Authority of Developer. 2.1 Subject to the terms of this Agreement, Owners hereby appoint Developer as their agent and authorize Developer to take all actions, and to make all decisions, necessary or appropriate in Developer's reasonable judgment to coordinate, oversee and supervise the Construction Contract and the development, design, procurement and construction of the Outside Plant, substantially in accordance with the Development Plan and Budget. Until the Outside Completion Date all communications with respect to the Outside Plant from Owners to the Construction Contractor, any subcontractors, suppliers, vendors (including the vendors of the fiber optic cable) or service providers and other persons affiliated or associated with the Outside Plant, including all approvals, shall be communicated through Developer. It is expressly understood and agreed that actions taken by Developer in accordance with this Agreement shall be taken by Developer as agent for and in the name of Owners, and all obligations, costs or expenses reasonably incurred by Developer in the performance of its obligations hereunder are the liability of the Owners in proportion to their Interests (except as otherwise provided in this Agreement) and not the liability of Developer. Any payments made by Developer in the performance of its responsibilities under this Agreement shall be made out of funds (a) that Developer from time to time holds in trust for the Owners or (b) that Owners provide to Developer, including amounts available to be drawn under the Letters of Credit provided by the Owners to Developer. Developer shall not be required to make any advances to, or for the account of, Owners or to pay any amount except out of funds held, provided or obtained as aforesaid nor shall Developer be required to incur any liability or obligation for the account of Owners. Developer shall be reimbursed by Owners on a monthly basis upon submission of appropriate supporting documentation to Owners, for all costs advanced by Developer. 2.2 In addition to, and not in limitation of, the foregoing, Developer shall have the authority to take all actions, and to make all decisions, necessary or appropriate in Developer's reasonable judgment, for the performance of Developer's obligations set forth herein and to complete the Outside Plant in accordance with the Construction Contract and Development Plan and Budget, including without limitation: (a) the right to incur liabilities on behalf of Owners pursuant to Section 3.2 (r) hereof and reimbursable out-of-pocket expenses pursuant to Section 6.2 hereof, and (b) the right to disburse funds to pay when due (i) all the costs, expenses and fees incurred in connection with the predevelopment and development of the Outside Plant including, without limitation, the fees and expenses of outside counsel and consultants retained by Developer as agent for and in the name of the Owners, (ii) the cost of all services, materials and labor in connection with the development of the Outside Plant in accordance with the Development Plan and Budget and this Agreement (including all applicable value added tax payable to the Construction Contractor), (iii) the fees and disbursements payable to Developer under this Agreement, and (iv) all other fees and charges incurred by Developer on account of Owners in accordance with this Agreement, provided, however, that Developer shall not have authority to disburse funds to pay or incur liabilities to pay costs or expenses related to the Outside Plant and associated with Major Decisions which have not been approved by unanimous vote of the Owners with respect to Major Decisions set forth in paragraphs 1, 2, 4 and 5 of Exhibit B and the vote of at least two of the Owners with respect to Major Decisions set forth in paragraph 3 of Exhibit B. 2.3 Notwithstanding any other provision of this Agreement, Developer shall not, without the approval of all Owners, have the authority to: (a) make expenditures for items not included, or in excess of the amounts for any items provided for, in the Development Plan and Budget, or incur any liability related thereto; provided, however, that Developer may disburse such funds and/or incur liabilities notwithstanding the lack of Owners' approval if: (i) the aggregate of all such expenditures does not exceed the total amount for the Outside Plant specified in the Development Plan and Budget (exclusive of all amounts related to value added tax in Germany) and either (A) the aggregate of all such expenditures in respect of the applicable line item in the approved budget does not exceed the amount budgeted for such line item, or (B) Developer reasonably projects that savings from another line item (the "Projected Savings") will upon completion of the work relating to such line item be sufficient to pay for such expenditure and such Projected Savings are concurred to in writing by Owners holding at least * of the Interests, or (ii) an emergency exists which, in the reasonable judgment of Developer, requires the expenditure of unbudgeted funds for the preservation or safety of the Network, or to avoid the suspension of any necessary service in or to the Network, or (iii) such expenditures are necessary, in the reasonable judgment of Developer, in order to avoid a material increase in cost to Owners resulting from the delay in such expenditure, provided, that the expenditure is contemplated in the Development Plan and Budget; or (b) make or permit to be made any material changes in the Development Plan and Budget; or (c) take any action which, at the time such action was taken, Developer knew or had reason to know, would result in a delay in achieving a major milestone identified in the Development Plan and Budget or the Construction Contract by more than a total of * days; or (d) modify the Network to add or delete cities, towns or other areas from the list of Approved Cities set forth on Exhibit D which will be included in the Network. Developer shall provide each Owner with written notice and an explanation of all expenditures made under Section 2.3(a)(i) at least * business days before * The confidential portion has been omitted pursuant to a request for confidential treatment and omitted material has been filed separately with the Commission. such expenditure is made, except in the event of an emergency. In the case of an emergency, Developer shall provide such notice within * days thereafter.
Appears in 2 contracts
Samples: Development Agreement (Carrier1 International S A), Development Agreement (Carrier1 International S A)
Authority of Developer. 2.1 Subject to the terms of this Agreement, Owners hereby appoint Developer as their agent and authorize Developer to take all actions, and to make all decisions, necessary or appropriate in Developer's reasonable judgment to coordinate, oversee and supervise the Construction Contract and the development, design, procurement and construction of the Outside Plant, substantially in accordance with the Development Plan and Budget. Until the Outside Completion Date all communications with respect to the Outside Plant from Owners to the Construction Contractor, any subcontractors, suppliers, vendors (including the vendors of the fiber optic cable) or service providers and other persons affiliated or associated with the Outside Plant, including all approvals, shall be communicated through Developer. It is expressly understood and agreed that actions taken by Developer in accordance with this Agreement shall be taken by Developer as agent for and in the name of Owners, and all obligations, costs or expenses reasonably incurred by Developer in the performance of its obligations hereunder are the liability of the Owners in proportion to their Interests (except as otherwise provided in this Agreement) and not the liability of Developer. Any payments made by Developer in the performance of its responsibilities under this Agreement shall be made out of funds (a) that Developer from time to time holds in trust for the Owners or (b) that Owners provide to Developer, including amounts available to be drawn under the Letters of Credit provided by the Owners to Developer. Developer shall not be required to make any advances to, or for the account of, Owners or to pay any amount except out of funds held, provided or obtained as aforesaid nor shall Developer be required to incur any liability or obligation for the account of Owners. Developer shall be reimbursed by Owners on a monthly basis upon submission of appropriate supporting documentation to Owners, for all costs advanced by Developer.
2.2 In addition to, and not in limitation of, the foregoing, Developer shall have the authority to take all actions, and to make all decisions, necessary or appropriate in Developer's reasonable judgment, for the performance of Developer's obligations set forth herein and to complete the Outside Plant in accordance with the Construction Contract and Development Plan and Budget, including without limitation: (a) the right to incur liabilities on behalf of Owners pursuant to Section 3.2 (r) hereof and reimbursable out-of-pocket expenses pursuant to Section 6.2 hereof, and (b) the right to disburse funds to pay when due (i) all the costs, expenses and fees incurred in connection with the predevelopment and development of the Outside Plant including, without limitation, the fees and expenses of outside counsel and consultants retained by Developer as agent for and in the name of the Owners, (ii) the cost of all services, materials and labor in connection with the development of the Outside Plant in accordance with the Development Plan and Budget and this Agreement (including all applicable value added tax payable to the Construction Contractor), (iii) the fees and disbursements payable to Developer under this Agreement, and (iv) all other fees and charges incurred by Developer on account of Owners in accordance with this Agreement, provided, however, that Developer shall not have authority to disburse funds to pay or incur liabilities to pay costs or expenses related to the Outside Plant and associated with Major Decisions which have not been approved by unanimous vote of the Owners with respect to Major Decisions set forth in paragraphs 1, 2, 4 and 5 of Exhibit B and the vote of at least two of the Owners with respect to Major Decisions set forth in paragraph 3 of Exhibit B.
2.3 Notwithstanding any other provision of this Agreement, Developer shall not, without the approval of all Owners, have the authority to:
(a) make expenditures for items not included, or in excess of the amounts for any items provided for, in the Development Plan and Budget, or incur any liability related thereto; provided, however, that Developer may disburse such funds and/or incur liabilities notwithstanding the lack of Owners' approval if:
(i) the aggregate of all such expenditures does not exceed the total amount for the Outside Plant specified in the Development Plan and Budget (exclusive of all amounts related to value added tax in Germany) and either (A) the aggregate of all such expenditures in respect of the applicable line item in the approved budget does not exceed the amount budgeted for such line item, or (B) Developer reasonably projects that savings from another line item (the "Projected Savings") will upon completion of the work relating to such line item be sufficient to pay for such expenditure and such Projected Savings are concurred to in writing by Owners holding at least * [REDACTED] of the Interests, or
(ii) an emergency exists which, in the reasonable judgment of Developer, requires the expenditure of unbudgeted funds for the preservation or safety of the Network, or to avoid the suspension of any necessary service in or to the Network, or
(iii) such expenditures are necessary, in the reasonable judgment of Developer, in order to avoid a material increase in cost to Owners resulting from the delay in such expenditure, provided, that the expenditure is contemplated in the Development Plan and Budget; or
(b) make or permit to be made any material changes in the Development Plan and Budget; or
(c) take any action which, at the time such action was taken, Developer knew or had reason to know, would result in a delay in achieving a major milestone identified in the Development Plan and Budget or the Construction Contract by more than a total of * [REDACTED] days; or
(d) modify the Network to add or delete cities, towns or other areas from the list of Approved Cities set forth on Exhibit D which will be included in the Network. Developer shall provide each Owner with written notice and an explanation of all expenditures made under Section 2.3(a)(i) at least * [REDACTED] business days before * The confidential portion has been omitted pursuant to a request for confidential treatment and omitted material has been filed separately with the Commission. such expenditure is made, except in the event of an emergency. In the case of an emergency, Developer shall provide such notice within * [REDACTED] days thereafter.
Appears in 1 contract
Samples: Development Agreement (Viatel Inc)
Authority of Developer. 2.1 Subject to the terms of this Agreement, Owners hereby appoint Developer as their agent and authorize Developer to take all actions, and to make all decisions, necessary or appropriate in Developer's reasonable judgment to coordinate, oversee and supervise the Construction Contract and the development, design, procurement and construction of the Outside Plant, substantially in accordance with the Development Plan and Budget. Until the Outside Completion Date all communications with respect to the Outside Plant from Owners to the Construction Contractor, any subcontractors, suppliers, vendors (including the vendors of the fiber optic cable) or service providers and other persons affiliated or associated with the Outside Plant, including all approvals, shall be communicated through Developer. It is expressly understood and agreed that actions taken by Developer in accordance with this Agreement shall be taken by Developer as agent for and in the name of Owners, and all obligations, costs or expenses reasonably incurred by Developer in the performance of its obligations hereunder are the liability of the Owners in proportion to their Interests (except as otherwise provided in this Agreement) and not the liability of Developer. Any payments made by Developer in the performance of its responsibilities under this Agreement shall be made out of funds (a) that Developer from time to time holds in trust for the Owners or (b) that Owners provide to Developer, including amounts available to be drawn under the Letters of Credit provided by the Owners to Developer. Developer shall not be required to make any advances to, or for the account of, Owners or to pay any amount except out of funds held, provided or obtained as aforesaid nor shall Developer be required to incur any liability or obligation for the account of Owners. Developer shall be reimbursed by Owners on a monthly basis upon submission of appropriate supporting documentation to Owners, for all costs advanced by Developer.
2.2 In addition to, and not in limitation of, the foregoing, Developer shall have the authority and the obligation under this Agreement to take all actionsperform the following services:
a. Provide an evaluation of the Project, construction schedule, and budget requirements, each in terms of the other; advise the Authority on proposed site use and improvements, selection of materials and building systems and equipment; provide recommendations to make all decisionsthe Authority, necessary consistent with the Project requirements, on design, constructability, availability of materials and labor, time requirements for procurement, installation and construction; and advise the Authority on factors related to cost including but not limited to costs of alternative designs or appropriate in Developer's reasonable judgmentmaterials, budgets, life-cycle data and possible cost reductions;
b. Prepare and provide a schedule of the Project and for the construction of the Cottages (the “Project Schedule”), which shall coordinate and integrate Developer’s services, the construction contractor’s services, the Authority’s responsibilities, ordering and delivery of products and materials, and the Authority’s completion requirements.
c. Prepare and provide monthly schedule updates of the Project to the Authority;
d. Prepare and provide monthly estimate updates of the Project to the Authority for the costs necessarily incurred in the proper performance of Developer's obligations the construction of the Project (the “Cost of the Work”), which Cost of the Work shall be comprised of the costs set forth in the preliminary construction budget attached hereto and incorporated herein as Exhibit D.
e. Negotiate all necessary construction contract(s) by and between Developer and Red Brick Homes and Developments, Inc. (d.b.a. Xxxxxx Homes) (“Xxxxxx Homes”) as General Contractor for the construction of the Cottages (the “Construction Contract”) to obtain terms satisfactory to Developer in its sole discretion subject to the terms and conditions of this Agreement.
f. Act on behalf of the Authority in its relations with any governmental agency or authority with respect to all matters relating to the Project and construction of the Cottages;
g. Choose the products and materials necessary to equip the Property in a manner which satisfies all requirements of this Agreement;
h. Monitor disbursement and payment of amounts owed to each of Xxxxxx Homes and the subcontractors pursuant to the terms of the Construction Contract;
i. Ensure that the Cottages are constructed such that the Property and all improvements thereon are free and clear of all mechanics’ and materialmen’s liens;
j. In collaboration with Xxxxxx Homes establish and implement procedures for expediting the processing and approval of shop drawings and samples;
k. Secure and obtain all permits, licenses, building code approvals, and certificates of occupancy for the Cottages;
l. Cause the construction of the Cottages to be completed in a prompt and expeditious manner, consistent with good workmanship, and in compliance with the following:
i. The approved Building Plans and the approved Project Schedule, as they may be amended by the written agreement of the parties hereto;
ii. Any and all obligations of the Authority under the terms of any financing obligations;
iii. Any and all zoning regulations, county ordinances, including health, fire and safety regulations, and any other requirements of federal, state, and local permits, special use permits licenses, codes, laws, rules, regulations, and ordinances applicable to the design, construction, or use of the Project (“Applicable Laws”); and
iv. the Construction Contract;
m. Administer and supervise the Construction Contract;
n. In accordance with generally accepted construction practice, Developer will be solely and completely responsible for conditions of the job site, including safety of all persons and property during performance of the Work and adequacy of the safety measures, in, on, or near the construction site.
o. Keep, or cause to be kept, accounts, cost records, and systems as to the design and construction of the Cottages satisfactory to the Authority, which records shall be preserved for three (3) years after final payment under this Agreement or for such longer period as may be required by law, and exercise such controls as may be necessary for proper financial management of the Project;
p. Maintain, or cause to be maintained, at Developer’s expense, all office and accounting facilities and equipment necessary to adequately perform the accounting and financial responsibilities under this Agreement;
q. Make available to the Authority, during normal business hours and upon the Authority’s written request, copies of all material contracts, subcontracts, and agreements;
r. Expedite and coordinate delivery of all materials and equipment intended for and necessary to the Project;
s. Comply with and provide evidence to the Authority of such compliance with O.C.G.A. § 13-10-91 and Georgia D.O.L. Rule 300-1.02;
t. Coordinate the work of Xxxxxx Homes to complete construction of the Outside Plant Cottages in accordance with the Construction Contract Authority’s objectives as to cost, time, and Development Plan quality;
u. Obtain the necessary certificates that construction of the Cottages is substantially complete, and Budgetinspection of the same;
v. Provide regular monitoring of the Project Schedule as design and construction progress, identify potential delays, review the schedule for work not started or incomplete, recommend to the Authority adjustments in the Project Schedule if necessary to address anticipated delays, provide monthly summary reports of such monitoring, and document all delays and changes in the Project Schedule;
w. Promptly recommend courses of action to the Authority when requirements of subcontracts are not being fulfilled;
x. Regularly monitor the approved construction budget and develop cash flow reports and forecasts as needed;
y. Show actual costs for activities in process and estimates for uncompleted tasks, identify variances between actual and approved costs and advise the Authority whenever projected costs exceed approved budgets;
z. Develop and implement a system for review and processing of change orders as to the construction of the Project;
aa. Without additional expense to the Authority, pay all applicable Federal, State and local sales and other taxes associated with the Project, including without limitation: (a) taxes and assessments on the right to incur liabilities on behalf of Owners pursuant to Section 3.2 (r) hereof and reimbursable out-of-pocket expenses pursuant to Section 6.2 hereof, and (b) the right to disburse funds to pay when due (i) all the costs, expenses and fees incurred in connection with the predevelopment and development Property during its ownership of the Outside Plant including, without limitation, Property;
bb. Develop and implement a procedure for the fees review and expenses processing of outside counsel applications by subcontractors for progress and consultants retained by Developer as agent for and in the name of the Owners, (ii) the cost of all services, materials and labor in connection with the development of the Outside Plant in accordance with the Development Plan and Budget and this Agreement (including all applicable value added tax payable final payments;
cc. Deliver to the Construction Contractor), (iii) Authority at the fees and disbursements payable to Developer under this Agreement, and (iv) all other fees and charges incurred by Developer on account of Owners in accordance with this Agreement, provided, however, that Developer shall not have authority to disburse funds to pay or incur liabilities to pay costs or expenses related to the Outside Plant and associated with Major Decisions which have not been approved by unanimous vote of the Owners with respect to Major Decisions set forth in paragraphs 1, 2, 4 and 5 of Exhibit B and the vote of at least two of the Owners with respect to Major Decisions set forth in paragraph 3 of Exhibit B.
2.3 Notwithstanding any other provision of this Agreement, Developer shall not, without the approval of all Owners, have the authority to:
(a) make expenditures for items not included, or in excess of the amounts for any items provided for, in the Development Plan and Budget, or incur any liability related thereto; provided, however, that Developer may disburse such funds and/or incur liabilities notwithstanding the lack of Owners' approval if:
(i) the aggregate of all such expenditures does not exceed the total amount for the Outside Plant specified in the Development Plan and Budget (exclusive of all amounts related to value added tax in Germany) and either (A) the aggregate of all such expenditures in respect of the applicable line item in the approved budget does not exceed the amount budgeted for such line item, or (B) Developer reasonably projects that savings from another line item (the "Projected Savings") will upon completion of the work relating to such line item be sufficient to pay for such expenditure and such Projected Savings are concurred to in writing by Owners holding at least * Project a dimensioned as-built survey of the Interests, or
(ii) an emergency exists which, in the reasonable judgment of Developer, requires the expenditure of unbudgeted funds for the preservation or safety real property and as-built drawings of the Network, or to avoid Cottages; and
dd. Record the suspension progress of any necessary service in or the Project and submit monthly written progress reports to the NetworkAuthority, or
(iii) such expenditures are necessaryincluding the percentage of completion and the purposes, in the reasonable judgment number, and amounts of Developer, in order to avoid a material increase in cost to Owners resulting from the delay in such expenditure, provided, that the expenditure is contemplated in the Development Plan and Budget; or
(b) make or permit to be made any material changes in the Development Plan and Budget; or
(c) take any action which, at the time such action was taken, Developer knew or had reason to know, would result in a delay in achieving a major milestone identified in the Development Plan and Budget or the Construction Contract by more than a total of * days; or
(d) modify the Network to add or delete cities, towns or other areas from the list of Approved Cities set forth on Exhibit D which will be included in the Network. Developer shall provide each Owner with written notice and an explanation of all expenditures made under Section 2.3(a)(i) at least * business days before * The confidential portion has been omitted pursuant to a request for confidential treatment and omitted material has been filed separately with the Commission. such expenditure is made, except in the event of an emergency. In the case of an emergency, Developer shall provide such notice within * days thereafterchange orders.
Appears in 1 contract
Samples: Development Agreement
