annual amount paid or payable by the Contractor to maintain and/or procure the maintenance of any (whether full or partial) alternative or replacement insurance in respect of such Insurance Term pursuant to Section 19.6.
19.6 Alternative Insurance Terms
If an alternative or replacement term and/or condition of insurance is available to Developer in the worldwide insurance and reinsurance market with reputable insurers of good standing which if included in the relevant insurance policy would fully or partially address Developer’s inability to maintain or procure insurance including the Unavailable Term, at a cost which contractors in North America are (at such time) generally prepared to pay, Developer shall maintain or procure the maintenance of insurance including such alternative or replacement term and/or condition.
19.6.1 Defense Costs
Unless otherwise agreed to in writing by the Authority in its reasonable discretion, no defense costs shall be included within or erode the limits of coverage of any of the Insurance Policies, except that litigation and mediation defense costs may be included within the limits of coverage of professional liability, contractor’s pollution and environmental impairment liability policies.
19.6.2 Contesting Denial of Coverage
If any Insurer under an Insurance Policy described in this Article 19 (Insurance) denies coverage with respect to any claims reported to such Insurer, Developer and the Authority shall cooperate in good faith to establish whether and to what extent to contest, and how to fund the cost of contesting, the denial of coverage; provided that if the reported claim is a matter covered by an indemnity in favor of the Authority or the denial is the result of Developer’s failure to comply with an insurance requirement, then Developer shall bear all costs of contesting the denial of coverage.
19.6.3 Lender Insurance Requirements
If under the terms of any Funding Agreement or Security Document Developer is obligated to, and does, carry insurance coverage with higher limits, lower deductibles or self-insured retentions, or broader coverage than required under this Agreement, Developer’s provision of such insurance shall satisfy the applicable requirements of this Agreement provided such policy meets all the other applicable requirements of this Article 19 (Insurance). If Developer carries insurance coverage in addition to that required under this Agreement, then Developer shall include the Authority and its respective members, directors, officers, employees, agents and Project consultants as additional insureds thereunder and under additional insured endorsements as described in Section 19.2.8.4, and shall provide to the Authority the proofs of coverage and copy of the policy described in Section 19.2.5 (Verification of Coverage). If, however, Developer demonstrates to the Authority that inclusion of such
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Persons as additional insureds will increase the premium, the Authority shall elect either to pay the increase in premium or forgo additional insured status.
19.6.4 Prosecution of Claims
19.6.4.1 Unless otherwise directed by the Authority in writing with respect to the Authority’s insurance claims, Developer shall be responsible for reporting and processing all potential claims by the Authority or Developer against the Insurance Policies required to be provided by Developer hereunder. Developer agrees to report timely to the insurer(s) under such policies any and all matters which may give rise to an insurance claim by Developer or the Authority and to promptly and diligently pursue such insurance claims in accordance with the claims procedures specified in such policies, whether for defense or indemnity or both. Developer shall enforce all legal rights against the insurer under the applicable Insurance Policies and Applicable Laws in order to collect thereon, including pursuing necessary litigation and enforcement of judgments, provided that Developer shall be deemed to have satisfied this obligation if a judgment is not collectible through the exercise of lawful and diligent means or, in relation to the pursuit of litigation, if there is no reasonable likelihood of success for the litigation. Developer and their insurer(s) shall not, without obtaining the advance written consent from the General Counsel of the Port Authority, raise any defense involving in any way the jurisdiction of a Tribunal over the person of Port Authority, the immunity of Port Authority, its Commissioners, Directors, officers, agents or employees, the governmental nature of Port Authority, or the provisions of any statutes respecting suits against Port Authority.
19.6.4.2 The Authority agrees to promptly notify Developer of the Authority’s incidents, potential claims, and matters which may give rise to an Authority insurance claim, to tender to the insurer the Authority’s defense of the claim under such Insurance Policies, and to cooperate with Developer as necessary for Developer to fulfill its duties hereunder.
19.6.4.3 If in any instance Developer has not performed its obligations respecting insurance coverage set forth in this Agreement or is unable to enforce and collect any such insurance for failure to assert claims in accordance with the terms of the Insurance Policies or to prosecute claims diligently, then for purposes of determining Developer’s liability and the limits thereon or determining reductions in compensation due from the Authority to Developer on account of available insurance, Developer shall be treated as if it has elected to self-insure up to the full amount of
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insurance coverage which would have been available had Developer performed such obligations. Nothing in this Section 19.6.4 (Prosecution of Claims) or elsewhere in Article 19 (Insurance) shall be construed to treat Developer as electing to self-insure where Developer is unable to collect due to the bankruptcy or insolvency of any insurer which at the time the Insurance Policy is written meets the rating qualifications set forth in Section 19.2.1 (Insurers).
19.6.4.4 In the event that an Insurer providing any of the Insurance Policies required by this Agreement becomes the subject of bankruptcy proceedings, becomes insolvent, or is the subject of an order or directive limiting its business activities given by any Governmental Entity, including the New York Department of Financial Services and the New Jersey Department of Banking and Insurance, Developer shall exercise best efforts to promptly and at its own cost and expense secure alternative coverage in compliance with the insurance requirements contained in this Article 19 (Insurance) so as to avoid any lapse in insurance coverage.
19.6.4.5 If in any instance Developer has not promptly performed its obligation to report to applicable insurers and process any potential insurance claim tendered by the Authority, then the Authority may, but is not obligated to, report the claim directly to the insurer and thereafter process the claim.
19.6.5 Application of Insurance Proceeds
All insurance proceeds received for physical property damage to the Project under any Insurance Policies required under Exhibit 10 (Insurance Coverage Requirements), other than any delay in start up or business interruption insurance maintained as part of such Insurance Policies, shall be first applied to repair, reconstruct, rehabilitate, restore, renew, reinstate and replace each part or parts of the Project in respect of which such proceeds were received.
19.6.6 Notices
Developer shall provide the Authority with the following written notices: (a) within 5 days of the occurrence thereof, any claim made by Developer or any other party under any insurance obtained in connection with the Project; and (b) the expiration of any Insurance Policy (whether by its terms or due to non-payment of premium or otherwise) at least 15 days prior to such expiration, including notification of the date of such expiration.
19.6.7 Compliance with Insurance Policies
Developer shall:
19.6.7.1 comply with the terms, conditions and requirements of all Insurance Policies; and
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19.6.7.2 not do or omit to do anything, or permit (insofar as it is within its power) any other person to do or omit to do anything, on or with respect to the Project Right of Way or the Project or with respect to the Work that results in or could reasonably be expected to result in the cancellation of any Insurance Policies or that would entitle any insurer to refuse to pay any claim under any Insurance Policy (in whole or in part) or that would otherwise prejudice an Insurance Policy or claim under any Insurance Policy.
19.7 Benchmarking of Insurance Costs
19.7.1 This procedure shall be used to determine whether the Authority shall bear any increase or benefit from any decrease in the cost of Benchmarked Insurances.
19.7.2 The Insurance Broker shall prepare a report on behalf of both Developer and the Authority in relation to each Insurance Review Period (the "Joint Insurance Cost Report"). The Joint Insurance Cost Report is to be prepared at Developer's expense and should, as a minimum, contain the following information for the relevant Insurance Review Period:
19.7.2.1 a full breakdown of the Actual Benchmarked Insurance Cost;
19.7.2.2 a full breakdown of the Base Benchmarked Insurance Cost;
19.7.2.3 a spreadsheet detailing separately:
(a) the sum(s) insured/limit of indemnity (i.e. rateable factor) for each of the Benchmarked Insurances;
(b) the premium rate for each of the Benchmarked Insurances;
(c) the net premium paid (or to be paid) for each of the Benchmarked Insurances (i.e. excluding both insurance premium tax and broker's fees and commissions);
(d) the deductible(s) for each of the Benchmarked Insurances; and
(e) details of any claims (paid or reserved) (including incident date, type and quantum) in excess of $100,000 (indexed);
19.7.2.4 an assessment and quantification of each Project Insurance Change together with reasons therefor;
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19.7.2.5 full details of any Portfolio Cost Savings;
19.7.2.6 any other reasons that Developer believes may have caused a change (by way of increase or decrease by reference to the Base Benchmarked Insurance Cost) in the Actual Benchmarked Insurance Cost;
19.7.2.7 the opinion of the Insurance Broker as to the reasons why the Actual Benchmarked Insurance Cost has varied from the Base Benchmarked Insurance Cost, specifying the impact of each of the factors and quantifying the amount attributable to each factor specified above;
19.7.2.8 the calculation of the Insurance Cost Differential and any Exceptional Cost or Exceptional Saving arising from this calculation; and
19.7.2.9 evidence satisfactory to the Authority (acting reasonably) of any changes to circumstances generally prevailing in the Relevant Insurance Markets that are claimed to account for the Insurance Cost Differential.
19.7.3 Developer shall procure that the Insurance Broker, no later than the date which is ten (10) Business Days after the Insurance Review Date, delivers to the Authority at the same time as it delivers to Developer at least two copies of the Joint Insurance Cost Report. The Authority, at its sole discretion, may independently assess the accuracy of the information in the Joint Insurance Cost Report and retains the right to perform its own independent insurance review, which may include retaining advisors or performing its own assessment as to the impact of claims history on renewal costs. If the Authority, in its sole discretion, elects to retain its own insurance advisor to analyze the extent of eligible premium increases, Developer shall cooperate in good faith with any reasonable requests for additional information from the Authority’s insurance advisor.
19.7.4 No later than 30 Days after Developer’s submission of a Joint Insurance Cost Report, the Authority shall make its determination of the amounts subject to the risk allocation described in Sections 19.7.5 to 19.7.7 below. In the event of a dispute, the Authority’s determination shall be subject to the Dispute Resolution Procedures.
19.7.5 If, following the completion of the Insurance Premium Benchmarking Procedure, it is agreed or determined that there is an Exceptional Cost, the Authority shall within thirty (30) Business Days of completion of the Insurance Review Procedure make a one-off lump-sum payment to Developer equal to 85% of the Exceptional Cost.
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19.7.6 If, following the completion of the Insurance Premium Benchmarking Procedure, it is agreed or determined that there is an Exceptional Saving, Developer shall within thirty (30) Business Days of completion of the Insurance Premium Benchmarking Procedure make a one-off lump-sum payment to the Authority equal to 85% of the Exceptional Saving.
19.7.7 Following the completion of the Insurance Premium Benchmarking Procedure, if it is agreed or determined that there is neither an Exceptional Cost nor an Exceptional Saving, any Insurance Cost Differential shall be borne by or benefit Developer.
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ARTICLE 20. DEVELOPER INDEMNITY
20.1 Indemnified Losses
Subject to Section 20.2 (Exclusions from Indemnity), to the fullest extent permitted by Applicable Law, Developer shall release, defend, indemnify and hold harmless the Indemnified Parties on demand from and against any and all liability for Losses arising from:
20.1.1 death or personal injury;
20.1.2 loss of or damage to any Indemnified Party’s property (excluding the Existing Bridge and the Replacement Bridge), including loss of use thereof; and/or
20.1.3 third party actions, claims, fines, penalties and/or demands brought against any Indemnified Party,
which may arise out of, or in consequence of, the performance or non-performance by Developer of its obligations under the Project Documents.
20.2 Exclusions from Indemnity
Developer shall not be responsible or be obliged to indemnify an Indemnified Party in respect of any Losses under Section 20.1 (Indemnified Losses) to the extent that the same arise as a direct result of:
20.2.1 a Compensation Event or Relief Event;
20.2.2 the fraud, negligence, recklessness, bad faith or willful misconduct of an Indemnified Party; or
20.2.3 any performance or non-performance by an Indemnified Party of its obligations under the Project Documents.
20.3 Limitation of Indemnity
An indemnity by either Party under any provision of the Project Documents shall be without limitation to any indemnity by that Party under any other provision of the Project Documents.
20.4 Conduct of Third-Party Claims
20.4.1 Where either Party (the “Claiming Party”) wishes to make a claim under this Agreement against the other (the “Indemnifying Party”) in relation to a Third-Party Claim, the Claiming Party shall give notice of the relevant claim as soon as reasonably practicable setting out the full particulars of the claim.
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20.4.2 Subject to the rights of the insurers under the Insurance Policies, the Indemnifying Party may at its own expense and with the assistance and cooperation of the Claiming Party conduct and control the Third-Party Claim including its settlement and the Claiming Party shall not, to the extent that the Indemnifying Party has elected to conduct and control the relevant Third-Party Claim, take any action to settle or prosecute the Third-Party Claim.
20.4.3 The Indemnifying Party shall, if it wishes to have conduct of any Third-Party Claim, reimburse the Claiming Party for any cost or liability arising out of the conduct of the Third-Party Claim by the Indemnifying Party.
20.4.4 The Claiming Party shall at all times take all reasonable steps to minimize and mitigate any loss for which the Claiming Party is entitled to bring a claim against the Indemnifying Party pursuant to this Agreement.
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ARTICLE 21. REPRESENTATIONS AND WARRANTIES
21.1 Developer Representations and Warranties
Developer hereby represents and warrants to the Authority that:
21.1.1 The Financial Model (a) was prepared by or on behalf of Developer in good faith and utilizes the same financial formulas that Developer utilized and is utilizing in making its decision to enter into this Agreement and in making disclosures to potential equity investors and Lenders under the Financing Documents, (b) represents the projections that Developer believes in good faith are the most realistic and reasonable for the Project, (c) was audited and verified by an independent recognized model auditor prior to the date of this Agreement and such audit will be updated within forty-eight (48) hours after the Financial Closing Date, and (d) fully discloses all cost, revenue and other financial assumptions and projections that Developer has used or is using in making its decision to enter into this Agreement and in making disclosures to Lenders under the Financing Documents; provided, however, that such projections (i) are based upon a number of estimates and assumptions, (ii) are subject to significant business, economic and competitive uncertainties and contingencies, and (iii) accordingly are not a representation or warranty that any of the assumptions are correct, that such projections will be achieved or that the forward-looking statements expressed in such projections will correspond to actual results.
21.1.2 Developer has reviewed all Applicable Laws relating to Taxes, and has taken into account all requirements imposed by such Applicable Laws in preparing the Financial Model.
21.1.3 Developer and its Contractor(s) have maintained, and throughout the term of this Agreement shall maintain, all required authority, license status, professional ability, skills and capacity to perform the then-current stage of the Work.
21.1.4 Without limiting its rights and remedies expressly granted hereunder, Developer has evaluated the constraints (including the Project Specific Constraints) affecting design and construction of the Project, including the Project Right of Way, as well as the conditions of the Governmental Approvals then in effect, and has reasonable grounds for believing, and does believe, that the Project can be designed and built within such constraints.
21.1.5 Without limiting its rights and remedies expressly granted hereunder, Developer has, in accordance with Best Management Practice, examined the Project Right of Way and surrounding locations, investigated and reviewed the Geotechnical Reports, Hazardous
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Materials Baseline Report, the Utility information and other available public and private records, and undertaken other activities sufficient to familiarize itself with surface conditions and subsurface conditions, including the presence of Utilities, Hazardous Materials, contaminated groundwater, archaeological, paleontological and cultural resources, and endangered and threatened species, affecting the Project Right of Way or surrounding locations; and as a result of such review, inspection, examination and other activities Developer is familiar with and, subject to the provisions of this Agreement, accepts the physical requirements of the Work; provided that the same shall not diminish, reduce or otherwise affect any of Developer's rights under this Agreement.
21.1.6 To the extent given access on or prior to the date hereof, Developer has familiarized itself with the requirements of any and all Applicable Laws, including those Applicable Laws applicable to the use of federal-aid funds, and the conditions of any required Governmental Approvals then in effect prior to entering into this Agreement. Except as specifically permitted in this Agreement, Developer shall be responsible for complying with all Applicable Laws at its sole cost and without any increase in compensation or extension of any deadlines in the Project Working Schedule on account of such compliance, regardless of whether such compliance would require additional time for performance or additional labor, equipment and/or materials not expressly provided for in the Project Documents. Developer has no reason to believe that any Governmental Approval required to be obtained by Developer will not be granted in due course and, thereafter, remain in effect so as to enable the Work to proceed in accordance with the Project Documents.
21.1.7 All Work furnished by Developer will be performed by or under the supervision of Persons who hold all necessary, valid licenses to practice in the States, by personnel who are skilled, experienced and competent in their respective trades or professions, who are professionally qualified to perform the Work in accordance with the Project Documents.
21.1.8 Developer is a limited liability company duly organized and validly existing under the laws of Delaware, has the requisite power and all required licenses to carry on its present and proposed activities, and has full power, right and authority to execute and deliver this Agreement, and the Principal Developer Documents to which Developer is a party and to perform each and all of the obligations of Developer provided for herein and therein. Developer is duly qualified to do business, and is in good standing, in the States, and will remain in good standing throughout the Term and for as long thereafter as any obligations remain outstanding under the Project Documents.
21.1.9 The execution, delivery and performance of this Agreement and the Principal Developer Documents to which Developer is (or will be) a party have been (or will be) duly authorized by all necessary limited
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liability company action of Developer; each person executing this Agreement and such Principal Developer Documents on Developer’s behalf has been (or at the time of execution will be) duly authorized to execute and deliver each such document on Developer’s behalf; and this Agreement and such Principal Developer Documents have been (or will be) duly executed and delivered by Developer.
21.1.10 Neither the execution and delivery by Developer of this Agreement and the Principal Developer Documents to which Developer is (or will be) a party, nor the consummation of the transactions contemplated hereby or thereby, is (or at the time of execution will be) in conflict with or has resulted or will result in a default under or a violation of the organizational documents of Developer or any other material agreements or instruments to which it is a party or which are binding on Developer or any of its property or assets or in a material default or violation of any Applicable Law.
21.1.11 Each of this Agreement and the Principal Developer Documents to which Developer is (or will be) a party constitutes (or at the time of execution and delivery will constitute) the legal, valid and binding obligation of Developer, enforceable against Developer and, if applicable, each member of Developer, in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting the enforceability of the rights of creditors generally and the general principles of equity.
21.1.12 There is no action, suit, proceeding, investigation or litigation pending or served on Developer or, to Developer’s knowledge, threatened which (a) would reasonably be expected to have a material adverse effect on the ability of Developer to perform its obligations under any Project Document or (b) challenges Developer’s authority to execute, deliver or perform, or the validity or enforceability of, this Agreement and the Principal Developer Documents to which Developer is a party, or which challenges the authority of Developer’s representative executing this Agreement or such Principal Developer Documents; and Developer has disclosed to the Authority any pending and un-served or threatened action, suit, proceeding, investigation or litigation with respect to such matters of which Developer is aware.
21.1.13 To the extent the Lead Contractor, the Lead Engineering Firm and/or the Lead Maintenance Firm is not Developer, Developer represents and warrants, as of the effective date of the relevant Key Contract, as follows: (a) each of the Lead Contractor, the Lead Engineering Firm and the Lead Maintenance Firm is duly organized, validly existing and in good standing under the laws of the state of its organization; (b) the capital stock of each of them (including options, warrants and other rights to acquire capital stock) is owned by the Persons who Developer has set forth in a written certification delivered to the Authority prior to the Financial Closing Date; (c) each of them has the power and the authority to do all acts and things and execute and deliver all other documents as are required to be done, observed or performed by it in
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connection with its engagement by Developer; (d) each of them has all necessary licenses, expertise, qualifications, experience, competence, skills and know-how to perform the then-current D&C Work and the Maintenance Work, as applicable, of the Project in accordance with the Project Documents; and (e) each of them is not in breach of any Applicable Law that would have a material adverse effect on the D&C Work and Maintenance Work, as applicable, of the Project.
21.1.14 The audited consolidated financial statements of each of Developer (to the extent available), the Equity Members, the Lead Contractor, the Lead Engineering Firm and/or the Lead Maintenance Firm (or the audited consolidated financial statements of the parent company of such Key Contractor, in the case of any such Key Contractor that is a special purpose vehicle) for the most recent reporting year prior to submission of the Proposal for which such audited statements are available have been prepared on a basis consistently applied and using GAAP or equivalent accounting principles utilized and generally accepted in the country of incorporation of such party, and audited by an independent certified public accountant (applying GAAP or equivalent auditing standards utilized and generally accepted in the country of incorporation of such party) and give a true and fair view of the consolidated financial condition of each such entity or group (as applicable) and are unqualified for the accounting period in question; provided, that in the case of Developer, such financial statements shall be on a pro forma basis.
21.1.15 There has been no material adverse change in the financial condition of Developer, the Equity Members, the Lead Contractor, the Lead Engineering Firm and/or the Lead Maintenance Firm or the parent company of any such Key Contractor since the date of its most recent audited financial statements that would have a material adverse effect on Developer’s ability to perform its obligations under this Agreement and the other Project Documents.
21.1.16 All written information and certifications furnished by or on behalf of Developer to the Authority, or any of its representatives or advisors, as part of or in connection with the Proposal and the negotiation of this Agreement or the Project Documents or delivered by or on behalf of Developer to the Authority or any Person on its behalf pursuant to this Agreement was true and accurate in all material respects when given and is true on the date on which this representation is made or repeated and taken as a whole and there are no other facts or matters the omission of which made any statement or information contained in the written information provided to the Authority or to any of its representatives or advisors misleading in any material respect as of the relevant date of delivery thereof or the date on which this representation is made or repeated and all expressions of opinion contained therein were honestly made on reasonable grounds after due and careful enquiry.
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21.1.17 The legal, beneficial and equitable ownership of Developer and the indirect ownership of Developer by each Qualified Investor are as set out in Appendix 2 (List of Equity Members, Qualified Investors and Related Entities) and no arrangements are in place that will result in, or may reasonably be likely to result in, a Restricted Change in Ownership.
21.2 Authority Representations and Warranties
The Authority hereby represents and warrants to Developer that:
21.2.1 The Authority is a municipal corporate instrumentality and political subdivision of the States, created and existing by virtue of the Compact of April 30, 1921, made by and between the States and, therefore, consented to by the Congress of the United States.
21.2.2 The Authority has the right and authority to execute, deliver and perform the Principal Authority Documents and to perform each and all of the obligations of the Authority set out therein.
21.2.3 Each Principal Authority Document has been duly authorized by the Authority, and each constitutes a legal, valid and binding obligation of the Authority enforceable against the Authority in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting the enforceability of the rights of creditors generally and the general principles of equity.
21.2.4 Each person executing a Principal Authority Document on behalf of the Authority has been (or at the time of execution will be) duly authorized to execute and deliver each such document on behalf of the Authority and each Principal Authority Document has been (or will be) duly executed and delivered by the Authority.
21.2.5 The execution, delivery and performance by the Authority of the Principal Authority Documents and the performance by the Authority of its obligations under each Principal Authority Document will not contravene, result in any breach of, or constitute a default under, the organizational documents of the Authority or any other material agreements or instruments to which the Authority is a party or which is binding on the Authority or any of its property or assets or conflict with or violate any Applicable Law.
21.2.6 There are no actions, suits, proceedings, investigations or litigation pending against the Authority or, to the knowledge of the Authority, threatened against or affecting the Authority that, individually or in the aggregate, could reasonably be expected to have a material adverse effect on:
21.2.6.1 the business or condition (financial or otherwise) of the Authority;
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21.2.6.2 the ability of the Authority to perform its obligations under the Principal Authority Documents; or
21.2.6.3 the validity or enforceability of all or a material part of a Principal Authority Document.
21.3 Repetition and survival of Representations and Warranties
The representations and warranties of Developer and the Authority contained herein are made on the date of this Agreement and repeated on the date of Financial Close with respect to the facts and circumstances then subsisting.
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ARTICLE 22. DEVELOPER DEFAULT
22.1 Developer Default
The occurrence of any one or more of the following events or conditions shall constitute a “Developer Default”:
22.1.1 Developer fails to satisfy the applicable conditions to commencement of the Design Work as set forth in Section 7.4 (Conditions to NTP 1) within sixty (60) days of the Financial Closing Date, except to the extent that such failure arises as a direct result of the occurrence of a Compensation Event or a Relief Event;
22.1.2 Developer fails to begin the applicable portion of the Design Work within thirty (30) days of the Authority’s issuance of NTP 1, except to the extent that such failure arises as a direct result of the occurrence of a Compensation Event or a Relief Event;
22.1.3 Developer (i) discontinues the performance of the Work for a period of sixty (60) or more consecutive days, or (ii) fails to resume discontinued Work as required by the Project Documents within sixty (60) days after the Authority notifies Developer to do so, provided that any period that the performance of the Work is discontinued in response to the occurrence of a Compensation Event or a Relief Event shall be deemed not to have occurred for the purposes of this Section 22.1.3;
22.1.4 Developer fails to comply with any Governmental Approvals or Applicable Law, including the Federal Requirements, in any material respect;
22.1.5 Developer fails in any material respect to make a payment to the Authority under this Agreement when due, provided that the payment is not subject to a good faith Dispute, or fails to deposit funds in the Handback Reserve Account in the amount and within the time period required by this Agreement;
22.1.6 subject to Sections 19.4 and 19.5, Developer fails to obtain, provide and maintain the Insurance Policies in accordance with the requirements of this Agreement;
22.1.7 any failure by Developer to comply with Article 29 (Assignment and Transfer; Fundamental Changes);
22.1.8 a Restricted Change in Ownership occurs;
22.1.9 any representation or warranty made by Developer in the Project Documents or any certificate, schedule, report, instrument or other document delivered to the Authority pursuant to the Project Documents
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is false in any material respect or materially misleading or inaccurate in any material respect when made or omits material information when made;
22.1.10 an Insolvency Event arises with respect to:
22.1.10.1 Developer;
22.1.10.2 Borrower; and/or
22.1.10.3 any D&C Contractor or D&C Guarantor (in each case only during the Construction Period) or Maintenance Contractor, unless Developer enters into a replacement D&C Contract or Maintenance Contract (as relevant) with a reputable counterparty reasonably acceptable to the Authority within sixty (60) days of the termination of the relevant D&C Contract or Maintenance Contract (as relevant);
22.1.11 Any D&C Contract or Maintenance Contract is terminated (other than non-default termination on its scheduled termination date) and Developer has not entered into a replacement D&C Contract or Maintenance Contract (as relevant) with a reputable counterparty reasonably acceptable to the Authority within sixty (60) days of the termination of the relevant D&C Contract or Maintenance Contract (as relevant);
22.1.12 Developer fails to comply with any written suspension of Work order issued by the Authority pursuant to Section 7.13 (Suspension of Construction Work or Demolition Work) as soon as is practicable, except to the extent that such failure arises as a direct result of a Relief Event;
22.1.13 Developer fails to:
22.1.13.1 commence the Construction Work by the Construction Commencement Deadline; or
22.1.13.2 achieve D&C Work Completion by the Long Stop Deadline;
22.1.14 a Persistent Breach occurs;
22.1.15 subject to Section 12.3.3.3, a Persistent Closure occurs;
22.1.16 subject to Section 12.3.3.3, a Developer Noncompliance Trigger Event occurs;
22.1.17 Developer authorizes or imposes any fee, toll, charge or other amount for the use of the Project;
22.1.18 a Closure of all six (6) lanes (or all four (4) lanes at any time between Service Commencement and Substantial Completion) of the
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Replacement Bridge for a continuous period of more than twelve (12) hours occurs, except to the extent that such Closure is a Permitted Closure or arises as direct result of the occurrence of a Relief Event; or
22.1.19 without limitation to Sections 22.1.1 to 22.1.18 (inclusive), any breach (other than (a) any breach for which a Noncompliance Point or an Hourly Unavailability Event could have been assessed, or (b) any breach that arises as a direct result of the occurrence of a Compensation Event or a Relief Event) by Developer of any other material obligation under this Agreement or any written repudiation of this Agreement by Developer.
22.2 Termination for Persistent Breach by Developer
22.2.1 Warning Notice
If Developer commits a breach of this Agreement (other than (a) any breach for which a Noncompliance Point or an Hourly Unavailability Event could have been assessed or (b) any breach that arises as a direct result of the occurrence of a Compensation Event or a Relief Event) that continues for more than thirty (30) consecutive days or occurs more than three (3) times in any six (6)-month period then the Authority may serve a notice (an “Initial Warning Notice”) on Developer:
22.2.1.1 specifying that it is an Initial Warning Notice;
22.2.1.2 giving reasonable details of the relevant breach; and
22.2.1.3 stating that the relevant breach is a breach which, if it recurs frequently or continues, may result in termination of this Agreement for Persistent Breach.
22.2.2 Final Notice
If the breach specified in an Initial Warning Notice continues beyond thirty (30) consecutive days or recurs in three (3) or more months within the six (6)-month period after the date of service of the Initial Warning Notice, then the Authority may serve another notice (a “Final Warning Notice”) on Developer:
22.2.2.1 specifying that it is a Final Warning Notice;
22.2.2.2 stating that the breach specified has been the subject of an Initial Warning Notice served within the six (6)-month period prior to the date of service of the Final Warning Notice; and
22.2.2.3 stating that if the breach continues for more than thirty (30) consecutive days or recurs in three (3) or more months within the six (6)-month period after the date of service of the Final Warning Notice, this Agreement may be terminated for Persistent Breach.
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22.2.3 Currency of Warning Notices
An Initial Warning Notice may not be served in respect of any incident of breach which has previously been the subject of an Initial Warning Notice.
22.3 Initial Notice and Cure Periods
The Authority shall provide written notice to Developer of the occurrence of a Developer Default. Upon receipt of the Authority’s notice (if required), Developer shall have the following cure periods:
22.3.1 For a Developer Default under Sections 22.1.1 through Section 22.1.3 and Sections 22.1.5 through 22.1.8, a period of thirty (30) days after Developer receives written notice from the Authority of such Developer Default.
22.3.2 For a Developer Default under Sections 22.1.4, 22.1.9, 22.1.10 or 22.1.19 a period of thirty (30) days after Developer receives written notice from the Authority of such Developer Default; provided, that:
22.3.2.1 if such Developer Default cannot be cured within such time period, despite Developer’s commencement of meaningful steps to cure immediately after receiving the default notice, then Developer shall have such additional period of time, up to a maximum cure period of one hundred twenty (120) days, as is reasonably necessary to effect cure; and
22.3.2.2 with respect to a Developer Default under Section 22.1.9, cure will be regarded as complete when the adverse effects of the breach are cured.
22.3.3 For any other Developer Default not referred to in Section 22.3.1 or Section 22.3.2, there is no cure period.
22.4 Authority Remedies for Developer Default
22.4.1 Remedial Plan
22.4.1.1 In the event that a Developer Default occurs and it has not been cured within any relevant cure period set out in Section 22.3 (Initial Notice and Cure Periods) the Authority may, without prejudice to any other right or remedy available to it, require Developer to prepare and submit, within twenty (20) Business Days of being notified of such requirement, a remedial plan that shall set forth a schedule and specific actions to be taken by Developer to cure the relevant Developer Default and reduce the likelihood of such defaults occurring in the future. Such actions may, amongst other things, include improvements to Developer’s quality management practices, plans and procedures, revising and restating management plans, changes in
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organizational and management structure, increased monitoring and inspections, changes in Key Personnel and other important personnel, and replacement of Contractors.
22.4.1.2 Within twenty (20) Business Days of receiving any remedial plan pursuant to Section 22.4.1.1, the Authority shall notify Developer whether or not the relevant remedial plan is, in the Authority's sole discretion, acceptable. If Authority notifies Developer that the relevant remedial plan is acceptable, Developer shall implement such remedial plan in accordance with its terms.
22.4.2 Right of Termination
In the event that a Developer Default occurs and it has not been cured within any relevant cure period set out in Section 22.3 (Initial Notice and Cure Periods) or (if relevant) in accordance with any remedial plan accepted by the Authority pursuant to Section 22.4.1 (Remedial Plan), the Authority may terminate this Agreement in accordance with Section 24.4 (Termination for Developer Default).
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ARTICLE 23. AUTHORITY DEFAULT
23.1 Authority Default
The occurrence of any one or more of the following events or conditions shall constitute an “Authority Default”:
23.1.1 the Authority fails to make any payment due to Developer (or any permitted assignee thereof) under this Agreement when due; provided, that such payment is not subject to a good faith Dispute;
23.1.2 any representation or warranty made by the Authority under Section 21.2 (Authority Representations and Warranties) is false or materially misleading or inaccurate when made in each case in any material respect or omits material information when made;
23.1.3 the Authority or any other Governmental Entity confiscates, sequesters, condemns or appropriates the Project or any material part thereof, or Developer’s Interest or any material part thereof, excluding the exercise of any right set forth in this Agreement;
23.1.4 the Authority has ceased to perform substantially all of its obligations under this Agreement, which substantially frustrates or renders it impossible for Developer to perform its obligations under this Agreement for a continuous period of two (2) months;
23.1.5 any failure by the Authority to comply with Article 29 (Assignment and Transfer; Fundamental Changes);
23.1.6 the Authority amends (without the prior written consent of Developer, which consent shall not be unreasonably withheld) the Goethals Bridge Modernization Program Project Authorization or the Consolidated Bond Resolution in a manner which would materially and adversely affect or diminish the rights of Developer under this Agreement or materially and adversely impact the Authority's ability to comply with its obligations under this Agreement; provided, however, that nothing herein shall prohibit or in any way restrict any issuance of Consolidated Bonds or other incurrence of indebtedness by the Authority; or
23.1.7 the Authority ceases to be authorized to make any payment to be made by the Authority under this Agreement.
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23.2 Initial Notice and Cure Periods
Developer shall provide written notice to the Authority of the occurrence of an Authority Default. Upon receipt of Developer's notice, the Authority shall have the following cure periods with respect to the following Authority Defaults:
23.2.1 for an Authority Default under Section 23.1.1 (other than with respect to DFA Payments), a period of thirty (30) days after Developer delivers to the Authority written notice of such an Authority Default;
23.2.2 for an Authority Default under Section 23.1.1 with respect to DFA Payments, a period of ten (10) days after Developer delivers to the Authority written notice of such an Authority Default;
23.2.3 for an Authority Default under Section 23.1.2 or Section 23.1.3, a period of thirty (30) days after Developer delivers to the Authority written notice of such an Authority Default; provided, that if such Authority Default cannot be cured within such time period, despite the Authority’s commencement of meaningful steps to cure immediately after receiving the default notice, then the Authority shall have such additional period of time, up to a maximum cure period of one hundred twenty (120) days, as is reasonably necessary to effect cure;
23.2.4 for an Authority Default under Section 23.1.4, a period of thirty (30) days after Developer delivers to the Authority written notice of such an Authority Default; and
23.2.5 for any other Authority Default not referred to in Sections 23.2.1 to 23.2.4 (inclusive), there is no cure period.
23.3 Right of Termination
In the event that an Authority Default occurs and it has not been cured within any relevant cure period set out in Section 23.2 (Initial Notice and Cure Periods), Developer may terminate this Agreement in accordance with Section 24.2 (Termination for Authority Default).
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ARTICLE 24. TERMINATION
24.1 Termination for Convenience
24.1.1 The Authority may terminate this Agreement at any time on or before the last day of the Term by complying with its obligations under Section 24.1.2.
24.1.2 If the Authority wishes to terminate this Agreement under this Section 24.1 (Termination for Convenience), it must give a Termination Notice to Developer stating:
24.1.2.1 that the Authority is terminating this Agreement under this Section 24.1 (Termination for Convenience); and
24.1.2.2 that this Agreement will terminate on the date specified in the notice, which must be a minimum of twenty (20) Business Days after the date of receipt of the notice.
24.1.3 This Agreement will terminate on the date specified in the Termination Notice referred to in Section 24.1 (Termination for Convenience).
24.1.4 If this Agreement is terminated pursuant to this Section 24.1 (Termination for Convenience), the Authority shall pay the Authority Termination Sum to Developer in accordance with Exhibit 6 (Compensation on Termination).
24.2 Termination for Authority Default
24.2.1 If an Authority Default occurs and it has not been cured within any relevant cure period set out in Section 23.2 (Initial Notice and Cure Periods), Developer may serve a Termination Notice (the “Developer Termination Notice”) on the Authority at any time during the continuance of that Authority Default.
24.2.2 A Developer Termination Notice must specify the type of Authority Default which has occurred entitling Developer to terminate.
24.2.3 This Agreement will terminate on the date falling twenty (20) Business Days after the date the Authority receives the Developer Termination Notice.
24.2.4 If this Agreement is terminated pursuant to this Section 24.2 (Termination for Authority Default), the Authority shall pay the Authority Termination Sum to Developer in accordance with Exhibit 6 (Compensation on Termination).
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24.3 Termination for Extended Force Majeure
24.3.1 Effect of Force Majeure on Obligations
No Party shall be entitled to bring a claim for a breach of obligations under this Agreement by the other Party or incur any liability to the other Party for any losses or damages incurred by that other Party to the extent that a Force Majeure Event occurs and the Affected Party is prevented from carrying out obligations by that Force Majeure Event. During the continuance of any Force Majeure Event, the Affected Party shall be excused from performing those of its obligations directly affected by such Force Majeure Event; provided that the occurrence or continuance of any Force Majeure Event shall not excuse any Party from performing any payment obligations contemplated under this Agreement or any other Project Document.
24.3.2 Notification for Force Majeure
On the occurrence of a Force Majeure Event, the Affected Party shall notify the other Party as soon as practicable. The notification shall include details of the Force Majeure Event, including evidence of its effect on the obligations of the Affected Party and any action proposed to mitigate its effect.
24.3.3 Consultation
As soon as practicable following such notification, the Parties shall consult with each other in good faith and use all Reasonable Efforts to agree appropriate terms to mitigate the effects of the Force Majeure Event and facilitate the continued performance of this Agreement.
24.3.4 Unable to Agree
If no such terms are agreed on or before the date falling one hundred twenty (120) days after the date of the commencement of the Force Majeure Event and such Force Majeure Event is continuing or its consequence remains such that the Affected Party is unable to comply with its relevant obligations under this Agreement for a continuous period of more than one hundred eighty (180) days (including, if applicable, the one hundred twenty (120) day period referred to above), then, subject to Section 24.3.5 (Consequences of Termination), either Party may terminate this Agreement by giving twenty (20) Business Days’ written notice to the other Party.
24.3.5 Consequences of Termination
If this Agreement is terminated pursuant to Section 19.4.1 (Consequences of a risk becoming an Uninsurable Risk), Section 24.3.4 (Unable to Agree) or Section 24.3.6 (Notice to Continue), the Authority shall pay the Extended Force Majeure Termination Sum to Developer in accordance with Exhibit 6 (Compensation on Termination).
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24.3.6 Notice to Continue
If Developer gives notice to the Authority under Section 24.3.4 (Unable to Agree) during the Maintenance Period that it wishes to terminate this Agreement, then the Authority has the option either to accept such notice or to respond in writing on or before the date falling ten (10) Business Days after the date of its receipt stating that it requires this Agreement to continue. If the Authority gives Developer such notice (the “Continuation Notice”), then:
24.3.6.1 the Authority shall pay to Developer each Monthly Disbursement from the day after the date on which this Agreement would have terminated under Section 24.3.4 (Unable to Agree) as if the Works were being fully provided in accordance with the requirements of this Agreement and all other amounts, including losses and expenses caused by any damage or delay (to the extent not covered by insurance proceeds), including by Force Majeure Events;
24.3.6.2 this Agreement will not terminate until expiry of written notice (of at least twenty (20) Business Days) from the Authority to Developer that it wishes this Agreement to terminate; and
24.3.6.3 Developer will be responsible for the continuation of the Maintenance Work only to the extent practicable.
24.3.7 Mitigation
The Parties shall at all times following the occurrence of a Force Majeure Event use all Reasonable Efforts to prevent and mitigate the effects of any delay and Developer shall at all times during which a Force Majeure Event is subsisting take all steps in accordance with Best Management Practice to overcome or minimize the consequences of the Force Majeure Event.
24.3.8 Cessation of Force Majeure Event
The Affected Party shall notify the other Party as soon as practicable after the Force Majeure Event ceases or no longer causes the Affected Party to be unable to comply with its obligations under this Agreement. Following such notification this Agreement shall continue to be performed on the terms existing immediately prior to the occurrence of the Force Majeure Event.
24.4 Termination for Developer Default
24.4.1 If a Developer Default occurs and it has not been cured within any relevant cure period set out in Section 22.3 (Initial Notice and Cure Periods), the Authority may serve a Termination Notice (the “Authority Termination Notice”) on Developer at any time during the continuance of that Developer Default.
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24.4.2 The Authority Termination Notice must specify the type of Developer Default which has occurred entitling the Authority to terminate.
24.4.3 Subject to the terms of the Direct Agreement, this Agreement will terminate on the date falling twenty (20) Business Days after the date Developer receives the Authority Termination Notice.
24.4.4 If this Agreement is terminated pursuant to this Section 24.4 (Termination for Developer Default), the Authority shall pay the Developer Default Termination Sum to Developer in accordance with Exhibit 6 (Compensation on Termination).
24.5 Termination for Terrorism
24.5.1 If an act of Terrorism causes physical damage to the Replacement Bridge and either:
24.5.1.1 the Replacement Bridge is reasonably likely to be out of service for more than sixty (60) days; or
24.5.1.2 the cost of reinstating such physical damage is reasonably likely to exceed $1,000,000 (subject to indexation in accordance with Section 2.11 of Exhibit 8 (Payment Mechanism))
the Authority may serve a Termination Notice on Developer within sixty (60) days of the relevant act of Terrorism.
24.5.2 This Agreement will terminate on the date falling twenty (20) Business Days after the date Developer receives any Termination Notice pursuant to Section 24.5.1.
24.5.3 If this Agreement is terminated pursuant to this Section 24.5 (Termination for Terrorism), the Authority shall pay the Extended Force Majeure Termination Sum to Developer in accordance with Exhibit 6 (Compensation on Termination).
24.6 Termination Procedures and Duties
Upon expiration of the Term or any Early Termination for any reason, the provisions of this Section 24.6 (Termination Procedures and Duties) shall apply. Except as expressly provided otherwise in this Section 24.6 (Termination Procedures and Duties), Developer shall timely comply with such provisions independently of, and without regard to, the timing for determining, adjusting, settling and paying any amounts due Developer or the Authority on account of termination.
24.6.1 Transition Plan
24.6.1.1 Within three (3) days after receipt by the relevant Party of a Termination Notice, the Parties shall meet and confer with each other for the purpose of developing an interim
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transition plan for the orderly transition of Work, demobilization and transfer of control of the Project and Project Right of Way to the Authority. The Parties shall use diligent efforts to complete preparation of the interim transition plan within fifteen (15) days after the date the relevant Party receives the Termination Notice.
24.6.1.2 The Parties shall use diligent efforts to complete a final transition plan within thirty (30) days after receipt by the relevant Party of a Termination Notice. The final transition plan shall be in form and substance reasonably acceptable to the Authority and shall include and be consistent with the other provisions and procedures set forth in this Section 24.6 (Termination Procedures and Duties), all of which procedures Developer shall promptly follow, regardless of any delay in preparation or acceptance of the interim or final transition plan. The final transition plan shall include an estimate of costs and expenses to be incurred by both Parties in connection with implementation of the transition plan.
24.6.2 Handback of the Project
24.6.2.1 On the Termination Date, or as soon thereafter as is possible as provided in the final transition plan, Developer shall relinquish and surrender full control and possession of the Project and Project Right of Way to the Authority or the Authority’s Authorized Representative, and shall cause all Persons claiming under or through Developer to do likewise, in at least the condition required by the Handback Requirements.
24.6.2.2 On the later of the Termination Date or the date Developer relinquishes control and possession as provided in the final transition plan, the Authority shall assume responsibility, at its expense (subject to the right to recover damages under this Agreement), for the Project and the Project Right of Way.
24.7 Exclusive Termination Rights
This Article 24 (Termination) and Exhibit 6 (Compensation on Termination) contain the entire and exclusive provisions and rights of the Authority and Developer regarding termination of this Agreement, and any and all other rights to terminate under Applicable Law are hereby waived to the maximum extent permitted by Applicable Law.
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ARTICLE 25. AUTHORITY STEP-IN
25.1 Right to Step-in
If the Authority reasonably believes that it needs to take action in connection with the Works because:
25.1.1 an Emergency has arisen;
25.1.2 a Developer Default has arisen and has not been cured within any relevant cure period set out in Article 22 (Developer Default); or
25.1.3 Developer has failed to meet any Safety Standard or comply with any Safety Compliance Order within a reasonable period of time under the circumstances,
then, subject to the Direct Agreement, the Authority shall be entitled to take action in accordance with Section 25.2 through 25.5 below.
25.2 Notice to Developer
If Section 25.1 (Right to Step-in) applies and the Authority wishes to take action, the Authority shall notify Developer in writing of the following:
25.2.1 the action it wishes to take;
25.2.2 the reason for such action;
25.2.3 the date it wishes to commence such action;
25.2.4 the time period which it believes will be necessary for such action; and
25.2.5 to the extent practicable, the effect on Developer and its obligation to carry out the Works during the period such action is being taken.
25.3 Action by Authority
25.3.1 Following service of such notice, the Authority shall take such action as notified under Section 25.2 (Notice to Developer) and any consequential additional action as it reasonably believes is necessary (together, the “Required Action”) and Developer shall use Reasonable Efforts to give all assistance to the Authority while it is taking the Required Action. The Authority shall provide Developer with notice of completion of the Required Action and shall use Reasonable Efforts to provide such advance notice as is reasonably practicable of its anticipated completion.
25.3.2 The Authority shall undertake all Required Actions in accordance with Best Management Practice.
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25.4 Step-in without Developer Breach
If Developer is not in breach of its obligations under this Agreement, then for so long as and to the extent that the Required Action is taken, and to the extent this prevents Developer from performing its obligations under this Agreement:
25.4.1 Developer shall be relieved from performing its relevant obligations under this Agreement; and
25.4.2 in respect of the period in which the Authority is taking the Required Action and; provided, that Developer provides the Authority with reasonable assistance (such assistance to be at the expense of the Authority to the extent that incremental costs are incurred), such Required Action shall be deemed to be a Compensation Event for the purposes of this Agreement.
25.5 Step-in on Developer Breach
If the Required Action is taken as a result of a breach of the obligations of Developer under this Agreement and following the application of any relevant cure period herein, then for so long as and to the extent that the Required Action is taken, and this prevents Developer from carrying out any part of the Works:
25.5.1 Developer shall be relieved of its obligations to carry out such part of the Works; and
25.5.2 in respect of the period in which the Authority is taking the Required Action, any Noncompliance Event or Closure that arises as a direct result of the Required Action shall, for the purposes of this Agreement, be deemed to have not occurred, but an amount equal to all the Authority’s reasonable and proper costs of operation in taking the Required Action shall be deducted from the Monthly Disbursement.
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ARTICLE 26. MAINTENANCE AND INSPECTION OF RECORDS
26.1 Maintenance and Inspection of Records
26.1.1 Developer shall keep and maintain within the Port District (or other location approved by the Authority in writing in its sole discretion) all books, records and documents relating to the Project, Project Right of Way, or Work, including copies of all original documents delivered to the Authority. Developer shall keep and maintain such books, records and documents in accordance with applicable provisions of the Project Documents and in accordance with Best Management Practice. Developer shall notify the Authority where such records and documents are kept.
26.1.2 Developer shall make all its books, records and documents available for inspection by the Authority, at Developer’s offices within the Port District (or other location approved by the Authority in writing in its sole discretion) at all times during normal business hours, without charge. Developer shall provide to the Authority copies thereof as and when reasonably requested by the Authority. The Authority may conduct any such inspection upon forty-eight (48) hours’ prior written notice, or unannounced and without prior notice where there is good faith suspicion of fraud or criminal activity. The right of inspection includes the right to make extracts and take notes.
26.1.3 Developer shall retain records and documents for a minimum of six (6) years after the date the record or document is generated; provided, that if the Project Documents specify any different time period for retention of particular records, such time period shall control. Notwithstanding the foregoing, all records, which relate to Disputes being processed or actions brought under the Dispute Resolution Procedures shall be retained and made available until any later date that such Disputes and actions are finally resolved.
26.2 Audits
26.2.1 In addition to any other specific audit rights that the Authority may have under the Project Documents, the Authority shall have such rights to review and audit Developer, its Contractors and their respective books and records as the Authority deems necessary for purposes of verifying compliance with the Project Documents and Applicable Law. Without limiting the foregoing, the Authority shall have the right to audit Developer’s Project Management Plan and compliance therewith, including the right to inspect Work and/or activities and to verify the accuracy and adequacy of the Project Management Plan and other relevant Project Documents.
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26.2.2 The Authority’s audit rights include the right to observe the business operations of Developer and its Contractors to confirm the accuracy of books and records.
26.2.3 Developer shall include in the Project Management Plan internal procedures to facilitate review and audit by the Authority and, if applicable, the federal government and any agency thereof, including FHWA.
26.2.4 Developer represents and warrants the completeness and accuracy in all material respects of all information it or its agents provides in connection with the Authority audits, and shall use Reasonable Efforts to cause all Contractors to warrant the completeness and accuracy in all material respects of all information such Contractors provide in connection with the Authority audits.
26.2.5 Developer’s internal and third-party quality and compliance auditing responsibilities shall be set forth in the Project Management Plan.
26.2.6 Developer shall (and shall procure that any Contractor or subcontractor shall) include appropriate terms in each Contract in order to provide the Authority with access and audit rights in accordance with the terms of this Article 26 (Maintenance and Inspection of Records).
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ARTICLE 27. INTELLECTUAL PROPERTY
27.1 Intellectual Property
27.1.1 Developer shall make available to the Authority free of charge (and hereby, for itself and on behalf of each Developer-Related Entity, irrevocably licenses the Authority to use) all Project Data in its ownership or possession or the ownership or possession of a Developer-Related Entity that might reasonably be required by the Authority and Developer shall ensure that it obtains all necessary licenses, permissions and consents to ensure that it can make the Project Data available to the Authority on these terms, for the purposes of:
27.1.1.1 the Authority making the Project available to traffic and the public and operating the Project generally; and
27.1.1.2 following termination of this Agreement, the design or construction of the Replacement Bridge, the operation, maintenance or improvement of the Replacement Bridge and/or the provision of works and/or services the same as or similar to the Works,
and in this Section 27.1.1 "use" shall include the acts of copying, modifying, adapting and translating the material in question and/or incorporating them with other materials and the term "the right to use" shall be construed accordingly. As between the Parties, the Project Data, and all Intellectual Property encompassed therein, is and shall remain the property of the Developer-Related Entities and their licensors, notwithstanding Developer licensing and otherwise making that Project Data available to the Authority.
27.1.2 The Authority shall have and is hereby granted by Developer, for itself and on behalf of each Developer-Related Entity, a nonexclusive, transferable (subject to Section 27.1.4), royalty-free, irrevocable, worldwide, fully paid up right and license to use, reproduce, modify, adapt, disclose to and sublicense to other persons engaged by or on behalf of the Authority (directly or indirectly) in connection with the Project, the Intellectual Property owned or licensable by any Developer-Related Entity; provided, that the Authority shall have the right to exercise such license only as follows:
27.1.2.1 during the Term only in connection with the Authority performing its duties under this Agreement and the other Project Documents and/or any statutory duties which the Authority may have;
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27.1.2.2 from and after the Termination Date, in which case the Authority may exercise such license only in connection with the Project;
27.1.2.3 during any time that the Authority is exercising its step-in rights pursuant to Article 25 (Authority Step-In), in which case the Authority may exercise such license only in connection with the Project; and
27.1.2.4 during any time that Developer has been replaced, in which case the Authority may exercise such license only in connection with the Project.
27.1.3 The Authority shall have no right to sell any Intellectual Property of Developer or to use, reproduce, modify, adapt and disclose, or allow any party to use, reproduce, modify, adapt and disclose, any such Intellectual Property for any other purpose other than as set forth in Section 27.1.2 and must ensure that any Person to which it discloses any Intellectual Property pursuant to the licenses granted under this Section 27.1 agrees to be bound by the provisions of this Section 27.1 and the confidentiality obligations set out in Section 32.21 of this Agreement with respect to that Intellectual Property.
27.1.4 The right to transfer the license is limited to any Governmental Entity that succeeds to the power and authority of the Authority generally or with respect to the Project.
27.1.5 Developer shall continue to have a full and complete right to use any and all duplicates or other originals of its Intellectual Property in any manner it chooses.
27.1.6 With respect to any Intellectual Property that is not owned or licensable by a Developer-Related Party, Developer shall use Reasonable Efforts to obtain from the owner of that Intellectual Property (or any person entitled to license that Intellectual Property), concurrently with execution of any contract, subcontract or purchase order with such Person or with the first use or adaptation of the Intellectual Property in connection with the Project, both for Developer and the Authority, a nonexclusive, transferable (subject to Section 27.1.4), irrevocable, royalty-free license to use, reproduce, modify, adapt and disclose such Intellectual Property solely in connection with the Project of at least identical scope, purpose, duration and applicability as the license granted under Section 27.1.2. Any such license shall be subject to the terms of this Article 27 (Intellectual Property).
27.2 Maintenance of Data
27.2.1 To the extent that any data, materials and documents referred to in this Article 27 (Intellectual Property) are generated by or maintained on a computer or similar system, Developer shall use Reasonable Efforts to procure for the benefit of the Authority, at no charge or at the lowest
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reasonable fee, the grant of a license or sub-license for any relevant software to enable the Authority or its nominee to access and otherwise use (subject to the payment by the Authority of the relevant fee, if any) such data for the purposes set forth in Section 27.1 (Intellectual Property). As an alternative, Developer may provide such data, materials or documents in a format which may be read by software generally available in the market at the relevant time or in hard copy format.
27.2.2 Developer shall ensure the back-up and storage in safe custody of the data, materials and documents referred to in Section 27.2.1 in accordance with Best Management Practice. Without prejudice to this obligation, Developer shall submit to the Authority’s Authorized Representative for approval its proposals for the back-up and storage in safe custody of such data, materials and documents and the Authority shall be entitled to object if the same is not in accordance with Best Management Practice. Developer shall comply, and shall use Reasonable Efforts to cause all Developer-Related Entities to comply, with all procedures to which the Authority’s Authorized Representative has given its approval. Developer may vary its procedures for such back-up and storage subject to submitting its proposals for change to the Authority’s Authorized Representative, who shall be entitled to object on the basis set out above.
27.3 Indemnity
27.3.1 Where a claim or proceeding is made or brought against the Authority, which alleges that the use of any Intellectual Property provided to the Authority under the terms hereof or that the use of any materials, plant, machinery or equipment in connection with the Works or the Project by the Authority or a Developer-Related Entity, infringes any intellectual property of a third party then, unless such infringement has arisen out of the use of any Intellectual Property by or on behalf of the Authority otherwise than in accordance with the terms of this Agreement, Developer shall indemnify the Authority at all times from and against all Losses arising as a result of such claims and proceedings and the provisions of Article 20 (Developer Indemnity) shall apply.
27.3.2 Where a claim or proceeding is made or brought against Developer, which alleges that the use of any Intellectual Property provided to the Authority under the terms hereof or that the use of any materials, plant, machinery or equipment in connection with the Works or the Project by the Authority or a Developer-Related Entity infringes any rights in or to any intellectual property of a third party then, if such infringement has arisen out of the use of any Intellectual Property by or on behalf of the Authority otherwise than in accordance with the terms of this Agreement and otherwise than as a result of a breach of this Article 27 (Intellectual Property) by Developer then the Authority shall indemnify Developer at all times from and against all Losses arising as a result of such claims and proceedings.
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ARTICLE 28. FEDERAL REQUIREMENTS
28.1 Compliance with Federal Requirements
Developer shall comply and require its Contractors to comply with applicable Federal Requirements, including compliance with federal Applicable Law pertaining to the use of federal-aid funds. Without prejudice to the foregoing:
28.1.1 In the event that the Developer's Financing incorporates a TIFIA Loan or any other credit assistance pursuant to TIFIA, Developer shall comply with the requirements of Exhibit 17 (Additional Federal Requirements) in its performance of this Agreement; and
28.1.2 In the event that the Developer's Financing incorporates PABs but does not incorporate a TIFIA Loan or any other credit assistance pursuant to TIFIA, then Developer shall comply with the requirements of Section II (Nondiscrimination) of Attachment 2 (FHWA Form 1273), Attachment 9 (Disadvantaged Business Enterprises), Section IV (Davis-Bacon and Related Act Provisions) of Attachment 2 (FHWA Form 1273), and Attachment 8 (Compliance with Buy America Requirements) of Exhibit 17 (Additional Federal Requirements) in its performance of this Agreement as if such requirements were federal Applicable Law.
28.2 Cooperation with FHWA
Developer shall cooperate with FHWA in the reasonable exercise of FHWA’s duties and responsibilities in connection with the Project.
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ARTICLE 29. ASSIGNMENT AND TRANSFER; FUNDAMENTAL CHANGES
29.1 Assignment
Subject to Section 29.2 (Security), neither Party shall assign or transfer any of its rights or obligations under this Agreement without the written consent of the other.
29.2 Security
The provisions of Section 29.1 (Assignment) do not apply to the grant of any security for any financing extended to Developer (directly or indirectly) under the Financing Documents or to the enforcement of the same.
29.3 Change of Organization or Name
29.3.1 Developer shall not change the legal form of its organization without providing prior written notice to the Authority.
29.3.2 If either Party changes its name, such Party agrees to promptly furnish the other Party with written notice of change of name and appropriate supporting documentation.
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ARTICLE 30. DISPUTE RESOLUTION PROCEDURES
30.1 General
The Parties agree to use Reasonable Efforts to resolve promptly any Dispute pursuant to the terms of this Article 30 (Dispute Resolution Procedures).
30.2 Consultation
If any Dispute arises in relation to any aspect of the Project Documents, Developer and the Authority shall consult in good faith in an attempt to come to an agreement. Participation in consultation shall not excuse a failure to comply with the time limits set forth in Sections 30.3 and 30.4 below.
30.3 Written Protest to Authority
30.3.1 Without prejudice to Section 30.2 (Consultation), Developer shall submit a Dispute by way of a written protest to the Authority within fifteen (15) days of the event giving rise to the Dispute, outlining in detail the basis of the Dispute, Developer’s position relative to the Dispute and submitting all relevant documentation. The Authority shall have fifteen (15) days following the receipt of the written protest from Developer to render a written decision on the Dispute taking into consideration the relevant Project Documents and Developer’s submission, together with the facts and circumstances involved in the Dispute.
30.3.2 If Developer objects to the Authority’s written decision Developer may file a written rebuttal with the Authority within ten (10) days after its receipt of the written decision, stating clearly and in detail the basis for the objection.
30.3.3 The Authority will review Developer’s written rebuttal and issue a final written decision to Developer within ten (10) days after receipt of the rebuttal.
30.3.4 The Authority’s final written decision in response to Developer’s rebuttal is final and conclusive on the Dispute, unless within 10 (ten) days of the Authority’s final written decision, Developer reserves the Dispute by submitting it to the proper Disputes Review Board as set forth in Section 30.4 (Disputes Review Board).
30.4 Disputes Review Board
30.4.1 In the event that the Parties are unable to reach agreement on a Dispute pursuant to Section 30.2 (Consultation), and in the case of a Dispute raised by Developer, which is submitted to the Authority under Section 30.3 (Written Protest to Authority), and properly reserved by
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Developer in accordance with Section 30.3.4, and is not related to a D&C Standard which is subject to Section 30.8 (Chief Engineer’s Jurisdiction) then the Authority or Developer may submit such Dispute to both the Technical Disputes Review Board and the Financial Disputes Review Board for determination by the Disputes Review Boards jointly whether:
30.4.1.1 such Dispute is of a technical nature (a “Technical Dispute”) and should be resolved by the Technical Disputes Review Board; or
30.4.1.2 such Dispute is of a financial nature (a “Financial Dispute”) and should be resolved by the Financial Disputes Review Board;
in each case subject to the terms of this Article 30 (Dispute Resolution Procedures); provided, that the Parties shall not refer Disputes with respect to the legal validity of this Agreement to either Disputes Review Board for determination nor shall either Disputes Review Board make any determination relating to the legal validity of this Agreement. If the Disputes Review Boards are not able jointly to determine whether a Dispute is of a technical or financial nature, this issue shall be referred to the International Institute for Conflict Prevention and Resolution for determination.
30.4.2 If a Dispute involves issues of a technical nature and issues of a financial nature, the Disputes Review Boards, acting reasonably, may refer such Dispute to the Technical Disputes Review Board and the Financial Disputes Review Board jointly. In such case, the two Disputes Review Boards shall cooperate in determining such Dispute.
30.4.3 The authority and administrative procedures with respect to each of the Technical Disputes Review Board and Financial Disputes Review Board are set forth in Exhibit 11-B (Disputes Review Board Procedures). Unless otherwise agreed by the Parties, any Dispute may be submitted for resolution by the Technical Disputes Review Board or the Financial Disputes Review Board, as the case may be, in accordance with the following procedures:
30.4.3.1 Upon submittal by either Party of the matter to Disputes Review Boards, the Relevant Disputes Review Board receiving such referral in accordance with Section 30.3.1 above (the “Relevant Disputes Review Board”) will decide when to conduct the hearing; provided, that the Relevant Disputes Review Board shall hold the hearing within twenty (20) days of the referral, unless the Parties agree to a longer time period.
30.4.3.2 Either Party may furnish written evidence or documentation to the Relevant Disputes Review Board regarding the Dispute. If either Party furnishes such information to the Relevant Disputes Review Board, it will furnish copies of
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such information to the other Party promptly after having provided it to the Relevant Disputes Review Board and in any event prior to the date the Relevant Disputes Review Board sets to convene the hearing for the Dispute. If the Relevant Disputes Review Board requests any additional documentation or evidence prior to, during, or after the hearing, the relevant Party will provide the requested information to the Relevant Disputes Review Board and to the other Party, in accordance with the deadlines set by the Relevant Disputes Review Board.
30.4.3.3 Developer and the Authority will each be afforded a reasonable opportunity to be heard by the Relevant Disputes Review Board and to offer evidence. Neither the Authority nor Developer may present information at the hearing that was not previously distributed to both the Relevant Disputes Review Board and the other Party.
30.4.3.4 The Disputes Review Board’s recommendations for resolution of the Dispute will be given in writing to both the Authority and Developer within fifteen (15) days after completion of the hearings. In cases of substantial complexity, both Parties may agree to allow additional time for the Relevant Disputes Review Board to formulate its recommendations.
30.4.3.5 Within fifteen (15) days of receiving the Relevant Disputes Review Board’s recommendations, both the Authority and Developer will respond to the other and to the Relevant Disputes Review Board in writing, signifying either acceptance or rejection of the Relevant Disputes Review Board’s recommendations. The failure of either Party to respond within the fifteen (15) day period will be deemed an acceptance of the Relevant Disputes Review Board’s recommendations by that Party.
30.4.3.6 The recommendations of the Relevant Disputes Review Board shall be final and binding only to the extent the Parties accept such recommendations, either expressly or to the extent deemed accepted by virtue of that Party’s failure to respond within such fifteen (15) day period. If the Parties accept (or are deemed to have accepted) any recommendation of the Relevant Disputes Review Board in accordance with this Section 30.4.3.6, each Party shall (unless otherwise specified in the relevant recommendation) give effect to such recommendation as soon as is reasonably practicable.
30.4.3.7 Should the Dispute remain unresolved, either Party may seek reconsideration of the decision by the Relevant
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Disputes Review Board only when there is new evidence to present.
30.5 Right to Litigate Dispute
30.5.1 The Authority and Developer agree that the submission of any unresolved Dispute to the Relevant Disputes Review Board under this Article 30 (Dispute Resolution Procedures) is a condition precedent to the Authority or Developer having the right to proceed to litigation of such unresolved Dispute; provided, however, that (a) either party may at any time seek specific performance of any obligation under the Project Documents or injunctive relief following consultation as set forth in Section 30.2 and (b) such condition shall not apply if there is a good faith determination by the disputing party that a statute of limitations would expire pending any such process.
30.5.2 If a recommendation of the Relevant Disputes Review Board is:
30.5.2.1 not accepted (or deemed to have been accepted) by both Parties pursuant to Section 30.4.3.5; or
30.5.2.2 accepted by both Parties, but a Party does not give effect to such recommendation in accordance with the requirements of Section 30.4.3.6,
either Party may proceed to litigation of such unresolved Dispute and all records and written recommendations of the Relevant Disputes Review Board will be admissible as evidence in any subsequent proceedings.
30.5.3 Developer irrevocably consents to service of process by personal delivery, certified mail, postage prepaid or overnight courier in relation to any proceedings before any court located in the State of New York. This clause does not affect any other method of service allowed by law.
30.6 Continuance of Work During Dispute
During the course of the dispute resolution process, Developer will continue with the Work (including any Work that is the subject of the Dispute) in a diligent manner and without delay or otherwise conform to the Authority’s decision or order, and will be governed by all applicable provisions of the Agreement, and the Authority shall continue to make payments of any amounts not in dispute pursuant to the terms of the Agreement. Throughout any disputed Work, Developer will keep complete records of extra costs and time incurred. Developer will provide the Authority and any Disputes Review Board members access to these and any other records needed for evaluating the Dispute.
30.7 Joinder of Disputes
30.7.1 If any Dispute arising under the Project Documents raises issues, which relate to any dispute between Developer and any Key Contractor, then Developer may join as part of its submissions made to
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the Relevant Disputes Review Board any such dispute between it and any Key Contractor.
30.7.2 Any submissions made by any Key Contractor shall be made within the time limits applicable to the delivery of submissions by Developer and concern only those matters which relate to the dispute between the Authority and Developer under this Agreement.
30.7.3 The Authority shall have no liability to any Key Contractor arising out of or in connection with any decision of the Relevant Disputes Review Board or in respect of the costs incurred by any Key Contractor as a result of participating in the resolution of any Dispute under the Project Document.
30.8 Chief Engineer’s Jurisdiction
Notwithstanding any other provision of this Agreement to the contrary, any dispute relating to the D&C Standards during the carrying out of the Design Work shall be determined by the Chief Engineer in his sole discretion, and shall (subject to any remedies that Developer may have as a matter of public law in respect of the Chief Engineer's determination) be final and binding on the Parties.
30.9 Costs of Dispute Resolution
Each Party will bear its own attorneys’ fees and costs in any Dispute or litigation arising out of or pertaining to this Agreement and no Party will seek or accept an award of attorneys’ fees or costs, except as otherwise expressly provided herein.
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ARTICLE 31. SOLE REMEDY AND LIABILITIES
31.1 Common Law Rights for Developer
31.1.1 Without prejudice to any entitlement of Developer:
31.1.1.1 to specific performance of any obligation under the Project Documents; or
31.1.1.2 to injunctive relief,
Developer’s sole remedy in relation to matters for which an express right or remedy is stated in the Project Documents shall be that right or remedy and Developer shall have no additional right or remedy arising by common law, in equity, by statute or otherwise.
31.1.2 Developer’s sole remedy in relation to any Compensation Event shall be the operation of Section 12.2 (Compensation Events).
31.2 Common Law Rights of the Authority
31.2.1 Without prejudice to:
31.2.1.1 any entitlement of the Authority to specific performance of any obligation under the Project Documents;
31.2.1.2 any entitlement of the Authority to injunctive relief;
31.2.1.3 any other express right of the Authority pursuant to the Project Documents; and
31.2.1.4 the Authority’s right to claim, on or after termination of this Agreement, the amount of its reasonable costs, losses, damages and expenses suffered or incurred by it as a result of rectifying or mitigating the effects of any breach of the Project Documents by Developer, save to the extent that the same has already been recovered by the Authority pursuant to this Agreement or has been taken into account to calculate any compensation payable pursuant to Exhibit 6 (Compensation on Termination),
the sole remedy of the Authority in respect of Noncompliance Events and Closures shall be the Authority’s ability to assess Noncompliance Points and Hourly Unavailability Events, in each case in accordance with Article 11 (Noncompliance Events) and Exhibit 8 (Payment Mechanism).
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31.3 Consequential Losses
Save where stated to the contrary, neither Party shall have the right to claim damages, including punitive and incidental damages, against the other Party for breach of this Agreement, in tort or on any other basis whatsoever, to the extent that any loss claimed by either Party is for Indirect Losses. The Parties agree that, notwithstanding the foregoing limitation on each Party’s liability, such limitation shall not apply to or limit either Party’s right to recover from the other Party:
31.3.1 any Losses of Developer arising under the Key Contracts as originally executed (or as amended in accordance with the terms of this Agreement), which are not of themselves Indirect Losses;
31.3.2 any Losses (including defense costs) to the extent that they are either covered by the proceeds of insurance carried by the relevant Party or are required to be insured against or Developer is deemed to have self-insured the Loss pursuant to Article 19 (Insurance);
31.3.3 Losses arising out of fraud, criminal conduct, intentional misconduct, recklessness or bad faith on the part of the relevant Party;
31.3.4 Losses arising out of any Hazardous Materials Release or Pre-Existing Hazardous Materials;
31.3.5 amounts payable by one Party to the other under an indemnity set forth in this Agreement;
31.3.6 any Monthly Payment Deduction; or
31.3.7 interest, late charges, fees, transaction fees and charges, penalties and similar charges that the Project Documents expressly state are due from the relevant Party.
31.4 No Double Recovery
Notwithstanding any other provisions of this Agreement to the contrary, neither Party shall be entitled to recover compensation or make a claim under this Agreement in respect of any loss that it has incurred to the extent that it has already been compensated in respect of that loss pursuant to this Agreement or otherwise.
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ARTICLE 32. MISCELLANEOUS
32.1 Amendments
The Project Documents may be amended only by a written instrument duly executed by the Parties or their respective permitted successors or assigns.
32.2 Waiver
Either Party’s waiver of any breach or failure to enforce any of the terms, covenants, conditions or other provisions of any Project Document at any time shall not in any way limit or waive that Party’s right thereafter to enforce or compel strict compliance with every term, covenant, condition or other provision thereof, any course of dealing or custom of the trade notwithstanding (other than the waived breach or failure in accordance with the terms of such waivers). Furthermore, if the Parties make and implement any interpretation of the Project Documents without documenting such interpretation by an instrument in writing signed by both Parties, such interpretation and implementation thereof will not be binding in the event of any future Disputes.
32.3 Independent Contractor
32.3.1 Developer is an independent contractor, and nothing contained in the Project Documents shall be construed as constituting any relationship with the Authority other than that of Developer of the Project and independent contractor. It is the express intent and agreement of the Parties that nothing in the Project Documents is intended or shall be construed to create any landlord-tenant, lessor-lessee of real property, optionor-optionee, vendor-purchaser, or mortgagor-mortgagee relationship between the Authority and Developer; and in no event shall either Party take a position in any tax return, insurance application or questionnaire, financial statement, financial report, regulatory filing, securities filing, loan document, or other writing of any kind that any such relationship exists.
32.3.2 Nothing in the Project Documents is intended or shall be construed to create any partnership, joint venture or similar relationship between the Authority and Developer; and in no event shall either Party take a position in any tax return or other writing of any kind that a partnership, joint venture or similar relationship exists. While the term “public-private partnership” may be used on occasion to refer to contractual relationships of the type hereby created, the Parties do not thereby express any intention to form or hold themselves out as a de jure or de facto partnership, joint venture or similar relationship, to share net profits or net losses, or to give the Authority control or joint control over Developer’s financial decisions or discretionary actions concerning the Project and Work.
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32.3.3 In no event shall the relationship between the Authority and Developer be construed as creating any relationship whatsoever between the Authority and Developer’s employees. Neither Developer nor any of its employees is or shall be deemed to be an employee of the Authority. Except as otherwise specified in the Project Documents, Developer has sole authority and responsibility to employ, discharge and otherwise control its employees and has complete and sole responsibility as a principal for its agents, for all Contractors and for all other Persons that Developer or any Contractor hires to perform or assist in performing the Work.
32.4 Successors and Assigns
The Project Documents shall be binding upon and inure to the benefit of the Authority and Developer and their respective permitted successors and assigns.
32.5 Designation of Representatives; Cooperation with Representatives
The Authority and Developer shall each designate an individual or individuals who shall be authorized to make decisions and bind the Parties on matters relating to the Project Documents (each, an “Authorized Representative”). Exhibit 12 (Initial Designation of Authorized Representatives) to this Agreement provides the initial Authorized Representative designations. Such designations may be changed by a subsequent writing delivered to the other Party in accordance with Section 32.11 (Notices and Communications).
32.6 Survival
Developer’s and the Authority’s representations and warranties, the Dispute Resolution Procedures contained in Article 30 (Dispute Resolution Procedures), the indemnifications and releases contained in Article 20 (Developer Indemnity), the rights to all indemnities and compensation contained in Article 24 (Termination) and any other obligations to pay amounts hereunder and under the other Project Documents, Article 27 (Intellectual Property), Article 32 (Miscellaneous) and all other provisions, which by their inherent character should survive expiration or Early Termination and/or completion of the Work under this Agreement, shall survive the expiration or Early Termination and/or the completion of the Work under this Agreement. The Authority’s obligation to pay compensation to Developer upon Early Termination as provided in Article 24 (Termination) and any other payment obligations of the Authority arising prior to expiration or Early Termination shall survive the expiration or Early Termination.
32.7 Limitation on Third-Party Beneficiaries
It is not intended by any of the provisions of the Project Documents to create any third party beneficiary hereunder or to authorize anyone not a Party hereto to maintain a suit for personal injury or property damage pursuant to the terms or provisions hereof. Except as otherwise provided in this Section 32.7 (Limitation on Third-Party Beneficiaries), the duties, obligations and responsibilities of the Parties with respect to third parties shall be determined and governed by Applicable Law. The Project Documents shall not be construed to create a contractual relationship of any kind between the Authority and any Person other than Developer.
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32.8 Submission to Jurisdiction
The Authority and Developer each irrevocably and unconditionally submits, to the fullest extent permitted by Applicable Law, to the exclusive jurisdiction of any New York State court or the U.S. District Court for the Southern District of New York sitting in the City and County of New York, and any appellate court from any thereof, for the settlement of any dispute in connection with this Agreement or any transaction contemplated hereby. Developer and the Authority each also irrevocably and unconditionally waive, to the fullest extent permitted by Applicable Law, any objection that it may have now or hereafter to the laying of venue in such courts on the grounds of inconvenient forum or otherwise in relation to proceedings in connection with this Agreement or any transaction contemplated hereby.
32.9 Waiver of Jury Trial
EACH PARTY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT THAT IT MAY HAVE TO A JURY TRIAL IN RESPECT OF ANY CLAIM, CAUSE OF ACTION OR OTHER PROCEEDING IN CONNECTION WITH THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY. Each of the Parties hereby (i) certifies that no representative, agent or attorney of any other has represented, expressly or otherwise, that such other would not, in the event of any suit, action or proceedings relating to this Agreement, seek to enforce the foregoing waiver and (ii) acknowledges that it has been induced to enter into this Agreement by, among other things, the mutual waivers and certifications in this Section 32.9.
32.10 Governing Law
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, BUT WITHOUT REGARD TO THE STATE OF NEW YORK’S CONFLICT OF LAW PRINCIPLES.
32.11 Notices and Communications
32.11.1 Notices under the Project Documents shall be in writing and: (a) delivered personally; (b) sent by certified mail, return receipt requested; (c) sent by a recognized overnight mail or courier service, with delivery receipt requested; or (d) sent by facsimile or e-mail communication followed by a hard copy and with receipt confirmed by telephone, to the following addresses (or to such other address as may from time to time be specified in writing by such Person):
32.11.1.1 All notices, correspondence and other communications to Developer shall be delivered to the following address or as otherwise directed by Developer’s Authorized Representative:
NYNJ Link Developer LLC 125 West 55th Street New York, NY 10019 Attn: Karl Kuchel
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32.11.1.2 All notices, correspondence and other communications to the Authority shall be marked as regarding the Project and shall be (a) delivered to the following address or as otherwise directed by the Authority’s Authorized Representative and (b) with the exception of notices regarding Disputes, and termination and default notices, posted on the Collaboration Portal:
The Port Authority of NY & NJ Two Montgomery Street Jersey City, NJ 07302 Attn: James Blackmore, Program Director Telephone: (201) 395-7282 Facsimile: (201) 395-7280 E-mail: [email protected];
32.11.1.3 In addition, copies of all notices regarding Disputes, and termination and default notices shall be delivered to the following person:
Office of General Counsel The Port Authority of NY & NJ 225 Park Avenue South New York, NY 10010 Attn: Darrell Buchbinder Telephone: (212) 435-3515 E-mail: [email protected]
32.11.2 Notices shall be deemed received when actually received in the office of the addressee (or by the addressee if personally delivered) or when delivery is refused, as shown on the receipt of the U.S. Postal Service, private carrier or other Person making the delivery. Notwithstanding the foregoing, notices sent by facsimile after 4:00 p.m., Eastern Standard or Daylight Time (as applicable), and all other notices received after 5:00 p.m., Eastern Standard or Daylight Time (as applicable), shall be deemed received on the first business day following delivery (that is, in order for a fax to be deemed received on the same day, at least the first page of the fax must have been received before 4:00 p.m., Eastern Standard or Daylight Time (as applicable)). Any technical or other communications pertaining to the Work shall be conducted by Developer’s Authorized Representative and technical representatives designated by the Authority.
32.12 Integration of Project Documents; Compliance
32.12.1 The Authority and Developer agree and expressly intend that this Agreement (including all Exhibits, schedules, forms and appendices hereto) and other Project Documents constitute a single, non-severable, integrated agreement whose terms are interdependent and non-divisible, such that, among other things, no part of the Agreement could be separated from any other part for the purposes of assumption
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or rejection under Section 365 of title 11 of the United States Bankruptcy Code.
32.12.2 Notwithstanding anything contained in this Agreement to the contrary, Developer and the Authority shall comply with all terms and conditions set forth in this Agreement and the other Project Documents, including all Exhibits, schedules and appendices hereto and thereto (including, without limitation, the General Conditions, Requirements and Provisions for Work and the Applicable Standards).
32.13 Severability
If any clause, provision, Section or part of the Project Documents is ruled invalid by a court having proper jurisdiction, then the Parties shall: (a) promptly meet and negotiate a substitute for such clause, provision, Section or part, which shall, to the greatest extent legally permissible, effect the original intent of the Parties, including any adjustment to the Authority’s compensation to Developer’s account for any change in the Work resulting from such invalidated portion; and (b) if necessary or desirable, apply to the court or other decision maker (as applicable), which declared such invalidity for an interpretation of the invalidated portion to guide the negotiations. The invalidity or unenforceability of any such clause, provision, Section or part shall not affect the validity or enforceability of the balance of the Project Documents, which shall be construed and enforced as if the Project Documents did not contain such invalid or unenforceable clause, provision, Section or part.
32.14 Headings
The captions of the Articles, Sections and subsections of this Agreement are for convenience purposes only and shall not be deemed part of this Agreement or considered in construing this Agreement.
32.15 Entire Agreement
The Project Documents contain the entire understanding of the Parties with respect to the subject matter thereof and supersede all prior agreements, understandings, statements, representations and negotiations between the Parties with respect to their subject matter.
32.16 Counterparts
This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
32.17 No State Obligations
Developer acknowledges and agrees that, notwithstanding any concurrence by the States of New York or New Jersey in, or approval of, the solicitation or award of this Agreement, neither the State of New York nor the State of New Jersey shall incur any liability to any person pursuant to the terms of this Agreement. For the avoidance of doubt, nothing in this Section 32.17 (No State Obligations) shall have the effect of limiting the Authority's rights, obligations or liabilities under this Agreement.
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32.18 No Personal Liability
Neither any Commissioner nor any officer, agent, representative or employee of the Authority or of Developer shall be held personally liable under any term or provision of this Agreement or because of the execution or attempted execution of this Agreement, or because of any breach thereof.
32.19 Interest on Late Payments
Save where otherwise specifically provided, where any payment or sum of money due from Developer to the Authority or from the Authority to Developer under any provision of this Agreement is not paid on or before the due date, it shall bear interest thereon at the Late Payment Rate from the due date (whether before or after any judgment) until actual payment. All interest hereunder shall be computed on the basis of a year of three hundred sixty (360) days, and in each case shall be payable for the actual number of days elapsed (including the first day, by excluding the last day).
32.20 Public Release of Information
32.20.1 Developer shall not, and shall cause (by way of contract and enforcement thereof) all Developer-Related Entities not to, issue or permit to be issued any press release, advertisement, public statement or literature of any kind, or make any statements or comments through the media (including print, television or internet) which refers to the Authority, the Project or any of the services or obligations to be performed in connection with the Project Documents, without first obtaining the written approval of the Authority. Such approval may be withheld if for any reason the Authority believes that the publication of such information would be harmful to the public interest or is any way undesirable.
32.20.2 This provision shall survive termination or expiration of this Agreement.
32.21 Confidentiality and Public Disclosure Duties
32.21.1 In this Section 32.21, "Information" means all information relating to the other Party which is supplied by or on behalf of the other Party (whether before or after the date of this Agreement), either in writing, orally or in any other form, directly or indirectly from or pursuant to discussions with the other Party or which is obtained through observations made by the receiving Party and such term includes all, analyses, compilations, studies and other documents whether prepared by or on behalf of a Party which contain or otherwise reflect or are derived from such information.
32.21.2 Each Party will maintain the confidentiality of any Information, except that Information may be disclosed or provided:
32.21.2.1 by either Party to its and its Affiliates' directors, officers, employees, consultants and agents, including accountants, legal counsel and other advisors;
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32.21.2.2 by the Authority, to the Project Third Parties or Governmental Entities or otherwise as the Authority may require for the operation, maintenance or improvement of the Project in the event of, or following, termination of this Agreement;
32.21.2.3 by Developer or Borrower:
(a) to the Lenders to the extent such Information is reasonably required by the Lenders in connection with arranging Project Debt or which Developer or Borrower is obligated to supply by the terms of the Financing Documents; and
(b) to any Contractor to the extent such Information is necessary for the performance by Developer of its obligations under this Agreement;
32.21.2.4 by either Party to the extent:
(a) it is required to disclose such Information pursuant to an Applicable Law or by any subpoena or similar legal process or by any Governmental Entity;
(b) the other Party confirms in writing that such Information is not required to be treated as confidential (such confirmation not to be unreasonably withheld or delayed);
(c) such Information is or comes into the public domain otherwise than through any disclosure prohibited by this Agreement;
provided that, in the cases of Sections 32.21.2.1, 32.21.2.2 and 32.21.2.3 of this Section 32.21, the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and will so provide such Information subject to the same or similar requirements to maintain confidentiality as contained in this Agreement.
32.21.3 Developer acknowledges that the by-laws of the Authority require it to follow a freedom of information code that is consistent with the freedom of information laws of the states of New York and New Jersey. The Authority's freedom of information code in operation as at the date of this Agreement is set forth in Exhibit 20 (Freedom Of Information Code).
32.21.4 Developer acknowledges and agrees that all Submittals, records, documents, drawings, plans, specifications and other materials in the Authority's possession relating to the Project and this Agreement,
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including materials submitted by Developer to the Authority, are subject to the Authority's freedom of information code.
32.21.5 To the extent that Developer believes that any information or material submitted by it to the Authority is exempt from disclosure under the Authority's freedom of information code, Developer may mark such information or materials as "CONFIDENTIAL" and accompany such information or materials with a concise statement of its reasons why it believes such information or material is exempt from disclosure.
32.21.6 If the Authority receives a freedom of information request for public disclosure of information or material marked "CONFIDENTIAL", the Authority will notify Developer of the request and give Developer a reasonable opportunity to assert, in writing, its reasons (if any) why it believes the Authority is not required to disclose such information or material pursuant to the freedom of information code.
32.22 TIFIA Improvements
32.22.1 The Parties agree to enter into good faith discussions with each other and with the United States Department of Transportation for the purposes of determining the extent to which the United States Department of Transportation is amenable to any TIFIA Improvement.
32.22.2 To the extent that the United States Department of Transportation agrees to any TIFIA Improvement, the Financial Model shall be updated and revised to reflect such TIFIA Improvement, it being agreed that 66.66% of the incremental benefit of any TIFIA Improvement shall be for the account of the Authority, with the remaining 33.34% of any such incremental benefit being for the account of Developer.
[Signature Page to Project Agreement]
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their respective duly authorized officers as of the date first written above.
NYNJ LINK DEVELOPER LLC
By: _______________________________
Name: ____________________________
Title: ______________________________
By: _______________________________
Name: ____________________________
Title: ______________________________
POii Alllhollty Use Oftly:
Appronta toTemtl:
PORT AUTHORl1Y OF NEW YORK AND NEW JERSEY
By:
Name: A-,"1ej:. l K :f.
Title: f.y.uv-r-'i <it- 'D', ('e.:c.i"Or
[Signature Page to Project Agreement]
The Port Authority of New York and New Jersey Exh. 1-1 Project Agreement – Exhibit 1 Goethals Bridge Replacement Project August 30, 2013
EXHIBIT 1
DEFINITIONS
As used in this Agreement or any other Project Document, the capitalized terms set forth in this Exhibit 1 (Definitions) shall have the respective meanings below. Unless expressly provided otherwise, all references to Articles, Sections, Exhibits and Appendices refer to the Articles, Sections, Exhibits and Appendices of or attached to the Project Agreement, as applicable.
Access means, in relation to any part of the Project Right of Way, the right to access and use such part of the Project Right of Way in accordance with the terms of this Agreement, subject to:
(a) its state and condition at the time access is first granted to Developer;
(b) access rights of the Authority and the Project Third Parties as set out in the Third-Party Agreements;
(c) the rights of Governmental Entities, Utility Owners or third parties to have access to such part of the Project Right of Way existing as of the Final Proposal Date and communicated in writing to Developer;
(d) the statutory rights or public franchise rights of Governmental Entities and Utility Owners to have access to such part of the Project Right of Way existing as of the Administrative and Technical Proposal Due Date;
(e) the rights, including rights of access, granted to the Authority and its employees, agents, consultants and contractors and to other Persons under any Project Document;
(f) restrictions of use set forth in easement deeds and/or right of entry permits of record applicable to any Third-Party Agreement or Governmental Approval;
(g) restrictions set forth in any title commitments or American Land Title Association ("ALTA") maps related to the Project Right of Way set forth in Exhibit 2 (Project ROW Turnover Schedule & Project ROW Plans); and
(h) when relevant, payment of tolls on the Existing Bridge.
Account Balances means all amounts standing to the credit of any bank account held by or on behalf of Developer or Borrower (excluding the Handback Reserve Account), or the value of any letter of credit issued in substitution for any bank account previously held by Developer or Borrower (excluding the Handback Reserve Account), at the Early Termination Date.
Actual Benchmarked Insurance Cost means, in respect of any Insurance Review Period, the aggregate of the insurance premiums reasonably incurred by Developer to maintain the Benchmarked Insurance during the Insurance Review Period but excluding any insurance premium tax or broker's fees and commissions and, for the avoidance of doubt, not including any amounts deducted from the Maintenance Payments and/or the DFA Payment by the Authority in accordance with Sections 19.4.2.3 or 19.5.6.
The Port Authority of New York and New Jersey Exh. 1-2 Project Agreement – Exhibit 1 Goethals Bridge Replacement Project August 30, 2013
Additional Equity Investment means an Equity Investment made solely by the Qualified Investors after Financial Close that is not a Committed Equity Investment, or otherwise contractually committed to by the relevant Qualified Investors, as at Financial Close.
Administrative and Technical Proposal(s) Due Date has the meaning set forth in the ITP.
Administrative Proposal has the meaning set forth in the ITP.
Advance Construction Work means any Construction Work that the Authority authorizes Developer to perform prior to NTP 2, which may include Construction Work related to Utility Adjustments and improvements to the Project ROW.
Affected Party has the meaning set forth in the definition of Force Majeure Event.
Affiliate of any Person means any entity which, directly or indirectly, through one or more intermediaries, (a) has a twenty percent (20%) or more voting or economic interest in such Person or (b) Controls, is Controlled by, or is under common Control with such Person.
Age means the elapsed time since an Element was first constructed or installed or, if applicable, last reconstructed, rehabilitated, restored, renewed or replaced.
Agreement or Project Agreement means the Project Agreement dated as of August 30, 2013, between the Authority and Developer, to which this Exhibit 1 (Definitions) is attached.
Applicable Law means any statute, law, code, regulation, ordinance, rule, common law, judgment, judicial or administrative order, decree, directive, or other requirement having the force of law or other governmental restriction (including those resulting from the initiative or referendum process) or any similar form of decision of or determination by, or any interpretation or administration of any of the foregoing by, any Governmental Entity, which is applicable to the Project, Work or any Person, whether taking effect before or after the date of this Agreement. “Applicable Laws”, however, excludes Governmental Approvals.
Applicable Standards means, unless expressly provided otherwise in the Requirements and Provisions for Work, the State, Federal or Authority codes of practice, manuals or other publications referred to in Section 28 (Applicable Standards) of the Requirements and Provisions for Work, in each case in the form most recently published and in effect as at the Standards Effective Date or, if the relevant standards are not publicly available, the version most recently posted on the Collaboration Portal as at the Standards Effective Date.
Approach Spans means those bridge structures that are part of the Replacement Bridge and are located between the New Jersey abutment and the Main Bridge, and those between the Main Bridge and the New York abutment.
Archaeological Remains means antiquities, fossils, coins, articles of value, precious minerals, cultural artifacts, human burial sites, paleontological and human remains and other similar remains of archaeological or paleontological interest discovered in any part of the Project Right of Way.
As-Built Documents means the Final Design Documents revised by the Engineer of Record to incorporate all changes made during construction, including marked up documents provided by Developer, and shop drawings approved or approved as noted for construction.
The Port Authority of New York and New Jersey Exh. 1-3 Project Agreement – Exhibit 1 Goethals Bridge Replacement Project August 30, 2013
As-Built Submittals has the meaning set forth in Section 2.4.7 of the Requirements and Provisions for Work.
Asset Condition Schedule means the record of the asset condition of all Elements of the Project Facility as referred to in Section 25 of the Requirements and Provisions for Work.
Associated Company means, in respect of a relevant company, a company, which is a subsidiary, a holding company or a company that is a subsidiary of the ultimate holding company of that relevant company, and in the case of Developer shall include Borrower and each of the Equity Members.
Authority or Port Authority has the meaning set forth in the introductory paragraph to this Agreement.
Authority Change means any change in the Works by the Authority that Developer is required to implement pursuant to Article 10 (Authority and Developer Changes).
Authority Change Request has the meaning set forth in Section 10.1.2 (Authority Changes).
Authority Communications Desk means the Staten Island Bridges communication desk located at the Authority's Goethals Bridge operation and maintenance center.
Authority Conditions Precedent means the conditions precedent specified in Sections 2.4.2, 2.4.7, 2.4.9 and 2.4.13.
Authority Default has the meaning set forth in Section 23.1 (Authority Default).
Authority Delay Period has the meaning set forth in Section 12.2.6.1 (Financing Costs).
Authority Obtained Governmental Approvals means each of the Governmental Approvals listed in Exhibit 3 (Authority Obtained Governmental Approvals).
Authority Police means the public safety staff employed by the Authority responsible for the safety and security of travelers and tenants in all of the Port Authority land, sea, air and rail facilities.
Authority Project means any capital works project (other than the Project) undertaken by the Authority within the Project Right of Way that has a direct impact on the Project Facilities.
Authority Termination Notice has the meaning set forth in Section 24.4.1.
Authority Termination Sum means the amount calculated in accordance with paragraph 1.1 of Exhibit 6 (Compensation on Termination).
Authorized Representative has the meaning set forth in Section 32.5 (Designation of Representatives; Cooperation with Representatives).
Base Benchmarked Insurance Cost means, for an Insurance Review Period, the greater of:
(a) $1,600,000; and
(b) the Actual Benchmarked Insurance Cost for the first Insurance Review Period,
The Port Authority of New York and New Jersey Exh. 1-4 Project Agreement – Exhibit 1 Goethals Bridge Replacement Project August 30, 2013
in each case indexed annually by CPI from the Benchmarked Insurance Inception Date, less any Base Benchmarked Insurance Reduction.
Base Benchmarked Insurance Reduction means the reduction to be made to the Base Benchmarked Insurance Cost in respect of a risk which has become an Uninsurable Risk or a term or condition which is no longer available and shall be an amount that is either:
(a) the amount by which the Base Benchmarked Insurance Cost would have been a lesser amount had such a risk been an Uninsurable Risk or such a term or condition been unavailable at the date of this Agreement (which amount, for the avoidance of doubt, can be $0); or
(b) if it is impossible to determine an amount pursuant to paragraph (a) above, an amount that is reasonable to be deducted from the Base Benchmarked Insurance Cost having due regard to:
(i) the amount by which the Actual Benchmarked Insurance Cost is less than it would have been as a result of the risk becoming an Uninsurable Risk or the term or condition becoming unavailable (the Actual Reduction);
(ii) the size of the Actual Reduction as a percentage of the Actual Benchmarked Insurance Cost immediately prior to the risk becoming an Uninsurable Risk or the term or condition becoming unavailable; and
(iii) the effects of CPI since the date of this Agreement.
Base Case Equity IRR means 13.8%.
Baseline Remediation Plan has the meaning set forth in Section 7 (Environmental) of the Requirements and Provisions for Work.
Bedding In Period has the meaning set forth in Table 2 of Exhibit 8 (Payment Mechanism).
Benchmarked Insurance Inception Date means the date on which the Benchmarked Insurances are first providing active insurance cover to Developer, being a date no earlier than the Substantial Completion Date.
Benchmarked Insurances means the Insurance Policies and any other insurances as may be required by law other than:
(a) Construction Period Insurance;
(b) business interruption cover; and
(c) any professional indemnity cover.
The Port Authority of New York and New Jersey Exh. 1-5 Project Agreement – Exhibit 1 Goethals Bridge Replacement Project August 30, 2013
Best Management Practice means the exercise of the degree of skill, diligence, prudence and foresight which would reasonably and ordinarily be expected from time to time from a skilled and experienced designer, engineer, constructor, maintenance contractor or operator or developer seeking in good faith to comply with its contractual obligations, complying with all Applicable Laws and Governmental Approvals, and engaged in the same type of undertaking under similar circumstances and conditions.
Borrower means NYNJ Link Borrower LLC, a Delaware limited liability company.
Borrowing Date has the meaning set forth in Exhibit 23 (Developer Financing Arrangements).
Bridge Check Engineer means any counterparty to the Bridge Check Engineer Contract.
Bridge Check Engineer Contract means the agreement to be entered into by Developer in relation to the provision of the services prescribed in Attachment 2.3 to Section 2 of the Requirements and Provisions for Work.
Bridge Maintenance Manual means the manual prepared by Developer for the Authority’s approval, following the requirements of Attachment 23.4 of the Requirements and Provisions for Work.
Business Day means any day that is not a Saturday, Sunday or other day on which (a) the Authority is officially closed for business, (b) banks located in New York City are required or authorized by law or executive order to close or (c) the New York Stock Exchange is closed.
Calendar Event Factor means, for an Hourly Unavailability Event, the factor set forth in Section 2.10 of Exhibit 8 (Payment Mechanism).
Calendar Year means the consecutive 12-month period starting on January 1 and ending on December 31.
Capital Expenditure means any expenditure which is treated as a capital expenditure in accordance with GAAP or equivalent auditing standards utilized and generally accepted in the country of incorporation of such party.
Category 1 Defect means a Defect, which requires prompt attention because it represents an immediate or imminent hazard, or there is a risk of immediate or imminent structural failure, or there is an immediate or imminent risk of damage to a third party’s property or equipment, or there is an immediate or imminent risk of damage to the environment.
Category 2 Defect means any Defect other than a Category 1 Defect.
Certificate of Demolition Completion has the meaning set forth in Section 7.11.1.
Certificate of Partial Completion has the meaning set forth in Section 7.7.1 (Partial Completion).
Certificate of Substantial Completion has the meaning set forth in Section 7.10.1.1.
The Port Authority of New York and New Jersey Exh. 1-6 Project Agreement – Exhibit 1 Goethals Bridge Replacement Project August 30, 2013
Change in Costs means, in respect of any Relevant Event, the effect of that Relevant Event (whether of a one-off or recurring nature, and whether positive or negative) upon the actual or anticipated costs, losses or liabilities of Developer or Borrower, including, as relevant, the following:
(a) the reasonable costs of complying with the requirements of Articles 10 (Authority and Developer Changes), 12 (Supervening Events), 13 (Change in Law) or 16 (Financial Model Adjustments), including the reasonable costs of preparation of design and estimates;
(b) the costs of continued employment of, or making redundant, staff who are no longer required;
(c) the costs of employing additional staff;
(d) reasonable professional fees;
(e) the costs to Developer or Borrower of financing any Relevant Event (and the consequences thereof) including commitment fees and capital costs, interest and hedging costs, lost interest on any of Developer’s or Borrower’s own capital employed and any finance required pending receipt of a lump-sum payment;
(f) the effects of costs on implementation of any insurance reinstatement in accordance with this Agreement, including any adverse effect on the insurance proceeds payable to Developer (whether arising from physical damage insurance or business interruption insurance (or their equivalent)) in respect of that insurance reinstatement and any extension of the period of implementation of the insurance reinstatement;
(g) operating costs, or life cycle, maintenance or replacement costs;
(h) Capital Expenditure;
(i) the costs required to ensure continued compliance with the Financing Documents;
(j) any deductible or increase in the level of deductible, or any increase in premium under or in respect of any insurance policy; and
(k) Losses,
provided that in no circumstances shall Change in Costs include any Revenue Impact.
Change in Law means the introduction or repeal (in whole or in part) of or amendment, alteration or modification to or change in interpretation of (in each case including, to the extent applicable, by retroactive effect), any Law or standards, practices or guidelines issued or published by any Governmental Entity that occur at any time after the date six weeks before the Final Proposal Date and that are either binding on Developer or if non-binding on Developer are both typically complied with in the construction and/or bridge operating industries and are necessary in order to comply with Best Management Practice.
The Port Authority of New York and New Jersey Exh. 1-7 Project Agreement – Exhibit 1 Goethals Bridge Replacement Project August 30, 2013
Change in Ownership means:
(a) any sale, transfer or disposal of any legal, beneficial or equitable interest in any or all of the shares or membership interests in Developer and/or any Related Entity (including the direct or indirect control over the exercise of voting rights conferred on those shares or membership interests, direct or indirect control over the right to appoint or remove directors or the rights to receive dividends or distributions); and/or
(b) any other arrangements that have or may have or which result in the same effect as paragraph (a).
Chief Engineer means the Chief Engineer of the Port Authority.
Claiming Party has the meaning set forth in Section 20.4.1.
Closing Security means an irrevocable standby letter of credit in the amount of $40,000,000 and substantially in the form set out in Form 5 (Form of Closing Security).
Closure means that all or part of any traffic lanes, ramps, shoulders or sidewalks/bikeways are closed or blocked, or that the use thereof is otherwise restricted for any reason, following Service Commencement.
Collaboration Portal means the secure collaborative program website to communicate, store, share and/or distribute documentation related to the Project (including during the period prior to the date of this Agreement).
Collateral Agent means the financial institution listed or otherwise designated to act as trustee or agent on behalf of or at the direction of the Lenders in the Financing Documents with respect to the Project Debt.
Commercial Closing Conditions Precedent means the conditions set out in Section 2.2 (Conditions Precedent to the Commercial Closing Date).
Commercial Closing Date means the date on which all of the Commercial Closing Conditions Precedent set out in Section 2.2 (Conditions Precedent to the Commercial Closing Date) are satisfied in accordance with this Agreement.
Committed Equity Investment means, in the aggregate (a) any Equity Investment, and (b) any Deferred Equity Amounts.
Compensation Event means any of the following:
(a) any breach of this Agreement by the Authority;
(b) any breach of a Third-Party Agreement, Master Utility Agreement or Utility Adjustment Agreement by a Project Third Party or a Utility (as relevant);
(c) any damage, interruption or interference to the Works caused by the procurement, design, construction, operation or maintenance of an Authority Project or any third party projects within the Project ROW, excluding those that are the subject of any Third Party Agreement or Utility Adjustment Agreement;
The Port Authority of New York and New Jersey Exh. 1-8 Project Agreement – Exhibit 1 Goethals Bridge Replacement Project August 30, 2013
(d) violation of any Applicable Law by the Authority;
(e) any Qualifying Change in Law;
(f) any Authority Change or the issuance of any Directive Letter;
(g) the release of any Hazardous Material into the Project Right of Way at any time after the Financial Closing Date, but only to the extent that such release:
(i) constitutes a Hazardous Environmental Condition; and
(ii) does not constitute a Developer Release of Hazardous Material;
(h) the issuance of any preliminary or permanent injunction or temporary restraining order or other similar order, legal restraint or prohibition by a Governmental Entity of competent jurisdiction under Applicable Law, which injunction, order, restraint or prohibition materially and adversely affects the Authority’s or Developer’s performance under this Agreement, except to the extent resulting from the negligence, willful misconduct, recklessness, breach of contract or Applicable Law, or violation of a Governmental Approval, by any Developer-Related Entity;
(i) the discovery of any Undisclosed Utility during the carrying out of the Construction Work or the Demolition Work;
(j) the discovery of any Undisclosed Geological Condition during the carrying out of the Construction Work;
(k) the issuance by the Authority of any Safety Compliance Order;
(l) any Required Action taken by the Authority that is the subject of Section 25.4 (Step-in without Developer Breach);
(m) the discovery of any Undisclosed Hazardous Environmental Condition during the carrying out of the Construction Work or the Demolition Work that requires Remedial Action;
(n) any suspension of the Construction Work or Demolition Work has occurred and is considered a Compensation Event pursuant to Section 7.13.2; and
(o) the execution by the Authority of any Master Utility Agreement or Third-Party Agreement after the Commercial Closing Date on terms materially inconsistent with the versions referred to in Part C of Exhibit 18 (Utility Data) and Part B of Exhibit 19 (Third-Party Agreements) respectively;
(p) any change, variation or amendment to the terms and conditions of any Master Utility Agreement or Third-Party Agreement after the date that it is executed;
(q) the granting of Access subject to restrictions of use and/or right of entry permits in either case not specified in the description of Access;
(r) the discovery of any Undisclosed Endangered Species by Developer during the carrying out of the Construction Work or the Demolition Work;
The Port Authority of New York and New Jersey Exh. 1-9 Project Agreement – Exhibit 1 Goethals Bridge Replacement Project August 30, 2013
(s) the discovery of any Undisclosed Archaeological Remains by Developer during the carrying out of the Construction Work or the Demolition Work;
(t) any act of Terrorism that causes physical damage to the Project;
(u) issuance of a rule, order or directive from the Authority, the U.S. Department of Homeland Security or comparable agency of either of the States regarding specific security threats to the Project or the region in which the Project is located or which the Project serves, but only to the extent that such rule, order or directive requires specific changes in Developer's normal design, construction, operation or maintenance procedures in order to comply; or
(v) any delay in obtaining any Major Governmental Approval by the Major Governmental Approval Deadline;
(w) any delay in obtaining an amendment to the Authority Obtained Governmental Approval issued by NJDEP in respect of Stormwater Compliance by the Major Governmental Approval Deadline;
(x) any delay in obtaining an amendment to an Authority Obtained Governmental Approval not referred to in (w) above by the Major Governmental Approval Deadline, but only to the extent that such amendment is not required as a direct result of the Developer's Final Design or proposed means and methods being different to the basis upon which the original Major Governmental Approval was issued;
(y) any part of the Project Right of Way is or becomes subject to the Industrial Site Recovery Act of the NJDEP;
(z) any of the Governmental Approvals under the heading “Federal Governmental Approvals” as set forth on Exhibit 3 (Authority Obtained Governmental Approvals), when delivered to Developer pursuant to the terms of this Agreement, include conditions which are materially more onerous than or materially inconsistent with the terms of the Final Environmental Impact Statement or the Record of Decision or otherwise inconsistent with the obligations of the Authority pursuant to Section 5.1 (Governmental Approvals) of the Agreement;
(aa) the Authority fails to obtain amendments to or waivers in respect of the insurance requirements set out in the Third Party Agreement with the New Jersey Turnpike Authority or the Master Utility Agreement with Public Service Electric and Gas, so as to ensure that such agreements do not require Developer to maintain insurance on terms that are inconsistent with the Insurance Policies or any Contractor to maintain insurance on terms that are inconsistent with Section 19.2.6 (Contractor Insurance Requirements);
(bb) with respect to the Third Party Agreements with EDC/Conrail Shared Assets (NY) and Conrail (NJ), any such Project Third Party fails to review, comment or approve any documents submitted to it in accordance with such Third Party Agreements, and such review, comment or approval has not been completed by such Project Third Party within 90 days of Developer delivering the relevant documents to the Authority; or
(cc) with respect to the Master Utility Agreement with Consolidated Edison Company of New York, Inc.:
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(i) the relevant Project Third Party withholds its approval to Developer's means and methods pursuant to Section 4.2(c)(iii) of such Master Utility Agreement; and
(ii) Developer demonstrates to the reasonable satisfaction of the Authority that the withholding of such approval by the relevant Project Third Party is materially inconsistent with the requirements that the Project Third Party typically requires in substantially similar circumstances.
except, in each case, to the extent attributable to any breach of this Agreement by, or any negligent act or negligent omission of, a Developer-Related Entity.
Consolidated Bond Reserve Fund means the special fund by that name established by Section 7 of the Consolidated Bond Resolution.
Consolidated Bond Resolution means the resolution of the Authority adopted on October 9, 1952, entitled “Consolidated Bonds–Establishment of Issue”.
Consolidated Bonds means the issue of obligations of the Authority known as “Consolidated Bonds” (which also includes short-term bonds known as “Consolidated Notes”).
Construction Commencement Deadline means the date, initially one hundred eighty (180) days after the Financial Closing Date and subject to adjustment pursuant to the Project Documents.
Construction Documents means all shop drawings, working drawings, fabrication plans, material and hardware descriptions, specifications, construction quality control reports, construction quality assurance reports and samples necessary or desirable for construction of the Project in accordance with the Project Documents.
Construction Engineering and Inspection Contract means the agreement to be entered into by Developer in relation to the provision of the services described in Attachment 2.2 to Section 2 of the Requirements and Provisions for Work.
Construction Equity Ratio means at any time the ratio between: (a) the Committed Equity Investment at the time; and (b) the sum of Committed Equity Investment at the time and the amount of Project Debt scheduled to be outstanding at the time.
Construction Period means the period starting on the Financial Closing Date and ending on the D&C Work Completion Date.
Construction Period Insurance means the Insurance Policies described in Part 1 of Exhibit 10 (Insurance Coverage Requirements).
Construction Security means:
(a) the parent company guarantee from Kiewit Infrastructure Group Inc. of the obligations of the D&C Contractor under the D&C Contract delivered in accordance with the D&C Contract; and
(b) an irrevocable standby letter of credit delivered by the D&C Contractor in accordance with the D&C Contract.
The Port Authority of New York and New Jersey Exh. 1-11 Project Agreement – Exhibit 1 Goethals Bridge Replacement Project August 30, 2013
Construction Work means all Work to build or construct, make, form, manufacture, furnish, install, supply, deliver, landscape or equip the Project, excluding Design Work and Demolition Work but including the demolition of all other structures other than the Existing Bridge.
Consumer Price Index or CPI means the “Consumer Price Index – for all Urban Consumers” for the New York/Northern NJ/Long Island area (not seasonally adjusted) as published by the U.S. Department of Labor, Bureau of Labor Statistics; provided, however, that if the CPI is changed so that the base year of the CPI changes, the CPI shall be converted in accordance with the conversion factor published by the U.S. Department of Labor, Bureau of Labor Statistics. If the CPI is discontinued or substantially altered, the applicable substitute index will be that chosen by the Secretary of the Treasury for the Department of Treasury’s Inflation-Linked Treasuries as described at 62 Federal Register 846-847 (January 6, 1997), or if no such securities are outstanding, will be determined by the Parties in accordance with general market practice at the time.
Continuation Notice has the meaning set forth in Section 24.3.6 (Notice to Continue).
Contract means any agreement, and any supplement or amendment thereto, by Developer with any other Person, Contractor or Supplier to perform any part of the Work or provide any materials, equipment or supplies for any part of the Work, or any such agreement, supplement or amendment at a lower tier, between a Contractor and its lower tier Contractor or a Supplier and its lower tier Supplier, at all tiers. The term “Contract” excludes Utility Adjustment Agreements.
Contract Drawings has the meaning set forth in Section 2.4.3 of the Requirements and Provisions for Work.
Contract Specifications has the meaning set forth in Section 2.4.4 of the Requirements and Provisions for Work.
Contractor means any Person with whom Developer has entered into any Contract to perform any part of the Work or provide any materials, equipment or supplies for the Project, on behalf of Developer, and any other Person with whom any Contractor has further subcontracted any part of the Work, at all tiers.
Control means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, by contract or otherwise.
Controlling Work means any task or activity that is critical to the commencement of successor Work within the current update period as per the Project Working Schedule.
Corrective Action Plan means a written document to describe any non-compliant item(s) and/or defect, the remedial action for its correction or proposed methods, tests and procedures by which the non-compliant item(s) or Defect may be deemed compliant in accordance with Section 0.3.3 (Corrections for Non-conforming Work) of the General Conditions.
Cost to Complete means (without double-counting):
(a) those costs (internal and external) that the Authority reasonably and properly projects that it will incur in carrying out any process to request tenders from any parties interested
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in entering into a contract with the Authority to achieve D&C Work Completion, including all costs related to the preparation of tender documentation, evaluation of tenders and negotiation and execution of relevant contracts; plus
(b) the costs that the Authority reasonably and properly projects that it will incur in achieving D&C Work Completion; plus
(c) any other Losses that the Authority would, but for the termination of this Agreement, not have incurred prior to D&C Work Completion; minus
(d) any insurance proceeds available to the Authority for the purposes of achieving D&C Work Completion.
Critical Path means the longest (in terms of time) unbroken chain or path of logically connected activities in the Preliminary Project Baseline Schedule, Project Baseline Schedule or (as the case may be) Project Working Schedule ending with Substantial Completion, Final Acceptance or D&C Work Completion, as applicable.
Cure Period means, in respect of any applicable Noncompliance Event, each continuous period of “x” days occurring between the Noncompliance Start Date (or in the case of a Noncompliance Event that is a failure to remedy a Defect, the date that the Defect Remedy Period expires) and the Noncompliance Rectification Date for that Noncompliance Event, where “x” equals the number of days referred to in Exhibit 7 (Non-Compliance Points Tables) as the “Cure Period” for that Noncompliance Event.
D&C Contract means any Contract entered into by Developer for third party management, direction, supervision or performance of the D&C Work or any significant portion thereof (including any guaranty or similar credit support provided by a creditworthy entity to backstop obligations under such a Contract). There may be more than one D&C Contract concurrently in effect.
D&C Contract Amount means $937,920,000.
D&C Contractor means any counterparty to a D&C Contract.
D&C Direct Agreement means the agreement substantially in the form attached as Form 3 (Form of D&C Direct Agreement) by and among the Authority, Developer, and the D&C Contractor.
D&C Guarantor means any parent company guarantor in respect of a D&C Contract.
D&C Standards means those design and construction standards and codes set forth in Section 28.3 of the Requirements and Provisions for Work.
D&C Work means the Design Work, the Construction Work and the Demolition Work.
D&C Work Completion means the achievement of Substantial Completion, Final Acceptance and Demolition Completion.
D&C Work Completion Date means the date upon which Developer achieves D&C Work Completion.
The Port Authority of New York and New Jersey Exh. 1-13 Project Agreement – Exhibit 1 Goethals Bridge Replacement Project August 30, 2013
D&C Work Completion Deadline means the date that is the fifth (5th) anniversary of the Financial Closing Date and subject to adjustment pursuant to the Project Documents.
D&C Work Completion Payment means $25,000,000.
D&C Work Value means an amount equal to the D&C Contract Amount minus the Cost to Complete.
Day or day means calendar days unless otherwise expressly specified as a Business Day.
Debarment Regulations means (a) Federal Executive Order no. 12549 (Feb. 18, 1986), (b) Federal Executive Order no. 12689 (Aug. 16, 1989), (c) 31 U.S.C. § 6101 note (Section 2455, Pub. L. 103-355, 108 Stat. 3327) and (d) 49 CFR Part 29 “Government wide Debarment and Suspension (Nonprocurement)”.
Defect means a defect in the condition or performance of any component of the Project whether by design, construction, installation, damage or wear, affecting the condition, use, functionality or operation of any part of the Maintained Facilities, which would cause or have the potential to cause one or more of the following:
(a) a hazard, nuisance or other risk to public or worker health or safety, including the health and safety of road users;
(b) a structural deterioration of the affected asset or any other part of the Project;
(c) damage to a third party’s property or equipment;
(d) damage to the environment; or
(e) failure of the affected asset or any Element of the Maintained Facilities to meet a Maintenance Performance Requirement.
Defect Remedy Period means, for a Defect, the time period for rectifying that Defect set forth in:
(a) for a 'Category 1' Defect, the column headed 'Cat 1 immediate action' in the Maintenance Performance Requirements Baseline Table; and
(b) for a 'Category 2' Defect the column headed 'Cat 2' in the Maintenance Performance Requirements Baseline Table.
Deferred Equity Amounts means, on any date, any amount of unfunded equity that has been committed to Developer (or, without duplication, Borrower) (including commitments to provide an Equity Investment or Equity Member Debt) and is shown to be available for use in the Financial Model prior to the D&C Work Completion Date, but only to the extent that the commitment to provide such amount is supported by an irrevocable on-demand letter of credit issued by or for the account of an Equity Member naming Developer (or Borrower, as the case may be) and/or the Collateral Agent as beneficiary and guaranteeing the provision of the committed amount by a date which is not later than the D&C Work Completion Date.
The Port Authority of New York and New Jersey Exh. 1-14 Project Agreement – Exhibit 1 Goethals Bridge Replacement Project August 30, 2013
Demolition Completion means the occurrence of all the events and satisfaction of all the conditions set forth in Section 7.11 (Demolition Completion).
Demolition Work means all Work related to the demolition and removal of the Existing Bridge, as more particularly set forth in Section 20 of the Requirements and Provisions for Work.
Design Documents means all drawings (including plans, profiles, cross-sections, notes, elevations, typical sections, details and diagrams), design criteria, specifications, reports, studies, calculations, electronic files, records and submittals necessary for, or related to, the design of the Project. Design Documents include the Final Design Documents.
Design Work means all Work related to the design, redesign, engineering or architecture for the Project.
Developer has the meaning set forth in the introductory paragraph to this Agreement.
Developer Change has the meaning set forth in Section 10.6 (Developer Changes).
Developer Change Request has the meaning set forth in Section 10.6 (Developer Changes).
Developer Conditions Precedent means the conditions precedent specified in Section 2.4 excluding the Authority Conditions Precedent.
Developer Default has the meaning set forth in Section 22.1 (Developer Default).
Developer Default (Construction Period) Termination Sum means the amount calculated in accordance with paragraph 3.1 of Exhibit 6 (Compensation on Termination).
Developer Default (Maintenance Period) Termination Sum means the amount calculated in accordance with paragraph 3.2 of Exhibit 6 (Compensation on Termination).
Developer Default Termination Sum means either the Developer Default (Construction Period) Termination Sum or the Developer Default (Maintenance Period) Termination Sum, as applicable.
Developer Noncompliance Trigger Event means an accumulation of assessed Noncompliance Points or an accumulation of Noncompliance Events where:
(a) the cumulative number of Noncompliance Points assessed during any rolling 12 month period prior to the Substantial Completion Date or during any rolling 12 month period on and from the Substantial Completion Date equals or exceeds 100; or
(b) the cumulative number of Noncompliance Points assessed during any rolling 36 month period prior to the Substantial Completion Date or during any rolling 36 month period on and from the Substantial Completion Date equals or exceeds 200; or
(c) the cumulative number of Noncompliance Events, cured or uncured, during any rolling 12 month period prior to the Substantial Completion Date or during any 12 month period on and from the Substantial Completion Date equals or exceeds 100; or
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(d) the cumulative number of Noncompliance Events, cured or uncured, during any rolling 36 month period prior to the Substantial Completion Date or during any 36 month period on and from the Substantial Completion Date equals or exceeds 250.
Developer Release of Hazardous Material means any Hazardous Materials Release:
(a) to the extent attributable to the acts, omissions, negligence, willful misconduct or breach of Applicable Law or contract by any Developer-Related Entity, provided that the removal of Hazardous Materials, or any Remedial Action in respect of Hazardous Materials, by a Developer-Related Entity in accordance with the requirements of the Project Documents shall not be a "Developer Release of Hazardous Material";
(b) involving any Hazardous Materials arranged to be brought onto the Project Right of Way or elsewhere by any Developer-Related Entity, regardless of cause (unless brought onto the Project Right of Way pursuant to a removal of Hazardous Materials, or any Remedial Action in respect of Hazardous Materials, by a Developer-Related Entity in accordance with the requirements of the Project Documents); or
(c) to the extent attributable to the use, containment, storage, management, handling, transport and disposal of any Hazardous Materials by any Developer-Related Entity in breach of any of the requirements of the Project Documents or any Applicable Law or Governmental Approval.
Developer Termination Notice has the meaning set forth in Section 24.2.1.
Developer’s Estimate has the meaning set forth in Section 10.3.1.
Developer’s Final Design means the design prepared by Developer and Signed and Sealed by the Engineer of Record (EOR), in compliance with the Requirements and Provisions for Work, consistent with Developer’s Initial Design and subject to the Authority’s review.
Developer's Financing means the arrangements made or to be made by Developer or Borrower for the provision of financing to support Developer's performance of its obligations in respect of the Project, including its obligations under the Project Documents and the Key Contracts.
Developer’s Initial Design means the conceptual design of the Project forming part of Developer’s Proposal Commitments.
Developer’s Interest means all rights, title, and/or interest of Developer derived from this Agreement and the other Project Documents.
Developer’s Maintenance and Control Facility means the facility to be provided by Developer for managing the performance of the Maintenance Work as defined in Section 23 of the Requirements and Provisions for Work.
Developer’s Operational Services means the services to be provided by Developer as set forth in Section 24 of the Requirements and Provisions for Work.
Developer’s Proposal Commitments means those commitments made by Developer in its Proposal and attached as Appendix 1 (Developer’s Proposal Commitments) to this Agreement.
The Port Authority of New York and New Jersey Exh. 1-16 Project Agreement – Exhibit 1 Goethals Bridge Replacement Project August 30, 2013
Developer-Related Entity means (a) Developer, (b) Equity Members, (c) Contractors (including Suppliers), (d) any other Persons performing any of the Work for or on behalf of Developer, (e) any other Persons for whom Developer may be legally or contractually responsible, and (f) the employees, agents, officers, directors, shareholders, representatives, consultants, successors, assigns and invitees of any of the foregoing.
DFA Interest Rate means a rate per annum equal to 5.18%.
DFA Loan has the meaning set forth in Exhibit 23 (Developer Financing Arrangements).
DFA Offset Amount means the amount determined for set-off in accordance with Section 14.3.2 of the Agreement.
DFA Payment means each monthly payment of principal and interest paid or payable by the Authority to Developer pursuant to Exhibit 23 (Developer Financing Arrangements).
DFA Satisfaction Amount means $968,674,015.
Direct Agreement means the agreement substantially in the form attached as Form 1 (Form of Direct Agreement) to the Project Agreement by and among the Authority, Developer, and the Lender (or if there is more than one Lender, the Collateral Agent on behalf of the Lenders) regarding the Lenders’ rights to notice, step-in and cure Developer Defaults.
Directive Letter has the meaning set forth in Section 10.2 (Directive Letter).
Disclosed Information means all information (whether oral or written) provided to Developer or any Developer-Related Entity by the Authority or any of its employees, agents, officers, directors, shareholders, representatives, consultants, successors and assigns prior to the date of this Agreement, including: (a) the RFP and its contents; and (b) all contents of the Collaboration Portal.
Discretionary Submittal means any Submittal that is expressed in the Project Documents to be subject to the approval or consent of the Authority in its sole or absolute discretion.
Discriminatory Change in Law means a Change in Law, the terms of which apply to:
(a) the Project or projects substantially the same as the Project;
(b) private operators of roads or bridges; or
(c) Developer or any Key Contractor,
provided, that in each case, such Change in Law is not of general application to other Persons.
Dispute means any dispute, disagreement or controversy between the Authority and Developer concerning their respective rights and obligations under any Project Document, including in respect of any claim, alleged breach or failure to perform and any remedy.
Dispute Resolution Procedures means the procedures for resolving Disputes set forth in Article 30 (Dispute Resolution Procedures).
The Port Authority of New York and New Jersey Exh. 1-17 Project Agreement – Exhibit 1 Goethals Bridge Replacement Project August 30, 2013
Disputes Review Board means the disputes review board established to aid in the resolution of Disputes pursuant to Section 30.4 (Disputes Review Board).
Disputes Review Board Agreement means the agreement in the form attached to this Agreement as Exhibit 11-A (Form of Disputes Review Board Agreement).
Distribution means, whether in cash or in kind, any:
(a) dividend or other distribution in respect of share capital;
(b) reduction of capital, redemption or purchase of shares or any other reorganization or variation to share capital;
(c) payments under the Equity Members Funding Agreements (whether of principal, interest, breakage costs or otherwise);
(d) payment, loan, contractual arrangement or transfer of assets or rights directly to the extent (in each case) it was put in place after Financial Close and was neither in the ordinary course of business nor on reasonable commercial terms; or
(e) the receipt of any other benefit which is not received in the ordinary course of business and not on reasonable commercial terms.
Document Management Plan means the document management plan described in Section 2.2.4.5 of the Requirements and Provisions for Work.
Dollars or $ refers to the lawful money of the United States of America.
Early Termination means the termination of this Agreement for any reason prior to the expiration of the Term.
Early Termination Date means the effective date of termination of this Agreement for any reason prior to the stated expiration of the Term, as specified in the relevant provisions of Article 24 (Termination).
Element means an individual component, system or subsystem of the Maintained Facilities and shall include at a minimum, a breakdown into the items described in the Maintenance Performance Requirements Baseline Table.
Emergency means any unplanned event affecting the Project that:
(a) presents an immediate or imminent hazard to Patrons, or a risk of immediate or imminent structural failure, or an immediate or imminent risk of damage to a third party's property or equipment, or an immediate or imminent risk of damage to the environment or a threat to the long term integrity of any part of the Project;
(b) has jeopardized the safety of road users or the traveling public using the Replacement Bridge;
(c) is a declared state of emergency pursuant to State or federal Law; or
The Port Authority of New York and New Jersey Exh. 1-18 Project Agreement – Exhibit 1 Goethals Bridge Replacement Project August 30, 2013
(d) is recognized or declared by the Authority Police or any other Governmental Entity (other than the Authority) as an Emergency.
Emergency Management Plan means the plan described in Section 24 of the Requirements and Provisions for Work setting forth Developer’s approach to Emergencies.
Emergency Response means the actions taken by Developer, as described in the Emergency Management Plan, to respond to an Emergency within the Maintenance Limits.
Emergency Services means law enforcement, ambulance service and other similar services from agencies with which Developer establishes protocols for Emergency response, safety and security procedures, as set forth in the Emergency Management Plan.
Endangered Species means any animal or plant wildlife listed as endangered or threatened under and subject to an endangered or threatened species Law.
Engineer of Record or EOR means the licensed Professional Engineer in the State of New York and the State of New Jersey employed by the Lead Engineering Firm responsible for preparing Final Design Documents, all specifications, certification of all shop drawings and providing As-Built Documents for the Project.
Environment means air, soils, surface waters, groundwater, land, stream sediments, surface or subsurface strata, biological resources, including endangered, threatened and sensitive species, natural systems, including ecosystems, and cultural, historic, archaeological and paleontological resources.
Environmental Commitments means those environmental commitments set forth in the Project Documents.
Equity Investment means (a) any form of direct investment by Equity Members, including the purchase of newly issued equity shares in and/or the provision of Equity Member Debt to Developer (or, without duplication, Borrower), and (b) any draws by or on behalf of Developer or Borrower, as applicable, of the letter(s) of credit described in the definition of Deferred Equity Amount.
Equity IRR means the nominal post-tax internal rate of return on Equity Investment over the full Term calculated using the Financial Model, as the discount rate that, when applied to Equity Investment cash flows, gives a zero net present value. The Equity IRR initially is equal to the Base Case Equity IRR and is subject to amendment only in accordance with Article 16 (Financial Model Adjustments). For the purposes of this definition:
(a) the phrase “post-tax” refers only to U.S. federal, state and local income tax liability of Developer, Borrower or their respective Equity Members and specifically excludes (i) any foreign income tax and other tax of any kind, and (ii) any federal, state or local withholding tax, including any tax that Developer, Borrower or an Equity Member is obligated to withhold on Distributions (whether actual or constructive) or other payments or allocations to Equity Members or holders of debt of or equity interests in an Equity Member under 26 U.S.C. §§ 1441 – 1446, notwithstanding 26 U.S.C. § 1461;
(b) in calculating the Equity IRR, a single level of corporate income taxes for a regularly-taxed, U.S.-organized, domestic "C" corporation should be taken into account; and
The Port Authority of New York and New Jersey Exh. 1-19 Project Agreement – Exhibit 1 Goethals Bridge Replacement Project August 30, 2013
(c) the phrase “cash flows” refers to Distributions minus Equity Investment.
Equity Member means any Person that directly holds an equity interest in Developer or Borrower.
Equity Member Debt means any obligations created, issued or incurred by Developer (or, without duplication, Borrower) for borrowed money that: (a) is owed to any Equity Member, any Related Entity, Qualified Investor or any Affiliate thereof or of Developer (other than, in each case, Borrower), as applicable, and (b) is subordinated in priority of payment and security to all Project Debt held by Persons who are not Equity Members, other than any mezzanine debt that is provided by a party referred to in paragraph (a) on an arm's length basis.
Equity Members Funding Agreements means any loan agreement, credit agreement or other similar financing agreement or subordination agreement providing for or evidencing Equity Member Debt.
Escrow Agent has the meaning set forth in Section 8.6.1 (Establishment and Security).
Exceptional Cost means for an Insurance Review Period, the extent to which there is an Insurance Cost Increase which exceeds 30% of the Base Benchmarked Insurance Cost for that Insurance Review Period.
Exceptional Saving means for an Insurance Review Period, the extent to which there is an Insurance Cost Decrease which exceeds 30% of the Base Benchmarked Insurance Cost for that Insurance Review Period.
Exempt Refinancing means:
(a) any Refinancing to the extent that it was taken into account in the calculation of the Maximum Aggregate Payment;
(b) any amendment, modification, supplement, or consent to any Financing Document or the exercise by a Lender of rights, waivers, consents and similar actions in the ordinary course of day-to-day loan administration and supervision which do not provide a financial benefit to Borrower or Developer;
(c) any changes in taxation or Borrower’s or Developer’s accounting treatment or policies; and
(d) any of the following acts by a Lender:
(i) the syndication in the ordinary course of business of any of such Lender’s rights and interests in the Financing Documents;
(ii) the sale of a participation, assignment, or other transfer by such Lender of any of its rights or interests, in respect of the Financing Documents in favor of any other Lender or any investor; or
(iii) the grant by such Lender of any other form of benefit or interest in either the Financing Documents or the revenues or assets of Borrower or Developer,
The Port Authority of New York and New Jersey Exh. 1-20 Project Agreement – Exhibit 1 Goethals Bridge Replacement Project August 30, 2013
whether by way of security or otherwise, in favor of any other Lender or any investor;
(e) any amendment, variation, or supplement of any Financing Documents in connection with the funding of an Authority Change pursuant to Article 10 (Authority and Developer Changes);
(f) a re-set of an interest rate pursuant to the express terms of any Financing Documents; or
(g) any sale of any equity interests in Developer by an Equity Member or securitization of the existing rights and/or interests attaching to any equity interests in Developer or its direct, 100% Equity Member, if any.
Existing Bridge means the existing Goethals Bridge consisting of the following: (a) Goethals Bridge Main Span (BIN 5523059); (b) Goethals Bridge New York Approach Roadway (BIN 552305A); (c) Goethals Bridge New Jersey Approach Roadway (BIN 552305B); (d) Goethals Bridge New Jersey Approach Roadway (BIN 3800071); (e) Goethals Bridge New Jersey Approach Roadway (BIN 3800072); (f) the New Jersey Hollow Abutments; (g) the New York Hollow Abutments, (h) all associated Retaining Walls and Wing Walls, and (i) all supporting structures, dolphins, appurtenances and supporting utilities.
Extended Force Majeure Termination Sum means the amount calculated in accordance with paragraph 2 of Exhibit 6 (Compensation on Termination).
Extra Work means any work which is required by the Authority to be performed by Developer and which at that time is not otherwise covered or included in the Project by the Project Documents, whether it is in the nature of additional work, altered work, deleted work, or otherwise, including by means of an Authority Change and/or Directive Letter.
Federal Requirements means the provisions required to be part of federal-aid construction contracts by Applicable Law, including those federal Applicable Laws identified in the Project Documents.
Final Acceptance means the occurrence of all the events and satisfaction of all the conditions set forth in Section 7.12.1 (Final Acceptance).
Final Acceptance Date means the date upon which Developer achieves Final Acceptance.
Final Acceptance Payment means $25,000,000.
Final Design means, depending on the context: (a) the Final Design Documents; (b) the design concepts set forth in the Final Design Documents; or (c) the process of developing the Final Design Documents.
Final Design Documents means the complete final construction drawings, including plans, profiles, cross-sections, notes, elevations, typical sections, details and diagrams, design criteria, specifications, reports, studies, calculations, electronic files, records and submittals prepared by Developer, necessary or related to construction and maintenance of the Project.
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Final Environmental Impact Statement (FEIS) means the certain "Goethals Bridge Replacement Project" Final Environmental Impact Statement published in the Federal Register by the US Coastal Guard on August 13, 2010.
Final Proposal Date means April 2, 2013.
Final Warning Notice has the meaning set forth in Section 22.2.2 (Final Notice).
Financial Close means the satisfaction or waiver of all conditions precedent to the initial disbursement to Borrower or receipt and utilization by Developer of Project Debt proceeds or the effectiveness of the Lenders’ commitments, as applicable, under the Financing Documents (other than any condition as to the effectiveness of this Agreement).
Financial Closing Conditions Precedent means the conditions set out in Section 2.4 (Conditions Precedent to the Financial Closing Date).
Financial Closing Date means the date on which all of the Financial Closing Conditions Precedent are satisfied in accordance with this Agreement.
Financial Closing Deadline means the date that is one hundred eighty (180) days after Successful Proposer Selection (as defined in the ITP) and subject to adjustment pursuant to this Agreement and the ITP.
Financial Dispute has the meaning set forth in Section 30.3.1.
Financial Disputes Review Board means the Disputes Review Board for Financial Disputes.
Financial Model means the base case financial model delivered by Developer and approved by the Authority as set out in Form 4 (Form of Financial Model) (as updated from time to time in accordance with the terms of this Agreement) for the purposes of, amongst other things, calculating the DFA Payments and Maintenance Payments.
Financial Proposal has the meaning set forth in the ITP.
Financing Costs means, in respect of any Authority Delay Period, the aggregate of (a) all amounts of principal that will fall due for payment under the Financing Documents during that Authority Delay Period, and (b) all amounts (excluding default interest) of interest that accrue under the Financing Documents during that Authority Delay Period.
Financing Documents means the Funding Agreements and the Security Documents.
First Construction Milestone means the date on which Developer has paid to the D&C Contractor 70% of the cost assumed in the Financial Model to be paid by Developer under the D&C Contract between the Financial Closing Date and the Original Substantial Completion Deadline.
First Insurance Review Date means the first Business Day following the first anniversary of the Benchmarked Insurance Inception Date.
First Milestone Payment means $25,000,000.
Force Majeure Event means the occurrence after the date of this Agreement of:
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(a) war, civil war, invasion, violent act of foreign enemy or armed conflict;
(b) nuclear, chemical or biological contamination unless the source or cause of the contamination is brought to or near the Site by Developer or its Key Contractors or is as a result of any breach by Developer of the terms of this Agreement; or
(c) ionizing radiation unless the source or cause of the ionizing radiation is brought to or near the Site by Developer or its Key Contractors or is as a result of any breach by Developer of the terms of this Agreement; or
(d) any blockade or embargo;
(e) any:
(i) official or unofficial strike;
(ii) lockout;
(iii) go-slow; or
(iv) other dispute,
generally affecting the construction industry or a significant sector of it;
(f) any act of Terrorism that is not a Compensation Event,
which directly causes either Party (the “Affected Party”) to be unable to comply with all or a material part of its obligations under this Agreement.
Fraud Prevention Program means the multi-faceted program designed and implemented by the Port Authority Inspector General to ensure integrity, and prevent fraud, on the Project.
Funding Agreements means the documents listed in Part A (Funding Agreements) of Annex 3 to the Direct Agreement executed on or about Financial Close, together with any other document designated by the Parties acting jointly as a Funding Agreement.
GAAP means the Generally Accepted Accounting Principles approved and adopted by the American Institute of Certified Public Accountants.
General Change in Law means a Change in Law which is not a Discriminatory Change in Law.
General Conditions means the general conditions set out in Section 0 (General Conditions) of the Requirements and Provisions for Work.
General Reserve Fund means the special fund by that name established by the General Reserve Fund Statutes.
General Reserve Fund Statutes means Chapter 5 of the Laws of New Jersey of 1931, as amended, and Chapter 48 of the Laws of New York of 1931, as amended.
Geotechnical Reports means those reports set forth in Exhibit 13 (Geotechnical Reports).
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Goethals Bridge Modernization Program Project Authorization means the resolution of the Authority, adopted on April 24, 2013, entitled “Goethals Bridge Modernization Program – Project Authorization”.
Governmental Approval means all approvals, permits, permissions, consents, licenses, certificates (including sales tax exemption certificates) and authorizations (whether statutory or otherwise) which are required from time to time in connection with the Project to be issued by the Authority, or any Governmental Entity.
Governmental Entity means the government of the United States of America, the State of New Jersey, the State of New York, the cities and counties within the States of New Jersey and New York and any other agency, or subdivision of any of the foregoing, including any federal, state, or municipal government, and any court, agency, special district, commission or other authority exercising executive, legislative, judicial, regulatory, administrative or taxing functions of, or pertaining to, the government of the United States of America, the State of New Jersey, the State of New York or the cities and counties within the States of New Jersey or New York. Governmental Entity does not include the Authority.
Grace Period means, in respect of each Noncompliance Event, the period commencing on the Noncompliance Start Date for the Noncompliance Event and expiring the number of days later (if any) specified in the column headed “Grace Period (days)” for that Noncompliance Event in Exhibit 7 (Non-Compliance Points Tables).
Handback Deductible means, as of the date of this Agreement, $4,000,000 (four million dollars), which amount shall be indexed in accordance with Section 2.11 of Exhibit 8.
Handback Period means the period beginning on the date sixty (60) months before the scheduled end of the Term and ending on the Termination Date.
Handback Renewal Elements Amount has the meaning set forth in Section 2 of Exhibit 5.
Handback Renewal Work Plan means the plan prepared in accordance with Section 25 of the Requirements and Provisions for Work.
Handback Requirements has the meaning set forth in Section 8.5.1.1.
Handback Reserve Account has the meaning set forth in Section 8.6.1 (Establishment and Security).
Handback Reserve Amount has the meaning set forth in Section 5.2 of Exhibit 5 (Calculation of Handback Amounts).
Handback Residual Elements Amount has the meaning set forth in Section 3 of Exhibit 5 (Calculation of Handback Amounts).
Handback Year has the meaning set forth in Section 8.6.2.1.
Hazardous Environmental Condition means the presence of any Hazardous Materials on, in, under or about the Project Right of Way at concentrations or in quantities that are required to be removed or remediated as a matter of Law or in accordance with the requirements of the Project Documents or any Governmental Entity.
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Hazardous Materials means any element, chemical, compound, mixture, material or substance, whether solid, liquid or gaseous, which at any time is defined, listed, classified or otherwise regulated in any way under any Applicable Law, or any other such substances or conditions (including mold and other mycotoxins, fungi or fecal material) which may create any unsafe or hazardous condition or pose any threat or harm to the environment or human health and safety. “Hazardous Materials” includes the following:
(a) hazardous wastes, hazardous material, hazardous substances, hazardous constituents, and toxic substances, ignitable, corrosive and reactive substances or related materials, whether solid, liquid, or gas, including substances defined as or included in the definition of “hazardous substance”, “hazardous waste”, “hazardous material”, “extremely hazardous waste”, “acutely hazardous waste”, “radioactive waste”, “radioactive materials”, “bio-hazardous waste”, “pollutant”, “toxic pollutant”, “contaminant”, “restricted hazardous waste”, “infectious waste”, “toxic substance”, “toxic waste”, “toxic material”, or any other term or expression intended to define, list or classify substances by reason of properties harmful to health, safety or the indoor or outdoor environment (including harmful properties such as ignitability, corrosivity, reactivity, carcinogenicity, toxicity, reproductive toxicity, “TCLP” toxicity” or “EP toxicity” or words of similar import under any Applicable Law);
(b) any petroleum product, including crude oil and any fraction thereof, and including any refined petroleum product or any additive thereto or fraction thereof; and any waste oil or waste petroleum byproduct or fraction thereof or additive thereto;
(c) any solvent, solvent waste, including any refined solvent product, and any waste solvent or waste solvent byproduct, including any additive, byproduct or fraction of any of the foregoing;
(d) any drilling fluids, produced waters and other wastes associated with the exploration, development or production of crude oil, natural gas or geothermal resources;
(e) any flammable substances or explosives;
(f) any radioactive materials;
(g) any asbestos or asbestos-containing materials;
(h) silica;
(i) any lead, cadmium, or lead-based paint or any other heavy metal-based paint or material, or any metal listed in or regulated by the Resource Conservation and Recovery Act (42 U.S.C. §§ 6901 et seq.);
(j) any radon or radon gas;
(k) any methane gas or similar or regulated gaseous materials;
(l) any urea formaldehyde foam insulation;
(m) electrical equipment and components which contain any oil or dielectric fluid containing polychlorinated biphenyls;
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(n) pesticides, herbicides or fungicides;
(o) any other chemical, material or substance, exposure to which is prohibited, limited or regulated by any Governmental Entity or which may or could pose a hazard to the health and safety of the owners, operators, Patrons or any Persons in the vicinity of the Project or to the indoor or outdoor Environment; and
(p) soil, or surface water or groundwater, containing any of the Hazardous Materials as defined above.
Hazardous Materials Baseline Report means the reports set forth in Exhibit 4 (Hazardous Materials Baseline Report).
Hazardous Materials Release means any spill, leak, emission, release, discharge, injection, escape, leaching, dumping or disposal of Hazardous Materials into the soil, air, surface water, groundwater or indoor or outdoor environment, including any of the foregoing that exacerbates an existing release or condition of Hazardous Materials contamination.
Health and Safety Plan means the health and safety plan referred to in Section 2 of the Requirements and Provisions for Work.
Hedging Arrangements means any Financing Documents entered into for the purposes of hedging Developer’s or Borrower’s exposure to floating rate interest risk.
Hedging Liabilities means all amounts due from Developer or Borrower, as the case may be, to the Lenders by reason of the early termination of any Hedging Arrangements.
Hedging Receipts means all amounts (if any) payable by the Lenders to Developer or Borrower, as the case may be, by reason of the early termination of any Hedging Arrangements.
Hour means a period of 60 minutes in a day, the first such period (calculated with reference to a 24 hour clock) commencing at 00:00 hours on that day, and each further period commencing on the hour.
Hourly Unavailability Event means a unitary event of duration one hour arising from a Closure that is not a Permitted Closure as further described in Exhibit 8 (Payment Mechanism). Depending on its duration and time of occurrence, a Closure may entail multiple Hourly Unavailability Events, i.e. one per Hour.
Immediately Effective Articles has the meaning set forth in Section 2.1 (Immediately Effective Articles).
Incident means any unplanned event other than an Emergency within the Project Right of Way (including without limitation a road traffic accident, road traffic incident, disabled vehicle or vehicle spill) that causes the Authority Police to take action as a result of the potential or actual disruption to the normal use by Patrons of the Project Facility.
Increased Monitoring Period means a period commencing when:
(a) the cumulative number of Noncompliance Points assessed during any rolling 12-month period exceeds 50; or
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(b) the cumulative number of Noncompliance Points assessed during any rolling 36-month period exceeds 100; or
(c) the cumulative number of Noncompliance Events, cured or uncured, during any rolling 36-month period exceeds 75,
and ending when Developer has demonstrated to the reasonable satisfaction of the Authority that:
(x) it is diligently pursuing cure of all Noncompliance Events that have not been cured; and
(y) it will perform, and is capable of performing, its obligations under the Project Documents.
Indemnified Losses has the meaning set forth in Section 20.1 (Indemnified Losses).
Indemnified Parties means the Authority and its respective successors, assigns, agencies, divisions, officeholders, officers, directors, commissioners, agents, representatives, consultants and employees, each Project Third Party and the States of New York and New Jersey.
Indemnifying Party has the meaning set forth in Section 20.4.1.
Indexable Element means any financial amount referred to in this Agreement that is expressed to be subject to indexation in accordance with Section 2.11 of Exhibit 8 (Payment Mechanism).
Indexation Base Date means January 1, 2013.
Indexation Formula has the meaning set forth in Section 2.11 of Exhibit 8 (Payment Mechanism).
Indexation Review Date means the Substantial Completion Date and thereafter each anniversary of the Substantial Completion Date.
Indirect Losses means loss of profits, loss of use, loss of production, loss of business, loss of business opportunity or any claim for consequential loss or for indirect loss of any nature but excluding any of the same that relate to payments expressly provided for under this Agreement.
Initial Configuration means the configuration of the Project at the time of Substantial Completion, designed and constructed in a manner that does not preclude the subsequent installation of a mass transit system.
Insolvency Event means in respect of any Person:
(a) any involuntary bankruptcy, insolvency, liquidation, company reorganization, restructuring, controlled management, suspension of payments, scheme of arrangement, appointment of provisional liquidator, receiver or administrative receiver, notification, resolution, or petition for winding up or similar proceeding, under any Applicable Law, in any jurisdiction, except to the extent that the same has been dismissed within sixty (60) days;
(b) any voluntary bankruptcy, insolvency, liquidation, company reorganization, restructuring, controlled management, suspension of payments, scheme of arrangement, appointment of provisional liquidator, receiver or administrative receiver, notification, resolution, or
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petition for winding up or similar proceeding, under any Applicable Law, in any jurisdiction; or
(c) any inability on the part of that Person to pay its debts as they fall due.
Inspector General or OIG refers to the Port Authority of New York and New Jersey, Office of Inspector General.
Insurance Adjustment Period means the period between the date on which an adjustment to the per occurrence and aggregate limits for the Insurance Policies is made under Section 19.2.12 and the date on which the next review of those limits is required to be made under Section 19.2.12.
Insurance Broker means Developer's insurance broker, such broker to be a reputable international insurance broker of good standing.
Insurance Cost Decrease means the Insurance Cost Differential if the value is less than zero, multiplied by minus one.
Insurance Cost Differential shall, subject to the Insurance Premium Benchmarking Procedure, be determined as follows:
Insurance Cost Differential = (ABIC - BBIC) - (+/-PIC),
where:
ABIC is the Actual Benchmarked Insurance Cost;
BBIC is the Base Benchmarked Insurance Cost; and
PIC is any Project Insurance Change;
Insurance Cost Increase means the Insurance Cost Differential if the value thereof is greater than zero.
Insurance Policies means all of the insurance policies Developer is required to carry pursuant to Article 19 (Insurance).
Insurance Premium Benchmarking Procedure means the procedure set out in Section 19.7 (Benchmarking of Insurance Costs).
Insurance Proceeds means all proceeds from insurance payable to Developer (or that should have been payable to Developer but for Developer’s breach of any obligation under the Agreement to take out or maintain such insurance) on or after the Early Termination Date.
Insurance Review Date means the First Insurance Review Date and, thereafter, each date falling on the anniversary of the previous Insurance Review Date, except where such date lies beyond the end of the Term, in which case the Insurance Review Date shall be the last renewal date of the Benchmarked Insurances prior to the end of the Term.
Insurance Review Period means a three year period from the Benchmarked Insurance Inception Date and each subsequent three year period commencing on the third anniversary of
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the Benchmarked Insurance Inception Date except where the end of such period lies beyond the end of the Term, in which case the Insurance Review Period shall be the period from the end of the penultimate Insurance Review Period to the last day of the Term.
Insurance Term means any terms and/or conditions required to be in a policy of insurance by Article 19. (Insurance) and/or Exhibit 10 (Insurance Coverage Requirements) but excluding any risk.
Integrity Monitor(s) means a private firm retained to assist the Port Authority Inspector General in implementing the Fraud Prevention Program.
Intellectual Property means any and all patents, trade marks, service marks, copyright, database rights, moral rights, rights in a design, know-how, confidential information and all or any other intellectual or industrial property rights whether or not registered or capable of registration and whether subsisting in the United States or any other part of the world together with all or any goodwill relating or attached thereto which is created, brought into existence, acquired, used or intended to be used by any Developer-Related Entity for the purposes of carrying out the Works and/or otherwise for the purposes of this Agreement.
Invoice has the meaning set forth in Section 14.3.1.
ITP means the Instructions to Proposers, forming Part I of the RFP.
Joint Insurance Cost Report has the meaning set forth in Section 19.7.2.
Key Assets means all assets and rights to enable the Authority or a successor contractor to own, operate and maintain the Replacement Bridge in accordance with this Agreement including:
(a) any land or buildings;
(b) any equipment;
(c) any books and records (including operating and maintenance manuals, health and safety manuals and other know how);
(d) any spare parts, tools and other assets (together with any warranties in respect of assets being transferred);
(e) any contractual rights; and
(f) any Intellectual Property subject to and in accordance with Article 27 (Intellectual Property),
but excluding any assets and rights in respect of which the Authority is full legal and beneficial owner.
Key Contract means:
(a) any D&C Contract;
(b) any Maintenance Contract;
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(c) the Construction Engineering and Inspection Contract entered into by Developer;
(d) the Bridge Check Engineer Contract between Developer and the Bridge Check Engineer; or
(e) any guaranty, performance and/or payment security, or any other support provided by a creditworthy entity in respect of the obligations of a Key Contractor under any of the foregoing.
Key Contractor means the Contractor under any Key Contract.
Key Personnel means those individuals appointed by Developer and approved by the Authority from time to time to fill the following positions:
(a) the Lead Contractor’s Project Manager;
(b) 'Superintendent for Lead Contractor';
(c) 'Design Manager';
(d) 'Lead Bridge Design Engineer (EOR)';
(e) 'Maintenance Manager';
(f) 'Lead Quality Manager';
(g) 'Environmental Compliance Manager';
(h) 'Safety Manager';
(i) 'Geotechnical Engineering Team Leader';
(j) 'Design Quality Manager';
(k) 'Visual Quality Manager';
(l) 'Project Executive';
(m) 'Lead Bridge Check Engineer'; and
(n) 'CEI Senior Project Engineer'.
Key Ratios has the meaning set forth in the Direct Agreement executed on or about Financial Close.
Late Payment Rate means six percent (6%) per annum.
Law means any federal, state, local and municipal laws, rules and regulations, orders, codes, directives, permits, approvals, decisions, decrees, ordinances or by-laws having the force of law and any common or civil law, whether adopted or enacted prior to or after the date of this Agreement including binding court and judicial decisions having the force of law, and includes any amendment, extension or re-enactment of any of the same in force from time to time and all
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other instruments, orders and regulations made pursuant to statute, including those made by any Governmental Entity.
Lead Contractor means Kiewit-Weeks-Massman, AJV.
Lead Engineering Firm means Parsons Transportation Group of New York, Inc.
Lead Maintenance Firm means Developer, irrespective of any reference to the contrary in Appendix 1 (Developer’s Proposal Commitments) to this Agreement.
Lenders means each bank or financial institution, the U.S. Department of Transportation (as lender of a TIFIA Loan), or any other Person that provides Project Debt or other financing (excluding Equity Member Debt) and/or has rights under or pursuant to any of the Financing Documents and any of their respective participating parties, trustees, agents (including the Collateral Agent), successors and assigns.
Lenders’ Liabilities means, at the relevant time, the aggregate of (without double counting):
(a) all principal, interest (including default interest under the Financing Documents, but with respect to default interest, only to the extent that it arises as a result of the Authority making any payment later than the date that it is due under this Agreement or any other default by the Authority under this Agreement), banking fees and premiums on financial insurance policies, costs and expenses properly incurred owing or outstanding to the Lenders by Borrower or (without duplication) Developer under or pursuant to the Financing Documents on the Early Termination Date, including any prepayment costs, make-whole amounts or breakage costs; plus
(b) Hedging Liabilities, minus
(c) Hedging Receipts.
Life Cycle Maintenance Plan means the plan produced annually by Developer identifying Renewal Work and Handback Requirements needs on a rolling five-year basis; the estimated costs and timing of those needs and such other information as may be reasonably requested by the Authority, as described in Section 23 of the Requirements and Provisions for Work.
Life Safety Systems means standpipe system plus any separate life safety systems for electrical or mechanical facilities including such items as fire pumps and fire alarms.
Loan Amortization Schedule means the schedule attached as Schedule A to Exhibit 23 (Developer Financing Arrangements), reflecting the dates and amounts on which payments of principal of and interest on the DFA Loan are due and payable and the amounts thereof.
Long Stop Deadline means the date that is 365 days after the D&C Work Completion Deadline (as such date may be extended pursuant to the terms of this Agreement).
Losses means any loss, damage, injury, liability, obligation, cost, response cost, expense (including attorneys’, accountants’ and expert witnesses’ fees and expenses (including those incurred in connection with the enforcement of any indemnity or other provision of this Agreement)), fee, charge, judgment, penalty, or fine. Losses include injury to or death of persons, damage or loss of property, and harm or damage to natural resources.
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Main Bridge means that portion of the Replacement Bridge over the Arthur Kill Waterway and adjacent structurally contiguous spans over the New Jersey and New York sides up to respective expansion joints.
Maintained Facilities means the Project Facilities that are to be maintained by Developer as further described in Section 23 of the Requirements and Provisions for Work.
Maintenance and Management System or MMS means the system to be implemented by Developer to record inventory, failures, repairs, maintenance activities and inspections performed on the Maintained Facilities.
Maintenance Contract means any Contract entered into by Developer for third party management, direction, supervision or performance of the Maintenance Work or any significant portion thereof (including any guaranty or similar credit support provided by a creditworthy entity to backstop obligations under such a Contract). There may be more than one Maintenance Contract concurrently in effect.
Maintenance Contractor means the Contractor under any Maintenance Contract.
Maintenance Limits means all of those areas within Developer's limits of Maintenance Work shown on Attachment 1.2 of Section 1 of the Requirements and Provisions for Work.
Maintenance Management Plan means the plan developed by Developer that identifies the approach, methods, staffing, systems, schedule and procedures for performing the Maintenance Work, as described in more detail in Section 23 of the Requirements and Provisions for Work.
Maintenance Manual means the manuals to be prepared by Developer and submitted to the Authority as set forth in Section 23 of the Requirements and Provisions for Work.
Maintenance Payments means, collectively, the Monthly Capital Maintenance Payment and the Monthly Operational Maintenance Payment, less any amounts owed by Developer to the Authority under this Agreement.
Maintenance Performance Requirements means the performance requirements defining the Maintenance Work as set forth on the Maintenance Performance Requirements Baseline Table.
Maintenance Performance Requirements Baseline Table means the table included as Attachment 23.1 of the Requirements and Provisions for Work as may be updated pursuant to the Agreement, which sets forth the Maintenance Performance Requirements for each Element.
Maintenance Period means the period starting on the Substantial Completion Date and ending on the last day of the Term.
Maintenance Records means all data in connection with operation and maintenance of the Project including (a) all inspection and inventory records, whether generated by Developer or a third party, and (b) any information system (as may be introduced or amended by the Authority from time to time) in connection with operation, maintenance, renewal or hand back of the Project that the Authority requires Developer to use or operate.
Maintenance Rectification Costs means, in respect of any termination of this Agreement that occurs after Substantial Completion, all Losses that the Authority determines it is reasonably
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likely to incur as a direct result of the termination of this Agreement, including (without double counting):
(a) those costs (internal and external) that the Authority is reasonably likely to incur as a direct result of carrying out any process to request tenders from any parties interested in entering into a contract with the Authority to carry out Maintenance Work, including all costs related to the preparation of tender documentation, evaluation of tenders and negotiation and execution of relevant contracts; and
(b) those costs reasonably projected to be incurred by the Authority in relation to:
(i) remediation or, if remediation is not possible or would cost more than renewal, renewal of any defective D&C Work or Maintenance Work;
(ii) rectification or cure of any breach of this Agreement by Developer; and
(iii) carrying out of all other matters necessary in order to ensure that within a reasonable period of the Early Termination Date, the Project:
(A) complies with the requirements of the Project Documents; and
(B) has a reasonable prospect of continuing to perform to the same standard and cost that it would have continued to perform at had this Agreement not been terminated and the Project been in compliance with all of the requirements of the Project Documents.
Maintenance Report means the report to be prepared by Developer on a monthly basis, as required under Section 23 of the Requirements and Provisions for Work.
Maintenance Work means all Routine Maintenance, Renewal Work and Developer’s Operational Services.
Major Governmental Approval means:
(i) any New York State Discharge Elimination System General Permit for Stormwater Discharges (GP-0-10-001);
(ii) any NJDEP Waterfront Development Permit in respect of any D&C Work relating to interpier basin bulkhead in the vicinity of the Corey Warehouse; and
(iii) any US Army Corps of Engineers Nationwide Permit in respect of any D&C Work relating to interpier basin bulkhead in the vicinity of the Corey Warehouse.
Major Governmental Approval Deadline means, in respect of any Major Governmental Approval, the date falling 180 days after the date that any submission by Developer of the relevant application proves to be compliant with the submission requirements of the relevant Governmental Entity.
Mass Transit Corridor or MTC means the minimum 29 foot clear corridor to be maintained between the eastbound and westbound roadway decks.
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Master Utility Agreements means each of the agreements listed in Part A of Exhibit 18 (Utility Data).
Materials Certificates has the meaning set forth in the Requirements and Provisions for Work.
Maturity Date means last day of the Term.
Maximum Aggregate Payment means the aggregate of the Maximum Milestone Payments, Maximum Capital Maintenance Payment, the Maximum Operational Maintenance Payment and the DFA Satisfaction Amount, each as determined from the Financial Model on or prior to the Financial Closing Date.
Maximum Capital Maintenance Payment has the meaning set forth in Section 1.3 of Exhibit 8 (Payment Mechanism).
Maximum Milestone Payments means the Maximum Milestone Payment Amounts set forth in Section 14.1.2.1.
Maximum Operational Maintenance Payment has the meaning set forth in Section 1.2 of Exhibit 8 (Payment Mechanism).
Milestone Payment means:
(a) the First Milestone Payment;
(b) the Second Milestone Payment;
(c) the Substantial Completion Payment;
(b) the Final Acceptance Payment; and
(c) the D&C Work Completion Payment.
Month or month means a time period comprised of one calendar month and pertaining to the invoice period defined for that period.
Monthly Capital Maintenance Payment means the amount payable to Developer in each Month of the Term following the Substantial Completion Date, calculated in accordance with Section 1.3 of Exhibit 8 (Payment Mechanism).
Monthly Disbursement means the actual Maintenance Payments and DFA Payments paid by the Authority to Developer in any given month, taking into account the calculations, adjustments and deductions provided for in this Agreement.
Monthly Noncompliance Deduction means the amount described in Section 2.3 of Exhibit 8 (Payment Mechanism).
Monthly Operational Maintenance Payment means the amount payable to Developer in each Month of the Term following the Substantial Completion Date, calculated in accordance with Section 1.2 of Exhibit 8 (Payment Mechanism).
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Monthly Payment Deduction means an amount equal to the sum of the Monthly Unavailability Deduction and the Monthly Noncompliance Deduction calculated as provided in Section 2.2 of Exhibit 8 (Payment Mechanism).
Monthly Performance Report means the monthly report required to be delivered by Developer to the Authority for a given month in respect of the Monthly Payment Deduction calculation for the previous month, all as further described in Exhibit 14 (Monthly Performance Report).
Monthly Unavailability Deduction means the amount described in Section 2.4 of Exhibit 8 (Payment Mechanism).
Net Lenders’ Liabilities means the amount calculated as at the Early Termination Date (without double counting) as follows:
(a) Lenders’ Liabilities; minus
(b) Account Balances; minus
(c) Insurance Proceeds (excluding proceeds of personal injury, property damage or other third party liability insurance payable to or for the account of a third party).
Net Revenues means, for the purposes of this Agreement and pursuant to the Goethals Bridge Modernization Program Project Authorization, with respect to any date of calculation, the revenues of the Authority pledged under the Consolidated Bond Resolution and remaining after (a) payment or provision for payment of debt service on Consolidated Bonds as required by the applicable provisions of the Consolidated Bond Resolution; (b) payment into the General Reserve Fund of the amount necessary to maintain the General Reserve Fund at the amount specified in the General Reserve Fund Statutes; and (c) applications to purposes authorized in accordance with Section 7 of the Consolidated Bond Resolution.
Noncompliance Event has the meaning set forth in Section 11.1.1.
Noncompliance Points means the points that may be assessed for certain Noncompliance Events by Developer, as set forth in Exhibit 7 (Non-Compliance Points Tables) to this Agreement.
Noncompliance Rectification Date means, in respect of any Noncompliance Event with a Cure Period, the date that the Noncompliance Event has been cured and reasonable measures have been taken by Developer to prevent the reoccurrence of that Noncompliance Event.
Noncompliance Start Date means, in respect of any Noncompliance Event, the date that the Noncompliance Event occurred.
Nonconforming Work means any D&C Work that does not conform to the requirements of the Project Documents.
Non-Discretionary Submittal means any Submittal that is expressed in the Project Documents to be subject to the approval or consent of the Authority, but which is not a Discretionary Submittal.
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Notice of Determination has the meaning set forth in Section 11.2.1 (Notification Initiated by Developer).
Notice to Proceed or NTP means any written notice issued by the Authority to Developer, in accordance with the Project Agreement, authorizing Developer to proceed with the Work described therein.
Notifiable Financings means any Refinancing that is not a Qualifying Refinancing.
NTP 1 means the written notice issued by the Authority to Developer authorizing Developer to proceed with Design Work.
NTP 2 means the written notice issued by the Authority to Developer authorizing Developer to proceed with Construction Work.
NTP 3 means the written notice issued by the Authority to Developer authorizing Developer to close the Existing Bridge to traffic and to open the Replacement Bridge (or a portion thereof) to traffic.
NTP 4 means the written notice issued by the Authority to Developer authorizing Developer to proceed with the demolition of all or remaining portions of the Existing Bridge.
Operational Performance Requirements means the performance requirements defining the Developer's Operational Services as set forth in the Performance Requirements Baseline Table in Section 24 of the Requirements and Provisions for Work.
Operations Plan means the plan developed by Developer that identifies the methods, systems and procedures for performing the Developer's Operational Services, as described in more detail in Section 24 of the Requirements and Provisions for Work.
Original D&C Work Completion Deadline means October 10, 2018.
Original Final Acceptance Deadline means March 29, 2018.
Original Substantial Completion Deadline means December 29, 2017.
PABs has the meaning set forth in the ITP.
Partial Completion has the meaning set forth in Section 7.7 (Partial Completion).
Party means Developer or the Authority, as the context may require, and Parties means Developer and the Authority, collectively.
Patron means any user of the Project Facility including motorist, pedestrian, cyclist and including toll paying customers and any users that may be exempt from paying tolls.
Payment Date means the first (1st) day of each calendar month; provided, that if such day is not a Business Day, then the Payment Date shall be the next succeeding Business Day.
Payment Office means such payment instructions for principal and interest on the DFA Loan as Developer (or any permitted assignee) may specify from time to time by written notice to the Authority.
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Performance Requirements means the Maintenance Performance Requirements and the Operational Performance Requirements.
Permitted Closure has the meaning set forth in Section 2.8 of Exhibit 8 (Payment Mechanism).
Persistent Breach means a breach for which a Final Warning Notice has been issued, which has continued for more than thirty (30) consecutive days or recurred in three (3) or more months within the six (6)-month period after the date on which such Final Warning Notice is served on Developer.
Persistent Closure shall be deemed to have occurred if:
(a) the Monthly Unavailability Deduction in any month after the Substantial Completion Date equals or exceeds $2,000,000; or
(b) the cumulative number of months after the Substantial Completion Date where the Monthly Unavailability Deduction equals or exceeds $1,000,000 assessed during any rolling 12 month period equals or exceeds 4; or
(c) the cumulative number of months after the Substantial Completion Date where the Monthly Unavailability Deduction equals or exceeds $1,000,000 assessed during any rolling 36 month period equals or exceeds 8.
Person or Persons means any natural person, corporation, joint venture, limited liability company, company, voluntary association, partnership, trust, unincorporated organization or Governmental Entity or other type of entity.
Planned Maintenance means Maintenance Work that has been properly scheduled and for which the proper notice periods have been provided to the Authority in accordance with Section 23 of the Requirements and Provisions for Work.
Pooled Deductible Cap means:
(a) $9,600,000; or
(b) in the event that no amendments are made to the TIFIA Term Sheet pursuant to Section 32.22 prior to Financial Close that have the effect of reducing the DFA Payment in accordance with the terms thereof, $5,600,000.
Port District means the area of about 1,500 square miles in both States centering about New York Harbor. The Port District includes the Cities of New York and Yonkers in New York State, and the Cities of Newark, Jersey City, Bayonne, Hoboken and Elizabeth in the State of New Jersey, and over 200 other municipalities including all or part of 17 counties, in the two States.
Portfolio Cost Saving means any insurance cost saving which arises from Developer changing the placement of the Insurance Policies from being on a stand alone project-specific basis assumed at the date of this Agreement, to being on the basis of a policy (or policies) also covering risks on other projects or other matters which are outside the scope of the Project so as to benefit from portfolio savings. A Portfolio Cost Saving is defined to be a positive sum and cannot be less than zero.
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Pre-Existing Hazardous Materials means Hazardous Materials that exist in, on or under the Project Right of Way prior to the date at which Developer gains vacant possession to a relevant portion of the Project site, including those that manifest themselves after that date.
Pre-Refinancing Equity IRR means the nominal post-tax Equity IRR calculated immediately prior to the Refinancing on a version of the Financial Model updated for the actual revenue and cost performance of the Project up to the Refinancing date.
Preliminary Project Baseline Schedule means the logic-based summary schedule as provided in Appendix 1 (Developer’s Proposal Commitments) to this Agreement and is the basis of the Project Baseline Schedule.
Principal Authority Documents means each Project Document to which the Authority is expressed to be a party, the D&C Direct Agreement and the Direct Agreement.
Principal Developer Documents means each Key Contract and each Financing Document.
Probable Maximum Delay means, for a peril covered by an Insurance Policy, the probable maximum delay to the Project as a result of the occurrence of that peril, as approved by the Authority (acting reasonably) on the basis of a report prepared by a competent and experienced person acceptable to the Authority in its absolute discretion.
Probable Maximum Loss means, for an asset and a peril covered by an Insurance Policy, the probable maximum loss to that asset as a result of the occurrence of that peril, as approved by the Authority (acting reasonably) on the basis of a report prepared by a competent and experienced person acceptable to the Authority in its absolute discretion.
Prohibited Person means any Person who is:
(a) debarred, suspended, proposed for debarment with a final determination still pending, declared ineligible or voluntarily excluded (as such terms are defined in any of the Debarment Regulations) from participating in procurement or nonprocurement transactions with the United States federal government or any department, agency or instrumentality thereof pursuant to any of the Debarment Regulations;
(b) indicted, convicted or had a civil or administrative judgment rendered against such Person for any of the offenses listed in any of the Debarment Regulations and no event has occurred and no condition exists that is likely to result in the debarment or suspension of such Person from contracting with the United States federal government or any department, agency or instrumentality thereof;
(c) listed on the “Lists of Parties Excluded from Federal Procurement and Nonprocurement Programs” issued by the US General Services Administration;
(d) located within, or doing business or operating from, a country or other territory subject to a general embargo administered by the United States Office of Foreign Assets Control (OFAC);
(e) designated on the OFAC list of 'Specially Designated Nationals';
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(f) otherwise targeted under economic or financial sanctions administered by the United Nations, OFAC or any other U.S. federal economic sanctions authority or any divestment or sanctions program of the State of New York or New Jersey;
(g) a banking institution chartered or licensed in a jurisdiction against which the United States Secretary of the Treasury has imposed special measures under Section 311 of the USA PATRIOT Act (Section 311);
(h) located within or is operating from a jurisdiction that has been designated as non-cooperative with international anti-money laundering principles by the Financial Action Task Force on Money Laundering;
(i) a financial institution against which the United States Secretary of the Treasury has imposed special measures under Section 311;
(j) a “senior foreign political figure” or a prohibited “foreign shell bank” within the meaning of 31 C.F.R. Section 103.175; or
(k) any Person with whom the Authority is engaged in litigation relating to performance of contract or business practices (unless the Authority has first waived (in Authority’s sole discretion) by written notice to the transferring equity holder, with a copy to Developer, the prohibition on a transfer to such Person during the continuance of the relevant litigation).
Project has the meaning set forth in clause (b) of the Background to this Agreement. “Project” shall be construed to include any Upgrades thereto.
Project Agreement Amendment has the meaning set forth in Section 2.5.3.
Project Baseline Schedule means the logic-based critical path schedule for all D&C Work as described in the Requirements and Provisions for Work, as may be revised and updated in accordance with the Project Documents.
Project Data means:
(a) Design Documents; and
(b) any other information, documents or data acquired or brought into existence or used in relation to the Works or this Agreement,
in each case that is used by or on behalf of any Developer-Related Entity in connection with the provision of the Work or the performance of Developer's obligations under this Agreement.
Project Debt means all amounts outstanding from time to time pursuant to the Financing Documents.
Project Documents means this Agreement, the Requirements and Provisions for Work, the Developer's Proposal Commitments, the Third-Party Agreements, any amendments to the foregoing undertaken in accordance with the terms hereof or thereof and any other document that the Authority and Developer may deem to be a “Project Document” from time to time after the date hereof.
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Project Executive means the individual designated and engaged by Developer and approved in writing by the Authority in the position to take overall responsibility for the Project and who will act as a single point of contact on all matters on behalf of Developer.
Project Facilities means all Elements of the Project including those that Developer is required to perform Work in respect of, and maintain, as required by Section 23 of the Requirements and Provisions for Work.
Project Insurance Change means any net increase or net decrease in the Actual Benchmarked Insurance Cost relative to the Base Benchmarked Insurance Cost, arising from:
(a) the claims history or re-rating of Developer or any Related Entity (other than any re-rating due to the acts or omissions of the Authority);
(b) the effect of any change in deductibles unless the following applies:
(i) such change is attributable to circumstances generally prevailing in the Relevant Insurance Markets; and
(ii) the deductible further to such change is either greater than or equal to the maximum in Exhibit 10 (Insurance Coverage Requirements); or
(c) any other issue or factor other than circumstances generally prevailing in the Relevant Insurance Markets, except for any Portfolio Cost Saving,
with such amount to be expressed as a positive number in the event of a net increase and a negative number in the event of a net decrease for the purposes of determining the Insurance Cost Differential.
Project Management Plan means the document approved by the Authority, describing the Work necessary to manage the development, design, construction, and maintenance of the Project, and containing the component parts, plans and documentation required under the Project Documents.
Project Manager means the individual designated by Developer, the superintendent identified in Developer’s Proposal Commitments for the Lead Contractor or one of their respective designees, in each case, as approved in writing by the Authority in the position to take full responsibility for the prosecution of the Work.
Project Right of Way or Project ROW means:
(a) on or prior to the D&C Work Completion Date, all of the "Access Areas" referred to in Part A of Exhibit 2 (Project ROW Turnover Schedule & Project ROW Plans), the boundaries of which are outlined in Part B of Exhibit 2 (Project ROW Turnover Schedule & Project ROW Plans); and
(b) thereafter, the Maintenance Limits.
Project Specific Constraints means the project specific constraints applicable to the Project with which Developer’s Final Design shall comply as described in Section 1.3 of the
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Requirements and Provisions for Work and Attachment 1.3 to Section 1 of the Requirements and Provisions for Work.
Project Third Party means any party to a Third-Party Agreement that is not the Authority or Developer.
Project Working Schedule means a copy of the most current approved Project Baseline Schedule that is to be or is in the process of being revised and updated by Developer to reflect current project status in accordance with the Requirements and Provisions for Work.
Proposal means, collectively, the Administrative Proposal, Technical Proposal and Financial Proposal submitted by Developer to the Authority in response to the RFP.
Protection in Place means any action taken to avoid damaging a Utility which does not involve removing or relocating that Utility, including staking the location of the Utility, exposing the Utility, avoidance of a Utility’s location by construction equipment, installing steel plating or concrete slabs, encasement in concrete, temporarily de-energizing powerlines, and installing physical barriers. The term includes both temporary measures and permanent installations meeting the foregoing definition.
Punch List means an itemized list of Construction Work which remains to be completed, corrected, adjusted, or modified, the existence, correction and completion of which will have no material or adverse effect on the normal, uninterrupted and safe use and operation of the Project.
Qualified Investor means:
(a) Macquarie Infrastructure and Real Assets Inc.; and
(b) Kiewit Development Company.
Qualifying Change in Law means:
(a) a Discriminatory Change in Law; or
(b) a General Change in Law which involves Capital Expenditure,
which, in each case, was not foreseeable at the Final Proposal Date.
Qualifying Refinancing means any Refinancing that will give rise to a Refinancing Gain greater than zero that is not an Exempt Refinancing.
Quality Management Plan means the plan described in Section 2 of the Requirements and Provisions for Work.
Quality Manager means the individual retained by Developer with the authority and responsibility for quality management system-related activities for all Work, including the establishment and maintenance of, and compliance with the Quality Management Plan as further described in Section 2 of the Requirements and Provisions for Work.
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Quarter means a time period comprised of three calendar months. Each Calendar Year contains four Quarters: January – March; April – June; July – September; and October – December.
R&C Submittal means any Submittal that is expressed in the Project Documents to be subject to the review and/or comment of the Authority, but which is not a Discretionary Submittal or a Non-Discretionary Submittal.
Reasonable Efforts means all those steps in the power of the relevant Party that are capable of producing the desired result, being steps which a prudent, determined and reasonable person desiring to achieve that result would take; provided, that subject to its other express obligations under this Agreement, the relevant Party shall not be required to expend funds except for those necessary to meet the reasonable costs reasonably incidental or ancillary to the steps to be taken by the relevant Party (including its reasonable travel expenses, correspondence costs and general overhead expenses).
Record of Decision means the Record of Decision (ROD) for the Goethals Bridge Replacement executed on January 31, 2011 (refer to http://www.goethalseis.com/overview/ rod.aspx).
Recovery Schedule means the schedule provided to the Authority pursuant to Section 0.3.2.4.7 of the General Conditions.
Reference Documents means the collection of information, data, documents and other materials that the Authority has provided to Developer (including those contained in the RFP documents) for general or reference information only and without any warranty as to their accuracy, completeness or fitness for any particular purpose. The Reference Documents are not Project Documents.
Refinancing means:
(a) any amendment, variation, novation, supplement or replacement of any Financing Document (other than any Equity Members Funding Agreement);
(b) the exercise of any right, or the grant of any waiver or consent, under any Financing Document (other than any Equity Members Funding Agreement);
(c) the disposition of any rights or interests in, or the creation of any rights of participation in respect of, any Financing Document (other than any Equity Members Funding Agreement) or the creation or granting of any other form of benefit or interest in either a Financing Document (other than any Equity Members Funding Agreement) or the contracts, revenues or assets of Developer or Borrower whether by way of security or otherwise; or
(d) any other arrangement put in place by Borrower, Developer or another person which has an effect which is similar to any of (a) to (c) above or which has the effect of limiting Borrower’s, Developer’s or any Associated Company’s ability to carry out any of (a) to (c) above.
Refinancing Gain means an amount equal to the greater of zero and {(A-B)-C}, where:
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A = the net present value using the Base Case Equity IRR as the discounting rate of the Distributions projected immediately prior to the Refinancing (taking into account the effect of the Refinancing and using the Financial Model as updated (including as to the performance of the Project) so as to be current immediately prior to the Refinancing) to be made over the remaining term of this Agreement following the Refinancing;
B = the net present value using the Base Case Equity IRR as the discounting rate of the Distributions projected immediately prior to the Refinancing (but without taking into account the effect of the Refinancing and using the Financial Model as updated (including as to the performance of the Project) so as to be current immediately prior to the Refinancing) to be made over the remaining term of this Agreement following the Refinancing; and
C = any adjustment required to raise the Pre-Refinancing Equity IRR to the Base Case Equity IRR.
Related Entity means each of Borrower, NYNJ Link Inc. and NYNJ Link LLC.
Released For Construction Documents means all drawings, specifications, revisions thereto, and any other items necessary to construct the Work, Signed and Sealed by the Engineer of Record.
Relevant Disputes Review Board has the meaning set forth in Article 30 (Dispute Resolution Procedures).
Relevant Event means any of the following:
(a) a Compensation Event; or
(b) other matter as a result of which there may be an adjustment to the Maintenance Payments or any other payments to be made by the Authority in accordance with Article 16 (Financial Model Adjustments).
Relevant Insurance Markets means the insurance markets which insure the majority of transportation related public-private partnerships in North America. At the date of this Agreement the Relevant Insurance Markets are each of New York, Bermuda and London.
Relief Event means any of the following:
(a) any Force Majeure Event;
(b) any Change in Law that is not a Qualifying Change in Law;
(c) fire, explosion, unusually adverse weather, flood, earthquakes, riot and civil commotion;
(d) named windstorm and any ensuing storm surge, including the direct action of wind originating from a named windstorm;
(e) any accidental loss or damage to the Site or any roads servicing them (including obstructed waterways);
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(f) any delay in obtaining any Governmental Approval (other than any Authority Obtained Governmental Approval); provided, that such delay is beyond the reasonable control of any Developer-Related Entity,
except, in each case, to the extent attributable to any breach of this Agreement or any negligent act or negligent omission of a Developer-Related Entity.
Remedial Action means any remediation or removal of a Hazardous Environmental Condition.
Renewal Elements are defined in Attachment 25.1 of the Requirements and Provisions for Work.
Renewal Work means all Work described in Section 23 of the Requirements and Provisions for Work that is not Routine Maintenance, including the renewal, repair or replacement of worn-out, obsolete, damaged or under-performing components so that the Project Facilities do not prematurely deteriorate and remain fully functional.
Renewal Work Schedule means the schedule for Renewal Work to be prepared and updated by Developer pursuant to Section 23 of the Requirements and Provisions for Work.
Replacement Bridge has the meaning set forth in clause (b) of the Background to this Agreement.
Required Action has the meaning set forth in Section 25.3.1.
Requirements and Provisions for Work means the requirements and provisions for work set out in Exhibit 21 (Requirements and Provisions for Work).
Residual Elements are as defined in Attachment 25.1 of the Requirements and Provisions for Work.
Residual Life means the calculated duration that any Element of the Project, subject to Routine Maintenance, will continue to comply with any applicable Maintenance Performance Requirement or standard before Renewal Work is required.
Residual Life at Handback means the calculated duration after the Handback Period that any Element of the Project, subject to Routine Maintenance, will continue to comply with any applicable Maintenance Performance Requirement or standard, before Renewal Work is required.
Residual Life Methodology means the evaluation methodology by which the Residual Life of any asset of the Project will be calculated. It contains the method by which any necessary Renewal Work will be identified to ensure that Residual Life Requirements will be met at the end of the Term of the Agreement.
Residual Life Requirements means the requirements set forth in the Requirements and Provisions for Work with respect to the condition of an asset at the end of the Term of the Agreement.
Restricted Change in Ownership has the meaning set forth in Section 15.1.1.
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Revenue Impact means, in respect of any Relevant Event, any amounts that would have been paid to Developer pursuant to Article 14 (Payments to Developer) or Exhibit 8 (Payment Mechanism) had it not been for the occurrence of such Relevant Event.
Reviewable Submittal means any Submittal that is a Discretionary Submittal, Non-Discretionary Submittal or R&C Submittal.
RFP has the meaning set forth in clause (e) of the Background to this Agreement.
RFQ has the meaning set forth in clause (c) of the Background to this Agreement.
Routine Maintenance means Work to preserve the current condition of assets that is routine in nature and includes matters that are typically included as an annually recurring cost in highway and bridge maintenance budgets, as more particularly described in Section 23 of the Requirements and Provisions for Work.
Safety Compliance means any and all improvements, repair, reconstruction, rehabilitation, restoration, renewal, replacement and changes in configuration or procedures respecting the Project to correct a specific safety condition of the Project that the Authority or a Governmental Entity has reasonably determined to exist by investigation or analysis (including if the condition exists despite prior compliance with Safety Standards).
Safety Compliance Order means a written order or directive from the Authority to Developer to implement Safety Compliance.
Safety Standards means those provisions of the Requirements and Provisions for Work that the Authority considers to be important measures to protect public safety or worker safety. As a matter of clarification, provisions of the Requirements and Provisions for Work primarily directed at durability of materials or equipment, where the durability is primarily a matter of life cycle cost rather than protecting public or worker safety, are not Safety Standards.
Second Construction Milestone means the date on which Developer has paid to the D&C Contractor 80% of the cost assumed in the Financial Model to be paid by Developer under the D&C Contract between the Financial Closing Date and the Original Substantial Completion Deadline.
Second Milestone Payment means $25,000,000.
Security Documents means the documents listed in Part B of Annex 3 (Financing Documents) to the Direct Agreement executed on or about Financial Close, together with any other document designated by the Parties acting jointly as a Security Document.
Service Commencement means satisfaction of the requirements set forth in Section 7.8.8.1.
Service Commencement Date means the date of Service Commencement.
Service Line means (a) a Utility line, the function of which is to directly connect the improvements on an individual property to another Utility line located off such property, which other Utility line connects more than one such individual line to a larger system, or (b) any cable or conduit that supplies an active feed from a Utility Owner’s facilities to activate or energize the
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Authority’s or a local agency’s lighting and electrical systems, traffic control systems, communications systems and/or irrigation systems.
Shared Compensation Event means:
(a) Compensation Event (a), but solely with respect to a breach of Section 5.3 by the Authority; and
(b) any of Compensation Events (b), (g), (i), (j), (k), (o), (p), (r), (s) (v), (w), (x) and (y).
Signed and Sealed means the signature and seal of a licensed professional engineer on a document indicating that the licensee takes professional responsibility for the work and, to the best of the licensee’s knowledge and ability, the work represented in the document is accurate, in conformance with applicable codes at the time of submission and has been prepared in conformity with normal and customary standards of practice and with a view to the safeguarding of life, health, property and public welfare. The licensed professional engineer certifies that the documents have been signed and sealed in accordance with laws, rules and regulations of the States of New Jersey and/or New York.
Site means the Project Right of Way and any temporary rights or interests that Developer may acquire in connection with the Project, including for construction, staging, storage, lay down and borrow areas.
Standards Effective Date means the date ninety (90) days before the Administrative and Technical Proposal(s) Due Date.
States means the State of New York and the State of New Jersey.
State Historic Preservation Office or SHPOs means the collective New Jersey Department of Environmental Protection-Historic Preservation Office and the New York State Office of Parks, Recreation, and Historic Preservation.
Subcontractor Breakage Costs means Losses that have been or will be reasonably and properly incurred by Developer under a Key Contract as a direct result of the termination of this Agreement (and which shall not include lost profit or lost opportunity), but only to the extent that:
(a) the Losses are incurred in connection with the Project and in respect of the Works required to be provided or carried out, including:
(i) any materials or goods ordered or subcontracts placed that cannot be cancelled without such Losses being incurred;
(ii) any expenditure incurred in anticipation of the provision of services or the completion of Works in the future; and
(iii) the cost of demobilization including the cost of any relocation of equipment used in connection with the Project;
(b) the Losses are incurred under arrangements and/or agreements that are consistent with terms that have been entered into in the ordinary course of business and on an arm's length basis; and
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(c) Developer and the relevant Key Contractor have each used their Reasonable Efforts to mitigate such Losses.
Submittal means any document, work product or other written or electronic product or item required under the Requirements and Provisions for Work to be delivered or submitted to the Authority for approval, review, comment or otherwise.
Substantial Completion means the occurrence of all events and satisfaction of all conditions set forth in Section 7.10 (Substantial Completion).
Substantial Completion Date means the date upon which Developer achieves Substantial Completion.
Substantial Completion Payment has the meaning set forth in Section 1.1 of Exhibit 8 (Payment Mechanism).
Supplier means any Person not performing work at or on the Site which supplies machinery, equipment, materials, hardware, software, systems or any other appurtenance to the Project to Developer or to any Contractor in connection with the performance of the Work. Persons who merely transport, pick up, deliver or carry materials, personnel, parts or equipment or any other items or persons to or from the Site shall not be deemed to be performing Work at the Site.
Taxes means federal, state, local or foreign income, gross receipts, sales, use, excise, transfer, consumer, license, payroll, employment, severance, stamp, business, occupation, premium, windfall profits, environmental (including taxes under Section 59A of the Internal Revenue Code of 1986, as amended), customs, permit, capital stock, franchise, profits, withholding, social security (or similar), unemployment, disability, real property, personal property, registration, value added, alternative or add-on minimum, estimated or other taxes, levies, imposts, duties, fees or charges imposed, levied, collected, withheld or assessed at any time, whether direct or indirect, relating to, or incurred in connection with, the Project, the performance of the Work or act, business, status or transaction of Developer or Borrower, including any interest, penalty or addition thereto, and including Utility rates or rents, in all cases whether disputed or undisputed.
Technical Dispute has the meaning set forth in Section 30.3.1.
Technical Disputes Review Board means the Disputes Review Board for Technical Disputes.
Technical Proposal has the meaning set forth in the ITP.
Technical Requirements means the Requirements and Provisions for Work.
Technology Enhancements means modifications, additions, refinements, substitutions, revisions, replacements and upgrades made to or in place of enforcement systems deployed on or for the Project or to any other computer systems or other technology used for the operation or maintenance of the Project, or to any related documentation, that accomplish incidental, performance, structural, or functional improvements. The term specifically includes modifications, updates, revisions, replacements and upgrades made to or in place of software or any related documentation that correct errors or safety hazards or support new models of computer hardware with which the software is designed to operate. Technology Enhancements also include such new models of computer hardware.
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Term means the period commencing on the date of this Agreement and ending on the thirty fifth (35th) anniversary of the Substantial Completion Date.
Termination Date means (a) the date of expiration of the Term or (b) if applicable, the Early Termination Date.
Termination Notice means a Developer Termination Notice or an Authority Termination Notice.
Termination Sum means the Authority Termination Sum, the Developer Default Termination Sum or the Extended Force Majeure Termination Sum.
Terrorism means activities against Persons or property of any nature:
(a) that involve the following or preparation for the following:
(i) use or threat of force or violence; or
(ii) commission or threat of an act that interferes with or disrupts an electronic, communication, information, or mechanical system;
(b) when one or both of the following applies:
(i) it appears that the intent is to intimidate or coerce the Authority or a Governmental Entity or the civilian population or any segment thereof, or to disrupt any segment of the economy; or
(ii) it appears that the intent is to intimidate or coerce the Authority or a Governmental Entity, or to further political, ideological, religious, social or economic objectives or to express (or express opposition to) a philosophy or ideology; and
(c) that are criminally defined as terrorism for purposes of State, Federal or international law.
Third-Party Agreements means each of the agreements listed in Part A of Exhibit 19 (Third-Party Agreements).
Third-Party Claims means any and all claims, disputes, disagreements, causes of action, demands, suits, actions, judgments, investigations or proceedings brought by a Person that is not a Party with respect to damages, injuries, liabilities, obligations, losses, costs, penalties, fines or expenses (including attorneys’ fees and expenses) sustained or incurred by such Person.
TIFIA means the Transportation Infrastructure Finance and Innovation Act of 1998, codified at 23 U.S.C. §§ 601 et seq., as amended and as it may be amended from time to time.
TIFIA Improvement means any amendment to the TIFIA Term Sheet that would, if accepted by the United States Department of Transportation, have a reasonable likelihood of reducing the DFA Payment and improving the terms thereof for Developer, but only to the extent that such amendment would not reasonably be likely to result in:
(a) the Construction Equity Ratio being lower than 10%;
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(b) Developer’s debt service coverage ratio in any period being below 1.25:1;
(c) Financial Close occurring later than October 31, 2013; or
(d) any adverse impact on Developer or the Borrower.
TIFIA Loan means a loan from the United States Department of Transportation to Borrower pursuant to TIFIA.
TIFIA Term Sheet means the term sheet set forth in Exhibit I to the ITP.
Time Impact Analysis means a time impact analysis prepared in accordance with Section 0.3.2 of the General Conditions.
Total Handback Amount means, as of any date of calculation, the sum of
(a) the Handback Renewal Elements Amount; plus
(b) the Handback Residual Elements Amount.
Travis Spur Rail Bridge means the Travis Spur rail bridge crossing over Interstate 278 (BIN 7705760).
Tribunal means a court, tribunal, agency, special district, commission or other authority exercising judicial or regulatory functions.
Ultimate Configuration means a future configuration for the Project that includes the addition of a mass transit system.
Unavailable Term has the meaning set forth in Section 19.5.
Unavailability Value means the value deducted for each Hourly Unavailability Event in accordance with Section 2.9 of Exhibit 8 (Payment Mechanism).
Undisclosed Archaeological Remains means any Archaeological Remains that, as at the Administrative and Technical Proposal(s) Due Date, were neither;
(a) known to Developer; or
(b) could reasonably have been identified by an appropriately qualified and experienced contractor or engineer exercising due care and skill and Best Management Practice in the same or equivalent circumstances, including through review and analysis of the Reference Documents or publicly available information (including, without limitation, the Final Environmental Impact Statement).
Undisclosed Endangered Species means any Endangered Species discovered in the Project Right of Way, the temporary, continual or habitual presence of which, as at the Administrative and Technical Proposal(s) Due Date, was neither:
(a) known to Developer;
(b) identified or described in the Final Environmental Impact Statement; or
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(c) reasonably to be expected to be found temporarily, continually or habitually in the Project Right of Way based on review and analysis of the Reference Documents or publicly available information (including, without limitation, the Final Environmental Impact Statement).
Undisclosed Geological Condition means any actual geological or latent physical condition that represents a materially different condition to that described in the Geotechnical Reports, excluding any such condition that could reasonably have been identified or discovered by an appropriately qualified and experienced contractor or engineer exercising due care and skill and Best Management Practice in the same or equivalent circumstances, including through review and analysis of the Geotechnical Reports and the investigations and assumptions on the basis of which the Geotechnical Reports were prepared that have been made available to the Developer prior to the Administrative and Technical Proposal(s) Due Date.
Undisclosed Hazardous Environmental Condition means:
(a) with respect to the areas of the Project Right of Way referred to in Tables 7a and 7b of Attachment 7.1-1 of the Requirements and Provisions for Work, any Remedial Action to the extent that it exceeds (in terms of both type and quantity of any Hazardous Material) the level of Remedial Action described in Attachment 7.1-1 (Proposed Areas of Excavation, Baseline Remediation Plan) of the Requirements and Provisions for Work; and
(b) in respect of all other areas of the Project Right of Way, any Hazardous Environmental Condition that existed on a part of the Project Right of Way prior to the date on which the Authority provided Access to the relevant part of the Project Right of Way and that represents an additional or materially different condition to those described in the Hazardous Materials Baseline Report (including conditions that were incorrectly identified (even if otherwise depicted or described) or that manifest themselves in a new location not identified or anticipated in the report), excluding any Hazardous Environmental Condition that could reasonably have been identified or discovered by an appropriately qualified and experienced contractor or engineer exercising due care and skill and Best Management Practice based on the information set forth in the Hazardous Materials Baseline Report,
but in each case excluding any Hazardous Environmental Condition caused by the discovery of lead-based material or asbestos in the Existing Bridge or any other structure within the Project Right of Way (other than Lot 1471 – Cory Warehouse).
Undisclosed Utility means any Utility present on the Project Right of Way that was not identified or was incorrectly shown, identified or described in the Utility Data, in each case excluding any Utility that:
(a) was installed on a part of the Project Right of Way after Developer was provided with Access to the relevant part of the Project Right of Way in accordance with the terms of this Agreement;
(b) is a Service Line; or
(c) could reasonably have been identified or discovered by an appropriately qualified and experienced contractor or engineer exercising due care and skill and Best Management
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Practice in the same or equivalent circumstances, including through review and analysis of the Utility Data and the investigations and assumptions on the basis of which the Utility Data was prepared.
Uninsurable Risk means a risk for which:
(a) insurance is not available to Developer in respect of the Project in the worldwide insurance or reinsurance markets on the terms required herein with reputable insurers of good standing; or
(b) the insurance premium payable for insuring that risk on the terms required herein is at such a level that the risk is not generally being insured against in the worldwide insurance or reinsurance markets with reputable insurers of good standing by contractors in relation to transportation-related infrastructure projects in North America.
Upgrades means alterations, improvements, modifications, Technology Enhancements or changes that Developer makes to the Project, as originally designed and constructed, at any time after the Substantial Completion Date, including as part of the Renewal Work.
Useful Life means, for an Element, the period following its first installation, or following its last reconstruction, rehabilitation, restoration, renewal or replacement, until the Element will next require reconstruction, rehabilitation, restoration, renewal or replacement.
Utility means a privately, publicly, or cooperatively owned line, facility, or system for transmitting or distributing communications, power, electricity, light, heat, gas, oil, crude products, water, steam, waste, storm water not connected with the highway drainage, or other similar commodities, including wireless telecommunications, television transmission signals and publicly owned fire and police signal systems, which directly or indirectly serve the public. However, the term “Utility” excludes (a) streetlights and traffic signals and (b) ITS (intelligent transportation systems) and IVHS (intelligent vehicle highway systems) facilities. The necessary appurtenances to each Utility facility shall be considered part of such Utility. Without limitation, any Service Line connecting directly to a Utility shall be considered an appurtenance to that Utility, regardless of the ownership of such Service Line.
Utility Adjustment means each relocation (temporary or permanent), abandonment, Protection in Place, removal (of previously abandoned Utilities as well as of newly abandoned Utilities), replacement, reinstallation, and/or modification of existing Utilities necessary to accommodate construction, operation, maintenance and/or use of the Project or the Work; provided, however, that the term “Utility Adjustment” shall not refer to any of the work associated with facilities owned by any railroad. The Utility Adjustment Work for each crossing of the Project Right of Way by a Utility that crosses the Project Right of Way more than once shall be considered a separate Utility Adjustment. For any Utility installed longitudinally within the Project Right of Way, the Utility Adjustment Work for each continuous segment of that Utility located within the Project Right of Way shall be considered a separate Utility Adjustment.
Utility Adjustment Agreement means an agreement between Developer and a Utility Owner that provides information and terms affecting a Utility Adjustment; such an agreement may be general or comprehensive or may address only certain aspects of a Utility Adjustment.
Utility Adjustment Work means all efforts and costs necessary to accomplish the required Utility Adjustments during the Construction Period, including all coordination, design, design
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review, permitting, construction, inspection and maintenance of records, whether provided by Developer or by the Utility Owners. The term also includes any reimbursement of Utility Owners that is Developer’s responsibility pursuant to Section 5.2.3 (Utility Adjustment Costs).
Utility Data means the data relating to Utilities set out in Part B of Exhibit 18 (Utility Data).
Utility Owner means the owner or operator of any Utility (including both privately held and publicly held entities, cooperative Utilities, and municipalities and other governmental agencies (including, without limitation, the Authority)).
Visual Quality Goals means the Authority’s visual quality goals that must be met to be deemed acceptable by the Authority as defined in Section 21 of the Requirements and Provisions for Work.
Visual Quality Requirements means the requirements of Section 21 of the Requirements and Provisions for Work.
Works or Work means the D&C Work and the Maintenance Work, and all other work and services required to be furnished, performed and provided by Developer under the Project Documents.
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ACRONYMS
As used in the Agreement to which this Exhibit 1 (Definitions) is attached and in the other Project Documents (unless otherwise specified therein), the following acronyms shall have the meanings set forth below (unless the context requires otherwise).
A – Ampere
AADT – annual average daily traffic
AAP – AASHTO Accreditation Program
AAR – American Association of Railroads
AASHTO – American Association of State Highway and Transportation Officials
ACI – American Concrete Institute
ACHP – Advisory Council of Historic Preservation
ACI – American Concrete Institute
ACM – Asbestos-containing Materials
ACORD - Association for Cooperative Operations Research and Development
ADA – Americans With Disabilities Act
ADT – average daily traffic
ADTT – average daily truck traffic
AES – Audio Engineering Society
AMRL – AASHTO Material Reference Library
ANSI – American National Standards Institute
AREMA – American Railway Engineering and Maintenance-of-Way Association
ASCE – American Society of Civil Engineers
ASNT – American Society of Non Destructive Testing
ASSE – American Society of Safety Engineers
ASTM – American Society for Testing and Materials
AWS – American Welding Society
BCI – Bridge Coating Inspector
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BIN – Bridge Identification Number
CAD – computer-assisted drafting
CAP – Corrective Action Plan
CCTV – closed-circuit television (system)
CEI – Construction Engineering and Inspection
CFR – Code of Federal Regulations
CONRAIL – Consolidated Rail Corporation
COTS – commercial off-the-shelf
CWI – Certified Welding Inspector
D&C – Design and Construction
DBE – Disadvantaged Business Enterprise
DMS – dynamic message signs
DWG – CAD design file format supported by Autodesk, Inc.
ECMS – electronic collaborative management system
EDMS – electronic document management system
EEO – Equal Employment Opportunity
EIA – Electronic Industries Alliance
EIS – Environmental Impact Statement
EOR – Engineer of Record
EPA – Environmental Protection Agency (see USEPA)
FAA – Federal Aviation Administration
FEIS – Final Environmental Impact Statement
FEMA – Federal Emergency Management Agency
FHWA – Federal Highway Administration
FTA – Federal Transit Administration
GBRP – Goethals Bridge Replacement Project
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GUI – graphical user interface
HVAC – heating, ventilation, and air conditioning
IBC – International Building Code
IEEE – Institute of Electrical and Electronics Engineers
IES, IESNA – Illuminating Engineering Society (of North America)
ITS – Intelligent Transportation System
JEDEC – Joint Electron Devices Engineering Council
LDD – lamp dirt depreciation
LED – light-emitting diode
LLD – lamp lumens depreciation
LRFD – load and resistance factor design
MBE – Minority Business Enterprises
MPT – Maintenance and Protection of Traffic
MSDS – Material Safety Data Sheets
MSL – Mean sea level
MTA – Metropolitan Transportation Authority (interstate)
MTC – mass transit corridor
MTP – Media Transfer Protocol
MUL – managed use lanes
MURK – Manual for Uniform Record Keeping
NAD – North American Datum
NAVD – North American Vertical Datum
NCHRP – National Cooperative Highway Research Program
NCR – Non-conformance Report
NEMA – National Electrical Manufacturers Association
NEPA – National Environmental Policy Act, 42 U.S.C. s 4321 et seq. as amended from time to time
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NFPA – National Fire Protection Agency
NICET – National Institute for Certification in Engineering Technologies (NICET)
NJ – State of New Jersey
NJDEP – New Jersey Department of Environmental Protection
NJDOT – New Jersey Department of Transportation
NJFD – New Jersey Fire Department
NJHPO – New Jersey Historic Preservation Office
NJSAT – New Jersey Society of Asphalt Technologists, Inc.
NJTA – New Jersey Turnpike Authority
NJTPA – New Jersey Transportation Planning Authority
NPS – National Park Service (United States)
NRCS – Natural Resources Conservation Service (United States Department of Agriculture)
NTCIP – National Transportation Communications for ITS Protocol
NY – State of New York
NYCDCP – New York City Department of City Planning
NYCDEP – New York City Department of Environmental Protection
NYCDOT – New York City Department of Transportation
NYCDPR – New York City Department of Parks and Recreation
NYCEDC – New York City Economic Development Corporation
NYCT – New York Container Terminal
NYMTC – New York Metropolitan Transportation Council
NYSDEC – New York State Department of Environmental Conservation
NYSDOS – New York State Department of State
NYSDOT – New York State Department of Transportation
NYSHPO – New York State Historic Preservation Office (New York State Office of Parks, Recreation and Historic Preservation)
NYSOGS – New York State Office of General Services
The Port Authority of New York and New Jersey Exh. 1-56 Project Agreement – Exhibit 1 Goethals Bridge Replacement Project August 30, 2013
OIG – Office of Inspector General for the Port Authority of New York and New Jersey
OSHA – Occupational Safety and Health Administration (United States)
PAWANET – Port Authority Wide Area Network
PCI – Precast/Prestressed Concrete Institute
PDF – Portable Document File format
PLS – Professional Land Surveyor
PSE&G – Public Service Electric and Gas Company
PVC – polyvinyl chloride
RETMA – Radio Electronics Television Manufacturers Association
RFC – Released for Construction
ROD – Record of Decision
RPW – Requirements and Provisions for Work
RWIS – Roadway Weather Information System
SIB – Staten Island Bridges
SN – skid number
SNJDA – State of New Jersey Department of Agriculture
SSPC – Society for Protective Coatings
SWAC – Secure Worker Access Consortium
TIA – Telecommunications Industry Association
TRB – Transportation Research Board
USACE – United States Army Corps of Engineers
USCG – United States Coast Guard
USDA – United States Department of Agriculture
USEPA – United States Environmental Protection Agency
USFWS – United States Fish and Wildlife Service
VMS – variable message signs
The Port Authority of New York and New Jersey Exh. 1-57 Project Agreement – Exhibit 1 Goethals Bridge Replacement Project August 30, 2013
VRTIP – Verification Review Testing and Inspection Program
VSLS – variable speed limit signs
WBE – Women Business Enterprise
WBS – Work Breakdown Structure
WIM – Weight-in-Motion (system)
XER – Oracle Primavera Project Management electronic compressed file format
The Port Authority of New York and New Jersey Exh. 2-1 Project Agreement – Exhibit 2 Goethals Bridge Replacement Project August 30, 2013
EXHIBIT 2
PROJECT ROW TURNOVER SCHEDULE & PROJECT ROW PLANS
Part A - Project ROW Turnover Schedule
[Attached to this Agreement on a separate CD-ROM]
Part B - Project ROW Plans
[Attached to this Agreement on a separate CD-ROM]
Part C – Title Commitments
[Attached to this Agreement on a separate CD-ROM]
Part D – ALTA Surveys
[Attached to this Agreement on a separate CD-ROM]
The Port Authority of New York and New Jersey Exh. 3-1 Project Agreement – Exhibit 3 Goethals Bridge Replacement Project August 30, 2013
EXHIBIT 3
AUTHORITY OBTAINED GOVERNMENTAL APPROVALS
Agency Governmental Approval Date for Delivery by Authority
Federal Governmental Approvals
USCG Section 9 Bridge Permit October 1, 2013
USACE Section 404 Dredge and Fill Permit October 1, 2013
USACE Section 10 Rivers and Harbors Act Permit October 1, 2013
New York State Governmental Approvals
NYSDOS New York State Coastal Zone Policy Consistency Commercial Closing Date
NYSDEC Section 401 Water Quality Certification Commercial Closing Date
NYSDEC Protection of Waters Permit Commercial Closing Date
NYSDEC Tidal Wetlands Permit Commercial Closing Date
Governor & City of New York
Approval by Governor and municipality of connections with state or municipal highways: Laws of NY 6511 Chapter 186
October 1, 2013
New Jersey Governmental Approvals
NJDEP Waterfront Development Permit/New Jersey State Coastal Zone Policy Consistency
Commercial Closing Date
NJDEP Section 401 Water Quality Certification Commercial Closing Date
NJDEP Freshwater Wetlands Permit Commercial Closing Date
Governor & City of Elizabeth
Approval by Governor and municipality of connections with state or municipal highways: NJSA 32:1-127
October 1, 2013
New York City Governmental Approvals
NYCDCP NYC Local Waterfront Revitalization Plan Concurrence
Commercial Closing Date
The Port Authority of New York and New Jersey Exh. 4-1 Project Agreement – Exhibit 4 Goethals Bridge Replacement Project August 30, 2013
EXHIBIT 4
HAZARDOUS MATERIALS BASELINE REPORT
[Attached to this Agreement on a separate CD-ROM]
The Port Authority of New York and New Jersey Exh. 5-1 Project Agreement – Exhibit 5 Goethals Bridge Replacement Project August 30, 2013
EXHIBIT 5
CALCULATION OF HANDBACK AMOUNTS
1. This Exhibit sets forth the methodology for calculating the Handback Reserve Amount.
2. The "Handback Renewal Elements Amount" means the aggregate amount, which shall be calculated prior to the beginning of each Handback Year and at the end of the Term, of the estimated cost (in real dollars) to renew or replace each Renewal Element at the end of its Useful Life multiplied by a fraction (the "Deterioration Fraction" the numerator of which is its Age and denominator of which is its Useful Life), less the Handback Deductible; such estimated costs to be determined by the Handback Renewal Work Plan (as may be revised pursuant to the Handback Requirements). In the calculation above: (i) the Handback Renewal Elements Amount shall not be less than zero; (ii) the value of the Deterioration Fraction shall not be greater than 1.0; and (iii) where a Renewal Element has not been renewed or replaced during the Term the value of the Deterioration Fraction for the Element shall be 1.0.
3. The "Handback Residual Elements Amount" means the aggregate amount, which shall be calculated prior to the beginning of each Handback Year and at the end of the Term, of the estimated cost to improve, repair, renew or replace each Residual Element to ensure that its measured Residual Life will meet or exceed the Residual Life at Handback specified for such Residual Element in Attachment 25.1 of the Requirements and Provisions for Work such estimated cost to be determined by the Renewal Work Schedule (as may be revised pursuant to the Handback Requirements).
4. Where the Age, Useful Life or Residual Life of any Element varies across the Project, the calculations of the Handback Renewal Elements Amount and the Handback Renewal Residual Elements Amount shall take into account such variability through multiple calculation line items for each Element, each line item calculating the Handback Reserve Amount for component parts of the Element having similar Age, Useful Life or Residual Life as appropriate. The calculations of the Handback Renewal Elements Amount and the Handback Residual Elements Amount shall be made using the values of Age, Useful Life, Residual Life and estimated repair costs applicable as at the date of each calculation.
5. As required by Section 8.6.2.1, no later than sixty (60) days prior to the commencement of each Handback Year, Developer shall deliver to the Authority a report setting out its calculations of:
5.1 the Total Handback Amount in respect of the remaining Handback Period, which shall include Developer’s calculations of the (i) Handback Renewal Elements Amount and (ii) Handback Residual Elements Amount; and
5.2 the amount required to be reserved in the Handback Reserve Account (the “Handback Reserve Amount”) for such Handback Year, which shall be calculated as follows:
5.2.1 If, as of the date of calculation, the aggregate amount of the Maximum Aggregate Payments projected to be paid to Developer, during the period
The Port Authority of New York and New Jersey Exh. 5-2 Project Agreement – Exhibit 5 Goethals Bridge Replacement Project August 30, 2013
commencing on such date and ending upon the expiry of the Term, is less than two times the Total Handback Amount calculated on such date, then the Handback Reserve Amount shall be equal to the Total Handback Amount.
5.2.2 If, as of any date of calculation, the aggregate amount of the Maximum Aggregate Payments projected to be paid to Developer, during the period commencing on such date and ending upon the expiry of the Term, is more than or equal to two times the Total Handback Amount calculated on such date, then the Handback Reserve Amount shall be equal to the percentage of the Total Handback Amount set forth below for the applicable Handback Year.
Handback Years Handback Reserve Amount
First Handback Year (i.e. the 12-month period beginning on the first Business Day of the Handback Period)
33% of the Total Handback Amount
Second Handback Year 50% of the Total Handback Amount
Third Handback Year 66% of the Total Handback Amount
Fourth Handback Year 100% of the Total Handback Amount
Fifth Handback Year 100% of the Total Handback Amount
The Port Authority of New York and New Jersey Exh. 6-1 Project Agreement – Exhibit 6 Goethals Bridge Replacement Project August 30, 2013
EXHIBIT 6
COMPENSATION ON TERMINATION
1. COMPENSATION ON TERMINATION FOR CONVENIENCE OR FOR AUTHORITY DEFAULT
1.1 On termination of the Agreement pursuant to Section 24.1 (Termination for Convenience) or Section 24.2 (Termination for Authority Default), the Authority shall pay to Developer the Authority Termination Sum in accordance with and subject to Section 4 (Miscellaneous Compensation Provisions) of this Exhibit 6 (Compensation on Termination). The Authority Termination Sum shall equal the amount calculated at the Early Termination Date (without double-counting) as follows:
1.1.1 all amounts shown in the Financial Model (or, if applicable, any financial model most recently delivered to the Authority pursuant to Section 17.3 (Developer Details)) as payable by Developer (and, without duplication, Borrower) from the Early Termination Date, either in dividends or other distributions on the share capital of Developer or Borrower, as applicable, or as payments of interest or repayments of principal made by Developer or Borrower, as applicable, under the Equity Members Funding Agreements, each amount discounted back at the Base Case Equity IRR (as adjusted to reflect, if applicable, any financial model most recently delivered to the Authority pursuant Section 17.3 (Developer Details)) from the date on which it is shown to be payable in the Financial Model to the Termination Date; plus
1.1.2 Lenders’ Liabilities; plus
1.1.3 Subcontractor Breakage Costs; minus
1.1.4 Account Balances; minus
1.1.5 Deferred Equity Amounts; minus
1.1.6 Insurance Proceeds.
2. COMPENSATION ON TERMINATION FOR EXTENDED FORCE MAJEURE
2.1 On termination of the Agreement pursuant to Section 24.3 (Termination for Extended Force Majeure), the Authority shall pay to Developer the Extended Force Majeure Termination Sum in accordance with and subject to Section 4 (Miscellaneous Compensation Provisions) of this Exhibit 6 (Compensation on Termination). The Extended Force Majeure Termination Sum shall equal the amount calculated at the Early Termination Date (without double-counting) as follows:
2.1.1 all amounts paid to Developer (and, without duplication, Borrower) by way of equity to the capital of Developer or Borrower, as applicable, less
The Port Authority of New York and New Jersey Exh. 6-2 Project Agreement – Exhibit 6 Goethals Bridge Replacement Project August 30, 2013
dividends and other distributions paid to the Equity Members (save (i) to the extent deducted under paragraph 2.1.2 below and (ii) any such payments by Developer (directly or indirectly but without duplication) to Borrower in respect of dividends or other distributions (including, without limitation, in respect of the repayment of any indebtedness of Developer to Borrower)), which shall never be a negative number; plus
2.1.2 Equity Member Debt less an amount equal to the aggregate of all payments of interest made by Developer or Borrower, as applicable, under the Equity Members Funding Agreements prior to the Termination Date; plus
2.1.3 Lenders’ Liabilities; plus
2.1.4 Subcontractor Breakage Costs; minus
2.1.5 Account Balances; minus
2.1.6 Insurance Proceeds.
3. COMPENSATION ON TERMINATION FOR DEVELOPER DEFAULT
3.1 On termination of the Agreement pursuant to Section 24.4 (Termination for Developer Default) prior to the Substantial Completion Date, the Authority shall pay to Developer the Developer Default (Construction Period) Termination Sum in accordance with and subject to Section 4 (Miscellaneous Compensation Provisions) of this Exhibit 6 (Compensation on Termination). The Developer Default (Construction Period) Termination Sum shall be an amount equal to the lower of the D&C Work Value and the Net Lenders’ Liabilities.
3.2 On termination of the Agreement pursuant to Section 24.4 (Termination for Developer Default) on or after the Substantial Completion Date, the Authority shall pay to Developer the Developer Default (Maintenance Period) Termination Sum in accordance with and subject to Section 4 (Miscellaneous Compensation Provisions) of this Exhibit 6 (Compensation on Termination). The Developer Default (Maintenance Period) Termination Sum shall equal the amount calculated at the Early Termination Date (without double-counting) as follows:
3.2.1 eighty percent (80%) of Lenders’ Liabilities; minus
3.2.2 Maintenance Rectification Costs; minus
3.2.3 Account Balances; minus
3.2.4 Deferred Equity Amounts; minus
3.2.5 Insurance Proceeds; plus
3.2.6 the balance standing to the credit of the Handback Reserve Account on the Early Termination Date.
The Port Authority of New York and New Jersey Exh. 6-3 Project Agreement – Exhibit 6 Goethals Bridge Replacement Project August 30, 2013
4. MISCELLANEOUS COMPENSATION PROVISIONS
4.1 Gross Up of Termination Payments
To the extent that the Authority Termination Sum or the Extended Force Majeure Termination Sum is subject to Taxes, then the Authority shall pay to Developer such additional amount as will put Developer, Borrower or their respective Equity Members (as relevant) in the same after Taxes position in which they would have been had the payment not been subject to Taxes, taking account of any relief, allowances deduction, setting off or credit (computed on a present value basis for any future amounts) in respect of Taxes (whether available by choice or not) which may be available to Developer, Borrower or their respective Equity Members (as relevant) to reduce the Taxes to which the payment is subject.
4.2 Set Off on Termination
The Authority is not entitled to set off any amount against the Authority Termination Sum or the Extended Force Majeure Termination Sum if the effect of exercising such right of set off would be to reduce the amount payable to Developer to less than an amount equal to the Lenders’ Liabilities.
4.3 Timing of Payment of Termination Sum
4.3.1 Any Termination Sum shall be due and payable by the Authority forty (40) Business Days after such amount is finally agreed or determined.
4.3.2 To the extent that the Developer Termination Sum is less than zero, then the amount equal to the Developer Termination Sum shall be due and payable by Developer to the Authority forty (40) Business Days after such amount is finally agreed or determined.
4.4 Transfer of Key Assets
As a condition precedent to the payment of any Termination Sum, the Authority may require Developer to transfer its rights, title and interest in and to the Key Assets to the Authority.
4.5 Exclusivity of Remedy
Any Termination Sum irrevocably paid by the Authority to Developer shall be in full and final settlement of each Party’s rights and claims against the other for breaches and/or termination of this Agreement or any other Project Document whether under contract, tort, restitution or otherwise, but without prejudice to:
4.5.1 any antecedent liability of either Party to the other that arose prior to the Early Termination Date (but not from the termination itself) to the extent such liability has not already been taken into account in the calculation of the Termination Sum; and
The Port Authority of New York and New Jersey Exh. 6-4 Project Agreement – Exhibit 6 Goethals Bridge Replacement Project August 30, 2013
4.5.2 any liabilities arising in respect of any breach by either Party after the Early Termination Date of any obligation under this Agreement that survives the Early Termination Date, to the extent not taken into account in the calculation of any Termination Sum.
The Port Authority of New York and New Jersey Exh. 7-1 Project Agreement – Exhibit 7 Goethals Bridge Replacement Project August 30, 2013
EXHIBIT 7
NON-COMPLIANCE POINTS TABLES
Table 7.1 – Noncompliance Events Between the Financial Closing Date and D&C Work Completion Date
Ref Activity Type
Heading Noncompliance Event - Failure to: Cure Period (days)
Grace Period (days)
Number of Points
1.
Approvals and Oversight
Discretionary Approvals for Advance Construction Work
Obtain the required level of Authority approval under Section 7.6 (Advance Construction Work) of the Agreement before executing any Work.
N/A N/A 2
2.
Approvals and Oversight
Authority receipt and reasonable acceptance of Utility Adjustment Agreements
Submit a Utility Adjustment Agreement to the Authority as provided for in Section 6 of the Requirements and Provisions for Work and obtain the Authority’s reasonable acceptance of the same, in accordance with Section 5.2.2 (Utility Adjustment Agreements) of the Agreement, before entering into a Utility Adjustment Agreement.
N/A N/A 2
3.
Approvals and Oversight
Audit of Project Management Plan
Carry out internal audits of the Project Management Plan at times and in the manner prescribed in the Project Management Plan and in accordance with Section 2 of the Requirements and Provisions for Work.
7 7 2
4.
Approvals and Oversight
Inspection and Audit by the Authority or Governmental Entities
Comply with any requirements to provide advance notice, access to records, or provide Reasonable Efforts to support the Authority or any Governmental Entity with regard to their rights to audit, review, inspection, or testing as described in the Requirements and Provisions for Work or the Agreement.
2 2 3
5.
Approvals and Oversight
Authority Safe Access to Site
Provide safe physical access for Authority’s Authorized Representatives, to the Site and Developer’s Project field offices.
2 N/A 5
6.
Approvals and Oversight
Authority Safe Access off-site
Where materials are to be inspected by the Authority at an off-site location, provide unrestricted and safe access at all times per Section 0.4.2.3 of General Conditions.
2 N/A 5
7.
Approvals and Oversight
Authority Facilities
Comply with any of the requirements of Section 0.1.13 (Site Facilities for the Authority) of the General Conditions regarding the provision of offices and equipment for the Authority.
7 7 2
The Port Authority of New York and New Jersey Exh. 7-2 Project Agreement – Exhibit 7 Goethals Bridge Replacement Project August 30, 2013
Table 7.1 – Noncompliance Events Between the Financial Closing Date and D&C Work Completion Date
Ref Activity Type
Heading Noncompliance Event - Failure to: Cure Period (days)
Grace Period (days)
Number of Points
8.
Approvals and Oversight
Additional Federal Requirements
Comply in any material respect with the nondiscrimination provisions of the Agreement, including without limitation Attachment 11 of Exhibit 17 (Additional Federal Requirements) to the Agreement.
N/A 7 4
9. Notifications
Notification of breach
Notify Authority of the occurrence of any breach or failure to fulfill any obligation of Developer contained in the Agreement or Requirements and Provisions for Work.
N/A N/A 4
10. Notifications
Notification of Hazardous Environmental Condition
Notify the Authority before any Remedial Actions are taken that would inhibit the Authority’s ability to ascertain the nature and extent of a Hazardous Environmental Condition in accordance with Section 6.1.2 of the Agreement.
N/A N/A 6
11. Notifications
Notification of Environmental Breach
Notify the Authority of any environmental breach, including, but not limited to exceedance of permitted thresholds for air quality, water quality, noise, and vibration requirements, as required by Applicable Law and all relevant permits.
N/A N/A 6
12.
Project Delivery Protocols
Comply with Traffic Control Requirements
Comply with any of Developer’s obligations for traffic control in Section 11.5 of the Requirements and Provisions for Work (Developer’s General Obligations).
N/A N/A 5
13.
Project Delivery Protocols
Compliance with Health and Safety Plan
Formally establish, adhere to or enforce a safety policy, procedure, process, or guideline as required by the Health and Safety Plan.
2 N/A 5
14.
Project Delivery Protocols
Administrative process for Meetings
Conduct, attend or follow the due process in connection with any meeting as described in Section 0.3.1 (Meetings) of the General Conditions including notification of Authority, issue of agenda, issue of minutes.
N/A N/A 1
15.
Project Delivery Protocols
Compliance with Project Management Plan
Establish, maintain, update or comply with any requirement of the Project Management Plan or any of its subcomponents as described in Section 2 of the Requirements and Provisions for Work.
7 7 3
The Port Authority of New York and New Jersey Exh. 7-3 Project Agreement – Exhibit 7 Goethals Bridge Replacement Project August 30, 2013
Table 7.1 – Noncompliance Events Between the Financial Closing Date and D&C Work Completion Date
Ref Activity Type
Heading Noncompliance Event - Failure to: Cure Period (days)
Grace Period (days)
Number of Points
16.
Project Delivery Protocols
Compliance with Bridge Removal Plan
Establish, maintain, update or comply with any requirement of the Bridge Removal Plan as described in Section 20.3.1 of the Requirements and Provisions for Work (Bridge Removal Plan).
7 7 2
17.
Project Delivery Protocols
Schedule Submittal Compliance
Comply with any schedule submittal requirement of Section 0.3.2 (Project Scheduling) of the General Conditions.
7 7 2
18.
Project Delivery Protocols
Compliance with a Site Security requirement
Comply with any security and site access protocol as defined and required by Section 0.1.1 (Site Security Requirements) of the General Conditions. **
N/A N/A 4
19.
Project Delivery Protocols
Employment of Key Personnel
Cause the continuous employment in connection with the Work of any of the Key Personnel complying with the qualifications requirements, working locations or the time periods specified in Section 2 of the Requirements and Provisions for Work.
14 14 2
20.
Project Delivery Protocols
Licensing of Key Personnel
Submit documentation demonstrating compliance with license requirements with regard to Personnel as described in the Section 2 of the Requirements and Provisions for Work.
7 7 1
21.
Project Delivery Protocols
Maintain Utility Service
Maintain a utility service fully operational except as specifically permitted by the Utility Owner and by any affected property in accordance with Section 6.7 of the Requirements and Provisions for Work (Utility Construction Requirements).
3 3 4
22.
Project Delivery Protocols
Implement and maintain an Environmental Management Plan (EMP)
Implement, maintain and update a complete Environmental Management Plan (EMP) as described in Section 7.2.2 of the Requirements and Provisions for Work (Environmental Management Plan).
7 7 1
23.
Project Delivery Protocols
Public Meetings and Communication
Provide all support necessary for the Authority to hold public meetings and respond to public or media inquiries and communicate with stakeholders as described in Section 27 of the Requirements and Provisions for Work (Public Information and Communications).
1 N/A 3
The Port Authority of New York and New Jersey Exh. 7-4 Project Agreement – Exhibit 7 Goethals Bridge Replacement Project August 30, 2013
Table 7.1 – Noncompliance Events Between the Financial Closing Date and D&C Work Completion Date
Ref Activity Type
Heading Noncompliance Event - Failure to: Cure Period (days)
Grace Period (days)
Number of Points
24.
Project Delivery Protocols
Punch List Prepare, maintain or timely deliver Punch List; or a modification thereto; containing all items of Construction Work to be completed, corrected, adjusted or modified.
30 N/A 3
25.
Reporting, Submittals and Document Management
Comply with Document Management Plan
Comply with the Document Management Plan, including the provision of an Electronic Document Management System (EDMS) in accordance with Section 2.2.4.5 of the Requirements and Provisions for Work (Document Management Plan).
7 7 3
26.
Reporting, Submittals and Document Management
Use of ECMS Cooperate and coordinate with the Authority regarding system requirements, protocol, security and training associated with the Authority’s Electronic Content Management System as described in Section 2.3 of the Requirements and Provisions for Work (Project Controls).
7 7 2
27.
Reporting, Submittals and Document Management
Governmental Approvals
Deliver to the Authority copies of new or amended Governmental Approvals in accordance with Section 5.1 (Governmental Approvals) of the Agreement.
7 7 1
28.
Reporting, Submittals and Document Management
Timely Submittal of Deliverables
Prepare, implement, maintain, update or submit any plan, report, deliverable or other Submittal required by, or compliant with, any Requirements and Provisions for Work or the Agreement, except where provided elsewhere in this Exhibit.
3 N/A 1
29.
Reporting, Submittals and Document Management
Maintenance and inspection of records
Keep, maintain or make available to the Authority at the specified location, within the specified time of request and for the specified retention period any book, record or document in accordance with Section 26.1 (Maintenance and Inspection of Records) of the Agreement.
7 N/A 3
30.
Reporting, Submittals and Document Management
Maintain Cost Records for Utilities
Maintain cost records for Utility Adjustment Work as required under Section 5.2.3 (Utility Adjustment Costs) of the Agreement.
7 N/A 1
The Port Authority of New York and New Jersey Exh. 7-5 Project Agreement – Exhibit 7 Goethals Bridge Replacement Project August 30, 2013
Table 7.1 – Noncompliance Events Between the Financial Closing Date and D&C Work Completion Date
Ref Activity Type
Heading Noncompliance Event - Failure to: Cure Period (days)
Grace Period (days)
Number of Points
31.
Reporting, Submittals and Document Management
Record Keeping for Utilities
Make records relating to Utilities available as required by Section 5.2 (Utilities) of the Agreement. 7 N/A 2
32.
Reporting, Submittals and Document Management
Documentation for DBE plan
Submit documents or reports demonstrating Developer’s labor compliance with Federal/State Law, and good faith efforts with respect to M/W/DBE compliance in compliance with the Project Documents.
5 N/A 3
33.
Reporting, Submittals and Document Management
Submit Insurance records
Submit documents verifying insurance coverage and payment of insurance premiums and renewals in accordance with Article 19 (Insurance) of the Agreement.
21 N/A 1
34.
Reporting, Submittals and Document Management
Submit testing records
Provide to the Authority within the specified time periods and conforming to the requirements of Section 0.4.1 (General Requirements) of the General Conditions the results of any testing performed by Developer or by the CEI on behalf of Developer during the Construction Period of any materials or assets.
2 2 3
35.
Reporting, Submittals and Document Management
Materials Certification of Compliance
Submit required Materials Certificates in accordance with the Requirements and Provisions for Work. 2 N/A 1
36.
Reporting, Submittals and Document Management
Monthly Report with Invoice
Submit a Monthly report fully in compliance with the requirements of Exhibit 14 (Monthly Performance Report) of the Agreement no later than the time period specified in Section 14.1.3 (
Monthly Performance Reports Prior to Substantial Completion) and Section 14.3 (Invoicing) of the Agreement.
N/A N/A 1
** Note 1: Recurrence may not occur within 24 hours, else additional Noncompliance points will be applied.
The Port Authority of New York and New Jersey Exh. 7-6 Project Agreement – Exhibit 7 Goethals Bridge Replacement Project August 30, 2013
Table 7.2 – Noncompliance Events Between NTP 3 (Service Commencement) and Termination Date
Ref Activity Type
Heading Noncompliance Event - Failure to: Cure Period (Days)
Grace Period (Days)
Number of Points
1.
Approvals and Oversight
Authority receipt and reasonable acceptance of Utility Adjustment Agreements
Submit a Utility Adjustment Agreement to the Authority as provided for in Section 6 of the Requirements and Provisions for Work and obtain the Authority’s reasonable acceptance of the same, in accordance with Section 5.2.2 (Utility Adjustment Agreements) of the Agreement, before entering into a Utility Adjustment Agreement.
NA N/A 2
2.
Approvals and Oversight
Audit of Project Management Plan
Carry out internal audits of the Project Management Plan at times and in the manner prescribed in the Project Management Plan and in accordance with Section 2 of the Requirements and Provisions for Work.
7 7 1
3.
Approvals and Oversight
Inspection and Audit by the Authority or Governmental Entities
Comply with any requirements to provide advance notice, access to records, or otherwise ensure Reasonable Efforts to support the Authority or any Governmental Entity with regard to their rights to Audit, review, inspection, or testing as described in the Requirements and Provisions for Work or the Agreement.
2 2 1
4.
Approvals and Oversight
Authority Safe Access to Site
Provide safe physical access for Authority’s Authorized Representatives, to the Site and Developer’s Project field offices in connection with Renewal Work and all inspections.
2 N/A 4
5.
Approvals and Oversight
Authority Safe Access off-site
Where materials are to be inspected by the Authority at an off-site location, provide unrestricted and safe access at all times per Section 0.4.2.3 of General Conditions.
2 N/A 4
6.
Approvals and Oversight
Authority Facilities
Comply with any of the requirements of Section 0.1.13 (Site Facilities for the Authority) of the General Conditions regarding the provision of offices and equipment for the Authority.
7 7 1
7.
Approvals and Oversight
Additional Federal Requirements
Comply in any material respect with the nondiscrimination provisions of the Agreement, including without limitation Attachment 11 of Exhibit 17 (Additional Federal Requirements) to the Agreement.
N/A 7 4
The Port Authority of New York and New Jersey Exh. 7-7 Project Agreement – Exhibit 7 Goethals Bridge Replacement Project August 30, 2013
Table 7.2 – Noncompliance Events Between NTP 3 (Service Commencement) and Termination Date
Ref Activity Type
Heading Noncompliance Event - Failure to: Cure Period (Days)
Grace Period (Days)
Number of Points
8. Notifications
Notification of breach
Notify Authority of the occurrence of any breach or failure to fulfill any obligation of Developer contained in the Agreement or Requirements and Provisions for Work.
N/A N/A 2
9. Notifications
Notification of Hazardous Environmental Condition
Notify the Authority before any Remedial Actions are taken that would inhibit the Authority’s ability to ascertain the nature and extent of a Hazardous Environmental Condition in accordance with Section 6.1.2 of the Agreement.
N/A N/A 4
10. Notifications
Notification of Environmental Breach
Notify the Authority of any environmental breach, including, but not limited to exceedance of permitted thresholds for air quality, water quality, noise, and vibration requirements, as required by Applicable Law and all relevant permits.
N/A N/A 4
11.
Performance Standards
Timely Remedy of Category 1 Defect
Remedy a Category 1 defect (safety critical)
As Grace Period
Defect Remedy Period
4
12.
Performance Standards
Timely Remedy of Category 2 Defect
Make permanent remedy of a Category 2 defect
As Grace Period
Defect Remedy Period
1
13.
Performance Standards
Prevent occurrence of Defect
Prevent a Category 2 defect from deteriorating into a Category 1 defect. N/A N/A 1
14.
Performance Standards
Compliance with Operational Performance Requirements
Comply with any targets for any criteria listed in the Operational Performance Requirements Table.
Listed in the “target” column
N/A 1
15.
Performance Standards
Comply with Traffic Control Requirements
Perform Maintenance Work in compliance with any of Developer’s obligations for traffic control in Section 11.5 of the Requirements and Provisions for Work (Developer’s General Obligations for Traffic Control).
N/A N/A 4
16.
Performance Standards
Timely Performance of Renewal Work
Perform any Renewal work in accordance with the accepted Renewal Work Schedule.
14 7 1
17.
Project Delivery Protocols
Compliance with Health and Safety Plan
Formally establish, adhere to or enforce a safety policy, procedure, process, or guideline as required by the Health and Safety Plan.
2 N/A 4
The Port Authority of New York and New Jersey Exh. 7-8 Project Agreement – Exhibit 7 Goethals Bridge Replacement Project August 30, 2013
Table 7.2 – Noncompliance Events Between NTP 3 (Service Commencement) and Termination Date
Ref Activity Type
Heading Noncompliance Event - Failure to: Cure Period (Days)
Grace Period (Days)
Number of Points
18.
Project Delivery Protocols
Administrative process for Meetings
Conduct, attend or follow the due process in connection with any meeting as described in Section 0.3.1 (Meetings) of the General Conditions including notification of Authority, issue of agenda, issue of minutes.
N/A N/A 1
19.
Project Delivery Protocols
Compliance with Project Management Plan
Establish, maintain, update or comply with any requirement of the Project Management Plan or any of its subcomponents governing Maintenance Work as described in Section 2 of the Requirements and Provisions for Work.
7 7 2
20.
Project Delivery Protocols
Schedule Submittal Compliance
Comply with any schedule submittal requirement of Section 0.3.2 (Project Scheduling) of the General Conditions.
7 7 1
21.
Project Delivery Protocols
Compliance with a Site Security requirement
Comply with any security and site access protocol as defined and required by Section 0.1.1 (Site Security Requirements) of the General Conditions.**
N/A N/A 4
22.
Project Delivery Protocols
Employment of Key Personnel
Cause the continuous employment in connection with the Work of any of the Key Personnel complying with the qualifications requirements, working locations or the time periods specified in Section 2 of the Requirements and Provisions for Work.
14 14 1
23.
Project Delivery Protocols
Permit Close Out
Close out permits with applicable Governmental Entities within 90 days after Demolition Completion.
3 N/A 2
24.
Project Delivery Protocols
Licensing of Key Personnel
Submit documentation demonstrating compliance with license requirements with regard to Personnel as described in Section 2 of the Requirements and Provisions for Work.
7 7 1
25.
Project Delivery Protocols
Public Meetings and Communication
Provide all support necessary for the Authority to hold public meetings and respond to public or media inquiries and communicate with stakeholders as described in Section 27 of the Requirements and Provisions for Work (Public Information and Communications).
1 N/A 2
The Port Authority of New York and New Jersey Exh. 7-9 Project Agreement – Exhibit 7 Goethals Bridge Replacement Project August 30, 2013
Table 7.2 – Noncompliance Events Between NTP 3 (Service Commencement) and Termination Date
Ref Activity Type
Heading Noncompliance Event - Failure to: Cure Period (Days)
Grace Period (Days)
Number of Points
26.
Reporting, Submittals and Document Management
Comply with Document Management Plan
Comply with the Document Management Plan, including the provision of an Electronic Document Management System (EDMS) in accordance with Section 2.2.4.5 of the Requirements and Provisions for Work (Document Management Plan).
7 7 1
27.
Reporting, Submittals and Document Management
Compliance with Maintenance Management Plan
Comply with the Maintenance Management Plan as required by Section 23.6 of the Requirements and Provisions for Work.
7 7 1
28.
Reporting, Submittals and Document Management
Record keeping for Maintenance Management
Follow the requirements of the Maintenance and Management System in accordance with Section 23.8 of the Requirements and Provisions for Work.
14 14 1
29.
Reporting, Submittals and Document Management
Maintenance Reporting
Provide Maintenance Reports as required by Section 23.11 of the Requirements and Provisions for Work. 7 N/A 1
30.
Reporting, Submittals and Document Management
Renewal Work Schedules
Provide or revise the Renewal Work Schedule as required by Section 23.7 of the Requirements and Provisions for Work.
7 N/A 1
31.
Reporting, Submittals and Document Management
Handback Reserve Account
Provide appropriate account information regarding the Handback Reserve Account in accordance with Section 8.6 (Handback Reserve Account) of the Agreement.
30 N/A 1
32.
Reporting, Submittals and Document Management
Maintenance Record keeping
Create a Maintenance Record in accordance with Section 23 of the Requirements and Provisions for Work. 2 2 1
33.
Reporting, Submittals and Document Management
Timely Submittal of Deliverables
Prepare, implement, maintain, update or submit any plan, report, deliverable or other Submittal required by, or compliant with, any Requirements and Provisions for Work or the Agreement, except where provided elsewhere in this Exhibit.
3 N/A 1
The Port Authority of New York and New Jersey Exh. 7-10 Project Agreement – Exhibit 7 Goethals Bridge Replacement Project August 30, 2013
Table 7.2 – Noncompliance Events Between NTP 3 (Service Commencement) and Termination Date
Ref Activity Type
Heading Noncompliance Event - Failure to: Cure Period (Days)
Grace Period (Days)
Number of Points
34.
Reporting, Submittals and Document Management
Maintenance and inspection of records
Keep, maintain or make available to the Authority at the specified location, within specified time of request and for the specified retention period, any book, record or document in accordance with Section 26.1 (Maintenance and Inspection of Records) of the Agreement.
7 N/A 1
35.
Reporting, Submittals and Document Management
Documentation for DBE plan
Submit documents or reports demonstrating Developer’s labor compliance with Federal/State Law, and good faith efforts with respect to M/W/DBE compliance.
5 N/A 2
36.
Reporting, Submittals and Document Management
Submit Insurance records
Submit documents verifying insurance coverage and payment of insurance premiums and renewals in accordance with Article 19 (Insurance) of the Agreement.
21 N/A 1
37.
Reporting, Submittals and Document Management
Materials Certification of Compliance
Submit required Materials Certificates in accordance with the Requirements and Provisions for Work. 2 N/A 1
38.
Reporting, Submittals and Document Management
Monthly Report with Invoice
Submit a Monthly Performance Report fully in compliance with the requirements of Exhibit 14 Monthly Performance Report (Monthly Performance Report) of the Project Agreement no later than the time period specified in Section 14.3 (Invoicing) of the Agreement.
N/A N/A 1
** Note 1: Recurrence may not occur within 24 hours, else additional Noncompliance points will be applied.
The Port Authority of New York and New Jersey Exh. 8-1 Project Agreement – Exhibit 8 Goethals Bridge Replacement Project August 30, 2013
EXHIBIT 8
PAYMENT MECHANISM
SECTION 1 – PAYMENT
1.1 Milestone Payments
Upon the Substantial Completion Date, Developer shall be entitled to a payment equal to (a) $50,000,000, minus (b) the Substantial Completion Deduction Amount calculated in accordance with Section 2.1 (Deductions on Substantial Completion) of this Exhibit 8 (Payment Mechanism) (such payment being the “Substantial Completion Payment”).
1.2 Operational Maintenance Payments
The Operational Maintenance Payment (“OMP”) for any Month (m) in Calendar Year (y) after the Substantial Completion Date shall be calculated using the following formula:
OMPm,y = MaxOMPm,y - MPDm-1
Where:
OMPm,y = 0, if MPDm-1 ≥ MaxOMPm,y
MPDm-1 = the Monthly Payment Deduction for Month (m-1) calculated in accordance with Section 2.2 (Payment Deductions after Substantial Completion) of this Exhibit 8 (Payment Mechanism).
MaxOMPm,y =is the Maximum Operational Maintenance Payment for Month (m) in Calendar Year (y), calculated as:
BaseOMddMaxOMP
y
ym,ym,
Where:
dm,y = the number of days in Month (m) in Calendar Year (y) from the start of Month (m) (or the Substantial Completion Date if later) to the end of Month (m) (or the Termination Date if earlier).
dy = the number of days in Calendar Year (y)
BaseOM = $6,693,606, subject to indexation in accordance with Section 2.11 (Indexation) of this Exhibit 8 (Payment Mechanism)
The Port Authority of New York and New Jersey Exh. 8-2 Project Agreement – Exhibit 8 Goethals Bridge Replacement Project August 30, 2013
1.3 Capital Maintenance Payments
The Capital Maintenance Payment (“CMP”) for any Month (m) in Calendar Year (y) after the Substantial Completion Date shall be calculated as follows:
(A) If MPDm-1 ≤ MaxOMPm,y then:
CMPm,y = MaxCMPm,y
(B) If MaxOMPm,y < MPDm-1 ≤ MaxOMPm,y + MaxCMPm,y then:
CMPm,y = MaxCMPm,y – (MPDm-1 - MaxOMPm,y)
(C) If MPDm-1 ≥ MaxOMPm,y + MaxCMPm,y then:
CMPm,y = 0.
Where:
MPDm-1 = the Monthly Payment Deduction for Month (m-1) calculated in accordance with Section 2.2 (Payment Deductions after Substantial Completion) of this Exhibit 8 (Payment Mechanism).
MaxOMPm,y is calculated as shown in Section 1.2 (Operational Maintenance Payments) of this Exhibit 8 (Payment Mechanism)
MaxCMPm,y = the Maximum Capital Maintenance Payment for Month (m) in Calendar Year (y), calculated as:
BaseCMd
dMaxCMP
y
ym,ym,
Where: dm,y = the number of days in Month (m) in Calendar Year (y) from the start of Month (m) (or the Substantial Completion Date if later) to the end of Month (m) (or the Termination Date if earlier).
dy = the number of days in Calendar Year (y).
BaseCM = $1,608,928, subject to indexation in accordance with Section 2.11 (Indexation) of this Exhibit 8 (Payment Mechanism).
SECTION 2 – PAYMENT DEDUCTIONS
2.1 Deductions on Substantial Completion
The Substantial Completion Deduction Amount shall be an amount equal to the aggregate of AND plus AUD,
where:
The Port Authority of New York and New Jersey Exh. 8-3 Project Agreement – Exhibit 8 Goethals Bridge Replacement Project August 30, 2013
AND = an amount equal to the lower of (a) $3,000,000, subject to indexation in accordance with Section 2.11 (Indexation) of this Exhibit 8 (Payment Mechanism), and (b) the aggregate of all Monthly Noncompliance Deductions (if any) that accrue for each Month (m) between the Financial Closing Date and the Substantial Completion Date in accordance with Section 2.3 (Monthly Noncompliance Deduction) of this Exhibit 8 (Payment Mechanism); and
AUD = an amount equal to the aggregate of all Monthly Unavailability Deductions (if any) that accrue for each Month (m) between the Service Commencement Date and the Substantial Completion Date in accordance with Section 2.4 (Monthly Unavailability Deduction) of this Exhibit 8 (Payment Mechanism), provided that in any such given Month, the Monthly Payment Deduction shall not exceed the aggregate of the Maximum Operational Maintenance Payment, the Maximum Capital Maintenance Payment and the DFA Payment projected, in each case, in the Financial Model to apply to the first full Month following Substantial Completion.
2.2 Payment Deductions after Substantial Completion
The Monthly Payment Deduction (“MPD”) for any Month (m) following the Substantial Completion Date shall be calculated as follows:
ym,ym,ym, MUDMNDMPD
Where:
MPDm,y = the Monthly Payment Deduction for Month (m) in Calendar Year (y)
MNDm,y = the Monthly Noncompliance Deduction for Month (m) in Calendar Year (y) calculated according to Section 2.3 (Monthly Noncompliance Deduction) of this Exhibit 8 (Payment Mechanism).
MUDm,y = the Monthly Unavailability Deduction for Month (m) in Calendar Year (y) calculated according to Section 2.4 (Monthly Unavailability Deduction) of this Exhibit 8 (Payment Mechanism).
In any given Month, the Monthly Payment Deduction shall not exceed the aggregate of the Maximum Operational Maintenance Payment, Maximum Capital Maintenance Payments and DFA Payment for such Month.
2.3 Monthly Noncompliance Deduction
The Monthly Noncompliance Deduction, (MND) in Month (m) and Calendar Year (y) shall be determined in accordance with the following formula:
n
1xxym, NCPENCPVMND
Where:
The Port Authority of New York and New Jersey Exh. 8-4 Project Agreement – Exhibit 8 Goethals Bridge Replacement Project August 30, 2013
NCPV = unit value for each Noncompliance Point of $10,000, subject to indexation in accordance with Section 2.11 (Indexation) of this Exhibit 8 (Payment Mechanism).
NCPEx = number of Noncompliance Points accrued in Month (m) in accordance with Article 11 (Noncompliance Events) and Exhibit 7 (Non-Compliance Points Tables).
n = total number of Noncompliance Events in Month (m) of Calendar Year (y).
2.4 Monthly Unavailability Deduction
The Monthly Unavailability Deduction (“MUD”) for each Month (m) in Calendar Year (y) shall be calculated in accordance with the following formula:
mmym, EUAVUAVMUD
Where:
UAVm = the Unavailability Aggregated Value for Month (m) calculated according to the formula in Section 2.5 (Unavailability Aggregated Value) of this Exhibit 8 (Payment Mechanism).
EUAVm = the Excused Unavailability Aggregated Value for Month (m) calculated according to the formula in Section 2.6 (Excused Unavailability Aggregated Value) of this Exhibit 8 (Payment Mechanism).
2.5 Unavailability Aggregated Value
The Unavailability Aggregated Value for Month (m) (“UAVm”) shall be calculated according to the following formula:
)CEF(UVUAVn
1w
wwlc,h,m
1
Where:
UVh,lc,w = the Unavailability Value for each Hour (h) and lane configuration (lc) as set forth in Tables 1 – 5 of this Exhibit 8 (Payment Mechanism) corresponding to each Hourly Unavailability Event (w) assessed during Month (m)
CEFw = the Calendar Event Factor as set forth in Table 6 of this Exhibit 8 (Payment Mechanism) corresponding to each Hourly Unavailability Event (w) assessed during Month (m)
2.6 Excused Unavailability Aggregated Value
The Excused Unavailability Aggregated Value (“EUAV”) for each Month (m) shall be calculated according to the following formula:
The Port Authority of New York and New Jersey Exh. 8-5 Project Agreement – Exhibit 8 Goethals Bridge Replacement Project August 30, 2013
EXVAL],UV[MinEUAV zlc,h,n
1zm
Where:
UVh,lc,z = the Unavailability Value for each Hour (h) and lane configuration (lc) as set forth in Tables 1 – 5 of this Exhibit 8 (Payment Mechanism), corresponding to each Hourly Unavailability Event (z) associated with Planned Maintenance assessed during month (m)
EXVAL = $80,000 (indexed in accordance with Section 2.11 (Indexation) of this Exhibit 8 (Payment Mechanism)), except that, where the sum of three successive values of EUAVm over a Quarter is less than $120,000 (indexed in accordance with Section 2.11 (Indexation) of this Exhibit 8 (Payment Mechanism)), EXVAL shall equal $120,000 (indexed in accordance with Section 2.11 (Indexation) of this Exhibit 8 (Payment Mechanism)) for each of the three monthly calculations of EUAVm for the immediately subsequent Quarter.
The following shall not be eligible for the purpose of calculating the Excused Unavailability Aggregated Value:
(a) any Closure during any of the Calendar Events periods set forth on Table 6 of this Exhibit 8 (Payment Mechanism);
(b) any Closure following Substantial Completion in which three travel lanes in either direction are simultaneously closed to traffic; and
(c) any Closure in the period between Service Commencement and Substantial Completion in which two travel lanes in either direction are simultaneously closed to traffic.
2.7 Closures, Hourly Unavailability Events and Unavailability Values
(a) Each Closure shall be deemed to start when the event may reasonably be inferred to have started. Each Closure shall be deemed to end when the circumstances giving rise to the Closure no longer apply and the lanes affected by the Closure have been re-opened to traffic.
(b) The Authority shall be entitled to assess one or more Hourly Unavailability Event(s) for any Closure that is not a Permitted Closure. No Hourly Unavailability Event(s) shall be assessed with respect to any Permitted Closure as further described in Section 2.8 (Permitted Closures) of this Exhibit 8 (Payment Mechanism).
(c) Depending upon the duration of the Closure, one or more Hourly Unavailability Event(s) may be assessed for each Closure. The first such Hourly Unavailability Event shall commence at the beginning of the Hour during which the Closure is deemed to have started and the last such Hourly Unavailability Event shall finish at the end of the Hour during which the Closure is deemed to have ended.
The Port Authority of New York and New Jersey Exh. 8-6 Project Agreement – Exhibit 8 Goethals Bridge Replacement Project August 30, 2013
(d) For each Hourly Unavailability Event, the corresponding Unavailability Value (UV) shall be as set forth in Tables 1 – 5 of this Exhibit 8 (Payment Mechanism) and the corresponding Calendar Event Factor (CEF) shall be as set forth in Section 2.10 (Calendar Event Factors) of this Exhibit 8 (Payment Mechanism).
(e) Where a Closure of less than 60 minutes duration spans two consecutive Hours, the Authority will only assess an Hourly Unavailability Event for the Hour having the higher Unavailability Value.
(f) When no Hourly Unavailability Event occurs, the Unavailability Value shall be $0.00 and the Calendar Event Factor shall be 0.
(g) Where an Hourly Unavailability Event results in a Closure that includes a 12’ shoulder, the Unavailability Value for the Closure of a shoulder shall be added to the Unavailability Value for the Closure of lanes (if any).
(h) In the event of a Closure in which one traffic lane is closed and the Authority has approved the use of a shoulder as a regular traffic lane, the Authority shall be entitled to assess an Hourly Unavailability Event for the closure of the shoulder, but not for the closure of the traffic lane.
(i) The Authority’s entitlement to assess Monthly Unavailability Deductions arising from Hourly Unavailability Events shall commence upon Service Commencement and shall continue until the Termination Date. Monthly Unavailability Deductions assessed prior to Substantial Completion shall be deducted from the Substantial Completion Payment as set forth in Section 2.1 (Deductions on Substantial Completion) of this Exhibit 8 (Payment Mechanism).
2.8 Permitted Closures
(a) Closures arising as a direct result of:
(i) a Compensation Event;
(ii) an Authority Change;
(iii) subject to Section 2.8(b) below, an Emergency or an Incident; or
(iv) in respect of sidewalks/bikeways only, Developer undertaking Planned Maintenance between the hours of midnight and 5 am,
shall be deemed to be “Permitted Closures” for which the Authority will not have the right to assess any Hourly Unavailability Event, provided Developer is using its Reasonable Efforts to:
(i) mitigate the impact of the relevant Closure,
(ii) reopen the affected portion(s) of the Replacement Bridge as quickly as possible to traffic,
The Port Authority of New York and New Jersey Exh. 8-7 Project Agreement – Exhibit 8 Goethals Bridge Replacement Project August 30, 2013
(iii) minimize the impact of Developer’s activities to traffic flow during such Closure; and
(iv) in respect of an Emergency, respond to the Emergency in accordance with the requirements of the Project Documents.
(b) A closure arising as a direct result of an Emergency or an Incident shall only be deemed to be a Permitted Closure to the extent that it does not arise as the direct result of:
(i) any breach of a Project Document caused by a Developer-Related Entity;
(ii) any willful misconduct or negligent act or omission of a Developer-Related Entity; or
(iii) any risk that Developer is required to insure against pursuant to the terms of the Project Documents.
2.9 Unavailability Values
(a) The Unavailability Value for each Hour (h) and lane configuration (lc) is set forth in Tables 1 – 5 below. Over the Term of the Agreement, the Authority retains the right to amend the Unavailability Values within the tables below to reflect shifts in regional travel patterns, provided that following any such amendment:
(i) the aggregate of the Unavailability Values over the 24 Hours for each column remains unchanged;
(ii) no amended Unavailability Value shall exceeds the highest Unavailability Value previously set forth in the relevant column of the relevant table; and
(iii) the Unavailability Value is $0 for the same number of consecutive hours in a 24 hour period as previously provided in the relevant column of the relevant table.
(b) On each Indexation Review Date, each of the Unavailability Values set forth in Tables 1 – 5 below shall be indexed in accordance with Section 2.11 (Indexation) of this Exhibit 8 (Payment Mechanism).
The Port Authority of New York and New Jersey Exh. 8-8 Project Agreement – Exhibit 8 Goethals Bridge Replacement Project August 30, 2013
Table 1 Unavailability Value (UVh,lc) for each Hour (h) for the lane configuration (lc) of roadway with two travel lanes between Service Commencement and Substantial Completion
Number of lanes closed in Hourly Unavailability Event
Hour One lane closed Two lanes closed
00:00 – 01:00 $0 $16,000
01:00 – 02:00 $0 $16,000
02:00 – 03:00 $0 $16,000
03:00 – 04:00 $0 $16,000
04:00 – 05:00 $0 $16,000
05:00 – 06:00 $16,000 $32,000
06:00 – 07:00 $16,000 $32,000
07:00 – 08:00 $16,000 $32,000
08:00 – 09:00 $16,000 $32,000
09:00 – 10:00 $16,000 $32,000
10:00 – 11:00 $16,000 $32,000
11:00 – 12:00 $16,000 $32,000
12:00 – 13:00 $16,000 $32,000
13:00 – 14:00 $16,000 $32,000
14:00 – 15:00 $16,000 $32,000
15:00 – 16:00 $16,000 $32,000
16:00 – 17:00 $16,000 $32,000
17:00 – 18:00 $16,000 $32,000
18:00 – 19:00 $16,000 $32,000
19:00 – 20:00 $16,000 $32,000
20:00 – 21:00 $16,000 $32,000
The Port Authority of New York and New Jersey Exh. 8-9 Project Agreement – Exhibit 8 Goethals Bridge Replacement Project August 30, 2013
Number of lanes closed in Hourly Unavailability Event
Hour One lane closed Two lanes closed
21:00 – 22:00 $0 $16,000
22:00 – 23:00 $0 $16,000
23:00 – 24:00 $0 $16,000
The Port Authority of New York and New Jersey Exh. 8-10 Project Agreement – Exhibit 8 Goethals Bridge Replacement Project August 30, 2013
Table 2 Unavailability Value (UVh,lc) for each Hour (h) for the lane configuration (lc) of roadway with three travel lanes following Substantial Completion
Number of lanes closed in Hourly Unavailability Event
Hour One lane closed
Two lanes closed
Three lanes closed
Shoulder closed#
00:00 – 01:00 $0 $0 $16,000 $0
01:00 – 02:00 $0 $0 $16,000 $0
02:00 – 03:00 $0 $0 $16,000 $0
03:00 – 04:00 $0 $0 $16,000 $0
04:00 – 05:00 $0 $0 $16,000 $0
05:00 – 06:00 $8,000 $16,000 $32,000 $4,000
06:00 – 07:00 $8,000 $16,000 $32,000 $4,000
07:00 – 08:00 $8,000 $16,000 $32,000 $4,000
08:00 – 09:00 $8,000 $16,000 $32,000 $4,000
09:00 – 10:00 $8,000 $16,000 $32,000 $4,000
10:00 – 11:00 $8,000 $16,000 $32,000 $4,000
11:00 – 12:00 $8,000 $16,000 $32,000 $4,000
12:00 – 13:00 $8,000 $16,000 $32,000 $4,000
13:00 – 14:00 $8,000 $16,000 $32,000 $4,000
14:00 – 15:00 $8,000 $16,000 $32,000 $4,000
15:00 – 16:00 $8,000 $16,000 $32,000 $4,000
16:00 – 17:00 $8,000 $16,000 $32,000 $4,000
17:00 – 18:00 $8,000 $16,000 $32,000 $4,000
18:00 – 19:00 $8,000 $16,000 $32,000 $4,000
19:00 – 20:00 $8,000 $16,000 $32,000 $4,000
The Port Authority of New York and New Jersey Exh. 8-11 Project Agreement – Exhibit 8 Goethals Bridge Replacement Project August 30, 2013
Number of lanes closed in Hourly Unavailability Event
Hour One lane closed
Two lanes closed
Three lanes closed
Shoulder closed#
20:00 – 21:00 $8,000 $16,000 $32,000 $4,000
21:00 – 22:00 $0 $4,000 $16,000 $0
22:00 – 23:00 $0 $4,000 $16,000 $0
23:00 – 24:00 $0 $4,000 $16,000 $0
# For the first six (6) months following the Substantial Completion Date (Bedding In Period) the Unavailability Value (UVh,lc) for each Hour (h) that a shoulder is Closed for the lane configuration (lc) of roadway with three travel lanes is 25% of the amounts specified in the column headed 'Shoulder closed' in Table 2 above.
The Port Authority of New York and New Jersey Exh. 8-12 Project Agreement – Exhibit 8 Goethals Bridge Replacement Project August 30, 2013
Table 3 Unavailability Value (UVh,lc) for each Hour (h) for the lane configuration (lc) of ramps with two travel lanes following Substantial Completion
Number of lanes closed in Hourly Unavailability Event
Hour One lane closed
Two lanes closed
Shoulder closed#
00:00 – 01:00 $0 $8,000 $0
01:00 – 02:00 $0 $8,000 $0
02:00 – 03:00 $0 $8,000 $0
03:00 – 04:00 $0 $8,000 $0
04:00 – 05:00 $0 $8,000 $0
05:00 – 06:00 $12,000 $24,000 $4,000
06:00 – 07:00 $12,000 $24,000 $4,000
07:00 – 08:00 $12,000 $24,000 $4,000
08:00 – 09:00 $12,000 $24,000 $4,000
09:00 – 10:00 $12,000 $24,000 $4,000
10:00 – 11:00 $12,000 $24,000 $4,000
11:00 – 12:00 $12,000 $24,000 $4,000
12:00 – 13:00 $12,000 $24,000 $4,000
13:00 – 14:00 $12,000 $24,000 $4,000
14:00 – 15:00 $12,000 $24,000 $4,000
15:00 – 16:00 $12,000 $24,000 $4,000
16:00 – 17:00 $12,000 $24,000 $4,000
17:00 – 18:00 $12,000 $24,000 $4,000
18:00 – 19:00 $12,000 $24,000 $4,000
19:00 – 20:00 $12,000 $24,000 $4,000
The Port Authority of New York and New Jersey Exh. 8-13 Project Agreement – Exhibit 8 Goethals Bridge Replacement Project August 30, 2013
Number of lanes closed in Hourly Unavailability Event
Hour One lane closed
Two lanes closed
Shoulder closed#
20:00 – 21:00 $12,000 $24,000 $4,000
21:00 – 22:00 $8,000 $16,000 $4,000
22:00 – 23:00 $8,000 $16,000 $4,000
23:00 – 24:00 $0 $16,000 $0
# For the Bedding In Period, the Unavailability Value (UVh,lc) for each Hour (h) that a shoulder is Closed for the lane configuration (lc) of ramps with two travel lanes is 25% of the amounts specified in the column headed 'Shoulder closed' in Table 3 above.
The Port Authority of New York and New Jersey Exh. 8-14 Project Agreement – Exhibit 8 Goethals Bridge Replacement Project August 30, 2013
Table 4 Unavailability Value (UVh,lc) for each Hour (h) for the lane configuration (lc) of ramps with one travel lane following Substantial Completion
Number of lanes closed in Hourly Unavailability Event
Hour One lane closed
Shoulder closed#
00:00 – 01:00* $12,000 $4,000
01:00 – 02:00* $12,000 $4,000
02:00 – 03:00* $12,000 $4,000
03:00 – 04:00* $12,000 $4,000
04:00 – 05:00* $12,000 $4,000
05:00 – 06:00 $24,000 $8,000
06:00 – 07:00 $24,000 $8,000
07:00 – 08:00 $24,000 $8,000
08:00 – 09:00 $24,000 $8,000
09:00 – 10:00 $24,000 $8,000
10:00 – 11:00 $24,000 $8,000
11:00 – 12:00 $24,000 $8,000
12:00 – 13:00 $24,000 $8,000
13:00 – 14:00 $24,000 $8,000
14:00 – 15:00 $24,000 $8,000
15:00 – 16:00 $24,000 $8,000
16:00 – 17:00 $24,000 $8,000
17:00 – 18:00 $24,000 $8,000
18:00 – 19:00 $24,000 $8,000
19:00 – 20:00 $24,000 $8,000
The Port Authority of New York and New Jersey Exh. 8-15 Project Agreement – Exhibit 8 Goethals Bridge Replacement Project August 30, 2013
Number of lanes closed in Hourly Unavailability Event
Hour One lane closed
Shoulder closed#
20:00 – 21:00 $24,000 $8,000
21:00 – 22:00* $12,000 $4,000
22:00 – 23:00* $12,000 $4,000
23:00 – 24:00* $12,000 $4,000
* The Authority will permit, based on a demonstration of need, the scheduled closing of either the travel lane or the shoulder on a ramp with one travel lane between the hours of 9pm and 5am, for Planned Maintenance. For those approved closures, the Unavailability Values for 'one lane closed' or 'shoulder closed' for the hours indicated in Table 4 with an asterisk (*) shall revert to $0.
# For the Bedding In Period, the Unavailability Value (UVh,lc) for each Hour (h) that a shoulder is Closed for the lane configuration (lc) of ramps with one travel lane is 25% of the amounts specified in the column headed 'Shoulder closed' in Table 4 above.
The Port Authority of New York and New Jersey Exh. 8-16 Project Agreement – Exhibit 8 Goethals Bridge Replacement Project August 30, 2013
Table 5 Unavailability Value (UVh,lc) for each Hour (h) for closure of the sidewalk / bikeway following Substantial Completion
Number of lanes closed in Hourly Unavailability Event#
Hour Sidewalk / bikeway closed
00:00 – 01:00 $4,000
01:00 – 02:00 $4,000
02:00 – 03:00 $4,000
03:00 – 04:00 $4,000
04:00 – 05:00 $4,000
05:00 – 06:00 $4,000
06:00 – 07:00 $4,000
07:00 – 08:00 $4,000
08:00 – 09:00 $4,000
09:00 – 10:00 $4,000
10:00 – 11:00 $4,000
11:00 – 12:00 $4,000
12:00 – 13:00 $4,000
13:00 – 14:00 $4,000
14:00 – 15:00 $4,000
15:00 – 16:00 $4,000
16:00 – 17:00 $4,000
17:00 – 18:00 $4,000
18:00 – 19:00 $4,000
19:00 – 20:00 $4,000
20:00 – 21:00 $4,000
The Port Authority of New York and New Jersey Exh. 8-17 Project Agreement – Exhibit 8 Goethals Bridge Replacement Project August 30, 2013
Number of lanes closed in Hourly Unavailability Event#
Hour Sidewalk / bikeway closed
21:00 – 22:00 $4,000
22:00 – 23:00 $4,000
23:00 – 24:00 $4,000
# For the Bedding In Period, the Unavailability Value (UVh,lc) for each Hour (h) that the sidewalk / bikeway is Closed is 25% of the amounts specified in the column headed 'Number of lanes closed in Hourly Unavailability Event' in Table 5 above.
The Port Authority of New York and New Jersey Exh. 8-18 Project Agreement – Exhibit 8 Goethals Bridge Replacement Project August 30, 2013
2.10 Calendar Event Factors
(a) The Calendar Event Factors (“CEF”) for each Hourly Unavailability Event shall be:
(i) for a Closure of a shoulder, sidewalk or bikeway at any time, 0; or
(ii) for any other Closure:
(A) during a period specified in Table 6 below, the amount set out in Table 6 below for that period; and
(B) at all other times, 0.
(b) The Authority retains the right to amend the list in Table 6 in order to accommodate regional events or other regional needs, subject to the aggregate number of Calendar Events remaining unchanged. The Authority will notify Developer as soon as it becomes aware of the need to amend Table 6, and any such amendment will preserve the value assigned to each CEV that is unaffected by such change.
2.11 Indexation
(a) On each Indexation Review Date, each Indexable Element shall be adjusted by applying to it the Indexation Formula in Section 2.11(c) below.
(b) On each occasion that an Indexable Element is to be adjusted in accordance with this Section 2.11(b), the Indexation Formula shall be applied to the Indexable Element applicable immediately before the relevant Indexation Review Date.
(c) For the purposes of calculating indexation pursuant to Section 2.11(a) above the following definitions apply:
“Indexation Formula” means IEm = IEBASE x (b/a);
“IEm” means the Indexable Element applicable on or immediately after the relevant Indexation Review Date;
“IEBASE” means the Indexable Element applicable as of the Indexation Base Date;
“a” means the value of CPI as of the Indexation Base Date; and
“b” means the value of CPI as of the relevant Indexation Review Date.
The Port Authority of New York and New Jersey Exh. 8-19 Project Agreement – Exhibit 8 Goethals Bridge Replacement Project August 30, 2013
Table 6: Calendar Event Factors
Description of Calendar Event Calendar Event Factors (CEF)
Memorial Day — from 5:00 a.m. the Friday before through 5:00 a.m. the following Tuesday
0.25
Independence Day — if the holiday falls on a:
a. Saturday, Sunday or Monday, from 5:00 a.m. the Friday before through 5:00 a.m. the following Tuesday;
b. Friday, from 5:00 a.m. the Thursday before through 5:00 a.m. the following Monday; and
c. Tuesday, Wednesday, or Thursday, from 5:00 a.m. the day before to 5:00 a.m. the day after
0.25
Labor Day — from 5:00 a.m. the Friday before through 5:00 a.m. the following Tuesday
0.25
Mother’s Day and Father’s Day — from 8:00 a.m. the Friday before through 5:00 a.m. the following Monday
0.25
Thanksgiving — from 5:00 a.m. the Wednesday before Thanksgiving Day through 5:00 a.m. the Monday following the holiday
0.25
Christmas through New Year’s Day — from 5:00 a.m. December 23 through 5:00 a.m. January 2
0.25
Easter — from 5:00 a.m. the Friday before through 5:00 a.m. the following Monday
0.25
Rosh Hashanah, Yom Kippur, Passover, and Hanukkah — from 5:00 a.m. the day before to 5:00 a.m. the day after
0.25
Columbus Day — from 5:00 a.m. the Friday before through 5:00 a.m. the following Tuesday
0.25
Veteran’s Day — from 5:00 a.m. the day before to 5:00 a.m. the day after
0.25
Martin Luther King Jr. Day — from 5:00 a.m. the day before to 5:00 a.m. the following Tuesday
0.25
President’s Day — from 5:00 a.m. the day before to 5:00 a.m. the following Tuesday
0.25
The Port Authority of New York and New Jersey Exh. 8-20 Project Agreement – Exhibit 8 Goethals Bridge Replacement Project August 30, 2013
Description of Calendar Event Calendar Event Factors (CEF)
All Saturdays and Sundays, exclusive the above Calendar Event dates, from 6:00am to 21:00 pm
0.25
The Port Authority of New York and New Jersey Exh. 9-1 Project Agreement – Exhibit 9 Goethals Bridge Replacement Project August 30, 2013
EXHIBIT 9
[NOT USED]
The Port Authority of New York and New Jersey Exh. 10-1 Project Agreement – Exhibit 10 Goethals Bridge Replacement Project August 30, 2013
EXHIBIT 10
INSURANCE COVERAGE REQUIREMENTS
PART 1 - CONSTRUCTION PERIOD INSURANCE
1.1 “All Risk” Builders’ Risk
Builders' Risk insurance written on an “all risks” basis (as that term is used in the insurance industry), completed value form, on a non-reporting basis, insuring against “all risks”, including, but not limited to the following perils: loss or damage by fire, collapse, lightning, windstorm, flood, earthquake, hail, explosion, riot, vandalism and malicious mischief, civil commotion, aircraft, vehicle impact, and smoke and such other risks, in each case (i) in an amount equal to the Probable Maximum Loss for the Project and each peril (as applicable), covering all Construction Work and property of any kind intended for permanent use in the Bridge or incidental to the Construction Work, including on and off-site installation of the Goethals Bridge Replacement Project, (ii) providing for repairs coverage, but excluding the cost of making good any faulty work, faulty materials, or any design error or omission; (iii) providing coverage for demolition/debris removal costs and increased cost of construction, subject to a minimum Fifty Million Dollar ($50,000,000) sublimit; (iv) providing “Ordinance or Law Coverage”, subject to a minimum Fifty Million Dollar ($50,000,000) sublimit; and (v) if such insurance places a sub-limit on flood coverage, such sub-limit shall be no less than Fifty Million Dollars ($50,000,000); (vi) including coverage for delay in start-up on a gross income basis for the Probable Maximum Delay and (vii) including coverage for the following, on the terms set out below:
• Electronic data processing equipment
• Property in transit (in-land only)
• Extra / expediting expenses (with a minimum sublimit of $20,000,000)
• Off Premises Services Interruption (with a minimum sublimit $10,000,000)
• Professional Fees (with a minimum sublimit of $10,000,000)
• Valuable Papers (with a minimum sublimit of $5,000,000)
• Accounts Receivable (with a minimum sublimit of $5,000,000)
• Testing and Commissioning (with a minimum limit of 120 days)
• Prevention of Access (with a minimum limit of 8 weeks)
• Ingress / Egress (with a minimum limit of 8 weeks).
The Port Authority of New York and New Jersey Exh. 10-2 Project Agreement – Exhibit 10 Goethals Bridge Replacement Project August 30, 2013
1.2 Commercial General Liability
Commercial general liability insurance (together with any excess or umbrella liability) against claims for personal injury, bodily injury, death or property damage (including liabilities as a result of repairs and alterations) occurring upon, in or about the Project, or any other sites used in connection with the fabrication or storage of materials used or to be used in connection with the Project, such insurance (i) to be on the so called “occurrence” form with a combined single limit of not less than Two Hundred Fifty Million Dollars ($250,000,000) per occurrence and in the aggregate which may be provided in a layered placement; and (ii) to cover at least the following hazards: (A) premises and operations; (B) completed operations on an “if any” basis and for a period of not less than five (5) years after the D&C Work Completion Date or, if later, the expiration of any applicable statutes of limitation or repose; (C) independent contractors; (D) blanket contractual liability for all “insured contracts” as defined in the standard general liability policy; (E) sudden and accidental pollution; (F) broad form property damage; (G) contingent employers' liability; (H) non-owned automobile liability; (I) cross liability and severability of interests; and (J) employees as additional insureds.
1.3 Workers' Compensation and Employers' Liability Insurance
Workers’ compensation insurance, as required by any Governmental Entity or legal requirement, subject to the statutory limits of the states of New York and New Jersey. Employers' Liability with limits of not less than One Million Dollars ($1,000,000).
1.4 Professional Errors and Omissions
From the date of this Agreement until the earlier of six years after the D&C Work Completion Date and ten years after the date of this Agreement, project specific Professional Liability Errors and Omissions insurance against liability for professionals (including architects and engineers) with limits of liability not less than Twenty-Five Million Dollars ($25,000,000) per claim and Twenty-Five Million Dollars ($25,000,000) in aggregate for the Project (which aggregate limit may be comprised of sub-limits for the relevant professionals at Developer's discretion) and which (i) may be provided in a layered placement; (ii) may be written on a claims made form; (iii) will cover all professionals engaged or involved in the D&C Work in a professional capacity. This coverage may be obtained through a Contractor Controlled Project Specific Program.
1.5 Contractor’s Pollution Liability
Project specific Contractors’ Pollution insurance for the Project, which may be written on a claims made form, which coverage will include the following terms:
(a) to be in an amount of not less than $50,000,000 per occurrence and in the aggregate;
(b) include coverage for:
(i) environmental impairment liability;
(ii) third party bodily injury;
The Port Authority of New York and New Jersey Exh. 10-3 Project Agreement – Exhibit 10 Goethals Bridge Replacement Project August 30, 2013
(iii) property damage liability (including remediation and clean-up costs); and
(iv) $25,000,000 coverage after the D&C Work Completion Date for completed operations; and
(c) with an extended reporting period for the Project specific Contractors’ Pollution Liability insurance until the earlier of six years after the D&C Work Completion Date and ten years after the date of this Agreement.
1.6 Other Construction Coverage
(a) Business Automobile Liability insurance which coverage will include the following terms:
(i) to be in an amount of not less than $10,000,000 per accident and in the aggregate, which may be provided in a layered placement; and
(ii) include coverage for third party property damage and bodily injury (including accident benefits) arising out of the use of any automobile used in connection with the Project;
(b) If aircraft are used in the performance of D&C Work, Aircraft Liability insurance (including owned and non-owned aircraft) which coverage shall be in an amount of not less than $25,000,000 per occurrence and in the aggregate, which may be provided in a layered placement.
(c) If watercraft are used in the performance of D&C Work, Watercraft Liability insurance covering all watercraft used in the Project which coverage shall be in an amount of not less than $25,000,000 per occurrence and in the aggregate, which may be provided in a layered placement.
(d) If such coverage is not already provided under the 'General Liability' insurance referred to above, Railroad Liability insurance which coverage shall be in an amount of not less than $5,000,000 per occurrence and $10,000,000 in the aggregate.
(e) If any property, materials or equipment intended to be used in connection with the Works or the Project are to be shipped by sea, Ocean Marine Cargo insurance which coverage shall provide coverage in an amount of not less than full replacement value per occurrence.
(f) Contractor's Equipment insurance covering any piece of equipment with a replacement cost in excess of $1,000,000, which coverage shall include the following terms:
(i) to be provide coverage in an amount of not less than full replacement value per occurrence.
The Port Authority of New York and New Jersey Exh. 10-4 Project Agreement – Exhibit 10 Goethals Bridge Replacement Project August 30, 2013
1.8 Insureds
The following policies for the insurance required under this Part 1 of Exhibit 10 must include the following persons as insureds and must otherwise comply with the following:
(a) the policies of insurance described in Section 1.1 “All Risk” Builders’ Risk of this Part 1 of Exhibit 10 must include the following persons as named insureds as their respective interests may appear:
• Port Authority of New York & New Jersey
• Developer
• Each D&C Contractor
and must designate Developer as first loss payee;
(b) the policies for the insurance described in the following Sections of this Part 1 of Exhibit 10:
1.2 Commercial General Liability 1.5 Contractors’ Pollution Liability
must include the following persons as named insureds:
• Port Authority of New York & New Jersey
• Developer
and must include the following persons as additional insureds:
• Each Indemnified Party;
(c) the policies for the insurance described in the following Sections of this Part 1 of Exhibit 10:
1.6(b) Aircraft Liability 1.6(c) Watercraft Liability
must include the following persons as additional insureds:
• Port Authority of New York & New Jersey
• Each Indemnified Party.
The Port Authority of New York and New Jersey Exh. 10-5 Project Agreement – Exhibit 10 Goethals Bridge Replacement Project August 30, 2013
PART 2 - OPERATING PERIOD INSURANCE
2.1 Commercial General Liability
Commercial General Liability insurance fully insuring against liability with respect to Developer during the Contract Term including, without limitation, coverage for the activities and operations conducted by Developer and those persons for whom Developer is in law responsible and any other person on the Authority property performing Contract Work on behalf of Developer or those for whom Developer is in law responsible, against claims for personal injury (including bodily injury and death) and property damage or loss howsoever arising during the Contract Term including without limitation out of the Contract Work or the use and operation of the Project Facility, which coverage will include the following terms:
(a) to be in an amount of not less than $100,000,000;
(b) a maximum deductible of $1,000,000 per occurrence, provided that if, in respect of any Insurance Adjustment Period, Developer can demonstrate to the satisfaction of Authority, acting reasonably, that the Commercial General Liability insurance can be obtained for that Insurance Adjustment Period with a lower deductible per occurrence for the same premium cost as would be payable for such insurance with a maximum deductible of $500,000 per occurrence, and that the policy for such insurance otherwise meets all the applicable requirements of the Project Agreement, then for that Insurance Adjustment Period the Commercial General Liability insurance may be obtained with the lower deductible per occurrence;
(c) include coverage for:
(i) products and completed operation liability;
(ii) sudden and accidental pollution;
(iii) broad form property damage;
(iv) premises and operations liability;
(v) blanket contractual liability;
(vi) contingent employers' liability;
(vii) non-owned automobile liability;
(viii) cross liability and severability of interests clause; and
(ix) employees as additional insureds.
The Port Authority of New York and New Jersey Exh. 10-6 Project Agreement – Exhibit 10 Goethals Bridge Replacement Project August 30, 2013
2.2 “All Risk” Property
“All Risk” Property Insurance as the term is used in the insurance industry (including, but not limited to the following perils: loss or damage by fire, collapse, lightning, windstorm, flood, earthquake, hail, explosion, riot, vandalism and malicious mischief, civil commotion, aircraft, vehicle impact and smoke and such other risks), which coverage will include the following terms:
(a) to be in an amount of not less than the Probable Maximum Loss for the Project for each peril (as applicable);
(b) maximum deductibles in the amounts set out below for claims arising from the following:
(i) for earthquake and tsunami, the greater of $1,000,000 or 5% of insured value at the time of loss;
(ii) for (named) windstorm, the greater of $1,000,000 or 5% of insured value at the time of loss;
(iii) for direct damage resulting from flood, water damage and inundation, $1,000,000 and
(iv) for direct damage resulting from all other insured perils, $1,000,000;
(c) include coverage for the following, on the terms set out below:
(i) business interruption on a gross income basis for the Project, for the Probable Maximum Delay (but excluding a waiting period of the first 30 days);
(ii) Electronic data processing equipment;
(iii) Property in transit (in-land only);
(iv) Extra / expediting expenses (with a minimum sublimit of $20,000,000);
(v) Off Premises Services Interruption (with a minimum sublimit $10,000,000);
(vi) Professional Fees (with a minimum sublimit of $10,000,000);
(vii) Valuable Papers (with a minimum sublimit of $5,000,000);
(viii) Accounts Receivable (with a minimum sublimit of $5,000,000);
(ix) Prevention of Access (with a minimum limit of 8 weeks);
(x) Ingress / Egress (with a minimum limit of 8 weeks); and
(xi) sublimits for natural perils as provided by the above noted study in relation to the Probable Maximum Delay.
The Port Authority of New York and New Jersey Exh. 10-7 Project Agreement – Exhibit 10 Goethals Bridge Replacement Project August 30, 2013
(d) provide for interim payments in the event of any loss.
2.3 Boiler and Machinery
If such coverage is not already provided under any other Insurance Policy held by Developer, Boiler and Machinery insurance for all boilers, pressure vessels, electrical and mechanical machines on a comprehensive basis which coverage will include the following terms:
(a) to be in an amount of not less than the Probable Maximum Loss including property damage, and business interruption on a gross income basis for 12 months (but excluding a waiting period of the first 72 hours);
(b) a maximum deductible of $500,000 per occurrence;
2.4 Workers' Compensation and Employers' Liability Insurance
Workers’ compensation insurance, as required by any Governmental Entity or legal requirement, subject to the statutory limits of the states of New York and New Jersey with a deductible or self-insured retention of not more than One Million Dollars ($1,000,000) per occurrence. Employers' Liability with limits of no less than One Million Dollars ($1,000,000) and excess liability coverage with a deductible or self-insured retention of not more than One Million Dollars ($1,000,000) per occurrence.
2.5 Pollution Liability
Pollution and Environmental Impairment Liability insurance for the Project, which may be written on a claims made form, which coverage will include the following terms:
(a) to be in an amount of not less $25,000,000 per occurrence and in the aggregate;
(b) a maximum deductible of $500,000 per occurrence;
(c) coverage for third party bodily injury and property damage liability, including remediation and clean-up costs, and underground storage tanks.
2.6 Crime
Crime (employee dishonesty) insurance with coverage on the following terms:
(a) be in an amount of not less than $5,000,000;
(b) a maximum deductible of $250,000 per occurrence;
(c) include:
(i) coverage for fraudulent or dishonest employees of Developer;
(ii) broad form money and securities, money orders and counterfeit paper;
(iii) depositor’s forgery;
The Port Authority of New York and New Jersey Exh. 10-8 Project Agreement – Exhibit 10 Goethals Bridge Replacement Project August 30, 2013
(iv) computer fraud and funds transfer fraud;
(v) audit expenses;
(vi) credit card forgery; and
(vii) custodial endorsement extending protection to third parties.
2.7 Other Operation and Maintenance Coverage
(a) Business Automobile Liability insurance which coverage will include the following terms:
(i) to be in an amount of not less than $5,000,000
(ii) include coverage for third party property damage and bodily injury (including accident benefits) arising out of the use of any automobile used in connection with the Project; and
(b) If watercraft are used to perform Contract Work, Watercraft Liability insurance covering all watercraft used in the Project which coverage will include the following terms:
(i) to be in an amount of not less than $5,000,000;
(ii) a maximum deductible of $500,000 per occurrence; and
(c) If such coverage is not already provided under the 'Commercial General Liability' insurance referred to above, Railroad Liability insurance which coverage will include the following terms:
(i) to be in an amount of not less than $5,000,000 per occurrence and $10,000,000 in the aggregate; and
(ii) a maximum deductible of $500,000.
2.8 Insureds
Consistent with those identified in Part 1 of this Exhibit 10 where appropriate.
The Port Authority of New York and New Jersey Exh. 11-A-1 Project Agreement – Exhibit 11-A Goethals Bridge Replacement Project August 30, 2013
EXHIBIT 11-A
FORM OF DISPUTES REVIEW BOARD AGREEMENT
This Disputes Review Board Agreement (“DRB Agreement”) is made and entered into this ___ day of _________, 201__, among the Port Authority of New York and New Jersey (the “Authority”), NYNJ Link Developer LLC (the “Developer”), and ______________________________ (collectively, the “Board Members”), with reference to the following facts:
A. The Authority and Developer have entered into that certain Project Agreement dated __________________ (the “Agreement”). Pursuant to the Agreement, Developer has agreed, among other things, to design, construct, finance, operate and maintain the Goethals Bridge Replacement Project (“Project”).
B. Article 30 (Dispute Resolution Procedures) of the Agreement provides for the establishment and operation of a Technical Disputes Review Board to assist in resolving any Dispute of a technical nature and a Financial Disputes Review Board to assist in resolving any Dispute of a financial nature, in each case that may arise among the Authority, Developer and others in respect to the Project.
NOW, THEREFORE, in consideration of the terms, conditions, covenants and agreements contained herein, the parties hereto agree as follows:
ARTICLE 1. ESTABLISHMENT OF BOARD
1.1 The [Financial Dispute]/[Technical Dispute] Review Board (the “Board”) shall begin operation upon execution of this DRB Agreement by the Authority, Developer and all three Board Members. In the case of the Financial Dispute Review Board, the Board Members’ tenure shall terminate upon completion of all work required to be performed by the Board hereunder unless sooner terminated in accordance with this DRB Agreement or applicable law. In the case of the Technical Dispute Review Board, the initial Board Members’ tenure shall terminate six (6) months after Demolition Completion (unless sooner terminated in accordance with this DRB Agreement or applicable law), with new Board Members to be appointed from such date through the Maintenance Period.
1.2 Each member of the Board represents, warrants and covenants on his/her behalf that he/she complies with the criteria and limitations for membership described in Exhibit 11-B (Disputes Review Board Procedures) to the Agreement.
1.3 All three Board Members must have submitted and received approval of disclosure statements according to the requirements of Section 1.5 of Exhibit 11-B (Disputes Review Board Procedures) to the Agreement.
1.4 If during the term of this DRB Agreement, a Board Member has a discussion regarding employment or enters into any agreement for employment with the Authority, Developer or a Developer-Related Entity, the Board Member shall immediately disclose such discussion or agreement to both the Authority and
The Port Authority of New York and New Jersey Exh. 11-A-2 Project Agreement – Exhibit 11-A Goethals Bridge Replacement Project August 30, 2013
Developer and the Board Member shall be disqualified from serving on the Board.
ARTICLE 2. BOARD RESPONSIBILITIES
2.1 The Board shall fairly and impartially consider and provide written decisions for resolution of disputes in accordance with Article 30 (Dispute Resolution Procedures) of the Agreement and Exhibit 11-B (Disputes Review Board Procedures) attached thereto. The Board Members shall perform the services necessary to participate in the Board’s actions in accordance with this DRB Agreement.
2.2 Board Members will be kept informed monthly of Project-related activities and other developments by means of regular progress reports, minutes of progress meetings, and other relevant information prepared by the Authority and Developer.
2.3 All Board Members are to act independently in the consideration of facts and conditions surrounding any Dispute. Seeking the Board Members’ advice or consultation, ex parte, is expressly prohibited; provided, however, that either the Authority or Developer may seek such advice or consultation from the entire Board, at a Board meeting, after first giving notice to all interested parties. A Board Member who has ex parte contact with the Authority or Developer or a representative of either party shall be subject to removal from the Board for cause.
2.4 Board Members may withdraw from the Board upon delivery of written notice of withdrawal to the Authority, Developer and the other Board Members, which notice shall specify a withdrawal date at least 30 days following the date of delivery of the notice. In addition, a Board Member may be terminated by the Authority or Developer if at any time that Board Member fails to meet the relevant qualifications set forth in Sections 1.2 through 1.5 of, or is otherwise disqualified pursuant to Section 1.10 of, Exhibit 11-B (Disputes Review Board Procedures) to the Agreement. Should the need arise to appoint a replacement Board Member, the replacement member shall be appointed in the same manner as provided by the Agreement for appointment of the original member. The selection of a replacement Board Member shall begin promptly upon notification of the necessity for a replacement and shall be completed within 30 days thereafter. The change in Board membership shall be evidenced by the new member’s signature on this DRB Agreement.
2.5 The personal services of the Board Member are a condition to receiving payment hereunder. No Board Member shall assign any of his or her work pursuant to this DRB Agreement without the prior written consent of both the Authority and Developer.
2.6 Each Board Member will keep matters related to the DRB Agreement confidential.
2.7 Each Board Member, in the performance of his or her duties on the Board, is acting as an independent contractor and not as an employee of either the
The Port Authority of New York and New Jersey Exh. 11-A-3 Project Agreement – Exhibit 11-A Goethals Bridge Replacement Project August 30, 2013
Authority or Developer. No Board Member will be entitled to any employee benefits.
ARTICLE 3. HEARINGS AND DECISIONS
3.1 Each Dispute under the Agreement shall be heard and decided by the Board in accordance with the procedures and timelines established in Section 30.4 (Disputes Review Board) of the Agreement.
3.2 Within the limits set by Section 30.4 (Disputes Review Board) of the Agreement, the Board shall have the right to establish its own procedures and time limits, including the right to establish or to waive evidentiary rules and procedures. Each party involved in the Dispute shall retain the right to discovery, within the parameters set by the Board.
ARTICLE 4. PROVISION OF DOCUMENTS TO BOARD
4.1 The Authority shall furnish each Board Member one copy of Project-related documents in accordance with Section 2.2 of Exhibit 11-B (Disputes Review Board Procedures) to the Agreement.
4.2 Developer shall furnish to each Board Member one copy of all Project-related documents it might have, other than those furnished by the Authority, in accordance with Section 2.1 of Exhibit 11-B (Disputes Review Board Procedures) to the Agreement.
ARTICLE 5. PAYMENT
5.1 The Authority and Developer shall each pay its portion of the costs related to the services rendered by each Board Member in accordance with Section 3 of Exhibit 11-B (Disputes Review Board Procedures) to the Agreement.
5.2 Invoices for payment for Board Member work completed under this DRB Agreement shall be submitted monthly. Such invoices shall be in a format approved by the Authority and Developer and accompanied by a general description of activities performed during the relevant period. The value of work accomplished for payment shall be established from the billing rate and hours expended by the Board Member together with direct, reasonable, non-salary expenses. Billings for expenses shall include an itemized listing supported by copies of the original bills, invoices, expense accounts and miscellaneous supporting data.
5.3 Each Board Member shall keep available for inspection, for a period of five years after final payment, the cost records and accounts pertaining to this DRB Agreement.
ARTICLE 6. MISCELLANEOUS
6.1 This DRB Agreement shall commence upon execution hereof by Developer, the Authority and all three Board Members. The foregoing is subject to the right of
The Port Authority of New York and New Jersey Exh. 11-A-4 Project Agreement – Exhibit 11-A Goethals Bridge Replacement Project August 30, 2013
the Authority and Developer to terminate the services of Board Members as specified herein.
6.2 This DRB Agreement shall terminate automatically upon termination of the Agreement.
6.3 Capitalized terms used but not defined herein shall have the meanings set forth in the Agreement.
6.4 The parties to this DRB Agreement intend for Article 30 (Dispute Resolution Procedures) and Exhibit 11-B (Disputes Review Board Procedures) to the Agreement and the other terms of this DRB Agreement to be complementary. Except as otherwise specifically provided herein, in the event of any conflict between this DRB Agreement and said Article 30 (Dispute Resolution Procedures) and Exhibit 11-B (Disputes Review Board Procedures) to the Agreement, Article 30 (Dispute Resolution Procedures) and Exhibit 11-B (Disputes Review Board Procedures) to the Agreement shall control.
6.5 Notices hereunder shall be sent as provided in Section 32.11 (Notices and Communications) of the Agreement. The addresses for the Board Members are set forth on the signature pages hereof.
6.6 Each of the parties hereto irrevocably submits to the exclusive jurisdiction of any New York State or U.S. Federal court sitting in the City and County of New York for the settlement of any dispute in connection with this DRB Agreement. The New York courts are the most appropriate and convenient courts to settle any such dispute and each of the parties hereto waives objection to those courts on the grounds of inconvenient forum or otherwise in relation to proceedings in connection with this DRB Agreement.
6.7 EACH OF THE PARTIES HERETO WAIVES ANY RIGHT IT MAY HAVE TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION IN CONNECTION WITH THIS DRB AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY. THIS DRB AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO TRIAL BY THE COURT.
6.8 Developer irrevocably appoints [__] as its agent for service of process in any proceedings before any court located in the State of New York. Each of the Board Members irrevocably appoints the person named below as its respective agent for service of process in any proceedings before any court located in the State of New York:
(i) [Board Member #1] ____________ irrevocably appoints ___________ as its agent for service of process;
(ii) [Board Member #2] irrevocably appoints ______________ as its agent for service of process; and
(iii) [Board Member #3] irrevocably appoints ______________ as its agent for service of process.
The Port Authority of New York and New Jersey Exh. 11-A-5 Project Agreement – Exhibit 11-A Goethals Bridge Replacement Project August 30, 2013
6.9 If any person appointed as process agent is unable for any reason to act as agent for service of process, Developer or the Board Member, as the case may be, must immediately appoint another agent on terms acceptable to the Authority. Failing this, the Authority may appoint another agent for this purpose. Developer and each of the Board Members agrees that failure by its respective process agent to notify it of any process will not invalidate the relevant proceedings. This clause does not affect any other method of service allowed by law.
6.10 This DRB Agreement shall be governed by and construed in accordance with the laws of the State of New York (without regard to conflict of laws principles thereunder).
IN WITNESS WHEREOF, the parties hereto have executed this DRB Agreement as of the day and year first above written.
BOARD MEMBERS
Member #1 ______________________________ Signature
Name/Address: ______________________________ ______________________________ ______________________________
Member #2 ______________________________
Signature
Name/Address: ______________________________ ______________________________ ______________________________
Member #3 ______________________________
Signature
Name/Address:
The Port Authority of New York and New Jersey Exh. 11-A-6 Project Agreement – Exhibit 11-A Goethals Bridge Replacement Project August 30, 2013
______________________________ ______________________________ ______________________________ DEVELOPER NYNJ LINK DEVELOPER LLC APPROVED AS TO FORM
By:
By:___________________________ Name:
THE AUTHORITY PORT AUTHORITY OF NEW
YORK AND NEW JERSEY ATTEST:
By:
Name:
By:___________________________
Title:
Name: Title: APPROVED AS TO FORM By:
The Port Authority of New York and New Jersey Exh. 11-B-1 Project Agreement – Exhibit 11-B Goethals Bridge Replacement Project August 30, 2013
EXHIBIT 11-B
DISPUTES REVIEW BOARD PROCEDURES
SECTION 1. Establishment of Disputes Review Board
1.1 Purpose
The Parties shall establish the Technical Disputes Review Board and Financial Disputes Review Board to provide special expertise and assist in and facilitate the timely and equitable resolution of Disputes between the Authority and Developer as set forth under Section 30.4 (Disputes Review Board) of the Agreement and any Disputes Review Board Agreement for the Technical Disputes Review Board and any Disputes Review Board Agreement for Financial Disputes Review Board.
1.2 Board Membership
Each Disputes Review Board will consist of one member selected by the Authority, one member selected by Developer, and a third member selected in accordance with Section 1.8 below. The third member will act as chairman. Once established, each Disputes Review Board will remain active and in full force and effect until all Disputes submitted to such Disputes Review Board have been decided by it.
1.3 Neutral and Impartial
The members of each Disputes Review Board shall be neutral, act impartially, and not have any conflict of interest (as further provided in Section 1.5 of this Exhibit 11-B).
1.4 Experience Criteria for any Disputes Review Board Members
1.4.1 Each party-selected member of the Technical Disputes Review Board shall be a nationally recognized expert in matters pertinent to the technical nature of the Project.
1.4.2 Each party-selected member of the Financial Disputes Review Board shall be a nationally recognized expert in matters pertinent to financial issues relevant to the Project.
1.4.3 The Chair of each Disputes Review Board shall be a nationally recognized expert in matters pertinent to the resolution of commercial disputes outside of litigation and shall have served on at least one Disputes Review Board, preferably as Chair.
1.5 Additional Criteria Applicable to any Disputes Review Board Members
In addition to the criteria set forth in Section 1.4 of this Exhibit 11-B, the criteria for membership for all members of any Disputes Review Board includes the following:
1.5.1 No member shall have an ownership interest in any party involved in the Agreement, or a financial interest in the Agreement, except for payment
The Port Authority of New York and New Jersey Exh. 11-B-2 Project Agreement – Exhibit 11-B Goethals Bridge Replacement Project August 30, 2013
for services on any Disputes Review Board; provided, that for purposes of determining conflicts of interests and disqualification, the term “member” shall include the member’s current primary or full-time employer, and “involved” shall mean having a contractual relationship with the Authority or Developer at any tier.
1.5.2 Except for fee-based consulting services on other projects, no member shall have been previously employed by, or have had financial ties to, any party involved in the Agreement within a period of eight (8) years prior to award of the Project Agreement.
1.5.3 No member shall have provided to either Party fee-based consulting services within the two (2) years prior to award of the Project Agreement, where the consulting fees paid by that Party have exceeded 20% of that member’s total consulting revenue in either year.
1.5.4 No member shall have had a close professional or personal relationship with any key member of any party involved in the Project Agreement which, in the judgment of either Party, could suggest partiality, or give an appearance of impropriety.
1.5.5 No member shall have had prior involvement in the Project, of a nature which could compromise his or her ability to participate impartially in the activities of either board.
1.5.6 Each member shall have completed any Disputes Review Board training course provided by the Authority for the Project.
1.5.7 During his or her tenure as a member of any Disputes Review Board, no member shall be employed, including fee-based consulting services, by any party involved in this Agreement except with express approval of both Parties.
1.5.8 During his or her tenure as a member of any Disputes Review Board, no member shall engage in any discussion or make any agreement with any Party regarding employment after the Project is completed.
1.5.9 No member shall currently be a member of any other Disputes Review Board that involves issues related to either of the Parties.
1.6 Disclosure Statement
Before their appointments are final, the first two (2) prospective members of any Disputes Review Board shall submit complete disclosure statements for the approval of both the Authority and Developer. Each statement shall include a resume of experience, together with a declaration describing all past, present and anticipated or planned future relationships (including indirect relationships through the prospective member’s primary or full-time employer) to this Project and with all Parties involved in this Agreement. This disclosure shall also include any financial relationship relative to the criteria in Section 1.5 of this Exhibit 11-B, and disclosure of close relationships, either professional or personal, with all key members of all Parties to this Agreement. The third member of any Disputes Review Board shall supply such a statement to
The Port Authority of New York and New Jersey Exh. 11-B-3 Project Agreement – Exhibit 11-B Goethals Bridge Replacement Project August 30, 2013
the first two (2) members and to the Authority and Developer before his or her appointment is final.
1.7 Selection of First Two Members
The Authority and Developer shall each select a proposed member for each Disputes Review Board and convey the selected member’s name and reference information to the other Party within three (3) weeks after execution of the Agreement. If either Party reasonably believes that the member appointed by the other Party does not meet the criteria for membership as set forth in this Exhibit 11-B, that Party shall notify the other Party of such failure and the reason therefor. If either Party’s member fails to meet the criteria, the other Party may require substitution of that member pursuant to Section 1.10 of this Exhibit 11-B.
1.8 Nomination and Approval of Third Member
Immediately after the Authority and Developer selections for a Disputes Review Board are final, the Authority will provide a list of five (5) proposed members acceptable to both Parties and will notify the first two (2) members of such Disputes Review Board to begin the process of selecting the third member from this list. The first two (2) members shall select the third member from the list provided by the Authority and shall ensure that the third member meets all of the relevant criteria listed above. The first two (2) members shall select the third member within two (2) weeks after they receive the notice from the Authority to begin the selection process.
If the first two (2) members of any Disputes Review Board do not select a third member within these four weeks after their selections are final, the Authority and Developer shall select the third member by mutual agreement. In so doing, the Parties may, but are not required to, consider other nominees offered by the first two (2) members of any Disputes Review Board. In the event of failure to agree on the appointment of the third member of the relevant Disputes Review Board within two weeks following such four-week period, such person may be appointed by the International Institute for Conflict Prevention and Resolution, upon the request of either Party.
1.9 Execution of Three Party Agreement
The Authority, Developer and all three members of any Disputes Review Board shall execute its respective Disputes Review Board Agreement substantially in the form attached as Exhibit 11 (Form of Disputes Review Board Agreement) within four (4) weeks after the selection of the third member.
1.10 Disqualification and Replacement of Board Members
If (a) any member of any Disputes Review Board has a discussion regarding employment or enters into any employment agreement with Developer, the Authority or any Contractor on the Project during his or her tenure on any Disputes Review Board, (b) any member of any Disputes Review Board is discovered not to meet the relevant qualifications set forth in this Exhibit 11-B or (c) any member cannot continue to serve because of death, illness or permanent disability, that member shall be disqualified from serving on any Disputes Review Board. In the event of such a disqualification, a replacement member meeting the qualifications in this Exhibit 11-B will be selected by the Authority if the disqualified member was originally selected by the Authority, by Developer if the disqualified member was originally selected by
The Port Authority of New York and New Jersey Exh. 11-B-4 Project Agreement – Exhibit 11-B Goethals Bridge Replacement Project August 30, 2013
Developer or by both the Authority and Developer if the disqualified member was the third member.
SECTION 2. The Authority and Developer Responsibilities
2.1 Developer’s Responsibilities
Except for its participation in any Disputes Review Board’s activities as provided in its Disputes Review Board Agreement, Developer will not solicit advice or consultation from any Disputes Review Board or any member on matters dealing in any way with the Project, the conduct of the Work or resolution of problems.
Developer shall furnish to each Disputes Review Board member a set of all pertinent documents which are or may become necessary for any Disputes Review Board to perform its function, except documents furnished by the Authority. Pertinent documents are any drawings or sketches, calculations, procedures, schedules, estimates, or other documents used in the performance of the Work or in justifying or substantiating Developer’s position regarding a particular Dispute. Developer shall furnish a copy of such documents to the Authority.
2.2 The Authority’s Responsibilities
Except for its participation in any Disputes Review Board’s activities as provided in its Disputes Review Board Agreement, the Authority will not solicit advice or consultation from any Disputes Review Board or any members on matters dealing in any way with the Project, the conduct of the Work or resolution of problems.
The Authority shall furnish the following services and items:
2.2.1 Contract-Related Documents: The Authority shall furnish each Disputes Review Board member and Developer a copy of all Project Documents, written instructions issued by the Authority to Developer, or other documents pertinent to the performance of the Agreement and necessary for either board to perform its function.
2.2.2 Coordination and Services: The Authority, in cooperation with Developer, shall coordinate the operations of any Disputes Review Board. The Authority shall arrange or provide conference facilities at or near the Site, provide any Disputes Review Board training course, for the Project, and provide secretarial and copying services for any Disputes Review Board.
2.3 Reports to any Disputes Review Board
The Authority and Developer shall provide any Disputes Review Board members monthly with regular progress reports, minutes of progress meetings, and other relevant information they each prepare in order to keep any Disputes Review Board informed of Project-related activity and other developments.
SECTION 3. Basis of Payment
The Authority and Developer are each responsible to pay the fees and expenses of any Disputes Review Board member it selected without recourse to the other Party.
The Port Authority of New York and New Jersey Exh. 11-B-5 Project Agreement – Exhibit 11-B Goethals Bridge Replacement Project August 30, 2013
Developer shall also pay the fees and expenses invoiced by the third member of any Disputes Review Board, after approval by both Parties, and Developer will then invoice the Authority for 50% of the payment it made to the third member of any Disputes Review Board. The Authority will review and process payment of the invoice promptly upon receipt.
The Authority will prepare and mail minutes and progress reports, will provide administrative services, such as conference facilities and secretarial services for meetings with any Disputes Review Board for any Dispute hearing, and will bear the cost of these services. If any Disputes Review Board desires special services, such as, but not limited to, legal consultation, accounting, and data research, both Parties must agree, and the costs will be shared by them as mutually agreed.
The Port Authority of New York and New Jersey Exh. 12-1 Project Agreement – Exhibit 12 Goethals Bridge Replacement Project August 30, 2013
EXHIBIT 12
INITIAL DESIGNATION OF AUTHORIZED REPRESENTATIVES
AUTHORITY
James Blackmore DEVELOPER Christopher Leslie Karl Kuchel
The Port Authority of New York and New Jersey Exh. 13-1 Project Agreement – Exhibit 13 Goethals Bridge Replacement Project August 30, 2013
EXHIBIT 13
GEOTECHNICAL REPORTS
[Attached to this Agreement on a separate CD-ROM]
The Port Authority of New York and New Jersey Exh. 14-1 Project Agreement – Exhibit 14 Goethals Bridge Replacement Project August 30, 2013
EXHIBIT 14
MONTHLY PERFORMANCE REPORT
Monthly Performance Report
[DATE]
I, [NAME], authorized signatory of NYNJ Link Developer LLC, deliver this monthly performance report (the “Monthly Performance Report”) in connection with the Goethals Bridge Replacement Project-Project Agreement, entered into by and between the Port Authority Of New York and New Jersey and NYNJ Link Developer LLC on [DATE], (the “Project Agreement”). Terms defined in the Project Agreement have the same meanings when used in this Monthly Performance Report except where otherwise defined. This Monthly Performance Report is delivered pursuant to Section 14.3 (Invoicing) of the Project Agreement.
On behalf of Developer, I hereby certify the following with respect to the period from [DATE] to [DATE] (the “Reporting Period”)
1. Monthly Payment Deductions
(a) The Monthly Noncompliance Deduction for the Reporting Period is equal to $[_________].
(b) The Monthly Unavailability Deduction for the Reporting Period is equal to $[_________].
(c) The aggregate sum of the amounts stated in 1(a) and 1(b) above is equal to $[_________].
2. Appended to this Monthly Performance Report as Annex A is a detailed summary of the calculation of each of the amounts set forth in Section 1 above, using the methodology set forth in Exhibit 8 (Payment Mechanism) to the Project Agreement, and setting forth each of the component calculations required thereby.
3. Appended to this Monthly Performance Report as Annex B is:
(a) a description of each Noncompliance Event, Hourly Unavailability Event and Closure resulting in a Monthly Payment Deduction in respect of the Reporting Period;
(b) a description of each Permitted Closure;
(c) the start and end (in date and time) of each Noncompliance Event, Hourly Unavailability Event, Closure and Permitted Closure (including the Noncompliance Start Date and Noncompliance Rectification Date), each determined in accordance with the Project Agreement;
The Port Authority of New York and New Jersey Exh. 14-2 Project Agreement – Exhibit 14 Goethals Bridge Replacement Project August 30, 2013
(d) a statement of any adjustments to reflect previous over-payments and/or under-payments; and
(e) any other information that could be used by the Authority to verify the amounts stated in Section 1 above.
I have executed and delivered this Monthly Performance Report as of the first date written above, and all matters certified herein are true, correct and complete on such date.
NYNJ LINK DEVELOPER LLC
Name: [NAME]
Title:
The Port Authority of New York and New Jersey Exh. 14-3 Project Agreement – Exhibit 14 Goethals Bridge Replacement Project August 30, 2013
Annex A
Calculation Summary
The Port Authority of New York and New Jersey Exh. 14-4 Project Agreement – Exhibit 14 Goethals Bridge Replacement Project August 30, 2013
Annex B
Events and Adjustments
The Port Authority of New York and New Jersey Exh. 15-1 Project Agreement – Exhibit 15 Goethals Bridge Replacement Project August 30, 2013
EXHIBIT 15
CERTAIN PUBLIC POLICY REQUIREMENTS
PART A – Minority- and Women-Owned Business Enterprises (MBE/WBE)
The Authority has a long-standing practice of making its contract opportunities available to as many Minority Business Enterprises (MBEs) and Women Business Enterprises (WBEs) as possible and has taken affirmative steps to encourage such business enterprises to seek business opportunities with the Authority and its contractors.
"Minority-owned business" or "MBE" means a business entity which is at least 51 percent owned by one or more members of one or more minority groups, or, in the case of a publicly held corporation, at least 51 percent of which is owned by one or more members of one or more minority groups, and whose management and daily business operations are controlled by one or more such individuals who are citizens or permanent resident aliens.
"Women-owned business" or "WBE" means a business which is at least 51 percent owned by one or more women, or, in the case of a publicly held corporation, 51 percent of the ownership interest of which is owned by one or more women, and whose management and daily business operations are controlled by one or more women who are citizens or permanent resident aliens.
"Minority group" means any of the following racial or ethnic groups:
A. Black persons having origins in any of the black African racial groups not of Hispanic origin;
B. Hispanic persons of Puerto Rican, Mexican, Dominican, Cuban, Central, or South American culture or origin, regardless of race;
C. Asian and Pacific Islander persons having origins in any of the original peoples of the Far East, Southeast Asia, the Indian subcontinent or the Pacific Islands;
D. Native American or Alaskan native persons having origins in any of the original peoples of North America and maintaining identifiable tribal affiliations through membership and participation or community identification.
To ensure meaningful participation of MBEs and WBEs in the Work, the Authority has set a combined goal of: (a) in the case of the D&C Work, 17 percent of the D&C Contract Amount; and (b) in the case of the Maintenance Work, 17 percent per annum of the total Maintenance Work cost for the relevant year, in each case for firms owned and controlled by minorities or women.
In the event that any portion of the Work is subcontracted, every good faith effort to meet the above goals for MBE and WBE participation in the Work shall be made and documented. Such good faith efforts shall include at least the following:
A. Attendance at pre-bid meetings, if any, scheduled by the Authority;
The Port Authority of New York and New Jersey Exh. 15-2 Project Agreement – Exhibit 15 Goethals Bridge Replacement Project August 30, 2013
B. Utilization of the Authority's Directory of certified MBE/WBEs available on-line www.panynj.gov/supplierdiversity (see Notification of M/WBE On-line Directory and Forms in back of Contract booklet) and/or proposing for certification other MBE/WBEs which appear to meet the Authority's criteria for MBE/WBE certification and which are technically competent to perform the Work which the bidder plans to subcontract;
C. Active and affirmative solicitation of bids for subcontracts from MBE/WBEs;
D. Advertisement in general circulation media, trade association publications and minority-focused media for a reasonable period before commencement of the D&C Work or the Maintenance Work, as the case may be;
E. Dividing the work to be subcontracted into smaller portions or encouraging the formation of joint ventures, partnerships or similar arrangements among subcontractors in order to increase the likelihood of achieving the MBE/WBE goals;
F. Providing a sufficient supply of drawings and specifications of prospective work to MBE/WBEs and providing appropriate materials to each in sufficient time to review; and
G Utilizing the services of available minority and women's community organizations; contractors' groups; local, State and Federal business assistance/development offices and other organizations that provide assistance to MBE/WBEs.
Developer shall use and document every good faith effort to comply with the plan submitted by or on behalf of Developer to comply with the participation goals set forth in this Part A, (the MBE/WBE Participation Plan) and to permit its MBE/WBE subcontractors to perform. Participation percentages shall be monitored throughout the performance of this Agreement. Such good faith efforts shall include at least the following:
A. Ensuring that progress payments are made in a timely fashion in accordance with the requirements of the relevant subcontract;
B. Not requiring bonds from and/or providing bonds and insurance for subcontractors where appropriate;
C. Soliciting specific recommendations on methods for enhancing MBE/WBE participation from Authority staff responsible for such participation; and
D. Nominating subcontractors for participation in business assistance programs sponsored by the Authority or the Regional Alliance of Small Contractors such as the Loaned Executive Assistance Program (L.E.A.P.).
Developer shall also provide the Authority's Authorized Representative, at his or her request, with a trade breakdown schedule showing when Developer's MBE/WBE subcontractors are scheduled to perform.
In the event that, following review of the implementation of the MBE/WBE Participation Plan, the Authority's Authorized Representative determines that Developer has not made a good faith
The Port Authority of New York and New Jersey Exh. 15-3 Project Agreement – Exhibit 15 Goethals Bridge Replacement Project August 30, 2013
effort to meet the MBE/WBE participation goals set forth above and that Developer has not demonstrated that a full or partial waiver of such goals is appropriate, the Authority's Authorized Representative may advise Developer that it is not responsible and may reject the MBE/WBE Participation Plan.
Developer may request a full or partial waiver of the above described MBE/WBE participation goals by providing a reasonable demonstration to the Authority's Authorized Representative that Developer’s good faith efforts will not result in compliance with the goals set forth above because participation by eligible MBE/WBEs could not be obtained at a reasonable price or that such MBE/WBEs were not available or refused to perform as subcontractors. Developer shall provide such documentation to support its request as the Authority's Authorized Representative may require.
The MBE/WBE Participation Plan may be modified only with the written approval of the Authority's Authorized Representative.
Following approval by the Authority's Authorized Representative of one or more subcontractors who are either MBEs or WBEs and listed in the MBE/WBE Directory or determined to be "eligible" by the Authority's Authorized Representative in accordance with this Part A, the Authority may, at its sole option, provide to said approved MBEs/WBEs, without charge, whatever appropriate consultant services may be available under the L.E.A.P. Program; provided, however, that such consultant services will only be furnished pursuant to a request in writing from the Director, Office of Business Diversity and Civil Rights of the Port Authority of New York and New Jersey, 233 Park Avenue South - 4th Floor, New York, NY 10003.
Such services will be discontinued following a written request from Developer to the Director, Office of Business Diversity and Civil Rights of the Port Authority of New York and New Jersey, to discontinue them.
The L.E.A.P. services include advising on scheduling, purchasing, planning and other aspects of construction to firms to mitigate business or management problems which could negatively impact on their performance. These services do not include engineering or legal advice. The determination as to whether or not to follow the advice given lies solely with the M/WBE subcontractor. Prior to being accepted as a participant in the L.E.A.P. Program, the M/WBE subcontractor will be required to release the Authority and the individuals furnishing consultant advice of all liability and responsibility in connection therewith.
The Authority has compiled and made available on-line an MBE/WBE Directory which specifies the firms the Authority has determined to be (1) MBEs/WBEs and (2) experienced in performing work in the trades and contract dollar ranges indicated in the Directory. The Directory can be accessed at www.panynj.gov/supplierdiversity. The Authority makes no representation as to the financial responsibility of such firms or their ability to perform Work required under this Agreement. At the time of submission of the MBE/WBE Participation Plan, only MBEs/WBEs listed in the Directory will count toward the required MBE/WBE participation.
MBEs/WBEs proposed as lessors of equipment or materialmen shall be deemed "subcontractors" for the purpose of this Part A but shall not be deemed subcontractors for any other purpose. However only 60% of the amounts paid by Developer to such materialmen who are MBEs/WBEs, except in the case of firms who themselves manufacture materials for use under this Agreement, shall be allowed in computing the percentages of the D&C Contract
The Port Authority of New York and New Jersey Exh. 15-4 Project Agreement – Exhibit 15 Goethals Bridge Replacement Project August 30, 2013
Amount or the Maintenance Work, as the case may be, set forth as a goal to be paid to MBEs/WBEs hereunder.
Developer shall ensure that all approved MBE/WBE subcontractors maintain a regular on site presence at the construction site for the portions of the Work they are subcontracted to perform and that they exercise financial and operation management and control of such portions of the Work.
PART B – Authority Prevailing Wage
Developer shall pay or provide (and shall cause all subcontractors to pay or provide) to its, his, her or their workmen, laborers and mechanics (who are employed by it, him, her or them to work on an hourly or daily basis in any trade or occupation at or about the construction site) at least the prevailing rate of wage and supplements for others engaged in the same trade or occupation in the locality in which the Work is being performed as determined by the Authority's Authorized Representative.
For purposes of this Agreement, the Authority's Authorized Representative has determined that the prevailing rates of wage and supplements for performance of the D&C Work and the Maintenance Work are those prevailing rates of wage and supplements established by the Secretary of Labor of the United States pursuant to the Davis-Bacon Act (40 U.S.C.A. 276a) for the locality in which the D&C Work and the Maintenance Work, as the case may be, is to be performed. The applicable rates shall initially be those which are in effect on the date of the Financial Proposal Due Date.
The provisions of this Part B are for the benefit of such workmen, laborers and mechanics as well as for the benefit of the Authority; and if Developer or any subcontractor shall pay or provide any such workman, laborer or mechanic less than the rates of wages and supplements above described, such workman, laborer or mechanic shall have a direct right of action against Developer or such subcontractor for the difference between the wages and supplements actually paid or provided and those to which he is entitled under this Part B. If such workman, laborer or mechanic is employed by any subcontractor whose subcontract does not contain a provision substantially similar to the provisions of this Part B (requiring the payment or provision of at least the above minimum, and providing for a cause of action in the event of the subcontractor's failure to pay or provide such wages and supplements), such workman, laborer or mechanic shall have a direct right of action against Developer. The Authority shall not be a necessary party to any action brought by any workman, laborer or mechanic to obtain a money judgment against Developer or any subcontractor pursuant to this Part B.
Nothing herein contained shall be construed to prevent Developer or any subcontractor from paying higher rates of wages or providing higher supplements than the minimum hereinbefore prescribed; and nothing herein contained shall be construed to constitute a representation or guarantee that Developer or any subcontractor can obtain workmen, laborers and mechanics for the minimum hereinbefore prescribed. All wages actually paid that are in excess of the prevailing wages in the performance of Extra Work, if applicable, shall be subject, on each occasion, to the initial and continuing approval of the Authority's Authorized Representative in advance of the performance of such Extra Work, if applicable.
Developer shall post at the Work site, in a place that is prominent, accessible and visible to all employees of Developer and its subcontractors during the daily time period that Developer
The Port Authority of New York and New Jersey Exh. 15-5 Project Agreement – Exhibit 15 Goethals Bridge Replacement Project August 30, 2013
and/or subcontractor performs Work at the site, the appropriate prevailing wage and supplement schedules. Developer must inform all employees, including those of its subcontractors, that they may obtain a copy of the prevailing wage and supplement schedule from Developer.
Developer and every subcontractor shall make and maintain weekly payroll records during the course of the Work for all employees employed in the Work. Such records shall contain the name, address and last four digits of the social security number of each such employee (Developer and subcontractors must maintain the full social security number of each employee and shall provide them upon request to the Authority’s Inspector General), the employee's correct payroll classification, rate of pay and supplements, daily and weekly number of hours worked, deductions made and actual wages and supplements paid. Developer shall submit these weekly payroll records to the Authority (on forms furnished by the Authority) of all its payroll records and those of each of its subcontractors as the Authority may require, together with an affidavit by Developer and by each subcontractor to the effect that such payroll records are correct and complete, the wage and supplement rates contained therein are not less than those required by the provisions of this Agreement, and the classifications set forth for each employee conform with the Work performed. Such copies and summaries and the original payroll records shall be available for inspection by the Authority (including the Authority’s Inspector General), and Developer and its subcontractors shall permit such representatives to interview employees during work hours at the construction site.
The Authority's Authorized Representative may at any time request Developer to prepare a daily report on the Authority form entitled Contractor Daily Sign-In Sheet, copies of which can be obtained from the Authority's Authorized Representative. The Contractor Daily Sign-In Sheet shall be completed as follows:
1) At the beginning of each workday Developer‘s Authorized Representative shall:
a. fill in the top of the Contractor Daily Sign-In Sheet, including the location, date, contractor/subcontractor name and contract number;
b. ensure that each employee, including those of subcontractors, has printed and signed his or her name and indicated his or her work classifications, the last four digits of his or her social security number, and his or her starting time;
2) At the end of each workday, Developer’s Authorized Representative shall:
a. ensure that each employee, including those of subcontractors, has signed out and indicated his or her ending time;
b. sign the certification statement at the bottom of the form to indicate that the information contained in the Contractor Daily Sign-In Sheet is true and accurate; and
c. submit the original completed form to the Authority's Authorized Representative.
The Port Authority of New York and New Jersey Exh. 15-6 Project Agreement – Exhibit 15 Goethals Bridge Replacement Project August 30, 2013
In an area of its office at the Work site which is accessible to its employees, Developer shall display such printed material as may be provided by the Authority's Authorized Representative's setting forth information for the employees of Developer and its subcontractors concerning the wage and supplemental benefit requirements set forth in this Part B. Developer shall also cause each of its subcontractors to display such material in a similarly accessible place in any office which the subcontractor maintains at the Work site.
Developer's failure to comply with any provision of this Part B shall be deemed a substantial breach of this Agreement.
The Port Authority of New York and New Jersey Exh. 16-1 Project Agreement – Exhibit 16 Goethals Bridge Replacement Project August 30, 2013
EXHIBIT 16
[NOT USED]
The Port Authority of New York and New Jersey Exh. 17-1 Project Agreement – Exhibit 17 Goethals Bridge Replacement Project August 30, 2013
EXHIBIT 17
ADDITIONAL FEDERAL REQUIREMENTS
[Attached to this Agreement on a separate CD-ROM]
The Port Authority of New York and New Jersey Exh. 18-1 Project Agreement – Exhibit 18 Goethals Bridge Replacement Project August 30, 2013
EXHIBIT 18
UTILITY DATA
Part A
DATES FOR DELIVERY OF MASTER UTILITY AGREEMENTS
Master Utility Agreement Date for Delivery
Verizon New Jersey Inc. October 1, 2013
Cablevision October 1, 2013
Consolidated Edison Company of New York, Inc.
October 1, 2013
Empire City Subway Co/Ltd October 1, 2013
IMTT October 1, 2013
National Grid NY October 1, 2013
Phillips 66 Pipeline LLC October 1, 2013
Public Service Electric and Gas Company October 1, 2013
Texas Eastern Transmission, LP October 1, 2013
Time Warner Cable Co., L.P. October 1, 2013
Buckeye Pipe Line Company, L.P. October 1, 2013
Colonial Pipeline Company October 1, 2013
Elizabethtown Gas Company October 1, 2013
Telephone Communications New York (AT&T) October 1, 2013
AT&T Core October 1, 2013
Sprint October 1, 2013
Transcontinental Gas Pipe Line Company LLC October 1, 2013
Zayo Group, LLC October 1, 2013
The Port Authority of New York and New Jersey Exh. 18-2 Project Agreement – Exhibit 18 Goethals Bridge Replacement Project August 30, 2013
City of Elizabeth and Etown Services October 1, 2013
City of Elizabeth and Liberty Water October 1, 2013
Part B
UTILITY DATA
[Attached to this Agreement on a separate CD-ROM]
Part C
MASTER UTILITY AGREEMENTS
[Attached to this Agreement on a separate CD-ROM]
The Port Authority of New York and New Jersey Exh. 19-1 Project Agreement – Exhibit 19 Goethals Bridge Replacement Project August 30, 2013
EXHIBIT 19
THIRD-PARTY AGREEMENTS
Part A
DATES FOR DELIVERY OF THIRD-PARTY AGREEMENTS
Third Party Agreement Date for Delivery
New Jersey Turnpike Authority (NJTA) October 1, 2013
EDC/Conrail Shared Assets (NY) October 1, 2013
Conrail (NJ) October 1, 2013
New Jersey Department of Transportation (NJDOT)
October 1, 2013
New York City Department of Transportation (NYCDOT)
October 1, 2013
City of Elizabeth October 1, 2013
Part B
THIRD PARTY AGREEMENTS
[Attached to this Agreement on a separate CD-ROM]
The Port Authority of New York and New Jersey Exh. 20-1 Project Agreement – Exhibit 20 Goethals Bridge Replacement Project August 30, 2013
EXHIBIT 20
CONFIDENTIALITY AND PUBLIC DISCLOSURE
FREEDOM OF INFORMATION CODE ACCESS TO PORT AUTHORITY RECORDS – ENSURING OPEN PUBLIC RECORDS –
PORT AUTHORITY FREEDOM OF INFORMATION CODE
The business and activities of The Port Authority of New York and New Jersey have a substantial impact on the people of the States of New York and New Jersey, especially within the Port District and particularly the customers who use its facilities every day. As recognized in its By-Laws, it is the goal and policy of the Port Authority to conduct its business and activities in the public interest and therefore the public should have access to the records of the Port Authority to the greatest extent possible.
The Committee on Operations first adopted a Freedom of Information Policy in 1977, which was revised over the years. Since 1992, the meetings of the Port Authority’s Board and its Committees have been open to the public, under a Board policy adopted consistent with Open Meetings legislation adopted by the two States. Beginning in December 2006, and most recently in November 2008, the Board has expanded upon the agency’s transparency in governance through complementary policy statements, while protecting sensitive security information, the public’s safety, and the privacy expectations of individuals.
In order for the goal of greater transparency in governance to be achieved, a more efficient and clear policy statement, both for the guidance of staff and for the expectations of the public, must be implemented. A streamlined process, with timely results and subject to judicial recourse in the States of New York and New Jersey, will begin to accomplish these goals. In addition, we will be utilizing the ever-expanding resources of the electronic information age to take advantage of the ability to disseminate information through the Port Authority’s Web site and other similar tools.
The Port Authority reviewed, as it has in the past, the records access policies of the two
States: in New Jersey, the Open Public Records Act and regulations adopted in connection with that Act, decisions of the Government Records Council, executive orders and judicial decisions regarding access to public records, and in New York, the Freedom of Information and Privacy Laws, regulations adopted in connection with those laws, the decisions and advice of the Committee on Open Government, and judicial decisions regarding access to public records. A revised statement, in the form of a Port Authority Freedom of Information Code applicable to the Records of the Port Authority was presented to the Board. Upon adoption, the Freedom of Information Code is to be effective on or about April 15, 2012, consistent with the Governors’ reviews, and will be applied to all responses to requests for records after its effective date unless otherwise precluded by law or contractual provision.
In addition to today’s adoption of a Freedom of Information Code, the Board has directed staff to expand efforts and to continue to make Records and information available to the public through other means, such as the Port Authority’s Web site. Finally, it is proposed that the fee provisions of the Freedom of Information Code be suspended, on a trial basis, to determine whether the proposed posting of information on the Port Authority’s Web site may preclude the necessity for imposing such fees.
The Port Authority of New York and New Jersey Exh. 20-2 Project Agreement – Exhibit 20 Goethals Bridge Replacement Project August 30, 2013
Pursuant to the foregoing report, the Committee on Operations, acting for and on behalf
of the Board pursuant to delegated authority, adopted the following resolution, with Commissioners Bauer, Moerdler, Pocino, Rechler, Samson, Sartor, Schuber and Steiner voting in favor. General Counsel confirmed that sufficient affirmative votes were cast for the action to be taken, a quorum of the Committee being present.
RESOLVED, that the Commissioners express our strong commitment to transparency in the conduct of the public’s business, so that the Port Authority and its employees may hold the respect and confidence of the people of the States of New York and New Jersey; and it is further
RESOLVED, that the activities and decisions of the Port Authority are the
public’s business, and, therefore, the public should have access to the records of the Port Authority to the greatest extent possible, and to that end the Port Authority Freedom of Information Code is hereby adopted; and it is further
RESOLVED, that the resolution of the Board adopted on November 20, 2008,
relating to Freedom of Information (appearing at pages 329 et seq. of the Official Minutes of that date), shall be, and it hereby is, rescinded (except, to the extent applicable, if it is required by existing contracts with third parties); and it is further
RESOLVED, that any paper, written or printed book, document, drawing, map,
plan, photograph, microfilm, data processed or imaged processed document, information stored or maintained electronically or by sound-recording or in a similar device, or any copy thereof, that has been made, generated, maintained, received in the course of transacting official business and kept on file (collectively, “Records”) of the Port Authority shall be made available for public inspection and/or copying, except that such access or copying may be denied as to Records or portions of Records which:
1. federal or state law or regulations or rules or decisions of court render
confidential or privileged or exempt from disclosure, including any Record within the attorney-client privilege, or Records which, if disclosed, would constitute an unwarranted invasion of personal privacy of an individual or individuals, including lists of names and addresses to be used for profit or financial gain, sexual harassment complaints, grievances involving individual employees (filed by or against an employee), personnel, medical or disciplinary records (with Records or portions of Records indicating a Port Authority employee’s compensation, pension, employment and salary history and qualifications as shown on résumés, for example, not exempted), and financial account numbers, including, in addition to Social Security Numbers, bank account, credit card, personal or cell telephone, or driver’s license numbers, and electronic mail addresses; or
2. a. if disclosed, would impair, or give a competitive advantage in
connection with, present or imminent awards or negotiation of collective bargaining agreements, leases, permits, contracts or other agreements, open procurement matters, contracts not yet awarded, unexecuted leases or permits, and portions of scoring or evaluation documents not constituting a part of a final agency action document; or
The Port Authority of New York and New Jersey Exh. 20-3 Project Agreement – Exhibit 20 Goethals Bridge Replacement Project August 30, 2013
b. are trade secrets, or are submitted by or derived from information obtained from a commercial enterprise and which, if disclosed, would cause injury to the competitive position of the subject enterprise, including résumés of individuals submitted by unsuccessful bidders, internal business protocols, systems or strategies specific to the commercial enterprise or to the project, as well as technology or equipment that the unsuccessful bidder has developed; or
3. are compiled for public safety, law enforcement or official investigatory
(internal or external) purposes, when their disclosure may affect public safety, interfere with investigations, audits, law enforcement investigations, or judicial or disciplinary proceedings, or deny or prejudice a right to a fair trial or impartial adjudication, or identify a confidential source or disclose confidential information relating to an audit or an ongoing civil, criminal, or internal or external disciplinary investigation, including any reports, statements, transcripts or recordings related to an ongoing investigation, audit or proceeding; or
4. if disclosed, could endanger the life or safety of any person or jeopardize
the safety and/or security of any facility or information technology system, including drawings, maps, or sketches of nonpublic areas, administrative or technical information regarding computer networks, hardware or software related to security systems, emergency or security plans or procedures for any building or facility, or security or safety procedures or surveillance techniques or details; or
5. are inter-agency or intra-agency advisory, consultative or deliberative
Records, such as recommendations and communications to or from, and discussions among the members of the Board of Commissioners, the Governors of the States of New York and New Jersey and the Port Authority (or the staffs of the foregoing); and inter-agency or intraagency memoranda, draft reports and presentations, or e-mail messages, which are not statistical or factual tabulations of data, with instructions to staff that affect the public or final agency policy or determinations not exempted; or
6. are examination questions or answers which are requested prior to final
administration of such questions; and it is further
RESOLVED, that the Secretary of the Port Authority shall maintain a reasonably detailed current list, by subject matter, of all Records in the possession of the Port Authority, whether or not available hereunder; and shall, under the direction of the Executive Director, administer this Code pursuant to the following procedures:
A. Requests Requests for inspection or copying of Records of the Port Authority may be made to the Secretary of the Port Authority (or the Secretary’s designee) in writing, and may be submitted:
The Port Authority of New York and New Jersey Exh. 20-4 Project Agreement – Exhibit 20 Goethals Bridge Replacement Project August 30, 2013
1. in person, during regular business hours at the Port Authority’s main office; 2. by postal or private delivery, addressed to the Secretary, The Port Authority of New York and New Jersey, at the Port Authority’s main office, Attention: FOI Administrator; 3. by facsimile, addressed to the Secretary, The Port Authority of New York and New Jersey, at the Port Authority’s main office, Attention: FOI Administrator, at the telephone extension designated for this purpose; or 4. by electronic means, such as electronic mail addressed to the Secretary, The Port Authority of New York and New Jersey, Attention: FOI Administrator, at the e-mail address designated for this purpose, or through the Port Authority’s Web site. Requests must contain sufficient information to locate and identify the particular Record(s) sought. Such requests must not be overly broad, but must be as detailed as possible and provide, at a minimum, a clear description of the Record or type of Record being sought. Requests seeking “any and all records” regarding a facility, project, contract, or other activity are overly broad. B. Determination of Availability Within five (5) business days following the receipt of a request, the Secretary of the Port Authority (or the Secretary’s designee) must: 1. make the Record available, in whole or in part; or 2. deny the request; or 3. acknowledge the receipt of the request and provide a written statement to the requester of the approximate date when the request will be granted in whole or in part (or denied). If circumstances prevent a determination of availability from being made within twenty (20) business days from the date of acknowledgement, the Secretary of the Port Authority (or the or the Secretary’s designee) must notify the requester in writing of the reason for the delay and provide a date certain within a reasonable period when the request will be granted in whole or in part. If the request is granted in whole or in part, the person making the request shall be notified that the responsive Record has been posted on the Port Authority’s Web site (including the specific location) and is available for inspection. If the requestor wishes to obtain paper copies of the available responsive Record(s), copies will be made available upon payment of the appropriate fees. If the request is denied, the requester shall be advised in writing of the reasons, including the exemption(s) applied to deny access to the requested Record. If no responsive Records are found, the requester will be notified in writing.
The Port Authority of New York and New Jersey Exh. 20-5 Project Agreement – Exhibit 20 Goethals Bridge Replacement Project August 30, 2013
C. Finality The Determinations made under this Code by the Secretary of the Port Authority (or the Secretary’s designee) shall be final. Any person who is denied access to a Record of the Port Authority may, therefore, seek such judicial recourse as may be available in either State. D. Fees When a request for access to Records is granted, in whole or in part, the responsive Record(s) will be posted on the Port Authority’s Web site (subject to any applicable redactions consistent with this Code). If the requester wishes to personally review the Records, they will be made available for inspection under the supervision of such officers or employees of the Port Authority at such locations and at such times as may be designated by the Secretary of the Port Authority. If a requester seeks tangible, “hard” copies of Records rather than or in addition to access to Records, such Records will be copied by the Port Authority, if practical, for a fee of twenty-five cents (25¢) for each page and five dollars ($5.00) for Records provided in compact disk (or other comparable) format. The Secretary of the Port Authority may modify or establish, from time to time, appropriate fees for producing copies, including copies in other formats, such as when such Records are of unique size or volume or when it may not be practical for the Port Authority to reproduce or make available on the Port Authority’s Web site. In such instances, the requested Record(s) may be reproduced commercially, and the person requesting the copy will be charged for the full cost of such commercial reproduction. A fee of no less than two dollars ($2.00) will be charged for certification as to the authenticity of any document, or that a Record cannot be found. In the event a search for Records requested will require more than one “person hour,” or in the event a search of computer records will require programming that would take more than one “person hour,” the requester will be advised in advance of the anticipated cost, which will be charged based on the labor cost of personnel assigned to conduct the search or programming, as determined for such search by the Secretary of the Port Authority. Following the search, access may be denied to any Records in whole or in part, under the applicable Code exemption(s) regardless of the amount paid for the search. Additionally, payment of the search fee(s) does not guarantee that any Records responsive to the request will be located or if located that such Records responsive to the request will be available for inspection or copying under this Code. When the Port Authority is required to pay a contractor or other third party in possession of Records for purposes of effectuating such Port Authority contract, the Secretary of the Port Authority may establish and charge appropriate fees to defray the Port Authority’s costs for such search. Such fees shall be reasonable and based upon the actual direct cost of obtaining the Records in the possession of the third party. In all cases, the requester shall be advised of the proposed fees in advance. Additionally, payment of the search fee(s) does not guarantee
The Port Authority of New York and New Jersey Exh. 20-6 Project Agreement – Exhibit 20 Goethals Bridge Replacement Project August 30, 2013
that any Record(s) responsive to the request will be located or if located that such Record(s) responsive to the request will be available for inspection or copying under this Code. E. Payment of Fees All fees and costs shall be paid in cash, by certified check, money order or cashier’s check, or by any other means deemed reasonable by the Secretary of the Port Authority. Checks or money orders are to be made payable to “The Port Authority of New York and New Jersey.” Payment must be received in advance of the search or at the time of the delivery for inspection or copying of any records or the Secretary’s certification;
and it is further RESOLVED, that Parts D and E (involving the collection of fees) in the
immediately preceding procedures for administration of this Code shall be and they hereby are suspended for a period extending not later than April 1, 2013, on a pilot or trial basis; and it is further
RESOLVED, that the Port Authority shall review this Code (including the
suspension of fees) from time to time, with the first review no later than April 1, 2013, to ensure compliance with the standards and goals established in connection with transparency and access to Records; and it is further
RESOLVED, that the Executive Director and the Secretary of the Port Authority
be and each hereby is authorized, for and on behalf of the Port Authority, to take such actions with respect to the public inspection and copying of available Records of the Port Authority, consistent with this Code, as may be necessary or appropriate in the best interest of the Port Authority or of the public; and it is further
RESOLVED, that, consistent with Port Authority policies and relevant provisions
of law, information about the business of the Port Authority will continue to be posted on the Port Authority’s Web site, from time to time, irrespective of whether such information is requested under this Code.
The Port Authority of New York and New Jersey Exh. 21-1 Project Agreement – Exhibit 21 Goethals Bridge Replacement Project August 30, 2013
EXHIBIT 21
REQUIREMENTS AND PROVISIONS FOR WORK
[Attached to this Agreement on a separate CD-ROM]
The Port Authority of New York and New Jersey Exh. 22-1 Project Agreement – Exhibit 22 Goethals Bridge Replacement Project August 30, 2013
EXHIBIT 22
[NOT USED]
The Port Authority of New York and New Jersey Exh. 23-1 Project Agreement – Exhibit 23 Goethals Bridge Replacement Project August 30, 2013
EXHIBIT 23
DEVELOPER FINANCING ARRANGEMENTS
ARTICLE I. COMMITMENT AND LOAN
SECTION 1.01 Commitment; the DFA Loan. Subject to the terms and conditions herein, Developer hereby irrevocably commits to advance a term loan to the Authority in an aggregate principal amount equal to the DFA Satisfaction Amount (the “DFA Loan”) on the Substantial Completion Date (the “Borrowing Date”).
SECTION 1.02 Borrowing of the DFA Loan.
Developer and the Authority hereby agree and acknowledge that, for the purposes of this Agreement:
(i) the Authority’s execution and delivery of this Agreement, upon its effectiveness, shall constitute the Authority’s irrevocable request for and consent to the DFA Loan; and
(ii) no other action by the Authority, Developer or any other Person, other than the delivery of the Certificate of Substantial Completion as described in Section 1.02(i) of this Exhibit 23 (Developer Financing Arrangements), shall be required for the making or borrowing of the DFA Loan.
SECTION 1.03 Satisfaction of DFA Satisfaction Amount. Each of the Authority and Developer acknowledges that the DFA Satisfaction Amount and the DFA Loan are equivalent financial amounts, due to be paid by it, respectively, to the other Party on the same date. Accordingly, the Parties agree that neither amount is required to be physically transferred to each other and that each Party will be deemed to have set off the amount due from the other Party against the amount payable to the other Party on the Substantial Completion Date, such that the Authority will have paid the DFA Satisfaction Amount to Developer on the Substantial Completion Date and Developer will have advanced the DFA Loan to the Authority on the Substantial Completion Date. For the avoidance of doubt, the DFA Loan shall remain outstanding and be repaid as set forth herein, including without limitation as set forth in Section 1.04 of this Exhibit 23.
SECTION 1.04 Repayment of the DFA Loan. The Authority hereby promises to pay to Developer, from the sources of payment specified in Section 1.07 of this Exhibit 23 (Developer Financing Arrangements), the principal of the DFA Loan in monthly installments payable on each Payment Date in the amounts set forth and otherwise in accordance with the Loan Amortization Schedule, subject to any set-off of DFA Offset Amounts permitted under Section 1.09.
SECTION 1.05 Interest.
(a) The Authority hereby promises to pay to Developer, from the sources of payment specified in Section 1.07 of this Exhibit 23 (Developer Financing Arrangements), interest on the outstanding principal amount of the DFA Loan, for the period from and including the Borrowing Date to but excluding the Maturity Date, at the DFA Interest Rate. Accrued interest on the DFA
The Port Authority of New York and New Jersey Exh. 23-2 Project Agreement – Exhibit 23 Goethals Bridge Replacement Project August 30, 2013
Loan shall be payable monthly in arrears on each Payment Date in accordance with the Loan Amortization Schedule and shall be computed in accordance with Section 1.08 of this Exhibit 23 (Developer Financing Arrangements).
(b) Notwithstanding the foregoing, the Authority hereby promises to pay to Developer interest on any principal of the DFA Loan and on any unpaid interest thereon that has not been paid when due on the applicable Payment Date, for the period from and including the due date thereof to but excluding the date the same is paid in full, at the Late Payment Rate. Any interest accrued under this Section 1.05(b) of this Exhibit 23 (Developer Financing Arrangements) shall be payable from time to time on demand by Developer.
(c) The Authority shall report all interest payable by it in relation to the DFA Loan to the Internal Revenue Service, to the extent required by, and in accordance with, Section 6041 and 6049 of Internal Revenue Code.
SECTION 1.06 Evidence of Outstanding Amount. Each of Developer and the Authority shall maintain, in accordance with its customary record-keeping practices, records evidencing the outstanding indebtedness of the Authority to Developer resulting from the DFA Loan, including the amounts of principal and interest payable and paid to Developer from time to time hereunder. A transfer, if any, of the right to receive principal and interest required to be paid under this Exhibit 23 (Developer Financing Arrangements), may be effected only with the consent of the Authority and by recordation of such transfer on the records of the Authority, and the Authority shall thereafter maintain the records contemplated by the preceding sentence with respect to the transferee. Each of Developer and the Authority intend that the DFA Loan constitute an obligation that is in “registered form” within the meaning of Section 871(h) of the Internal Revenue Code and the Treasury Regulations promulgated thereunder and shall interpret the provisions of this Section 1.06 in a manner consistent therewith.
SECTION 1.07 Sources of Payment.
(a) The principal of and interest on the DFA Loan are special obligations of the Authority and are payable from the proceeds of obligations of the Authority issued for such purposes, including Consolidated Bonds issued in whole or in part for such purposes, or from Net Revenues deposited to the Consolidated Bond Reserve Fund, and in the event such proceeds or Net Revenues are insufficient therefor, from other moneys of the Authority legally available for such payments when due.
(b) The principal of and interest on the DFA Loan are not payable from the General Reserve Fund and the payment of the principal of and interest on the DFA Loan is subject in all respects to (i) payment of debt service on Consolidated Bonds as required by the applicable provisions of the Consolidated Bond Resolution and (ii) payment into the General Reserve Fund of the amount necessary so as to maintain the General Reserve Fund at the amount specified in the General Reserve Fund Statutes.
(c) For the avoidance of doubt, if the principal of and interest on the DFA Loan are not paid for any reason, including for the reasons set forth in Section 1.07(a) or (b) of this Exhibit 23, such amounts will continue to be owed by the Authority and such amounts shall accrue interest at the Late Payment Rate as set forth in Section 1.05(b) of this Exhibit 23.
The Port Authority of New York and New Jersey Exh. 23-3 Project Agreement – Exhibit 23 Goethals Bridge Replacement Project August 30, 2013
SECTION 1.08 Payments and Computations.
(a) The Authority shall make each payment of principal and interest on the DFA Loan to Developer at the Payment Office on each Payment Date in Dollars in immediately available funds, subject to any set-off of DFA Offset Amounts permitted under Section 1.09 of this Exhibit 23 (Developer Financing Arrangements).
(b) All computations of interest under this Agreement shall be calculated on the basis of a year of three hundred sixty (360) days for the actual number of days elapsed.
(c) Whenever any payment under this Agreement shall be stated to be due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day with the same force and effect as if done on the nominal date provided in or pursuant to this Agreement; provided, however, that with respect to any payment of principal, interest payable thereon under this Agreement shall continue to accrue until the actual date of payment.
(d) Without prejudice to the Authority's rights to terminate this Agreement, the Authority shall not prepay the DFA Loan without the prior written consent of Developer.
SECTION 1.09 DFA Offset Amount; Set-off.
(a) Developer hereby agrees and acknowledges that:
(i) on each Payment Date, the Authority may set off and apply the DFA Offset Amount accrued under this Agreement, in whole or in part, during any period, against any and all of the amounts payable to Developer (or any permitted assignee thereof) under Sections 1.04 and 1.05 of this Exhibit 23 (Developer Financing Arrangements) in accordance with Section 14.3.2 of the Agreement;
(ii) if the aggregate amount of a payment made by the Authority of principal of and interest on the DFA Loan is less than the aggregate amount of principal and interest due on the applicable Payment Date, as reflected on the Loan Amortization Schedule; provided, that the amount due but not paid by the Authority is equal to the then outstanding DFA Offset Amount, or a portion thereof, (A) the Authority’s payment shall be deemed to have paid in full the principal and interest due on such Payment Date, as reflected on the Loan Amortization Schedule, and (B) the Authority’s and Developer’s respective entries in the records maintained pursuant to Section 1.06 of this Exhibit 23 (Developer Financing Arrangements) shall reflect such payment in full; and
(iii) the rights of the Authority under this Section 1.09(a) are in addition to the other rights and remedies the Authority may have with respect to any DFA Offset Amount under the Agreement.
(b) Any disputes between Developer and the Authority regarding the DFA Offset Amount, including any set-off and application thereof pursuant to Section 1.09(a) of this Exhibit 23 (Developer Financing Arrangements), shall be resolved in accordance with Section 14.4 (Disputed Amounts) of the Agreement.
The Port Authority of New York and New Jersey Exh. 23-4 Project Agreement – Exhibit 23 Goethals Bridge Replacement Project August 30, 2013
ARTICLE II. CONDITIONS
SECTION 2.01 Conditions Precedent to the Making of the DFA Loan.
The obligation of Developer to advance the DFA Loan in accordance with Section 1.02 of this Exhibit 23 (Developer Financing Arrangements) shall be subject to the condition precedent that Developer has received the Certificate of Substantial Completion from the Authority, which condition may only be waived by both Developer and the Authority in writing.
ARTICLE III. TERM; TERMINATION
Upon the occurrence of the Early Termination Date:
(a) all outstanding principal of and unpaid interest on the DFA Loan and any other amounts payable by the Authority hereunder on and as of the date of such termination, automatically shall be cancelled and deemed to have been fully paid and discharged forever;
(b) this Exhibit shall cease to have any further effect; and
(c) Developer shall receive the Termination Sum.
The Port Authority of New York and New Jersey Exh. 23-5 Project Agreement – Exhibit 23 Goethals Bridge Replacement Project August 30, 2013
SCHEDULE A
LOAN AMORTIZATION SCHEDULE
This Schedule A is based on the Financial Model submitted with NYNJ Link Partnership’s Financial Proposal and is subject to change based on the interest rate risk sharing mechanism outlined in Section 7.2 of the ITP.
Payment No. Monthly Payment Date
A. DFA Loan Beginning Balance
B. DFA Payment - Interest Portion
C. DFA Payment - Principal Portion
D. DFA Loan Ending Balance (D=A-C)
1 31-Jan-18 968,674,015 4,205,807 (8,057) 968,682,072
2 28-Feb-18 968,682,072 4,205,807 (8,057) 968,690,129
3 31-Mar-18 968,690,129 4,205,807 (8,057) 968,698,186
4 30-Apr-18 968,698,186 4,205,807 (8,057) 968,706,243
5 31-May-18 968,706,243 4,205,807 (8,057) 968,714,300
6 30-Jun-18 968,714,300 4,205,807 (8,057) 968,722,357
7 31-Jul-18 968,722,357 4,275,730 (77,980) 968,800,336
8 31-Aug-18 968,800,336 4,275,730 (77,980) 968,878,316
9 30-Sep-18 968,878,316 4,275,730 (77,980) 968,956,296
10 31-Oct-18 968,956,296 4,275,730 (77,980) 969,034,276
11 30-Nov-18 969,034,276 4,275,730 (77,980) 969,112,255
12 31-Dec-18 969,112,255 4,275,730 (77,980) 969,190,235
13 31-Jan-19 969,190,235 4,208,048 52,668 969,137,567
14 28-Feb-19 969,137,567 4,208,048 52,668 969,084,899
15 31-Mar-19 969,084,899 4,208,048 52,668 969,032,231
16 30-Apr-19 969,032,231 4,208,048 52,668 968,979,563
17 31-May-19 968,979,563 4,208,048 52,668 968,926,895
18 30-Jun-19 968,926,895 4,208,048 52,668 968,874,227
19 31-Jul-19 968,874,227 4,276,400 (15,684) 968,889,911
20 31-Aug-19 968,889,911 4,276,400 (15,684) 968,905,595
21 30-Sep-19 968,905,595 4,276,400 (15,684) 968,921,279
22 31-Oct-19 968,921,279 4,276,400 (15,684) 968,936,963
23 30-Nov-19 968,936,963 4,276,400 (15,684) 968,952,646
24 31-Dec-19 968,952,646 4,276,400 (15,684) 968,968,330
The Port Authority of New York and New Jersey Exh. 23-6 Project Agreement – Exhibit 23 Goethals Bridge Replacement Project August 30, 2013
Payment No. Monthly Payment Date
A. DFA Loan Beginning Balance
B. DFA Payment - Interest Portion
C. DFA Payment - Principal Portion
D. DFA Loan Ending Balance (D=A-C)
25 31-Jan-20 968,968,330 4,230,328 94,299 968,874,032
26 29-Feb-20 968,874,032 4,230,328 94,299 968,779,733
27 31-Mar-20 968,779,733 4,230,328 94,299 968,685,434
28 30-Apr-20 968,685,434 4,230,328 94,299 968,591,136
29 31-May-20 968,591,136 4,230,328 94,299 968,496,837
30 30-Jun-20 968,496,837 4,230,328 94,299 968,402,538
31 31-Jul-20 968,402,538 4,274,318 50,309 968,352,229
32 31-Aug-20 968,352,229 4,274,318 50,309 968,301,921
33 30-Sep-20 968,301,921 4,274,318 50,309 968,251,612
34 31-Oct-20 968,251,612 4,274,318 50,309 968,201,303
35 30-Nov-20 968,201,303 4,274,318 50,309 968,150,994
36 31-Dec-20 968,150,994 4,274,318 50,309 968,100,685
37 31-Jan-21 968,100,685 4,203,318 186,179 967,914,506
38 28-Feb-21 967,914,506 4,203,318 186,179 967,728,328
39 31-Mar-21 967,728,328 4,203,318 186,179 967,542,149
40 30-Apr-21 967,542,149 4,203,318 186,179 967,355,970
41 31-May-21 967,355,970 4,203,318 186,179 967,169,791
42 30-Jun-21 967,169,791 4,203,318 186,179 966,983,613
43 31-Jul-21 966,983,613 4,268,055 121,441 966,862,171
44 31-Aug-21 966,862,171 4,268,055 121,441 966,740,730
45 30-Sep-21 966,740,730 4,268,055 121,441 966,619,289
46 31-Oct-21 966,619,289 4,268,055 121,441 966,497,848
47 30-Nov-21 966,497,848 4,268,055 121,441 966,376,407
48 31-Dec-21 966,376,407 4,268,055 121,441 966,254,966
49 31-Jan-22 966,254,966 4,195,304 260,035 965,994,931
50 28-Feb-22 965,994,931 4,195,304 260,035 965,734,896
51 31-Mar-22 965,734,896 4,195,304 260,035 965,474,861
52 30-Apr-22 965,474,861 4,195,304 260,035 965,214,826
53 31-May-22 965,214,826 4,195,304 260,035 964,954,791
54 30-Jun-22 964,954,791 4,195,304 260,035 964,694,756
The Port Authority of New York and New Jersey Exh. 23-7 Project Agreement – Exhibit 23 Goethals Bridge Replacement Project August 30, 2013
Payment No. Monthly Payment Date
A. DFA Loan Beginning Balance
B. DFA Payment - Interest Portion
C. DFA Payment - Principal Portion
D. DFA Loan Ending Balance (D=A-C)
55 31-Jul-22 964,694,756 4,257,953 197,386 964,497,370
56 31-Aug-22 964,497,370 4,257,953 197,386 964,299,984
57 30-Sep-22 964,299,984 4,257,953 197,386 964,102,598
58 31-Oct-22 964,102,598 4,257,953 197,386 963,905,212
59 30-Nov-22 963,905,212 4,257,953 197,386 963,707,826
60 31-Dec-22 963,707,826 4,257,953 197,386 963,510,440
61 31-Jan-23 963,510,440 4,183,388 338,781 963,171,659
62 28-Feb-23 963,171,659 4,183,388 338,781 962,832,877
63 31-Mar-23 962,832,877 4,183,388 338,781 962,494,096
64 30-Apr-23 962,494,096 4,183,388 338,781 962,155,315
65 31-May-23 962,155,315 4,183,388 338,781 961,816,533
66 30-Jun-23 961,816,533 4,183,388 338,781 961,477,752
67 31-Jul-23 961,477,752 4,243,754 278,415 961,199,337
68 31-Aug-23 961,199,337 4,243,754 278,415 960,920,921
69 30-Sep-23 960,920,921 4,243,754 278,415 960,642,506
70 31-Oct-23 960,642,506 4,243,754 278,415 960,364,091
71 30-Nov-23 960,364,091 4,243,754 278,415 960,085,676
72 31-Dec-23 960,085,676 4,243,754 278,415 959,807,260
73 31-Jan-24 959,807,260 4,190,333 399,669 959,407,592
74 29-Feb-24 959,407,592 4,190,333 399,669 959,007,923
75 31-Mar-24 959,007,923 4,190,333 399,669 958,608,255
76 30-Apr-24 958,608,255 4,190,333 399,669 958,208,586
77 31-May-24 958,208,586 4,190,333 399,669 957,808,917
78 30-Jun-24 957,808,917 4,190,333 399,669 957,409,249
79 31-Jul-24 957,409,249 4,225,796 364,205 957,045,044
80 31-Aug-24 957,045,044 4,225,796 364,205 956,680,838
81 30-Sep-24 956,680,838 4,225,796 364,205 956,316,633
82 31-Oct-24 956,316,633 4,225,796 364,205 955,952,428
83 30-Nov-24 955,952,428 4,225,796 364,205 955,588,222
84 31-Dec-24 955,588,222 4,225,796 364,205 955,224,017
The Port Authority of New York and New Jersey Exh. 23-8 Project Agreement – Exhibit 23 Goethals Bridge Replacement Project August 30, 2013
Payment No. Monthly Payment Date
A. DFA Loan Beginning Balance
B. DFA Payment - Interest Portion
C. DFA Payment - Principal Portion
D. DFA Loan Ending Balance (D=A-C)
85 31-Jan-25 955,224,017 4,147,409 511,442 954,712,575
86 28-Feb-25 954,712,575 4,147,409 511,442 954,201,133
87 31-Mar-25 954,201,133 4,147,409 511,442 953,689,691
88 30-Apr-25 953,689,691 4,147,409 511,442 953,178,249
89 31-May-25 953,178,249 4,147,409 511,442 952,666,807
90 30-Jun-25 952,666,807 4,147,409 511,442 952,155,365
91 31-Jul-25 952,155,365 4,202,607 456,245 951,699,120
92 31-Aug-25 951,699,120 4,202,607 456,245 951,242,875
93 30-Sep-25 951,242,875 4,202,607 456,245 950,786,631
94 31-Oct-25 950,786,631 4,202,607 456,245 950,330,386
95 30-Nov-25 950,330,386 4,202,607 456,245 949,874,141
96 31-Dec-25 949,874,141 4,202,607 456,245 949,417,896
97 31-Jan-26 949,417,896 4,122,200 606,534 948,811,362
98 28-Feb-26 948,811,362 4,122,200 606,534 948,204,828
99 31-Mar-26 948,204,828 4,122,200 606,534 947,598,294
100 30-Apr-26 947,598,294 4,122,200 606,534 946,991,760
101 31-May-26 946,991,760 4,122,200 606,534 946,385,227
102 30-Jun-26 946,385,227 4,122,200 606,534 945,778,693
103 31-Jul-26 945,778,693 4,174,461 554,273 945,224,420
104 31-Aug-26 945,224,420 4,174,461 554,273 944,670,147
105 30-Sep-26 944,670,147 4,174,461 554,273 944,115,874
106 31-Oct-26 944,115,874 4,174,461 554,273 943,561,601
107 30-Nov-26 943,561,601 4,174,461 554,273 943,007,329
108 31-Dec-26 943,007,329 4,174,461 554,273 942,453,056
109 31-Jan-27 942,453,056 4,091,960 707,705 941,745,351
110 28-Feb-27 941,745,351 4,091,960 707,705 941,037,646
111 31-Mar-27 941,037,646 4,091,960 707,705 940,329,941
112 30-Apr-27 940,329,941 4,091,960 707,705 939,622,236
113 31-May-27 939,622,236 4,091,960 707,705 938,914,531
114 30-Jun-27 938,914,531 4,091,960 707,705 938,206,826
The Port Authority of New York and New Jersey Exh. 23-9 Project Agreement – Exhibit 23 Goethals Bridge Replacement Project August 30, 2013
Payment No. Monthly Payment Date
A. DFA Loan Beginning Balance
B. DFA Payment - Interest Portion
C. DFA Payment - Principal Portion
D. DFA Loan Ending Balance (D=A-C)
115 31-Jul-27 938,206,826 4,141,041 658,624 937,548,201
116 31-Aug-27 937,548,201 4,141,041 658,624 936,889,577
117 30-Sep-27 936,889,577 4,141,041 658,624 936,230,952
118 31-Oct-27 936,230,952 4,141,041 658,624 935,572,328
119 30-Nov-27 935,572,328 4,141,041 658,624 934,913,704
120 31-Dec-27 934,913,704 4,141,041 658,624 934,255,079
121 31-Jan-28 934,255,079 4,078,777 792,883 933,462,196
122 29-Feb-28 933,462,196 4,078,777 792,883 932,669,313
123 31-Mar-28 932,669,313 4,078,777 792,883 931,876,429
124 30-Apr-28 931,876,429 4,078,777 792,883 931,083,546
125 31-May-28 931,083,546 4,078,777 792,883 930,290,663
126 30-Jun-28 930,290,663 4,078,777 792,883 929,497,780
127 31-Jul-28 929,497,780 4,102,601 769,059 928,728,720
128 31-Aug-28 928,728,720 4,102,601 769,059 927,959,661
129 30-Sep-28 927,959,661 4,102,601 769,059 927,190,602
130 31-Oct-28 927,190,602 4,102,601 769,059 926,421,543
131 30-Nov-28 926,421,543 4,102,601 769,059 925,652,483
132 31-Dec-28 925,652,483 4,102,601 769,059 924,883,424
133 31-Jan-29 924,883,424 4,015,676 929,059 923,954,365
134 28-Feb-29 923,954,365 4,015,676 929,059 923,025,306
135 31-Mar-29 923,025,306 4,015,676 929,059 922,096,247
136 30-Apr-29 922,096,247 4,015,676 929,059 921,167,188
137 31-May-29 921,167,188 4,015,676 929,059 920,238,129
138 30-Jun-29 920,238,129 4,015,676 929,059 919,309,070
139 31-Jul-29 919,309,070 4,057,630 887,105 918,421,965
140 31-Aug-29 918,421,965 4,057,630 887,105 917,534,860
141 30-Sep-29 917,534,860 4,057,630 887,105 916,647,755
142 31-Oct-29 916,647,755 4,057,630 887,105 915,760,650
143 30-Nov-29 915,760,650 4,057,630 887,105 914,873,546
144 31-Dec-29 914,873,546 4,057,630 887,105 913,986,441
The Port Authority of New York and New Jersey Exh. 23-10 Project Agreement – Exhibit 23 Goethals Bridge Replacement Project August 30, 2013
Payment No. Monthly Payment Date
A. DFA Loan Beginning Balance
B. DFA Payment - Interest Portion
C. DFA Payment - Principal Portion
D. DFA Loan Ending Balance (D=A-C)
145 31-Jan-30 913,986,441 3,968,363 1,050,543 912,935,898
146 28-Feb-30 912,935,898 3,968,363 1,050,543 911,885,355
147 31-Mar-30 911,885,355 3,968,363 1,050,543 910,834,812
148 30-Apr-30 910,834,812 3,968,363 1,050,543 909,784,269
149 31-May-30 909,784,269 3,968,363 1,050,543 908,733,727
150 30-Jun-30 908,733,727 3,968,363 1,050,543 907,683,184
151 31-Jul-30 907,683,184 4,006,316 1,012,590 906,670,594
152 31-Aug-30 906,670,594 4,006,316 1,012,590 905,658,004
153 30-Sep-30 905,658,004 4,006,316 1,012,590 904,645,414
154 31-Oct-30 904,645,414 4,006,316 1,012,590 903,632,824
155 30-Nov-30 903,632,824 4,006,316 1,012,590 902,620,234
156 31-Dec-30 902,620,234 4,006,316 1,012,590 901,607,644
157 31-Jan-31 901,607,644 3,914,617 1,179,573 900,428,071
158 28-Feb-31 900,428,071 3,914,617 1,179,573 899,248,498
159 31-Mar-31 899,248,498 3,914,617 1,179,573 898,068,925
160 30-Apr-31 898,068,925 3,914,617 1,179,573 896,889,352
161 31-May-31 896,889,352 3,914,617 1,179,573 895,709,779
162 30-Jun-31 895,709,779 3,914,617 1,179,573 894,530,206
163 31-Jul-31 894,530,206 3,948,262 1,145,928 893,384,278
164 31-Aug-31 893,384,278 3,948,262 1,145,928 892,238,350
165 30-Sep-31 892,238,350 3,948,262 1,145,928 891,092,422
166 31-Oct-31 891,092,422 3,948,262 1,145,928 889,946,494
167 30-Nov-31 889,946,494 3,948,262 1,145,928 888,800,566
168 31-Dec-31 888,800,566 3,948,262 1,145,928 887,654,638
169 31-Jan-32 887,654,638 3,875,328 1,295,274 886,359,364
170 29-Feb-32 886,359,364 3,875,328 1,295,274 885,064,090
171 31-Mar-32 885,064,090 3,875,328 1,295,274 883,768,816
172 30-Apr-32 883,768,816 3,875,328 1,295,274 882,473,542
173 31-May-32 882,473,542 3,875,328 1,295,274 881,178,268
174 30-Jun-32 881,178,268 3,875,328 1,295,274 879,882,993
The Port Authority of New York and New Jersey Exh. 23-11 Project Agreement – Exhibit 23 Goethals Bridge Replacement Project August 30, 2013
Payment No. Monthly Payment Date
A. DFA Loan Beginning Balance
B. DFA Payment - Interest Portion
C. DFA Payment - Principal Portion
D. DFA Loan Ending Balance (D=A-C)
175 31-Jul-32 879,882,993 3,883,612 1,286,990 878,596,003
176 31-Aug-32 878,596,003 3,883,612 1,286,990 877,309,012
177 30-Sep-32 877,309,012 3,883,612 1,286,990 876,022,022
178 31-Oct-32 876,022,022 3,883,612 1,286,990 874,735,032
179 30-Nov-32 874,735,032 3,883,612 1,286,990 873,448,041
180 31-Dec-32 873,448,041 3,883,612 1,286,990 872,161,051
181 31-Jan-33 872,161,051 3,786,765 1,461,397 870,699,654
182 28-Feb-33 870,699,654 3,786,765 1,461,397 869,238,258
183 31-Mar-33 869,238,258 3,786,765 1,461,397 867,776,861
184 30-Apr-33 867,776,861 3,786,765 1,461,397 866,315,464
185 31-May-33 866,315,464 3,786,765 1,461,397 864,854,068
186 30-Jun-33 864,854,068 3,786,765 1,461,397 863,392,671
187 31-Jul-33 863,392,671 3,810,827 1,437,334 861,955,337
188 31-Aug-33 861,955,337 3,810,827 1,437,334 860,518,003
189 30-Sep-33 860,518,003 3,810,827 1,437,334 859,080,669
190 31-Oct-33 859,080,669 3,810,827 1,437,334 857,643,335
191 30-Nov-33 857,643,335 3,810,827 1,437,334 856,206,000
192 31-Dec-33 856,206,000 3,810,827 1,437,334 854,768,666
193 31-Jan-34 854,768,666 3,711,251 1,615,634 853,153,033
194 28-Feb-34 853,153,033 3,711,251 1,615,634 851,537,399
195 31-Mar-34 851,537,399 3,711,251 1,615,634 849,921,766
196 30-Apr-34 849,921,766 3,711,251 1,615,634 848,306,132
197 31-May-34 848,306,132 3,711,251 1,615,634 846,690,498
198 30-Jun-34 846,690,498 3,711,251 1,615,634 845,074,865
199 31-Jul-34 845,074,865 3,729,977 1,596,907 843,477,957
200 31-Aug-34 843,477,957 3,729,977 1,596,907 841,881,050
201 30-Sep-34 841,881,050 3,729,977 1,596,907 840,284,143
202 31-Oct-34 840,284,143 3,729,977 1,596,907 838,687,235
203 30-Nov-34 838,687,235 3,729,977 1,596,907 837,090,328
204 31-Dec-34 837,090,328 3,729,977 1,596,907 835,493,420
The Port Authority of New York and New Jersey Exh. 23-12 Project Agreement – Exhibit 23 Goethals Bridge Replacement Project August 30, 2013
Payment No. Monthly Payment Date
A. DFA Loan Beginning Balance
B. DFA Payment - Interest Portion
C. DFA Payment - Principal Portion
D. DFA Loan Ending Balance (D=A-C)
205 31-Jan-35 835,493,420 3,627,561 1,779,226 833,714,194
206 28-Feb-35 833,714,194 3,627,561 1,779,226 831,934,967
207 31-Mar-35 831,934,967 3,627,561 1,779,226 830,155,741
208 30-Apr-35 830,155,741 3,627,561 1,779,226 828,376,514
209 31-May-35 828,376,514 3,627,561 1,779,226 826,597,288
210 30-Jun-35 826,597,288 3,627,561 1,779,226 824,818,062
211 31-Jul-35 824,818,062 3,640,568 1,766,220 823,051,842
212 31-Aug-35 823,051,842 3,640,568 1,766,220 821,285,622
213 30-Sep-35 821,285,622 3,640,568 1,766,220 819,519,402
214 31-Oct-35 819,519,402 3,640,568 1,766,220 817,753,182
215 30-Nov-35 817,753,182 3,640,568 1,766,220 815,986,963
216 31-Dec-35 815,986,963 3,640,568 1,766,220 814,220,743
217 31-Jan-36 814,220,743 3,554,730 1,933,159 812,287,584
218 29-Feb-36 812,287,584 3,554,730 1,933,159 810,354,425
219 31-Mar-36 810,354,425 3,554,730 1,933,159 808,421,266
220 30-Apr-36 808,421,266 3,554,730 1,933,159 806,488,107
221 31-May-36 806,488,107 3,554,730 1,933,159 804,554,948
222 30-Jun-36 804,554,948 3,554,730 1,933,159 802,621,790
223 31-Jul-36 802,621,790 3,542,598 1,945,291 800,676,498
224 31-Aug-36 800,676,498 3,542,598 1,945,291 798,731,207
225 30-Sep-36 798,731,207 3,542,598 1,945,291 796,785,916
226 31-Oct-36 796,785,916 3,542,598 1,945,291 794,840,625
227 30-Nov-36 794,840,625 3,542,598 1,945,291 792,895,334
228 31-Dec-36 792,895,334 3,542,598 1,945,291 790,950,043
229 31-Jan-37 790,950,043 3,434,162 2,136,046 788,813,997
230 28-Feb-37 788,813,997 3,434,162 2,136,046 786,677,951
231 31-Mar-37 786,677,951 3,434,162 2,136,046 784,541,905
232 30-Apr-37 784,541,905 3,434,162 2,136,046 782,405,859
233 31-May-37 782,405,859 3,434,162 2,136,046 780,269,813
234 30-Jun-37 780,269,813 3,434,162 2,136,046 778,133,768
The Port Authority of New York and New Jersey Exh. 23-13 Project Agreement – Exhibit 23 Goethals Bridge Replacement Project August 30, 2013
Payment No. Monthly Payment Date
A. DFA Loan Beginning Balance
B. DFA Payment - Interest Portion
C. DFA Payment - Principal Portion
D. DFA Loan Ending Balance (D=A-C)
235 31-Jul-37 778,133,768 3,434,513 2,135,694 775,998,073
236 31-Aug-37 775,998,073 3,434,513 2,135,694 773,862,379
237 30-Sep-37 773,862,379 3,434,513 2,135,694 771,726,685
238 31-Oct-37 771,726,685 3,434,513 2,135,694 769,590,990
239 30-Nov-37 769,590,990 3,434,513 2,135,694 767,455,296
240 31-Dec-37 767,455,296 3,434,513 2,135,694 765,319,602
241 31-Jan-38 765,319,602 3,322,879 2,330,882 762,988,720
242 28-Feb-38 762,988,720 3,322,879 2,330,882 760,657,838
243 31-Mar-38 760,657,838 3,322,879 2,330,882 758,326,957
244 30-Apr-38 758,326,957 3,322,879 2,330,882 755,996,075
245 31-May-38 755,996,075 3,322,879 2,330,882 753,665,193
246 30-Jun-38 753,665,193 3,322,879 2,330,882 751,334,312
247 31-Jul-38 751,334,312 3,316,226 2,337,534 748,996,777
248 31-Aug-38 748,996,777 3,316,226 2,337,534 746,659,243
249 30-Sep-38 746,659,243 3,316,226 2,337,534 744,321,709
250 31-Oct-38 744,321,709 3,316,226 2,337,534 741,984,174
251 30-Nov-38 741,984,174 3,316,226 2,337,534 739,646,640
252 31-Dec-38 739,646,640 3,316,226 2,337,534 737,309,105
253 31-Jan-39 737,309,105 3,201,262 2,537,305 734,771,801
254 28-Feb-39 734,771,801 3,201,262 2,537,305 732,234,496
255 31-Mar-39 732,234,496 3,201,262 2,537,305 729,697,192
256 30-Apr-39 729,697,192 3,201,262 2,537,305 727,159,887
257 31-May-39 727,159,887 3,201,262 2,537,305 724,622,582
258 30-Jun-39 724,622,582 3,201,262 2,537,305 722,085,278
259 31-Jul-39 722,085,278 3,187,127 2,551,440 719,533,838
260 31-Aug-39 719,533,838 3,187,127 2,551,440 716,982,399
261 30-Sep-39 716,982,399 3,187,127 2,551,440 714,430,959
262 31-Oct-39 714,430,959 3,187,127 2,551,440 711,879,519
263 30-Nov-39 711,879,519 3,187,127 2,551,440 709,328,080
264 31-Dec-39 709,328,080 3,187,127 2,551,440 706,776,640
The Port Authority of New York and New Jersey Exh. 23-14 Project Agreement – Exhibit 23 Goethals Bridge Replacement Project August 30, 2013
Payment No. Monthly Payment Date
A. DFA Loan Beginning Balance
B. DFA Payment - Interest Portion
C. DFA Payment - Principal Portion
D. DFA Loan Ending Balance (D=A-C)
265 31-Jan-40 706,776,640 3,085,650 2,738,995 704,037,645
266 29-Feb-40 704,037,645 3,085,650 2,738,995 701,298,649
267 31-Mar-40 701,298,649 3,085,650 2,738,995 698,559,654
268 30-Apr-40 698,559,654 3,085,650 2,738,995 695,820,658
269 31-May-40 695,820,658 3,085,650 2,738,995 693,081,663
270 30-Jun-40 693,081,663 3,085,650 2,738,995 690,342,668
271 31-Jul-40 690,342,668 3,047,022 2,777,623 687,565,044
272 31-Aug-40 687,565,044 3,047,022 2,777,623 684,787,421
273 30-Sep-40 684,787,421 3,047,022 2,777,623 682,009,798
274 31-Oct-40 682,009,798 3,047,022 2,777,623 679,232,175
275 30-Nov-40 679,232,175 3,047,022 2,777,623 676,454,552
276 31-Dec-40 676,454,552 3,047,022 2,777,623 673,676,929
277 31-Jan-41 673,676,929 2,924,983 2,987,032 670,689,897
278 28-Feb-41 670,689,897 2,924,983 2,987,032 667,702,864
279 31-Mar-41 667,702,864 2,924,983 2,987,032 664,715,832
280 30-Apr-41 664,715,832 2,924,983 2,987,032 661,728,800
281 31-May-41 661,728,800 2,924,983 2,987,032 658,741,768
282 30-Jun-41 658,741,768 2,924,983 2,987,032 655,754,736
283 31-Jul-41 655,754,736 2,894,359 3,017,656 652,737,079
284 31-Aug-41 652,737,079 2,894,359 3,017,656 649,719,423
285 30-Sep-41 649,719,423 2,894,359 3,017,656 646,701,767
286 31-Oct-41 646,701,767 2,894,359 3,017,656 643,684,110
287 30-Nov-41 643,684,110 2,894,359 3,017,656 640,666,454
288 31-Dec-41 640,666,454 2,894,359 3,017,656 637,648,797
289 31-Jan-42 637,648,797 2,768,555 3,232,140 634,416,657
290 28-Feb-42 634,416,657 2,768,555 3,232,140 631,184,517
291 31-Mar-42 631,184,517 2,768,555 3,232,140 627,952,377
292 30-Apr-42 627,952,377 2,768,555 3,232,140 624,720,237
293 31-May-42 624,720,237 2,768,555 3,232,140 621,488,097
294 30-Jun-42 621,488,097 2,768,555 3,232,140 618,255,957
The Port Authority of New York and New Jersey Exh. 23-15 Project Agreement – Exhibit 23 Goethals Bridge Replacement Project August 30, 2013
Payment No. Monthly Payment Date
A. DFA Loan Beginning Balance
B. DFA Payment - Interest Portion
C. DFA Payment - Principal Portion
D. DFA Loan Ending Balance (D=A-C)
295 31-Jul-42 618,255,957 2,728,847 3,271,848 614,984,109
296 31-Aug-42 614,984,109 2,728,847 3,271,848 611,712,261
297 30-Sep-42 611,712,261 2,728,847 3,271,848 608,440,413
298 31-Oct-42 608,440,413 2,728,847 3,271,848 605,168,565
299 30-Nov-42 605,168,565 2,728,847 3,271,848 601,896,717
300 31-Dec-42 601,896,717 2,728,847 3,271,848 598,624,869
301 31-Jan-43 598,624,869 2,599,121 3,491,585 595,133,283
302 28-Feb-43 595,133,283 2,599,121 3,491,585 591,641,698
303 31-Mar-43 591,641,698 2,599,121 3,491,585 588,150,113
304 30-Apr-43 588,150,113 2,599,121 3,491,585 584,658,528
305 31-May-43 584,658,528 2,599,121 3,491,585 581,166,942
306 30-Jun-43 581,166,942 2,599,121 3,491,585 577,675,357
307 31-Jul-43 577,675,357 2,549,733 3,540,972 574,134,385
308 31-Aug-43 574,134,385 2,549,733 3,540,972 570,593,412
309 30-Sep-43 570,593,412 2,549,733 3,540,972 567,052,440
310 31-Oct-43 567,052,440 2,549,733 3,540,972 563,511,467
311 30-Nov-43 563,511,467 2,549,733 3,540,972 559,970,495
312 31-Dec-43 559,970,495 2,549,733 3,540,972 556,429,522
313 31-Jan-44 556,429,522 2,429,264 3,752,803 552,676,720
314 29-Feb-44 552,676,720 2,429,264 3,752,803 548,923,917
315 31-Mar-44 548,923,917 2,429,264 3,752,803 545,171,114
316 30-Apr-44 545,171,114 2,429,264 3,752,803 541,418,311
317 31-May-44 541,418,311 2,429,264 3,752,803 537,665,508
318 30-Jun-44 537,665,508 2,429,264 3,752,803 533,912,706
319 31-Jul-44 533,912,706 2,356,575 3,825,492 530,087,214
320 31-Aug-44 530,087,214 2,356,575 3,825,492 526,261,722
321 30-Sep-44 526,261,722 2,356,575 3,825,492 522,436,230
322 31-Oct-44 522,436,230 2,356,575 3,825,492 518,610,738
323 30-Nov-44 518,610,738 2,356,575 3,825,492 514,785,246
324 31-Dec-44 514,785,246 2,356,575 3,825,492 510,959,754
The Port Authority of New York and New Jersey Exh. 23-16 Project Agreement – Exhibit 23 Goethals Bridge Replacement Project August 30, 2013
Payment No. Monthly Payment Date
A. DFA Loan Beginning Balance
B. DFA Payment - Interest Portion
C. DFA Payment - Principal Portion
D. DFA Loan Ending Balance (D=A-C)
325 31-Jan-45 510,959,754 2,218,495 4,056,303 506,903,451
326 28-Feb-45 506,903,451 2,218,495 4,056,303 502,847,149
327 31-Mar-45 502,847,149 2,218,495 4,056,303 498,790,846
328 30-Apr-45 498,790,846 2,218,495 4,056,303 494,734,543
329 31-May-45 494,734,543 2,218,495 4,056,303 490,678,240
330 30-Jun-45 490,678,240 2,218,495 4,056,303 486,621,937
331 31-Jul-45 486,621,937 2,147,843 4,126,954 482,494,983
332 31-Aug-45 482,494,983 2,147,843 4,126,954 478,368,029
333 30-Sep-45 478,368,029 2,147,843 4,126,954 474,241,075
334 31-Oct-45 474,241,075 2,147,843 4,126,954 470,114,121
335 30-Nov-45 470,114,121 2,147,843 4,126,954 465,987,167
336 31-Dec-45 465,987,167 2,147,843 4,126,954 461,860,213
337 31-Jan-46 461,860,213 2,005,313 4,363,606 457,496,607
338 28-Feb-46 457,496,607 2,005,313 4,363,606 453,133,001
339 31-Mar-46 453,133,001 2,005,313 4,363,606 448,769,395
340 30-Apr-46 448,769,395 2,005,313 4,363,606 444,405,788
341 31-May-46 444,405,788 2,005,313 4,363,606 440,042,182
342 30-Jun-46 440,042,182 2,005,313 4,363,606 435,678,576
343 31-Jul-46 435,678,576 1,922,990 4,445,929 431,232,647
344 31-Aug-46 431,232,647 1,922,990 4,445,929 426,786,718
345 30-Sep-46 426,786,718 1,922,990 4,445,929 422,340,789
346 31-Oct-46 422,340,789 1,922,990 4,445,929 417,894,860
347 30-Nov-46 417,894,860 1,922,990 4,445,929 413,448,931
348 31-Dec-46 413,448,931 1,922,990 4,445,929 409,003,003
349 31-Jan-47 409,003,003 1,775,817 4,688,636 404,314,366
350 28-Feb-47 404,314,366 1,775,817 4,688,636 399,625,730
351 31-Mar-47 399,625,730 1,775,817 4,688,636 394,937,094
352 30-Apr-47 394,937,094 1,775,817 4,688,636 390,248,457
353 31-May-47 390,248,457 1,775,817 4,688,636 385,559,821
354 30-Jun-47 385,559,821 1,775,817 4,688,636 380,871,185
The Port Authority of New York and New Jersey Exh. 23-17 Project Agreement – Exhibit 23 Goethals Bridge Replacement Project August 30, 2013
Payment No. Monthly Payment Date
A. DFA Loan Beginning Balance
B. DFA Payment - Interest Portion
C. DFA Payment - Principal Portion
D. DFA Loan Ending Balance (D=A-C)
355 31-Jul-47 380,871,185 1,681,083 4,783,371 376,087,814
356 31-Aug-47 376,087,814 1,681,083 4,783,371 371,304,443
357 30-Sep-47 371,304,443 1,681,083 4,783,371 366,521,073
358 31-Oct-47 366,521,073 1,681,083 4,783,371 361,737,702
359 30-Nov-47 361,737,702 1,681,083 4,783,371 356,954,331
360 31-Dec-47 356,954,331 1,681,083 4,783,371 352,170,961
361 31-Jan-48 352,170,961 1,537,510 5,023,910 347,147,051
362 29-Feb-48 347,147,051 1,537,510 5,023,910 342,123,141
363 31-Mar-48 342,123,141 1,537,510 5,023,910 337,099,232
364 30-Apr-48 337,099,232 1,537,510 5,023,910 332,075,322
365 31-May-48 332,075,322 1,537,510 5,023,910 327,051,412
366 30-Jun-48 327,051,412 1,537,510 5,023,910 322,027,503
367 31-Jul-48 322,027,503 1,421,359 5,140,061 316,887,442
368 31-Aug-48 316,887,442 1,421,359 5,140,061 311,747,381
369 30-Sep-48 311,747,381 1,421,359 5,140,061 306,607,321
370 31-Oct-48 306,607,321 1,421,359 5,140,061 301,467,260
371 30-Nov-48 301,467,260 1,421,359 5,140,061 296,327,199
372 31-Dec-48 296,327,199 1,421,359 5,140,061 291,187,139
373 31-Jan-49 291,187,139 1,264,282 5,395,560 285,791,579
374 28-Feb-49 285,791,579 1,264,282 5,395,560 280,396,020
375 31-Mar-49 280,396,020 1,264,282 5,395,560 275,000,460
376 30-Apr-49 275,000,460 1,264,282 5,395,560 269,604,901
377 31-May-49 269,604,901 1,264,282 5,395,560 264,209,341
378 30-Jun-49 264,209,341 1,264,282 5,395,560 258,813,781
379 31-Jul-49 258,813,781 1,142,348 5,517,494 253,296,288
380 31-Aug-49 253,296,288 1,142,348 5,517,494 247,778,794
381 30-Sep-49 247,778,794 1,142,348 5,517,494 242,261,301
382 31-Oct-49 242,261,301 1,142,348 5,517,494 236,743,807
383 30-Nov-49 236,743,807 1,142,348 5,517,494 231,226,314
384 31-Dec-49 231,226,314 1,142,348 5,517,494 225,708,820
The Port Authority of New York and New Jersey Exh. 23-18 Project Agreement – Exhibit 23 Goethals Bridge Replacement Project August 30, 2013
Payment No. Monthly Payment Date
A. DFA Loan Beginning Balance
B. DFA Payment - Interest Portion
C. DFA Payment - Principal Portion
D. DFA Loan Ending Balance (D=A-C)
385 31-Jan-50 225,708,820 979,987 5,779,752 219,929,068
386 28-Feb-50 219,929,068 979,987 5,779,752 214,149,316
387 31-Mar-50 214,149,316 979,987 5,779,752 208,369,564
388 30-Apr-50 208,369,564 979,987 5,779,752 202,589,811
389 31-May-50 202,589,811 979,987 5,779,752 196,810,059
390 30-Jun-50 196,810,059 979,987 5,779,752 191,030,307
391 31-Jul-50 191,030,307 843,166 5,916,573 185,113,735
392 31-Aug-50 185,113,735 843,166 5,916,573 179,197,162
393 30-Sep-50 179,197,162 843,166 5,916,573 173,280,589
394 31-Oct-50 173,280,589 843,166 5,916,573 167,364,016
395 30-Nov-50 167,364,016 843,166 5,916,573 161,447,444
396 31-Dec-50 161,447,444 843,166 5,916,573 155,530,871
397 31-Jan-51 155,530,871 675,287 6,185,848 149,345,023
398 28-Feb-51 149,345,023 675,287 6,185,848 143,159,175
399 31-Mar-51 143,159,175 675,287 6,185,848 136,973,327
400 30-Apr-51 136,973,327 675,287 6,185,848 130,787,478
401 31-May-51 130,787,478 675,287 6,185,848 124,601,630
402 30-Jun-51 124,601,630 675,287 6,185,848 118,415,782
403 31-Jul-51 118,415,782 522,662 6,338,473 112,077,309
404 31-Aug-51 112,077,309 522,662 6,338,473 105,738,835
405 30-Sep-51 105,738,835 522,662 6,338,473 99,400,362
406 31-Oct-51 99,400,362 522,662 6,338,473 93,061,888
407 30-Nov-51 93,061,888 522,662 6,338,473 86,723,415
408 31-Dec-51 86,723,415 522,662 6,338,473 80,384,941
409 31-Jan-52 80,384,941 350,945 6,613,107 73,771,834
410 29-Feb-52 73,771,834 350,945 6,613,107 67,158,727
411 31-Mar-52 67,158,727 350,945 6,613,107 60,545,620
412 30-Apr-52 60,545,620 350,945 6,613,107 53,932,513
413 31-May-52 53,932,513 350,945 6,613,107 47,319,407
414 30-Jun-52 47,319,407 350,945 6,613,107 40,706,300
The Port Authority of New York and New Jersey Exh. 23-19 Project Agreement – Exhibit 23 Goethals Bridge Replacement Project August 30, 2013
Payment No. Monthly Payment Date
A. DFA Loan Beginning Balance
B. DFA Payment - Interest Portion
C. DFA Payment - Principal Portion
D. DFA Loan Ending Balance (D=A-C)
415 31-Jul-52 40,706,300 179,669 6,784,383 33,921,916
416 31-Aug-52 33,921,916 179,669 6,784,383 27,137,533
417 30-Sep-52 27,137,533 179,669 6,784,383 20,353,150
418 31-Oct-52 20,353,150 179,669 6,784,383 13,568,767
419 30-Nov-52 13,568,767 179,669 6,784,383 6,784,383
420 31-Dec-52 6,784,383 179,669 6,784,383 (0)
The Port Authority of New York and New Jersey Exh. 24-1 Project Agreement – Exhibit 24 Goethals Bridge Replacement Project August 30, 2013
EXHIBIT 24
EXTRA WORK COSTS
ARTICLE 1
1.1 For Extra Work consisting of Design Work, an amount equal to the salaries paid to technical employees for time actually spent in performing such services, plus one hundred forty-five percent (145%) of the portion of such salaries representing “straight time” payments.
1.2 For Extra Work consisting of performance of Construction Work and Demolition Work an amount is determined as follows:
(a) In the case of Extra Work performed by the Lead Contractor, an amount equal to the actual net cost in money of the labor and materials required for such Extra Work, plus twenty percent (20%) of such net cost, plus such rental for equipment (other than small tools) required for such Extra Work as the Authority deems reasonable.
(b) In the case of Extra Work performed by a Contractor other than the Lead Contractor, but working under direction of the Lead Contractor, an amount equal to the actual net cost in money of the labor and materials required for such Extra Work, plus twenty percent (20%) of such net cost plus such rental for equipment (other than small tools) required for such Extra Work as the Authority deems reasonable, plus seven percent (7%) of the sum of the foregoing cost, percentage of cost, and rental.
1.3 As used in this Exhibit 24 (Extra Work Costs).
(a) “Salaries paid to technical employees” shall mean salaries actually paid (excluding payments and factors for holidays, vacations, sick time, bonuses, profit participations and other similar payments) to architects, engineers, designers, draftsmen and other technical employees of the Contractor performing such design services, excluding however, any partners, corporate officers and clerical or administrative personnel.
(b) “Labor” shall mean foremen, surveyors, laborers, mechanics and other employees below the rank of superintendent, exclusive of timekeepers, directly employed at the construction site, subject to the Authority’s determination of which employees of any category are required for Extra Work and as to the portion of their time allotted to Extra Work; and
(c) “cost of extra work” shall mean the wages actually paid to and received by such employees; however, for a Directive Letter, all wages actually paid that are in excess of the prevailing wages in the performance of Extra Work shall be subject, on each occasion, to the initial and continuing approval of the Authority in advance of the performance of such Extra Work; plus a proper proportion of (a) premiums, if any, actually paid by the employer for Workers' Compensation Insurance upon the basis of such wages, (b) vacation allowances and union dues
The Port Authority of New York and New Jersey Exh. 24-2 Project Agreement – Exhibit 24 Goethals Bridge Replacement Project August 30, 2013
and assessments, which the employer actually pays pursuant to the contractual obligation upon the basis of such wages, and (c) taxes actually paid by the employer pursuant to law upon the basis of such wages. “Employees” as used above means only the employees of one employer.
(d) “Materials” shall mean temporary and consumable materials, as well as permanent materials; and “cost of materials” means the price (including taxes actually paid by the Contractor pursuant to law upon the basis of such materials) for which such materials are sold for cash by the manufacturers or producers thereof, or by regular dealers therein, whether or not such materials are purchased directly from the manufacturer, producer or dealer (or if the Contractor is the manufacturer or producer thereof, the reasonable cost to the Contractor of the manufacture and production), plus the reasonable cost of delivering such materials to the construction site in the event that the price paid to the manufacturer, producer or dealer does not include delivery and in case of temporary materials, less their salvage value, if any.
1.4 The rental for equipment, whether owned by the Contractor or subcontractors or rented from others and notwithstanding the actual price of any rental or actual costs associated with such equipment, shall be computed by the Authority on the basis of the following:
(a) Hourly rental for those items of equipment listed in the “Rental Rate Blue Book” (published by Machinery Information Division, K-III Directory Corporation, 1735 Technology Drive, Suite 410, San Jose, California 95110), hereinafter called “the Blue Book”, shall be 100% of the applicable rates listed in said book, reduced to an hourly basis (using formula below) except that such applicable rates shall be reduced by fifty percent (50%) for all hours of rental payable hereunder in excess of eight (8) hours each day. The edition of the Blue Book to be used shall be the one in effect on the date of the actual rental of the equipment. The “Estimated Operating Cost per Hour” as set forth for such item of equipment in the Blue Book shall be added to the hourly rental for each hour that such equipment is actually engaged in performing Extra Work. No amount for operating cost will be allowed during periods when such equipment is not actually engaged in performing Extra Work (i.e. standby rental time). None of the provisions of the Blue Book shall be deemed referred to or included in the Project Documents except as specifically set forth in this Section.
(b) If no listing of rental rate and/or hourly operating cost for the item of equipment is in the Blue Book, the Authority shall determine the reasonable rate of rental and/or hourly operating cost of the particular item of equipment by such other means as it finds appropriate. If the Blue Book is no longer in publication, the Authority shall reserve the right to establish another viable source.
(c) In the event Developer is directed by the Authority to immediately perform Extra Work within twenty-four (24) hours of the direction to proceed, the Authority shall determine the reasonable rate of rental and/or hourly operating cost of the items of equipment necessary to perform such Extra Work by such means as it finds appropriate. However, if the equipment is owned by the Contractor or owned by a subsidiary of the Contractor, the Blue Book rates will apply as set forth in this Section.
The Port Authority of New York and New Jersey Exh. 24-3 Project Agreement – Exhibit 24 Goethals Bridge Replacement Project August 30, 2013
(d) When utilizing the rental rates appearing in the Blue Book, the Authority shall determine the applicable rate and the hourly rental by applying the following criteria:
(i) The rate to be applied for an item of equipment used on a particular change order shall be monthly rates from the foregoing publication.
(ii) The pro rata portion, which one hour bears to the application rate shall be determined in accordance with the following formula: Hourly rate based on monthly rental shall equal 1/176th of the monthly rental from the Blue Book.
(iii) The rental rate shall be multiplied by the applicable regional adjustment factor shown for such item of equipment in the Blue Book. The adjustment factor shall not apply to the hourly operating cost.
(iv) If the Authority should determine that the nature or size of the equipment used by the Contractor in connection with the Extra Work is larger or more elaborate, as the case may be, than the size or nature of the minimum equipment determined by the Authority to be suitable for the Extra Work, the reasonable rental will not be based on the equipment used by the Contractor, but will be based on the smallest or least elaborate equipment determined by the Authority to have been suitable for the performance of the Extra Work.
(v) In the case of equipment utilized only for Extra Work: (a) in addition to amounts determined as provided in subparagraphs 1.4(a) and 1.4(b) above, there will be added to the rental as computed above the reasonable cost of transporting such equipment to and from the construction site, including applicable tolls, and (b) notwithstanding the number of hours during which such equipment is utilized, the minimum rental therefor will be for a period of eight (8) hours.
(vi) In computing the Contractor’s compensation insofar as it is based upon Extra Work, and notwithstanding any provision to the contrary appearing in the Blue Book, no consideration shall be given to any items of cost or expense not expressly set forth above, it being expressly agreed that the costs and percentage additions hereinbefore provided cover items of cost and expense to the Contractor of any type whatsoever, including administration, overhead, taxes (other than those enumerated above), clean-up, consumables including gas and oil, drafting (including printing or other reproduction), coordination, field measurements, maintenance, repairs, insurance, profit to the Contractor and small tools.
1.5 Negotiated unit prices shall be negotiated to include all costs for labor, material, overhead and profit. The use of negotiated unit price change orders shall be at the sole discretion of the Authority.
1.6 Where, as a result of Extra Work, the Contractor is obligated to perform Work at times other than those Developer may reasonably have contemplated for the performance of the Work, and the Lead Contractor directly or through a subcontractor is obligated by the
The Port Authority of New York and New Jersey Exh. 24-4 Project Agreement – Exhibit 24 Goethals Bridge Replacement Project August 30, 2013
provision of this Section to pay premium time rates for such work, then the Contractor shall be eligible for compensation for the cost differential between regular time rates and premium time rates at an amount equal to the total of the following:
1.7 For premium time rates paid by the Lead Contractor to its own forces, an amount equal to the premium time portion of the salaries and wages, which the employer is required to pay and actually pays to its employees pursuant to the terms of its applicable collective bargaining agreement for the overtime period or periods described above, plus a proper proportion, if any, computed upon the basis of premium time salaries and wages of (1) taxes actually paid by the employer pursuant to law, (2) vacation allowances, other fringe benefits and union dues and assessments, which the employer actually pays pursuant to contractual obligations, and (3) increased premiums paid by the Contractor personally, specifically allocable to the insurance required by the Project Documents, plus five percent (5%) of such premium portion.
1.8 For premium time rates paid by a Contractor working under direction of the Lead Contractor, an amount equal to the premium time portion of the salaries and wages, which the employer is required to pay and actually pays to its employees pursuant to the terms of its applicable collective bargaining agreement for the overtime period or periods described above, plus a proper proportion, if any, computed upon the basis of premium time salaries and wages of (1) taxes actually paid by the employer pursuant to law, (2) vacation allowances, other fringe benefits and union dues and assessments, which the employer actually pays pursuant to contractual obligations, and (3) increased premiums paid by the Contractor personally, specifically allocable to the insurance required by the Project Documents, plus five percent (5%) of such premium portion, plus two percent (2%) of the foregoing cost.
All additions to the Contractor’s compensation provided for in this Section require the prior written approval of the Authority and are conditioned on the Contractor’s verifiable by the Authority payment of such amounts to the subcontractor(s).
The additions to the Contractor’s compensation provided in this Exhibit 24 (Extra Work Costs) shall not apply where the Authority directs Developer to perform work at times other than those specified elsewhere in the Project Documents and also determines that such work is required to mitigate previous delays in the Contractor’s performance of work.
1.9 Developer compensation is subject to the following restrictions:
(a) Exclude (a) third party entertainment costs, lobbying and political activity costs, costs of alcoholic beverages, costs for first class travel in excess of prevailing economy travel costs, and costs of club memberships, in each case to the extent that such costs would not be reimbursed to an employee of the Authority in the regular course of business, and (b) unallowable costs under the following provisions of the federal Contract Cost Principles, 48 CFR 31.205: 31.205-8 (contributions or donations), 31.205-13 (employee morale, health, welfare, food service, and dormitory costs and credits), 31.205-14 (entertainment costs), 31.205-15 (fines, penalties, and mischarging costs), 31.205-27 (organization costs), 31.205-34 (recruitment costs), 31.205-35 (relocation costs), 31.205-43 (trade, business, technical and professional activity costs), 31.205-44 (training
The Port Authority of New York and New Jersey Exh. 24-5 Project Agreement – Exhibit 24 Goethals Bridge Replacement Project August 30, 2013
and education costs), and 31.205-47 (costs related to legal and other proceedings);
(b) Exclude amounts paid or to be paid to Affiliates in excess of the pricing Developer could reasonably obtain in an arms’ length, competitive transaction with an unaffiliated Contractor; and
(c) Exclude those costs incurred in asserting, pursuing or enforcing any claim or Dispute other than those costs expressly permitted herein.
1.10 The Contractor shall, at the end of each day, have available for the Authority (a) daily time slips showing the name and number of each worker employed on such Extra Work, the number of hours that the worker is employed thereon, the character of their duties, and the wages actually paid to the worker, (b) a memorandum showing the rates and amounts of Worker’s Compensation Insurance premiums, if any, and state and federal taxes based on such wages, and vacation allowances and union dues and assessments, which the employer actually pays pursuant to contractual obligation upon the basis of such wages, (c) a memorandum showing the amount and character of the materials furnished for the Extra Work, from whom they were purchased and the amount to be paid therefore, and (d) a memorandum of equipment used in the performance of such Extra Work, listing the actual hours of operation for each piece of equipment, together with the rental claimed therefor. Such memoranda and time slips are for the purpose of enabling the Authority to determine the amounts to be paid by the Authority under this Exhibit 24 (Extra Work Costs) and accordingly, they shall constitute a condition precedent to such payment and the failure of Developer to furnish them with respect to any work shall constitute a conclusive and binding determination on its part that such work is not Extra Work and shall constitute a waiver by Developer of claims for payment for such work.
1.11 Compensation for Directive Letters shall be subject to the same audit review requirements including all records to substantiate the memorandum and time slips submitted to the Authority. Failure to provide such records may result in a reduction or total denial of material, equipment and labor costs for Extra Work. Upon completion of the audit review, Developer will be provided with the audit findings of the Authority. If Developer disagrees in whole or in part with the audit findings, Developer shall notify the Authority of such disagreement in writing within thirty (30) Days of receipt of said audit findings or the Authority will deem the audit findings to be final and acceptable to Developer.
The Port Authority of New York and New Jersey Form 1-1 Project Agreement – Form 1 Goethals Bridge Replacement Project August 30, 2013
FORM 1
FORM OF DIRECT AGREEMENT
[DATE]
NYNJ LINK DEVELOPER LLC
THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY
[COLLATERAL AGENT]
DIRECT AGREEMENT relating to the Goethals Bridge Replacement Project
The Port Authority of New York and New Jersey Form 1-2 Project Agreement – Form 1 Goethals Bridge Replacement Project August 30, 2013
THIS DIRECT AGREEMENT (this “Agreement”) is made and entered into as of [] by and among THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY, a municipal corporate instrumentality and political subdivision of the States of New York and New Jersey created and existing by virtue of the Compact of April 30, 1921, made by and between the two States and thereafter consented to by the Congress of the United States (the “Authority”); NYNJ Link Developer LLC, a Delaware limited liability company (“Developer”); and [] as collateral agent for the Lenders (the “Collateral Agent”).
RECITALS WHEREAS, the Authority and Developer have entered into that certain Project Agreement dated as of [], as the same may be amended or modified from time to time (the “Project Agreement”), in connection with the design, installation, operation and maintenance of a new Goethals Bridge, the demolition and removal of the existing Goethals Bridge and all associated work and activities related thereto as more fully described in the Project Agreement (the “Project”); WHEREAS, the Collateral Agent is the collateral agent for the various providers (collectively, the “Lenders”) of senior debt (the “Senior Debt”) to NYNJ Link Borrower LLC, a Delaware limited liability company (“Borrower”), pursuant to the Financing Documents (as defined in the Project Agreement) as the same may be modified, replaced or amended from time to time, the proceeds of which will be provided by Borrower to Developer and used by Developer to perform, in part, its obligations under the Project Agreement; WHEREAS, pursuant to the Financing Documents the provision by the Lenders of the Senior Debt to Borrower is conditioned upon the Authority providing the Lenders with certain assurances (as more particularly set forth in this Agreement); and
WHEREAS, this Agreement is, for the purposes of the Project Agreement, the Direct Agreement referred to therein.
AGREEMENT
NOW, THEREFORE, in consideration of the covenants contained herein and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto agree as follows.
ARTICLE 1.
DEFINITIONS, CONTRACT DOCUMENTS AND ORDER OF PRECEDENCE
Section 1.01 Definitions
Capitalized terms used herein but not otherwise defined in this Agreement shall have the respective meanings set forth in Exhibit 1 (Definitions) to the Project Agreement. In addition, the following terms have the meanings specified below:
Authority Notice has the meaning given to it in Section 2.02(a).
The Port Authority of New York and New Jersey Form 1-3 Project Agreement – Form 1 Goethals Bridge Replacement Project August 30, 2013
Bankruptcy Related Default means a Developer Default that arises pursuant to Section 22.1.10 of the Project Agreement.
Collateral Agent Notice has the meaning given to it in Section 2.02(d)(i).
Cure Period means the period commencing on the date that the Collateral Agent receives an Authority Notice pursuant to Section 2.02(a) and ending on the earliest of:
(a) the relevant Cure Period Completion Date;
(b) any Step-out Date or Substitution Effective Date; or
(c) the last day of the Term.
Cure Period Completion Date means, subject to Section 8.02:
(a) with respect to any Payment Default, the date falling 30 Days after the later of (i) the date that the Collateral Agent receives the relevant Authority Notice, and (ii) expiration of any applicable cure period granted to Developer pursuant to Section 22.3 (Initial Notice and Cure Periods) of the Project Agreement;
(b) with respect to any Bankruptcy Related Default, the date falling 90 Days after the later of (i) the date that the Collateral Agent receives the relevant Authority Notice, and (ii) expiration of any applicable cure period granted to Developer pursuant to Section 22.3 (Initial Notice and Cure Periods) of the Project Agreement;
(c) with respect to any Non-Completion Default, the date falling 90 Days after the date that the Collateral Agent receives the relevant Authority Notice; provided, however, that such period shall be extended by such reasonable period of time as may be required to achieve Substantial Completion (subject to a maximum extension of 275 Days), but only to the extent that:
(i) there is a reasonable prospect of achieving D&C Work Completion within 365 Days of the relevant Authority Notice; and
(ii) within the 90 Day period, the Collateral Agent and the Authority (each acting reasonably) agree to a plan in relation to achieving D&C Work Completion; and
(d) with respect to any Developer Default not referred to in clauses (a) through (c) above, the date falling 90 Days after the later of (i) the date that the relevant Authority Notice is received by the Collateral Agent, and (ii) expiration of any applicable cure period granted to Developer pursuant to Section 22.3 (Initial Notice and Cure Periods) of the Project Agreement; provided, however, that such period shall, at the request of the Collateral Agent, be extended up to a maximum of 60 additional Days, but only to the extent that:
(i) within the aforementioned 90 Day period, the Collateral Agent and the Authority (each acting reasonably) agree to a plan specifying the remedial action to be taken in respect of the relevant Developer Default; and
The Port Authority of New York and New Jersey Form 1-4 Project Agreement – Form 1 Goethals Bridge Replacement Project August 30, 2013
(ii) the extension requested by the Collateral Agent represents (in the reasonable opinion of the Authority) a reasonable period of time to remedy the relevant Developer Default.
Designated Account means [].
Discharge Date means the date on which all of the obligations of Borrower and Developer under the Financing Documents have been irrevocably discharged in full to the satisfaction of the Collateral Agent.
Event of Default has the meaning given to such term in the Financing Documents.
Financing Assignment means any pledge, hypothecation, assignment, or other security instrument pledging, hypothecating, assigning or granting any other security interest in the Developer's Interest as pursuant to the Financing Documents.
Initial Equity Members means the Equity Members as of the date of this Agreement.
Initial Period means:
(a) with respect to any Payment Default, the later of (i) the date falling 30 Days after the date that the Collateral Agent received the relevant Authority Notice, and (ii) expiration of any applicable cure period granted to Developer pursuant to Section 22.3 (Initial Notice and Cure Periods) of the Project Agreement; and
(b) with respect to any other Developer Default not referred to in (a) above, the later of (i) date falling 90 Days after the date that the Collateral Agent receives the relevant Authority Notice, and (ii) expiration of any applicable cure period granted to Developer pursuant to Section 22.3 (Initial Notice and Cure Periods) of the Project Agreement
in each case, as may be extended pursuant to Section 8.02.
Key Ratios means []1
Lenders' D&C Direct Agreement means the agreement entered into on or about the date of this Agreement between the D&C Contractor, the Collateral Agent and Developer in connection with the D&C Contract.
Non-Completion Default means a Developer Default that arises pursuant to Section 22.1.13.2 of the Project Agreement.
Payment Default means a Developer Default that arises pursuant to Section 22.1.5 of the Project Agreement that has not been cured within a period of thirty (30) days of Developer receiving written notice from the Authority of such Developer Default.
Property means any right or interest in or to property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible.
_____________________________ 1 To be completed based on relevant ratios in the Financing Documents.
The Port Authority of New York and New Jersey Form 1-5 Project Agreement – Form 1 Goethals Bridge Replacement Project August 30, 2013
Qualified Substitute Developer means a Person who:
(a) has the legal capacity, power and authority to become a party to, and perform the obligations of Developer under, the Project Agreement;
(b) has the resources available to it (including committed financial resources) to perform the obligations of Developer under the Project Agreement;
(c) is not a Prohibited Person;
(d) employs or subcontracts with Persons having the appropriate qualifications, experience and technical competence available to it that are sufficient to enable it to perform the obligations of Developer under the Project Agreement; and
(e) has not been:
(i) debarred or prohibited from participating in state or federally-funded projects;
(ii) indicted, convicted, pled guilty or nolo contendere to a violation of law involving fraud, conspiracy, collusion, bribery, perjury, material misrepresentation, or any other violation that shows a similar lack of moral or ethical integrity; or
(iii) barred or prohibited from owning or operating the Project under law, including the Foreign Investment and National Security Act of 2007, 50 USC App. 2170 (HR 556).
Step-in Date has the meaning given to it in Section 4.01(c).
Step-in Entity has the meaning given to it in Section 4.01(b).
Step-in Entity Accession Agreement means the agreement to be entered into by a Step-in Entity pursuant to Section 4.01(c).
Step-in Notice has the meaning given to it in Section 4.01(a).
Step-in Period in relation to a Step-in Entity means the period from and including the Step-in Date until the earliest of:
(a) the last day of the Cure Period;
(b) the Substitution Effective Date;
(c) the Step-out Date;
(d) the date of termination of the Project Agreement by the Authority in accordance with this Agreement and the Project Agreement; and
(e) the last day of the Term.
Step-out Date in relation to a Step-in Entity means the date upon which any Step-out Notice is served by such Step-in Entity pursuant to Section 4.03.
The Port Authority of New York and New Jersey Form 1-6 Project Agreement – Form 1 Goethals Bridge Replacement Project August 30, 2013
Step-out Notice has the meaning given to it in Section 4.03(a).
Substitute has the meaning given to it in Section 5.01.
Substitute Accession Agreement means the agreement to be entered into by a Substitute pursuant to Section 6.01.
Substitution Effective Date has the meaning given to it in Section 6.01.
Substitution Notice has the meaning given to it in Section 5.01.
Section 1.02 Order of Precedence
In the event of any conflict, ambiguity or inconsistency between the provisions of the Project Agreement and the provisions of this Agreement, the provisions of this Agreement shall prevail.
Section 1.03 No Effect on Project Agreement
Nothing in this Agreement amends or modifies any of Developer's obligations to the Authority under the Project Agreement.
ARTICLE 2.
CONSENT TO SECURITY AND NOTICES
Section 2.01 Consent to Security
Notwithstanding anything to the contrary in the Project Agreement:
(a) the Authority acknowledges notice and receipt of and consents to:
(i) the collateral assignment by Developer to the Collateral Agent of all of Developer's Interest pursuant to the Financing Documents;
(ii) the grant by each of the Initial Equity Members to the Collateral Agent of a security interest in its respective equity interest(s) in Developer, in each case pursuant to the Financing Documents; and
(iii) the grant of the security interests set forth in the other Security Documents set forth in Part B of Annex 3 hereto;
(b) none of the security interests referred to in Section 2.01(a):
(i) constitutes (or with the giving of notice or lapse of time, or both, could constitute) either a breach of the Project Agreement or a Developer Default; or
(ii) requires any consent of the Authority that is either additional or supplemental to those granted pursuant to this Section 2.01;
The Port Authority of New York and New Jersey Form 1-7 Project Agreement – Form 1 Goethals Bridge Replacement Project August 30, 2013
(c) for the avoidance of doubt, the Collateral Agent shall not, by virtue of the security interests referred to in Section 2.01(a), acquire any greater rights to Developer’s Interest than Developer itself has at any particular time pursuant to the Project Agreement; and
(d) for so long as any amount under the Financing Documents is outstanding, the Authority shall not, without the prior written consent of the Collateral Agent, consent to any assignment, transfer, pledge or hypothecation of the Project Agreement or any interest therein by Developer, other than as specified in this Agreement.
Section 2.02 Notice Requirements
(a) The Authority shall give the Collateral Agent written notice (an “Authority Notice”) promptly upon becoming aware of the occurrence of any Developer Default giving rise to the Authority's right to terminate the Project Agreement, and shall specify in the Authority Notice:
(i) the unperformed obligations of Developer under the Project Agreement of which the Authority is aware (having made reasonable inquiry) and the grounds for termination of the Project Agreement in sufficient detail to enable the Collateral Agent to assess the scope and amount of any liability of Developer resulting therefrom;
(ii) all amounts due and payable by Developer to the Authority under the Project Agreement, if any, on or before the date of the Authority Notice and which remain unpaid at such date and, by cross-reference to the applicable provision(s) of the Project Agreement, the nature of Developer’s obligation to pay such amounts; and
(iii) the amount of any payments that the Authority reasonably foresees will become due from Developer during the applicable Cure Period.
(b) The Authority shall from time to time update any Authority Notice issued pursuant to Section 2.02(a) as and when it becomes aware of any unperformed obligations of Developer (including non-payment of amounts that have become due) under the Project Agreement that were not specified in the relevant Authority Notice.
(c) For the avoidance of doubt, nothing in this Agreement shall prevent the concurrent running of multiple Authority Notices.
(d) The Collateral Agent shall:
(i) promptly upon becoming aware of any Event of Default (whether or not an Authority Notice has been served in connection with the same event) give the Authority written notice (a “Collateral Agent Notice”);
(ii) specify in any Collateral Agent Notice the circumstances and nature of the Event of Default to which the Collateral Agent Notice relates; and
The Port Authority of New York and New Jersey Form 1-8 Project Agreement – Form 1 Goethals Bridge Replacement Project August 30, 2013
(iii) notify the Authority of any decision to accelerate amounts outstanding under the Financing Documents or to exercise any enforcement remedies under the Financing Documents promptly upon the taking of such decision.
Section 2.03 Authority Payments under the Project Agreement
The Authority shall, unless directed otherwise by the Collateral Agent, deposit all amounts payable by it under the Project Agreement into the Designated Account and Developer agrees that any payment made in accordance with this Section 2.03 shall constitute a complete discharge of the Authority's relevant payment obligations under the Project Agreement.
ARTICLE 3.
RIGHTS AND OBLIGATIONS DURING THE CURE PERIOD
Section 3.01 No Termination during the Cure Period
At any time during a Cure Period, the Authority shall not, subject to the terms of this Agreement:
(a) terminate or give notice terminating the Project Agreement for Developer Default; or
(b) take, join in or support, whether directly or indirectly, any action for the liquidation, bankruptcy, administration, receivership, reorganization, dissolution or winding up of Developer or for the composition or readjustment of Developer’s debts, or any similar insolvency procedure in relation to Developer, or for the appointment of a receiver, trustee, custodian, sequestrator, conservator, liquidator, administrator or similar official for Developer or for any part of Developer’s Property provided, however, that, for the avoidance of doubt, if and after any of the foregoing have been commenced with respect to Developer by a Person other than the Authority, this clause (b) shall not otherwise restrict or impair the ability of the Authority to participate in any way in such liquidation, bankruptcy, administration, receivership, reorganization, dissolution or winding up of Developer or for the composition or readjustment of Developer’s debts, or any similar insolvency procedure in relation to Developer, or for the appointment of a receiver, trustee, custodian, sequestrator, conservator, liquidator, administrator or similar official for Developer or for any part of Developer’s Property.
Section 3.02 Collateral Agent Rights
(a) At any time during an Event of Default (but, in the case of a Developer Default, only for so long as the Initial Period has not expired), without giving a Step-in Notice, the Collateral Agent may (but shall have no obligation), at its sole option and discretion, perform or arrange for the performance of any act, duty, or obligation required of Developer under the Project Agreement, or remedy any breach of Developer thereunder at any time, which performance or remedy by or on behalf of the Collateral Agent shall be accepted by the Authority in lieu of
The Port Authority of New York and New Jersey Form 1-9 Project Agreement – Form 1 Goethals Bridge Replacement Project August 30, 2013
performance by Developer and in satisfaction of Developer’s corresponding obligations under the Project Agreement. To the extent that any breach of Developer under the Project Agreement is remedied and/or any payment liabilities or obligations of Developer are performed by the Collateral Agent under this Section 3.02(a), such action shall discharge the relevant liabilities or obligations of Developer to the Authority. No such performance by or on behalf of the Collateral Agent under this Section 3.02(a) shall be construed as an assumption by the Collateral Agent, or any person acting on the Collateral Agent’s behalf, of any of the covenants, agreements or other obligations of Developer under the Project Agreement.
(b) At any time during a Cure Period or an Event of Default, the Collateral Agent may:
(i) issue a Step-in Notice in accordance with the requirements of Section 4.01; or
(ii) issue a Substitution Notice in accordance with the requirements of Section 5.01.
ARTICLE 4.
STEP-IN ARRANGEMENTS
Section 4.01 Step-in Notice
(a) Provided that all unperformed payment obligations of Developer identified in an Authority Notice shall have been remedied in full or waived by the Authority on or before the Step-in Date, the Collateral Agent may provide the Authority with a written notice (“Step-in Notice”) under this Section 4.01 at any time during any Cure Period or Event of Default.
(b) The Collateral Agent shall nominate, in any Step-in Notice, any one of:
(i) the Collateral Agent, a Lender or any of their respective Affiliates that is not a Prohibited Person; or
(ii) any Person approved by the Authority in its discretion, such approval not to be unreasonably withheld or delayed if such Person meets all the criteria to be a Qualified Substitute Developer and the Authority has been provided with the relevant information required under Section 5.03 with respect to such Person (it being understood that if the Authority has failed to respond to the Collateral Agent within 60 Days of the date on which the Authority has received the information specified in Section 5.03 in respect of any such nominated Person, the approval of the Authority shall be deemed to have been given),
(each a “Step-in Entity”), stating that the Step-in Entity is to become a joint and several obligor with Developer under the Project Agreement and this Agreement in accordance with the terms hereof.
The Port Authority of New York and New Jersey Form 1-10 Project Agreement – Form 1 Goethals Bridge Replacement Project August 30, 2013
(c) The Step-in Entity named in the Step-in Notice shall be deemed to become a party to the Project Agreement and this Agreement on and from the date it executes a duly completed Step-in Entity Accession Agreement, substantially in the form attached hereto as Annex 1 (Form Of Step-In Entity Accession Agreement), and submits it to the Authority (the “Step-in Date”).
Section 4.02 Rights and Obligations on Step-in
(a) On and from the Step-in Date and during the Step-in Period, the Step-in Entity shall be:
(i) jointly and severally entitled to exercise and enjoy the rights and powers expressed to be assumed by or granted to Developer under the Project Agreement and this Agreement;
(ii) entitled to exercise and enjoy the rights and powers expressed to be assumed by or granted to a Step-in Entity under this Agreement; and
(iii) jointly and severally liable with Developer for the payment of all sums due from Developer under or arising out of the Project Agreement at the Step-in Date and for the performance of all of Developer’s obligations under or arising out of the Project Agreement on or after the Step-in Date.
(b) Without prejudice to Article 7 (Reinstatement of Remedies), during the Step-in Period:
(i) the Authority undertakes:
(A) not to terminate or give notice terminating the Project Agreement for Developer Default, unless:
(1) the grounds for termination or giving notice of termination arose during the Step-in Period; or
(2) the Step-in Entity fails to comply with the requirements of any plan agreed between the Authority and the Collateral Agent in connection with the extension of the relevant Cure Period Completion Date; and
(B) not to take, join in or support, whether directly or indirectly, any action for the liquidation, bankruptcy, administration, receivership, reorganization, dissolution or winding up of Developer or for the composition or readjustment of Developer’s debts, or any similar insolvency procedure in relation to Developer, or for the appointment of a receiver, trustee, custodian, sequestrator, conservator, liquidator, administrator or similar official for Developer or for any part of Developer’s Property provided, however, that, for the avoidance of doubt, if and after any of the foregoing have been commenced with respect to Developer by a Person other than the Authority, this clause (B) shall not otherwise restrict or impair the ability of the Authority to participate in any
The Port Authority of New York and New Jersey Form 1-11 Project Agreement – Form 1 Goethals Bridge Replacement Project August 30, 2013
way in such liquidation, bankruptcy, administration, receivership, reorganization, dissolution or winding up of Developer or for the composition or readjustment of Developer’s debts, or any similar insolvency procedure in relation to Developer, or for the appointment of a receiver, trustee, custodian, sequestrator, conservator, liquidator, administrator or similar official for Developer or for any part of Developer’s Property;
(C) not to suspend its performance (including in connection with any insolvency or bankruptcy proceeding in relation to Developer) under the Project Agreement, unless the grounds for suspension of performance arose during the Step-in Period; and
(D) to continue to make payments required to be made to Developer under the Project Agreement to the Designated Account.
(ii) the Authority shall owe its obligations under the Project Agreement and this Agreement to Developer and such Step-in Entity jointly; provided, however, that:
(A) subject to Section 4.02(b)(ii)(B), the performance of such obligations by the Authority in favor of either such Step-in Entity or Developer shall be a good and effective discharge of such obligations under this Agreement and the Project Agreement; and
(B) the Collateral Agent shall be entitled at any time by notice in writing to the Authority to direct (such direction being binding on the Collateral Agent, the Authority and Developer) that, at all times thereafter while such Step-in Entity is deemed to be a party to the Project Agreement and this Agreement and subject to any further notice from the Collateral Agent, such Step-in Entity shall be solely entitled to make any decisions, to give any directions, approvals or consents, to receive any payments or otherwise to deal with the Authority under the Project Agreement and this Agreement.
(c) Developer shall not be relieved from any of its obligations under the Project Agreement, whether arising before or after the Step-in Date, by reason of the Step-in Entity becoming a party to the Project Agreement pursuant to a Step-in Entity Accession Agreement, except to the extent provided in Section 3.02(a) and Section 6.02(a).
Section 4.03 Step Out
(a) A Step-in Entity may, at any time, by giving not less than 30 Days’ prior written notice (“Step-out Notice”) to the Authority, terminate its obligations to the Authority under the Project Agreement and this Agreement, whereupon the Step-in Entity shall, upon the expiry of such notice, no longer be deemed to be a party to the Project Agreement and this Agreement and shall be released from all obligations under the Project Agreement and this Agreement. The obligations of
The Port Authority of New York and New Jersey Form 1-12 Project Agreement – Form 1 Goethals Bridge Replacement Project August 30, 2013
the Authority to the Step-in Entity in such capacity under the Project Agreement and this Agreement shall also terminate upon the expiry of such notice.
(b) Nothing in this Section 4.03 shall have the effect of releasing the Step-in Entity from any liability that relates to the performance or non-performance of the Project Agreement or this Agreement by Developer or the Step-in Entity during the Step-in Period.
ARTICLE 5.
SUBSTITUTION PROPOSALS
Section 5.01 Notice of Proposed Substitute
To the extent that the Collateral Agent or the Lenders at any time propose to require Developer to assign its rights and obligations under the Project Agreement and/or this Agreement to a Person (a “Substitute”) designated by the Collateral Agent or the Lenders (whether by mutual agreement or enforcement of rights under the Financing Documents), the effectiveness of such assignment shall be conditional upon:
(a) the Collateral Agent issuing a notice (a “Substitution Notice”) to the Authority requesting the prior approval of the proposed Substitute;
(b) the Authority approving the identity of the proposed Substitute pursuant to Sections 5.02 or 5.04; and
(c) the proposed Substitute executing a Substitute Accession Agreement in accordance with Section 6.01.
Section 5.02 Grounds for Refusing Approval
The Authority shall only be entitled to withhold its approval to any proposed Substitute that is the subject of a Substitution Notice if:
(a) the proposed Substitute is not a Qualified Substitute Developer; or
(b) subject to Section 6.04, there are outstanding breaches of the Project Agreement that have been previously notified by the Authority to the Collateral Agent and have not, to the reasonable satisfaction of the Authority, been remedied or waived prior to the date of the Substitution Notice; unless the Authority has approved (such approval not to be unreasonably withheld or delayed) a plan specifying the remedial action that the Substitute will be required to take after the Substitution Effective Date in order to remedy each such breach.
Section 5.03 Provision of Information
The Collateral Agent shall, as soon as practicable, provide to the Authority such information in relation to the proposed Substitute and any Person who, it is proposed, will enter into a material subcontract with the proposed Substitute in relation to the Project, as the Authority shall reasonably require to enable it to reasonably determine whether the proposed Substitute is a Qualified Substitute Developer, including:
The Port Authority of New York and New Jersey Form 1-13 Project Agreement – Form 1 Goethals Bridge Replacement Project August 30, 2013
(a) the name and address of the proposed Substitute;
(b) unless such proposed Substitute is a publicly traded entity, the names of the proposed Substitute’s shareholders or members and the share capital or partnership or membership interests, as the case may be, held by each of them;
(c) the manner in which it is proposed to finance the proposed Substitute and the extent to which such financing is committed (to the extent relevant);
(d) copies of the proposed Substitute’s most recent financial statements (and if available, such financial statements shall be for the last three financial years and audited), or in the case of a special purpose company, its opening balance sheet;
(e) a copy of the proposed Substitute’s organizational documents;
(f) details of the resources available to the proposed Substitute and the proposed Substitute's appropriate qualifications, experience and technical competence available to the proposed Substitute to enable it to perform the obligations of Developer under the Project Agreement; and
(g) the names of the proposed Substitute’s directors and any key personnel who will have responsibility for the day-to-day management of its participation in the Project.
Section 5.04 Deemed Approval
If the Authority has failed to respond to the Collateral Agent within 60 Days of the date on which the Authority has confirmed it has received the information specified in Section 5.03 in respect of any proposed Substitute, the approval of the Authority shall be deemed to have been given.
ARTICLE 6.
SUBSTITUTION
Section 6.01 Substitution Effective Date
If the Authority approves (or is deemed to have approved) the identity of a proposed Substitute pursuant to Article 5, the Substitute shall execute a duly completed Substitute Accession Agreement substantially in the form set out in Annex 2 to this Agreement and submit it to the Authority (with a copy of it to the other parties to this Agreement). Such assignment shall become effective on and from the date on which the Authority countersigns the Substitute Accession Agreement or the date that is 10 Days after the date the Authority receives the completed Substitute Accession Agreement if the Authority fails to countersign the Substitute Accession Agreement (the “Substitution Effective Date”).
Section 6.02 Effectiveness of Substitution
On and from the Substitution Effective Date:
The Port Authority of New York and New Jersey Form 1-14 Project Agreement – Form 1 Goethals Bridge Replacement Project August 30, 2013
(a) such Substitute shall become a party to the Project Agreement and this Agreement in place of Developer who shall be immediately released from its obligations arising under, and cease to be a party to, the Project Agreement and this Agreement from that Substitution Effective Date; and
(b) such Substitute shall exercise and enjoy the rights and perform the obligations of Developer under the Project Agreement and this Agreement, including, without limitation, any and all undischarged obligations of Developer that were otherwise required to be performed by Developer prior to the Substitution Effective Date; and
(c) the Authority shall owe its obligations (including, without limitation, any undischarged liability in respect of any loss or damage suffered or incurred by Developer prior to the Substitution Effective Date) under the Project Agreement and this Agreement to such Substitute in place of Developer and any Step-in Entity.
Section 6.03 Facilitation of Transfer
The Authority shall use its reasonable efforts to facilitate the transfer to the Substitute of Developer’s obligations under the Project Agreement and this Agreement.
Section 6.04 Settlement of Outstanding Financial Liabilities
(a) The Substitute shall pay to the Authority within 30 Days after the Substitution Effective Date any amount due from Developer to the Authority under the Project Agreement and this Agreement as of the Substitution Effective Date (as notified by the Authority to the Substitute reasonably in advance of such Substitution Effective Date).
(b) If the Substitute fails to satisfy its obligations pursuant to Section 6.04(a), the Authority shall be entitled to exercise its rights under the Project Agreement in respect of the amount so due and unpaid.
Section 6.05 Consequences of Substitution
On and from the Substitution Effective Date:
(a) subject to Section 6.04, any right of termination or any other right suspended by virtue of Section 3.01 shall be of no further effect and the Authority shall not be entitled to terminate the Project Agreement and this Agreement by virtue of any act, omission or circumstance that occurred prior to such Substitution Effective Date;
(b) if any Step-in Entity is a party to or has any obligations under the Project Agreement and this Agreement on the Substitution Effective Date, such Step-in Entity shall cease to be a party thereto and hereto and shall be discharged from all obligations thereunder and hereunder; and
The Port Authority of New York and New Jersey Form 1-15 Project Agreement – Form 1 Goethals Bridge Replacement Project August 30, 2013
(c) the Authority shall enter into an equivalent direct agreement on substantially the same terms as this Agreement, save that Developer shall be replaced as a party by the Substitute.
ARTICLE 7.
REINSTATEMENT OF REMEDIES
If an Authority Notice has been given, the grounds for that notice are continuing and have not been remedied or waived by the Authority and:
(a) no Step-in Entity or Substitute becomes a party to the Project Agreement and this Agreement before the Cure Period Completion Date relating thereto; or
(b) a Step-in Entity becomes a party to the Project Agreement and this Agreement, but the Step-in Period relating to such Step-in Entity ends without a Substitute becoming a party thereto and hereto,
then, on and from the Cure Period Completion Date or the date such Step-in Period expires, the Authority shall be entitled to:
(i) act upon any and all grounds for termination available to it in relation to the Project Agreement in respect of the Developer Defaults under the Project Agreement that have not been remedied or waived by the Authority;
(ii) pursue any and all claims and exercise any and all remedies against Developer; and
(iii) if and to the extent that it is then entitled to do so under the Project Agreement, take or support any action of the type referred to in Section 3.01(b).
ARTICLE 8.
IMPACT OF BANKRUPTCY OR INSOLVENCY PROCEEDINGS
Section 8.01 Rejection of the Project Agreement
(a) If the Project Agreement is rejected by a trustee or debtor-in-possession in, or terminated as a result of, any bankruptcy or insolvency proceeding involving Developer and, within 150 Days after such rejection or termination, the Collateral Agent shall so request and shall certify in writing to the Authority that the Collateral Agent or the Collateral Agent's permitted designee or assignee, including a Qualified Substitute Developer, intends to perform the obligations of Developer as and to the extent required under the Project Agreement, the Authority will execute and deliver to the Collateral Agent (or any Substitute satisfying the requirements of this Agreement if directed to do so by the Collateral Agent) a new project agreement. The new project agreement shall contain conditions, agreements, terms, provisions and limitations which are the same as those of the Project Agreement, except for any obligations that have
The Port Authority of New York and New Jersey Form 1-16 Project Agreement – Form 1 Goethals Bridge Replacement Project August 30, 2013
been fulfilled by Developer, any party acting on behalf of or stepping-in for Developer or the Collateral Agent prior to such rejection or termination. References in this Agreement to the “Project Agreement” shall be deemed also to refer to any such new project agreement.
(b) The effectiveness of any new project agreement referred to in Section 8.01(a) above will be conditional upon the Collateral Agent first reimbursing the Authority in respect of its costs incurred in connection with the execution and delivery of such new project agreement.
Section 8.02 Extension of Cure Period Completion Date
If:
(a) the Collateral Agent is prohibited by any court order, bankruptcy or insolvency proceedings from remedying the Developer Default that is the subject of an Authority Notice; or
(b) the Collateral Agent pursues with good faith, diligence and continuity lawful processes and steps to obtain the appointment of a court receiver for the Project and possession, custody and control of the Project, but despite such efforts the Collateral Agent is unable to obtain such possession, custody and control of the Project,
then each of the relevant Cure Period Completion Date and Initial Period shall be extended by a period of time equal to the shorter of the period of such prohibition or 150 Days.
ARTICLE 9.
TERMINATION OF THIS AGREEMENT
This Agreement shall remain in effect until the earliest to occur of:
(a) the Discharge Date;
(b) the time at which all of the parties’ respective obligations and liabilities under the Project Agreement and this Agreement have expired or have been satisfied in accordance with the terms of the Project Agreement and this Agreement; and
(c) any assignment to a Substitute has occurred under Article 6 (Hazardous Materials) and the Authority shall have entered into an equivalent direct agreement on substantially the same terms as this Agreement, save that Developer has been replaced as a party by the Substitute.
ARTICLE 10.
PRESERVATION OF FUNDS
Notwithstanding the other provisions of this Agreement and the terms and conditions of the Financing Documents, the Collateral Agent agrees for itself and on behalf of the
The Port Authority of New York and New Jersey Form 1-17 Project Agreement – Form 1 Goethals Bridge Replacement Project August 30, 2013
Lenders that it shall not exercise any rights under the Financing Documents or take any other steps that would prejudice the operation of Section 8.6 (Handback Reserve Account) of the Project Agreement.
ARTICLE 11.
COMPETING STEP-IN RIGHTS
Section 11.01 Subordination of Authority Rights
Notwithstanding any provision in the D&C Direct Agreement to the contrary, the Authority agrees that it will not exercise any rights of step-in, novation or other similar rights it may have under the D&C Direct Agreement until:
(a) the Project Agreement has been terminated (other than pursuant to a transfer to a Substitute pursuant to Section 6 (Substitution)); or
(b) the expiry of any relevant period under the Lenders' D&C Direct Agreement in which the Collateral Agent is required or entitled to either exercise or procure the exercise of rights of step-in, novation, transfer or any similar right under the Lenders' D&C Direct Agreement; or
(c) if the Collateral Agent has exercised or procured the exercise of rights of step-in, novation, transfer or any similar right, the date of any step-out or similar event (howsoever defined) under the Lenders' D&C Direct Agreement has occurred.
Section 11.02 Expiry of Lender Rights
The Collateral Agent shall notify the Authority:
(a) promptly, and in any event, within five (5) Business Days of the date on which the Appointed Representative, the Collateral Agent and/or Developer have exhausted all of their direct or indirect legal rights and remedies against the D&C Contractor under the Financing Documents or have determined not to exercise (or to cease exercising) or are not entitled to exercise the same; and
(b) of any decision by the Lenders whether or not to exercise any or all of their direct or indirect rights against the D&C Contractor under the Financing Documents or the D&C Contract (if they have not by then given notice under (a) above) by the date six (6) months after the date that the Authority pays to Developer the whole of the termination compensation (if any) that is payable to Developer following termination of the Project Agreement; and
(c) following receipt by the Authority of such notice, all of the right, title and interest of the Collateral Agent or any other Lender against the D&C Contractor pursuant to the Financing Documents shall be subject and subordinated in all respects to all right, title and interest of the Authority pursuant to the D&C Direct Agreement.
The Port Authority of New York and New Jersey Form 1-18 Project Agreement – Form 1 Goethals Bridge Replacement Project August 30, 2013
ARTICLE 12.
GENERAL PROVISIONS
Section 12.01 Representations and Warranties
(a) The undersigned signatory for the Collateral Agent hereby represents and warrants that he or she is an officer of the Collateral Agent and that he or she has full and complete authority to enter into this Agreement on behalf of the Collateral Agent.
(b) The Collateral Agent hereby represents and warrants that the Collateral Agent has full power, right and authority to execute and perform each and all of its obligations under this Agreement. These representations and warranties are made for the purpose of inducing the Authority and Developer to enter into this Agreement.
(c) The undersigned signatory for Developer hereby represents and warrants that he or she is an officer of Developer and that he or she has full and complete authority to enter into this Agreement on behalf of Developer.
(d) Developer hereby represents and warrants that Developer has full power, right and authority to execute and perform each and all of its obligations under this Agreement. These representations and warranties are made for the purpose of inducing the Authority and the Collateral Agent to enter into this Agreement.
(e) The undersigned signatory for the Authority hereby represents and warrants that he or she is an officer of the Authority and has full and complete authority to enter into this Agreement on behalf of the Authority.
(f) The Authority has full power, right and authority to execute and perform each and all of its obligations under this Agreement. These representations and warranties are made for the purpose of inducing the Collateral Agent to enter into this Agreement.
(g) The Authority represents and warrants to the Collateral Agent that this Agreement constitutes a legal, valid and binding obligation of the Authority enforceable against the Authority in accordance with its terms, except as such enforceability may be limited by (i) applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally and (ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(h) The Authority represents and warrants to the Collateral Agent that there is no Authority Default or, to its knowledge, Developer Default, there exists no event or condition that would, with the giving of notice or passage of time or both, constitute such an Authority Default or, to its knowledge, a Developer Default, and no Authority Default or, to its knowledge, Developer Default has occurred prior to the date hereof.
Section 12.02 Public Information and Confidentiality
The Port Authority of New York and New Jersey Form 1-19 Project Agreement – Form 1 Goethals Bridge Replacement Project August 30, 2013
The Authority and the Collateral Agent will, for each other’s benefit, comply with the requirements of the Project Documents with regard to the public disclosure of information as if any reference to Developer therein was a reference to the Collateral Agent.
Section 12.03 Amendments and Waivers
(a) No amendment of this Agreement, and no waiver of any term, covenant or condition of this Agreement, shall be effective unless in writing and signed by the parties to this Agreement.
(b) The exercise by a party of any right or remedy provided under this Agreement or law shall not waive or preclude any other or further exercise thereof or the exercise of any other right or remedy. No waiver by any party of any right or remedy under this Agreement or law shall be deemed to be a waiver of any other or subsequent right or remedy under this Agreement or law. The consent by one party to any act by the other party requiring such consent shall not be deemed to render unnecessary the obtaining of consent to any subsequent act for which consent is required, regardless of whether similar to the act for which consent is given.
Section 12.04 Non-collusion
(a) The Collateral Agent warrants that it has not employed or retained any company or person, other than a bona fide employee working solely for the Collateral Agent, to solicit or secure this Agreement and that it has not paid or agreed to pay any company or person any fee, commission, percentage, brokerage fee, gifts, or any other consideration, contingent upon or resulting from making of this Agreement.
(b) For breach or violation of this warranty, the Authority shall have the right to terminate this Agreement without liability.
Section 12.05 Disputes
(a) In the event of any dispute between the Authority and the Collateral Agent under this Agreement, the parties shall resolve the dispute according to the dispute resolution procedures set forth in the Project Agreement, with the Collateral Agent having the same rights and obligations as Developer under the dispute resolution procedures set forth in Article 30 (Dispute Resolution Procedures) of the Project Agreement.
(b) Nothing in Section 12.05(a) affects the Collateral Agent’s rights and remedies against Developer and the Developer's Interest under the Financing Documents and Financing Assignments or the procedures available to the Collateral Agent under law to exercise its security interests thereunder.
Section 12.06 Successors and Assigns
(a) No party to this Agreement may assign or transfer any part of its rights or obligations hereunder without the prior written consent of the other parties;
The Port Authority of New York and New Jersey Form 1-20 Project Agreement – Form 1 Goethals Bridge Replacement Project August 30, 2013
provided, however, that the Collateral Agent may assign or transfer its rights and obligations hereunder to a successor Collateral Agent in accordance with the Financing Documents. In connection with any such assignment or transfer, the Authority agrees to enter into a new direct agreement with the successor Collateral Agent on terms that are substantially the same as those of this Agreement.
(b) This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
Section 12.07 Severability
In the event any one or more of the provisions contained in this Agreement shall, for any reason, be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision thereof and this Agreement shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein.
Section 12.08 Prior Contracts Superseded
This Agreement constitutes the sole agreement of the parties hereto with respect to the subject matter set forth herein and supersedes any prior understandings or written or oral contracts between the parties respecting such subject matter.
Section 12.09 Notices and Communications
(a) Whenever under the provisions of this Agreement it will be necessary or desirable for one party to serve any approval, notice, request, demand, report or other communication on another party, the same will be in writing and will not be effective for any purpose unless and until actually received by the addressee or unless served (i) personally, (ii) by independent, reputable, overnight commercial courier, (iii) by facsimile transmission, where the transmitting party includes a cover sheet identifying the name, location and identity of the transmitting party, the phone number of the transmitting device, the date and time of transmission and the number of pages transmitted (including the cover page), where the transmitting device or receiving device records verification of receipt and the date and time of transmission receipt and the phone number of the other device, and where the facsimile transmission is immediately followed by service of the original of the subject item in another manner permitted herein or (iv) by deposit in the United States mail, postage and fees fully prepaid, registered or certified mail, with return receipt requested, addressed as follows:
If to the Authority:
The Port Authority of NY & NJ Attention: [ ]
Facsimile: [ ]
With copies to:
[]
The Port Authority of New York and New Jersey Form 1-21 Project Agreement – Form 1 Goethals Bridge Replacement Project August 30, 2013
Attention: [ ]
Facsimile: [ ]
If to Developer:
[] Attention: [ ]
Facsimile: [ ]
With copies to:
[] Attention: [ ]
Facsimile: [ ]
If to the Collateral Agent:
[] Attention: [ ]
Facsimile: [ ]
(b) Any party may, from time to time, by notice in writing served upon the other parties as aforesaid, designate an additional and/or a different mailing address or an additional and/or a different person to whom all such notices, requests, demands, reports and communications are thereafter to be addressed. Any notice, request, demand, report or other communication served personally will be deemed delivered upon receipt, if served by mail or independent courier will be deemed delivered on the date of receipt as shown by the addressee’s registry or certification receipt or on the date receipt at the appropriate address is refused, as shown on the records or manifest of the United States Postal Service or independent courier, and if served by facsimile transmission will be deemed delivered on the date of receipt as shown on the received facsimile (provided, that the original is thereafter delivered as aforesaid).
Section 12.10 Effect of Breach
Without prejudice to any rights a party may otherwise have, a breach of this Agreement shall not of itself give rise to a right to terminate the Project Agreement.
Section 12.11 Counterparts
This instrument may be executed in two or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.
Section 12.12 No Third-Party Beneficiaries
Nothing contained in this Agreement is intended or will be construed as creating or conferring any rights, benefits or remedies upon, or creating any obligations of the parties hereto toward, any person or entity not a party to this Agreement.
The Port Authority of New York and New Jersey Form 1-22 Project Agreement – Form 1 Goethals Bridge Replacement Project August 30, 2013
Section 12.13 No Partnership
Nothing contained in this Agreement shall be deemed to constitute a partnership between the parties hereto. None of the parties shall hold itself out contrary to the terms of this Section 12.13.
Section 12.14 No Interference
Developer joins in this Agreement to acknowledge and consent to the arrangements set out and agrees not to knowingly do or omit to do anything that may prevent any party from enforcing its rights under this Agreement.
Section 12.15 Collateral Agent Liability
(a) Notwithstanding anything to the contrary in this Agreement, but subject to Article 4 (solely to the extent the Collateral Agent or any of its Affiliates is the Step-In Entity), Section 12.01 and Section 12.15(b), the Collateral Agent shall not have any liability to the Authority under this Agreement, unless the Collateral Agent expressly assumes such liability in writing.
(b) The Authority acknowledges and agrees that the Collateral Agent shall not be obligated or required to perform any of Developer's obligations under the Project Agreement, except during any Step-in Period (solely to the extent the Collateral Agent or any of its Affiliates is the Step-In Entity).
Section 12.16 Governing Law, Venue, Etc.
This Agreement shall be governed by and construed in accordance with the laws of the State of New York applicable to contracts executed and to be performed within the State. The parties consent to jurisdiction, and the venue for any legal action arising out of this Agreement shall lie in any New York State or U.S. Federal court sitting in the City and County of New York.
The Port Authority of New York and New Jersey Form 1-23 Project Agreement – Form 1 Goethals Bridge Replacement Project August 30, 2013
IN WITNESS WHEREOF, the parties, intending to be legally bound, have executed this Agreement as of the date first written above.
THE PORT AUTHORITY OF NY & NJ, a municipal corporate instrumentality and political
subdivision of the States of New York and New Jersey
By: __________________________
Name: _______________________
Title: _________________________
NYNJ Link Developer LLC,
a Delaware limited liability company
By: __________________________
Name: _______________________
Title: _________________________
[COLLATERAL AGENT]
[]
By: __________________________
Name: _______________________
Title: _________________________
The Port Authority of New York and New Jersey Form 1-24 Project Agreement – Form 1 Goethals Bridge Replacement Project August 30, 2013
ANNEX 1
Form of Step-in Entity Accession Agreement
[Date]
To: The Port Authority of NY & NJ: []
Copied to: [] [Lenders and other parties to Financing Documents to be listed] [insert address] For the attention of: []
From: [Step-in Entity]
THE GOETHALS BRIDGE REPLACEMENT PROJECT
STEP-IN ENTITY ACCESSION AGREEMENT
Ladies and Gentlemen:
Reference is made to the Project Agreement, dated as of [●] (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Project Agreement”), between the Port Authority of New York and New Jersey (the “Authority”) and NYNJ Link Developer LLC (the “Developer”) and the Direct Agreement, dated as of [●] (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Direct Agreement”), among the Authority, Developer and [●], as Collateral Agent.
Terms not otherwise defined herein shall have the same meaning given to them in the Direct Agreement.
We hereby confirm that we are a Step-in Entity pursuant to Article 4 of the Direct Agreement.
1. We acknowledge and agree that, upon and by reason of our execution of this Step-in Entity Accession Agreement, we will become a party to the Project Agreement and the Direct Agreement jointly and severally with Developer as a Step-in Entity and, accordingly, shall have the rights and powers and assume the obligations of Developer under the Project Agreement and the Direct Agreement in accordance with the terms of the Direct Agreement.
2. Our address, fax and telephone number and address for electronic mail for the purpose of receiving notices are as follows:
[contact details of Step-in Entity]
The Port Authority of New York and New Jersey Form 1-25 Project Agreement – Form 1 Goethals Bridge Replacement Project August 30, 2013
3. This Step-in Entity Accession Agreement shall be governed by, and construed in accordance with, the law of the State of New York. Venue for any legal action arising out of this Agreement shall lie in any New York State or U.S. Federal court sitting in the City and County of New York.
The terms set forth herein are hereby agreed to:
[Step-in Entity]
By ________________________ Name: Title:
The Port Authority of New York and New Jersey Form 1-26 Project Agreement – Form 1 Goethals Bridge Replacement Project August 30, 2013
ANNEX 2
Form of Substitute Accession Agreement
[Date]
To The Port Authority of NY & NJ []
Copied to: []
From: [Substitute]
THE GOETHALS BRIDGE REPLACEMENT PROJECT
SUBSTITUTE ACCESSION AGREEMENT
Ladies and Gentlemen:
Reference is made to the Project Agreement, dated as of [●] (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Project Agreement”), between the Port Authority of New York and New Jersey (the “Authority”) and NYNJ Link Developer LLC (the “Developer”) and the Direct Agreement, dated as of [●] (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Direct Agreement”), among the Authority, Developer and [●], as Collateral Agent.
Terms defined not otherwise defined herein shall have the same meaning given to them in the Direct Agreement.
1. We hereby confirm that we are a Substitute pursuant to Article 6 of the Direct Agreement.
2. We acknowledge and agree that, upon and by reason of our execution of this Substitute Accession Agreement, we will become a party to the Project Agreement and the Direct Agreement as a Substitute and, accordingly, shall have the rights and powers and assume the obligations of Developer under the Project Agreement and the Direct Agreement in accordance with the terms of the Direct Agreement.
3. Our address, fax and telephone number and address for electronic mail for the purpose of receiving notices are as follows:
[contact details of Substitute]
4. This Substitute Accession Agreement shall be governed by, and construed in accordance with, the law of the State of New York. Venue for any legal action arising out of this Agreement shall lie in any New York State or U.S. Federal court sitting in the City and County of New York.
The Port Authority of New York and New Jersey Form 1-27 Project Agreement – Form 1 Goethals Bridge Replacement Project August 30, 2013
The terms set forth herein are hereby agreed to:
[Substitute]
By: ________________________ Name: Title:
Agreed for and on behalf of: the Port Authority of New York and New Jersey
By: ________________________ Name: Title:
[Provided under separate cover]
The Port Authority of New York and New Jersey Form 1-28 Project Agreement – Form 1 Goethals Bridge Replacement Project August 30, 2013
ANNEX 3
Financing Documents
Part A – Funding Agreements
[List at Financial Close]
Part B – Security Documents
[List at Financial Close]
The Port Authority of New York and New Jersey Form 2-1 Project Agreement – Form 2 Goethals Bridge Replacement Project August 30, 2013
FORM 2
FORM OF AUTHORITY GENERAL COUNSEL'S LEGAL OPINION
[DATE]
TO: EACH OF THE PARTIES SET FORTH IN SCHEDULE A ATTACHED HERETO
Ladies and Gentlemen:
As General Counsel of The Port Authority of New York and New Jersey, a body corporate and politic and a municipal corporate instrumentality of the States of New York and New Jersey created and existing by virtue of the Compact of April 30, 1921, made by and between said States and thereafter consented to by the Congress of the United States (the “Port Authority”), I have examined into the transactions contemplated by: (i) that certain Goethals Bridge Replacement Project Project Agreement (the “Project Agreement”) dated as of [●], 2013 between the Port Authority and NYNJ Link Developer LLC (the “Developer”) and (ii) that certain Direct Agreement (the “Direct Agreement”) dated as of [●], 2013 among the Port Authority, the Developer and [●], as Collateral Agent. This opinion is being delivered solely in my capacity as General Counsel of the Port Authority and at the express request of the Port Authority. All terms used in this opinion and not otherwise expressly defined herein shall have the respective meanings assigned thereto or provided therefor in the Project Agreement.
For purposes of rendering the opinions set forth herein, I have examined all applicable laws, and the following documents and such other materials as I deemed necessary or appropriate for the purposes hereof:
(a) the Project Agreement;
(b) the Direct Agreement; and
(c) a transcript from the Official Minutes of a meeting of the Port Authority on April 24, 2013, entitled “Goethals Bridge Modernization Program – Project Authorization”.
The documents described in (a) and (b), above, are collectively referred to herein as the “Transaction Documents”.
In rendering the opinions expressed herein, I have assumed, without independent investigation, (i) the genuineness of all signatures on the documents reviewed by me (provided, however, I am not assuming for purposes of the opinions herein the genuineness of signatures of individuals executing documents on behalf of the Port Authority), (ii) the authenticity of all such documents submitted to me as originals, (iii) the conformity to the originals of all such documents submitted to me as copies, (iv) the due execution of all documents by individuals authorized to execute them and the delivery of all such documents (provided, however, I am not assuming for purposes of the opinions herein the due execution and delivery of documents by individuals executing documents on behalf of the Port Authority), (v) with respect to documents
The Port Authority of New York and New Jersey Form 2-2 Project Agreement – Form 2 Goethals Bridge Replacement Project August 30, 2013
executed by parties other than the Port Authority, that those parties executing those documents have the requisite power and authority to enter into and perform all obligations under those documents, that those documents are such parties’ legal, valid and binding obligations enforceable against such parties in accordance with their terms and that all statements made therein by such parties are true and correct, (vi) the legal capacity of all natural persons executing documents (provided, however, I am not assuming for purposes of the opinions herein the legal capacity of natural persons executing documents on behalf of the Port Authority), and (vii) that there are no oral or written statements or agreements that modify, amend, vary, annul or postpone, or purport to modify, amend, vary, annul or postpone, any of the terms of the Transaction Documents. As to questions of fact material to the opinions rendered herein, I have made such inquiry as in my judgment is appropriate under the circumstances.
To the extent that any opinion expressed herein is based upon “my knowledge”, or words of similar import, these words imply that in the course of my representation of the Port Authority in connection with this matter, no information has come to my attention or the attention of the attorneys currently rendering services to the Port Authority in connection with this matter that would give us actual knowledge or actual notice of the existence or absence of facts which would change the opinions stated herein.
To the extent that this opinion deals with the application of law, it is limited as to the effect on the subject transaction only of the laws of the United States of America, the State of New York and the State of New Jersey, and I express no opinion with respect to the applicability thereto, or the effect thereon, of the laws of any other jurisdiction or of principles of conflicts of laws.
Based upon the foregoing and subject to the limitations, qualifications, exceptions and assumptions set forth herein, I am of the opinion that:
(1) The Port Authority is a body corporate and politic and a municipal corporate instrumentality of the States of New York and New Jersey created and existing by virtue of the Compact of April 30, 1921, made by and between said States and thereafter consented to by the Congress of the United States, and has the requisite power and authority to execute and deliver the Transaction Documents and to perform its obligations thereunder. The Transaction Documents have been duly authorized, executed and delivered by the Port Authority and constitute the legal, valid and binding obligation of the Port Authority enforceable against the Port Authority in accordance with their respective terms; and such obligations of the Port Authority under the Transaction Documents do not create any lien on, pledge of, or security interest in, any revenues, reserve funds or other property of the Port Authority.
(2) Neither (a) the authorization, execution or delivery by the Port Authority of the Transaction Documents, (b) the performance by the Port Authority of its obligations under the Transaction Documents, nor (c) the consummation by the Port Authority of the transactions contemplated in the Transaction Documents will (i) violate or contravene any law, rule or regulation applicable to and binding upon the Port Authority, (ii) conflict with, breach or contravene, or constitute a default of, in any material respect, the provisions of any material agreement to which the Port Authority is a party or by which it is bound, or (iii) contravene any pertinent resolution of the Port Authority, or any ruling or order of any court of the United States of America, the State of New York or the State of New Jersey applicable to and binding upon the Port Authority.
The Port Authority of New York and New Jersey Form 2-3 Project Agreement – Form 2 Goethals Bridge Replacement Project August 30, 2013
(3) No approval, consent, authorization or other action by, or filing with, any court or any agency or authority of the United States of America, the State of New York or the State of New Jersey is required in connection with the execution and delivery by the Port Authority of the Transaction Documents or the performance by the Port Authority of its obligations under the Transaction Documents.
(4) There are no pending actions, suits or proceedings to which the Port Authority is a party which purport to affect the legality, validity or enforceability of any Transaction Document, or which will materially adversely affect the ability of the Port Authority to perform its obligations under any Transaction Document nor, to the best of my knowledge, has any such action, suit or proceeding been threatened in writing against the Port Authority.
(5) Under the laws of the State of New York or the State of New Jersey, the Port Authority would not have the right to claim the defense of sovereign immunity with respect to the enforcement of its obligations under the Transaction Documents and the Port Authority may be sued in a court of competent jurisdiction and appropriate venue; provided, however, that the party seeking to enforce such obligations has complied with the conditions set forth in the laws of the States of New York and New Jersey consenting to the waiver of the sovereign immunity previously enjoyed by the Port Authority.
The opinions set forth above are subject to the following additional assumptions, qualifications and exceptions:
(a) The enforceability of the Transaction Documents is subject to, and limited by (i) bankruptcy, insolvency, reorganization, arrangement, moratorium, fraudulent conveyance or transfer and other laws relating to or affecting the rights of creditors generally, now existing or hereafter enacted, and (ii) the application of general principles of equity.
(b) I express no opinion as to the nature or extent of the Port Authority's rights in, or title to, any property, or to the existence or priority of any lien or security interest applicable to any property.
(c) I express no opinion herein as to whether a court would limit enforcement of any of the enforcing party's rights or remedies under the Transaction Documents if the enforcement thereof under the circumstances would violate an implied covenant of good faith and fair dealing.
(d) I express no opinion as to the enforceability of any (i) provisions which purport to waive procedural, judicial or substantive rights to the extent not waiveable under applicable law or to restrict access to legal or equitable remedies or which purport to establish evidentiary standards, (ii) provisions relating to subrogation rights, suretyship, delay or omission of enforcement of rights or remedies, agreements to agree on future acts, prohibitions against the transfer, alienation, or hypothecation of property, consent judgments or marshaling of assets, (iii) remedies in respect of a breach that is not material or does not adversely affect the enforcing party, (iv) provisions (x) requiring the Port Authority to indemnify any party or its directors, officers, employees, agents or representatives from the consequences of their respective acts or omissions to the extent the acts or omissions involve gross negligence, recklessness, willful misconduct or unlawful conduct, or (y) exculpating any party from liability for its acts or omissions to the extent the acts or omissions involve gross negligence, recklessness, willful misconduct or unlawful conduct, and (v) provisions imposing penalties, or
The Port Authority of New York and New Jersey Form 2-4 Project Agreement – Form 2 Goethals Bridge Replacement Project August 30, 2013
default rates of interest or late payment charges upon delinquency in payment or the occurrence of a default or event of default, to the extent they are deemed to be penalties or forfeitures.
(e) I express no opinion on (i) the securities laws of the United States of America, the State of New York or the State of New Jersey, (ii) the environmental laws of the United States of America, the State of New York or the State of New Jersey, (iii) the Internal Revenue Code of 1986 and all rules and regulations promulgated thereunder and (iv) the statutes, ordinances, administrative decisions, rules, regulations and laws of counties, towns, municipalities, political subdivisions and other similar local governmental units of the State of New York or the State of New Jersey (including, without limitation, those pertaining to zoning and other real property and land use matters, and other local law matters of any kind).
This opinion is delivered to you upon the instructions of the Port Authority, solely for your benefit in connection with the referenced transaction and may not be quoted or relied on by any other person, or used for any other purpose, without our prior written consent. No opinion is to be implied or inferred beyond the opinions expressly stated herein.
The opinions expressed herein are based upon the law in effect on the date hereof, and I assume no obligation to revise, supplement or update this opinion or otherwise advise you of any matters after the date hereof should such law be changed by legislative action, judicial decision or otherwise.
Very truly yours,
Darrell Buchbinder General Counsel
The Port Authority of New York and New Jersey Form 2-5 Project Agreement – Form 2 Goethals Bridge Replacement Project August 30, 2013
SCHEDULE A
“Parties to whom Legal Opinion is Addressed”
NYNJ Link Developer LLC [ADDRESS] [EQUITY MEMBERS] [ADDRESSES] [INITIAL PURCHASERS OF PABS], in connection with the issuance of private activity bonds in respect of the Project [ADDRESSES] [TRUSTEE IN RESPECT OF PABS], in connection with the issuance of private activity bonds in respect of the Project [ADDRESSES] TIFIA [ADDRESS] cc: The Board of Commissioners The Port Authority of New York and New Jersey
The Port Authority of New York and New Jersey Form 3-1 Project Agreement – Form 3 Goethals Bridge Replacement Project August 30, 2013
FORM 3
FORM OF D&C DIRECT AGREEMENT
[DATE]
KIEWIT-WEEKS-MASSMAN, AJV
KIEWIT INFRASTRUCTURE GROUP INC.
THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY
NYNJ LINK DEVELOPER LLC
D&C DIRECT AGREEMENT relating to the Goethals Bridge Replacement Project
The Port Authority of New York and New Jersey Form 3-2 Project Agreement – Form 3 Goethals Bridge Replacement Project August 30, 2013
THIS D&C DIRECT AGREEMENT is made on [date].
BETWEEN
1. KIEWIT-WEEKS-MASSMAN, AJV, a [] (the D&C Contractor);
2. KIEWIT INFRASTRUCTURE GROUP INC., a [] (the D&C Guarantor);
3. THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY, a municipal corporate instrumentality and political subdivision of the States of New York and New Jersey created and existing by virtue of the Compact of April 30, 1921, made by and between the two States and thereafter consented to by the Congress of the United States (the Authority); and
4. NYNJ LINK DEVELOPER LLC, a Delaware limited liability company (Developer),
and collectively, the Parties.
BACKGROUND
(A) By the Project Agreement for the Goethals Bridge Replacement Project dated [ ] (the Project Agreement), the Authority has appointed Developer to carry out the Works.
(B) By a design, construction and demolition contract dated [ ] (the D&C Contract), Developer has appointed the D&C Contractor to carry out the D&C Work in relation to the Project.
(C) By a parent guaranty (the D&C Parent Guaranty), the D&C Guarantor has guaranteed the obligations of the D&C Contractor under the D&C Contract.
(D) The D&C Contractor is obliged under the D&C Contract to give a direct agreement in this form in favor of the Authority, and it is a condition precedent to the effectiveness of the Project Agreement that this D&C Direct Agreement be executed.
NOW, THEREFORE, in consideration of the foregoing premises and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound, the Parties hereby agree as follows:
1. DEFINITIONS AND INTERPRETATIONS
(a) In this D&C Direct Agreement, unless the context otherwise requires, the following expression shall have the following meaning:
D&C Contractor Documents means all Project Data (as defined in the Project Agreement).
(b) Unless expressly defined otherwise in this D&C Direct Agreement, any defined term in this D&C Direct Agreement shall have the same meaning given to such term in the D&C Contract.
The Port Authority of New York and New Jersey Form 3-3 Project Agreement – Form 3 Goethals Bridge Replacement Project August 30, 2013
2. THE D&C CONTRACTOR’S WARRANTY AND LIABILITY
(a) The D&C Contractor warrants to the Authority that it has carried out and will continue to carry out its duties under the D&C Contract in accordance with the D&C Contract and that it has exercised and will continue to exercise in the performance of those duties the reasonable skill, care and diligence to be expected of a properly qualified member of its profession experienced in carrying out duties such as its duties under the D&C Contract in relation to works of similar scope, nature and complexity to the D&C Work. In particular and without limiting the generality of the foregoing the D&C Contractor covenants with the Authority that it has carried out and will carry out and complete the D&C Works in accordance with the D&C Contract and duly observe and perform all its duties and obligations thereunder.
(b) The D&C Contractor shall be entitled in any action or proceedings by the Authority to raise equivalent rights in defense of liability (except for set off or counterclaim) as it would have against Developer under the D&C Contract, and shall have no liability under this D&C Direct Agreement that is of greater severity or of longer duration than it would have had if the Authority had been a party to the D&C Contract as joint employer.
3. DOCUMENTS
(a) To the extent that any Project Data is in the ownership or possession of the D&C Contractor and/or any Intellectual Property is owned or licensable by the D&C Contractor, the D&C Contractor undertakes (for the benefit of the Authority) to comply with the terms of Section 27.1 of the Project Agreement as if such terms were incorporated into this D&C Direct Agreement and the D&C Contractor was Developer.
(b) The D&C Contractor agrees on reasonable request at any time and following reasonable written prior notice to give the Authority or those authorized by it access to the D&C Contractor Documents and to provide copies (including copy negatives and CAD disks) thereof at the Authority’s expense.
(c) The D&C Contractor warrants to the Authority that it has used the standard of skill, care and diligence as set out in clause 2(a) to see that the D&C Contractor Documents (save to the extent duly appointed sub-contractors have been used to prepare the same) are its own original work and that in any event their use in connection with the D&C Works will not infringe the rights of any third party.
4. LIABILITY OF PARTNERS
Where the D&C Contractor is a partnership, references in this D&C Direct Agreement to “the D&C Contractor” will be deemed to include reference to each and every present and future partner of such partnership and the liability of each and every such partner under this D&C Direct Agreement will be deemed to be joint and several.
5. NOTICES
(a) Notices under this D&C Direct Agreement shall be in writing and: (a) delivered personally; (b) sent by certified mail, return receipt requested; (c) sent by a recognized overnight mail or courier service, with delivery receipt requested; or (d) sent by facsimile
The Port Authority of New York and New Jersey Form 3-4 Project Agreement – Form 3 Goethals Bridge Replacement Project August 30, 2013
or e-mail communication followed by a hard copy and with receipt confirmed by telephone, to the following addresses (or to such other address as may from time to time be specified in writing by such person):
(i) All notices, correspondence and other communications to D&C Contractor shall be delivered to the following address:
Kiewit-Weeks-Massman, AJV
Address: [____________________________]
Attn: [____________________________]
Telephone: [____________________________]
Facsimile: [____________________________]
E-mail: [____________________________]
(ii) All notices, correspondence and other communications to Developer shall be delivered to the following address or as otherwise directed by Developer’s Authorized Representative (as defined in the Project Agreement):
NYNJ Link Developer LLC
Address: [____________________________]
Attn: [____________________________]
Telephone: [____________________________]
Facsimile: [____________________________]
E-mail: [____________________________]
(iii) All notices, correspondence and other communications to the Authority shall be marked as regarding the Project and shall be delivered to the following address or as otherwise directed by the Authority’s Authorized Representative (as defined in the Project Agreement):
The Port Authority of NY & NJ
Address: [____________________________]
Attn: [____________________________]
Telephone: [____________________________]
Facsimile: [____________________________]
E-mail: [____________________________]
The Port Authority of New York and New Jersey Form 3-5 Project Agreement – Form 3 Goethals Bridge Replacement Project August 30, 2013
(iv) All notices, correspondence and other communications to D&C Guarantor shall be delivered to the following address:
Kiewit Infrastructure Group Inc.
Address: [____________________________]
Attn: [____________________________]
Telephone: [____________________________]
Facsimile: [____________________________]
E-mail: [____________________________]
(v) In addition, copies of all notices regarding Disputes (as defined in the Project Agreement), and termination and default notices shall be delivered to the following person:
Office of General Counsel
The Port Authority of NY & NJ
225 Park Avenue South
New York, NY 10010
Attn: [____________________________]
Telephone: [____________________________]
Facsimile: [____________________________]
E-mail: [____________________________]
(b) Notices shall be deemed received when actually received in the office of the addressee (or by the addressee if personally delivered) or when delivery is refused, as shown on the receipt of the U.S. Postal Service, private carrier or other person making the delivery. Notwithstanding the foregoing, notices sent by facsimile after 4:00 p.m., Eastern Standard or Daylight Time (as applicable), and all other notices received after 5:00 p.m., Eastern Standard or Daylight Time (as applicable), shall be deemed received on the first business day following delivery (that is, in order for a fax to be deemed received on the same day, at least the first page of the fax must have been received before 4:00 p.m., Eastern Standard or Daylight Time (as applicable)).
6. ASSIGNMENT
No party to this Agreement may assign or transfer any part of its rights or obligations hereunder without the prior written consent of the other party.
The Port Authority of New York and New Jersey Form 3-6 Project Agreement – Form 3 Goethals Bridge Replacement Project August 30, 2013
7. AUTHORITY’S REMEDIES
The rights and benefits conferred upon the Authority by this D&C Direct Agreement are in addition to any other rights and remedies it may have against the D&C Contractor, including without prejudice to the generality of the foregoing any remedies in negligence.
8. INSPECTION OF DOCUMENTS
Each of the D&C Contractor’s and the D&C Guarantor’s liabilities under this D&C Direct Agreement will not be in any way reduced or extinguished by reason of any inspection or approval of the D&C Contractor Documents or attendance at Project meetings or other enquiry or inspection which the Authority may make or procure to be made for its benefit or on its behalf.
9. STEP-IN RIGHTS IN FAVOR OF THE AUTHORITY
(a) Each of the D&C Contractor and the D&C Guarantor will not exercise or seek to exercise any right which may be or become available to it to terminate or treat as terminated or repudiated (as relevant) the D&C Contract and the D&C Parent Guaranty, or its engagement under it, or discontinue or suspend the performance of any duties or obligations thereunder (including the D&C Contractor’s obligations with respect to the Performance Security) without first giving to the Authority not less than forty-five (45) days’ prior written notice specifying the D&C Contractor’s and the D&C Guarantor’s grounds for terminating or treating as terminated or repudiated (as relevant) the D&C Contract and the D&C Parent Guaranty, or its engagement under it or discontinuing or suspending its performance thereof and stating the amount (if any) of monies outstanding under the D&C Contract and the D&C Parent Guaranty. Within such period of notice:
(i) the Authority may give written notice to the D&C Contractor and D&C Guarantor that the Authority will thenceforth become Developer under the D&C Contract and the D&C Parent Guaranty to the exclusion of Developer and thereupon each of the D&C Contractor and the D&C Guarantor will admit that the Authority is Developer under the D&C Contract and the D&C Parent Guaranty, respectively, and each of the D&C Contract and the D&C Parent Guaranty will be and remain in full force and effect notwithstanding any of the said grounds;
(ii) if the Authority has given notice under clause 9(a)(i) or clause 9(c), the Authority shall accept liability for Developer’s obligations under the D&C Contract and will as soon as practicable thereafter remedy any outstanding breach by Developer which is capable of remedy by the Authority; and
(iii) if the Authority has given notice under clause 9(a)(i) or clause 9(c), the Authority will from the service of such notice become responsible for all sums properly payable to the D&C Contractor under the D&C Contract accruing due before and after the service of such notice but the Authority will in paying such sums be entitled to the same rights of set-off and deduction as would have applied to Developer under the D&C Contract.
The Port Authority of New York and New Jersey Form 3-7 Project Agreement – Form 3 Goethals Bridge Replacement Project August 30, 2013
(b) Notwithstanding anything contained in this D&C Direct Agreement and notwithstanding any payments which may be made by the Authority to the D&C Contractor, the Authority will not be under any obligation to the D&C Contractor or the D&C Guarantor nor will the D&C Contractor or the D&C Guarantor have any claim or cause of action against the Authority unless and until the Authority has given written notice to the D&C Contractor and the D&C Guarantor pursuant to clause 9(a)(i) or clause 9(c).
(c) Each of the D&C Contractor and the D&C Guarantor further covenants with the Authority that if the Project Agreement is terminated by the Authority, it will, if requested by the Authority by notice in writing and subject to clause 9(a)(ii) and clause 9(a)(iii), accept the instructions of the Authority to the exclusion of Developer in respect of its duties under the D&C Contract or the D&C Parent Guaranty, as the case may be, upon the terms and conditions thereof and will if so requested in writing enter into a novation agreement whereby the Authority is substituted for Developer under the D&C Contract and the D&C Parent Guaranty.
(d) Developer acknowledges that each of the D&C Contractor and the D&C Guarantor will be entitled to rely on a notice given to it by the Authority under clause 9(c) as conclusive evidence that the Project Agreement has been terminated by the Authority.
10. APPLICABLE LAW AND JURISDICTION
This D&C Direct Agreement shall be governed by and construed in accordance with the laws of the State of New York applicable to contracts executed and to be performed within the State. The parties consent to jurisdiction, and the venue for any legal action arising out of this D&C Direct Agreement shall lie in any New York State or U.S. Federal court sitting in the City and County of New York.
11. THIRD PARTY RIGHTS
This D&C Direct Agreement is only enforceable by the original parties to it and by their successors in title and permitted assignees.
12. COUNTERPARTS, FACSIMILE OR OTHER ELECTRONIC EXECUTION
This D&C Direct Agreement and any amendments, waivers, consents or supplements hereto or in connection herewith may be executed in any number of counterparts and by different Parties in separate counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts together shall constitute but one and the same instrument; signature pages may be detached from multiple separate counterparts and attached to a single counterpart so that all signature pages are physically attached to the same document. Any copies hereof or signatures hereon delivered by facsimile or other electronic means shall, for all purposes, be deemed to be originals.
13. SEVERABILITY
If any term or provision of this D&C Direct Agreement should be invalid, illegal, or unenforceable in any respect, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. In addition, the Parties shall endeavor in good-faith negotiations to replace any such invalid, illegal, or
The Port Authority of New York and New Jersey Form 3-8 Project Agreement – Form 3 Goethals Bridge Replacement Project August 30, 2013
unenforceable provisions with valid, legal, and enforceable provisions with the same or comparable economic effect and benefit as such invalid, illegal, or unenforceable provisions.
14. ENTIRE AGREEMENT, AMENDMENT, NON-WAIVER
This D&C Direct Agreement contains the entire agreement between the Parties, and supersedes all previous agreements between the Parties, relating to the transactions contemplated herein. Neither this D&C Direct Agreement nor any of the terms hereof may be amended, supplemented, terminated, waived or modified except by an instrument in writing signed by the Parties.
IN WITNESS WHEREOF, the parties, intending to be legally bound, have executed this D&C Direct Agreement as of the date first written above.
[Signature Page Follows]
The Port Authority of New York and New Jersey Form 3-9 Project Agreement – Form 3 Goethals Bridge Replacement Project August 30, 2013
THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY, a municipal corporate instrumentality and political subdivision of the States of New York and New Jersey
By: _____________________________
Name: __________________________
Title: ____________________________
NYNJ LINK DEVELOPER LLC, a limited liability company registered under the laws of the State of Delaware
By: _____________________________
Name: __________________________
Title: ____________________________
KIEWIT-WEEKS-MASSMAN, AJV, a []
By: _____________________________
Name: __________________________
Title: ____________________________
KIEWIT INFRASTRUCTURE GROUP INC., a []
By: _____________________________
Name: __________________________
Title: ____________________________
The Port Authority of New York and New Jersey Form 4-1 Project Agreement – Form 4 Goethals Bridge Replacement Project August 30, 2013
FORM 4
FORM OF FINANCIAL MODEL
[Attached to this Agreement on a separate CD-ROM]
The Port Authority of New York and New Jersey Form 5-1 Project Agreement – Form 5 Goethals Bridge Replacement Project August 30, 2013
FORM 5
FORM OF CLOSING SECURITY
ISSUER: []
PLACE FOR PRESENTATION OF DRAFT IN PROGRESS:
(Name and Address of Bank/Branch—MUST be CITY OF NEW YORK, NEW YORK Bank/Branch)
APPLICANT: []
BENEFICIARY: PORT AUTHORITY OF NEW YORK AND NEW JERSEY 225 Park Avenue South – 14th Floor New York, NY 10003
LETTER OF CREDIT NUMBER: []
PLACE AND DATE OF ISSUE: []
AMOUNT: $[40,000,000]
EXPIRATION DATE: [Must be no earlier than 180 days following the date of Successful Proposer Selection (as defined in the ITP)]
Issuer hereby issues this Irrevocable Standby Letter of Credit (this “Letter of Credit”) in favor of Port Authority of New York and New Jersey for any sum or sums in the sum of up to Forty Million United States Dollars ($40,000,000) pursuant to the Project Agreement for the Goethals Bridge Replacement Project dated [ ] (each amount, the “Stated Amount”), available by draft at sight drawn on Issuer. Any draft under this Letter of Credit shall identify this Letter of Credit by the name of Issuer, and the Letter of Credit number, amount, and place and date of issue and that the Authority shall certify to Issuer that the Authority is entitled to draw on this Letter of Credit.
This Letter of Credit shall be honored by Issuer if presented at [CITY OF NEW YORK, NEW YORK Bank/Branch—Name & Address] on or before [180 days following the date of Successful Proposer Selection (as defined in the ITP)] (the “Expiration Date”). The obligations of Issuer hereunder are primary obligations to Beneficiary and shall not be affected by the performance or non-performance by [Name of Applicant] under any agreement with Beneficiary or by any bankruptcy, insolvency or other similar proceeding initiated by or against [Name of Applicant]. [Name of Applicant] is not the beneficiary under this Standby Letter of Credit and possesses no interest whatsoever in proceeds of any draw hereon. This Letter of Credit shall terminate on the earlier of (i) the close of business on the Expiration Date and (ii) the date on which Issuer has honored one or more draws in the full amount of Stated Amount. This Letter of Credit may not be transferred by Beneficiary to any other person. Drawings by facsimile to facsimile number [l] are acceptable (each such drawing, a “Fax Drawing”) provided, however, that a Fax Drawing will not be effectively presented until Beneficiary confirms, by telephone, Issuer’s receipt of such Fax Drawing by calling Issuer at telephone number []. Issuer will acknowledge Beneficiary’s presentment by e mail to the e mail address provided to Issuer in the Fax Drawing.
The Port Authority of New York and New Jersey Form 5-2 Project Agreement – Form 5 Goethals Bridge Replacement Project August 30, 2013
To the extent not inconsistent with the express provisions hereof, this Letter of Credit is subject to the rules of the International Standby Practices ISP98 (“ISP98”), as interpreted under the laws of the State of New York, and shall, as to matters not governed by the ISP98, be governed and construed in accordance with the laws of the State of New York, without regard to principles of conflicts of law.
With respect to any suit, action or proceedings relating to this Letter of Credit (“Proceedings”), we irrevocably: (i) submit to the exclusive jurisdiction of any New York State or U.S. Federal court sitting in the City and County of New York; and (ii) waive any objection which we may have at any time to the laying of venue of any Proceedings brought in any such court, waive any claim that such Proceedings have been brought in an inconvenient forum and further waive the right to object, with respect to such Proceedings, that such court does not have any jurisdiction over us.
Issuer:
By: _________________________
Name: []
Title: []
(Authorized Signatory of Issuer)
*** Please instruct your Bank to have the Letter of Credit issued in the above format in “Draft” form and fax to Michael Mayurnik, Credit Manager, at (212) 435-5846 for approval PRIOR to issuance in “Original” form or email a Word file to [email protected]. If the draft is not reviewed in advance, the Letter of Credit can be rejected. If you are in need of further assistance, Mr. Mayurnik can be reached at (212) 435-5838. ****
The Port Authority of New York and New Jersey App. 1-1 Project Agreement – Appendix 1 Goethals Bridge Replacement Project August 30, 2013
APPENDIX 1
DEVELOPER’S PROPOSAL COMMITMENTS
[Attached to this Agreement on a separate CD-ROM]
The Port Authority of New York and New Jersey App. 2-1 Project Agreement – Appendix 2 Goethals Bridge Replacement Project August 30, 2013
APPENDIX 2
LIST OF EQUITY MEMBERS, QUALIFIED INVESTORS AND RELATED ENTITIES