Project Co Representations and Warranties. (a) Project Co represents and warrants to Owner that as of the date of this Project Agreement: (i) Project Co is a limited liability corporation incorporated and validly existing under the laws of Alberta, is in good standing with the Registrar of Corporations of Alberta with respect to the filing of annual returns, and has all the requisite corporate power and authority to own, lease and operate its properties and assets, to carry on its business as it is currently being conducted, to enter into this Project Agreement and the Implementing Agreements to which it is a party, and to perform its obligations hereunder and thereunder; (ii) Project Co has the requisite power, authority and corporate capacity to execute and deliver and perform this Project Agreement and the Implementing Agreements to which it is a party, and to do all acts and things, and execute, deliver and perform all other agreements, instruments, undertakings and documents as are required by this Project Agreement to be done, executed, delivered or performed; (iii) Project Co has obtained all necessary Project Co Permits, Licences and Approvals required to commence the Work; (iv) no steps or proceedings have been taken or are pending to supersede, repeal or amend its constating documents, articles or by-laws or any shareholders agreement in a manner that would materially impair or limit its ability to perform its obligations under this Project Agreement or any of the Implementing Agreements to which it is a party, and such documents and agreements are in full force and effect as of the date hereof; (v) this Project Agreement and the Implementing Agreements (when executed and delivered) to which Project Co is a party have been duly authorized, executed, and delivered by Project Co and constitute legal, valid, and binding obligations of Project Co, enforceable against Project Co in accordance with their respective terms, subject only to: (A) limitations with respect to the enforcement of remedies by bankruptcy, insolvency, moratorium, winding-up, arrangement, reorganization, fraudulent preference and conveyance and other laws of general application affecting the enforcement of creditors’ rights generally; and (B) general equitable principles and the fact that the availability of equitable remedies is in the discretion of a court and that a court may stay proceedings or the execution of judgments; (vi) the authorization, execution, delivery and performance by Project Co of this Project Agreement and the Implementing Agreements to which it is a party does not violate or conflict with, or constitute a default under: (A) its constating or organizational documents or any unanimous shareholders agreement or similar rights agreement binding on Project Co; (B) any Applicable Law; or (C) any covenant, contract, instrument, agreement or understanding to which it is a party or by which it or any of its properties or assets is bound or affected; (vii) Project Co is an Affiliate of each of the Contractor and the Construction Guarantor; (viii) no Project Co Event of Default has occurred and is continuing; (ix) all of the information regarding Project Co set out in Schedule 4 – Project Co Information, is true and correct in all material respects; (x) there are no actions, suits, proceedings, or investigations pending or, to the knowledge of its senior management, threatened against Project Co or any Project Co Party, at law or in equity, before any Governmental Authority or arbitral body (whether or not covered by insurance) that individually or in the aggregate could result in any material adverse effect on the business, properties, or assets, or the condition, financial or otherwise, of Project Co or in any impairment of its ability to perform its obligations under this Project Agreement or any Implementing Agreements to which it is a party, and Project Co has no knowledge of any violation or default with respect to any order, writ, injunction or decree of any Governmental Authority or arbitral body that would result in any such material adverse effect or impairment; (xi) Project Co has carefully reviewed the whole of this Project Agreement, including all of the Contract Documents, and all other documents made available to Project Co by or on behalf of Owner, and, to Project Co’s knowledge, nothing contained herein or therein inhibits or prevents Project Co from completing the Work in accordance with this Project Agreement in a good and safe manner so as to achieve and satisfy the requirements of this Project Agreement; (xii) Project Co is able to meet its obligations as they generally become due; (xiii) Project Co is registered under Division V of Part IX of the Excise Tax Act (Canada) and has been assigned GST/HST Number [REDACTED]; (xiv) the Scheduled Substantial Completion Date is a realistic date and is achievable by Project Co performing the Work in accordance with this Project Agreement; (xv) Project Co and the Project Co Parties, collectively, have extensive experience in the construction of health facilities and other public buildings and have the necessary high degree of expertise and experience to perform the services required by the Contract Documents, to review and interpret the Contract Documents and to complete the Work in accordance with the standard of care set out in Section 11.2(a)(viii); (xvi) the manager or supervisory personnel Project Co has assigned to the Project are highly experienced; (xvii) Project Co has a sufficient staff of qualified and competent personnel to replace its designated supervisors, subject to Owner’s approval, in the event of death, incapacity or resignation; (xviii) Project Co has conducted inspections of the Site during the Request for Proposals process and an investigation and examination of the Contract Documents, and any other documents made available to Project Co by Owner (which include, to the extent made available to Project Co by Owner, equipment lists, a legal description of the Site, copies of any registered and unregistered agreements affecting the Site, results of tests, reports of independent testing agencies and surveys and documents indicating the location of Utilities and other structures to the extent obtained by Owner, information regarding the critical requirements to maintain the operations of the Existing Facility, hospital protocols and rules and regulations, if any, including the Site Background Reports and the Contract Documents referred to in Section 11.7(c) so as to ascertain the nature or location of the Work and the Site, the physical conditions of the Site, the interface with the Existing Facility and protocols, rules and regulations if any, possible delays in commencing the Work, conditions relating to the transportation, handling and storage of materials and availability of labour and the character and availability of equipment, materials and facilities needed to perform the Work and to identify any Design Issues. Project Co has delivered to the Consultant requests for information in respect of all questions arising out of the foregoing inspections, investigations and examinations and in respect of each Design Issue identified. Based on this review, Project Co has established a Project Co Design Contingency adequate, in its judgement, to fund any change or delay cost that may arise as a result of any further Design Issue that may be identified and properly characterized as a Project Co Design Issue; (xix) Project Co has sufficient expertise available to it with the appropriate skills to review the Contract Documents in accordance with the standard of care set out in Section 11.2(a)(viii); (xx) Project Co has solicited bids from and will award Subcontracts for the Approved Subcontractor Work only to the applicable Approved Subcontractors and has not solicited bids from and will not award Subcontracts for the Approved Subcontractor Work except to the applicable Approved Subcontractors; and (xxi) Project Co has secured the Financing and is in a position to implement the Financing on or before the Financial Close Target Date, subject to the satisfaction of reasonable conditions that are customary in closing financing for projects similar to the Project.
Appears in 2 contracts
Samples: Project Agreement, Project Agreement
Project Co Representations and Warranties.
(a) Project Co represents and warrants to Owner Contracting Authority that as of the date of this Project Agreement:
(i) Project Co is a limited liability corporation incorporated and validly existing under the laws of Alberta, is in good standing with the Registrar of Corporations of Alberta with respect to the filing of annual returns[REDACTED], and has all the requisite corporate power and authority to own, lease and operate own its properties and assets, to carry on its business as it is currently being conducted, and to enter into this Project Agreement and the Implementing Agreements to which it is a party, and to perform its obligations hereunder and thereunderhereunder;
(ii) To the knowledge of Project Co, no Restricted Person has directly or indirectly, an Economic Interest in Project Co or the Project;
(iii) Project Co and the Project Co Parties, collectively, have extensive experience and are knowledgeable in the design and construction of highway projects similar to the Project in scale, scope, type and complexity and have the required ability, experience, skill and capacity to perform the Works in a timely and professional manner as set out in this Project Agreement;
(iv) Project Co has the requisite power, authority and corporate capacity to execute and deliver and perform this Project Agreement and the Implementing Agreements to which it is a party, and to do all acts and things, and execute, deliver and perform all other agreements, instruments, undertakings and documents as are required by this Project Agreement to be done, executed, delivered or performed;
(iii) Project Co has obtained all necessary Project Co Permits, Licences and Approvals required to commence the Work;
(ivv) no steps or proceedings have been taken or are pending to supersede, repeal supersede or amend its the constating documents, articles or by-laws or any shareholders agreement of Project Co in a manner that would materially impair or limit its ability to perform its obligations under this Project Agreement or any of the Implementing Agreements to which it is a party, and such documents and agreements are in full force and effect as of the date hereofAgreement;
(vvi) this Project Agreement and the Implementing Agreements (when executed and delivered) to which Project Co is a party have has been duly authorized, executed, and delivered by on behalf of Project Co and constitute constitutes a legal, valid, and binding obligations obligation of Project Co, enforceable against Project Co in accordance with their respective its terms, subject only to:
(A) limitations with respect to the enforcement of remedies by bankruptcy, insolvency, moratorium, winding-up, arrangement, reorganization, fraudulent preference and conveyance and other laws of general application affecting the enforcement of creditors’ rights generally; and
(B) general equitable principles and the fact that the availability of equitable remedies is in the discretion of a court and that a court may stay proceedings or the execution of judgments;
(vivii) the authorization, execution, delivery delivery, and performance by Project Co of this Project Agreement does not and the Implementing Agreements to which it is a party does will not violate or conflict with, or constitute a default under:
(A) its constating constating, formation or organizational documents or documents, including any unanimous shareholders agreement or similar rights agreement binding on Project Coby- laws;
(B) any Applicable Law; or
(C) any covenant, contract, instrumentagreement, agreement or understanding to which it is a party or by which it or any of its properties or assets is bound or affected;
(vii) Project Co is an Affiliate of each of the Contractor and the Construction Guarantor;
(viii) no Project Co Event of Default has occurred and is continuing;
(ix) all of the information regarding Project Co set out in Schedule 4 31 – Project Co Information, Information is true and correct in all material respects;
(x) there are no actions, suits, proceedings, or investigations pending or, to the knowledge of its senior management, or threatened against Project Co or to Project Co’s knowledge, any Project Co Party, Party at law or in equity, equity before any Governmental Authority or arbitral body (whether or not covered by insurance) that individually or in the aggregate could result in any material adverse effect on the business, properties, or assets, or the condition, financial or otherwise, of Project Co or in any impairment of its Project Co’s ability to perform its obligations under this Project Agreement or any Implementing Agreements to which it is a partyAgreement, and Project Co has no knowledge of any violation or default with respect to any order, writ, injunction injunction, or decree of any Governmental Authority or arbitral body that would could result in any such material adverse effect or impairment;
(xi) Project Co has reviewed the Background Information as set out in Section 7 and conducted the investigations in respect of the Lands as set out in Section 16 and, without affecting anything in Section 7, Section 16 and Section 18, has conducted its own additional investigations (other than in respect of the Background Information and the Lands) and has carefully reviewed the whole of this Project Agreement, including all of the Contract Documents, and all other documents made available to Project Co by or on behalf of OwnerContracting Authority, and, to Project Co’s knowledge, nothing contained herein or therein inhibits or prevents Project Co from completing the Work Works or performing the Works in accordance with this Project Agreement in a good and safe manner so as to achieve and satisfy the requirements of this Project Agreement;
(xii) Project Co is able to meet its obligations as they generally become due;
(xiii) Project Co is registered under Subdivision d of Division V of Part IX of the Excise Tax Act (Canada) and has been assigned GST/HST Number its account number is [REDACTED];
(xiv) the Scheduled Substantial Completion Date is a realistic date and is achievable by Project Co performing the Work Works in accordance with this Project Agreement;
(xv) Project Co and the Project Co Parties, collectively, have extensive experience in the construction of health facilities and other public buildings and have the necessary high degree of expertise and experience to perform the services required by the Contract Documents, to review and interpret the Contract Documents and to complete the Work in accordance with the standard of care set out in Section 11.2(a)(viii)is not a Non-Resident;
(xvi) the manager or supervisory personnel Project Co has assigned secured the Financing and is in a position to complete the Financing on or before the Financial Close Target Date, subject to the Project satisfaction of reasonable conditions that are highly experiencedcustomary in closing financing for projects similar to the Project;
(xvii) no Restricted Person has Direct or Indirect Power or Control over any member of the Project Co has a sufficient staff Group in relation to the decisions, management, actions or policies of qualified Project Co or in relation to the operation, management and competent personnel to replace its designated supervisors, subject to Owner’s approval, in ownership of the event of death, incapacity or resignationProject;
(xviii) to the knowledge of Project Co, following the exercise of reasonable due diligence, no Restricted Person has directly or indirectly, an Economic Interest in Project Co has or the Project;
(xix) Project Co and certain of the Project Co Parties have conducted inspections of the Site during the Request for Proposals process Lands (as set out in Section 16) and an investigation and examination of the Contract DocumentsProject Agreement, the Background Information (as set out in Section 7) and any other documents made available to Project Co by Owner (which include, to the extent made available to Project Co by Owner, equipment lists, a legal description of the Site, copies of any registered and unregistered agreements affecting the Site, results of tests, reports of independent testing agencies and surveys and documents indicating the location of Utilities and other structures to the extent obtained by Owner, information regarding the critical requirements to maintain the operations of the Existing Facility, hospital protocols and rules and regulations, if any, including the Site Background Reports and the Contract Documents referred to in Section 11.7(c) Contracting Authority so as to ascertain the nature or location of the Work and the SiteWorks, the physical conditions of the Site, the interface with the Existing Facility and protocols, rules and regulations if anyany applicable to the Works, possible delays in commencing the WorkWorks, conditions relating to the transportation, handling and storage of materials and availability of labour and the character and availability of equipment, materials and facilities needed to perform the Work and to identify any Design Issues. Project Co has delivered to the Consultant requests for information in respect of all questions arising out of the foregoing inspections, investigations and examinations and in respect of each Design Issue identified. Based on this review, Project Co has established a Project Co Design Contingency adequate, in its judgement, to fund any change or delay cost that may arise as a result of any further Design Issue that may be identified and properly characterized as a Project Co Design Issue;
(xix) Project Co has sufficient expertise available to it with the appropriate skills to review the Contract Documents in accordance with the standard of care set out in Section 11.2(a)(viii);Works; and
(xx) either:
(A) the COR-Certified Construction Project Co has solicited bids from and will award Subcontracts for the Approved Subcontractor Work only to the applicable Approved Subcontractors Party is in possession of its COR Certification in good standing as required under this Project Agreement and has not solicited bids from the ability to maintain such COR Certification in good standing at all times during the performance of the Works in accordance with its terms, provisions and will not award Subcontracts for conditions, or
(B) the Approved Subcontractor Work except COR-Qualified Construction Project Co Party:
(I) is in possession of its OHSAS 18001 Accreditation which remains in good standing and has the ability to maintain such OHSAS 18001 Accreditation in good standing at all times during the applicable Approved Subcontractors; performance of the Works until such COR-Qualified Construction Project Co Party receives its COR Certification as required under this Project Agreement, and
(xxiII) Project Co has secured the Financing and is in a position to implement the Financing on or before the Financial Close Target Date, subject made an application to the satisfaction of reasonable conditions that are customary in closing financing IHSA for projects similar to the Projectits COR Certification as required under this Project Agreement.
Appears in 2 contracts
Samples: Project Agreement, Project Agreement
Project Co Representations and Warranties. (a) Project Co represents and warrants to Owner Hospital that as of at the date of this Project Agreement:
(i) Project Co is a limited liability partnership formed and validly existing under the laws of the Province of Ontario, and has all the requisite power and authority to own, lease and operate its properties and assets, to carry on its business as it is currently being conducted, and to enter into this Project Agreement and any Implementing Agreements to which it is a party and to perform its obligations hereunder and thereunder;
(ii) EllisDon-LPF (Trillium) GP Inc. is a corporation incorporated and validly existing under the laws of Albertathe Province of Ontario, is in good standing with the Registrar Ministry of Corporations Government Services of Alberta Ontario with respect to the filing of annual returns, and has all the requisite corporate power and authority to own, lease and operate its properties and assets, to carry on its business as it is currently being conducted, and to enter into this Project Agreement and the any Implementing Agreements to which it is a party, party and to perform its obligations hereunder and thereunder;
(ii) thereunder in its capacity as general partner of Project Co has the requisite power, authority and corporate capacity to execute and deliver and perform this Project Agreement and the Implementing Agreements to which it is a party, and to do all acts and things, and execute, deliver and perform all other agreements, instruments, undertakings and documents as are required by this Project Agreement to be done, executed, delivered or performedCo;
(iii) Project Co has obtained all necessary Project Co Permits, Licences and Approvals required to commence the Work;
(iv) no steps or proceedings have been taken or are pending to supersede, repeal or amend its constating documents, articles or articles, by-laws or any shareholders agreement in a manner that would materially impair or limit its ability to perform its obligations under this Project Agreement or any of the Implementing Agreements to which it is a party, party and such documents and agreements they are in full force and effect as of the date hereof;
(viv) this Project Agreement and the any Implementing Agreements (when executed and delivered) to which Project Co it is a party have been duly authorized, executed, and delivered by Project Co and constitute legal, valid, and binding obligations of Project Co, enforceable against Project Co in accordance with their respective terms, subject only to:
(A) limitations with respect to the enforcement of remedies by bankruptcy, insolvency, moratorium, winding-up, arrangement, reorganization, fraudulent preference and conveyance and other laws of general application affecting the enforcement of creditors’ rights generally; and
(B) general equitable principles and the fact that the availability of equitable remedies is in the discretion of a court and that a court may stay proceedings or the execution of judgments;
(viv) the authorization, execution, delivery delivery, and performance by Project Co of this Project Agreement and the any Implementing Agreements to which it is a party does not and will not violate or conflict with, or constitute a default under:
(A) its constating or organizational documents or any unanimous shareholders agreement or similar rights agreement binding on Project Co;
(B) any Applicable Law; or
(C) any covenant, contract, instrument, instrument or agreement or understanding to which it is a party or by which it or any of its properties or assets is bound or affected;
(vii) Project Co is an Affiliate of each of the Contractor and the Construction Guarantor;
(viii) no Project Co Event of Default has occurred and is continuing;
(ix) all of the information regarding Project Co set out in Schedule 4 – Project Co Information, is true and correct in all material respects;
(xvi) there are are, to the knowledge of its senior management, no actions, suits, proceedings, or investigations pending or, to the knowledge of its senior management, or threatened against Project Co or any Project Co Party, at law or in equity, equity before any Governmental Authority or arbitral body (whether or not covered by insurance) that individually or in the aggregate could result in any material adverse effect on the business, properties, or assets, assets or the condition, financial or otherwise, of Project Co or in any impairment of its ability to perform its obligations under this Project Agreement or and any Implementing Agreements to which it is a party, and Project Co has no knowledge of any violation or default with respect to any order, writ, injunction decision, injunction, or decree of any Governmental Authority or arbitral body that would could result in any such material adverse effect or impairment;
(xi) Project Co has carefully reviewed the whole of this Project Agreement, including all of the Contract Documents, and all other documents made available to Project Co by or on behalf of Owner, and, to Project Co’s knowledge, nothing contained herein or therein inhibits or prevents Project Co from completing the Work in accordance with this Project Agreement in a good and safe manner so as to achieve and satisfy the requirements of this Project Agreement;
(xiivii) Project Co is able to meet its obligations as they generally become due;; and
(xiiiviii) Project Co is registered under Division V of Part IX of the Excise Tax Act (Canada) and has been assigned GST/HST Number [REDACTED];
(xiv) the Scheduled Substantial Completion Date is a realistic date and is achievable by Project Co performing the Work in accordance with this Project Agreement;
(xv) Project Co and the Project Co Parties, collectively, have extensive experience in the construction of health facilities and other public buildings and have the necessary high degree of expertise and experience to perform the services required by the Contract Documents, to review and interpret the Contract Documents and to complete the Work in accordance with the standard of care set out in Section 11.2(a)(viii);
(xvi) the manager or supervisory personnel Project Co has assigned to the Project are highly experienced;
(xvii) Project Co has a sufficient staff of qualified and competent personnel to replace its designated supervisors, subject to Owner’s approval, in the event of death, incapacity or resignation;
(xviii) Project Co has conducted inspections of the Site during the Request for Proposals process and an investigation and examination of the Contract Documents, and any other documents made available to Project Co by Owner (which include, to the extent made available to Project Co by Owner, equipment lists, a legal description of the Site, copies of any registered and unregistered agreements affecting the Site, results of tests, reports of independent testing agencies and surveys and documents indicating the location of Utilities and other structures to the extent obtained by Owner, information regarding the critical requirements to maintain the operations of the Existing Facility, hospital protocols and rules and regulations, if any, including the Site Background Reports and the Contract Documents referred to in Section 11.7(c) so as to ascertain the nature or location of the Work and the Site, the physical conditions of the Site, the interface with the Existing Facility and protocols, rules and regulations if any, possible delays in commencing the Work, conditions relating to the transportation, handling and storage of materials and availability of labour and the character and availability of equipment, materials and facilities needed to perform the Work and to identify any Design Issues. Project Co has delivered to the Consultant requests for information in respect of all questions arising out of the foregoing inspections, investigations and examinations and in respect of each Design Issue identified. Based on this review, Project Co has established a Project Co Design Contingency adequate, in its judgement, to fund any change or delay cost that may arise as a result of any further Design Issue that may be identified and properly characterized as a Project Co Design Issue;
(xix) Project Co has sufficient expertise available to it with the appropriate skills to review the Contract Documents in accordance with the standard of care set out in Section 11.2(a)(viii);
(xx) Project Co has solicited bids from and will award Subcontracts for the Approved Subcontractor Work only to the applicable Approved Subcontractors and has not solicited bids from and will not award Subcontracts for the Approved Subcontractor Work except to the applicable Approved Subcontractors; and
(xxi) Project Co has secured the Financing and is in a position to implement the Financing on or before the Financial Close Target Date, subject to the satisfaction of reasonable conditions that are customary in closing financing for projects similar to the Project.
Appears in 2 contracts
Samples: Project Agreement, Project Agreement
Project Co Representations and Warranties. (a) Project Co represents and warrants to Owner Hospital that as of at the date of this Project Agreement:
(i) Project Co is a limited liability corporation incorporated and validly existing under the laws of Alberta, is in good standing with the Registrar of Corporations of Alberta with respect to the filing of annual returnsOntario, and has all the requisite corporate power and authority to own, lease and operate its properties and assets, to carry on its business as it is currently being conducted, and to enter into this Project Agreement and the any Implementing Agreements to which it is a party, party and to perform its obligations hereunder and thereunder;
(ii) Project Co has the requisite power, authority and corporate capacity to execute and deliver and perform this Project Agreement and the Implementing Agreements to which it is a party, and to do all acts and things, and execute, deliver and perform all other agreements, instruments, undertakings and documents as are required by this Project Agreement to be done, executed, delivered or performed;
(iii) Project Co has obtained all necessary Project Co Permits, Licences and Approvals required to commence the Work;
(iv) no steps or proceedings have been taken or are pending to supersede, repeal or amend its constating documents, articles or articles, by-laws or any shareholders agreement in a manner that would materially impair or limit its ability to perform its obligations under this Project Agreement or any of the Implementing Agreements to which it is a party, party and such documents and agreements they are in full force and effect as of the date hereof;
(viii) this Project Agreement and the any Implementing Agreements (when executed and delivered) to which Project Co it is a party have been duly authorized, executed, and delivered by Project Co and constitute legal, valid, and binding obligations of Project Co, enforceable against Project Co in accordance with their respective terms, subject only to:
(A) A. limitations with respect to the enforcement of remedies by bankruptcy, insolvency, moratorium, winding-up, arrangement, reorganization, fraudulent preference and conveyance and other laws of general application affecting the enforcement of creditors’ rights generally; and
(B) B. general equitable principles and the fact that the availability of equitable remedies is in the discretion of a court and that a court may stay proceedings or the execution of judgments;
(viiv) the authorization, execution, delivery delivery, and performance by Project Co of this Project Agreement and the any Implementing Agreements to which it is a party does not and will not violate or conflict with, or constitute a default under:
(A) A. its constating or organizational documents or any unanimous shareholders agreement or similar rights agreement binding on Project Co;
(B) B. any Applicable Law; or
(C) C. any covenant, contract, instrument, instrument or agreement or understanding to which it is a party or by which it or any of its properties or assets is bound or affected;
(vii) Project Co is an Affiliate of each of the Contractor and the Construction Guarantor;
(viii) no Project Co Event of Default has occurred and is continuing;
(ix) all of the information regarding Project Co set out in Schedule 4 – Project Co Information, is true and correct in all material respects;
(xv) there are no actions, suits, proceedings, or investigations pending or, to the knowledge of its senior management, threatened against Project Co or any Project Co Party, at law or in equity, equity before any Governmental Authority or arbitral body (whether or not covered by insurance) that individually or in the aggregate could result in any material adverse effect on the business, properties, or assets, assets or the condition, financial or otherwise, of Project Co or in any impairment of its ability to perform its obligations under this Project Agreement or any of any Implementing Agreements to which it is a party, and Project Co has no knowledge of any violation or default with respect to any order, writ, injunction decision, injunction, or decree of any Governmental Authority or arbitral body that would could result in any such material adverse effect or impairment;
(xivi) Project Co has carefully reviewed the whole is a wholly owned subsidiary of this Project Agreement, including all of the Contract Documents, and all other documents made available to Project Co by or on behalf of Owner, and, to Project Co’s knowledge, nothing contained herein or therein inhibits or prevents Project Co from completing the Work in accordance with this Project Agreement in a good and safe manner so as to achieve and satisfy the requirements of this Project AgreementContractor;
(xiivii) Project Co is able to meet its obligations as they generally become due;
(xiiiviii) Project Co is registered under Division V of Part IX of the Excise Tax Act (Canada) and has been assigned GST/HST Number [REDACTED];); and
(xiv) the Scheduled Substantial Completion Date is a realistic date and is achievable by Project Co performing the Work in accordance with this Project Agreement;
(xv) Project Co and the Project Co Parties, collectively, have extensive experience in the construction of health facilities and other public buildings and have the necessary high degree of expertise and experience to perform the services required by the Contract Documents, to review and interpret the Contract Documents and to complete the Work in accordance with the standard of care set out in Section 11.2(a)(viii);
(xvi) the manager or supervisory personnel Project Co has assigned to the Project are highly experienced;
(xviiix) Project Co has a sufficient staff of qualified and competent personnel to replace its designated supervisors, obtained an indicative term sheet which is subject to Owner’s approval, in the event of death, incapacity or resignation;
(xviii) Project Co has conducted inspections of the Site during the Request for Proposals process various terms and an investigation conditions and examination of the Contract Documents, and any other documents made available is diligently proceeding to Project Co by Owner (which include, to the extent made available to Project Co by Owner, equipment lists, a legal description of the Site, copies of any registered and unregistered agreements affecting the Site, results of tests, reports of independent testing agencies and surveys and documents indicating the location of Utilities and other structures to the extent obtained by Owner, information regarding the critical requirements to maintain the operations of the Existing Facility, hospital protocols and rules and regulations, if any, including the Site Background Reports and the Contract Documents referred to in Section 11.7(c) so as to ascertain the nature or location of the Work and the Site, the physical conditions of the Site, the interface with the Existing Facility and protocols, rules and regulations if any, possible delays in commencing the Work, conditions relating to the transportation, handling and storage of materials and availability of labour and the character and availability of equipment, materials and facilities needed to perform the Work and to identify any Design Issues. Project Co has delivered to the Consultant requests for information in respect of all questions arising out of the foregoing inspections, investigations and examinations and in respect of each Design Issue identified. Based on this review, Project Co has established a Project Co Design Contingency adequate, in its judgement, to fund any change or delay cost that may arise as a result of any further Design Issue that may be identified and properly characterized as a Project Co Design Issue;
(xix) Project Co has sufficient expertise available to it with the appropriate skills to review the Contract Documents in accordance with the standard of care set out in Section 11.2(a)(viii);
(xx) Project Co has solicited bids from and will award Subcontracts for the Approved Subcontractor Work only to the applicable Approved Subcontractors and has not solicited bids from and will not award Subcontracts for the Approved Subcontractor Work except to the applicable Approved Subcontractors; and
(xxi) Project Co has secured arrange the Financing and is in order to be in a position to implement the Financing on or before the Financial Close Target Date, subject to the satisfaction or waiver of reasonable the Contracting Parties Conditions or any conditions that are customary in closing financing for projects similar to favour of the Project.Lender
Appears in 1 contract
Samples: Project Agreement
Project Co Representations and Warranties. (a) Project Co represents and warrants to Owner that as of the date of this Project Agreement:
(i) Project Co is a limited liability corporation incorporated and validly existing under the laws of Albertathe jurisdiction of its organization, is in good standing with the Registrar Ministry of Corporations of Alberta Government and Consumer Services with respect to the filing of annual returns, and has all the requisite corporate power and authority to own, lease and operate its properties and assets, to carry on its business as it is currently being conducted, to enter into this Project Agreement and the Implementing Agreements to which it is a party, and to perform its obligations hereunder and thereunder;
(ii) Project Co has the requisite power, authority and corporate capacity to execute and deliver and perform this Project Agreement and the Implementing Agreements to which it is a party, and to do all acts and things, and execute, deliver and perform all other agreements, instruments, undertakings and documents as are required by this Project Agreement to be done, executed, delivered or performed;
(iii) Project Co has obtained all necessary Project Co Permits, Licences and Approvals required to commence the Work;
(iv) no steps or proceedings have been taken or are pending to supersede, repeal or amend its constating documents, articles or by-laws or any shareholders agreement in a manner that would materially impair or limit its ability to perform its obligations under this Project Agreement or any of the Implementing Agreements to which it is a party, and such documents and agreements are in full force and effect as of the date hereof;
(v) this Project Agreement and the Implementing Agreements (when executed and delivered) to which Project Co is a party have been duly authorized, executed, and delivered by Project Co and constitute legal, valid, and binding obligations of Project Co, enforceable against Project Co in accordance with their respective terms, subject only to:
(A) limitations with respect to the enforcement of remedies by bankruptcy, insolvency, moratorium, winding-up, arrangement, reorganization, fraudulent preference and conveyance and other laws of general application affecting the enforcement of creditors’ rights generally; and
(B) general equitable principles and the fact that the availability of equitable remedies is in the discretion of a court and that a court may stay proceedings or the execution of judgments;
(vi) the authorization, execution, delivery and performance by Project Co of this Project Agreement and the Implementing Agreements to which it is a party does not violate or conflict with, or constitute a default under:
(A) its constating constating, formation or organizational documents documents, including any by-laws, or any unanimous shareholders agreement or similar rights agreement binding on Project Co;
(B) any Applicable Law; or
(C) any covenant, contract, instrument, agreement or understanding to which it is a party or by which it or any of its properties or assets is bound or affected;
(vii) Project Co is an Affiliate a wholly owned subsidiary of each of the Contractor and the Construction Guarantor;
(viii) no Project Co Event of Default has occurred and is continuing;
(ix) all of the information regarding Project Co set out in Schedule 4 – Project Co Information, is true and correct in all material respects;
(x) there are no actions, suits, proceedings, or investigations pending or, to the knowledge of its senior management, threatened against Project Co or any Project Co Party, at law or in equity, before any Governmental Authority or arbitral body (whether or not covered by insurance) that individually or in the aggregate could result in any material adverse effect on the business, properties, or assets, or the condition, financial or otherwise, of Project Co or in any impairment of its ability to perform its obligations under this Project Agreement or any Implementing Agreements to which it is a party, and Project Co has no knowledge of any violation or default with respect to any order, writ, injunction or decree of any Governmental Authority or arbitral body that would result in any such material adverse effect or impairment;
(xi) Project Co has carefully reviewed the whole of this Project Agreement, including all of the Contract Documents, and all other documents made available to Project Co by or on behalf of Owner, and, to Project Co’s knowledge, nothing contained herein or therein inhibits or prevents Project Co from completing the Work in accordance with this Project Agreement in a good and safe manner so as to achieve and satisfy the requirements of this Project Agreement;
(xii) Project Co is able to meet its obligations as they generally become due;
(xiii) Project Co is registered under Division V of Part IX of the Excise Tax Act (Canada) and has been assigned GST/HST Number [REDACTED];
(xiv) the Scheduled Substantial Completion Date is a realistic date and is achievable by Project Co performing the Work in accordance with this Project Agreement;
(xv) Project Co and the Project Co Parties, collectively, have extensive experience in the construction of health facilities and other public buildings and have the necessary high degree of expertise and experience to perform the services required by the Contract Documents, to review and interpret the Contract Documents and to complete the Work in accordance with the standard of care set out in Section 11.2(a)(viii);
(xvi) the manager or supervisory personnel Project Co has assigned to the Project are highly experienced;
(xvii) Project Co has a sufficient staff of qualified and competent personnel to replace its designated supervisors, subject to Owner’s approval, in the event of death, incapacity or resignation;
(xviii) Project Co has and certain of the Project Co Parties have conducted inspections of the Site during the Request for Proposals process and an investigation and examination of the Contract Documents, and any other documents made available to Project Co by Owner (which include, to the extent made available to Project Co by Owner, equipment lists, a legal description of the Site, copies of any registered and unregistered agreements affecting the Site, results of tests, reports of independent testing agencies and surveys and documents indicating the location of Utilities and other structures to the extent obtained by Owner, information regarding the critical requirements to maintain the operations of the Existing Facility, hospital protocols and rules and regulations, if any, including the Site Background Reports and the Contract Documents referred to in Section 11.7(c)) so as to ascertain the nature or location of the Work and the Site, the physical conditions of the Site, the interface with the Existing Facility and protocols, rules and regulations if any, possible delays in commencing the Work, conditions relating to the transportation, handling and storage of materials and availability of labour and the character and availability of equipment, materials and facilities needed to perform the Work and to identify any Design Issues. Project Co has delivered to the Consultant requests for information in respect of all questions arising out of the foregoing inspections, investigations and examinations and in respect of each Design Issue identified. Based on this review, Project Co has established a Project Co Design Contingency adequate, in its judgement, to fund any change or delay cost that may arise as a result of any further Design Issue that may be identified and properly characterized as a Project Co Design Issue;
(xix) Project Co has sufficient expertise available to it with the appropriate skills to review the Contract Documents in accordance with the standard of care set out in Section 11.2(a)(viii);
(xx) Project Co has solicited bids from and will award Subcontracts for the Approved Subcontractor Work only to the applicable Approved Subcontractors and has not solicited bids from and will not award Subcontracts for the Approved Subcontractor Work except to the applicable Approved Subcontractors; and
(xxi) Project Co has secured the Financing and is in a position to implement the Financing on or before the Financial Close Target Date, subject to the satisfaction of reasonable conditions that are customary in closing financing for projects similar to the Project.
Appears in 1 contract
Samples: Project Agreement
Project Co Representations and Warranties. (a) Project Co represents and warrants to Owner the CTC that as of the date of this Project Agreement:
(i) Project Co is a limited liability corporation incorporated and validly existing under the laws of Albertathe Province of Ontario, is in good standing with the Registrar Ministry of Corporations Government Services of Alberta Ontario with respect to the filing of annual returnsreports, and has all the requisite corporate power and authority to own, lease and operate own its properties and assets, to carry on its business as it is currently being conducted, and to enter into this Project Agreement and the Implementing Agreements to which it is a party, and to perform its obligations hereunder and thereunderhereunder;
(ii) Project Co and the Project Co Parties, collectively, have extensive experience and are knowledgeable in the design and construction of facilities similar to the Facilities and have the required ability, experience, skill and capacity to perform the Works in a timely and professional manner as set out in this Project Agreement;
(iii) Project Co has the requisite power, authority and corporate capacity to execute and deliver and perform this Project Agreement and the Implementing Agreements to which it is a partyAgreement, and to do all acts and things, and execute, deliver and perform all other agreements, instruments, undertakings and documents as are required by this Project Agreement to be done, executed, delivered or performed;
(iii) Project Co has obtained all necessary Project Co Permits, Licences and Approvals required to commence the Work;
(iv) no steps or proceedings have been taken or are pending to supersede, repeal supersede or amend its the constating documents, articles or by-laws or any shareholders agreement of Project Co in a manner that would materially impair or limit its ability to perform its the obligations of Project Co under this Project Agreement or any of the Implementing Agreements to which it is a party, and such documents and agreements are in full force and effect as of the date hereofAgreement;
(v) this Project Agreement and the Implementing Agreements (when executed and delivered) to which Project Co is a party have has been duly authorized, executed, and delivered by Project Co and constitute constitutes a legal, valid, and binding obligations obligation of Project Co, enforceable against Project Co in accordance with their respective its terms, subject only to:
(A) limitations with respect to the enforcement of remedies by bankruptcy, insolvency, moratorium, winding-up, arrangement, reorganization, fraudulent preference and conveyance and other laws of general application affecting the enforcement of creditors’ rights generally; and
(B) general equitable principles and the fact that the availability of equitable remedies is in the discretion of a court and that a court may stay proceedings or the execution of judgments;
(vi) the authorization, execution, delivery delivery, and performance by Project Co of this Project Agreement does not and the Implementing Agreements to which it is a party does will not violate or conflict with, or constitute a default under:
(A) its constating constating, formation or organizational documents or documents, including any unanimous shareholders agreement or similar rights agreement binding on Project Coby- laws;
(B) any Applicable Law; or
(C) any covenant, contract, instrumentagreement, agreement or understanding to which it is a party or by which it or any of its properties or assets is bound or affected;
(vii) Project Co is an Affiliate of each of the Contractor and the Construction Guarantor;
(viii) no Project Co Event of Default has occurred and is continuing;
(ixviii) all of the information regarding Project Co set out in Schedule 4 31 – Project Co Information, Information is true and correct in all material respects;
(xix) there are no actions, suits, proceedings, or investigations pending or, to the knowledge of its senior management, or threatened against Project Co or or, to Project Co’s knowledge, any Project Co Party, Party at law or in equity, equity before any Governmental Authority or arbitral body (whether or not covered by insurance) that individually or in the aggregate could result in any material adverse effect on the business, properties, or assets, or the condition, financial or otherwise, of Project Co or in any impairment of its ability to perform its obligations under this Project Agreement or any Implementing Agreements to which it is a partyAgreement, and Project Co has no knowledge of any violation or default with respect to any order, writ, injunction injunction, or decree of any Governmental Authority or arbitral body that would could result in any such material adverse effect or impairment;
(xix) Project Co has carefully reviewed the whole of this Project Agreement, including all of the Contract Documents, and all other documents made available to Project Co by or on behalf of Ownerthe CTC, and, to Project Co’s knowledge, nothing contained herein or therein inhibits or prevents Project Co from completing the Work Works or performing the Works in accordance with this Project Agreement in a good and safe manner so as to achieve and satisfy the requirements of this Project Agreement;
(xiixi) Project Co is able to meet its obligations as they generally become due;
(xiiixii) Project Co is registered under Division V of Part IX of the Excise Tax Act (Canada) and has been assigned GST/its HST Number registration number is [REDACTED];
(xivxiii) the Scheduled Substantial Completion Date is a realistic date and is achievable by Project Co performing the Work Works in accordance with this Project Agreement;
(xiv) Project Co is not a Non-Resident;
(xv) Project Co and the has obtained all necessary Project Co PartiesPermits, collectivelyLicences, have extensive experience in Approvals and Agreements required to commence the construction of health facilities and other public buildings and have the necessary high degree of expertise and experience to perform the services required by the Contract Documents, to review and interpret the Contract Documents and to complete the Work in accordance with the standard of care set out in Section 11.2(a)(viii)Works;
(xvi) the manager or supervisory personnel Project Co has assigned to the Project are highly experienced;
(xvii) Project Co has a sufficient staff of qualified and competent personnel to replace its designated supervisors, subject to Ownerthe CTC’s approval, in the event of death, incapacity or resignation;
(xviii) Project Co has and certain of the Project Co Parties have conducted inspections of the Site during the Request for Proposals process prior to Commercial Close and an investigation and examination of the Contract DocumentsProject Agreement, the Background Information and any other documents made available to Project Co by Owner (which include, to the extent made available to Project Co by Owner, equipment lists, a legal description of the Site, copies of any registered and unregistered agreements affecting the Site, results of tests, reports of independent testing agencies and surveys and documents indicating the location of Utilities and other structures to the extent obtained by Owner, information regarding the critical requirements to maintain the operations of the Existing Facility, hospital protocols and rules and regulations, if any, including the Site Background Reports and the Contract Documents referred to in Section 11.7(c) CTC so as to ascertain the nature or location of the Work Works and the Site, the physical conditions of the Site, the interface with the Existing Facility and protocols, rules and regulations if any, possible delays in commencing the Work, conditions relating to the transportation, handling and storage of materials and availability of labour and the character and availability of equipment, materials and facilities needed to perform the Work and to identify any Design Issues. Project Co has delivered to the Consultant requests for information in respect of all questions arising out of the foregoing inspections, investigations and examinations and in respect of each Design Issue identified. Based on this review, Project Co has established a Project Co Design Contingency adequate, in its judgement, to fund any change or delay cost that may arise as a result of any further Design Issue that may be identified and properly characterized as a Project Co Design IssueWorks;
(xix) Project Co has sufficient expertise available to it with the appropriate skills to review the Contract Documents in accordance with the standard of care set out in Section 11.2(a)(viii);
(xx) Project Co has solicited bids from and will award Subcontracts for the Approved Subcontractor Work only to the applicable Approved Subcontractors and has not solicited bids from and will not award Subcontracts for the Approved Subcontractor Work except to the applicable Approved Subcontractors; and
(xxi) Project Co has secured the Financing and is in a position to implement complete the Financing on or before the Financial Close Target Date, subject to the satisfaction of reasonable conditions that are customary in closing financing for projects similar to the Project;
(xx) no Restricted Person has Direct or Indirect Power or Control over any member of the Project Co Group in relation to the decisions, management, actions or policies of Project Co or in relation to the operation, management and ownership of the Project; and
(xxi) to the knowledge of Project Co, no Restricted Person has directly or indirectly, an Economic Interest in Project Co or the Project.
Appears in 1 contract
Samples: Project Agreement
Project Co Representations and Warranties. (a) Project Co represents and warrants to Owner HMQ that as of the date of this Project Agreement:
(i) Project Co is a limited liability corporation incorporated formed and validly existing under the laws of Alberta, is in good standing with the Registrar of Corporations of Alberta with respect to the filing of annual returnsOntario, and has all the requisite corporate power and authority to own, lease and operate own its properties and assets, to carry on its business as it is currently being conducted, and to enter into this Project Agreement and each of the Implementing Agreements to which it is a party, and to perform its obligations hereunder and thereunder;
(ii) Project Co and the Project Co Parties, collectively, have extensive experience and are knowledgeable in the design and construction of light rail infrastructure and associated facilities and have the required ability, experience, skill and capacity to perform the Works in a timely and professional manner as set out in this Project Agreement;
(iii) Project Co has the requisite power, authority and corporate capacity to execute and deliver and perform this Project Agreement and the Implementing Agreements to which it is a partyAgreement, and to do all acts and things, and execute, deliver and perform all other agreements, instruments, undertakings and documents as are required by this Project Agreement to be done, executed, delivered or performed;
(iii) Project Co has obtained all necessary Project Co Permits, Licences and Approvals required to commence the Work;
(iv) no steps or proceedings have been taken or are pending to supersede, repeal supersede or amend its the constating documents, articles or by-laws or any shareholders agreement of Project Co in a manner that would materially impair or limit its ability to perform its the obligations of Project Co under this Project Agreement or any of the Implementing Agreements to which it is a party, and such documents and agreements are in full force and effect as of the date hereof;
(v) this Project Agreement and the Implementing Agreements (when executed and delivered) to which Project Co is a party have been duly authorized, executed, and delivered by Project Co and constitute a legal, valid, and binding obligations of Project Co, enforceable against Project Co in accordance with their respective terms, subject only to:
(A) limitations with respect to the enforcement of remedies by bankruptcy, insolvency, moratorium, winding-up, arrangement, reorganization, fraudulent preference and conveyance and other laws of general application affecting the enforcement of creditors’ rights generally; and
(B) general equitable principles and the fact that the availability of equitable remedies is in the discretion of a court and that a court may stay proceedings or the execution of judgments;
(vi) the authorization, execution, delivery delivery, and performance by Project Co of this Project Agreement and the Implementing Agreements to which it is a party does not and will not violate or conflict with, or constitute a default under:
(A) its constating constating, formation or organizational documents or documents, including any unanimous shareholders agreement or similar rights agreement binding on Project Coby- laws;
(B) any Applicable Law; or
(C) any covenant, contract, instrumentagreement, agreement or understanding to which it is a party or by which it or any of its properties or assets is bound or affected;
(vii) Project Co is an Affiliate of each of the Contractor and the Construction Guarantor;
(viii) no Project Co Event of Default has occurred and is continuing;
(ixviii) all of the information regarding Project Co set out in Schedule 4 – 31 - Project Co Information, Information is true and correct in all material respects;
(xix) there are no actions, suits, proceedings, or investigations pending or, to the knowledge of its senior management, or threatened against Project Co or or, to Project Co’s knowledge, any Project Co Party, Party at law or in equity, equity before any Governmental Authority or arbitral body (whether or not covered by insurance) that individually or in the aggregate could result in any material adverse effect on the business, properties, or assets, or the condition, financial or otherwise, of Project Co or in any impairment of its ability to perform its obligations under this Project Agreement or any of the Implementing Agreements to which it is a party, and Project Co has no knowledge of any violation or default with respect to any order, writ, injunction injunction, or decree of any Governmental Authority or arbitral body that would could result in any such material adverse effect or impairment;
(xix) Project Co has carefully reviewed the whole of this Project Agreement, including all of the Contract Documents, and all other documents made available to Project Co by or on behalf of OwnerHMQ, and, to Project Co’s knowledge, nothing contained herein or therein inhibits or prevents Project Co from completing the Work Works or performing the Works in accordance with this Project Agreement in a good and safe manner so as to achieve and satisfy the requirements of this Project Agreement;
(xiixi) Project Co is able to meet its obligations as they generally become due;
(xiiixii) Project Co is registered under Division V of Part IX of the Excise Tax Act (Canada) and has been assigned GST/its HST Number registration number is [REDACTED];
(xivxiii) the Scheduled Substantial Completion Date is a realistic date and is achievable by Project Co performing the Work Works in accordance with this Project Agreement;
(xiv) Project Co is not a Non-Resident;
(xv) Project Co and the has obtained, or will obtain, all necessary Project Co PartiesPermits, collectivelyLicences, have extensive experience in Approvals and Agreements required to commence the construction of health facilities and other public buildings and have the necessary high degree of expertise and experience to perform the services required by the Contract Documents, to review and interpret the Contract Documents and to complete the Work in accordance with the standard of care set out in Section 11.2(a)(viii)Works;
(xvi) the manager or supervisory personnel Project Co has assigned to the Project are highly experienced;
(xvii) Project Co has a sufficient staff of qualified and competent personnel to replace its designated supervisors, subject to OwnerHMQ’s approval, in the event of death, incapacity or resignation;
(xviii) Project Co has and certain of the Project Co Parties have conducted inspections of the Site during the Request for Proposals process and an investigation and examination of the Contract Documents, and any other documents made available to Project Co by Owner HMQ (which include, to the extent made available to Project Co by OwnerHMQ, equipment lists, a legal description of the Site, copies of any registered and unregistered agreements affecting the Site, results of tests, reports of independent testing agencies and surveys and documents indicating the location of Utilities and other structures to the extent obtained by Owner, information regarding the critical requirements to maintain the operations of the Existing Facility, hospital protocols and rules and regulations, if any, including the Site Background Reports and the Contract Documents referred to in Section 11.7(cHMQ) so as to ascertain the nature or location of the Work Works and the Site, the physical conditions of the Site, the interface with the Existing Facility Facilities and protocols, rules and regulations if any, possible delays in commencing the WorkWorks, conditions relating to the transportation, handling and storage of materials and availability of labour and the character and availability of equipment, materials and facilities needed to perform the Work and to identify any Design Issues. Project Co has delivered to the Consultant requests for information in respect of all questions arising out of the foregoing inspections, investigations and examinations and in respect of each Design Issue identified. Based on this review, Project Co has established a Project Co Design Contingency adequate, in its judgement, to fund any change or delay cost that may arise as a result of any further Design Issue that may be identified and properly characterized as a Project Co Design IssueWorks;
(xix) Project Co has sufficient expertise available to it with the appropriate skills to review the Contract Documents in accordance with the standard of care set out in Section 11.2(a)(viii11.11(a)(viii);
(xx) Project Co has solicited bids from and will award Subcontracts for the Approved Subcontractor Work only to the applicable Approved Subcontractors and has not solicited bids from and will not award Subcontracts for the Approved Subcontractor Work except to the applicable Approved Subcontractors; and
(xxixx) Project Co has secured the Financing and is in a position to implement the Financing on or before the Financial Close Target Date, subject to the satisfaction of reasonable conditions that are customary in closing financing for projects similar to the Project.
Appears in 1 contract
Samples: Project Agreement
Project Co Representations and Warranties. (a) Project Co represents and warrants to Owner OIPC that as of at the date of this Project Agreement:
(ia) Project Co is a limited liability corporation incorporated and duly organized, validly existing and in good standing under the laws of Albertathe jurisdiction of its organization, is in good standing with the Registrar Ministry of Corporations Government Services of Alberta Ontario with respect to the filing of annual returns, and has all the requisite corporate power and authority to own, lease and operate its properties and assets, to carry on its business as it is currently being conducted, and to enter into this Project Agreement and the any Implementing Agreements to which it is a party, party and to perform its obligations hereunder and thereunder;
(ii) Project Co has the requisite power, authority and corporate capacity to execute and deliver and perform this Project Agreement and the Implementing Agreements to which it is a party, and to do all acts and things, and execute, deliver and perform all other agreements, instruments, undertakings and documents as are required by this Project Agreement to be done, executed, delivered or performed;
(iii) Project Co has obtained all necessary Project Co Permits, Licences and Approvals required to commence the Work;
(ivb) no steps or proceedings have been taken or are pending to supersede, repeal or amend its constating documents, articles or articles, by-laws or any shareholders agreement in a manner that would materially impair or limit its ability to perform its obligations under this Project Agreement or and any of the Implementing Agreements to which it is a party, party and such documents and agreements they are in full force and effect as of the date hereof;
(vc) this Project Agreement and the any Implementing Agreements (when executed and delivered) to which Project Co it is a party have been duly authorized, executed, and delivered by Project Co and constitute a legal, valid, and binding obligations obligation of Project Co, enforceable against Project Co in accordance with their respective terms, subject only to:
(Ai) limitations with respect to the enforcement of remedies by bankruptcy, insolvency, moratorium, winding-up, arrangement, reorganization, fraudulent preference and conveyance and other laws of general application affecting the enforcement of creditors’ ' rights generally; and
(Bii) general equitable principles and the fact that the availability of equitable remedies is in the discretion of a court and that a court may stay proceedings or the execution of judgments;
(vid) the authorization, execution, delivery delivery, and performance by Project Co of this Project Agreement and the any Implementing Agreements to which it is a party does not and will not violate or conflict with, or constitute a default under:
(Ai) its constating or organizational documents or any unanimous shareholders agreement or similar rights agreement binding on Project Co;
(Bii) any Applicable Law; or
(Ciii) any covenant, contract, instrument, instrument or agreement or understanding to which it is a party or by which it or any of its properties or assets is bound or affected;
(vii) Project Co is an Affiliate of each of the Contractor and the Construction Guarantor;
(viii) no Project Co Event of Default has occurred and is continuing;
(ix) all of the information regarding Project Co set out in Schedule 4 – Project Co Information, is true and correct in all material respects;
(xe) there are no actions, suits, proceedings, or investigations pending or, to the knowledge of its senior management, or threatened against Project Co or any Project Co Party, at law or in equity, equity before any Governmental Authority or arbitral body (whether or not covered by insurance) that individually or in the aggregate could result in any material materially adverse effect on the business, properties, or assets, assets or the condition, financial or otherwise, of Project Co or in any impairment of its ability to perform its obligations under this Project Agreement or and any Implementing Agreements to which it is a party, and Project Co has no knowledge of any violation or default with respect to any order, writ, injunction decision, injunction, or decree of any Governmental Authority or arbitral body that would could result in any such material materially adverse effect or impairment;
(xif) Project Co has carefully reviewed the whole is an Affiliate of this Project Agreement, including all of the Contract Documents, and all other documents made available to Project Co by or on behalf of Owner, and, to Project Co’s knowledge, nothing contained herein or therein inhibits or prevents Project Co from completing the Work in accordance with this Project Agreement in a good and safe manner so as to achieve and satisfy the requirements of this Project AgreementContractor;
(xiig) Project Co is able to meet its obligations as they generally become due;
(xiiih) Project Co is registered under Division V of Part IX of the Excise Tax Act (Canada) and has been assigned GST/HST Number [REDACTED];
(xiv) the Scheduled Substantial Completion Date is a realistic date and is achievable by Project Co performing the Work in accordance with this Project Agreement;
(xv) Project Co and the Project Co Parties, collectively, have extensive experience in the construction of health facilities and other public buildings and have the necessary high degree of expertise and experience to perform the services required by the Contract Documents, to review and interpret the Contract Documents and to complete the Work in accordance with the standard of care set out in Section 11.2(a)(viii);
(xvi) the manager or supervisory personnel Project Co has assigned to the Project are highly experienced;
(xvii) Project Co has a sufficient staff of qualified and competent personnel to replace its designated supervisors, subject to Owner’s approval, in the event of death, incapacity or resignation;
(xviii) Project Co has conducted inspections of the Site during the Request for Proposals process and an investigation and examination of the Contract Documents, and any other documents made available to Project Co by Owner (which include, to the extent made available to Project Co by Owner, equipment lists, a legal description of the Site, copies of any registered and unregistered agreements affecting the Site, results of tests, reports of independent testing agencies and surveys and documents indicating the location of Utilities and other structures to the extent obtained by Owner, information regarding the critical requirements to maintain the operations of the Existing Facility, hospital protocols and rules and regulations, if any, including the Site Background Reports and the Contract Documents referred to in Section 11.7(c) so as to ascertain the nature or location of the Work and the Site, the physical conditions of the Site, the interface with the Existing Facility and protocols, rules and regulations if any, possible delays in commencing the Work, conditions relating to the transportation, handling and storage of materials and availability of labour and the character and availability of equipment, materials and facilities needed to perform the Work and to identify any Design Issues. Project Co has delivered to the Consultant requests for information in respect of all questions arising out of the foregoing inspections, investigations and examinations and in respect of each Design Issue identified. Based on this review, Project Co has established a Project Co Design Contingency adequate, in its judgement, to fund any change or delay cost that may arise as a result of any further Design Issue that may be identified and properly characterized as a Project Co Design Issue;
(xix) Project Co has sufficient expertise available to it with the appropriate skills to review the Contract Documents in accordance with the standard of care set out in Section 11.2(a)(viii);
(xx) Project Co has solicited bids from and will award Subcontracts for the Approved Subcontractor Work only to the applicable Approved Subcontractors and has not solicited bids from and will not award Subcontracts for the Approved Subcontractor Work except to the applicable Approved Subcontractors; and
(xxii) Project Co has has, together with Contractor, secured the Financing and is in a position to implement the Financing on or before the Financial Close Target Date, Date subject to the satisfaction of reasonable conditions that are customary in closing securing the financing for projects similar to the Project.
Appears in 1 contract
Samples: Project Agreement
Project Co Representations and Warranties. (a) Project Co represents and warrants to Owner the College that as of the date of this Project Agreement:
(i) Project Co is a limited liability corporation incorporated and validly existing under the laws of Alberta, is in good standing with the Registrar of Corporations of Alberta with respect to the filing of annual returns, and [REDACTED] has all the requisite corporate power and authority to own, lease and operate own its properties and assets, to carry on its business as it is currently being conducted, and to enter into this Project Agreement and the Implementing Agreements to which it is a party, and to perform its obligations hereunder and thereunderhereunder;
(ii) Project Co and the Project Co Parties, collectively, have extensive experience and are knowledgeable in the design and construction of post-secondary education facilities and have the required ability, experience, skill and capacity to perform the Works in a timely and professional manner as set out in this Project Agreement;
(iii) Project Co has the requisite power, authority and corporate capacity to execute and deliver and perform this Project Agreement and the Implementing Agreements to which it is a partyAgreement, and to do all acts and things, and execute, deliver and perform all other agreements, instruments, undertakings and documents as are required by this Project Agreement to be done, executed, delivered or performed;
(iii) Project Co has obtained all necessary Project Co Permits, Licences and Approvals required to commence the Work;
(iv) no steps or proceedings have been taken or are pending to supersede, repeal supersede or amend its the constating documents, articles or by-laws or any shareholders agreement of Project Co in a manner that would materially impair or limit its ability to perform its the obligations of Project Co under this Project Agreement or any of the Implementing Agreements to which it is a party, and such documents and agreements are in full force and effect as of the date hereofAgreement;
(v) this Project Agreement and the Implementing Agreements (when executed and delivered) to which Project Co is a party have has been duly authorized, executed, and delivered by Project Co and constitute constitutes a legal, valid, and binding obligations obligation of Project Co, enforceable against Project Co in accordance with their respective its terms, subject only to:
(A) limitations with respect to the enforcement of remedies by bankruptcy, insolvency, moratorium, winding-up, arrangement, reorganization, fraudulent preference and conveyance and other laws of general application affecting the enforcement of creditors’ rights generally; and
(B) general equitable principles and the fact that the availability of equitable remedies is in the discretion of a court and that a court may stay proceedings or the execution of judgments;
(vi) the authorization, execution, delivery delivery, and performance by Project Co of this Project Agreement does not and the Implementing Agreements to which it is a party does will not violate or conflict with, or constitute a default under:
(A) its constating constating, formation or organizational documents or documents, including any unanimous shareholders agreement or similar rights agreement binding on Project Coby- laws;
(B) any Applicable Law; or
(C) any covenant, contract, instrumentagreement, agreement or understanding to which it is a party or by which it or any of its properties or assets is bound or affected;
(vii) Project Co is an Affiliate of each of the Contractor and the Construction Guarantor;
(viii) no Project Co Event of Default has occurred and is continuing;
(ixviii) all of the information regarding Project Co set out in Schedule 4 31 – Project Co Information, Information is true and correct in all material respects;
(xix) there are no actions, suits, proceedings, or investigations pending or, to the knowledge of its senior management, or threatened against Project Co or or, to Project Co’s knowledge, any Project Co Party, Party at law or in equity, equity before any Governmental Authority or arbitral body (whether or not covered by insurance) that individually or in the aggregate could result in any material adverse effect on the business, properties, or assets, or the condition, financial or otherwise, of Project Co or in any impairment of its ability to perform its obligations under this Project Agreement or any Implementing Agreements to which it is a partyAgreement, and Project Co has no knowledge of any violation or default with respect to any order, writ, injunction injunction, or decree of any Governmental Authority or arbitral body that would could result in any such material adverse effect or impairment;
(xix) Project Co has carefully reviewed the whole of this Project Agreement, including all of the Contract Documents, and all other documents made available to Project Co by or on behalf of Ownerthe College, and, to Project Co’s knowledge, nothing contained herein or therein inhibits or prevents Project Co from completing the Work Works or performing the Works in accordance with this Project Agreement in a good and safe manner so as to achieve and satisfy the requirements of this Project Agreement;
(xiixi) Project Co is able to meet its obligations as they generally become due;
(xiiixii) Project Co is registered under Division V of Part IX of the Excise Tax Act (Canada) and has been assigned GST/its HST Number registration number is [REDACTED];
(xivxiii) the Scheduled Substantial Completion Date is a realistic date and is achievable by Project Co performing the Work Works in accordance with this Project Agreement;
(xiv) Project Co is not a Non-Resident;
(xv) Project Co and the has obtained all necessary Project Co PartiesPermits, collectivelyLicences, have extensive experience in Approvals and Agreements required to commence the construction of health facilities and other public buildings and have the necessary high degree of expertise and experience to perform the services required by the Contract Documents, to review and interpret the Contract Documents and to complete the Work in accordance with the standard of care set out in Section 11.2(a)(viii)Works;
(xvi) the manager or supervisory personnel Project Co has assigned to the Project are highly experienced;
(xvii) Project Co has a sufficient staff of qualified and competent personnel to replace its designated supervisors, subject to Ownerthe College’s approval, in the event of death, incapacity or resignation;
(xviii) Project Co has and certain of the Project Co Parties have conducted inspections of the Site during the Request for Proposals process prior to Commercial Close and an investigation and examination of the Contract DocumentsProject Agreement, the Background Information and any other documents made available to Project Co by Owner (which include, to the extent made available to Project Co by Owner, equipment lists, a legal description of the Site, copies of any registered and unregistered agreements affecting the Site, results of tests, reports of independent testing agencies and surveys and documents indicating the location of Utilities and other structures to the extent obtained by Owner, information regarding the critical requirements to maintain the operations of the Existing Facility, hospital protocols and rules and regulations, if any, including the Site Background Reports and the Contract Documents referred to in Section 11.7(c) College so as to ascertain the nature or location of the Work Works and the Site, the physical conditions of the Site, the interface with the Existing Facility Facilities and protocols, rules and regulations if any, possible delays in commencing the Work, conditions relating to the transportation, handling and storage of materials and availability of labour and the character and availability of equipment, materials and facilities needed to perform the Work and to identify any Design Issues. Project Co has delivered to the Consultant requests for information in respect of all questions arising out of the foregoing inspections, investigations and examinations and in respect of each Design Issue identified. Based on this review, Project Co has established a Project Co Design Contingency adequate, in its judgement, to fund any change or delay cost that may arise as a result of any further Design Issue that may be identified and properly characterized as a Project Co Design IssueWorks;
(xix) Project Co has sufficient expertise available to it with the appropriate skills to review the Contract Documents in accordance with the standard of care set out in Section 11.2(a)(viii);
(xx) Project Co has solicited bids from and will award Subcontracts for the Approved Subcontractor Work only to the applicable Approved Subcontractors and has not solicited bids from and will not award Subcontracts for the Approved Subcontractor Work except to the applicable Approved Subcontractors; and
(xxi) Project Co has secured the Financing and is in a position to implement complete the Financing on or before the Financial Close Target Date, subject to the satisfaction of reasonable conditions that are customary in closing financing for projects similar to the Project;
(xx) No Restricted Person has Direct or Indirect Power or Control over any member of the Project Co Group in relation to the decisions, management, actions or policies of Project Co or in relation to the operation, management and ownership of the Project; and
(xxi) To the knowledge of Project Co, no Restricted Person has directly or indirectly, an Economic Interest in Project Co or the Project.
Appears in 1 contract
Samples: Project Agreement
Project Co Representations and Warranties. (a) Project Co represents and warrants to Owner Contracting Authority that as of the date of this Project AgreementCommercial Close:
(i) Project Co is a limited liability corporation incorporated and validly existing under the laws of Albertathe Province of Ontario, is in good standing with the Registrar Ministry of Corporations Government and Consumer Services of Alberta Ontario with respect to the filing of annual returnsreports, and has all the requisite corporate power and authority to own, lease and operate own its properties and assets, to carry on its business as it is currently being conducted, and to enter into this Project Agreement and the Implementing Agreements to which it is a party, and to perform its obligations hereunder and thereunderhereunder;
(ii) Project Co and the Project Co Parties, collectively, have extensive experience and are knowledgeable in the design and construction of infrastructure and facilities similar to the those included in the scope of the Project in scale, scope, type and complexity, and have the required ability, experience, skill and capacity to perform the Works in a timely and professional manner as set out in this Project Agreement;
(iii) Project Co has the requisite power, authority and corporate capacity to execute and execute, deliver and perform this Project Agreement and the Implementing Agreements to which it is a partyAgreement, and to do all acts and things, and execute, deliver and perform all other agreements, instruments, undertakings and documents as are required by this Project Agreement to be done, executed, delivered or performed;
(iii) Project Co has obtained all necessary Project Co Permits, Licences and Approvals required to commence the Work;
(iv) no steps or proceedings have been taken or are pending to supersede, repeal supersede or amend its the constating documents, articles or by-laws or any shareholders agreement of Project Co in a manner that would materially impair or limit its ability to perform its the obligations of Project Co under this Project Agreement or any of the Implementing Agreements to which it is a party, and such documents and agreements are in full force and effect as of the date hereofAgreement;
(v) this Project Agreement and the Implementing Agreements (when executed and delivered) to which Project Co is a party have has been duly authorized, executed, and delivered by Project Co and constitute constitutes a legal, valid, and binding obligations obligation of Project Co, enforceable against Project Co in accordance with their respective its terms, subject only to:
(A) limitations with respect to the enforcement of remedies by bankruptcy, insolvency, moratorium, winding-up, arrangement, reorganization, fraudulent preference and conveyance and other laws of general application affecting the enforcement of creditors’ rights generally; and
(B) general equitable principles and the fact that the availability of equitable remedies is in the discretion of a court and that a court may stay proceedings or the execution of judgments;
(vi) the authorization, execution, delivery delivery, and performance by Project Co of this Project Agreement does not and the Implementing Agreements to which it is a party does will not violate or conflict with, or constitute a default under:
(A) its constating constating, formation or organizational documents or documents, including any unanimous shareholders agreement or similar rights agreement binding on Project Coby- laws;
(B) any Applicable Law; or
(C) any covenant, contract, instrumentagreement, agreement or understanding to which it is a party or by which it or any of its properties or assets is bound or affected;
(vii) Project Co is an Affiliate of each of the Contractor and the Construction Guarantor;
(viii) no Project Co Event of Default has occurred and is continuing;
(ixviii) all of the information regarding Project Co set out in Schedule 4 31 – Project Co Information, Information is true and correct in all material respects;
(xix) there are no actions, suits, proceedings, or investigations pending or, to the knowledge of its senior management, or threatened against Project Co or or, to Project Co’s knowledge, any Project Co Party, Party at law or in equity, equity before any Governmental Authority or arbitral body (whether or not covered by insurance) that individually or in the aggregate could result in any material adverse effect on the business, properties, or assets, or the condition, financial or otherwise, of Project Co or in any impairment of its ability to perform its obligations under this Project Agreement or any Implementing Agreements to which it is a partyAgreement, and Project Co has no knowledge of any violation or default with respect to any order, writ, injunction injunction, or decree of any Governmental Authority or arbitral body that would could result in any such material adverse effect or impairment;
(xix) Project Co has conducted its own investigations and has carefully reviewed the whole of this Project Agreement, including all of the Contract Documents, and all other documents made available to Project Co by or on behalf of OwnerContracting Authority, and, to Project Co’s knowledge, nothing contained herein or therein inhibits or prevents Project Co from completing the Work Works or performing the Works in accordance with this Project Agreement in a good and safe manner so as to achieve and satisfy the requirements of this Project Agreement;
(xiixi) Project Co is able to meet its obligations as they generally become due;
(xiiixii) Project Co is registered under Division V of Part IX of the Excise Tax Act (Canada) and has been assigned GST/its HST Number registration number is [REDACTED];
(xiii) [Intentionally Deleted];
(xiv) the Scheduled Substantial Completion Date is a realistic date and is achievable by Project Co performing the Work Works (other than Remaining Works) in accordance with this Project Agreement, and the Scheduled Final Completion Date is a realistic date and is achievable by Project Co performing the Remaining Works in accordance with this Project Agreement;
(xv) Project Co and the Project Co Parties, collectively, have extensive experience in the construction of health facilities and other public buildings and have the necessary high degree of expertise and experience to perform the services required by the Contract Documents, to review and interpret the Contract Documents and to complete the Work in accordance with the standard of care set out in Section 11.2(a)(viii)is not a Non-Resident;
(xvi) Project Co has obtained all necessary Project Co Permits, Licences, Approvals and Agreements required to commence the manager Works;
(xvii) the management or supervisory personnel Project Co has assigned to the Project are highly experienced;
(xviixviii) Project Co has a sufficient staff of qualified and competent personnel to replace its designated supervisors, subject to OwnerContracting Authority’s approval, in the event of death, incapacity or resignation;
(xviiixix) Project Co has and certain of the Project Co Parties have conducted inspections of the Site during the Request for Proposals process Lands prior to Commercial Close and an investigation and examination of the Contract DocumentsProject Agreement, the Background Information and any other documents made available to Project Co by Owner (which include, to the extent made available to Project Co by Owner, equipment lists, a legal description of the Site, copies of any registered and unregistered agreements affecting the Site, results of tests, reports of independent testing agencies and surveys and documents indicating the location of Utilities and other structures to the extent obtained by Owner, information regarding the critical requirements to maintain the operations of the Existing Facility, hospital protocols and rules and regulations, if any, including the Site Background Reports and the Contract Documents referred to in Section 11.7(c) Contracting Authority so as to ascertain the nature or location of the Work Works and the SiteLands, the physical conditions of the Site, the interface with Lands and the Existing Facility Infrastructure, and protocols, rules and regulations if any, possible delays in commencing the WorkWorks, conditions relating to the transportation, handling and storage of materials and availability of labour and the character and availability of equipment, materials and facilities needed to perform the Work and to identify any Design Issues. Project Co has delivered to the Consultant requests for information in respect of all questions arising out of the foregoing inspections, investigations and examinations and in respect of each Design Issue identified. Based on this review, Project Co has established a Project Co Design Contingency adequate, in its judgement, to fund any change or delay cost that may arise as a result of any further Design Issue that may be identified and properly characterized as a Project Co Design Issue;
(xix) Project Co has sufficient expertise available to it with the appropriate skills to review the Contract Documents in accordance with the standard of care set out in Section 11.2(a)(viii)Works;
(xx) Project Co has solicited bids from and will award Subcontracts for the Approved Subcontractor Work only to the applicable Approved Subcontractors and has not solicited bids from and will not award Subcontracts for the Approved Subcontractor Work except to the applicable Approved Subcontractors; and
(xxi) Project Co has secured the Financing and is in a position to implement complete the Financing on or before the Financial Close Target Date, subject to the satisfaction of reasonable conditions that are customary in closing financing for projects similar to the Project;
(xxi) no Restricted Person has Direct or Indirect Power or Control over any member of the Project Co Group in relation to the decisions, management, actions or policies of Project Co or in relation to the operation, management and ownership of the Project;
(xxii) to the knowledge of Project Co, no Restricted Person has directly or indirectly, an Economic Interest in Project Co or the Project; and
(xxiii) either:
(A) the COR-Certified Construction Project Co Party is in possession of its COR Certification in good standing as required under this Project Agreement and has the ability to maintain such COR Certification in good standing at all times during the performance of the Works in accordance with its terms, provisions and conditions; or
(B) the COR-Qualified Construction Project Co Party:
(I) is in possession of its OHSAS 18001 Accreditation which remains in good standing and has the ability to maintain such OHSAS 18001 Accreditation in good standing at all times during the performance of the Works until such COR-Qualified Construction Project Co Party receives its COR Certification as required under this Project Agreement, and
(II) has made an application to the IHSA for its COR Certification as required under this Project Agreement.
Appears in 1 contract
Samples: Project Agreement
Project Co Representations and Warranties. (a) Project Co represents and warrants to Owner Contracting Authority that as of the date of this Project AgreementCommercial Close:
(i) Project Co is a limited liability corporation incorporated and validly existing under the laws of Alberta, is in good standing with the Registrar of Corporations of Alberta with respect to the filing of annual returns, and [REDACTED] has all the requisite corporate power and authority to own, lease and operate own its properties and assets, to carry on its business as it is currently being conducted, and to enter into this Project Agreement and to perform its obligations hereunder;
(ii) Project Co's [REDACTED];
(iii) [REDACTED] under the Implementing Agreements laws of Canada, is in good standings with Corporations Canada with respect to which the filing of annual reports, and has all the requisite corporate power and authority to own its properties and assets and to carry on its business as it is a party, currently being conducted and to enter into this Project Agreement and to perform its obligations hereunder and thereunderin its capacity as a partner of Project Co;
(iiiv) [REDACTED] under the laws of the Province of Ontario, is in good standing with the Ministry of Government and Consumer Services of Ontario with respect to the filing of annual reports, and has all the requisite corporate power and authority to own its properties and assets and to carry on its business as it is currently being conducted and to enter into this Project Agreement and to perform its obligations hereunder in its capacity as a partner of Project Co;
(v) [REDACTED] under the laws of the Province of Ontario, is in good standing with the Ministry of Government and Consumer Services of Ontario with respect to the filing of annual reports, and has all the requisite corporate power and authority to own its properties and assets and to carry on its business as it is currently being conducted and to enter into this Project Agreement and to perform its obligations hereunder in its capacity as a partner of Project Co;
(vi) Project Co and the Project Co Parties, collectively, have extensive experience and are knowledgeable in the design and construction of infrastructure and facilities similar to those included in the scope of the Project in scale, scope, type and complexity, and have the required ability, experience, skill and capacity to perform the Works in a timely and professional manner as set out in this Project Agreement;
(vii) Project Co has the requisite power, authority and corporate capacity to execute and execute, deliver and perform this Project Agreement and the Implementing Agreements to which it is a partyAgreement, and to do all acts and things, and execute, deliver and perform all other agreements, instruments, undertakings and documents as are required by this Project Agreement to be done, executed, delivered or performed;
(iii) Project Co has obtained all necessary Project Co Permits, Licences and Approvals required to commence the Work;
(ivviii) no steps or proceedings have been taken or are pending to supersede, repeal supersede or amend its the constating documents, articles or by-laws or any shareholders agreement of Project Co in a manner that would materially impair or limit its ability to perform its the obligations of Project Co under this Project Agreement or any of the Implementing Agreements to which it is a party, and such documents and agreements are in full force and effect as of the date hereofAgreement;
(vix) this Project Agreement and the Implementing Agreements (when executed and delivered) to which Project Co is a party have has been duly authorized, executed, and delivered by Project Co and constitute constitutes a legal, valid, and binding obligations obligation of Project Co, enforceable against Project Co in accordance with their respective its terms, subject only to:
(A) limitations with respect to the enforcement of remedies by bankruptcy, insolvency, moratorium, winding-up, arrangement, reorganization, fraudulent preference and conveyance and other laws of general application affecting the enforcement of creditors’ rights generally; and
(B) general equitable principles and the fact that the availability of equitable remedies is in the discretion of a court and that a court may stay proceedings or the execution of judgments;
(vix) the authorization, execution, delivery delivery, and performance by Project Co of this Project Agreement does not and the Implementing Agreements to which it is a party does will not violate or conflict with, or constitute a default under:
(A) its constating constating, formation or organizational documents or documents, including any unanimous shareholders agreement or similar rights agreement binding on Project Coby- laws;
(B) any Applicable Law; or
(C) any covenant, contract, instrumentagreement, agreement or understanding to which it is a party or by which it or any of its properties or assets is bound or affected;
(vii) Project Co is an Affiliate of each of the Contractor and the Construction Guarantor;
(viiixi) no Project Co Event of Default has occurred and is continuing;
(ixxii) all of the information regarding Project Co set out in Schedule 4 31 – Project Co Information, Information is true and correct in all material respects;
(xxiii) there are no actions, suits, proceedings, or investigations pending or, to the knowledge of its senior management, or threatened against Project Co or or, to Project Co’s knowledge, any Project Co Party, Party at law or in equity, equity before any Governmental Authority or arbitral body (whether or not covered by insurance) that individually or in the aggregate could result in any material adverse effect on the business, properties, or assets, or the condition, financial or otherwise, of Project Co or in any impairment of its ability to perform its obligations under this Project Agreement or any Implementing Agreements to which it is a partyAgreement, and Project Co has no knowledge of any violation or default with respect to any order, writ, injunction injunction, or decree of any Governmental Authority or arbitral body that would could result in any such material adverse effect or impairment;
(xixiv) Project Co has reviewed the Background Information set out in Section 7 and conducted the investigations in respect of the Lands as set out in Section 16 and, without affecting anything in Section 7, Section 16 and Section 18, has conducted its own additional investigations (other than in respect of the Background Information and the Lands) and has carefully reviewed the whole of this Project Agreement, including all of the Contract Documents, and all other documents made available to Project Co by or on behalf of OwnerContracting Authority, and, to Project Co’s knowledge, nothing contained herein or therein inhibits or prevents Project Co from completing the Work Works or performing the Works in accordance with this Project Agreement in a good and safe manner so as to achieve and satisfy the requirements of this Project Agreement;
(xiixv) Project Co is able to meet its obligations as they generally become due;
(xiiixvi) Project Co is registered under Division V of Part IX of the Excise Tax Act (Canada) and has been assigned GST/its HST Number registration number is [REDACTED];
(xivxvii) [Intentionally Deleted];
(xviii) the Scheduled Substantial Completion Date is a realistic date and is achievable by Project Co performing the Work Works in accordance with this Project Agreement;
(xvxix) Project Co and the Project Co Parties, collectively, have extensive experience in the construction of health facilities and other public buildings and have the necessary high degree of expertise and experience to perform the services required by the Contract Documents, to review and interpret the Contract Documents and to complete the Work in accordance with the standard of care set out in Section 11.2(a)(viii)is not a Non-Resident;
(xvixx) Project Co has obtained all necessary Project Co Permits, Licences, Approvals and Agreements required to commence the Works;
(xxi) the manager management or supervisory personnel Project Co has assigned to the Project are highly experienced;
(xviixxii) Project Co has a sufficient staff of qualified and competent personnel to replace its designated supervisors, subject to OwnerContracting Authority’s approval, in the event of death, incapacity or resignation;
(xviiixxiii) Project Co has and certain of the Project Co Parties have conducted inspections of the Site during the Request for Proposals process Lands (as set out in Section 16) and an investigation and examination of the Contract DocumentsProject Agreement, the Background Information (as set out in Section 7) and any other documents made available to Project Co by Owner (which include, to the extent made available to Project Co by Owner, equipment lists, a legal description of the Site, copies of any registered and unregistered agreements affecting the Site, results of tests, reports of independent testing agencies and surveys and documents indicating the location of Utilities and other structures to the extent obtained by Owner, information regarding the critical requirements to maintain the operations of the Existing Facility, hospital protocols and rules and regulations, if any, including the Site Background Reports and the Contract Documents referred to in Section 11.7(c) Contracting Authority so as to ascertain the nature or location of the Work and the SiteWorks, the physical conditions of the Site, the interface with the Existing Facility and protocols, rules and regulations if anyany applicable to the Works, possible delays in commencing the WorkWorks, conditions relating to the transportation, handling and storage of materials and availability of labour and the character and availability of equipment, materials and facilities needed to perform the Work and to identify any Design Issues. Project Co has delivered to the Consultant requests for information in respect of all questions arising out of the foregoing inspections, investigations and examinations and in respect of each Design Issue identified. Based on this review, Project Co has established a Project Co Design Contingency adequate, in its judgement, to fund any change or delay cost that may arise as a result of any further Design Issue that may be identified and properly characterized as a Project Co Design IssueWorks;
(xix) Project Co has sufficient expertise available to it with the appropriate skills to review the Contract Documents in accordance with the standard of care set out in Section 11.2(a)(viii);
(xx) Project Co has solicited bids from and will award Subcontracts for the Approved Subcontractor Work only to the applicable Approved Subcontractors and has not solicited bids from and will not award Subcontracts for the Approved Subcontractor Work except to the applicable Approved Subcontractors; and
(xxixxiv) Project Co has secured the Financing and is in a position to implement complete the Financing on or before the Financial Close Target Date, subject to the satisfaction of reasonable conditions that are customary in closing financing for projects similar to the Project;
(xxv) no Restricted Person has Direct or Indirect Power or Control over any member of the Project Co Group in relation to the decisions, management, actions or policies of Project Co or in relation to the operation, management and ownership of the Project;
(xxvi) to the knowledge of Project Co, no Restricted Person has directly or indirectly, an Economic Interest in Project Co or the Project; and
(xxvii) either:
(A) the COR-Certified Construction Project Co Party is in possession of its COR Certification in good standing as required under this Project Agreement and has the ability to maintain such COR Certification in good standing at all times during the performance of the Works in accordance with its terms, provisions and conditions; or
(B) the COR-Qualified Construction Project Co Party:
(I) is in possession of its OHSAS 18001 Accreditation or ISO 45001 Accreditation which remains in good standing and has the ability to maintain such OHSAS 18001 Accreditation or ISO 45001 Accreditation in good standing at all times during the performance of the Works until such COR-Qualified Construction Project Co Party receives its COR Certification as required under this Project Agreement, and
(II) has made an application to the IHSA for its COR Certification as required under this Project Agreement.
Appears in 1 contract
Samples: Project Agreement
Project Co Representations and Warranties. (a) Project Co represents and warrants to Owner CAMH that as of the date of this Project Agreement:
(i) Project Co is a limited liability corporation incorporated and validly existing under the laws of Alberta, is in good standing with the Registrar of Corporations of Alberta with respect to the filing of annual returns[REDACTED], and has all the requisite corporate power and authority to own, lease and operate own its properties and assets, to carry on its business as it is currently being conducted, and to enter into this Project Agreement and the Implementing Agreements to which it is a party, and to perform its obligations hereunder and thereunderhereunder;
(ii) Project Co and the Project Co Parties, collectively, have extensive experience and are knowledgeable in the design, construction and maintenance of hospital facilities and have the required ability, experience, skill and capacity to perform the Project Operations in a timely and professional manner as set out in this Project Agreement;
(iii) Project Co has the requisite power, authority and corporate capacity to execute and deliver and perform this Project Agreement and the Implementing Agreements to which it is a partyAgreement, and to do all acts and things, and execute, deliver and perform all other agreements, instruments, undertakings and documents as are required by this Project Agreement to be done, executed, delivered or performed;
(iii) Project Co has obtained all necessary Project Co Permits, Licences and Approvals required to commence the Work;
(iv) no steps or proceedings have been taken or are pending to supersede, repeal supersede or amend its constating documents, articles or by-laws or any shareholders agreement in a manner that would materially impair or limit its ability to perform its obligations under this Project Agreement or any of the Implementing Agreements to which it is a party, and such documents and agreements are in full force and effect as of the date hereofAgreement;
(v) this Project Agreement and the Implementing Agreements (when executed and delivered) to which Project Co is a party have has been duly authorized, executed, and delivered by Project Co and constitute constitutes a legal, valid, and binding obligations obligation of Project Co, enforceable against Project Co in accordance with their respective its terms, subject only to:
(A) limitations with respect to the enforcement of remedies by bankruptcy, insolvency, moratorium, winding-up, arrangement, reorganization, fraudulent preference and conveyance and other laws of general application affecting the enforcement of creditors’ rights generally; and
(B) general equitable principles and the fact that the availability of equitable remedies is in the discretion of a court and that a court may stay proceedings or the execution of judgments;
(vi) the authorization, execution, delivery delivery, and performance by Project Co of this Project Agreement does not and the Implementing Agreements to which it is a party does will not violate or conflict with, or constitute a default under:
(A) its constating constating, formation or organizational documents or documents, including any unanimous shareholders agreement or similar rights agreement binding on Project Coby-laws;
(B) any Applicable Law; or
(C) any covenant, contract, instrumentagreement, agreement or understanding to which it is a party or by which it or any of its properties or assets is bound or affected;
(vii) Project Co is an Affiliate of each of the Contractor and the Construction Guarantor;
(viii) no Project Co Event of Default has occurred and is continuing;
(ixviii) all of the information regarding Project Co set out in Schedule 4 – 31 - Project Co Information, Information is true and correct in all material respects;
(xix) there are no actions, suits, proceedings, or investigations pending or, to the knowledge of its senior management, or threatened against Project Co or or, to Project Co’s knowledge, any Project Co Party, Party at law or in equity, equity before any Governmental Authority or arbitral body (whether or not covered by insurance) that individually or in the aggregate could result in any material adverse effect on the business, properties, or assets, or the condition, financial or otherwise, of Project Co or in any impairment of its ability to perform its obligations under this Project Agreement or any Implementing Agreements to which it is a partyAgreement, and Project Co has no knowledge of any violation or default with respect to any order, writ, injunction injunction, or decree of any Governmental Authority or arbitral body that would could result in any such material adverse effect or impairment;
(xix) Project Co has carefully reviewed the whole of this Project Agreement, including all of the Contract Documents, and all other documents made available to Project Co by or on behalf of OwnerCAMH, and, to Project Co’s knowledge, nothing contained herein or therein inhibits or prevents Project Co from completing the Work Works or performing the Project Operations in accordance with this Project Agreement in a good and safe manner so as to achieve and satisfy the requirements of this Project Agreement;
(xiixi) Project Co is able to meet its obligations as they generally become due;
(xiiixii) Project Co is registered under Division V of Part IX of the Excise Tax Act (Canada) and has been assigned GST/HST Number [REDACTED]);
(xivxiii) the Scheduled Substantial Completion Date is a realistic date and is achievable by Project Co performing the Work Works in accordance with this Project Agreement;
(xv) Project Co and the Project Co Parties, collectively, have extensive experience in the construction of health facilities and other public buildings and have the necessary high degree of expertise and experience to perform the services required by the Contract Documents, to review and interpret the Contract Documents and to complete the Work in accordance with the standard of care set out in Section 11.2(a)(viii);
(xvi) the manager or supervisory personnel Project Co has assigned to the Project are highly experienced;
(xvii) Project Co has a sufficient staff of qualified and competent personnel to replace its designated supervisors, subject to Owner’s approval, in the event of death, incapacity or resignation;
(xviii) Project Co has conducted inspections of the Site during the Request for Proposals process and an investigation and examination of the Contract Documents, and any other documents made available to Project Co by Owner (which include, to the extent made available to Project Co by Owner, equipment lists, a legal description of the Site, copies of any registered and unregistered agreements affecting the Site, results of tests, reports of independent testing agencies and surveys and documents indicating the location of Utilities and other structures to the extent obtained by Owner, information regarding the critical requirements to maintain the operations of the Existing Facility, hospital protocols and rules and regulations, if any, including the Site Background Reports and the Contract Documents referred to in Section 11.7(c) so as to ascertain the nature or location of the Work and the Site, the physical conditions of the Site, the interface with the Existing Facility and protocols, rules and regulations if any, possible delays in commencing the Work, conditions relating to the transportation, handling and storage of materials and availability of labour and the character and availability of equipment, materials and facilities needed to perform the Work and to identify any Design Issues. Project Co has delivered to the Consultant requests for information in respect of all questions arising out of the foregoing inspections, investigations and examinations and in respect of each Design Issue identified. Based on this review, Project Co has established a Project Co Design Contingency adequate, in its judgement, to fund any change or delay cost that may arise as a result of any further Design Issue that may be identified and properly characterized as a Project Co Design Issue;
(xix) Project Co has sufficient expertise available to it with the appropriate skills to review the Contract Documents in accordance with the standard of care set out in Section 11.2(a)(viii);
(xx) Project Co has solicited bids from and will award Subcontracts for the Approved Subcontractor Work only to the applicable Approved Subcontractors and has not solicited bids from and will not award Subcontracts for the Approved Subcontractor Work except to the applicable Approved Subcontractors; and
(xxixiv) Project Co is not a Non-Resident and has secured the Financing and is no obligation to file income tax returns in a position to implement the Financing on or before the Financial Close Target Date, subject to the satisfaction any jurisdiction outside of reasonable conditions that are customary in closing financing for projects similar to the ProjectCanada.
Appears in 1 contract
Samples: Project Agreement
Project Co Representations and Warranties. (a) Project Co represents and warrants to Owner HMQ that as of the date of this Project Agreement:
(i) Project Co is a limited liability corporation incorporated formed and validly existing under the laws of Alberta, is in good standing with the Registrar jurisdiction of Corporations of Alberta with respect to the filing of annual returns, its organization and has all the requisite corporate power and authority to own, lease and operate its properties and assets, to carry on its business as it is currently being conducted, to enter into this Project Agreement and the Implementing Agreements to which it is a party, and to perform its obligations hereunder and thereunder;
(ii) Project Co is in good standing with the Ministry of Consumer and Business Services of Ontario with respect to the filing of annual returns;
(iii) Project Co has the requisite corporate power, authority and corporate capacity to execute and deliver and perform this Project Agreement and the Implementing Agreements to which it is a party, and to do all acts and things, and execute, deliver and perform all other agreements, instruments, undertakings and documents as are required by this Project Agreement to be done, executed, delivered or performed;
(iiiiv) Project Co has obtained all necessary Project Co Permits, Licences and Approvals required to commence the Work;
(ivv) no steps or proceedings have been taken or are pending to supersede, repeal or amend its constating documents, articles or by-laws or any shareholders agreement in a manner that would materially impair or limit its ability to perform its obligations under this Project Agreement or any of the Implementing Agreements to which it is a party, and such documents and agreements are in full force and effect as of the date hereof;
(vvi) this Project Agreement and the Implementing Agreements (when executed and delivered) to which Project Co is a party have been duly authorized, executed, and delivered by Project Co and constitute legal, valid, and binding obligations of Project Co, enforceable against Project Co in accordance with their respective terms, subject only to:
(A) limitations with respect to the enforcement of remedies by bankruptcy, insolvency, moratorium, winding-up, arrangement, reorganization, fraudulent preference and conveyance and other laws of general application affecting the enforcement of creditors’ rights generally; and
(B) general equitable principles and the fact that the availability of equitable remedies is in the discretion of a court and that a court may stay proceedings or the execution of judgments;
(vivii) the authorization, execution, delivery and performance by Project Co of this Project Agreement and the Implementing Agreements to which it is a party does not violate or conflict with, or constitute a default under:
(A) its constating articles, by-laws or organizational documents documents, or any unanimous shareholders agreement relating to voting rights in Project Co or the management or control of the business or affairs of Project Co or any similar rights agreement binding on Project Co;
(B) any Applicable Law; or
(C) any covenant, contract, instrument, agreement or understanding to which it is a party or by which it or any of its properties or assets is bound or affected;
(vii) Project Co is an Affiliate of each of the Contractor and the Construction Guarantor;
(viii) no Project Co Event of Default has occurred and is continuing;
(ix) all of the information regarding Project Co set out in Schedule 4 – Project Co Information, is true and correct in all material respects;
(x) there are no actions, suits, proceedings, or investigations pending or, to the knowledge of its senior management, threatened against Project Co or any Project Co Party, at law or in equity, before any Governmental Authority or arbitral body (whether or not covered by insurance) that individually or in the aggregate could result in any material adverse effect on the business, properties, or assets, or the condition, financial or otherwise, of Project Co or in any impairment of its ability to perform its obligations under this Project Agreement or any Implementing Agreements to which it is a party, and Project Co has no knowledge of any violation or default with respect to any order, writ, injunction or decree of any Governmental Authority or arbitral body that would result in any such material adverse effect or impairment;
(xi) Project Co has carefully reviewed the whole of this Project Agreement, including all of the Contract Documents, and all other documents made available to Project Co by or on behalf of OwnerHMQ, and, to Project Co’s knowledge, nothing contained herein or therein inhibits or prevents Project Co from completing the Work in accordance with this Project Agreement in a good and safe manner so as to achieve and satisfy the requirements of this Project Agreement;
(xii) Project Co is able to meet its obligations as they generally become due;
(xiii) Project Co is registered under Division V of Part IX of the Excise Tax Act (Canada) and has been assigned GST/HST Number [REDACTED];
(xiv) the Scheduled Substantial Completion Date is a realistic date and is achievable by Project Co performing the Work in accordance with this Project Agreement;
(xv) Project Co and the Project Co Parties, collectively, have extensive experience in the construction of health sports facilities and other public buildings and have the necessary high degree of expertise and experience to perform the services required by the Contract Documents, to review and interpret the Contract Documents and to complete the Work in accordance with the standard of care set out in Section 11.2(a)(viii);
(xvi) the manager or supervisory personnel Project Co has assigned to the Project Projects are highly experienced;
(xvii) Project Co has a sufficient staff of qualified and competent personnel to replace its designated supervisors, subject to OwnerHMQ’s approval, in the event of death, incapacity or resignation;
(xviii) Project Co has and certain of the Project Co Parties have conducted inspections of the Site Sites during the Request for Proposals process and an investigation and examination of the Contract Documents, and any other documents made available to Project Co by Owner HMQ (which include, to the extent made available to Project Co by OwnerHMQ, equipment lists, a legal description of the SiteSites, copies of any registered and unregistered agreements affecting the SiteSites, results of tests, reports of independent testing agencies and surveys and documents indicating the location of Utilities and other structures to the extent obtained by Owner, information regarding the critical requirements to maintain the operations of the Existing Facility, hospital protocols and rules and regulations, if any, including the Site Background Reports and the Contract Documents referred to in Section 11.7(c) HMQ so as to ascertain the nature or location of the Work and the SiteSites, the physical conditions of the SiteSites, the interface with the Existing Facility and protocols, rules and regulations if any, possible delays in commencing the Work, conditions relating to the transportation, handling and storage of materials and availability of labour and the character and availability of equipment, materials and facilities needed to perform the Work and to identify any Design Issues. Project Co has delivered to the Consultant requests for information in respect of all questions arising out of the foregoing inspections, investigations and examinations and in respect of each Design Issue identified. Based on this review, Project Co has established a Project Co Design Contingency adequate, in its judgement, to fund any change or delay cost that may arise as a result of any further Design Issue that may be identified and properly characterized as a Project Co Design Issue;
(xix) Project Co has sufficient expertise available to it with the appropriate skills to review the Contract Documents in accordance with the standard of care set out in Section 11.2(a)(viii);
(xx) Project Co has solicited bids from and will award Subcontracts for the Approved Subcontractor Work only to the applicable Approved Subcontractors and has not solicited bids from and will not award Subcontracts for the Approved Subcontractor Work except to the applicable Approved Subcontractors; and;
(xxi) Project Co has secured the Financing and is in a position to implement the Financing on or before the Financial Close Target Date, subject to the satisfaction of reasonable conditions that are customary in closing financing for projects similar to the Projects;
(xxii) Project Co’s only shareholder is Bondfield Construction Company Limited, being a corporation formed and validly existing under the laws of the Province of Ontario and each has all the requisite power and authority to own its properties and assets and to carry on its business as it is currently being conducted;
(xxiii) no Restricted Person has Direct or Indirect Power or Control over any member of the Project Co Group in relation to the decisions, management, actions or policies of Project Co or in relation to the operation, management and ownership of the Project; and
(xxiv) no Restricted Person has directly or indirectly, an Economic Interest in Project Co, Project Co GP or the Project.
Appears in 1 contract
Samples: Project Agreement
Project Co Representations and Warranties. (a) Project Co represents and warrants to Owner Contracting Authority that as of the date of this Project Agreement:
(i) Commercial Close: Project Co is a limited liability corporation incorporated and validly existing under the laws of Alberta, is in good standing with the Registrar of Corporations of Alberta with respect to the filing of annual returns, and [REDACTED] has all the requisite corporate power and authority to own, lease and operate own its properties and assets, to carry on its business as it is currently being conducted, and to enter into this Project Agreement and the Implementing Agreements to which it is a party, and to perform its obligations hereunder hereunder; Project Co and thereunder;
(ii) the Project Co Parties, collectively, have extensive experience and are knowledgeable in the design and construction of infrastructure and facilities similar to those included in the scope of the Project in scale, scope, type and complexity, and have the required ability, experience, skill and capacity to perform the Works in a timely and professional manner as set out in this Project Agreement; Project Co has the requisite power, authority and corporate capacity to execute and deliver and perform this Project Agreement and the Implementing Agreements to which it is a partyAgreement, and to do all acts and things, and execute, deliver and perform all other agreements, instruments, undertakings and documents as are required by this Project Agreement to be done, executed, delivered or performed;
(iii) Project Co has obtained all necessary Project Co Permits, Licences and Approvals required to commence the Work;
(iv) ; no steps or proceedings have been taken or are pending to supersede, repeal supersede or amend its the constating documents, articles or by-laws or any shareholders agreement of Project Co in a manner that would materially impair or limit its ability to perform its the obligations of Project Co under this Project Agreement or any of the Implementing Agreements to which it is a party, and such documents and agreements are in full force and effect as of the date hereof;
(v) Agreement; this Project Agreement and the Implementing Agreements (when executed and delivered) to which Project Co is a party have has been duly authorized, executed, and delivered by Project Co and constitute constitutes a legal, valid, and binding obligations obligation of Project Co, enforceable against Project Co in accordance with their respective its terms, subject only to:
(A) limitations with respect to the enforcement of remedies by bankruptcy, insolvency, moratorium, winding-up, arrangement, reorganization, fraudulent preference and conveyance and other laws of general application affecting the enforcement of creditors’ rights generally; and
(B) general equitable principles and the fact that the availability of equitable remedies is in the discretion of a court and that a court may stay proceedings or the execution of judgments;
(vi) ; the authorization, execution, delivery delivery, and performance by Project Co of this Project Agreement does not and the Implementing Agreements to which it is a party does will not violate or conflict with, or constitute a default under:
(A) its constating constating, formation or organizational documents or documents, including any unanimous shareholders agreement or similar rights agreement binding on Project Coby- laws;
(B) any Applicable Law; or
(C) any covenant, contract, instrumentagreement, agreement or understanding to which it is a party or by which it or any of its properties or assets is bound or affected;
(vii) Project Co is an Affiliate of each of the Contractor and the Construction Guarantor;
(viii) ; no Project Co Event of Default has occurred and is continuing;
(ix) ; all of the information regarding Project Co set out in Schedule 4 31 – Project Co Information, Information is true and correct in all material respects;
(x) ; there are no actions, suits, proceedings, or investigations pending or, to the knowledge of its senior management, or threatened against Project Co or or, to Project Co’s knowledge, any Project Co Party, Party at law or in equity, equity before any Governmental Authority or arbitral body (whether or not covered by insurance) that individually or in the aggregate could result in any material adverse effect on the business, properties, or assets, or the condition, financial or otherwise, of Project Co or in any impairment of its ability to perform its obligations under this Project Agreement or any Implementing Agreements to which it is a partyAgreement, and Project Co has no knowledge of any violation or default with respect to any order, writ, injunction injunction, or decree of any Governmental Authority or arbitral body that would could result in any such material adverse effect or impairment;
(xi) ; Project Co has conducted its own investigations and has carefully reviewed the whole of this Project Agreement, including all of the Contract Documents, and all other documents made available to Project Co by or on behalf of OwnerContracting Authority, and, to Project Co’s knowledge, nothing contained herein or therein inhibits or prevents Project Co from completing the Work Works or performing the Works in accordance with this Project Agreement in a good and safe manner so as to achieve and satisfy the requirements of this Project Agreement;
(xii) Project Co is able to meet its obligations as they generally become due;
(xiii) ; Project Co is registered under Division V of Part IX of the Excise Tax Act (Canada) and has been assigned GST/its HST Number registration number is [REDACTED];
(xiv) ; intentionally deleted; the Scheduled Substantial Completion Date is a realistic date and is achievable by Project Co performing the Work Works in accordance with this Project Agreement;
(xv) ; Project Co and the is not a Non-Resident; Project Co Partieshas obtained all necessary Project Co Permits, collectivelyLicences, have extensive experience in Approvals and Agreements required to commence the construction of health facilities and other public buildings and have Works; the necessary high degree of expertise and experience to perform the services required by the Contract Documents, to review and interpret the Contract Documents and to complete the Work in accordance with the standard of care set out in Section 11.2(a)(viii);
(xvi) the manager management or supervisory personnel Project Co has assigned to the Project are highly experienced;
(xvii) ; Project Co has a sufficient staff of qualified and competent personnel to replace its designated supervisors, subject to OwnerContracting Authority’s approval, in the event of death, incapacity or resignation;
(xviii) ; Project Co has and certain of the Project Co Parties have conducted inspections of the Site during the Request for Proposals process Lands prior to Commercial Close and an investigation and examination of the Contract DocumentsProject Agreement, the Background Information and any other documents made available to Project Co by Owner (which include, to the extent made available to Project Co by Owner, equipment lists, a legal description of the Site, copies of any registered and unregistered agreements affecting the Site, results of tests, reports of independent testing agencies and surveys and documents indicating the location of Utilities and other structures to the extent obtained by Owner, information regarding the critical requirements to maintain the operations of the Existing Facility, hospital protocols and rules and regulations, if any, including the Site Background Reports and the Contract Documents referred to in Section 11.7(c) Contracting Authority so as to ascertain the nature or location of the Work Works and the SiteLands, the physical conditions of the Site, the interface with Lands and the Existing Facility Infrastructure, and protocols, rules and regulations if any, possible delays in commencing the WorkWorks, conditions relating to the transportation, handling and storage of materials and availability of labour and the character and availability of equipment, materials and facilities needed to perform the Work and to identify any Design Issues. Project Co has delivered to the Consultant requests for information in respect of all questions arising out of the foregoing inspections, investigations and examinations and in respect of each Design Issue identified. Based on this review, Project Co has established a Project Co Design Contingency adequate, in its judgement, to fund any change or delay cost that may arise as a result of any further Design Issue that may be identified and properly characterized as a Project Co Design Issue;
(xix) Project Co has sufficient expertise available to it with the appropriate skills to review the Contract Documents in accordance with the standard of care set out in Section 11.2(a)(viii);
(xx) Project Co has solicited bids from and will award Subcontracts for the Approved Subcontractor Work only to the applicable Approved Subcontractors and has not solicited bids from and will not award Subcontracts for the Approved Subcontractor Work except to the applicable Approved SubcontractorsWorks; and
(xxi) Project Co has secured the Financing and is in a position to implement complete the Financing on or before the Financial Close Target Date, subject to the satisfaction of reasonable conditions that are customary in closing financing for projects similar to the Project; no Restricted Person has Direct or Indirect Power or Control over any member of the Project Co Group in relation to the decisions, management, actions or policies of Project Co or in relation to the operation, management and ownership of the Project; to the knowledge of Project Co, no Restricted Person has directly or indirectly, an Economic Interest in Project Co or the Project; and the COR-Certified Construction Project Co Party is in possession of its COR Certification in good standing as required under this Project Agreement and has the ability to maintain such COR Certification in good standing at all times during the performance of the Works in accordance with its terms, provisions and conditions; or the COR-Qualified Construction Project Co Party:
(A) is in possession of its OHSAS 18001 Accreditation which remains in good standing and has the ability to maintain such OHSAS 18001 Accreditation in good standing at all times during the performance of the Works until such COR-Qualified Construction Project Co Party receives its COR Certification as required under this Project Agreement, and
(B) has made an application to the IHSA for its COR Certification as required under this Project Agreement.
Appears in 1 contract
Samples: Project Agreement
Project Co Representations and Warranties. (a) Project Co represents and warrants to Owner CMH that as of the date of this Project Agreement:
(i) Project Co is a limited liability corporation incorporated formed and validly existing under the laws of Alberta, is in good standing with the Registrar jurisdiction of Corporations of Alberta with respect to the filing of annual returns, its organization and has all the requisite corporate power and authority to own, lease and operate its properties and assets, to carry on its business as it is currently being conducted, to enter into this Project Agreement and the Implementing Agreements to which it is a party, and to perform its obligations hereunder and thereunder;
(ii) Project Co is in good standing with the Ministry of Consumer and Business Services of Ontario with respect to the filing of annual returns;
(iii) Project Co has the requisite power, authority and corporate capacity to execute and deliver and perform this Project Agreement and the Implementing Agreements to which it is a party, and to do all acts and things, and execute, deliver and perform all other agreements, instruments, undertakings and documents as are required by this Project Agreement to be done, executed, delivered or performed;
(iiiiv) Project Co has obtained all necessary Project Co Permits, Licences and Approvals required to commence the Work;
(ivv) no steps or proceedings have been taken or are pending to supersede, repeal or amend its constating documents, articles or by-laws or any shareholders agreement in a manner that would materially impair or limit its ability to perform its obligations under this Project Agreement or any of the Implementing Agreements to which it is a party, and such documents and agreements are in full force and effect as of the date hereof;
(vvi) this Project Agreement and the Implementing Agreements (when executed and delivered) to which Project Co is a party have been duly authorized, executed, and delivered by Project Co and constitute legal, valid, and binding obligations of Project Co, enforceable against Project Co in accordance with their respective terms, subject only to:
(A) limitations with respect to the enforcement of remedies by bankruptcy, insolvency, moratorium, winding-up, arrangement, reorganization, fraudulent preference and conveyance and other laws of general application affecting the enforcement of creditors’ rights generally; and
(B) general equitable principles and the fact that the availability of equitable remedies is in the discretion of a court and that a court may stay proceedings or the execution of judgments;
(vivii) the authorization, execution, delivery and performance by Project Co of this Project Agreement and the Implementing Agreements to which it is a party does not violate or conflict with, or constitute a default under:
(A) its constating constating, formation or organizational documents documents, or any unanimous shareholders agreement relating to voting rights in Project Co or the management or control of the business or affairs of Project Co or any similar rights agreement binding on Project Co;
(B) any Applicable Law; or
(C) any covenant, contract, instrument, agreement or understanding to which it is a party or by which it or any of its properties or assets is bound or affected;
(vii) Project Co is an Affiliate of each of the Contractor and the Construction Guarantor;
(viii) no Project Co Event of Default has occurred and is continuing;
(ix) all of the information regarding Project Co set out in Schedule 4 – Project Co Information, is true and correct in all material respects;
(x) there are no actions, suits, proceedings, or investigations pending or, to the knowledge of its senior management, threatened against Project Co or any Project Co Party, at law or in equity, before any Governmental Authority or arbitral body (whether or not covered by insurance) that individually or in the aggregate could result in any material adverse effect on the business, properties, or assets, or the condition, financial or otherwise, of Project Co or in any impairment of its ability to perform its obligations under this Project Agreement or any Implementing Agreements to which it is a party, and Project Co has no knowledge of any violation or default with respect to any order, writ, injunction or decree of any Governmental Authority or arbitral body that would result in any such material adverse effect or impairment;
(xi) Project Co has carefully reviewed the whole of this Project Agreement, including all of the Contract Documents, and all other documents made available to Project Co by or on behalf of OwnerCMH, and, to Project Co’s knowledge, nothing contained herein or therein inhibits or prevents Project Co from completing the Work in accordance with this Project Agreement in a good and safe manner so as to achieve and satisfy the requirements of this Project Agreement;
(xii) Project Co is able to meet its obligations as they generally become due;
(xiii) Project Co is registered under Division V of Part IX of the Excise Tax Act (Canada) and has been assigned GST/HST Number [REDACTED];
(xiv) the Scheduled Substantial Completion Date is a realistic date and is achievable by Project Co performing the Work in accordance with this Project Agreement;
(xv) Project Co and the Project Co Parties, collectively, have extensive experience in the construction of health facilities and other public buildings and have the necessary high degree of expertise and experience to perform the services required by the Contract Documents, to review and interpret the Contract Documents and to complete the Work in accordance with the standard of care set out in Section 11.2(a)(viii);
(xvi) the manager or supervisory personnel Project Co has assigned to the Project are highly experienced;
(xvii) Project Co has a sufficient staff of qualified and competent personnel to replace its designated supervisors, subject to OwnerCMH’s approval, in the event of death, incapacity or resignation;
(xviii) Project Co has and certain of the Project Co Parties have conducted inspections of the Site during the Request for Proposals process and an investigation and examination of the Contract Documents, and any other documents made available to Project Co by Owner CMH (which include, to the extent made available to Project Co by OwnerCMH, equipment lists, a legal description of the Site, copies of any registered and unregistered agreements affecting the Site, results of tests, reports of independent testing agencies and surveys and documents indicating the location of Utilities and other structures to the extent obtained by Owner, information regarding the critical requirements to maintain the operations of the Existing Facility, hospital protocols and rules and regulations, if any, including the Site Background Reports and the Contract Documents referred to in Section 11.7(cCMH) so as to ascertain the nature or location of the Work and the Site, the physical conditions of the Site, the interface with the Existing Facility Facility, and protocols, rules and regulations if any, possible delays in commencing the Work, conditions relating to the transportation, handling and storage of materials and availability of labour and the character and availability of equipment, materials and facilities needed to perform the Work and to identify any Design Issues. Project Co has delivered to the Consultant requests for information in respect of all questions arising out of the foregoing inspections, investigations and examinations and in respect of each Design Issue identified. Based on this review, Project Co has established a Project Co Design Contingency adequate, in its judgement, to fund any change or delay cost that may arise as a result of any further Design Issue that may be identified and properly characterized as a Project Co Design Issue;
(xix) Project Co has sufficient expertise available to it with the appropriate skills to review the Contract Documents in accordance with the standard of care set out in Section 11.2(a)(viii);
(xx) Project Co has solicited bids from and will award Subcontracts for the Approved Subcontractor Work only to the applicable Approved Subcontractors and has not solicited bids from and will not award Subcontracts for the Approved Subcontractor Work except to the applicable Approved Subcontractors; and;
(xxi) Project Co has secured the Financing and is in a position to implement the Financing on or before the Financial Close Target Date, subject to the satisfaction of reasonable conditions that are customary in closing financing for projects similar to the Project;
(xxii) no Restricted Person has Direct or Indirect Power or Control over any member of the Project Co Group in relation to the decisions, management, actions or policies of Project Co or in relation to the operation, management and ownership of the Project; and
(xxiii) to the knowledge of Project Co, no Restricted Person has directly or indirectly, an Economic Interest in Project Co or the Project.
Appears in 1 contract
Samples: Project Agreement
Project Co Representations and Warranties. (a) Project Co represents and warrants to Owner HMQ that as of the date of this Project Agreement:
(i) Project Co is a limited liability corporation incorporated general partnership between ITS Inc. and ITS LP formed and validly existing under the laws of Alberta, is in good standing with the Registrar Province of Corporations of Alberta with respect to the filing of annual returns, Manitoba and has all the requisite corporate power and authority to own, lease and operate own its properties and assets, to carry on its business as it is currently being conducted, and to enter into this Project Agreement and to perform its obligations hereunder;
(ii) ITS Inc. is a corporation incorporated and validly existing under the Implementing Agreements laws of Manitoba, is in good standing with the Companies Office of Manitoba with respect to which the filing of annual reports, and has all the requisite corporate power and authority to own its properties and assets, to carry on its business as it is a partycurrently being conducted, and to enter into this Project Agreement and to perform its obligations hereunder and thereunderin its capacity as a partner of Project Co;
(iiiii) ITS LP is a limited partnership between ITS GP Inc., as general partner, and EllisDon (ITS) WRCC Inc. and LPF Infrastructure Fund, as limited partners, and is formed and validly existing under the laws of the Province of Manitoba, and has all the requisite power and authority to own its properties and assets, to carry on its business as it is currently being conducted, and to enter into this Project Agreement and to perform its obligations hereunder in its capacity as a partner of Project Co;
(iv) ITS GP Inc. is a corporation incorporated and validly existing under the laws of Manitoba, is in good standing with the Companies Office of Manitoba with respect to the filing of annual reports, and has all the requisite corporate power and authority to own its properties and assets, to carry on its business as it is currently being conducted and to enter into this Project Agreement and to perform its obligations hereunder in its capacity as general partner of ITS LP;
(v) Project Co and the Project Co Parties, collectively, have extensive experience and are knowledgeable in the design, construction and maintenance of courthouse facilities and have the required ability, experience, skill and capacity to perform the Project Operations in a timely and professional manner as set out in this Project Agreement;
(vi) Each of Project Co, ITS Inc. and ITS GP Inc. (as general partner of ITS LP) has the requisite power, authority and corporate capacity to execute and deliver and perform this Project Agreement and the Implementing Agreements to which it is a partyAgreement, and to do all acts and things, and execute, deliver and perform all other agreements, instruments, undertakings and documents as are required by this Project Agreement to be done, executed, delivered or performed;
(iii) Project Co has obtained all necessary Project Co Permits, Licences and Approvals required to commence the Work;
(ivvii) no steps or proceedings have been taken or are pending to supersede, repeal supersede or amend its amend,
(A) the constating documents, or formation documents of Project Co or ITS LP; or
(B) the articles or by-laws of ITS Inc. or any shareholders agreement ITS GP Inc., in each case, in a manner that would materially impair or limit its Project Co‟s ability to perform its obligations under this Project Agreement or any of the Implementing Agreements to which it is a party, and such documents and agreements are in full force and effect as of the date hereofAgreement;
(vviii) this Project Agreement and the Implementing Agreements (when executed and delivered) to which Project Co is a party have has been duly authorized, executed, and delivered by Project Co Co, ITS Inc., ITS LP (through its general partner ITS GP Inc.) and constitute ITS GP Inc. and constitutes a legal, valid, and binding obligations obligation of each of Project Co, ITS Inc., ITS LP and ITS GP Inc. enforceable against Project Co each of them in accordance with their respective its terms, subject only to:
(A) limitations with respect to the enforcement of remedies by bankruptcy, insolvency, moratorium, winding-up, arrangement, reorganization, fraudulent preference and conveyance and other laws of general application affecting the enforcement of creditors’ creditors‟ rights generally; and
(B) general equitable principles and the fact that the availability of equitable remedies is in the discretion of a court and that a court may stay proceedings or the execution of judgments;
(viix) the authorization, execution, delivery delivery, and performance by Project Co Co, ITS Inc., ITS LP and ITS GP Inc. of this Project Agreement does not and the Implementing Agreements to which it is a party does will not violate or conflict with, or constitute a default under:
(A) its constating constating, formation or organizational documents or documents, including any unanimous shareholders agreement or similar rights agreement binding on Project Coby-laws;
(B) any Applicable Law; or
(C) any covenant, contract, instrumentagreement, agreement or understanding to which it is a party or by which it or any of its properties or assets is bound or affected;
(vii) Project Co is an Affiliate of each of the Contractor and the Construction Guarantor;
(viiix) no Project Co Event of Default has occurred and is continuing;
(ixxi) all of the information regarding Project Co Co, ITS Inc., ITS LP and ITS GP Inc. set out in Schedule 4 – 31 - Project Co Information, Information is true and correct in all material respects;
(xxii) there are no actions, suits, proceedings, or investigations pending or threatened against Project Co, ITS Inc., ITS LP or ITS GP Inc. or, to the knowledge of its senior managementProject Co‟s knowledge, threatened against Project Co or any Project Co Party, Party at law or in equity, equity before any Governmental Authority or arbitral body (whether or not covered by insurance) that individually or in the aggregate could result in any material adverse effect on the business, properties, or assets, or the condition, financial or otherwise, of any of Project Co Co, ITS Inc., ITS LP or ITS GP Inc. or in any impairment of its Project Co‟s ability to perform its obligations under this Project Agreement or any Implementing Agreements to which it is a partyAgreement, and Project Co has no knowledge of any violation or default with respect to any order, writ, injunction injunction, or decree of any Governmental Authority or arbitral body that would could result in any such material adverse effect or impairment;
(xixiii) Project Co has carefully reviewed the whole of this Project Agreement, including all of the Contract Documents, and all other documents made available to Project Co by or on behalf of OwnerHMQ, and, to Project Co’s Co‟s knowledge, nothing contained herein or therein inhibits or prevents Project Co from completing the Work Works or performing the Project Operations in accordance with this Project Agreement in a good and safe manner so as to achieve and satisfy the requirements of this Project Agreement;
(xiixiv) each of Project Co Co, ITS Inc., ITS LP and ITS GP Inc. is able to meet its obligations as they generally become due;
(xiiixv) Project Co is registered under Division V of Part IX of the Excise Tax Act (Canada) and has been assigned GST/HST Number its GST registration number is [REDACTED];
(xivxvi) the Scheduled Substantial Completion Date is a realistic date and is achievable by Project Co performing the Work Works in accordance with this Project Agreement;
(xvxvii) each of Project Co, ITS Inc., ITS LP and ITS GP Inc. is not a Non-Resident and has no obligation to file income tax returns in any jurisdiction outside Canada; and
(xviii) if Project Co and is a non-resident contractor as defined in Section 1 of the Retail Sales Tax Act (Ontario) Regulation 1013, Project Co Parties, collectively, have extensive experience has complied with the requirements of Subsection 39(3) of the Retail Sales Tax Act (Ontario) in respect of any tangible personal property consumed or used in the construction of health facilities and other public buildings and have the necessary high degree of expertise and experience to perform the services required by the Contract Documents, to review and interpret the Contract Documents and to complete the Work in accordance with the standard of care set out in Section 11.2(a)(viii);
(xvi) the manager or supervisory personnel Project Co has assigned to the Project are highly experienced;
(xvii) Project Co has a sufficient staff of qualified and competent personnel to replace its designated supervisors, subject to Owner’s approval, in the event of death, incapacity or resignation;
(xviii) Project Co has conducted inspections of the Site during the Request for Proposals process and an investigation and examination of the Contract Documents, and any other documents made available to Project Co by Owner (which include, to the extent made available to Project Co by Owner, equipment lists, a legal description of the Site, copies of any registered and unregistered agreements affecting the Site, results of tests, reports of independent testing agencies and surveys and documents indicating the location of Utilities and other structures to the extent obtained by Owner, information regarding the critical requirements to maintain the operations of the Existing Facility, hospital protocols and rules and regulations, if any, including the Site Background Reports and the Contract Documents referred to in Section 11.7(c) so as to ascertain the nature or location of the Work and the Site, the physical conditions of the Site, the interface with the Existing Facility and protocols, rules and regulations if any, possible delays in commencing the Work, conditions relating to the transportation, handling and storage of materials and availability of labour and the character and availability of equipment, materials and facilities needed to perform the Work and to identify any Design Issues. Project Co has delivered to the Consultant requests for information in respect of all questions arising out of the foregoing inspections, investigations and examinations and in respect of each Design Issue identified. Based on this review, Project Co has established a Project Co Design Contingency adequate, in its judgement, to fund any change or delay cost that may arise as a result of any further Design Issue that may be identified and properly characterized as a Project Co Design Issue;
(xix) Project Co has sufficient expertise available to it with the appropriate skills to review the Contract Documents in accordance with the standard of care set out in Section 11.2(a)(viii);
(xx) Project Co has solicited bids from and will award Subcontracts for the Approved Subcontractor Work only to the applicable Approved Subcontractors and has not solicited bids from and will not award Subcontracts for the Approved Subcontractor Work except to the applicable Approved Subcontractors; and
(xxi) Project Co has secured the Financing and is in a position to implement the Financing on or before the Financial Close Target Date, subject to the satisfaction of reasonable conditions that are customary in closing financing for projects similar to the Project.
Appears in 1 contract
Samples: Project Agreement
Project Co Representations and Warranties. (a) Project Co represents and warrants to Owner Contracting Authority that as of the date of this Project Agreement:
(i) Project Co is a limited liability corporation incorporated and validly existing under the laws of Albertathe Province of Ontario, is in good standing with the Registrar Ministry of Corporations Government and Consumer Services of Alberta Ontario with respect to the filing of annual returnsreports, and has all the requisite corporate power and authority to own, lease and operate own its properties and assets, to carry on its business as it is currently being conducted, and to enter into this Project Agreement and the Implementing Agreements to which it is a party, and to perform its obligations hereunder and thereunderhereunder;
(ii) [REDACTED], collectively, have extensive experience and are knowledgeable in the design and construction of infrastructure projects similar to the Project in scale, scope and complexity and have the required ability, experience, skill and capacity to perform the Works in a timely and professional manner as set out in this Project Agreement;
(iii) Project Co has the requisite power, authority and corporate capacity to execute and deliver and perform this Project Agreement and the Implementing Agreements to which it is a partyAgreement, and to do all acts and things, and execute, deliver and perform all other agreements, instruments, undertakings and documents as are required by this Project Agreement to be done, executed, delivered or performed;
(iii) Project Co has obtained all necessary Project Co Permits, Licences and Approvals required to commence the Work;
(iv) no steps or proceedings have been taken or are pending to supersede, repeal supersede or amend its the constating documents, articles or by-laws or any shareholders agreement of Project Co in a manner that would materially impair or limit its ability to perform its the obligations of Project Co under this Project Agreement or any of the Implementing Agreements to which it is a party, and such documents and agreements are in full force and effect as of the date hereofAgreement;
(v) this Project Agreement and the Implementing Agreements (when executed and delivered) to which Project Co is a party have has been duly authorized, executed, and delivered by Project Co and constitute constitutes a legal, valid, and binding obligations obligation of Project Co, enforceable against Project Co in accordance with their respective its terms, subject only to:
(A) limitations with respect to the enforcement of remedies by bankruptcy, insolvency, moratorium, winding-up, arrangement, reorganization, fraudulent preference and conveyance and other laws of general application affecting the enforcement of creditors’ rights generally; and
(B) general equitable principles and the fact that the availability of equitable remedies is in the discretion of a court and that a court may stay proceedings or the execution of judgments;
(vi) the authorization, execution, delivery delivery, and performance by Project Co of this Project Agreement does not and the Implementing Agreements to which it is a party does will not violate or conflict with, or constitute a default under:
(A) its constating constating, formation or organizational documents or documents, including any unanimous shareholders agreement or similar rights agreement binding on Project Coby- laws;
(B) any Applicable Law; or
(C) any covenant, contract, instrumentagreement, agreement or understanding to which it is a party or by which it or any of its properties or assets is bound or affected;
(vii) Project Co is an Affiliate of each of the Contractor and the Construction Guarantor;
(viii) no Project Co Event of Default has occurred and is continuing;
(ixviii) all of the information regarding Project Co set out in Schedule 4 31 – Project Co Information, Information is true and correct in all material respects;
(xix) there are no actions, suits, proceedings, or investigations pending or, to the knowledge of its senior management, or threatened against Project Co or or, to Project Co’s knowledge, any Project Co Party, Party at law or in equity, equity before any Governmental Authority or arbitral body (whether or not covered by insurance) that individually or in the aggregate could result in any material adverse effect on the business, properties, or assets, or the condition, financial or otherwise, of Project Co or in any impairment of its ability to perform its obligations under this Project Agreement or any Implementing Agreements to which it is a partyAgreement, and Project Co has no knowledge of any violation or default with respect to any order, writ, injunction injunction, or decree of any Governmental Authority or arbitral body that would could result in any such material adverse effect or impairment;
(xix) Project Co has carefully reviewed the whole of this Project Agreement, including all of the Contract Documents, and all other documents made available to Project Co by or on behalf of OwnerContracting Authority, and, to Project Co’s knowledge, nothing contained herein or therein inhibits or prevents Project Co from completing the Work Works or performing the Works in accordance with this Project Agreement in a good and safe manner so as to achieve and satisfy the requirements of this Project Agreement;
(xiixi) Project Co is able to meet its obligations as they generally become due;
(xiiixii) Project Co is registered under Division V of Part IX of the Excise Tax Act (Canada) and has been assigned GST/its HST Number registration number is [REDACTED];
(xiii) the Scheduled Phase Completion Dates are each realistic dates and are achievable by Project Co performing the Works in accordance with the Project Agreement;
(xiv) the Scheduled Substantial Completion Date is a realistic date and is achievable by Project Co performing the Work Works in accordance with this Project Agreement;
(xv) Project Co and the Project Co Parties, collectively, have extensive experience in the construction of health facilities and other public buildings and have the necessary high degree of expertise and experience to perform the services required by the Contract Documents, to review and interpret the Contract Documents and to complete the Work in accordance with the standard of care set out in Section 11.2(a)(viii)is not a Non-Resident;
(xvi) Project Co has obtained all necessary Project Co Permits, Licences, Approvals and Agreements required to commence the Works;
(xvii) the manager or supervisory personnel Project Co has assigned to the Project are highly experienced;
(xviixviii) Project Co has a sufficient staff of qualified and competent personnel to replace its designated supervisors, subject to OwnerContracting Authority’s approval, in the event of death, incapacity or resignation;
(xviiixix) Project Co has and certain of the Project Co Parties have conducted inspections of the Site during the Request for Proposals process Sites prior to Commercial Close and an investigation and examination of the Contract DocumentsProject Agreement, the Background Information and any other documents made available to Project Co by Owner (which include, to the extent made available to Project Co by Owner, equipment lists, a legal description of the Site, copies of any registered and unregistered agreements affecting the Site, results of tests, reports of independent testing agencies and surveys and documents indicating the location of Utilities and other structures to the extent obtained by Owner, information regarding the critical requirements to maintain the operations of the Existing Facility, hospital protocols and rules and regulations, if any, including the Site Background Reports and the Contract Documents referred to in Section 11.7(c) Contracting Authority so as to ascertain the nature or location of the Work Works and the SiteSites, the physical conditions of the Site, the interface with the Existing Facility Sites and protocols, rules and regulations if any, possible delays in commencing the Work, conditions relating to the transportation, handling and storage of materials and availability of labour and the character and availability of equipment, materials and facilities needed to perform the Work and to identify any Design Issues. Project Co has delivered to the Consultant requests for information in respect of all questions arising out of the foregoing inspections, investigations and examinations and in respect of each Design Issue identified. Based on this review, Project Co has established a Project Co Design Contingency adequate, in its judgement, to fund any change or delay cost that may arise as a result of any further Design Issue that may be identified and properly characterized as a Project Co Design Issue;
(xix) Project Co has sufficient expertise available to it with the appropriate skills to review the Contract Documents in accordance with the standard of care set out in Section 11.2(a)(viii)Works;
(xx) Project Co has solicited bids from and will award Subcontracts for the Approved Subcontractor Work only to the applicable Approved Subcontractors and has not solicited bids from and will not award Subcontracts for the Approved Subcontractor Work except to the applicable Approved Subcontractors; and
(xxi) Project Co has secured the Financing and is in a position to implement complete the Financing on or before the Financial Close Target Date, subject to the satisfaction of reasonable conditions that are customary in closing financing for projects similar to the Project;
(xxi) no Restricted Person has Direct or Indirect Power or Control over any member of the Project Co Group in relation to the decisions, management, actions or policies of Project Co or in relation to the operation, management and ownership of the Project;
(xxii) to the knowledge of Project Co, no Restricted Person has directly or indirectly, an Economic Interest in Project Co or the Project; and
(xxiii) the COR-Certified Construction Project Co Party is in possession of its COR Certification in good standing as required under this Project Agreement and has the ability to maintain such COR Certification in good standing at all times during the performance of the Works in accordance with its terms, provisions and conditions, or (xxiv) the COR-Qualified Construction Project Co Party:
(A) is in possession of its OHSAS 18001 Accreditation which remains in good standing and has the ability to maintain such OHSAS 18001 Accreditation in good standing at all times during the performance of the Works, until such COR-Qualified Construction Project Co Party receives its COR Certification as required under this Project Agreement, and
(B) has made an application to the IHSA for its COR Certification as required under this Project Agreement.
Appears in 1 contract
Samples: Project Agreement
Project Co Representations and Warranties. (a) Project Co represents and warrants to Owner Contracting Authority that as of the date of this Project Agreement:
(i) Project Co is a limited liability corporation incorporated and validly existing under the laws of Alberta, is in good standing with the Registrar of Corporations of Alberta with respect to the filing of annual returns, and [REDACTED] has all the requisite corporate power and authority to own, lease and operate own its properties and assets, to carry on its business as it is currently being conducted, and to enter into this Project Agreement and the Implementing Agreements to which it is a party, and to perform its obligations hereunder and thereunderhereunder;
(ii) Project Co and the Project Co Parties, collectively, have extensive experience and are knowledgeable in the design and construction of hospital facilities and have the required ability, experience, skill and capacity to perform the Works in a timely and professional manner as set out in this Project Agreement;
(iii) Project Co has the requisite power, authority and corporate capacity to execute and deliver and perform this Project Agreement and the Implementing Agreements to which it is a partyAgreement, and to do all acts and things, and execute, deliver and perform all other agreements, instruments, undertakings and documents as are required by this Project Agreement to be done, executed, delivered or performed;
(iii) Project Co has obtained all necessary Project Co Permits, Licences and Approvals required to commence the Work;
(iv) no steps or proceedings have been taken or are pending to supersede, repeal supersede or amend its the constating documents, articles or by-laws or any shareholders agreement of Project Co in a manner that would materially impair or limit its ability to perform its the obligations of Project Co under this Project Agreement or any of the Implementing Agreements to which it is a party, and such documents and agreements are in full force and effect as of the date hereofAgreement;
(v) this Project Agreement and the Implementing Agreements (when executed and delivered) to which Project Co is a party have has been duly authorized, executed, and delivered by Project Co and constitute constitutes a legal, valid, and binding obligations obligation of Project Co, enforceable against Project Co in accordance with their respective its terms, subject only to:
(A) limitations with respect to the enforcement of remedies by bankruptcy, insolvency, moratorium, winding-up, arrangement, reorganization, fraudulent preference and conveyance and other laws of general application affecting the enforcement of creditors’ rights generally; and
(B) general equitable principles and the fact that the availability of equitable remedies is in the discretion of a court and that a court may stay proceedings or the execution of judgments;
(vi) the authorization, execution, delivery delivery, and performance by Project Co of this Project Agreement does not and the Implementing Agreements to which it is a party does will not violate or conflict with, or constitute a default under:
(A) its constating constating, formation or organizational documents or documents, including any unanimous shareholders agreement or similar rights agreement binding on Project Coby- laws;
(B) any Applicable Law; or
(C) any covenant, contract, instrumentagreement, agreement or understanding to which it is a party or by which it or any of its properties or assets is bound or affected;
(vii) Project Co is an Affiliate of each of the Contractor and the Construction Guarantor;
(viii) no Project Co Event of Default has occurred and is continuing;
(ixviii) all of the information regarding Project Co set out in Schedule 4 31 – Project Co Information, Information is true and correct in all material respects;
(xix) there are no actions, suits, proceedings, or investigations pending or, to the knowledge of its senior management, or threatened against Project Co or or, to Project Co’s knowledge, any Project Co Party, Party at law or in equity, equity before any Governmental Authority or arbitral body (whether or not covered by insurance) that individually or in the aggregate could result in any material adverse effect on the business, properties, or assets, or the condition, financial or otherwise, of Project Co or in any impairment of its ability to perform its obligations under this Project Agreement or any Implementing Agreements to which it is a partyAgreement, and Project Co has no knowledge of any violation or default with respect to any order, writ, injunction injunction, or decree of any Governmental Authority or arbitral body that would could result in any such material adverse effect or impairment;
(xix) Project Co has carefully reviewed the whole of this Project Agreement, including all of the Contract Documents, and all other documents made available to Project Co by or on behalf of OwnerContracting Authority, and, to Project Co’s knowledge, nothing contained herein or therein inhibits or prevents Project Co from completing the Work Works or performing the Works in accordance with this Project Agreement in a good and safe manner so as to achieve and satisfy the requirements of this Project Agreement;
(xiixi) Project Co is able to meet its obligations as they generally become due;
(xiiixii) Project Co is registered under Division V of Part IX of the Excise Tax Act (Canada) and has been assigned GST/its HST Number registration number is [REDACTED];
(xiii) the Scheduled Phase Completion Dates and the Scheduled Tower Interim Completion Date are each realistic dates and are achievable by Project Co performing the Works in accordance with the Project Agreement;
(xiv) the Scheduled Substantial Completion Date is a realistic date and is achievable by Project Co performing the Work Works in accordance with this Project Agreement;
(xv) Project Co and the Project Co Parties, collectively, have extensive experience in the construction of health facilities and other public buildings and have the necessary high degree of expertise and experience to perform the services required by the Contract Documents, to review and interpret the Contract Documents and to complete the Work in accordance with the standard of care set out in Section 11.2(a)(viii)is not a Non-Resident;
(xvi) Project Co has obtained all necessary Project Co Permits, Licences, Approvals and Agreements required to commence the Works;
(xvii) the manager or supervisory personnel Project Co has assigned to the Project are highly experienced;
(xviixviii) Project Co has a sufficient staff of qualified and competent personnel to replace its designated supervisors, subject to OwnerContracting Authority’s approval, in the event of death, incapacity or resignation;
(xviiixix) Project Co has and certain of the Project Co Parties have conducted inspections of the Site during the Request for Proposals process prior to Commercial Close and an investigation and examination of the Contract DocumentsProject Agreement, the Background Information and any other documents made available to Project Co by Owner (which include, to the extent made available to Project Co by Owner, equipment lists, a legal description of the Site, copies of any registered and unregistered agreements affecting the Site, results of tests, reports of independent testing agencies and surveys and documents indicating the location of Utilities and other structures to the extent obtained by Owner, information regarding the critical requirements to maintain the operations of the Existing Facility, hospital protocols and rules and regulations, if any, including the Site Background Reports and the Contract Documents referred to in Section 11.7(c) Contracting Authority so as to ascertain the nature or location of the Work Works and the Site, the physical conditions of the Site, the interface with the Existing Facility Site and protocols, rules and regulations if any, possible delays in commencing the Work, conditions relating to the transportation, handling and storage of materials and availability of labour and the character and availability of equipment, materials and facilities needed to perform the Work and to identify any Design Issues. Project Co has delivered to the Consultant requests for information in respect of all questions arising out of the foregoing inspections, investigations and examinations and in respect of each Design Issue identified. Based on this review, Project Co has established a Project Co Design Contingency adequate, in its judgement, to fund any change or delay cost that may arise as a result of any further Design Issue that may be identified and properly characterized as a Project Co Design Issue;
(xix) Project Co has sufficient expertise available to it with the appropriate skills to review the Contract Documents in accordance with the standard of care set out in Section 11.2(a)(viii)Works;
(xx) Project Co has solicited bids from and will award Subcontracts for the Approved Subcontractor Work only to the applicable Approved Subcontractors and has not solicited bids from and will not award Subcontracts for the Approved Subcontractor Work except to the applicable Approved Subcontractors; and
(xxi) Project Co has secured the Financing and is in a position to implement complete the Financing on or before the Financial Close Target Date, subject to the satisfaction of reasonable conditions that are customary in closing financing for projects similar to the Project;
(xxi) No Restricted Person has Direct or Indirect Power or Control over any member of the Project Co Group in relation to the decisions, management, actions or policies of Project Co or in relation to the operation, management and ownership of the Project;
(xxii) To the knowledge of Project Co, no Restricted Person has directly or indirectly, an Economic Interest in Project Co or the Project;
(xxiii) The COR Certification of EllisDon Corporation extends and applies to the Construction Contractor; and
(xxiv) The COR-Certified Construction Project Co Party is in possession of its COR Certification in good standing as required under this Project Agreement and has the ability to maintain such COR Certification in good standing at all times during the performance of the Works in accordance with its terms, provisions and conditions, or
(A) is in possession of its OHSAS 18001 Accreditation which remains in good standing and has the ability to maintain such OHSAS 18001 Accreditation in good standing at all times during the performance of the Works until such COR-Qualified Construction Project Co Party receives its COR Certification as required under this Project Agreement, and
(B) has made an application to the IHSA for its COR Certification as required under this Project Agreement.
Appears in 1 contract
Samples: Project Agreement
Project Co Representations and Warranties. (a) Project Co represents and warrants to Owner the College that as of the date of this Project Agreement:
(i) Project Co is a limited liability corporation incorporated and validly existing under the laws of the Province of Alberta, is extra-provincially registered in the Province of Ontario, is in good standing with the Registrar of Corporations of Alberta (Alberta) with respect to the filing of annual returnsreports, and has all the requisite corporate power and authority to own, lease and operate own its properties and assets, to carry on its business as it is currently being conducted, and to enter into this Project Agreement and the Implementing Agreements to which it is a party, and to perform its obligations hereunder and thereunderhereunder;
(ii) Project Co and the Project Co Parties, collectively, have extensive experience and are knowledgeable in the design and construction of post-secondary education facilities and have the required ability, experience, skill and capacity to perform the Works in a timely and professional manner as set out in this Project Agreement;
(iii) Project Co has the requisite power, authority and corporate capacity to execute and deliver and perform this Project Agreement and the Implementing Agreements to which it is a partyAgreement, and to do all acts and things, and execute, deliver and perform all other agreements, instruments, undertakings and documents as are required by this Project Agreement to be done, executed, delivered or performed;
(iii) Project Co has obtained all necessary Project Co Permits, Licences and Approvals required to commence the Work;
(iv) no steps or proceedings have been taken or are pending to supersede, repeal supersede or amend its the constating documents, articles or by-laws or any shareholders agreement of Project Co in a manner that would materially impair or limit its ability to perform its the obligations of Project Co under this Project Agreement or any of the Implementing Agreements to which it is a party, and such documents and agreements are in full force and effect as of the date hereofAgreement;
(v) this Project Agreement and the Implementing Agreements (when executed and delivered) to which Project Co is a party have has been duly authorized, executed, and delivered by Project Co and constitute constitutes a legal, valid, and binding obligations obligation of Project Co, enforceable against Project Co in accordance with their respective its terms, subject only to:
(A) limitations with respect to the enforcement of remedies by bankruptcy, insolvency, moratorium, winding-up, arrangement, reorganization, fraudulent preference and conveyance and other laws of general application affecting the enforcement of creditors’ rights generally; and
(B) general equitable principles and the fact that the availability of equitable remedies is in the discretion of a court and that a court may stay proceedings or the execution of judgments;
(vi) the authorization, execution, delivery delivery, and performance by Project Co of this Project Agreement does not and the Implementing Agreements to which it is a party does will not violate or conflict with, or constitute a default under:
(A) its constating constating, formation or organizational documents or documents, including any unanimous shareholders agreement or similar rights agreement binding on Project Coby- laws;
(B) any Applicable Law; or
(C) any covenant, contract, instrumentagreement, agreement or understanding to which it is a party or by which it or any of its properties or assets is bound or affected;
(vii) Project Co is an Affiliate of each of the Contractor and the Construction Guarantor;
(viii) no Project Co Event of Default has occurred and is continuing;
(ixviii) all of the information regarding Project Co set out in Schedule 4 31 – Project Co Information, Information is true and correct in all material respects;
(xix) there are no actions, suits, proceedings, or investigations pending or, to the knowledge of its senior management, or threatened against Project Co or or, to Project Co’s knowledge, any Project Co Party, Party at law or in equity, equity before any Governmental Authority or arbitral body (whether or not covered by insurance) that individually or in the aggregate could result in any material adverse effect on the business, properties, or assets, or the condition, financial or otherwise, of Project Co or in any impairment of its ability to perform its obligations under this Project Agreement or any Implementing Agreements to which it is a partyAgreement, and Project Co has no knowledge of any violation or default with respect to any order, writ, injunction injunction, or decree of any Governmental Authority or arbitral body that would could result in any such material adverse effect or impairment;
(xix) Project Co has carefully reviewed the whole of this Project Agreement, including all of the Contract Documents, and all other documents made available to Project Co by or on behalf of Ownerthe College, and, to Project Co’s knowledge, nothing contained herein or therein inhibits or prevents Project Co from completing the Work Works or performing the Works in accordance with this Project Agreement in a good and safe manner so as to achieve and satisfy the requirements of this Project Agreement;
(xiixi) Project Co is able to meet its obligations as they generally become due;
(xiiixii) Project Co is registered under Division V of Part IX of the Excise Tax Act (Canada) and has been assigned GST/HST Number [REDACTED]);
(xivxiii) the Scheduled Substantial Completion Date is a realistic date and is achievable by Project Co performing the Work Works in accordance with this Project Agreement;
(xiv) Project Co is not a Non-Resident;
(xv) Project Co and the has obtained all necessary Project Co PartiesPermits, collectivelyLicences, have extensive experience in Approvals and Agreements required to commence the construction of health facilities and other public buildings and have the necessary high degree of expertise and experience to perform the services required by the Contract Documents, to review and interpret the Contract Documents and to complete the Work in accordance with the standard of care set out in Section 11.2(a)(viii)Works;
(xvi) the manager or supervisory personnel Project Co has assigned to and certain of the Project are highly experienced;
(xvii) Project Co has a sufficient staff of qualified and competent personnel to replace its designated supervisors, subject to Owner’s approval, in the event of death, incapacity or resignation;
(xviii) Project Co has Parties have conducted inspections of the Site during the Request for Proposals process prior to Commercial Close and an investigation and examination of the Contract DocumentsProject Agreement, the Background Information and any other documents made available to Project Co by Owner (which include, to the extent made available to Project Co by Owner, equipment lists, a legal description of the Site, copies of any registered and unregistered agreements affecting the Site, results of tests, reports of independent testing agencies and surveys and documents indicating the location of Utilities and other structures to the extent obtained by Owner, information regarding the critical requirements to maintain the operations of the Existing Facility, hospital protocols and rules and regulations, if any, including the Site Background Reports and the Contract Documents referred to in Section 11.7(c) College so as to ascertain the nature or location of the Work Works and the Site, the physical conditions of the Site, the interface with the Existing Facility Facilities and protocols, rules and regulations if any, possible delays in commencing the Work, conditions relating to the transportation, handling and storage of materials and availability of labour and the character and availability of equipment, materials and facilities needed to perform the Work and to identify any Design Issues. Project Co has delivered to the Consultant requests for information in respect of all questions arising out of the foregoing inspections, investigations and examinations and in respect of each Design Issue identified. Based on this review, Project Co has established a Project Co Design Contingency adequate, in its judgement, to fund any change or delay cost that may arise as a result of any further Design Issue that may be identified and properly characterized as a Project Co Design IssueWorks;
(xix) Project Co has sufficient expertise available to it with the appropriate skills to review the Contract Documents in accordance with the standard of care set out in Section 11.2(a)(viii);
(xx) Project Co has solicited bids from and will award Subcontracts for the Approved Subcontractor Work only to the applicable Approved Subcontractors and has not solicited bids from and will not award Subcontracts for the Approved Subcontractor Work except to the applicable Approved Subcontractors; and
(xxixvii) Project Co has secured the Financing and is in a position to implement complete the Financing on or before the Financial Close Target Date, subject to the satisfaction of reasonable conditions that are customary in closing financing for projects similar to the Project;
(xviii) No Restricted Person has Direct or Indirect Power or Control over any member of the Project Co Group in relation to the decisions, management, actions or policies of Project Co or in relation to the operation, management and ownership of the Project; and
(xix) To the knowledge of Project Co, no Restricted Person has directly or indirectly, an Economic Interest in Project Co or the Project.
Appears in 1 contract
Samples: Project Agreement
Project Co Representations and Warranties. (a) Project Co represents and warrants to Owner Contracting Authority that as of the date of this Project Agreement:
(i) Project Co is a limited liability corporation incorporated and validly existing under the laws of Alberta, is in good standing with the Registrar of Corporations of Alberta with respect to the filing of annual returns, and [REDACTED] has all the requisite corporate power and authority to own, lease and operate own its properties and assets, to carry on its business as it is currently being conducted, and to enter into this Project Agreement and the Implementing Agreements to which it is a party, and to perform its obligations hereunder and thereunderhereunder;
(ii) Project Co and the Project Co Parties, collectively, have extensive experience and are knowledgeable in the design and construction of hospital facilities and have the required ability, experience, skill and capacity to perform the Works in a timely and professional manner as set out in this Project Agreement;
(iii) Project Co has the requisite power, authority and corporate capacity to execute and deliver and perform this Project Agreement and the Implementing Agreements to which it is a partyAgreement, and to do all acts and things, and execute, deliver and perform all other agreements, instruments, undertakings and documents as are required by this Project Agreement to be done, executed, delivered or performed;
(iii) Project Co has obtained all necessary Project Co Permits, Licences and Approvals required to commence the Work;
(iv) no steps or proceedings have been taken or are pending to supersede, repeal supersede or amend its the constating documents, articles or by-laws or any shareholders agreement of Project Co in a manner that would materially impair or limit its ability to perform its the obligations of Project Co under this Project Agreement or any of the Implementing Agreements to which it is a party, and such documents and agreements are in full force and effect as of the date hereofAgreement;
(v) this Project Agreement and the Implementing Agreements (when executed and delivered) to which Project Co is a party have has been duly authorized, executed, and delivered by Project Co and constitute constitutes a legal, valid, and binding obligations obligation of Project Co, enforceable against Project Co in accordance with their respective its terms, subject only to:
(A) limitations with respect to the enforcement of remedies by bankruptcy, insolvency, moratorium, winding-up, arrangement, reorganization, fraudulent preference and conveyance and other laws of general application affecting the enforcement of creditors’ rights generally; and
(B) general equitable principles and the fact that the availability of equitable remedies is in the discretion of a court and that a court may stay proceedings or the execution of judgments;
(vi) the authorization, execution, delivery delivery, and performance by Project Co of this Project Agreement does not and the Implementing Agreements to which it is a party does will not violate or conflict with, or constitute a default under:
(A) its constating constating, formation or organizational documents or documents, including any unanimous shareholders agreement or similar rights agreement binding on Project Coby- laws;
(B) any Applicable Law; or
(C) any covenant, contract, instrumentagreement, agreement or understanding to which it is a party or by which it or any of its properties or assets is bound or affected;
(vii) Project Co is an Affiliate of each of the Contractor and the Construction Guarantor;
(viii) no Project Co Event of Default has occurred and is continuing;
(ixviii) all of the information regarding Project Co set out in Schedule 4 31 – Project Co Information, Information is true and correct in all material respects;
(xix) there are no actions, suits, proceedings, or investigations pending or, to the knowledge of its senior management, or threatened against Project Co or or, to Project Co’s knowledge, any Project Co Party, Party at law or in equity, equity before any Governmental Authority or arbitral body (whether or not covered by insurance) that individually or in the aggregate could result in any material adverse effect on the business, properties, or assets, or the condition, financial or otherwise, of Project Co or in any impairment of its ability to perform its obligations under this Project Agreement or any Implementing Agreements to which it is a partyAgreement, and Project Co has no knowledge of any violation or default with respect to any order, writ, injunction injunction, or decree of any Governmental Authority or arbitral body that would could result in any such material adverse effect or impairment;
(xix) Project Co has carefully reviewed the whole of this Project Agreement, including all of the Contract Documents, and all other documents made available to Project Co by or on behalf of OwnerContracting Authority, and, to Project Co’s knowledge, nothing contained herein or therein inhibits or prevents Project Co from completing the Work Works or performing the Works in accordance with this Project Agreement in a good and safe manner so as to achieve and satisfy the requirements of this Project Agreement;
(xiixi) Project Co is able to meet its obligations as they generally become due;
(xiiixii) Project Co is registered under Division V of Part IX of the Excise Tax Act (Canada) and has been assigned GST/its HST Number registration number is [REDACTED]
(xiii) the Scheduled Phase Completion Date is a realistic date and is achievable by Project Co performing the Works in accordance with the Project Agreement;
(xiv) the Scheduled Substantial Completion Date is a realistic date and is achievable by Project Co performing the Work Works in accordance with this Project Agreement;
(xv) Project Co and the Project Co Parties, collectively, have extensive experience in the construction of health facilities and other public buildings and have the necessary high degree of expertise and experience to perform the services required by the Contract Documents, to review and interpret the Contract Documents and to complete the Work in accordance with the standard of care set out in Section 11.2(a)(viii)is not a Non-Resident;
(xvi) Project Co has obtained all necessary Project Co Permits, Licences, Approvals and Agreements required to commence the Works;
(xvii) the manager or supervisory personnel Project Co has assigned to the Project are highly experienced;
(xviixviii) Project Co has a sufficient staff of qualified and competent personnel to replace its designated supervisors, subject to OwnerContracting Authority’s approval, in the event of death, incapacity or resignation;
(xviiixix) Project Co has and certain of the Project Co Parties have conducted inspections of the Site during the Request for Proposals process Lands prior to Commercial Close and an investigation and examination of the Contract DocumentsProject Agreement, the Background Information and any other documents made available to Project Co by Owner (which include, to the extent made available to Project Co by Owner, equipment lists, a legal description of the Site, copies of any registered and unregistered agreements affecting the Site, results of tests, reports of independent testing agencies and surveys and documents indicating the location of Utilities and other structures to the extent obtained by Owner, information regarding the critical requirements to maintain the operations of the Existing Facility, hospital protocols and rules and regulations, if any, including the Site Background Reports and the Contract Documents referred to in Section 11.7(c) Contracting Authority so as to ascertain the nature or location of the Work Works and the SiteLands, the physical conditions of the Site, the interface with the Existing Facility Lands and protocols, rules and regulations if any, possible delays in commencing the Work, conditions relating to the transportation, handling and storage of materials and availability of labour and the character and availability of equipment, materials and facilities needed to perform the Work and to identify any Design Issues. Project Co has delivered to the Consultant requests for information in respect of all questions arising out of the foregoing inspections, investigations and examinations and in respect of each Design Issue identified. Based on this review, Project Co has established a Project Co Design Contingency adequate, in its judgement, to fund any change or delay cost that may arise as a result of any further Design Issue that may be identified and properly characterized as a Project Co Design Issue;
(xix) Project Co has sufficient expertise available to it with the appropriate skills to review the Contract Documents in accordance with the standard of care set out in Section 11.2(a)(viii)Works;
(xx) Project Co has solicited bids from and will award Subcontracts for the Approved Subcontractor Work only to the applicable Approved Subcontractors and has not solicited bids from and will not award Subcontracts for the Approved Subcontractor Work except to the applicable Approved Subcontractors; and
(xxi) Project Co has secured the Financing and is in a position to implement complete the Financing on or before the Financial Close Target Date, subject to the satisfaction of reasonable conditions that are customary in closing financing for projects similar to the Project;
(xxi) no Restricted Person has Direct or Indirect Power or Control over any member of the Project Co Group in relation to the decisions, management, actions or policies of Project Co or in relation to the operation, management and ownership of the Project;
(xxii) to the knowledge of Project Co, no Restricted Person has directly or indirectly, an Economic Interest in Project Co or the Project; and
(xxiii) the COR-Certified Construction Project Co Party is in possession of its COR Certification in good standing as required under this Project Agreement and has the ability to maintain such COR Certification in good standing at all times during the performance of the Works in accordance with its terms, provisions and conditions, or (xxiv) the COR-Qualified Construction Project Co Party:
(A) is in possession of its OHSAS 18001 Accreditation which remains in good standing and has the ability to maintain such OHSAS 18001 Accreditation in good standing at all times during the performance of the Works, until such COR-Qualified Construction Project Co Party receives its COR Certification as required under this Project Agreement, and
(B) has made an application to the IHSA for its COR Certification as required under this Project Agreement.
Appears in 1 contract
Samples: Project Agreement
Project Co Representations and Warranties. (a) Project Co represents and warrants to Owner Contracting Authority that as of the date of this Project Agreement:
(i) Project Co is a limited liability corporation incorporated and validly existing under the laws of Albertathe Province of [REDACTED], is in good standing with the Registrar Ministry of Corporations Government and Consumer Services of Alberta Ontario with respect to the filing of annual returnsreports, and has all the requisite corporate power and authority to own, lease and operate own its properties and assets, to carry on its business as it is currently being conducted, and to enter into this Project Agreement and the Implementing Agreements to which it is a party, and to perform its obligations hereunder and thereunderhereunder;
(ii) Project Co and the Project Co Parties, collectively, have extensive experience and are knowledgeable in the design and construction of facilities similar to the Facility and have the required ability, experience, skill and capacity to perform the Works in a timely and professional manner as set out in this Project Agreement;
(iii) Project Co has the requisite power, authority and corporate capacity to execute and deliver and perform this Project Agreement and the Implementing Agreements to which it is a partyAgreement, and to do all acts and things, and execute, deliver and perform all other agreements, instruments, undertakings and documents as are required by this Project Agreement to be done, executed, delivered or performed;
(iii) Project Co has obtained all necessary Project Co Permits, Licences and Approvals required to commence the Work;
(iv) no steps or proceedings have been taken or are pending to supersede, repeal supersede or amend its the constating documents, articles or by-laws or any shareholders agreement of Project Co in a manner that would materially impair or limit its ability to perform its the obligations of Project Co under this Project Agreement or any of the Implementing Agreements to which it is a party, and such documents and agreements are in full force and effect as of the date hereofAgreement;
(v) this Project Agreement and the Implementing Agreements (when executed and delivered) to which Project Co is a party have has been duly authorized, executed, and delivered by Project Co and constitute constitutes a legal, valid, and binding obligations obligation of Project Co, enforceable against Project Co in accordance with their respective its terms, subject only to:
(A) limitations with respect to the enforcement of remedies by bankruptcy, insolvency, moratorium, winding-up, arrangement, reorganization, fraudulent preference and conveyance and other laws of general application affecting the enforcement of creditors’ rights generally; and
(B) general equitable principles and the fact that the availability of equitable remedies is in the discretion of a court and that a court may stay proceedings or the execution of judgments;
(vi) the authorization, execution, delivery delivery, and performance by Project Co of this Project Agreement does not and the Implementing Agreements to which it is a party does will not violate or conflict with, or constitute a default under:
(A) its constating constating, formation or organizational documents or documents, including any unanimous shareholders agreement or similar rights agreement binding on Project Coby- laws;
(B) any Applicable Law; or
(C) any covenant, contract, instrumentagreement, agreement or understanding to which it is a party or by which it or any of its properties or assets is bound or affected;
(vii) Project Co is an Affiliate of each of the Contractor and the Construction Guarantor;
(viii) no Project Co Event of Default has occurred and is continuing;
(ixviii) all of the information regarding Project Co set out in Schedule 4 31 – Project Co Information, Information is true and correct in all material respects;
(xix) there are no actions, suits, proceedings, or investigations pending or, to the knowledge of its senior management, or threatened against Project Co or or, to Project Co’s knowledge, any Project Co Party, Party at law or in equity, equity before any Governmental Authority or arbitral body (whether or not covered by insurance) that individually or in the aggregate could result in any material adverse effect on the business, properties, or assets, or the condition, financial or otherwise, of Project Co or in any impairment of its ability to perform its obligations under this Project Agreement or any Implementing Agreements to which it is a partyAgreement, and Project Co has no knowledge of any violation or default with respect to any order, writ, injunction injunction, or decree of any Governmental Authority or arbitral body that would could result in any such material adverse effect or impairment;
(xix) Project Co has carefully reviewed the whole of this Project Agreement, including all of the Contract Documents, and all other documents made available to Project Co by or on behalf of OwnerContracting Authority, and, to Project Co’s knowledge, nothing contained herein or therein inhibits or prevents Project Co from completing the Work Works or performing the Works in accordance with this Project Agreement in a good and safe manner so as to achieve and satisfy the requirements of this Project Agreement;
(xiixi) Project Co is able to meet its obligations as they generally become due;
(xiiixii) Project Co is registered under Subdivision D of Division V of Part IX of the Excise Tax Act (Canada) and has been assigned GST/HST Number its account number is [REDACTED];
(xiii) the Scheduled Phase Completion Date is a realistic date and is achievable by Project Co performing the Parking Garage Works in accordance with this Project Agreement;
(xiv) the Scheduled Substantial Completion Date is a realistic date and is achievable by Project Co performing the Work Works in accordance with this Project Agreement;
(xv) Project Co and the Project Co Parties, collectively, have extensive experience in the construction of health facilities and other public buildings and have the necessary high degree of expertise and experience to perform the services required by the Contract Documents, to review and interpret the Contract Documents and to complete the Work in accordance with the standard of care set out in Section 11.2(a)(viii)is not a Non-Resident;
(xvi) the manager or supervisory personnel Project Co has assigned to the Project are highly experienced;
(xvii) Project Co has a sufficient staff of qualified and competent personnel to replace its designated supervisors, subject to Owner’s approval, in the event of death, incapacity or resignation;
(xviii) Project Co has conducted inspections of the Site during the Request for Proposals process and an investigation and examination of the Contract Documents, and any other documents made available to Project Co by Owner (which include, to the extent made available to Project Co by Owner, equipment lists, a legal description of the Site, copies of any registered and unregistered agreements affecting the Site, results of tests, reports of independent testing agencies and surveys and documents indicating the location of Utilities and other structures to the extent obtained by Owner, information regarding the critical requirements to maintain the operations of the Existing Facility, hospital protocols and rules and regulations, if any, including the Site Background Reports and the Contract Documents referred to in Section 11.7(c) so as to ascertain the nature or location of the Work and the Site, the physical conditions of the Site, the interface with the Existing Facility and protocols, rules and regulations if any, possible delays in commencing the Work, conditions relating to the transportation, handling and storage of materials and availability of labour and the character and availability of equipment, materials and facilities needed to perform the Work and to identify any Design Issues. Project Co has delivered to the Consultant requests for information in respect of all questions arising out of the foregoing inspections, investigations and examinations and in respect of each Design Issue identified. Based on this review, Project Co has established a Project Co Design Contingency adequate, in its judgement, to fund any change or delay cost that may arise as a result of any further Design Issue that may be identified and properly characterized as a Project Co Design Issue;
(xix) Project Co has sufficient expertise available to it with the appropriate skills to review the Contract Documents in accordance with the standard of care set out in Section 11.2(a)(viii);
(xx) Project Co has solicited bids from and will award Subcontracts for the Approved Subcontractor Work only to the applicable Approved Subcontractors and has not solicited bids from and will not award Subcontracts for the Approved Subcontractor Work except to the applicable Approved Subcontractors; and
(xxi) Project Co has secured the Financing and is in a position to implement complete the Financing on or before the Financial Close Target Date, subject to the satisfaction of reasonable conditions that are customary in closing financing for projects similar to the Project;
(xvii) no Restricted Person has Direct or Indirect Power or Control over any member of the Project Co Group in relation to the decisions, management, actions or policies of Project Co or in relation to the operation, management and ownership of the Project;
(xviii) to the knowledge of Project Co, no Restricted Person has directly or indirectly, an Economic Interest in Project Co or the Project;
(xix) either
(A) The COR-Certified Construction Project Co Party is in possession of its COR Certification in good standing as required under this Project Agreement and has the ability to maintain such COR Certification in good standing at all times during the performance of the Works in accordance with its terms, provisions and conditions, or
(B) The COR-Qualified Construction Project Co Party:
(I) is in possession of its OHSAS 18001 Accreditation which remains in good standing and has the ability to maintain such OHSAS 18001 Accreditation in good standing at all times during the performance of the Works until such COR-Qualified Construction Project Co Party receives its COR Certification as required under this Project Agreement, and
(II) has made an application to the IHSA for its COR Certification as required under this Project Agreement.
Appears in 1 contract
Samples: Project Agreement
Project Co Representations and Warranties. (a) Project Co represents and warrants to Owner Hospital that as of at the date of this Project Agreement:
(i) Project Co is a limited liability corporation incorporated and duly organized, validly existing and in good standing under the laws of Albertathe jurisdiction of its organization, is in good standing with the Registrar Ministry of Corporations Government Services of Alberta Ontario with respect to the filing of annual returns, and has all the requisite corporate power and authority to own, lease and operate its properties and assets, to carry on its business as it is currently being conducted, and to enter into this Project Agreement and the any Implementing Agreements to which it is a party, party and to perform its obligations hereunder and thereunder;
(ii) Project Co has the requisite power, authority and corporate capacity to execute and deliver and perform this Project Agreement and the Implementing Agreements to which it is a party, and to do all acts and things, and execute, deliver and perform all other agreements, instruments, undertakings and documents as are required by this Project Agreement to be done, executed, delivered or performed;
(iii) Project Co has obtained all necessary Project Co Permits, Licences and Approvals required to commence the Work;
(iv) no steps or proceedings have been taken or are pending to supersede, repeal or amend its constating documents, articles or articles, by-laws or any shareholders agreement in a manner that would materially impair or limit its ability to perform its obligations under this Project Agreement or any of the Implementing Agreements to which it is a party, party and such documents and agreements they are in full force and effect as of the date hereof;
(viii) this Project Agreement and the any Implementing Agreements (when executed and delivered) to which Project Co it is a party have been duly authorized, executed, and delivered by Project Co and constitute a legal, valid, and binding obligations obligation of Project Co, enforceable against Project Co in accordance with their respective terms, subject only to:
(A) limitations with respect to the enforcement of remedies by bankruptcy, insolvency, moratorium, winding-up, arrangement, reorganization, fraudulent preference and conveyance and other laws of general application affecting the enforcement of creditors’ rights generally; and
(B) general equitable principles and the fact that the availability of equitable remedies is in the discretion of a court and that a court may stay proceedings or the execution of judgments;
(viiv) the authorization, execution, delivery delivery, and performance by Project Co of this Project Agreement and the any Implementing Agreements to which it is a party does not and will not violate or conflict with, or constitute a default under:
(A) its constating or organizational documents or any unanimous shareholders agreement or similar rights agreement binding on Project Co;
(B) any Applicable Law; or
(C) any covenant, contract, instrument, instrument or agreement or understanding to which it is a party or by which it or any of its properties or assets is bound or affected;
(vii) Project Co is an Affiliate of each of the Contractor and the Construction Guarantor;
(viii) no Project Co Event of Default has occurred and is continuing;
(ix) all of the information regarding Project Co set out in Schedule 4 – Project Co Information, is true and correct in all material respects;
(xv) there are no actions, suits, proceedings, or investigations pending or, to the knowledge of its senior managementmanagement on the reasonable advice of counsel, threatened against Project Co or any Project Co Party, at law or in equity, equity before any Governmental Authority or arbitral body (whether or not covered by insurance) that individually or in the aggregate could result in any material materially adverse effect on the business, properties, or assets, assets or the condition, financial or otherwise, of Project Co or in any impairment of its ability to perform its obligations under this Project Agreement or and any Implementing Agreements to which it is a party, and Project Co has no knowledge of any violation or default with respect to any order, writ, injunction decision, injunction, or decree of any Governmental Authority or arbitral body that would could result in any such material materially adverse effect or impairment;
(xivi) Project Co has carefully reviewed the whole is a wholly owned subsidiary of this Project Agreement, including all of the Contract Documents, and all other documents made available to Project Co by or on behalf of Owner, and, to Project Co’s knowledge, nothing contained herein or therein inhibits or prevents Project Co from completing the Work in accordance with this Project Agreement in a good and safe manner so as to achieve and satisfy the requirements of this Project AgreementVanbots Construction Corporation;
(xiivii) Project Co is able to meet its obligations as they generally become due;
(xiiiviii) Project Co is registered under Division V of Part IX of the Excise Tax Act (Canada) and has been assigned GST/HST Number [REDACTED];
(xiv) the Scheduled Substantial Completion Date is a realistic date and is achievable by Project Co performing the Work in accordance with this Project Agreement;
(xv) Project Co and the Project Co Parties, collectively, have extensive experience in the construction of health facilities and other public buildings and have the necessary high degree of expertise and experience to perform the services required by the Contract Documents, to review and interpret the Contract Documents and to complete the Work in accordance with the standard of care set out in Section 11.2(a)(viii);
(xvi) the manager or supervisory personnel Project Co has assigned to the Project are highly experienced;
(xvii) Project Co has a sufficient staff of qualified and competent personnel to replace its designated supervisors, subject to Owner’s approval, in the event of death, incapacity or resignation;
(xviii) Project Co has conducted inspections of the Site during the Request for Proposals process and an investigation and examination of the Contract Documents, and any other documents made available to Project Co by Owner (which include, to the extent made available to Project Co by Owner, equipment lists, a legal description of the Site, copies of any registered and unregistered agreements affecting the Site, results of tests, reports of independent testing agencies and surveys and documents indicating the location of Utilities and other structures to the extent obtained by Owner, information regarding the critical requirements to maintain the operations of the Existing Facility, hospital protocols and rules and regulations, if any, including the Site Background Reports and the Contract Documents referred to in Section 11.7(c) so as to ascertain the nature or location of the Work and the Site, the physical conditions of the Site, the interface with the Existing Facility and protocols, rules and regulations if any, possible delays in commencing the Work, conditions relating to the transportation, handling and storage of materials and availability of labour and the character and availability of equipment, materials and facilities needed to perform the Work and to identify any Design Issues. Project Co has delivered to the Consultant requests for information in respect of all questions arising out of the foregoing inspections, investigations and examinations and in respect of each Design Issue identified. Based on this review, Project Co has established a Project Co Design Contingency adequate, in its judgement, to fund any change or delay cost that may arise as a result of any further Design Issue that may be identified and properly characterized as a Project Co Design Issue;
(xix) Project Co has sufficient expertise available to it with the appropriate skills to review the Contract Documents in accordance with the standard of care set out in Section 11.2(a)(viii);
(xx) Project Co has solicited bids from and will award Subcontracts for the Approved Subcontractor Work only to the applicable Approved Subcontractors and has not solicited bids from and will not award Subcontracts for the Approved Subcontractor Work except to the applicable Approved Subcontractors; and
(xxiix) Project Co has has, together with Contractor, secured the Financing and is in a position to implement the Financing on or before the Financial Close Target Date, Date subject to the satisfaction of reasonable conditions that are customary in closing securing the financing for projects similar to the Project.
Appears in 1 contract
Samples: Project Agreement
Project Co Representations and Warranties.
(a) Project Co represents and warrants to Owner Contracting Authority that as of the date of this Project Agreement:
(i) Project Co has been formed and is existing as a limited liability corporation incorporated general partnership under the [REDACTED]. [REDACTED] and validly existing [REDACTED] are the sole general partners of Project Co. Project Co is in good standing with the Ministry of Government and Consumer Services of Ontario with respect to all partnership filings, including under the Business Names Act (Ontario). The Partnership Agreement constitutes a legal, valid and enforceable obligation of each of [REDACTED] and [REDACTED], enforceable against each of them in accordance with its terms;
(ii) [REDACTED] under the laws of Albertathe Province of Ontario, is in good standing with the Registrar Ministry of Corporations Government and Consumer Services of Alberta Ontario with respect to the filing of annual returnsreports, and has all the requisite corporate power and authority to own, lease and operate its own properties and assets, to carry on its business as it is currently being conductedincluding the business of Project Co, and to enter into this Project Agreement and to perform its obligations hereunder;
(iii) [REDACTED] under the Implementing Agreements laws of the Province of Ontario, is in good standing with the Ministry of Government and Consumer Services of Ontario with respect to which it is a partythe filing of annual reports, and has all the requisite corporate power and authority to own properties and assets, to carry on business including the business of Project Co, and to enter into this Project Agreement and to perform its obligations hereunder and thereunderhereunder;
(iiiv) each of Project Co, [REDACTED], [REDACTED] and the Project Co Parties, collectively, have extensive experience and are knowledgeable in the design and construction of facilities similar to the Facility and have the required ability, experience, skill and capacity to perform the Works in a timely and professional manner as set out in this Project Agreement;
(v) each of Project Co, [REDACTED] and [REDACTED] has the requisite power, authority and corporate capacity to execute and deliver and perform this Project Agreement and the Implementing Agreements to which it is a partyAgreement, and to do all acts and things, and execute, deliver and perform all other agreements, instruments, undertakings and documents as are required by this Project Agreement to be done, executed, delivered or performed;
(iii) Project Co has obtained all necessary Project Co Permits; or [REDACTED], Licences and Approvals required to commence the Work;
(iv) no steps or proceedings have been taken or are pending to supersede, repeal or amend its constating documents, articles or by-laws or any shareholders agreement in each case in a manner that would materially impair or limit its their ability to perform its the obligations of Project Co under this Project Agreement or any of the Implementing Agreements to which it is a party, and such documents and agreements are in full force and effect as of the date hereof;
(v) this Project Agreement and the Implementing Agreements (when executed and delivered) to which Project Co is a party have been duly authorized, executed, and delivered by Project Co and constitute legal, valid, and binding obligations of Project Co, enforceable against Project Co in accordance with their respective terms, subject only to:
(A) limitations with respect to the enforcement of remedies by bankruptcy, insolvency, moratorium, winding-up, arrangement, reorganization, fraudulent preference and conveyance and other laws of general application affecting the enforcement of creditors’ rights generally; and
(B) general equitable principles and the fact that the availability of equitable remedies is in the discretion of a court and that a court may stay proceedings or the execution of judgments;
(vi) the authorization, execution, delivery and performance by Project Co of this Project Agreement and the Implementing Agreements to which it is a party does not violate or conflict with, or constitute a default under:
(A) its constating or organizational documents or any unanimous shareholders agreement or similar rights agreement binding on Project Co;
(B) any Applicable Law; or
(C) any covenant, contract, instrument, agreement or understanding to which it is a party or by which it or any of its properties or assets is bound or affected;
(vii) Project Co is an Affiliate of each of the Contractor and the Construction Guarantor;
(viii) no Project Co Event of Default has occurred and is continuing;
(ix) all of the information regarding Project Co set out in Schedule 4 – Project Co Information, is true and correct in all material respects;
(x) there are no actions, suits, proceedings, or investigations pending or, to the knowledge of its senior management, threatened against Project Co or any Project Co Party, at law or in equity, before any Governmental Authority or arbitral body (whether or not covered by insurance) that individually or in the aggregate could result in any material adverse effect on the business, properties, or assets, or the condition, financial or otherwise, of Project Co or in any impairment of its ability to perform its own obligations under this Project Agreement or any Implementing Agreements to which it is a party, and Project Co has no knowledge of any violation or default with respect to any order, writ, injunction or decree of any Governmental Authority or arbitral body that would result in any such material adverse effect or impairment;
(xi) Project Co has carefully reviewed the whole of this Project Agreement, including all of the Contract Documents, and all other documents made available to Project Co by or on behalf of Owner, and, to Project Co’s knowledge, nothing contained herein or therein inhibits or prevents Project Co from completing the Work in accordance with this Project Agreement in a good and safe manner so as to achieve and satisfy the requirements of this Project Partnership Agreement;
(xii) Project Co is able to meet its obligations as they generally become due;
(xiii) Project Co is registered under Division V of Part IX of the Excise Tax Act (Canada) and has been assigned GST/HST Number [REDACTED];
(xiv) the Scheduled Substantial Completion Date is a realistic date and is achievable by Project Co performing the Work in accordance with this Project Agreement;
(xv) Project Co and the Project Co Parties, collectively, have extensive experience in the construction of health facilities and other public buildings and have the necessary high degree of expertise and experience to perform the services required by the Contract Documents, to review and interpret the Contract Documents and to complete the Work in accordance with the standard of care set out in Section 11.2(a)(viii);
(xvi) the manager or supervisory personnel Project Co has assigned to the Project are highly experienced;
(xvii) Project Co has a sufficient staff of qualified and competent personnel to replace its designated supervisors, subject to Owner’s approval, in the event of death, incapacity or resignation;
(xviii) Project Co has conducted inspections of the Site during the Request for Proposals process and an investigation and examination of the Contract Documents, and any other documents made available to Project Co by Owner (which include, to the extent made available to Project Co by Owner, equipment lists, a legal description of the Site, copies of any registered and unregistered agreements affecting the Site, results of tests, reports of independent testing agencies and surveys and documents indicating the location of Utilities and other structures to the extent obtained by Owner, information regarding the critical requirements to maintain the operations of the Existing Facility, hospital protocols and rules and regulations, if any, including the Site Background Reports and the Contract Documents referred to in Section 11.7(c) so as to ascertain the nature or location of the Work and the Site, the physical conditions of the Site, the interface with the Existing Facility and protocols, rules and regulations if any, possible delays in commencing the Work, conditions relating to the transportation, handling and storage of materials and availability of labour and the character and availability of equipment, materials and facilities needed to perform the Work and to identify any Design Issues. Project Co has delivered to the Consultant requests for information in respect of all questions arising out of the foregoing inspections, investigations and examinations and in respect of each Design Issue identified. Based on this review, Project Co has established a Project Co Design Contingency adequate, in its judgement, to fund any change or delay cost that may arise as a result of any further Design Issue that may be identified and properly characterized as a Project Co Design Issue;
(xix) Project Co has sufficient expertise available to it with the appropriate skills to review the Contract Documents in accordance with the standard of care set out in Section 11.2(a)(viii);
(xx) Project Co has solicited bids from and will award Subcontracts for the Approved Subcontractor Work only to the applicable Approved Subcontractors and has not solicited bids from and will not award Subcontracts for the Approved Subcontractor Work except to the applicable Approved Subcontractors; and
(xxi) Project Co has secured the Financing and is in a position to implement the Financing on or before the Financial Close Target Date, subject to the satisfaction of reasonable conditions that are customary in closing financing for projects similar to the Project.
Appears in 1 contract
Samples: Project Agreement
Project Co Representations and Warranties. (a) Project Co represents and warrants to Owner Contracting Authority that as of the date of this Project Agreement:
(i) Project Co is a limited liability corporation incorporated and validly existing under the laws of Alberta, is in good standing with the Registrar of Corporations of Alberta with respect to the filing of annual returns[REDACTED], and has all the requisite corporate power and authority to own, lease and operate own its properties and assets, to carry on its business as it is currently being conducted, and to enter into this Project Agreement and the Implementing Agreements to which it is a party, and to perform its obligations hereunder and thereunderhereunder;
(ii) Project Co and the Project Co Parties, collectively, have extensive experience and are knowledgeable in the construction of hospital facilities similar to the Facility and have the required ability, experience, skill and capacity to review and interpret the Contract Documents and perform the Works in a timely and professional manner as set out in this Project Agreement and in accordance with the standard of care required under Section 10.3(a)(v);
(iii) Project Co has the requisite power, authority and corporate capacity to execute and deliver and perform this Project Agreement and the Implementing Agreements to which it is a partyAgreement, and to do all acts and things, and execute, deliver and perform all other agreements, instruments, undertakings and documents as are required by this Project Agreement to be done, executed, delivered or performed;
(iii) Project Co has obtained all necessary Project Co Permits, Licences and Approvals required to commence the Work;
(iv) no steps or proceedings have been taken or are pending to supersede, repeal supersede or amend its the constating documents, articles or by-laws or any shareholders agreement of Project Co in a manner that would materially impair or limit its ability to perform its the obligations of Project Co under this Project Agreement or any of the Implementing Agreements to which it is a party, and such documents and agreements are in full force and effect as of the date hereofAgreement;
(v) this Project Agreement and the Implementing Agreements (when executed and delivered) to which Project Co is a party have has been duly authorized, executed, and delivered by Project Co and constitute constitutes a legal, valid, and binding obligations obligation of Project Co, enforceable against Project Co in accordance with their respective its terms, subject only to:
(A) limitations with respect to the enforcement of remedies by bankruptcy, insolvency, moratorium, winding-up, arrangement, reorganization, fraudulent preference and conveyance and other laws of general application affecting the enforcement of creditors’ rights generally; and
(B) general equitable principles and the fact that the availability of equitable remedies is in the discretion of a court and that a court may stay proceedings or the execution of judgments;
(vi) the authorization, execution, delivery delivery, and performance by Project Co of this Project Agreement does not and the Implementing Agreements to which it is a party does will not violate or conflict with, or constitute a default under:
(A) its constating constating, formation or organizational documents or documents, including any unanimous shareholders agreement or similar rights agreement binding on Project Coby- laws;
(B) any Applicable Law; or
(C) any covenant, contract, instrumentagreement, agreement or understanding to which it is a party or by which it or any of its properties or assets is bound or affected;
(vii) Project Co is an Affiliate of each of the Contractor and the Construction Guarantor;
(viii) no Project Co Event of Default has occurred and is continuing;
(ixviii) all of the information regarding Project Co set out in Schedule 4 31 – Project Co Information, Information is true and correct in all material respects;
(xix) there are no actions, suits, proceedings, or investigations pending or, to the knowledge of its senior management, or threatened against Project Co or or, to Project Co’s knowledge, any Project Co Party, Party at law or in equity, equity before any Governmental Authority or arbitral body (whether or not covered by insurance) that individually or in the aggregate could result in any material adverse effect on the business, properties, or assets, or the condition, financial or otherwise, of Project Co or in any impairment of its ability to perform its obligations under this Project Agreement or any Implementing Agreements to which it is a partyAgreement, and Project Co has no knowledge of any violation or default with respect to any order, writ, injunction injunction, or decree of any Governmental Authority or arbitral body that would could result in any such material adverse effect or impairment;
(xix) Project Co has carefully reviewed the whole of this Project Agreement, including all of the Contract Documents, and all other documents made available to Project Co by or on behalf of Owner, Contracting Authority and, to Project Co’s knowledge, nothing contained herein or therein inhibits or prevents Project Co from completing the Work Works or performing the Works in accordance with this Project Agreement in a good and safe manner so as to achieve and satisfy the requirements of this Project Agreement;
(xiixi) Project Co is able to meet its obligations as they generally become due;
(xiiixii) Project Co is registered under Subdivision d of Division V of Part IX of the Excise Tax Act (Canada) and has been assigned GST/HST Number its account number is [REDACTED];
(xivxiii) each of the Scheduled Phase Completion Dates, the Scheduled Milestone Payment Completion Dates and the Scheduled Substantial Completion Date is a realistic date and is achievable by Project Co performing the Work Works in accordance with this Project Agreement;
(xiv) Project Co is not a Non-Resident;
(xv) Project Co has secured the Financing and the Project Co Parties, collectively, have extensive experience is in the construction of health facilities and other public buildings and have the necessary high degree of expertise and experience to perform the services required by the Contract Documents, to review and interpret the Contract Documents and a position to complete the Work Financing on or before the Financial Close Target Date, subject to the satisfaction of reasonable conditions that are customary in accordance with closing financing for projects similar to the standard of care set out in Section 11.2(a)(viii)Project;
(xvi) no Restricted Person has Direct or Indirect Power or Control over any member of the manager or supervisory personnel Project Co has assigned Group in relation to the decisions, management, actions or policies of Project are highly experiencedCo or in relation to the operation, management and ownership of the Project;
(xvii) to the knowledge of Project Co, following the exercise of reasonable due diligence, no Restricted Person has directly or indirectly, an Economic Interest in Project Co has a sufficient staff of qualified and competent personnel to replace its designated supervisors, subject to Owner’s approval, in or the event of death, incapacity or resignationProject;
(xviii) Project Co has conducted inspections and certain of the Site during the Request for Proposals process and Project Co Parties have conducted an investigation and examination of the Contract Documents, and any other documents made available to Project Co by Owner Contracting Authority (which include, to the extent made available to Project Co by OwnerContracting Authority, equipment lists, a legal description of the Site, copies of any registered and unregistered agreements affecting the Site, results of tests, reports of independent testing agencies and surveys and documents indicating the location of Utilities and other structures to the extent obtained by OwnerContracting Authority, information regarding the critical requirements to maintain the operations of the Existing Facility, hospital protocols and rules and regulations, if any, including the Site Background Reports Information and the Contract Documents referred to in Section 11.7(cDocuments) so as to ascertain the nature or location of the Work and the Site, the physical conditions of the Site, the interface with the Existing Facility and protocols, rules and regulations if any, possible delays in commencing the Work, conditions relating to the transportation, handling and storage of materials and availability of labour and the character and availability of equipment, materials and facilities needed to perform the Work and to identify any Design Issues. Project Co has delivered to the Consultant requests for information in respect of all questions arising out of the foregoing inspections, investigations and examinations and in respect of each Design Issue identified. Based on this review, Project Co has established a Project Co Design Contingency adequate, in its judgement, to fund any change or delay cost that may arise as a result of any further Design Issue that may be identified and properly characterized as a Project Co Design Issue;
(xix) either:
(A) the COR-Certified Construction Project Co Party is in possession of its COR Certification in good standing as required under this Project Agreement and has sufficient expertise available the ability to it with maintain such COR Certification in good standing at all times during the appropriate skills to review performance of the Contract Documents Works in accordance with its terms, provisions and conditions; or
(B) the standard COR-Qualified Construction Project Co Party:
(I) is in possession of care set out its ISO 45001 Accreditation which remains in Section 11.2(a)(viii);good standing and has the ability to maintain such ISO 45001 Accreditation in good standing at all times during the performance of the Works until such COR-Qualified Construction Project Co Party receives its COR Certification as required under this Project Agreement; and
(II) has made an application to the IHSA for its COR Certification as required under this Project Agreement; and
(xx) Project Co has solicited bids from and will award Subcontracts for the Approved Subcontractor Work only to the applicable Approved Subcontractors and has not solicited bids from and will not award Subcontracts for the Approved Subcontractor Work except to the applicable Approved Subcontractors; and
(xxi) Project Co has secured the Financing and is in a position to implement the Financing on or before the Financial Close Target Date, subject to the satisfaction of reasonable conditions that are customary in closing financing for projects similar to the Project.
Appears in 1 contract
Samples: Project Agreement
Project Co Representations and Warranties. (a) Project Co represents and warrants to Owner Contracting Authority that as of the date of this Project AgreementCommercial Close:
(i) Project Co is a limited liability corporation incorporated and validly existing under the laws of Alberta, is in good standing with the Registrar of Corporations of Alberta with respect to the filing of annual returns, and [REDACTED] has all the requisite corporate power and authority to own, lease and operate own its properties and assets, to carry on its business as it is currently being conducted, and to enter into this Project Agreement and the Implementing Agreements to which it is a party, and to perform its obligations hereunder and thereunderhereunder;
(ii) Project Co and the Project Co Parties, collectively, have extensive experience and are knowledgeable in the design and construction of infrastructure and facilities similar to the those included in the scope of the Project in scale, scope, type and complexity, and have the required ability, experience, skill and capacity to perform the Works in a timely and professional manner as set out in this Project Agreement;
(iii) Project Co has the requisite power, authority and corporate capacity to execute and deliver and perform this Project Agreement and the Implementing Agreements to which it is a partyAgreement, and to do all acts and things, and execute, deliver and perform all other agreements, instruments, undertakings and documents as are required by this Project Agreement to be done, executed, delivered or performed;
(iii) Project Co has obtained all necessary Project Co Permits, Licences and Approvals required to commence the Work;
(iv) no steps or proceedings have been taken or are pending to supersede, repeal supersede or amend its the constating documents, articles or by-laws or any shareholders agreement of Project Co in a manner that would materially impair or limit its ability to perform its the obligations of Project Co under this Project Agreement or any of the Implementing Agreements to which it is a party, and such documents and agreements are in full force and effect as of the date hereofAgreement;
(v) this Project Agreement and the Implementing Agreements (when executed and delivered) to which Project Co is a party have has been duly authorized, executed, and delivered by Project Co and constitute constitutes a legal, valid, and binding obligations obligation of Project Co, enforceable against Project Co in accordance with their respective its terms, subject only to:
(A) limitations with respect to the enforcement of remedies by bankruptcy, insolvency, moratorium, winding-up, arrangement, reorganization, fraudulent preference and conveyance and other laws of general application affecting the enforcement of creditors’ rights generally; and
(B) general equitable principles and the fact that the availability of equitable remedies is in the discretion of a court and that a court may stay proceedings or the execution of judgments;
(vi) the authorization, execution, delivery delivery, and performance by Project Co of this Project Agreement does not and the Implementing Agreements to which it is a party does will not violate or conflict with, or constitute a default under:
(A) its constating constating, formation or organizational documents or documents, including any unanimous shareholders agreement or similar rights agreement binding on Project Coby- laws;
(B) any Applicable Law; or
(C) any covenant, contract, instrumentagreement, agreement or understanding to which it is a party or by which it or any of its properties or assets is bound or affected;
(vii) Project Co is an Affiliate of each of the Contractor and the Construction Guarantor;
(viii) no Project Co Event of Default has occurred and is continuing;
(ixviii) all of the information regarding Project Co set out in Schedule 4 31 – Project Co Information, Information is true and correct in all material respects;
(xix) there are no actions, suits, proceedings, or investigations pending or, to the knowledge of its senior management, or threatened against Project Co or or, to Project Co’s knowledge, any Project Co Party, Party at law or in equity, equity before any Governmental Authority or arbitral body (whether or not covered by insurance) that individually or in the aggregate could result in any material adverse effect on the business, properties, or assets, or the condition, financial or otherwise, of Project Co or in any impairment of its ability to perform its obligations under this Project Agreement or any Implementing Agreements to which it is a partyAgreement, and Project Co has no knowledge of any violation or default with respect to any order, writ, injunction injunction, or decree of any Governmental Authority or arbitral body that would could result in any such material adverse effect or impairment;
(xix) Project Co has conducted its own investigations and has carefully reviewed the whole of this Project Agreement, including all of the Contract Documents, and all other documents made available to Project Co by or on behalf of OwnerContracting Authority, and, to Project Co’s knowledge, nothing contained herein or therein inhibits or prevents Project Co from completing the Work Works or performing the Works in accordance with this Project Agreement in a good and safe manner so as to achieve and satisfy the requirements of this Project Agreement;
(xiixi) Project Co is able to meet its obligations as they generally become due;
(xiiixii) Project Co is registered under Division V of Part IX of the Excise Tax Act (Canada) and has been assigned GST/its HST Number registration number is [REDACTED];
(xivxiii) each of the Scheduled Interim Completion Dates and the Scheduled Substantial Completion Date is are a realistic date dates and is are achievable by Project Co performing the Work Works in accordance with this Project Agreement;
(xiv) Project Co is not a Non-Resident;
(xv) Project Co and the has obtained all necessary Project Co PartiesPermits, collectivelyLicences, have extensive experience in Approvals and Agreements required to commence the construction of health facilities and other public buildings and have the necessary high degree of expertise and experience to perform the services required by the Contract Documents, to review and interpret the Contract Documents and to complete the Work in accordance with the standard of care set out in Section 11.2(a)(viii)Works;
(xvi) the manager management or supervisory personnel Project Co has assigned to the Project are highly experienced;
(xvii) Project Co has a sufficient staff of qualified and competent personnel to replace its designated supervisors, subject to OwnerContracting Authority’s approval, in the event of death, incapacity or resignation;
(xviii) Project Co has and certain of the Project Co Parties have conducted inspections of the Site during the Request for Proposals process Lands prior to Commercial Close and an investigation and examination of the Contract DocumentsProject Agreement, the Background Information and any other documents made available to Project Co by Owner (which include, to the extent made available to Project Co by Owner, equipment lists, a legal description of the Site, copies of any registered and unregistered agreements affecting the Site, results of tests, reports of independent testing agencies and surveys and documents indicating the location of Utilities and other structures to the extent obtained by Owner, information regarding the critical requirements to maintain the operations of the Existing Facility, hospital protocols and rules and regulations, if any, including the Site Background Reports and the Contract Documents referred to in Section 11.7(c) Contracting Authority so as to ascertain the nature or location of the Work Works and the SiteLands, the physical conditions of the Site, the interface with Lands and the Existing Facility Infrastructure, and protocols, rules and regulations if any, possible delays in commencing the WorkWorks, conditions relating to the transportation, handling and storage of materials and availability of labour and the character and availability of equipment, materials and facilities needed to perform the Work and to identify any Design Issues. Project Co has delivered to the Consultant requests for information in respect of all questions arising out of the foregoing inspections, investigations and examinations and in respect of each Design Issue identified. Based on this review, Project Co has established a Project Co Design Contingency adequate, in its judgement, to fund any change or delay cost that may arise as a result of any further Design Issue that may be identified and properly characterized as a Project Co Design IssueWorks;
(xix) Project Co has sufficient expertise available to it with the appropriate skills to review the Contract Documents in accordance with the standard of care set out in Section 11.2(a)(viii);
(xx) Project Co has solicited bids from and will award Subcontracts for the Approved Subcontractor Work only to the applicable Approved Subcontractors and has not solicited bids from and will not award Subcontracts for the Approved Subcontractor Work except to the applicable Approved Subcontractors; and
(xxi) Project Co has secured the Financing and is in a position to implement complete the Financing on or before the Financial Close Target Date, subject to the satisfaction of reasonable conditions that are customary in closing financing for projects similar to the Project;
(xx) no Restricted Person has Direct or Indirect Power or Control over any member of the Project Co Group in relation to the decisions, management, actions or policies of Project Co or in relation to the operation, management and ownership of the Project;
(xxi) to the knowledge of Project Co, no Restricted Person has directly or indirectly, an Economic Interest in Project Co or the Project; and
(xxii) the COR-Certified Construction Project Co Party is in possession of its COR Certification in good standing as required under this Project Agreement and has the ability to maintain such COR Certification in good standing at all times during the performance of the Works in accordance with its terms, provisions and conditions, or
(A) is in possession of its OHSAS 18001 Accreditation which remains in good standing and has the ability to maintain such OHSAS 18001 Accreditation in good standing at all times during the performance of the Works until such COR-Qualified Construction Project Co Party receives its COR Certification as required under this Project Agreement, and
(B) has made an application to the IHSA for its COR Certification as required under this Project Agreement.
Appears in 1 contract
Samples: Project Agreement
Project Co Representations and Warranties. (a) Project Co represents and warrants to Owner SMH that as of the date of this Project Agreement:
(i) Project Co is a limited liability corporation incorporated and validly existing under the laws of Alberta, is in good standing with the Registrar of Corporations of Alberta with respect to the filing of annual returns, and [REDACTED] has all the requisite corporate power and authority to own, lease and operate own its properties and assets, to carry on its business as it is currently being conducted, and to enter into this Project Agreement and the Implementing Agreements to which it is a party, and to perform its obligations hereunder and thereunderhereunder;
(ii) Project Co and the Project Co Parties, collectively, have extensive experience and are knowledgeable in the design and construction of hospital facilities and have the required ability, experience, skill and capacity to perform the Works in a timely and professional manner as set out in this Project Agreement;
(iii) Project Co has the requisite power, authority and corporate capacity to execute and deliver and perform this Project Agreement and the Implementing Agreements to which it is a partyAgreement, and to do all acts and things, and execute, deliver and perform all other agreements, instruments, undertakings and documents as are required by this Project Agreement to be done, executed, delivered or performed;
(iii) Project Co has obtained all necessary Project Co Permits, Licences and Approvals required to commence the Work;
(iv) no steps or proceedings have been taken or are pending to supersede, repeal supersede or amend its the constating documents, articles or by-laws or any shareholders agreement of Project Co in a manner that would materially impair or limit its ability to perform its the obligations of Project Co under this Project Agreement or any of the Implementing Agreements to which it is a party, and such documents and agreements are in full force and effect as of the date hereofAgreement;
(v) this Project Agreement and the Implementing Agreements (when executed and delivered) to which Project Co is a party have has been duly authorized, executed, and delivered by Project Co and constitute constitutes a legal, valid, and binding obligations obligation of Project Co, enforceable against Project Co in accordance with their respective its terms, subject only to:
(A) limitations with respect to the enforcement of remedies by bankruptcy, insolvency, moratorium, winding-up, arrangement, reorganization, fraudulent preference and conveyance and other laws of general application affecting the enforcement of creditors’ rights generally; and
(B) general equitable principles and the fact that the availability of equitable remedies is in the discretion of a court and that a court may stay proceedings or the execution of judgments;
(vi) the authorization, execution, delivery delivery, and performance by Project Co of this Project Agreement does not and the Implementing Agreements to which it is a party does will not violate or conflict with, or constitute a default under:
(A) its constating constating, formation or organizational documents or documents, including any unanimous shareholders agreement or similar rights agreement binding on Project Coby- laws;
(B) any Applicable Law; or
(C) any covenant, contract, instrumentagreement, agreement or understanding to which it is a party or by which it or any of its properties or assets is bound or affected;
(vii) Project Co is an Affiliate of each of the Contractor and the Construction Guarantor;
(viii) no Project Co Event of Default has occurred and is continuing;
(ixviii) all of the information regarding Project Co set out in Schedule 4 31 – Project Co Information, Information is true and correct in all material respects;
(xix) there are no actions, suits, proceedings, or investigations pending or, to the knowledge of its senior management, or threatened against Project Co or or, to Project Co’s knowledge, any Project Co Party, Party at law or in equity, equity before any Governmental Authority or arbitral body (whether or not covered by insurance) that individually or in the aggregate could result in any material adverse effect on the business, properties, or assets, or the condition, financial or otherwise, of Project Co or in any impairment of its ability to perform its obligations under this Project Agreement or any Implementing Agreements to which it is a partyAgreement, and Project Co has no knowledge of any violation or default with respect to any order, writ, injunction injunction, or decree of any Governmental Authority or arbitral body that would could result in any such material adverse effect or impairment;
(xix) Project Co has carefully reviewed the whole of this Project Agreement, including all of the Contract Documents, and all other documents made available to Project Co by or on behalf of OwnerSMH, and, to Project Co’s knowledge, nothing contained herein or therein inhibits or prevents Project Co from completing the Work Works or performing the Works in accordance with this Project Agreement in a good and safe manner so as to achieve and satisfy the requirements of this Project Agreement;
(xiixi) Project Co is able to meet its obligations as they generally become due;
(xiiixii) Project Co is registered under Division V of Part IX of the Excise Tax Act (Canada) and has been assigned GST/its HST Number registration number is [REDACTED];
(xiii) the Scheduled Tower Interim Completion Date is a realistic date and is achievable by Project Co performing the Works in accordance with this Project Agreement;
(xiv) the Scheduled Substantial Completion Date is a realistic date and is achievable by Project Co performing the Work Works in accordance with this Project Agreement;
(xv) Project Co and the Project Co Parties, collectively, have extensive experience in the construction of health facilities and other public buildings and have the necessary high degree of expertise and experience to perform the services required by the Contract Documents, to review and interpret the Contract Documents and to complete the Work in accordance with the standard of care set out in Section 11.2(a)(viii)is not a Non-Resident;
(xvi) Project Co has obtained all necessary Project Co Permits, Licences, Approvals and Agreements required to commence the Works;
(xvii) the manager or supervisory personnel Project Co has assigned to the Project are highly experienced;
(xviixviii) Project Co has a sufficient staff of qualified and competent personnel to replace its designated supervisors, subject to Ownerthe SMH’s approval, in the event of death, incapacity or resignation;
(xviiixix) Project Co has and certain of the Project Co Parties have conducted inspections of the Site during the Request for Proposals process prior to Commercial Close and an investigation and examination of the Contract DocumentsProject Agreement, the Background Information and any other documents made available to Project Co by Owner (which include, to the extent made available to Project Co by Owner, equipment lists, a legal description of the Site, copies of any registered and unregistered agreements affecting the Site, results of tests, reports of independent testing agencies and surveys and documents indicating the location of Utilities and other structures to the extent obtained by Owner, information regarding the critical requirements to maintain the operations of the Existing Facility, hospital protocols and rules and regulations, if any, including the Site Background Reports and the Contract Documents referred to in Section 11.7(c) SMH so as to ascertain the nature or location of the Work Works and the Site, the physical conditions of the Site, the interface with the Existing Facility Facilities and protocols, rules and regulations if any, possible delays in commencing the Work, conditions relating to the transportation, handling and storage of materials and availability of labour and the character and availability of equipment, materials and facilities needed to perform the Work and to identify any Design Issues. Project Co has delivered to the Consultant requests for information in respect of all questions arising out of the foregoing inspections, investigations and examinations and in respect of each Design Issue identified. Based on this review, Project Co has established a Project Co Design Contingency adequate, in its judgement, to fund any change or delay cost that may arise as a result of any further Design Issue that may be identified and properly characterized as a Project Co Design Issue;
(xix) Project Co has sufficient expertise available to it with the appropriate skills to review the Contract Documents in accordance with the standard of care set out in Section 11.2(a)(viii)Works;
(xx) Project Co has solicited bids from and will award Subcontracts for the Approved Subcontractor Work only to the applicable Approved Subcontractors and has not solicited bids from and will not award Subcontracts for the Approved Subcontractor Work except to the applicable Approved Subcontractors; and
(xxi) Project Co has secured the Financing and is in a position to implement complete the Financing on or before the Financial Close Target Date, subject to the satisfaction of reasonable conditions that are customary in closing financing for projects similar to the Project;
(xxi) No Restricted Person has Direct or Indirect Power or Control over any member of the Project Co Group in relation to the decisions, management, actions or policies of Project Co or in relation to the operation, management and ownership of the Project; and
(xxii) To the knowledge of Project Co, no Restricted Person has directly or indirectly, an Economic Interest in Project Co or the Project.
Appears in 1 contract
Samples: Project Agreement
Project Co Representations and Warranties. (a) Project Co represents and warrants to Owner CHH that as of the date of this Project Agreement:
(i) Project Co is a limited liability corporation incorporated partnership formed and validly existing under the laws of Alberta, is in good standing with the Registrar jurisdiction of Corporations of Alberta with respect to the filing of annual returns, its organization and has all the requisite corporate power and authority to own, lease and operate its properties and assets, to carry on its business as it is currently being conducted, to enter into this Project Agreement and the Implementing Agreements to which it is a party, and to perform its obligations hereunder and thereunder;
(ii) Xxxx Xxxxx House GP Inc., the general partner of Project Co, is a corporation incorporated and validly existing under the laws of the jurisdiction of its organization and has all the requisite power and authority to own, lease and operate its properties and assets, to carry on its business as it is currently being conducted, to enter into this Project Agreement and the Implementing Agreements to which it is a party, and to perform its obligations hereunder and thereunder in its capacity as general partner of Project Co;
(iii) Project Co is in good standing with the Ministry of Government and Consumer Services of Ontario with respect to the filing of annual returns;
(iv) Xxxx Xxxxx House GP Inc., the general partner of Project Co, is in good standing with the Ministry of Government and Consumer Services of Ontario with respect to the filing of annual returns;
(v) Project Co has the requisite power, authority and corporate capacity to execute and deliver and perform this Project Agreement and the Implementing Agreements to which it is a party, and to do all acts and things, and execute, deliver and perform all other agreements, instruments, undertakings and documents as are required by this Project Agreement to be done, executed, delivered or performed;
(iiivi) Xxxx Xxxxx House GP Inc., on behalf of Project Co, has the requisite power, authority and capacity to execute and deliver and perform this Project Agreement and the Implementing Agreements to which it is a party, and to do all acts and things, and execute, deliver and perform all other agreements, instruments, undertakings and documents as are required by this Project Agreement to be done, executed, delivered or performed by Project Co;
(vii) Project Co has obtained all necessary Project Co Permits, Licences and Approvals required to commence the Work;
(ivviii) no steps or proceedings have been taken or are pending to supersede, repeal or amend its constating documents, articles or by-laws or any shareholders agreement in a manner that would materially impair or limit its ability to perform its obligations under this Project Agreement or any of the Implementing Agreements to which it is a party, and such documents and agreements are in full force and effect as of the date hereof;
(vix) this Project Agreement and the Implementing Agreements (when executed and delivered) to which Project Co is a party have been duly authorized, executed, and delivered by Xxxx Xxxxx House GP Inc., the general partner of Project Co Co, on behalf of Project Co, and constitute constitutes legal, valid, and binding obligations of Project Co, enforceable against Project Co in accordance with their respective terms, subject only to:
(A) limitations with respect to the enforcement of remedies by bankruptcy, insolvency, moratorium, winding-up, arrangement, reorganization, fraudulent preference and conveyance and other laws of general application affecting the enforcement of creditors’ rights generally; and
(B) general equitable principles and the fact that the availability of equitable remedies is in the discretion of a court and that a court may stay proceedings or the execution of judgments;
(vix) the authorization, execution, delivery and performance by Xxxx Xxxxx House GP Inc., the general partner of Project Co Co, on behalf of Project Co, of this Project Agreement and the Implementing Agreements to which it Project Co is a party does not violate or conflict with, or constitute a default under:
(A) its constating constating, formation or organizational documents documents, or any unanimous shareholders agreement relating to voting rights in Project Co or the management or control of the business or affairs of Project Co or any similar rights agreement binding on Project Co;
(B) any Applicable Law; or
(C) any covenant, contract, instrument, agreement or understanding to which it is a party or by which it or any of its properties or assets is bound or affected;
(vii) Project Co is an Affiliate of each of the Contractor and the Construction Guarantor;
(viiixi) no Project Co Event of Default has occurred and is continuing;
(ixxii) all of the information regarding Project Co and Xxxx Xxxxx House GP Inc. set out in Schedule 4 – Project Co Information, is true and correct in all material respects;
(xxiii) there are no actions, suits, proceedings, or investigations pending or, to the knowledge of its senior management, threatened against Project Co or any Project Co Party, at law or in equity, before any Governmental Authority or arbitral body (whether or not covered by insurance) that individually or in the aggregate could result in any material adverse effect on the business, properties, or assets, or the condition, financial or otherwise, of Project Co or in any impairment of its ability to perform its obligations under this Project Agreement or any Implementing Agreements to which it is a party, and Project Co has no knowledge of any violation or default with respect to any order, writ, injunction or decree of any Governmental Authority or arbitral body that would result in any such material adverse effect or impairment;
(xixiv) Project Co has carefully reviewed the whole of this Project Agreement, including all of the Contract Documents, and all other documents made available to Project Co by or on behalf of OwnerCHH, and, to Project Co’s knowledge, nothing contained herein or therein inhibits or prevents Project Co from completing the Work in accordance with this Project Agreement in a good and safe manner so as to achieve and satisfy the requirements of this Project Agreement;
(xiixv) Project Co is able to meet its obligations as they generally become due;
(xiiixvi) Project Co is registered under Division V of Part IX of the Excise Tax Act (Canada) and has been assigned GST/HST Number [REDACTED];
(xivxvii) the Scheduled Substantial Completion Date is a realistic date and is achievable by Project Co performing the Work in accordance with this Project Agreement;
(xvxviii) Project Co and the Project Co Parties, collectively, have extensive experience in the construction of health facilities and other public buildings and have the necessary high degree of expertise and experience to perform the services required by the Contract Documents, to review and interpret the Contract Documents and to complete the Work in accordance with the standard of care set out in Section 11.2(a)(viii);
(xvixix) the manager or supervisory personnel Project Co has assigned to the Project are highly experienced;
(xviixx) Project Co has a sufficient staff of qualified and competent personnel to replace its designated supervisors, subject to OwnerCHH’s approval, in the event of death, incapacity or resignation;
(xviiixxi) Project Co has and certain of the Project Co Parties have conducted inspections of the Site during the Request for Proposals process and an investigation and examination of the Contract Documents, and any other documents made available to Project Co by Owner CHH (which include, to the extent made available to Project Co by OwnerCHH, equipment lists, a legal description of the Site, copies of any registered and unregistered agreements affecting the Site, results of tests, reports of independent testing agencies and surveys and documents indicating the location of Utilities and other structures to the extent obtained by Owner, information regarding the critical requirements to maintain the operations of the Existing FacilityCHH, hospital protocols and rules and regulations, if any, including the Site Background Reports and the Contract Documents referred to in Section 11.7(cDocuments) so as to ascertain the nature or location of the Work and the Site, the physical conditions of the Site, the interface with the Existing Facility and protocols, rules and regulations if any, possible delays in commencing the Work, conditions relating to the transportation, handling and storage of materials and availability of labour and the character and availability of equipment, materials and facilities needed to perform the Work and to identify any Design Issues. Project Co has delivered to the Consultant requests for information in respect of all questions arising out of the foregoing inspections, investigations and examinations and in respect of each Design Issue identified. Based on this review, Project Co has established a Project Co Design Contingency adequate, in its judgement, to fund any change or delay cost that may arise as a result of any further Design Issue that may be identified and properly characterized as a Project Co Design Issue;
(xixxxii) Project Co has sufficient expertise available to it with the appropriate skills to review the Contract Documents in accordance with the standard of care set out in Section 11.2(a)(viii);
(xxxxiii) Project Co has solicited bids from and will award Subcontracts for the Approved Subcontractor Work only to the applicable Approved Subcontractors and has not solicited bids from and will not award Subcontracts for the Approved Subcontractor Work except to the applicable Approved Subcontractors; and;
(xxixxiv) Project Co has secured the Financing and is in a position to implement the Financing on or before the Financial Close Target Date, subject to the satisfaction of reasonable conditions that are customary in closing financing for projects similar to the Project;
(xxv) no Restricted Person has Direct or Indirect Power or Control over any member of the Project Co Group in relation to the decisions, management, actions or policies of Project Co or in relation to the operation, management and ownership of the Project;
(xxvi) to the knowledge of Project Co, no Restricted Person has directly or indirectly, an Economic Interest in Project Co or the Project; and
(xxvii) the Contractor is in possession of the Health and Safety Certification as required under this Project Agreement (or has made an application to IHSA for its Health and Safety Certification as required under this Project Agreement) and has the ability to maintain such Health and Safety Certification until the Final Completion Date in accordance with its term, provisions and conditions.
Appears in 1 contract
Samples: Project Agreement
Project Co Representations and Warranties. (a) Project Co represents and warrants to Owner Contracting Authority that as of the date of this Project Agreement:
(i) Project Co is a limited liability corporation incorporated and validly existing under the laws of Alberta, is in good standing with the Registrar of Corporations of Alberta with respect to the filing of annual returns[REDACTED], and has all the requisite corporate power and authority to own, lease and operate own its properties and assets, to carry on its business as it is currently being conducted, and to enter into this Project Agreement and the Implementing Agreements to which it is a party, and to perform its obligations hereunder and thereunderhereunder;
(ii) Project Co and the Project Co Parties, collectively, have extensive experience and are knowledgeable in the design and construction of hospital facilities similar to the Facility and have the required ability, experience, skill and capacity to perform the Works in a timely and professional manner as set out in this Project Agreement;
(iii) Project Co has the requisite power, authority and corporate capacity to execute and deliver and perform this Project Agreement and the Implementing Agreements to which it is a partyAgreement, and to do all acts and things, and execute, deliver and perform all other agreements, instruments, undertakings and documents as are required by this Project Agreement to be done, executed, delivered or performed;
(iii) Project Co has obtained all necessary Project Co Permits, Licences and Approvals required to commence the Work;
(iv) no steps or proceedings have been taken or are pending to supersede, repeal supersede or amend its the constating documents, articles or by-laws or any shareholders agreement of Project Co in a manner that would materially impair or limit its ability to perform its the obligations of Project Co under this Project Agreement or any of the Implementing Agreements to which it is a party, and such documents and agreements are in full force and effect as of the date hereofAgreement;
(v) this Project Agreement and the Implementing Agreements (when executed and delivered) to which Project Co is a party have has been duly authorized, executed, and delivered by Project Co and constitute constitutes a legal, valid, and binding obligations obligation of Project Co, enforceable against Project Co in accordance with their respective its terms, subject only to:
(A) limitations with respect to the enforcement of remedies by bankruptcy, insolvency, moratorium, winding-up, arrangement, reorganization, fraudulent preference and conveyance and other laws of general application affecting the enforcement of creditors’ rights generally; and
(B) general equitable principles and the fact that the availability of equitable remedies is in the discretion of a court and that a court may stay proceedings or the execution of judgments;
(vi) the authorization, execution, delivery delivery, and performance by Project Co of this Project Agreement does not and the Implementing Agreements to which it is a party does will not violate or conflict with, or constitute a default under:
(A) its constating constating, formation or organizational documents or documents, including any unanimous shareholders agreement or similar rights agreement binding on Project Coby- laws;
(B) any Applicable Law; or
(C) any covenant, contract, instrumentagreement, agreement or understanding to which it is a party or by which it or any of its properties or assets is bound or affected;
(vii) Project Co is an Affiliate of each of the Contractor and the Construction Guarantor;
(viii) no Project Co Event of Default has occurred and is continuing;
(ixviii) all of the information regarding Project Co set out in Schedule 4 31 – Project Co Information, Information is true and correct in all material respects;
(xix) there are no actions, suits, proceedings, or investigations pending or, to the knowledge of its senior management, or threatened against Project Co or or, to Project Co’s knowledge, any Project Co Party, Party at law or in equity, equity before any Governmental Authority or arbitral body (whether or not covered by insurance) that individually or in the aggregate could result in any material adverse effect on the business, properties, or assets, or the condition, financial or otherwise, of Project Co or in any impairment of its ability to perform its obligations under this Project Agreement or any Implementing Agreements to which it is a partyAgreement, and Project Co has no knowledge of any violation or default with respect to any order, writ, injunction injunction, or decree of any Governmental Authority or arbitral body that would could result in any such material adverse effect or impairment;
(xix) Project Co has carefully reviewed the whole of this Project Agreement, including all of the Contract Documents, and all other documents made available to Project Co by or on behalf of Owner, Contracting Authority and, to Project Co’s knowledge, nothing contained herein or therein inhibits or prevents Project Co from completing the Work Works or performing the Works in accordance with this Project Agreement in a good and safe manner so as to achieve and satisfy the requirements of this Project Agreement;
(xiixi) Project Co is able to meet its obligations as they generally become due;
(xiiixii) Project Co is registered under Subdivision d of Division V of Part IX of the Excise Tax Act (Canada) and has been assigned GST/HST Number its account number is [REDACTED];
(xivxiii) the Scheduled Substantial Completion Date is a realistic date and is achievable by Project Co performing the Work Works in accordance with this Project Agreement;
(xvxiv) Project Co and the Project Co Parties, collectively, have extensive experience in the construction of health facilities and other public buildings and have the necessary high degree of expertise and experience to perform the services required by the Contract Documents, to review and interpret the Contract Documents and to complete the Work in accordance with the standard of care set out in Section 11.2(a)(viii)is not a Non-Resident;
(xvi) the manager or supervisory personnel Project Co has assigned to the Project are highly experienced;
(xvii) Project Co has a sufficient staff of qualified and competent personnel to replace its designated supervisors, subject to Owner’s approval, in the event of death, incapacity or resignation;
(xviii) Project Co has conducted inspections of the Site during the Request for Proposals process and an investigation and examination of the Contract Documents, and any other documents made available to Project Co by Owner (which include, to the extent made available to Project Co by Owner, equipment lists, a legal description of the Site, copies of any registered and unregistered agreements affecting the Site, results of tests, reports of independent testing agencies and surveys and documents indicating the location of Utilities and other structures to the extent obtained by Owner, information regarding the critical requirements to maintain the operations of the Existing Facility, hospital protocols and rules and regulations, if any, including the Site Background Reports and the Contract Documents referred to in Section 11.7(c) so as to ascertain the nature or location of the Work and the Site, the physical conditions of the Site, the interface with the Existing Facility and protocols, rules and regulations if any, possible delays in commencing the Work, conditions relating to the transportation, handling and storage of materials and availability of labour and the character and availability of equipment, materials and facilities needed to perform the Work and to identify any Design Issues. Project Co has delivered to the Consultant requests for information in respect of all questions arising out of the foregoing inspections, investigations and examinations and in respect of each Design Issue identified. Based on this review, Project Co has established a Project Co Design Contingency adequate, in its judgement, to fund any change or delay cost that may arise as a result of any further Design Issue that may be identified and properly characterized as a Project Co Design Issue;
(xix) Project Co has sufficient expertise available to it with the appropriate skills to review the Contract Documents in accordance with the standard of care set out in Section 11.2(a)(viii);
(xx) Project Co has solicited bids from and will award Subcontracts for the Approved Subcontractor Work only to the applicable Approved Subcontractors and has not solicited bids from and will not award Subcontracts for the Approved Subcontractor Work except to the applicable Approved Subcontractors; and
(xxixv) Project Co has secured the Financing and is in a position to implement complete the Financing on or before the Financial Close Target Date, subject to the satisfaction of reasonable conditions that are customary in closing financing for projects similar to the Project;
(xvi) no Restricted Person has Direct or Indirect Power or Control over any member of the Project Co Group in relation to the decisions, management, actions or policies of Project Co or in relation to the operation, management and ownership of the Project;
(xvii) to the knowledge of Project Co, no Restricted Person has directly or indirectly, an Economic Interest in Project Co or the Project;
(xviii) either
(A) The COR-Certified Construction Project Co Party is in possession of its COR Certification in good standing as required under this Project Agreement and has the ability to maintain such COR Certification in good standing at all times during the performance of the Works in accordance with its terms, provisions and conditions, or
(B) The COR-Qualified Construction Project Co Party:
(I) is in possession of its OHSAS 18001 Accreditation which remains in good standing and has the ability to maintain such OHSAS 18001 Accreditation in good standing at all times during the performance of the Works until such COR-Qualified Construction Project Co Party receives its COR Certification as required under this Project Agreement, and
(II) has made an application to the IHSA for its COR Certification as required under this Project Agreement.
Appears in 1 contract
Samples: Project Agreement
Project Co Representations and Warranties. (a) Project Co represents and warrants to Owner that as of the date of this Project Agreement:
(i) Project Co is a limited liability corporation incorporated and validly existing under the laws of Albertathe Province of Ontario, is in good standing with the Registrar Ministry of Corporations Consumer and Business Services of Alberta Ontario with respect to the filing of annual returns, and has all the requisite corporate power and authority to own, lease and operate its properties and assets, to carry on its business as it is currently being conducted, to enter into this Project Agreement and the Implementing Agreements to which it is a party, and to perform its obligations hereunder and thereunder;
(ii) Project Co has the requisite power, authority and corporate capacity to execute and deliver and perform this Project Agreement and the Implementing Agreements to which it is a party, and to do all acts and things, and execute, deliver and perform all other agreements, instruments, undertakings and documents as are required by this Project Agreement to be done, executed, delivered or performed;
(iii) Project Co has obtained all necessary Project Co Permits, Licences and Approvals required to commence the Work;
(iv) no steps or proceedings have been taken or are pending to supersede, repeal or amend its constating documents, articles or by-laws or any shareholders agreement in a manner that would materially impair or limit its ability to perform its obligations under this Project Agreement or any of the Implementing Agreements to which it is a party, and such documents and agreements are in full force and effect as of the date hereof;
(v) this Project Agreement and the Implementing Agreements (when executed and delivered) to which Project Co is a party have been duly authorized, executed, and delivered by Project Co and constitute legal, valid, and binding obligations of Project Co, enforceable against Project Co in accordance with their respective terms, subject only to:
(A) limitations with respect to the enforcement of remedies by bankruptcy, insolvency, moratorium, winding-up, arrangement, reorganization, fraudulent preference and conveyance and other laws of general application affecting the enforcement of creditors’ rights generally; and
(B) general equitable principles and the fact that the availability of equitable remedies is in the discretion of a court and that a court may stay proceedings or the execution of judgments;
(vi) the authorization, execution, delivery and performance by Project Co of this Project Agreement and the Implementing Agreements to which it is a party does not violate or conflict with, or constitute a default under:
(A) its constating or organizational documents or any unanimous shareholders agreement or similar rights agreement binding on Project Co;
(B) any Applicable Law; or
(C) any covenant, contract, instrument, agreement or understanding to which it is a party or by which it or any of its properties or assets is bound or affected;
(vii) Project Co is an Affiliate a wholly-owned subsidiary of each of the Contractor and the Construction Guarantor;
(viii) no Project Co Event of Default has occurred and is continuing;
(ix) all of the information regarding Project Co set out in Schedule 4 – Project Co Information, is true and correct in all material respects;
(x) there are no actions, suits, proceedings, or investigations pending or, to the knowledge of its senior management, threatened against Project Co or any Project Co Party, at law or in equity, before any Governmental Authority or arbitral body (whether or not covered by insurance) that individually or in the aggregate could result in any material adverse effect on the business, properties, or assets, or the condition, financial or otherwise, of Project Co or in any impairment of its ability to perform its obligations under this Project Agreement or any Implementing Agreements to which it is a party, and Project Co has no knowledge of any violation or default with respect to any order, writ, injunction or decree of any Governmental Authority or arbitral body that would result in any such material adverse effect or impairment;
(xi) Project Co has carefully reviewed the whole of this Project Agreement, including all of the Contract Documents, and all other documents made available to Project Co by or on behalf of Owner, and, to Project Co’s knowledge, nothing contained herein or therein inhibits or prevents Project Co from completing the Work in accordance with this Project Agreement in a good and safe manner so as to achieve and satisfy the requirements of this Project Agreement;
(xii) Project Co is able to meet its obligations as they generally become due;
(xiii) Project Co is registered under Division V of Part IX of the Excise Tax Act (Canada) and has been assigned GST/HST Number [REDACTED];
(xiv) the Scheduled Substantial Completion Date is a realistic date and is achievable by Project Co performing the Work in accordance with this Project Agreement;
(xv) Project Co and the Project Co Parties, collectively, have extensive experience in the construction of health facilities and other public buildings and have the necessary high degree of expertise and experience to perform the services required by the Contract Documents, to review and interpret the Contract Documents and to complete the Work in accordance with the standard of care set out in Section 11.2(a)(viii);
(xvi) the manager or supervisory personnel Project Co has assigned to the Project are highly experienced;
(xvii) Project Co has a sufficient staff of qualified and competent personnel to replace its designated supervisors, subject to Owner’s approval, in the event of death, incapacity or resignation;
(xviii) Project Co has and certain of the Project Co Parties have conducted inspections of the Site during the Request for Proposals process and an investigation and examination of the Contract Documents, and any other documents made available to Project Co by Owner (which include, to the extent made available to Project Co by Owner, equipment lists, a legal description of the Site, copies of any registered and unregistered agreements affecting the Site, results of tests, reports of independent testing agencies and surveys and documents indicating the location of Utilities and other structures to the extent obtained by Owner, information regarding the critical requirements to maintain the operations of the Existing Facility, hospital protocols and rules and regulations, if any, including the Site Background Reports and the Contract Documents referred to in Section 11.7(c)) so as to ascertain the nature or location of the Work and the Site, the physical conditions of the Site, the interface with the Existing Facility and protocols, rules and regulations if any, possible delays in commencing the Work, conditions relating to the transportation, handling and storage of materials and availability of labour and the character and availability of equipment, materials and facilities needed to perform the Work and to identify any Design Issues. Project Co has delivered to the Consultant requests for information in respect of all questions arising out of the foregoing inspections, investigations and examinations and in respect of each Design Issue identified. Based on this review, Project Co has established a Project Co Design Contingency adequate, in its judgement, to fund any change or delay cost that may arise as a result of any further Design Issue that may be identified and properly characterized as a Project Co Design Issue;
(xix) Project Co has sufficient expertise available to it with the appropriate skills to review the Contract Documents in accordance with the standard of care set out in Section 11.2(a)(viii);
(xx) Project Co has solicited bids from and will award Subcontracts for the Approved Subcontractor Work only to the applicable Approved Subcontractors and has not solicited bids from and will not award Subcontracts for the Approved Subcontractor Work except to the applicable Approved Subcontractors; and
(xxi) Project Co has secured the Financing and is in a position to implement the Financing on or before the Financial Close Target Date, subject to the satisfaction of reasonable conditions that are customary in closing financing for projects similar to the Project.
Appears in 1 contract
Samples: Project Agreement
Project Co Representations and Warranties. (a) Project Co represents and warrants to Owner Hospital that as of at the date of this Project Agreement:
(i) Project Co is a limited liability partnership formed and validly existing under the laws of the Province of Ontario, and has all the requisite power and authority to own, lease and operate its properties and assets, to carry on its business as it is currently being conducted, and to enter into this Project Agreement and any Implementing Agreements to which it is a party and to perform its obligations hereunder and thereunder;
(ii) EllisDon-LPF (Xxxxxxxx General) GP Inc. is a corporation incorporated and validly existing under the laws of Albertathe Province of Ontario, is in good standing with the Registrar Ministry of Corporations Government Services of Alberta Ontario with respect to the filing of annual returns, and has all the requisite corporate power and authority to own, lease and operate its properties and assets, to carry on its business as it is currently being conducted, to enter into this Project Agreement and the Implementing Agreements to which it is a party, and to perform its obligations hereunder and thereunder;
(ii) Project Co has the requisite power, authority and corporate capacity to execute and deliver and perform this Project Agreement and the Implementing Agreements to which it is a party, and to do all acts and things, and execute, deliver and perform all other agreements, instruments, undertakings and documents as are required by this Project Agreement to be done, executed, delivered or performed;
(iii) Project Co has obtained all necessary Project Co Permits, Licences and Approvals required to commence the Work;
(iv) no steps or proceedings have been taken or are pending to supersede, repeal or amend its constating documents, articles or articles, by-laws or any shareholders agreement in a manner that would materially impair or limit its ability to perform its obligations under this Project Agreement or any of the Implementing Agreements to which it is a party, party and such documents and agreements they are in full force and effect as of the date hereof;
(viv) this Project Agreement and the any Implementing Agreements (when executed and delivered) to which Project Co it is a party have been duly authorized, executed, and delivered by Project Co and constitute legal, valid, and binding obligations of Project Co, enforceable against Project Co in accordance with their respective terms, subject only to:
(A) limitations with respect to the enforcement of remedies by bankruptcy, insolvency, moratorium, winding-up, arrangement, reorganization, fraudulent preference and conveyance and other laws of general application affecting the enforcement of creditors’ rights generally; and
(B) general equitable principles and the fact that the availability of equitable remedies is in the discretion of a court and that a court may stay proceedings or the execution of judgments;
(viv) the authorization, execution, delivery delivery, and performance by Project Co of this Project Agreement and the any Implementing Agreements to which it is a party does not and will not violate or conflict with, or constitute a default under:
(A) its constating or organizational documents or any unanimous shareholders agreement or similar rights agreement binding on Project Co;
(B) any Applicable Law; or
(C) any covenant, contract, instrument, instrument or agreement or understanding to which it is a party or by which it or any of its properties or assets is bound or affected;
(vii) Project Co is an Affiliate of each of the Contractor and the Construction Guarantor;
(viii) no Project Co Event of Default has occurred and is continuing;
(ix) all of the information regarding Project Co set out in Schedule 4 – Project Co Information, is true and correct in all material respects;
(xvi) there are no actions, suits, proceedings, or investigations pending or, to the knowledge of its senior management, threatened against Project Co or any Project Co Party, at law or in equity, equity before any Governmental Authority or arbitral body (whether or not covered by insurance) that individually or in the aggregate could result in any material adverse effect on the business, properties, or assets, assets or the condition, financial or otherwise, of Project Co or in any impairment of its ability to perform its obligations under this Project Agreement or any of the Implementing Agreements to which it is a party, and Project Co has no knowledge of any violation or default with respect to any order, writ, injunction decision, injunction, or decree of any Governmental Authority or arbitral body that would could result in any such material adverse effect or impairment;
(xi) Project Co has carefully reviewed the whole of this Project Agreement, including all of the Contract Documents, and all other documents made available to Project Co by or on behalf of Owner, and, to Project Co’s knowledge, nothing contained herein or therein inhibits or prevents Project Co from completing the Work in accordance with this Project Agreement in a good and safe manner so as to achieve and satisfy the requirements of this Project Agreement;
(xiivii) Project Co is able to meet its obligations as they generally become due;
(xiiiviii) Project Co is registered under Division V of Part IX of the Excise Tax Act (Canada) and has been assigned GST/HST Number [REDACTED];
(xiv) the Scheduled Substantial Completion Date is a realistic date and is achievable by Project Co performing the Work in accordance with this Project Agreement;
(xv) Project Co and the Project Co Parties, collectively, have extensive experience in the construction of health facilities and other public buildings and have the necessary high degree of expertise and experience to perform the services required by the Contract Documents, to review and interpret the Contract Documents and to complete the Work in accordance with the standard of care set out in Section 11.2(a)(viii);
(xvi) the manager or supervisory personnel Project Co has assigned to the Project are highly experienced;
(xvii) Project Co has a sufficient staff of qualified and competent personnel to replace its designated supervisors, subject to Owner’s approval, in the event of death, incapacity or resignation;
(xviii) Project Co has conducted inspections of the Site during the Request for Proposals process and an investigation and examination of the Contract Documents, and any other documents made available to Project Co by Owner (which include, to the extent made available to Project Co by Owner, equipment lists, a legal description of the Site, copies of any registered and unregistered agreements affecting the Site, results of tests, reports of independent testing agencies and surveys and documents indicating the location of Utilities and other structures to the extent obtained by Owner, information regarding the critical requirements to maintain the operations of the Existing Facility, hospital protocols and rules and regulations, if any, including the Site Background Reports and the Contract Documents referred to in Section 11.7(c) so as to ascertain the nature or location of the Work and the Site, the physical conditions of the Site, the interface with the Existing Facility and protocols, rules and regulations if any, possible delays in commencing the Work, conditions relating to the transportation, handling and storage of materials and availability of labour and the character and availability of equipment, materials and facilities needed to perform the Work and to identify any Design Issues. Project Co has delivered to the Consultant requests for information in respect of all questions arising out of the foregoing inspections, investigations and examinations and in respect of each Design Issue identified. Based on this review, Project Co has established a Project Co Design Contingency adequate, in its judgement, to fund any change or delay cost that may arise as a result of any further Design Issue that may be identified and properly characterized as a Project Co Design Issue;
(xix) Project Co has sufficient expertise available to it with the appropriate skills to review the Contract Documents in accordance with the standard of care set out in Section 11.2(a)(viii);
(xx) Project Co has solicited bids from and will award Subcontracts for the Approved Subcontractor Work only to the applicable Approved Subcontractors and has not solicited bids from and will not award Subcontracts for the Approved Subcontractor Work except to the applicable Approved Subcontractors; and
(xxiix) Project Co has secured the Financing and is in a position to implement the Financing on or before the Financial Close Target Date, Date subject to the satisfaction of the Lender Condition and other reasonable conditions that are customary in closing the financing for projects similar to the Project.
Appears in 1 contract
Samples: Project Agreement
Project Co Representations and Warranties. (a) Project Co represents and warrants to Owner Hospital that as of at the date of this Project Agreement:
(i) Project Co is a limited liability corporation incorporated and validly existing under the laws of the Province of Alberta, is in good standing with the Alberta Registrar of Corporations of Alberta with respect to the filing of annual returns, and has all the requisite corporate power and authority to own, lease and operate its properties and assets, to carry on its business as it is currently being conducted, and to enter into this Project Agreement and the any Implementing Agreements to which it is a party, party and to perform its obligations hereunder and thereunder;
(ii) Project Co has the requisite power, authority and corporate capacity to execute and deliver and perform this Project Agreement and the Implementing Agreements to which it is a party, and to do all acts and things, and execute, deliver and perform all other agreements, instruments, undertakings and documents as are required by this Project Agreement to be done, executed, delivered or performed;
(iii) Project Co has obtained all necessary Project Co Permits, Licences and Approvals required to commence the Work;
(iv) no steps or proceedings have been taken or are pending to supersede, repeal or amend its constating documents, articles or articles, by-laws or any shareholders agreement in a manner that would materially impair or limit its ability to perform its obligations under this Project Agreement or any of the Implementing Agreements to which it is a party, party and such documents and agreements they are in full force and effect as of the date hereof;
(viii) this Project Agreement and the any Implementing Agreements (when executed and delivered) to which Project Co it is a party have been duly authorized, executed, and delivered by Project Co and constitute legal, valid, and binding obligations of Project Co, enforceable against Project Co in accordance with their respective terms, subject only to:
(A) limitations with respect to the enforcement of remedies by bankruptcy, insolvency, moratorium, winding-up, arrangement, reorganization, fraudulent preference and conveyance and other laws of general application affecting the enforcement of creditors’ rights generally; and
(B) general equitable principles and the fact that the availability of equitable remedies is in the discretion of a court and that a court may stay proceedings or the execution of judgments;
(viiv) the authorization, execution, delivery delivery, and performance by Project Co of this Project Agreement and the any Implementing Agreements to which it is a party does not and will not violate or conflict with, or constitute a default under:
(A) its constating or organizational documents or any unanimous shareholders agreement or similar rights agreement binding on Project Co;
(B) any Applicable Law; or
(C) any covenant, contract, instrument, instrument or agreement or understanding to which it is a party or by which it or any of its properties or assets is bound or affected;
(vii) Project Co is an Affiliate of each of the Contractor and the Construction Guarantor;
(viii) no Project Co Event of Default has occurred and is continuing;
(ix) all of the information regarding Project Co set out in Schedule 4 – Project Co Information, is true and correct in all material respects;
(xv) there are no actions, suits, proceedings, or investigations pending or, to the knowledge of its senior management, threatened against Project Co or any Project Co Party, at law or in equity, equity before any Governmental Authority or arbitral body (whether or not covered by insurance) that individually or in the aggregate could result in any material adverse effect on the business, properties, or assets, assets or the condition, financial or otherwise, of Project Co or in any impairment of its ability to perform its obligations under this Project Agreement or any of the Implementing Agreements to which it is a party, and Project Co has no knowledge of any violation or default with respect to any order, writ, injunction decision, injunction, or decree of any Governmental Authority or arbitral body that would could result in any such material adverse effect or impairment;
(xi) Project Co has carefully reviewed the whole of this Project Agreement, including all of the Contract Documents, and all other documents made available to Project Co by or on behalf of Owner, and, to Project Co’s knowledge, nothing contained herein or therein inhibits or prevents Project Co from completing the Work in accordance with this Project Agreement in a good and safe manner so as to achieve and satisfy the requirements of this Project Agreement;
(xiivi) Project Co is able to meet its obligations as they generally become due;
(xiiivii) Project Co is registered under Division V of Part IX of the Excise Tax Act (Canada) and has been assigned GST/HST Number [REDACTED];
(xiv) the Scheduled Substantial Completion Date is a realistic date and is achievable by Project Co performing the Work in accordance with this Project Agreement;
(xv) Project Co and the Project Co Parties, collectively, have extensive experience in the construction of health facilities and other public buildings and have the necessary high degree of expertise and experience to perform the services required by the Contract Documents, to review and interpret the Contract Documents and to complete the Work in accordance with the standard of care set out in Section 11.2(a)(viii);
(xvi) the manager or supervisory personnel Project Co has assigned to the Project are highly experienced;
(xvii) Project Co has a sufficient staff of qualified and competent personnel to replace its designated supervisors, subject to Owner’s approval, in the event of death, incapacity or resignation;
(xviii) Project Co has conducted inspections of the Site during the Request for Proposals process and an investigation and examination of the Contract Documents, and any other documents made available to Project Co by Owner (which include, to the extent made available to Project Co by Owner, equipment lists, a legal description of the Site, copies of any registered and unregistered agreements affecting the Site, results of tests, reports of independent testing agencies and surveys and documents indicating the location of Utilities and other structures to the extent obtained by Owner, information regarding the critical requirements to maintain the operations of the Existing Facility, hospital protocols and rules and regulations, if any, including the Site Background Reports and the Contract Documents referred to in Section 11.7(c) so as to ascertain the nature or location of the Work and the Site, the physical conditions of the Site, the interface with the Existing Facility and protocols, rules and regulations if any, possible delays in commencing the Work, conditions relating to the transportation, handling and storage of materials and availability of labour and the character and availability of equipment, materials and facilities needed to perform the Work and to identify any Design Issues. Project Co has delivered to the Consultant requests for information in respect of all questions arising out of the foregoing inspections, investigations and examinations and in respect of each Design Issue identified. Based on this review, Project Co has established a Project Co Design Contingency adequate, in its judgement, to fund any change or delay cost that may arise as a result of any further Design Issue that may be identified and properly characterized as a Project Co Design Issue;
(xix) Project Co has sufficient expertise available to it with the appropriate skills to review the Contract Documents in accordance with the standard of care set out in Section 11.2(a)(viii);
(xx) Project Co has solicited bids from and will award Subcontracts for the Approved Subcontractor Work only to the applicable Approved Subcontractors and has not solicited bids from and will not award Subcontracts for the Approved Subcontractor Work except to the applicable Approved Subcontractors; and
(xxiviii) Project Co has secured the Financing and is in a position to implement the Financing on or before the Financial Close Target Date, Date subject to the satisfaction of the Lender Condition and other reasonable conditions that are customary in closing the financing for projects similar to the Project.
Appears in 1 contract
Samples: Project Agreement
Project Co Representations and Warranties. (a) Project Co represents and warrants to Owner WGH that as of the date of this Project Agreement:
(i) Project Co is a limited liability corporation incorporated general partnership between LED Inc. and LED LP formed and validly existing under the laws of Alberta, is in good standing with the Registrar Province of Corporations of Alberta with respect to the filing of annual returns, Manitoba and has all the requisite corporate power and authority to own, lease and operate own its properties and assets, to carry on its business as it is currently being conducted, and to enter into this Project Agreement and to perform its obligations hereunder;
(ii) LED Inc. is a corporation incorporated and validly existing under the Implementing Agreements laws of Manitoba, is in good standing with the Companies Office of Manitoba with respect to which the filing of annual reports, and has all the requisite corporate power and authority to own its properties and assets, to carry on its business as it is a partycurrently being conducted, and to enter into this Project Agreement and to perform its obligations hereunder and thereunderin its capacity as a partner of Project Co;
(iiiii) LED LP is a limited partnership between LED GP Inc., as general partner and EllisDon (ITS) WGH Inc. and LPF Infrastructure Fund, as limited partners, and is formed and validly existing under the laws of the Province of Manitoba, and has all the requisite power and authority to own its properties and assets, to carry on its business as it is currently being conducted, and to enter into this Project Agreement and to perform its obligations hereunder in its capacity as a partner of Project Co;
(iv) LED GP Inc. is a corporation incorporated and validly existing under the laws of Manitoba, is in good standing with the Companies Office of Manitoba with respect to the filing of annual reports, and has all the requisite corporate power and authority to own its properties and assets, to carry on its business as it is currently being conducted and to enter into this Project Agreement and to perform its obligations hereunder in its capacity as general partner of LED LP;
(v) Project Co and the Project Co Parties, collectively, have extensive experience and are knowledgeable in the construction and maintenance of hospital facilities and have the required ability, experience, skill and capacity to review the Existing Design and to perform the Project Operations in a timely and professional manner as set out in this Project Agreement;
(vi) Each of Project Co, LED Inc. and LED GP Inc. (as general partner of LED LP) has the requisite power, authority and corporate capacity to execute and deliver and perform this Project Agreement and the Implementing Agreements to which it is a partyAgreement, and to do all acts and things, and execute, deliver and perform all other agreements, instruments, undertakings and documents as are required by this Project Agreement to be done, executed, delivered or performedperformed by Project Co;
(iii) Project Co has obtained all necessary Project Co Permits, Licences and Approvals required to commence the Work;
(ivvii) no steps or proceedings have been taken or are pending to supersede, repeal supersede or amend its (1) the constating documents, or formation documents of Project Co or LED LP; or (2) the articles or by-laws of LED Inc. or any shareholders agreement LED GP Inc., in each case in a manner that would materially impair or limit its Project Co's ability to perform its obligations under this Project Agreement or any of the Implementing Agreements to which it is a party, and such documents and agreements are in full force and effect as of the date hereofAgreement;
(vviii) this Project Agreement and the Implementing Agreements (when executed and delivered) to which Project Co is a party have has been duly authorized, executed, and delivered by Project Co Co, LED Inc., LED LP (through its general partner LED GP Inc.) and constitute LED GP Inc., and constitutes a legal, valid, and binding obligations obligation of each of Project Co, LED Inc., LED LP and LED GP Inc. enforceable against Project Co each of them in accordance with their respective its terms, subject only to:
(A) limitations with respect to the enforcement of remedies by bankruptcy, insolvency, moratorium, winding-up, arrangement, reorganization, fraudulent preference and conveyance and other laws of general application affecting the enforcement of creditors’ ' rights generally; and
(B) general equitable principles and the fact that the availability of equitable remedies is in the discretion of a court and that a court may stay proceedings or the execution of judgments;
(viix) the authorization, execution, delivery delivery, and performance by Project Co Co, LED Inc., LED LP and LED GP Inc. of this Project Agreement does not and the Implementing Agreements to which it is a party does will not violate or conflict with, or constitute a default under:
(A) its constating constating, formation or organizational documents or any unanimous shareholders agreement or similar rights agreement binding on Project Codocuments;
(B) any Applicable Law; or
(C) any covenant, contract, instrumentagreement, agreement or understanding to which it is a party or by which it or any of its properties or assets is bound or affected;
(vii) Project Co is an Affiliate of each of the Contractor and the Construction Guarantor;
(viiix) no Project Co Event of Default has occurred and is continuing;
(ixxi) all of the information regarding Project Co Co, LED Inc., LED LP and LED GP Inc. set out in Schedule 4 – 7 - Project Co Information, Information is true and correct in all material respects;
(xxii) there are no actions, suits, proceedings, or investigations pending or threatened against Project Co, LED Inc., LED LP or LED GP Inc. or, to the knowledge of its senior managementProject Co's knowledge, threatened against Project Co or any Project Co Party, Party at law or in equity, equity before any Governmental Authority or arbitral body (whether or not covered by insurance) that individually or in the aggregate could result in any material adverse effect on the business, properties, or assets, or the condition, financial or otherwise, of any of Project Co Co, LED Inc., LED LP or LED GP Inc. or in any impairment of its Project Co's ability to perform its obligations under this Project Agreement or any Implementing Agreements to which it is a partyAgreement, and Project Co has no knowledge of any violation or default with respect to any order, writ, injunction injunction, or decree of any Governmental Authority or arbitral body that would could result in any such material adverse effect or impairment;
(xixiii) Project Co has carefully reviewed the whole of this Project Agreement, Agreement including all of the Contract DocumentsTechnical Requirements, and all other documents made available to Project Co by or on behalf of OwnerWGH, and, to Project Co’s 's knowledge, nothing contained herein or therein inhibits or prevents Project Co from completing the Work Works or performing the Project Operations in accordance with this Project Agreement in a good and safe manner so as to achieve and satisfy the requirements of this Project Agreement;
(xiixiv) each of Project Co is Co, LED Inc., LED LP and LED GP Inc. are able to meet its obligations as they generally become due;
(xiiixv) Project Co is registered under Division V of Part IX of the Excise Tax Act (Canada) and has been assigned GST/HST Number [REDACTED]);
(xivxvi) the Scheduled Substantial Completion Date is a realistic date and is achievable by Project Co performing the Work Works in accordance with this Project Agreement;
(xv) Project Co and the Project Co Parties, collectively, have extensive experience in the construction of health facilities and other public buildings and have the necessary high degree of expertise and experience to perform the services required by the Contract Documents, to review and interpret the Contract Documents and to complete the Work in accordance with the standard of care set out in Section 11.2(a)(viii);
(xvi) the manager or supervisory personnel Project Co has assigned to the Project are highly experienced;
(xvii) each of Project Co Co, LED Inc., LED LP and LED GP Inc. is not a Non-resident and has a sufficient staff no obligation to file income tax returns in any jurisdiction outside of qualified and competent personnel to replace its designated supervisors, subject to Owner’s approval, in the event of death, incapacity or resignation;Canada; and
(xviii) Project Co has conducted inspections of the Site during the Request for Proposals process and an investigation and examination of the Contract Documents, and any other documents made available to obtained all necessary Project Co by Owner (which includePermits, Licenses and Approvals required to commence the extent made available to Project Co by Owner, equipment lists, a legal description of the Site, copies of any registered and unregistered agreements affecting the Site, results of tests, reports of independent testing agencies and surveys and documents indicating the location of Utilities and other structures to the extent obtained by Owner, information regarding the critical requirements to maintain the operations of the Existing Facility, hospital protocols and rules and regulations, if any, including the Site Background Reports and the Contract Documents referred to in Section 11.7(c) so as to ascertain the nature or location of the Work and the Site, the physical conditions of the Site, the interface with the Existing Facility and protocols, rules and regulations if any, possible delays in commencing the Work, conditions relating to the transportation, handling and storage of materials and availability of labour and the character and availability of equipment, materials and facilities needed to perform the Work and to identify any Design Issues. Project Co has delivered to the Consultant requests for information in respect of all questions arising out of the foregoing inspections, investigations and examinations and in respect of each Design Issue identified. Based on this review, Project Co has established a Project Co Design Contingency adequate, in its judgement, to fund any change or delay cost that may arise as a result of any further Design Issue that may be identified and properly characterized as a Project Co Design Issue;
(xix) Project Co has sufficient expertise available to it with the appropriate skills to review the Contract Documents in accordance with the standard of care set out in Section 11.2(a)(viii);
(xx) Project Co has solicited bids from and will award Subcontracts for the Approved Subcontractor Work only to the applicable Approved Subcontractors and has not solicited bids from and will not award Subcontracts for the Approved Subcontractor Work except to the applicable Approved Subcontractors; and
(xxi) Project Co has secured the Financing and is in a position to implement the Financing on or before the Financial Close Target Date, subject to the satisfaction of reasonable conditions that are customary in closing financing for projects similar to the ProjectWorks.
Appears in 1 contract
Samples: Project Agreement
Project Co Representations and Warranties. (a) Project Co represents and warrants to Owner Contracting Authority that as of the date of this Project AgreementCommercial Close:
(i) Project Co is a limited liability corporation incorporated and validly existing under the laws of Alberta, is in good standing with the Registrar of Corporations of Alberta with respect to the filing of annual returns, and [REDACTED] has all the requisite corporate power and authority to own, lease and operate own its properties and assets, to carry on its business as it is currently being conducted, and to enter into this Project Agreement and the Implementing Agreements to which it is a party, and to perform its obligations hereunder and thereunderhereunder;
(ii) Project Co and the Project Co Parties, collectively, have extensive experience and are knowledgeable in the design and construction of infrastructure and facilities similar to those included in the scope of the Project in scale, scope, type and complexity, and have the required ability, experience, skill and capacity to perform the Works in a timely and professional manner as set out in this Project Agreement;
(iii) Project Co has the requisite power, authority and corporate capacity to execute and deliver and perform this Project Agreement and the Implementing Agreements to which it is a partyAgreement, and to do all acts and things, and execute, deliver and perform all other agreements, instruments, undertakings and documents as are required by this Project Agreement to be done, executed, delivered or performed;
(iii) Project Co has obtained all necessary Project Co Permits, Licences and Approvals required to commence the Work;
(iv) no steps or proceedings have been taken or are pending to supersede, repeal supersede or amend its the constating documents, articles or by-laws or any shareholders agreement of Project Co in a manner that would materially impair or limit its ability to perform its the obligations of Project Co under this Project Agreement or any of the Implementing Agreements to which it is a party, and such documents and agreements are in full force and effect as of the date hereofAgreement;
(v) this Project Agreement and the Implementing Agreements (when executed and delivered) to which Project Co is a party have has been duly authorized, executed, and delivered by Project Co and constitute constitutes a legal, valid, and binding obligations obligation of Project Co, enforceable against Project Co in accordance with their respective its terms, subject only to:
(A) limitations with respect to the enforcement of remedies by bankruptcy, insolvency, moratorium, winding-up, arrangement, reorganization, fraudulent preference and conveyance and other laws of general application affecting the enforcement of creditors’ rights generally; and
(B) general equitable principles and the fact that the availability of equitable remedies is in the discretion of a court and that a court may stay proceedings or the execution of judgments;
(vi) the authorization, execution, delivery delivery, and performance by Project Co of this Project Agreement does not and the Implementing Agreements to which it is a party does will not violate or conflict with, or constitute a default under:
(A) its constating constating, formation or organizational documents or documents, including any unanimous shareholders agreement or similar rights agreement binding on Project Coby- laws;
(B) any Applicable Law; or
(C) any covenant, contract, instrumentagreement, agreement or understanding to which it is a party or by which it or any of its properties or assets is bound or affected;
(vii) Project Co is an Affiliate of each of the Contractor and the Construction Guarantor;
(viii) no Project Co Event of Default has occurred and is continuing;
(ixviii) all of the information regarding Project Co set out in Schedule 4 31 – Project Co Information, Information is true and correct in all material respects;
(xix) there are no actions, suits, proceedings, or investigations pending or, to the knowledge of its senior management, or threatened against Project Co or or, to Project Co’s knowledge, any Project Co Party, Party at law or in equity, equity before any Governmental Authority or arbitral body (whether or not covered by insurance) that individually or in the aggregate could result in any material adverse effect on the business, properties, or assets, or the condition, financial or otherwise, of Project Co or in any impairment of its ability to perform its obligations under this Project Agreement or any Implementing Agreements to which it is a partyAgreement, and Project Co has no knowledge of any violation or default with respect to any order, writ, injunction injunction, or decree of any Governmental Authority or arbitral body that would could result in any such material adverse effect or impairment;
(xix) Project Co has conducted its own investigations and has carefully reviewed the whole of this Project Agreement, including all of the Contract Documents, and all other documents made available to Project Co by or on behalf of OwnerContracting Authority, and, to Project Co’s knowledge, nothing contained herein or therein inhibits or prevents Project Co from completing the Work Works or performing the Works in accordance with this Project Agreement in a good and safe manner so as to achieve and satisfy the requirements of this Project Agreement;
(xiixi) Project Co is able to meet its obligations as they generally become due;
(xiiixii) Project Co is registered under Division V of Part IX of the Excise Tax Act (Canada) and has been assigned GST/its HST Number registration number is [REDACTED];
(xiii) each of the Scheduled Milestone Payment Completion Dates and the Scheduled Interim Completion Date are realistic dates and are achievable by Project Co performing the Works in accordance with this Project Agreement;
(xiv) the Scheduled Substantial Completion Date is a realistic date and is achievable by Project Co performing the Work Works in accordance with this Project Agreement;
(xv) Project Co and the Project Co Parties, collectively, have extensive experience in the construction of health facilities and other public buildings and have the necessary high degree of expertise and experience to perform the services required by the Contract Documents, to review and interpret the Contract Documents and to complete the Work in accordance with the standard of care set out in Section 11.2(a)(viii)is not a Non-Resident;
(xvi) Project Co has obtained all necessary Project Co Permits, Licences, Approvals and Agreements required to commence the manager Works;
(xvii) the management or supervisory personnel Project Co has assigned to the Project are highly experienced;
(xviixviii) Project Co has a sufficient staff of qualified and competent personnel to replace its designated supervisors, subject to OwnerContracting Authority’s approval, in the event of death, incapacity or resignation;
(xviiixix) Project Co has and certain of the Project Co Parties have conducted inspections of the Site during the Request for Proposals process Lands prior to Commercial Close and an investigation and examination of the Contract DocumentsProject Agreement, the Background Information and any other documents made available to Project Co by Owner (which include, to the extent made available to Project Co by Owner, equipment lists, a legal description of the Site, copies of any registered and unregistered agreements affecting the Site, results of tests, reports of independent testing agencies and surveys and documents indicating the location of Utilities and other structures to the extent obtained by Owner, information regarding the critical requirements to maintain the operations of the Existing Facility, hospital protocols and rules and regulations, if any, including the Site Background Reports and the Contract Documents referred to in Section 11.7(c) Contracting Authority so as to ascertain the nature or location of the Work Works and the SiteLands, the physical conditions of the Site, the interface with Lands and the Existing Facility Infrastructure, and protocols, rules and regulations if any, possible delays in commencing the WorkWorks, conditions relating to the transportation, handling and storage of materials and availability of labour and the character and availability of equipment, materials and facilities needed to perform the Work and to identify any Design Issues. Project Co has delivered to the Consultant requests for information in respect of all questions arising out of the foregoing inspections, investigations and examinations and in respect of each Design Issue identified. Based on this review, Project Co has established a Project Co Design Contingency adequate, in its judgement, to fund any change or delay cost that may arise as a result of any further Design Issue that may be identified and properly characterized as a Project Co Design Issue;
(xix) Project Co has sufficient expertise available to it with the appropriate skills to review the Contract Documents in accordance with the standard of care set out in Section 11.2(a)(viii)Works;
(xx) Project Co has solicited bids from and will award Subcontracts for the Approved Subcontractor Work only to the applicable Approved Subcontractors and has not solicited bids from and will not award Subcontracts for the Approved Subcontractor Work except to the applicable Approved Subcontractors; and
(xxi) Project Co has secured the Financing and is in a position to implement complete the Financing on or before the Financial Close Target Date, subject to the satisfaction of reasonable conditions that are customary in closing financing for projects similar to the Project;
(xxi) no Restricted Person has Direct or Indirect Power or Control over any member of the Project Co Group in relation to the decisions, management, actions or policies of Project Co or in relation to the operation, management and ownership of the Project;
(xxii) to the knowledge of Project Co, no Restricted Person has directly or indirectly, an Economic Interest in Project Co or the Project;
(xxiii) the COR Certification of [REDACTED] extends and applies to the Construction Contractor; and
(xxiv) the COR-Certified Construction Project Co Party is in possession of its COR Certification in good standing as required under this Project Agreement and has the ability to maintain such COR Certification in good standing at all times during the performance of the Works in accordance with its terms, provisions and conditions; or
(xxv) the COR-Qualified Construction Project Co Party:
(A) is in possession of its OHSAS 18001 Accreditation which remains in good standing and has the ability to maintain such OHSAS 18001 Accreditation in good standing at all times during the performance of the Works until such COR-Qualified Construction Project Co Party receives its COR Certification as required under this Project Agreement, and
(B) has made an application to the IHSA for its COR Certification as required under this Project Agreement.
Appears in 1 contract
Samples: Project Agreement
Project Co Representations and Warranties.
(a) Project Co represents and warrants to Owner THP that as of the date of this Project Agreement:
(i) Project Co is a limited liability corporation incorporated formed and validly existing under the laws of Alberta, is in good standing with the Registrar jurisdiction of Corporations of Alberta with respect to the filing of annual returns, its organization and has all the requisite corporate power and authority to own, lease and operate its properties and assets, to carry on its business as it is currently being conducted, to enter into this Project Agreement and the Implementing Agreements to which it is a party, and to perform its obligations hereunder and thereunder;
(ii) Project Co is in good standing with the Ministry of Consumer and Business Services of Ontario with respect to the filing of annual returns;
(iii) Project Co has the requisite power, authority and corporate capacity to execute and deliver and perform this Project Agreement and the Implementing Agreements to which it is a party, and to do all acts and things, and execute, deliver and perform all other agreements, instruments, undertakings and documents as are required by this Project Agreement to be done, executed, delivered or performed;
(iiiiv) Project Co has obtained all necessary Project Co Permits, Licences and Approvals required to commence the Work;
(ivv) no steps or proceedings have been taken or are pending to supersede, repeal or amend its constating documents, articles or by-laws or any shareholders agreement in a manner that would materially impair or limit its ability to perform its obligations under this Project Agreement or any of the Implementing Agreements to which it is a party, and such documents and agreements are in full force and effect as of the date hereof;
(vvi) this Project Agreement and the Implementing Agreements (when executed and delivered) to which Project Co is a party have been duly authorized, executed, and delivered by Project Co and constitute legal, valid, and binding obligations of Project Co, enforceable against Project Co in accordance with their respective terms, subject only to:
(A) limitations with respect to the enforcement of remedies by bankruptcy, insolvency, moratorium, winding-up, arrangement, reorganization, fraudulent preference and conveyance and other laws of general application affecting the enforcement of creditors’ rights generally; and
(B) general equitable principles and the fact that the availability of equitable remedies is in the discretion of a court and that a court may stay proceedings or the execution of judgments;
(vivii) the authorization, execution, delivery and performance by Project Co of this Project Agreement and the Implementing Agreements to which it is a party does not violate or conflict with, or constitute a default under:
(A) its constating constating, formation or organizational documents documents, or any unanimous shareholders agreement relating to voting rights in Project Co or the management or control of the business or affairs of Project Co or any similar rights agreement binding on Project Co;
(B) any Applicable Law; or
(C) any covenant, contract, instrument, agreement or understanding to which it is a party or by which it or any of its properties or assets is bound or affected;
(vii) Project Co is an Affiliate of each of the Contractor and the Construction Guarantor;
(viii) no Project Co Event of Default has occurred and is continuing;
(ix) all of the information regarding Project Co set out in Schedule 4 – Project Co Information, is true and correct in all material respects;
(x) there are no actions, suits, proceedings, or investigations pending or, to the knowledge of its senior management, threatened against Project Co or any Project Co Party, at law or in equity, before any Governmental Authority or arbitral body (whether or not covered by insurance) that individually or in the aggregate could result in any material adverse effect on the business, properties, or assets, or the condition, financial or otherwise, of Project Co or in any impairment of its ability to perform its obligations under this Project Agreement or any Implementing Agreements to which it is a party, and Project Co has no knowledge of any violation or default with respect to any order, writ, injunction or decree of any Governmental Authority or arbitral body that would result in any such material adverse effect or impairment;
(xi) Project Co has carefully reviewed the whole of this Project Agreement, including all of the Contract Documents, and all other documents made available to Project Co by or on behalf of OwnerTHP, and, to Project Co’s knowledge, nothing contained herein or therein inhibits or prevents Project Co from completing the Work in accordance with this Project Agreement in a good and safe manner so as to achieve and satisfy the requirements of this Project Agreement;
(xii) Project Co is able to meet its obligations as they generally become due;
(xiii) Project Co is registered under Division V of Part IX of the Excise Tax Act (Canada) and has been assigned GST/HST Number [REDACTED];
(xiv) the Scheduled Substantial Completion Date is a realistic date and is achievable by Project Co performing the Work in accordance with this Project Agreement;
(xv) Project Co and the Project Co Parties, collectively, have extensive experience in the construction of health facilities and other public buildings and have the necessary high degree of expertise and experience to perform the services required by the Contract Documents, to review and interpret the Contract Documents and to complete the Work in accordance with the standard of care set out in Section 11.2(a)(viii);
(xvi) the manager or supervisory personnel Project Co has assigned to the Project are highly experienced;
(xvii) Project Co has a sufficient staff of qualified and competent personnel to replace its designated supervisors, subject to OwnerTHP’s approval, in the event of death, incapacity or resignation;
(xviii) Project Co has and certain of the Project Co Parties have conducted inspections of the Site during the Request for Proposals process and an investigation and examination of the Contract Documents, and any other documents made available to Project Co by Owner THP (which include, to the extent made available to Project Co by OwnerTHP, equipment lists, a legal description of the Site, copies of any registered and unregistered agreements affecting the Site, results of tests, reports of independent testing agencies and surveys and documents indicating the location of Utilities and other structures to the extent obtained by OwnerTHP, information regarding the critical requirements to maintain the operations of the Existing Facility, hospital protocols and rules and regulations, if any, including the Site Background Reports and the Contract Documents referred to in Section 11.7(c)) so as to ascertain the nature or location of the Work and the Site, the physical conditions of the Site, the interface with the Existing Facility Facility, and protocols, rules and regulations if any, possible delays in commencing the Work, conditions relating to the transportation, handling and storage of materials and availability of labour and the character and availability of equipment, materials and facilities needed to perform the Work and to identify any Design Issues. Project Co has delivered to the Consultant requests for information in respect of all questions arising out of the foregoing inspections, investigations and examinations and in respect of each Design Issue identified. Based on this review, Project Co has established a Project Co Design Contingency adequate, in its judgement, to fund any change or delay cost that may arise as a result of any further Design Issue that may be identified and properly characterized as a Project Co Design Issue;
(xix) Project Co has sufficient expertise available to it with the appropriate skills to review the Contract Documents in accordance with the standard of care set out in Section 11.2(a)(viii);
(xx) Project Co has solicited bids from and will award Subcontracts for the Approved Subcontractor Work only to the applicable Approved Subcontractors and has not solicited bids from and will not award Subcontracts for the Approved Subcontractor Work except to the applicable Approved Subcontractors; and;
(xxi) Project Co has secured the Financing and is in a position to implement the Financing on or before the Financial Close Target Date, subject to the satisfaction of reasonable conditions that are customary in closing financing for projects similar to the Project;
(xxii) no Restricted Person has Direct or Indirect Power or Control over any member of the Project Co Group in relation to the decisions, management, actions or policies of Project Co or in relation to the operation, management and ownership of the Project; and
(xxiii) to the knowledge of Project Co, no Restricted Person has directly or indirectly, an Economic Interest in Project Co or the Project.
Appears in 1 contract
Samples: Project Agreement
Project Co Representations and Warranties. (a) Project Co represents and warrants to Owner NHS that as of the date of this Project Agreement:
(i) Project Co is a limited liability corporation incorporated [REDACTED] formed and validly existing under the laws of Alberta, is in good standing with the Registrar Province of Corporations of Alberta with respect to the filing of annual returnsOntario, and has all the requisite corporate power and authority to own, lease and operate own its properties and assets, to carry on its business as it is currently being conducted, and to enter into this Project Agreement and the Implementing Agreements to which it is a party, and to perform its obligations hereunder and thereunderhereunder;
(ii) [REDACTED]
(iii) [REDACTED]
(iv) Project Co and the Project Co Parties, collectively, have extensive experience and are knowledgeable in the design, construction and maintenance of hospital facilities and have the required ability, experience, skill and capacity to perform the Project Operations in a timely and professional manner as set out in this Project Agreement;
(v) Project Co has the requisite power, authority and corporate capacity to execute and deliver and perform this Project Agreement and the Implementing Agreements to which it is a partyAgreement, and to do all acts and things, and execute, deliver and perform all other agreements, instruments, undertakings and documents as are required by this Project Agreement to be done, executed, delivered or performed;
(iii) Project Co has obtained all necessary Project Co Permits, Licences and Approvals required to commence the Work;
(ivvi) no steps or proceedings have been taken or are pending to supersede, repeal supersede or amend its constating documents, articles or by-laws or any shareholders agreement in a manner that would materially impair or limit its ability to perform its obligations under this Project Agreement or any of the Implementing Agreements to which it is a party, and such documents and agreements are in full force and effect as of the date hereofAgreement;
(vvii) this Project Agreement and the Implementing Agreements (when executed and delivered) to which Project Co is a party have has been duly authorized, executed, and delivered by each Project Co Party, and constitute constitutes a legal, valid, and binding obligations obligation of each Project CoParty, enforceable against each Project Co Party in accordance with their respective its terms, subject only to:
(A) limitations with respect to the enforcement of remedies by bankruptcy, insolvency, moratorium, winding-up, arrangement, reorganization, fraudulent preference and conveyance and other laws of general application affecting the enforcement of creditors’ ' rights generally; and
(B) general equitable principles and the fact that the availability of equitable remedies is in the discretion of a court and that a court may stay proceedings or the execution of judgments;
(viviii) the authorization, execution, delivery delivery, and performance by each Project Co Party of this Project Agreement does not and the Implementing Agreements to which it is a party does will not violate or conflict with, or constitute a default under:
(A) its constating or organizational documents or any unanimous shareholders agreement or similar rights agreement binding on Project Codocuments;
(B) any Applicable Law; or
(C) any covenant, contract, instrumentagreement, agreement or understanding to which it is a party or by which it or any of its properties or assets is bound or affected;
(vii) Project Co is an Affiliate of each of the Contractor and the Construction Guarantor;
(viiiix) no Project Co Event of Default has occurred and is continuing;
(ixx) all of the information regarding the Project Co Parties set out in Schedule 4 – 31 - Project Co Information, Party Information is true and correct in all material respects;
(xxi) there are no actions, suits, proceedings, or investigations pending or threatened against any Project Party or, to the knowledge of its senior managementProject Co's knowledge, threatened against Project Co or any Project Co Party, Party at law or in equity, equity before any Governmental Authority or arbitral body (whether or not covered by insurance) that individually or in the aggregate could result in any material adverse effect on the business, properties, or assets, or the condition, financial or otherwise, of any Project Co Party or in any impairment of its or their ability to perform its obligations under this Project Agreement or any Implementing Agreements to which it is a partyAgreement, and Project Co has no knowledge of any violation or default with respect to any order, writ, injunction injunction, or decree of any Governmental Authority or arbitral body that would could result in any such material adverse effect or impairment;
(xixii) Project Co has carefully reviewed the whole of this Project Agreement, including all of the Contract Documents, and all other documents made available to Project Co by or on behalf of OwnerNHS, and, to Project Co’s 's knowledge, nothing contained herein or therein inhibits or prevents Project Co from completing the Work Works or performing the Project Operations in accordance with this Project Agreement in a good and safe manner so as to achieve and satisfy the requirements of this Project Agreement;
(xiixiii) each Project Co Party is able to meet its obligations as they generally become due;
(xiiixiv) Project Co is registered under Division V of Part IX of the Excise Tax Act (Canada) and has been assigned GST/HST Number [REDACTED];); and
(xivxv) the Scheduled Substantial Completion Date is a realistic date and is achievable by Project Co performing the Work Works in accordance with this Project Agreement;
(xv) Project Co and the Project Co Parties, collectively, have extensive experience in the construction of health facilities and other public buildings and have the necessary high degree of expertise and experience to perform the services required by the Contract Documents, to review and interpret the Contract Documents and to complete the Work in accordance with the standard of care set out in Section 11.2(a)(viii);
(xvi) the manager or supervisory personnel Project Co has assigned to the Project are highly experienced;
(xvii) Project Co has a sufficient staff of qualified and competent personnel to replace its designated supervisors, subject to Owner’s approval, in the event of death, incapacity or resignation;
(xviii) Project Co has conducted inspections of the Site during the Request for Proposals process and an investigation and examination of the Contract Documents, and any other documents made available to Project Co by Owner (which include, to the extent made available to Project Co by Owner, equipment lists, a legal description of the Site, copies of any registered and unregistered agreements affecting the Site, results of tests, reports of independent testing agencies and surveys and documents indicating the location of Utilities and other structures to the extent obtained by Owner, information regarding the critical requirements to maintain the operations of the Existing Facility, hospital protocols and rules and regulations, if any, including the Site Background Reports and the Contract Documents referred to in Section 11.7(c) so as to ascertain the nature or location of the Work and the Site, the physical conditions of the Site, the interface with the Existing Facility and protocols, rules and regulations if any, possible delays in commencing the Work, conditions relating to the transportation, handling and storage of materials and availability of labour and the character and availability of equipment, materials and facilities needed to perform the Work and to identify any Design Issues. Project Co has delivered to the Consultant requests for information in respect of all questions arising out of the foregoing inspections, investigations and examinations and in respect of each Design Issue identified. Based on this review, Project Co has established a Project Co Design Contingency adequate, in its judgement, to fund any change or delay cost that may arise as a result of any further Design Issue that may be identified and properly characterized as a Project Co Design Issue;
(xix) Project Co has sufficient expertise available to it with the appropriate skills to review the Contract Documents in accordance with the standard of care set out in Section 11.2(a)(viii);
(xx) Project Co has solicited bids from and will award Subcontracts for the Approved Subcontractor Work only to the applicable Approved Subcontractors and has not solicited bids from and will not award Subcontracts for the Approved Subcontractor Work except to the applicable Approved Subcontractors; and
(xxi) Project Co has secured the Financing and is in a position to implement the Financing on or before the Financial Close Target Date, subject to the satisfaction of reasonable conditions that are customary in closing financing for projects similar to the Project.
Appears in 1 contract
Samples: Project Agreement
Project Co Representations and Warranties. (a) Project Co represents and warrants to Owner the City that as of the date of this Project AgreementCommercial Close:
(i) Project Co is a limited liability corporation incorporated general partnership between ACS RTG Partner Inc., SNC RTG Partner Inc. and EllisDon RTG Partner Inc. formed and validly existing under the laws of Alberta, is in good standing with the Registrar Province of Corporations of Alberta with respect to the filing of annual returnsOntario, and has all the requisite corporate power and authority to own, lease and operate own its properties and assets, to carry on its business as it is currently being conducted, and to enter into this Project Agreement and to duly observe and perform its obligations hereunder:
(A) ACS RTG Partner Inc. is a duly incorporated and validly existing company under the Implementing Agreements laws of British Columbia and has all the requisite power and authority to which own its properties and assets, to carry on its business as it is a party, currently being conducted and to enter into this Project Agreement and to duly observe and perform its obligations hereunder in its capacity as a partner of Project Co;
(B) SNC RTG Partner Inc. is a duly incorporated and thereundervalidly existing company under the laws of Canada, and has all the requisite power and authority to own its properties and assets, to carry on its business as it is currently being conducted and to enter into this Project Agreement and to duly observe and perform its obligations hereunder in its capacity as a partner of Project Co;
(C) EllisDon RTG Partner Inc. is a duly incorporated and validly existing company under the laws of Ontario, and has all the requisite power and authority to own its properties and assets, to carry on its business as it is currently being conducted and to enter into this Project Agreement and to duly observe and perform its obligations hereunder in its capacity as a partner of Project Co;
(ii) Project Co has is and shall remain a Special Purpose Vehicle during the requisite power, authority and corporate capacity to execute and deliver and perform this Project Agreement and the Implementing Agreements to which it is a party, and to do all acts and things, and execute, deliver and perform all other agreements, instruments, undertakings and documents as are required by this Project Agreement to be done, executed, delivered or performedTerm;
(iii) all partnership interests in Project Co has obtained all necessary Project Co Permits, Licences and Approvals required as of Commercial Close have been disclosed to commence the WorkCity;
(iv) no steps or proceedings have been taken or are pending to supersede, repeal or amend its constating documents, articles or by-laws or any shareholders agreement in a manner that would materially impair or limit its ability to perform its obligations under this Project Agreement or any of the Implementing Agreements to which it is a party, and such documents and agreements are in full force and effect as of the date hereof;
(v) this Project Agreement and the Implementing Agreements (when executed and delivered) to which Project Co is a party have been duly authorized, executed, and delivered by Project Co and constitute legal, valid, and binding obligations of Project Co, enforceable against Project Co in accordance with their respective terms, subject only to:
(A) limitations with respect to the enforcement of remedies by bankruptcy, insolvency, moratorium, winding-up, arrangement, reorganization, fraudulent preference and conveyance and other laws of general application affecting the enforcement of creditors’ rights generally; and
(B) general equitable principles and the fact that the availability of equitable remedies is in the discretion of a court and that a court may stay proceedings or the execution of judgments;
(vi) the authorization, execution, delivery and performance by Project Co of this Project Agreement and the Implementing Agreements to which it is a party does not violate or conflict with, or constitute a default under:
(A) its constating or organizational documents or any unanimous shareholders agreement or similar rights agreement binding on Project Co;
(B) any Applicable Law; or
(C) any covenant, contract, instrument, agreement or understanding to which it is a party or by which it or any of its properties or assets is bound or affected;
(vii) Project Co is an Affiliate of each of the Contractor and the Construction Guarantor;
(viii) no Project Co Event of Default has occurred and is continuing;
(ix) all of the information regarding Project Co set out in Schedule 4 – Project Co Information, is true and correct in all material respects;
(x) there are no actions, suits, proceedings, or investigations pending or, to the knowledge of its senior management, threatened against Project Co or any Project Co Party, at law or in equity, before any Governmental Authority or arbitral body (whether or not covered by insurance) that individually or in the aggregate could result in any material adverse effect on the business, properties, or assets, or the condition, financial or otherwise, of Project Co or in any impairment of its ability to perform its obligations under this Project Agreement or any Implementing Agreements to which it is a party, and Project Co has no knowledge of any violation or default with respect to any order, writ, injunction or decree of any Governmental Authority or arbitral body that would result in any such material adverse effect or impairment;
(xi) Project Co has carefully reviewed the whole of this Project Agreement, including all of the Contract Documents, and all other documents made available to Project Co by or on behalf of Owner, and, to Project Co’s knowledge, nothing contained herein or therein inhibits or prevents Project Co from completing the Work in accordance with this Project Agreement in a good and safe manner so as to achieve and satisfy the requirements of this Project Agreement;
(xii) Project Co is able to meet its obligations as they generally become due;
(xiii) Project Co is registered under Division V of Part IX of the Excise Tax Act (Canada) and has been assigned GST/HST Number [REDACTED];
(xiv) the Scheduled Substantial Completion Date is a realistic date and is achievable by Project Co performing the Work in accordance with this Project Agreement;
(xv) Project Co and the Project Co Parties, collectively, have extensive experience and are knowledgeable in the design, construction and maintenance of light rail transit projects and have extensive experience in the construction of health facilities highways and other public buildings roads similar to the Project in scale, scope, type and complexity and have the necessary high degree of expertise required ability, experience, skill and experience capacity to perform the activities within Amended and Restated Project Agreement Ottawa Light Rail Transit Project REDACTED Execution Version CONFIDENTIAL AND PROPRIETARY Page 17 CAN: 26350049.2 BD-#30398459-v2 the Project Scope in a timely and professional manner as set out in this Project Agreement including, without limitation, the services required by the Contract Documents, to review and interpret the Contract Documents and to complete the Highway Work in accordance with the standard of care set out in Section 11.2(a)(viii);
(xvi) the manager or supervisory personnel Project Co has assigned to the Project are highly experienced;
(xvii) Project Co has a sufficient staff of qualified and competent personnel to replace its designated supervisors, subject to Owner’s approval, in the event of death, incapacity or resignation;
(xviii) Project Co has conducted inspections of the Site during the Request for Proposals process and an investigation and examination of the Contract Documents, and any other documents made available to Project Co by Owner (which include, to the extent made available to Project Co by Owner, equipment lists, a legal description of the Site, copies of any registered and unregistered agreements affecting the Site, results of tests, reports of independent testing agencies and surveys and documents indicating the location of Utilities and other structures to the extent obtained by Owner, information regarding the critical requirements to maintain the operations of the Existing Facility, hospital protocols and rules and regulations, if any, including the Site Background Reports and the Contract Documents referred to in Section 11.7(c) so as to ascertain the nature or location of the Work and the Site, the physical conditions of the Site, the interface with the Existing Facility and protocols, rules and regulations if any, possible delays in commencing the Work, conditions relating to the transportation, handling and storage of materials and availability of labour and the character and availability of equipment, materials and facilities needed to perform the Work and to identify any Design Issues. Project Co has delivered to the Consultant requests for information in respect of all questions arising out of the foregoing inspections, investigations and examinations and in respect of each Design Issue identified. Based on this review, Project Co has established a Project Co Design Contingency adequate, in its judgement, to fund any change or delay cost that may arise as a result of any further Design Issue that may be identified and properly characterized as a Project Co Design Issue;
(xix) Project Co has sufficient expertise available to it with the appropriate skills to review the Contract Documents in accordance with the standard of care set out in Section 11.2(a)(viii);
(xx) Project Co has solicited bids from and will award Subcontracts for the Approved Subcontractor Work only to the applicable Approved Subcontractors and has not solicited bids from and will not award Subcontracts for the Approved Subcontractor Work except to the applicable Approved Subcontractors; and
(xxi) Project Co has secured the Financing and is in a position to implement the Financing on or before the Financial Close Target Date, subject to the satisfaction of reasonable conditions that are customary in closing financing for projects similar to the Project.in
Appears in 1 contract
Samples: Project Agreement
Project Co Representations and Warranties. (a) Project Co represents and warrants to Owner Hospital that as of at the date of this Project Agreement:
(i) Project Co is a limited liability partnership formed and validly existing under the laws of the Province of Ontario, and has all the requisite power and authority to own, lease and operate its properties and assets, to carry on its business as it is currently being conducted, and to enter into this Project Agreement and any Implementing Agreements to which it is a party and to perform its obligations hereunder and thereunder;
(ii) EllisDon - LPF (Sudbury) GP Inc. is a corporation incorporated and validly existing under the laws of Albertathe Province of Ontario, is in good standing with the Registrar Ministry of Corporations Government Services of Alberta Ontario with respect to the filing of annual returns, and has all the requisite corporate power and authority to own, lease and operate its properties and assets, to carry on its business as it is currently being conducted, and to enter into this Project Agreement and the any Implementing Agreements to which it is a party, party and to perform its obligations hereunder and thereunder;
(ii) thereunder in its capacity as general partner of Project Co has the requisite power, authority and corporate capacity to execute and deliver and perform this Project Agreement and the Implementing Agreements to which it is a party, and to do all acts and things, and execute, deliver and perform all other agreements, instruments, undertakings and documents as are required by this Project Agreement to be done, executed, delivered or performedCo;
(iii) Project Co has obtained all necessary Project Co Permits, Licences and Approvals required to commence the Work;
(iv) no steps or proceedings have been taken or are pending to supersede, repeal or amend its constating documents, articles or articles, by-laws or any shareholders agreement in a manner that would materially impair or limit its ability to perform its obligations under this Project Agreement or any of the Implementing Agreements to which it is a party, party and such documents and agreements they are in full force and effect as of the date hereof;
(viv) this Project Agreement and the any Implementing Agreements (when executed and delivered) to which Project Co it is a party have been duly authorized, executed, and delivered by Project Co and constitute legal, valid, and binding obligations of Project Co, enforceable against Project Co in accordance with their respective terms, subject only to:
(A) limitations with respect to the enforcement of remedies by bankruptcy, insolvency, moratorium, winding-up, arrangement, reorganization, fraudulent preference and conveyance and other laws of general application affecting the enforcement of creditors’ rights generally; and
(B) general equitable principles and the fact that the availability of equitable remedies is in the discretion of a court and that a court may stay proceedings or the execution of judgments;
(viv) the authorization, execution, delivery delivery, and performance by Project Co of this Project Agreement and the any Implementing Agreements to which it is a party does not and will not violate or conflict with, or constitute a default under:
(A) its constating or organizational documents or any unanimous shareholders agreement or similar rights agreement binding on Project Co;
(B) any Applicable Law; or
(C) any covenant, contract, instrument, instrument or agreement or understanding to which it is a party or by which it or any of its properties or assets is bound or affected;
(vii) Project Co is an Affiliate of each of the Contractor and the Construction Guarantor;
(viii) no Project Co Event of Default has occurred and is continuing;
(ix) all of the information regarding Project Co set out in Schedule 4 – Project Co Information, is true and correct in all material respects;
(xvi) there are are, to the knowledge of its senior management, no actions, suits, proceedings, or investigations pending or, to the knowledge of its senior management, or threatened against Project Co or any Project Co Party, at law or in equity, equity before any Governmental Authority or arbitral body (whether or not covered by insurance) that individually or in the aggregate could result in any material adverse effect on the business, properties, or assets, assets or the condition, financial or otherwise, of Project Co or in any impairment of its ability to perform its obligations under this Project Agreement or and any Implementing Agreements to which it is a party, and Project Co has no knowledge of any violation or default with respect to any order, writ, injunction decision, injunction, or decree of any Governmental Authority or arbitral body that would could result in any such material adverse effect or impairment;
(xi) Project Co has carefully reviewed the whole of this Project Agreement, including all of the Contract Documents, and all other documents made available to Project Co by or on behalf of Owner, and, to Project Co’s knowledge, nothing contained herein or therein inhibits or prevents Project Co from completing the Work in accordance with this Project Agreement in a good and safe manner so as to achieve and satisfy the requirements of this Project Agreement;
(xiivii) Project Co is able to meet its obligations as they generally become due;; and
(xiiiviii) Project Co is registered under Division V of Part IX of the Excise Tax Act (Canada) and has been assigned GST/HST Number [REDACTED];
(xiv) the Scheduled Substantial Completion Date is a realistic date and is achievable by Project Co performing the Work in accordance with this Project Agreement;
(xv) Project Co and the Project Co Parties, collectively, have extensive experience in the construction of health facilities and other public buildings and have the necessary high degree of expertise and experience to perform the services required by the Contract Documents, to review and interpret the Contract Documents and to complete the Work in accordance with the standard of care set out in Section 11.2(a)(viii);
(xvi) the manager or supervisory personnel Project Co has assigned to the Project are highly experienced;
(xvii) Project Co has a sufficient staff of qualified and competent personnel to replace its designated supervisors, subject to Owner’s approval, in the event of death, incapacity or resignation;
(xviii) Project Co has conducted inspections of the Site during the Request for Proposals process and an investigation and examination of the Contract Documents, and any other documents made available to Project Co by Owner (which include, to the extent made available to Project Co by Owner, equipment lists, a legal description of the Site, copies of any registered and unregistered agreements affecting the Site, results of tests, reports of independent testing agencies and surveys and documents indicating the location of Utilities and other structures to the extent obtained by Owner, information regarding the critical requirements to maintain the operations of the Existing Facility, hospital protocols and rules and regulations, if any, including the Site Background Reports and the Contract Documents referred to in Section 11.7(c) so as to ascertain the nature or location of the Work and the Site, the physical conditions of the Site, the interface with the Existing Facility and protocols, rules and regulations if any, possible delays in commencing the Work, conditions relating to the transportation, handling and storage of materials and availability of labour and the character and availability of equipment, materials and facilities needed to perform the Work and to identify any Design Issues. Project Co has delivered to the Consultant requests for information in respect of all questions arising out of the foregoing inspections, investigations and examinations and in respect of each Design Issue identified. Based on this review, Project Co has established a Project Co Design Contingency adequate, in its judgement, to fund any change or delay cost that may arise as a result of any further Design Issue that may be identified and properly characterized as a Project Co Design Issue;
(xix) Project Co has sufficient expertise available to it with the appropriate skills to review the Contract Documents in accordance with the standard of care set out in Section 11.2(a)(viii);
(xx) Project Co has solicited bids from and will award Subcontracts for the Approved Subcontractor Work only to the applicable Approved Subcontractors and has not solicited bids from and will not award Subcontracts for the Approved Subcontractor Work except to the applicable Approved Subcontractors; and
(xxi) Project Co has secured the Financing and is in a position to implement the Financing on or before the Financial Close Target Date, subject to the satisfaction of reasonable conditions that are customary in closing financing for projects similar to the Project.
Appears in 1 contract
Samples: Project Agreement
Project Co Representations and Warranties. (a) Project Co represents and warrants to Owner Hospital that as of at the date of this Project Agreement:
(ia) Project Co is a limited liability corporation incorporated and duly organized, validly existing and in good standing under the laws of Albertathe jurisdiction of its organization, is in good standing with the Registrar Ministry of Corporations Government Services of Alberta Ontario with respect to the filing of annual returns, and has all the requisite corporate power and authority to own, lease and operate its properties and assets, to carry on its business as it is currently being conducted, and to enter into this Project Agreement and the any Implementing Agreements to which it is a party, party and to perform its obligations hereunder and thereunder;
(ii) Project Co has the requisite power, authority and corporate capacity to execute and deliver and perform this Project Agreement and the Implementing Agreements to which it is a party, and to do all acts and things, and execute, deliver and perform all other agreements, instruments, undertakings and documents as are required by this Project Agreement to be done, executed, delivered or performed;
(iii) Project Co has obtained all necessary Project Co Permits, Licences and Approvals required to commence the Work;
(ivb) no steps or proceedings have been taken or are pending to supersede, repeal or amend its constating documents, articles or articles, by-laws or any shareholders agreement in a manner that would materially impair or limit its ability to perform its obligations under this Project Agreement or any of the Implementing Agreements to which it is a party, party and such documents and agreements they are in full force and effect as of the date hereof;
(vc) this Project Agreement and the any Implementing Agreements (when executed and delivered) to which Project Co it is a party have been duly authorized, executed, and delivered by Project Co and constitute legal, valid, and binding obligations of Project Co, enforceable against Project Co in accordance with their respective terms, subject only to:
(Ai) limitations with respect to the enforcement of remedies by bankruptcy, insolvency, moratorium, winding-up, arrangement, reorganization, fraudulent preference and conveyance and other laws of general application affecting the enforcement of creditors’ rights generally; and
(Bii) general equitable principles and the fact that the availability of equitable remedies is in the discretion of a court and that a court may stay proceedings or the execution of judgments;
(vid) the authorization, execution, delivery delivery, and performance by Project Co of this Project Agreement and the any Implementing Agreements to which it is a party does not and will not violate or conflict with, or constitute a default under:
(Ai) its constating or organizational documents or any unanimous shareholders agreement or similar rights agreement binding on Project Co;
(Bii) any Applicable Law; or
(Ciii) any covenant, contract, instrument, instrument or agreement or understanding to which it is a party or by which it or any of its properties or assets is bound or affected;
(vii) Project Co is an Affiliate of each of the Contractor and the Construction Guarantor;
(viii) no Project Co Event of Default has occurred and is continuing;
(ix) all of the information regarding Project Co set out in Schedule 4 – Project Co Information, is true and correct in all material respects;
(xe) there are are, to the knowledge of its senior management, no actions, suits, proceedings, or investigations pending or, to the knowledge of its senior management, or threatened against Project Co or any Project Co Party, at law or in equity, equity before any Governmental Authority or arbitral body (whether or not covered by insurance) that individually or in the aggregate could result in any material materially adverse effect on the business, properties, or assets, assets or the condition, financial or otherwise, of Project Co or in any impairment of its ability to perform its obligations under this Project Agreement or and any Implementing Agreements to which it is a party, and Project Co has no knowledge of any violation or default with respect to any order, writ, injunction decision, injunction, or decree of any Governmental Authority or arbitral body that would could result in any such material materially adverse effect or impairment;
(xi) Project Co has carefully reviewed the whole of this Project Agreement, including all of the Contract Documents, and all other documents made available to Project Co by or on behalf of Owner, and, to Project Co’s knowledge, nothing contained herein or therein inhibits or prevents Project Co from completing the Work in accordance with this Project Agreement in a good and safe manner so as to achieve and satisfy the requirements of this Project Agreement;
(xiif) Project Co is able to meet its obligations as they generally become due;; and
(xiiig) Project Co is registered under Division V of Part IX of the Excise Tax Act (Canada) and has been assigned GST/HST Number [REDACTED];
(xiv) the Scheduled Substantial Completion Date is a realistic date and is achievable by Project Co performing the Work in accordance with this Project Agreement;
(xv) Project Co and the Project Co Parties, collectively, have extensive experience in the construction of health facilities and other public buildings and have the necessary high degree of expertise and experience to perform the services required by the Contract Documents, to review and interpret the Contract Documents and to complete the Work in accordance with the standard of care set out in Section 11.2(a)(viii);
(xvi) the manager or supervisory personnel Project Co has assigned to the Project are highly experienced;
(xvii) Project Co has a sufficient staff of qualified and competent personnel to replace its designated supervisors, subject to Owner’s approval, in the event of death, incapacity or resignation;
(xviii) Project Co has conducted inspections of the Site during the Request for Proposals process and an investigation and examination of the Contract Documents, and any other documents made available to Project Co by Owner (which include, to the extent made available to Project Co by Owner, equipment lists, a legal description of the Site, copies of any registered and unregistered agreements affecting the Site, results of tests, reports of independent testing agencies and surveys and documents indicating the location of Utilities and other structures to the extent obtained by Owner, information regarding the critical requirements to maintain the operations of the Existing Facility, hospital protocols and rules and regulations, if any, including the Site Background Reports and the Contract Documents referred to in Section 11.7(c) so as to ascertain the nature or location of the Work and the Site, the physical conditions of the Site, the interface with the Existing Facility and protocols, rules and regulations if any, possible delays in commencing the Work, conditions relating to the transportation, handling and storage of materials and availability of labour and the character and availability of equipment, materials and facilities needed to perform the Work and to identify any Design Issues. Project Co has delivered to the Consultant requests for information in respect of all questions arising out of the foregoing inspections, investigations and examinations and in respect of each Design Issue identified. Based on this review, Project Co has established a Project Co Design Contingency adequate, in its judgement, to fund any change or delay cost that may arise as a result of any further Design Issue that may be identified and properly characterized as a Project Co Design Issue;
(xix) Project Co has sufficient expertise available to it with the appropriate skills to review the Contract Documents in accordance with the standard of care set out in Section 11.2(a)(viii);
(xx) Project Co has solicited bids from and will award Subcontracts for the Approved Subcontractor Work only to the applicable Approved Subcontractors and has not solicited bids from and will not award Subcontracts for the Approved Subcontractor Work except to the applicable Approved Subcontractors; and
(xxi) Project Co has secured the Financing and is in a position to implement the Financing on or before the Financial Close Target Date, subject to the satisfaction of reasonable conditions that are customary in closing financing for projects similar to the Project.
Appears in 1 contract
Samples: Project Agreement
Project Co Representations and Warranties. (a) Project Co represents and warrants to Owner Hospital that as of at the date of this Project Agreement:
(i) Project Co is a limited liability corporation incorporated and validly existing under the laws of Albertathe Province of Ontario, is in good standing with the Registrar Ministry of Corporations Government Services of Alberta Ontario with respect to the filing of annual returns, and has all the requisite corporate power and authority to own, lease and operate its properties and assets, to carry on its business as it is currently being conducted, and to enter into this Project Agreement and the any Implementing Agreements to which it is a party, party and to perform its obligations hereunder and thereunder;
(ii) Project Co has the requisite power, authority and corporate capacity to execute and deliver and perform this Project Agreement and the Implementing Agreements to which it is a party, and to do all acts and things, and execute, deliver and perform all other agreements, instruments, undertakings and documents as are required by this Project Agreement to be done, executed, delivered or performed;
(iii) Project Co has obtained all necessary Project Co Permits, Licences and Approvals required to commence the Work;
(iv) no steps or proceedings have been taken or are pending to supersede, repeal or amend its constating documents, articles or articles, by-laws or any shareholders agreement in a manner that would materially impair or limit its ability to perform its obligations under this Project Agreement or any of the Implementing Agreements to which it is a party, party and such documents and agreements they are in full force and effect as of the date hereof;
(viii) this Project Agreement and the any Implementing Agreements (when executed and delivered) to which Project Co it is a party have been duly authorized, executed, and delivered by Project Co and constitute legal, valid, and binding obligations of Project Co, enforceable against Project Co in accordance with their respective terms, subject only to:
(A) limitations with respect to the enforcement of remedies by bankruptcy, insolvency, moratorium, winding-up, arrangement, reorganization, fraudulent preference and conveyance and other laws of general application affecting the enforcement of creditors’ rights generally; and
(B) general equitable principles and the fact that the availability of equitable remedies is in the discretion of a court and that a court may stay proceedings or the execution of judgments;
(viiv) the authorization, execution, delivery delivery, and performance by Project Co of this Project Agreement and the any Implementing Agreements to which it is a party does not and will not violate or conflict with, or constitute a default under:
(A) its constating or organizational documents or any unanimous shareholders agreement or similar rights agreement binding on Project Co;
(B) any Applicable Law; or
(C) any covenant, contract, instrument, instrument or agreement or understanding to which it is a party or by which it or any of its properties or assets is bound or affected;
(vii) Project Co is an Affiliate of each of the Contractor and the Construction Guarantor;
(viii) no Project Co Event of Default has occurred and is continuing;
(ix) all of the information regarding Project Co set out in Schedule 4 – Project Co Information, is true and correct in all material respects;
(xv) there are are, to the knowledge of its senior management, no actions, suits, proceedings, or investigations pending or, to the knowledge of its senior management, or threatened against Project Co or any Project Co Party, at law or in equity, equity before any Governmental Authority or arbitral body (whether or not covered by insurance) that individually or in the aggregate could result in any material adverse effect on the business, properties, or assets, assets or the condition, financial or otherwise, of Project Co or in any impairment of its ability to perform its obligations under this Project Agreement or and any Implementing Agreements to which it is a party, and Project Co has no knowledge of any violation or default with respect to any order, writ, injunction decision, injunction, or decree of any Governmental Authority or arbitral body that would could result in any such material adverse effect or impairment;
(xi) Project Co has carefully reviewed the whole of this Project Agreement, including all of the Contract Documents, and all other documents made available to Project Co by or on behalf of Owner, and, to Project Co’s knowledge, nothing contained herein or therein inhibits or prevents Project Co from completing the Work in accordance with this Project Agreement in a good and safe manner so as to achieve and satisfy the requirements of this Project Agreement;
(xiivi) Project Co is able to meet its obligations as they generally become due;
(xiiivii) Project Co is registered under Division V of Part IX of the Excise Tax Act (Canada) and has been assigned GST/HST Number [REDACTED];); and
(xiv) the Scheduled Substantial Completion Date is a realistic date and is achievable by Project Co performing the Work in accordance with this Project Agreement;
(xv) Project Co and the Project Co Parties, collectively, have extensive experience in the construction of health facilities and other public buildings and have the necessary high degree of expertise and experience to perform the services required by the Contract Documents, to review and interpret the Contract Documents and to complete the Work in accordance with the standard of care set out in Section 11.2(a)(viii);
(xvi) the manager or supervisory personnel Project Co has assigned to the Project are highly experienced;
(xviiviii) Project Co has a sufficient staff of qualified and competent personnel to replace its designated supervisors, obtained an indicative term sheet which is subject to Owner’s approval, in the event of death, incapacity or resignation;
(xviii) Project Co has conducted inspections of the Site during the Request for Proposals process various terms and an investigation conditions and examination of the Contract Documents, and any other documents made available is diligently proceeding to Project Co by Owner (which include, to the extent made available to Project Co by Owner, equipment lists, a legal description of the Site, copies of any registered and unregistered agreements affecting the Site, results of tests, reports of independent testing agencies and surveys and documents indicating the location of Utilities and other structures to the extent obtained by Owner, information regarding the critical requirements to maintain the operations of the Existing Facility, hospital protocols and rules and regulations, if any, including the Site Background Reports and the Contract Documents referred to in Section 11.7(c) so as to ascertain the nature or location of the Work and the Site, the physical conditions of the Site, the interface with the Existing Facility and protocols, rules and regulations if any, possible delays in commencing the Work, conditions relating to the transportation, handling and storage of materials and availability of labour and the character and availability of equipment, materials and facilities needed to perform the Work and to identify any Design Issues. Project Co has delivered to the Consultant requests for information in respect of all questions arising out of the foregoing inspections, investigations and examinations and in respect of each Design Issue identified. Based on this review, Project Co has established a Project Co Design Contingency adequate, in its judgement, to fund any change or delay cost that may arise as a result of any further Design Issue that may be identified and properly characterized as a Project Co Design Issue;
(xix) Project Co has sufficient expertise available to it with the appropriate skills to review the Contract Documents in accordance with the standard of care set out in Section 11.2(a)(viii);
(xx) Project Co has solicited bids from and will award Subcontracts for the Approved Subcontractor Work only to the applicable Approved Subcontractors and has not solicited bids from and will not award Subcontracts for the Approved Subcontractor Work except to the applicable Approved Subcontractors; and
(xxi) Project Co has secured arrange the Financing and is in order to be in a position to implement the Financing on or before the Financial Close Target Date, Date subject to the satisfaction or waiver of reasonable the Contracting Parties Conditions or any conditions that are customary in closing financing for projects similar to favour of the ProjectLender.
Appears in 1 contract
Samples: Project Agreement
Project Co Representations and Warranties. (a) Project Co represents and warrants to Owner JBH that as of the date of this Project Agreement:
(i) Project Co is a limited liability corporation incorporated and validly existing under the laws of Alberta, is in good standing with the Registrar of Corporations of Alberta with respect to the filing of annual returns, and [REDACTED] has all the requisite corporate power and authority to own, lease and operate own its properties and assets, to carry on its business as it is currently being conducted, and to enter into this Project Agreement and the Implementing Agreements to which it is a party, and to perform its obligations hereunder and thereunderhereunder;
(ii) Project Co and the Project Co Parties, collectively, have extensive experience and are knowledgeable in the design and construction of hospital facilities and have the required ability, experience, skill and capacity to perform the Works in a timely and professional manner as set out in this Project Agreement;
(iii) Project Co has the requisite power, authority and corporate capacity to execute and deliver and perform this Project Agreement and the Implementing Agreements to which it is a partyAgreement, and to do all acts and things, and execute, deliver and perform all other agreements, instruments, undertakings and documents as are required by this Project Agreement to be done, executed, delivered or performed;
(iii) Project Co has obtained all necessary Project Co Permits, Licences and Approvals required to commence the Work;
(iv) no steps or proceedings have been taken or are pending to supersede, repeal supersede or amend its the constating documents, articles or by-laws or any shareholders agreement of Project Co in a manner that would materially impair or limit its ability to perform its the obligations of Project Co under this Project Agreement or any of the Implementing Agreements to which it is a party, and such documents and agreements are in full force and effect as of the date hereofAgreement;
(v) this Project Agreement and the Implementing Agreements (when executed and delivered) to which Project Co is a party have has been duly authorized, executed, and delivered by Project Co and constitute constitutes a legal, valid, and binding obligations obligation of Project Co, enforceable against Project Co in accordance with their respective its terms, subject only to:
(A) limitations with respect to the enforcement of remedies by bankruptcy, insolvency, moratorium, winding-up, arrangement, reorganization, fraudulent preference and conveyance and other laws of general application affecting the enforcement of creditors’ rights generally; and
(B) general equitable principles and the fact that the availability of equitable remedies is in the discretion of a court and that a court may stay proceedings or the execution of judgments;
(vi) the authorization, execution, delivery delivery, and performance by Project Co of this Project Agreement does not and the Implementing Agreements to which it is a party does will not violate or conflict with, or constitute a default under:
(A) its constating constating, formation or organizational documents or documents, including any unanimous shareholders agreement or similar rights agreement binding on Project Coby- laws;
(B) any Applicable Law; or
(C) any covenant, contract, instrumentagreement, agreement or understanding to which it is a party or by which it or any of its properties or assets is bound or affected;
(vii) Project Co is an Affiliate of each of the Contractor and the Construction Guarantor;
(viii) no Project Co Event of Default has occurred and is continuing;
(ixviii) all of the information regarding Project Co set out in Schedule 4 31 – Project Co Information, Information is true and correct in all material respects;
(xix) there are no actions, suits, proceedings, or investigations pending or, to the knowledge of its senior management, or threatened against Project Co or or, to Project Co’s knowledge, any Project Co Party, Party at law or in equity, equity before any Governmental Authority or arbitral body (whether or not covered by insurance) that individually or in the aggregate could result in any material adverse effect on the business, properties, or assets, or the condition, financial or otherwise, of Project Co or in any impairment of its ability to perform its obligations under this Project Agreement or any Implementing Agreements to which it is a partyAgreement, and Project Co has no knowledge of any violation or default with respect to any order, writ, injunction injunction, or decree of any Governmental Authority or arbitral body that would could result in any such material adverse effect or impairment;
(xix) Project Co has carefully reviewed the whole of this Project Agreement, including all of the Contract Documents, and all other documents made available to Project Co by or on behalf of OwnerJBH, and, to Project Co’s knowledge, nothing contained herein or therein inhibits or prevents Project Co from completing the Work Works or performing the Works in accordance with this Project Agreement in a good and safe manner so as to achieve and satisfy the requirements of this Project Agreement;
(xiixi) Project Co is able to meet its obligations as they generally become due;
(xiiixii) Project Co is registered under Division V of Part IX of the Excise Tax Act (Canada) and has been assigned GST/its HST Number registration number is [REDACTED];
(xiii) the Scheduled Tower Interim Completion Date is a realistic date and is achievable by Project Co performing the Works in accordance with this Project Agreement;
(xiv) the Scheduled Substantial Completion Date is a realistic date and is achievable by Project Co performing the Work Works in accordance with this Project Agreement;
(xv) Project Co and the Project Co Parties, collectively, have extensive experience in the construction of health facilities and other public buildings and have the necessary high degree of expertise and experience to perform the services required by the Contract Documents, to review and interpret the Contract Documents and to complete the Work in accordance with the standard of care set out in Section 11.2(a)(viii)is not a Non-Resident;
(xvi) Project Co has obtained all necessary Project Co Permits, Licences, Approvals and Agreements required to commence the Works;
(xvii) the manager or supervisory personnel Project Co has assigned to the Project are highly experienced;
(xviixviii) Project Co has a sufficient staff of qualified and competent personnel to replace its designated supervisors, subject to OwnerJBH’s approval, in the event of death, incapacity or resignation;
(xviiixix) Project Co has and certain of the Project Co Parties have conducted inspections of the Site during the Request for Proposals process prior to Commercial Close and an investigation and examination of the Contract DocumentsProject Agreement, the Background Information and any other documents made available to Project Co by Owner (which include, to the extent made available to Project Co by Owner, equipment lists, a legal description of the Site, copies of any registered and unregistered agreements affecting the Site, results of tests, reports of independent testing agencies and surveys and documents indicating the location of Utilities and other structures to the extent obtained by Owner, information regarding the critical requirements to maintain the operations of the Existing Facility, hospital protocols and rules and regulations, if any, including the Site Background Reports and the Contract Documents referred to in Section 11.7(c) JBH so as to ascertain the nature or location of the Work Works and the Site, the physical conditions of the Site, the interface with the Existing Facility Facilities and protocols, rules and regulations if any, possible delays in commencing the Work, conditions relating to the transportation, handling and storage of materials and availability of labour and the character and availability of equipment, materials and facilities needed to perform the Work and to identify any Design Issues. Project Co has delivered to the Consultant requests for information in respect of all questions arising out of the foregoing inspections, investigations and examinations and in respect of each Design Issue identified. Based on this review, Project Co has established a Project Co Design Contingency adequate, in its judgement, to fund any change or delay cost that may arise as a result of any further Design Issue that may be identified and properly characterized as a Project Co Design Issue;
(xix) Project Co has sufficient expertise available to it with the appropriate skills to review the Contract Documents in accordance with the standard of care set out in Section 11.2(a)(viii)Works;
(xx) Project Co has solicited bids from and will award Subcontracts for the Approved Subcontractor Work only to the applicable Approved Subcontractors and has not solicited bids from and will not award Subcontracts for the Approved Subcontractor Work except to the applicable Approved Subcontractors; and
(xxi) Project Co has secured the Financing and is in a position to implement complete the Financing on or before the Financial Close Target Date, subject to the satisfaction of reasonable conditions that are customary in closing financing for projects similar to the Project;
(xxi) No Restricted Person has Direct or Indirect Power or Control over any member of the Project Co Group in relation to the decisions, management, actions or policies of Project Co or in relation to the operation, management and ownership of the Project;
(xxii) To the knowledge of Project Co, no Restricted Person has directly or indirectly, an Economic Interest in Project Co or the Project; and
(xxiii) The Construction Contractor is in possession of the Health and Safety Certification as required under this Project Agreement, and the Construction Contractor has the ability to maintain such Health and Safety Certification during the Project Term in accordance with its terms, provisions and conditions.
Appears in 1 contract
Samples: Project Agreement
Project Co Representations and Warranties. (a) Project Co represents and warrants to Owner the College that as of the date of this Project Agreement:
(i) Project Co is a limited liability corporation incorporated and validly existing under the laws of Alberta, is in good standing with the Registrar of Corporations of Alberta with respect to the filing of annual returns, and has [REDACTED]has all the requisite corporate power and authority to own, lease and operate own its properties and assets, to carry on its business as it is currently being conducted, and to enter into this Project Agreement and the Implementing Agreements to which it is a party, and to perform its obligations hereunder and thereunderhereunder;
(ii) Project Co and the Project Co Parties, collectively, have extensive experience and are knowledgeable in the design and construction of post-secondary education facilities and have the required ability, experience, skill and capacity to perform the Works in a timely and professional manner as set out in this Project Agreement;
(iii) Project Co has the requisite power, authority and corporate capacity to execute and deliver and perform this Project Agreement and the Implementing Agreements to which it is a partyAgreement, and to do all acts and things, and execute, deliver and perform all other agreements, instruments, undertakings and documents as are required by this Project Agreement to be done, executed, delivered or performed;
(iii) Project Co has obtained all necessary Project Co Permits, Licences and Approvals required to commence the Work;
(iv) no steps or proceedings have been taken or are pending to supersede, repeal supersede or amend its the constating documents, articles or by-laws or any shareholders agreement of Project Co in a manner that would materially impair or limit its ability to perform its the obligations of Project Co under this Project Agreement or any of the Implementing Agreements to which it is a party, and such documents and agreements are in full force and effect as of the date hereofAgreement;
(v) this Project Agreement and the Implementing Agreements (when executed and delivered) to which Project Co is a party have has been duly authorized, executed, and delivered by Project Co and constitute constitutes a legal, valid, and binding obligations obligation of Project Co, enforceable against Project Co in accordance with their respective its terms, subject only to:
(A) limitations with respect to the enforcement of remedies by bankruptcy, insolvency, moratorium, winding-up, arrangement, reorganization, fraudulent preference and conveyance and other laws of general application affecting the enforcement of creditors’ rights generally; and
(B) general equitable principles and the fact that the availability of equitable remedies is in the discretion of a court and that a court may stay proceedings or the execution of judgments;
(vi) the authorization, execution, delivery delivery, and performance by Project Co of this Project Agreement does not and the Implementing Agreements to which it is a party does will not violate or conflict with, or constitute a default under:
(A) its constating constating, formation or organizational documents or documents, including any unanimous shareholders agreement or similar rights agreement binding on Project Coby- laws;
(B) any Applicable Law; or
(C) any covenant, contract, instrumentagreement, agreement or understanding to which it is a party or by which it or any of its properties or assets is bound or affected;
(vii) Project Co is an Affiliate of each of the Contractor and the Construction Guarantor;
(viii) no Project Co Event of Default has occurred and is continuing;
(ixviii) all of the information regarding Project Co set out in Schedule 4 31 – Project Co Information, Information is true and correct in all material respects;
(xix) there are no actions, suits, proceedings, or investigations pending or, to the knowledge of its senior management, or threatened against Project Co or or, to Project Co’s knowledge, any Project Co Party, Party at law or in equity, equity before any Governmental Authority or arbitral body (whether or not covered by insurance) that individually or in the aggregate could result in any material adverse effect on the business, properties, or assets, or the condition, financial or otherwise, of Project Co or in any impairment of its ability to perform its obligations under this Project Agreement or any Implementing Agreements to which it is a partyAgreement, and Project Co has no knowledge of any violation or default with respect to any order, writ, injunction injunction, or decree of any Governmental Authority or arbitral body that would could result in any such material adverse effect or impairment;
(xix) Project Co has carefully reviewed the whole of this Project Agreement, including all of the Contract Documents, and all other documents made available to Project Co by or on behalf of Ownerthe College, and, to Project Co’s knowledge, nothing contained herein or therein inhibits or prevents Project Co from completing the Work Works or performing the Works in accordance with this Project Agreement in a good and safe manner so as to achieve and satisfy the requirements of this Project Agreement;
(xiixi) Project Co is able to meet its obligations as they generally become due;
(xiiixii) Project Co is registered under Division V of Part IX of the Excise Tax Act (Canada) and has been assigned GST/its HST Number registration number is [REDACTED];
(xivxiii) the Scheduled Substantial Completion Date is a realistic date and is achievable by Project Co performing the Work Works in accordance with this Project Agreement;
(xiv) Project Co is not a Non-Resident;
(xv) Project Co and the has obtained all necessary Project Co PartiesPermits, collectivelyLicences, have extensive experience in Approvals and Agreements required to commence the construction of health facilities and other public buildings and have the necessary high degree of expertise and experience to perform the services required by the Contract Documents, to review and interpret the Contract Documents and to complete the Work in accordance with the standard of care set out in Section 11.2(a)(viii)Works;
(xvi) the manager or supervisory personnel Project Co has assigned to the Project are highly experienced;
(xvii) Project Co has a sufficient staff of qualified and competent personnel to replace its designated supervisors, subject to Ownerthe College’s approval, in the event of death, incapacity or resignation;
(xviii) Project Co has and certain of the Project Co Parties have conducted inspections of the Site during the Request for Proposals process Lands prior to Commercial Close and an investigation and examination of the Contract DocumentsProject Agreement, the Background Information and any other documents made available to Project Co by Owner (which include, to the extent made available to Project Co by Owner, equipment lists, a legal description of the Site, copies of any registered and unregistered agreements affecting the Site, results of tests, reports of independent testing agencies and surveys and documents indicating the location of Utilities and other structures to the extent obtained by Owner, information regarding the critical requirements to maintain the operations of the Existing Facility, hospital protocols and rules and regulations, if any, including the Site Background Reports and the Contract Documents referred to in Section 11.7(c) College so as to ascertain the nature or location of the Work Works and the SiteLands, the physical conditions of the SiteLands, the interface with the Existing Facility Facilities and protocols, rules and regulations if any, possible delays in commencing the Work, conditions relating to the transportation, handling and storage of materials and availability of labour and the character and availability of equipment, materials and facilities needed to perform the Work and to identify any Design Issues. Project Co has delivered to the Consultant requests for information in respect of all questions arising out of the foregoing inspections, investigations and examinations and in respect of each Design Issue identified. Based on this review, Project Co has established a Project Co Design Contingency adequate, in its judgement, to fund any change or delay cost that may arise as a result of any further Design Issue that may be identified and properly characterized as a Project Co Design IssueWorks;
(xix) Project Co has sufficient expertise available to it with the appropriate skills to review the Contract Documents in accordance with the standard of care set out in Section 11.2(a)(viii);
(xx) Project Co has solicited bids from and will award Subcontracts for the Approved Subcontractor Work only to the applicable Approved Subcontractors and has not solicited bids from and will not award Subcontracts for the Approved Subcontractor Work except to the applicable Approved Subcontractors; and
(xxi) Project Co has secured the Financing and is in a position to implement complete the Financing on or before the Financial Close Target Date, subject to the satisfaction of reasonable conditions that are customary in closing financing for projects similar to the Project;
(xx) No Restricted Person has Direct or Indirect Power or Control over any member of the Project Co Group in relation to the decisions, management, actions or policies of Project Co or in relation to the operation, management and ownership of the Project;
(xxi) To the knowledge of Project Co, no Restricted Person has directly or indirectly, an Economic Interest in Project Co or the Project; and
(xxii) The Construction Contractor is in possession of, the Health and Safety Certification as required under this Project Agreement (or has made an application to IHSA for its Health and Safety Certification as required under this Project Agreement) and has the ability to maintain such Health and Safety Certification until the Final Completion Date in accordance with its terms, provisions and conditions.
Appears in 1 contract
Samples: Project Agreement
Project Co Representations and Warranties. (a) Project Co represents and warrants to Owner WCH that as of the date of this Project AgreementCommercial Close:
(i) Project Co is a limited liability corporation incorporated [REDACTED] formed and validly existing under the laws of Alberta, is in good standing with the Registrar Province of Corporations of Alberta with respect to the filing of annual returnsOntario, and has all the requisite corporate power and authority to own, lease and operate own its properties and assets, to carry on its business as it is currently being conducted, and to enter into this Project Agreement and to perform its obligations hereunder;
(ii) [REDACTED] is a [REDACTED] and validly existing under the Implementing Agreements laws of the Province of Ontario, is in good standing with the Ministry of Government Services of Ontario with respect to which the filing of annual reports, and has all the requisite corporate power and authority to own its properties and assets, to carry on its business as it is a partycurrently being conducted, and to enter into this Project Agreement and to perform its obligations hereunder and thereunderin its capacity as a partner of Project Co;
(iiiii) [REDACTED] is a [REDACTED] incorporated and validly existing under the laws of the Province of Ontario, is in good standing with the Ministry of Government Services of Ontario with respect to the filing of annual reports, and has all the requisite corporate power and authority to own its properties and assets, to carry on its business as it is currently being conducted, and to enter into this Project Agreement and to perform its obligations hereunder in its capacity as a partner of Project Co;
(iv) Project Co and the Project Co Parties, collectively, have extensive experience and are knowledgeable in the design, construction and maintenance of hospital facilities and have the required ability, experience, skill and capacity to perform the Project Operations in a timely and professional manner as set out in this Project Agreement;
(v) Project Co has the requisite power, authority and corporate capacity to execute and deliver and perform this Project Agreement and the Implementing Agreements to which it is a partyAgreement, and to do all acts and things, and execute, deliver and perform all other agreements, instruments, undertakings and documents as are required by this Project Agreement to be done, executed, delivered or performed;
(iii) Project Co has obtained all necessary Project Co Permits, Licences and Approvals required to commence the Work;
(ivvi) no steps or proceedings have been taken or are pending to supersede, repeal supersede or amend its the constating documents, articles or by-laws or any shareholders agreement of Project Co in a manner that would materially impair or limit its ability to perform its the obligations of Project Co under this Project Agreement or any of the Implementing Agreements to which it is a party, and such documents and agreements are in full force and effect as of the date hereofAgreement;
(vvii) this Project Agreement and the Implementing Agreements (when executed and delivered) to which Project Co is a party have has been duly authorized, executed, and delivered by Project Co and constitute constitutes a legal, valid, and binding obligations obligation of Project Co, enforceable against Project Co in accordance with their respective its terms, subject only to:
(A) limitations with respect to the enforcement of remedies by bankruptcy, insolvency, moratorium, winding-up, arrangement, reorganization, fraudulent preference and conveyance and other laws of general application affecting the enforcement of creditors’ rights generally; and
(B) general equitable principles and the fact that the availability of equitable remedies is in the discretion of a court and that a court may stay proceedings or the execution of judgments;
(viviii) the authorization, execution, delivery delivery, and performance by Project Co of this Project Agreement does not and the Implementing Agreements to which it is a party does will not violate or conflict with, or constitute a default under:
(A) its constating constating, formation or organizational documents or documents, including any unanimous shareholders agreement or similar rights agreement binding on Project Coby-laws;
(B) any Applicable Law; or
(C) any covenant, contract, instrumentagreement, agreement or understanding to which it is a party or by which it or any of its properties or assets is bound or affected;
(vii) Project Co is an Affiliate of each of the Contractor and the Construction Guarantor;
(viiiix) no Project Co Event of Default has occurred and is continuing;
(ixx) all of the information regarding Project Co set out in Schedule 4 – 31 - Project Co Information, Information is true and correct in all material respects;
(xxi) there are no actions, suits, proceedings, or investigations pending or, to the knowledge of its senior management, or threatened against Project Co or or, to Project Co’s knowledge, any Project Co Party, Party at law or in equity, equity before any Governmental Authority or arbitral body (whether or not covered by insurance) that individually or in the aggregate could result in any material adverse effect on the business, properties, or assets, or the condition, financial or otherwise, of Project Co or in any impairment of its ability to perform its obligations under this Project Agreement or any Implementing Agreements to which it is a partyAgreement, and Project Co has no knowledge of any violation or default with respect to any order, writ, injunction injunction, or decree of any Governmental Authority or arbitral body that would could result in any such material adverse effect or impairment;
(xixii) Project Co has carefully reviewed the whole of this Project Agreement, including all of the Contract Documents, and all other documents made available to Project Co by or on behalf of OwnerWCH, and, to Project Co’s knowledge, nothing contained herein or therein inhibits or prevents Project Co from completing the Work Works or performing the Project Operations in accordance with this Project Agreement in a good and safe manner so as to achieve and satisfy the requirements of this Project Agreement;
(xiixiii) Project Co is able to meet its obligations as they generally become due;
(xiiixiv) Project Co is registered under Division V of Part IX of the Excise Tax Act (Canada) and has been assigned GST/its HST Number [REDACTED]registration number is 80674 4058 RT0001;
(xivxv) The Scheduled Interim Completion date and the Scheduled Substantial Completion Date is a are realistic date dates and is are achievable by Project Co performing the Work Works in accordance with this Project Agreement;
(xv) Project Co and the Project Co Parties, collectively, have extensive experience in the construction of health facilities and other public buildings and have the necessary high degree of expertise and experience to perform the services required by the Contract Documents, to review and interpret the Contract Documents and to complete the Work in accordance with the standard of care set out in Section 11.2(a)(viii);; and
(xvi) the manager or supervisory personnel Project Co has assigned to the Project are highly experienced;
(xvii) Project Co has is not a sufficient staff of qualified and competent personnel to replace its designated supervisors, subject to Owner’s approval, in the event of death, incapacity or resignation;
(xviii) Project Co has conducted inspections of the Site during the Request for Proposals process and an investigation and examination of the Contract Documents, and any other documents made available to Project Co by Owner (which include, to the extent made available to Project Co by Owner, equipment lists, a legal description of the Site, copies of any registered and unregistered agreements affecting the Site, results of tests, reports of independent testing agencies and surveys and documents indicating the location of Utilities and other structures to the extent obtained by Owner, information regarding the critical requirements to maintain the operations of the Existing Facility, hospital protocols and rules and regulations, if any, including the Site Background Reports and the Contract Documents referred to in Section 11.7(c) so as to ascertain the nature or location of the Work and the Site, the physical conditions of the Site, the interface with the Existing Facility and protocols, rules and regulations if any, possible delays in commencing the Work, conditions relating to the transportation, handling and storage of materials and availability of labour and the character and availability of equipment, materials and facilities needed to perform the Work and to identify any Design Issues. Project Co has delivered to the Consultant requests for information in respect of all questions arising out of the foregoing inspections, investigations and examinations and in respect of each Design Issue identified. Based on this review, Project Co has established a Project Co Design Contingency adequate, in its judgement, to fund any change or delay cost that may arise as a result of any further Design Issue that may be identified and properly characterized as a Project Co Design Issue;
(xix) Project Co has sufficient expertise available to it with the appropriate skills to review the Contract Documents in accordance with the standard of care set out in Section 11.2(a)(viii);
(xx) Project Co has solicited bids from and will award Subcontracts for the Approved Subcontractor Work only to the applicable Approved Subcontractors and has not solicited bids from and will not award Subcontracts for the Approved Subcontractor Work except to the applicable Approved Subcontractors; and
(xxi) Project Co has secured the Financing and is in a position to implement the Financing on or before the Financial Close Target Date, subject to the satisfaction of reasonable conditions that are customary in closing financing for projects similar to the ProjectNon-Resident.
Appears in 1 contract
Samples: Project Agreement
Project Co Representations and Warranties. (a) Project Co represents and warrants to Owner the CTC that as of the date of this Project Agreement:
(i) Project Co is a limited liability corporation incorporated and validly existing under the laws of the Province of Alberta, is in good standing with the Registrar Ministry of Corporations Government Services of Alberta with respect to the filing of annual returnsreports, and has all the requisite corporate power and authority to own, lease and operate own its properties and assets, to carry on its business as it is currently being conducted, and to enter into this Project Agreement and the Implementing Agreements to which it is a party, and to perform its obligations hereunder and thereunderhereunder;
(ii) Project Co and the Project Co Parties, collectively, have extensive experience and are knowledgeable in the design and construction of health care facilities and have the required ability, experience, skill and capacity to perform the Works in a timely and professional manner as set out in this Project Agreement;
(iii) Project Co has the requisite power, authority and corporate capacity to execute and deliver and perform this Project Agreement and the Implementing Agreements to which it is a partyAgreement, and to do all acts and things, and execute, deliver and perform all other agreements, instruments, undertakings and documents as are required by this Project Agreement to be done, executed, delivered or performed;
(iii) Project Co has obtained all necessary Project Co Permits, Licences and Approvals required to commence the Work;
(iv) no steps or proceedings have been taken or are pending to supersede, repeal supersede or amend its the constating documents, articles or by-laws or any shareholders agreement of Project Co in a manner that would materially impair or limit its ability to perform its the obligations of Project Co under this Project Agreement or any of the Implementing Agreements to which it is a party, and such documents and agreements are in full force and effect as of the date hereofAgreement;
(v) this Project Agreement and the Implementing Agreements (when executed and delivered) to which Project Co is a party have has been duly authorized, executed, and delivered by Project Co and constitute constitutes a legal, valid, and binding obligations obligation of Project Co, enforceable against Project Co in accordance with their respective its terms, subject only to:
(A) limitations with respect to the enforcement of remedies by bankruptcy, insolvency, moratorium, winding-up, arrangement, reorganization, fraudulent preference and conveyance and other laws of general application affecting the enforcement of creditors’ rights generally; and
(B) general equitable principles and the fact that the availability of equitable remedies is in the discretion of a court and that a court may stay proceedings or the execution of judgments;
(vi) the authorization, execution, delivery delivery, and performance by Project Co of this Project Agreement does not and the Implementing Agreements to which it is a party does will not violate or conflict with, or constitute a default under:
(A) its constating constating, formation or organizational documents or documents, including any unanimous shareholders agreement or similar rights agreement binding on Project Coby- laws;
(B) any Applicable Law; or
(C) any covenant, contract, instrumentagreement, agreement or understanding to which it is a party or by which it or any of its properties or assets is bound or affected;
(vii) Project Co is an Affiliate of each of the Contractor and the Construction Guarantor;
(viii) no Project Co Event of Default has occurred and is continuing;
(ixviii) all of the information regarding Project Co set out in Schedule 4 31 – Project Co Information, Information is true and correct in all material respects;
(xix) there are no actions, suits, proceedings, or investigations pending or, to the knowledge of its senior management, or threatened against Project Co or or, to Project Co’s knowledge, any Project Co Party, Party at law or in equity, equity before any Governmental Authority or arbitral body (whether or not covered by insurance) that individually or in the aggregate could result in any material adverse effect on the business, properties, or assets, or the condition, financial or otherwise, of Project Co or in any impairment of its ability to perform its obligations under this Project Agreement or any Implementing Agreements to which it is a partyAgreement, and Project Co has no knowledge of any violation or default with respect to any order, writ, injunction injunction, or decree of any Governmental Authority or arbitral body that would could result in any such material adverse effect or impairment;
(xix) Project Co has carefully reviewed the whole of this Project Agreement, including all of the Contract Documents, and all other documents made available to Project Co by or on behalf of Ownerthe CTC, and, to Project Co’s knowledge, nothing contained herein or therein inhibits or prevents Project Co from completing the Work Works or performing the Works in accordance with this Project Agreement in a good and safe manner so as to achieve and satisfy the requirements of this Project Agreement;
(xiixi) Project Co is able to meet its obligations as they generally become due;
(xiiixii) Project Co is registered under Division V of Part IX of the Excise Tax Act (Canada) and has been assigned GST/HST Number [REDACTED];Act
(xivxiii) the Scheduled Substantial Completion Date is a realistic date and is achievable by Project Co performing the Work Works in accordance with this Project Agreement;
(xiv) Project Co is not a Non-Resident;
(xv) Project Co and the has obtained all necessary Project Co PartiesPermits, collectivelyLicences, have extensive experience in Approvals and Agreements required to commence the construction of health facilities and other public buildings and have the necessary high degree of expertise and experience to perform the services required by the Contract Documents, to review and interpret the Contract Documents and to complete the Work in accordance with the standard of care set out in Section 11.2(a)(viii)Works;
(xvi) the manager or supervisory personnel Project Co has assigned to the Project are highly experienced;
(xvii) Project Co has a sufficient staff of qualified and competent personnel to replace its designated supervisors, subject to Ownerthe CTC’s approval, in the event of death, incapacity or resignation;
(xviii) Project Co has and certain of the Project Co Parties have conducted inspections of the Site during the Request for Proposals process prior to Commercial Close and an investigation and examination of the Contract DocumentsProject Agreement, the Background Information and any other documents made available to Project Co by Owner (which include, to the extent made available to Project Co by Owner, equipment lists, a legal description of the Site, copies of any registered and unregistered agreements affecting the Site, results of tests, reports of independent testing agencies and surveys and documents indicating the location of Utilities and other structures to the extent obtained by Owner, information regarding the critical requirements to maintain the operations of the Existing Facility, hospital protocols and rules and regulations, if any, including the Site Background Reports and the Contract Documents referred to in Section 11.7(c) CTC so as to ascertain the nature or location of the Work Works and the Site, the physical conditions of the Site, the interface with Site and the Existing Facility Facilities, and protocols, rules and regulations if any, possible delays in commencing the Work, conditions relating to the transportation, handling and storage of materials and availability of labour and the character and availability of equipment, materials and facilities needed to perform the Work and to identify any Design Issues. Project Co has delivered to the Consultant requests for information in respect of all questions arising out of the foregoing inspections, investigations and examinations and in respect of each Design Issue identified. Based on this review, Project Co has established a Project Co Design Contingency adequate, in its judgement, to fund any change or delay cost that may arise as a result of any further Design Issue that may be identified and properly characterized as a Project Co Design IssueWorks;
(xix) Project Co has sufficient expertise available to it with the appropriate skills to review the Contract Documents in accordance with the standard of care set out in Section 11.2(a)(viii);
(xx) Project Co has solicited bids from and will award Subcontracts for the Approved Subcontractor Work only to the applicable Approved Subcontractors and has not solicited bids from and will not award Subcontracts for the Approved Subcontractor Work except to the applicable Approved Subcontractors; and
(xxi) Project Co has secured the Financing and is in a position to implement complete the Financing on or before the Financial Close Target Date, subject to the satisfaction of reasonable conditions that are customary in closing financing for projects similar to the Project;
(xx) no Restricted Person has Direct or Indirect Power or Control over any member of the Project Co Group in relation to the decisions, management, actions or policies of Project Co or in relation to the operation, management and ownership of the Project; and
(xxi) to the knowledge of Project Co, no Restricted Person has directly or indirectly, an Economic Interest in Project Co or the Project.
Appears in 1 contract
Samples: Project Agreement
Project Co Representations and Warranties. (a) Project Co represents and warrants to Owner HMQ that as of the date of this Project Agreement:
(i) Project Co is a limited liability corporation incorporated and validly existing under the laws of the Province of Alberta, is in good standing with the Registrar of Corporations of Alberta and with respect to the filing of annual returnsreports, and has all the requisite corporate power and authority to own, lease and operate own its properties and assets, to carry on its business as it is currently being conducted, and to enter into this Project Agreement and the Implementing Agreements to which it is a party, and to perform its obligations hereunder and thereunderhereunder;
(ii) Project Co and the Project Co Parties, collectively, have extensive experience and are knowledgeable in the design and construction of high performance athletics and aquatics facilities and have the required ability, experience, skill and capacity to perform the Works in a timely and professional manner as set out in this Project Agreement;
(iii) Project Co has the requisite power, authority and corporate capacity to execute and deliver and perform this Project Agreement and the Implementing Agreements to which it is a partyAgreement, and to do all acts and things, and execute, deliver and perform all other agreements, instruments, undertakings and documents as are required by this Project Agreement to be done, executed, delivered or performed;
(iii) Project Co has obtained all necessary Project Co Permits, Licences and Approvals required to commence the Work;
(iv) no steps or proceedings have been taken or are pending to supersede, repeal supersede or amend its the constating documents, articles or by-laws or any shareholders agreement of Project Co in a manner that would materially impair or limit its ability to perform its the obligations of Project Co under this Project Agreement or any of the Implementing Agreements to which it is a party, and such documents and agreements are in full force and effect as of the date hereofAgreement;
(v) this Project Agreement and the Implementing Agreements (when executed and delivered) to which Project Co is a party have has been duly authorized, executed, and delivered by Project Co and constitute constitutes a legal, valid, and binding obligations obligation of Project Co, enforceable against Project Co in accordance with their respective its terms, subject only to:
(A) limitations with respect to the enforcement of remedies by bankruptcy, insolvency, moratorium, winding-up, arrangement, reorganization, fraudulent preference and conveyance and other laws of general application affecting the enforcement of creditors’ creditors‟ rights generally; and
(B) general equitable principles and the fact that the availability of equitable remedies is in the discretion of a court and that a court may stay proceedings or the execution of judgments;
(vi) the authorization, execution, delivery delivery, and performance by Project Co of this Project Agreement does not and the Implementing Agreements to which it is a party does will not violate or conflict with, or constitute a default under:
(A) its constating constating, formation or organizational documents or documents, including any unanimous shareholders agreement or similar rights agreement binding on Project Coby- laws;
(B) any Applicable Law; or
(C) any covenant, contract, instrumentagreement, agreement or understanding to which it is a party or by which it or any of its properties or assets is bound or affected;
(vii) Project Co is an Affiliate of each of the Contractor and the Construction Guarantor;
(viii) no Project Co Event of Default has occurred and is continuing;
(ixviii) all of the information regarding Project Co set out in Schedule 4 31 – Project Co Information, Information is true and correct in all material respects;
(xix) there are no actions, suits, proceedings, or investigations pending or, to the knowledge of its senior management, or threatened against Project Co or or, to Project Co‟s knowledge, any Project Co Party, Party at law or in equity, equity before any Governmental Authority or arbitral body (whether or not covered by insurance) that individually or in the aggregate could result in any material adverse effect on the business, properties, or assets, or the condition, financial or otherwise, of Project Co or in any impairment of its ability to perform its obligations under this Project Agreement or any Implementing Agreements to which it is a partyAgreement, and Project Co has no knowledge of any violation or default with respect to any order, writ, injunction injunction, or decree of any Governmental Authority or arbitral body that would could result in any such material adverse effect or impairment;
(xix) Project Co has carefully reviewed the whole of this Project Agreement, including all of the Contract Documents, and all other documents made available to Project Co by or on behalf of OwnerHMQ, and, to Project Co’s Co‟s knowledge, nothing contained herein or therein inhibits or prevents Project Co from completing the Work Works or performing the Works in accordance with this Project Agreement in a good and safe manner so as to achieve and satisfy the requirements of this Project Agreement;
(xiixi) Project Co is able to meet its obligations as they generally become due;
(xiiixii) Project Co is registered under Division V of Part IX of the Excise Tax Act (Canada) and has been assigned GST/HST Number [REDACTED]);
(xivxiii) the Scheduled Substantial Completion Date is a realistic date and is achievable by Project Co performing the Work Works in accordance with this Project Agreement;
(xiv) Project Co is not a Non-Resident;
(xv) Project Co and the has obtained all necessary Project Co PartiesPermits, collectivelyLicences, have extensive experience in Approvals and Agreements required to commence the construction of health facilities and other public buildings and have the necessary high degree of expertise and experience to perform the services required by the Contract Documents, to review and interpret the Contract Documents and to complete the Work in accordance with the standard of care set out in Section 11.2(a)(viii)Works;
(xvi) the manager or supervisory personnel Project Co has assigned to the Project are highly experienced;
(xvii) Project Co has a sufficient staff of qualified and competent personnel to replace its designated supervisors, subject to Owner’s HMQ‟s approval, in the event of death, incapacity or resignation;
(xviii) Project Co has and certain of the Project Co Parties have conducted inspections of the Site during the Request for Proposals process prior to Commercial Close and an investigation and examination of the Contract DocumentsProject Agreement, the Background Information and any other documents made available to Project Co by Owner HMQ (which include, to the extent made available to Project Co by OwnerHMQ, equipment lists, a legal description of the Site, copies of any registered and unregistered agreements affecting the Site, results of tests, reports of independent testing agencies and surveys and documents indicating the location of Utilities and other structures to the extent obtained by Owner, information regarding the critical requirements to maintain the operations of the Existing Facility, hospital protocols and rules and regulations, if any, including the Site Background Reports and the Contract Documents referred to in Section 11.7(cHMQ) so as to ascertain the nature or location of the Work Works and the Site, the physical conditions of the Site, the interface with the Existing Facility and protocols, rules and regulations if any, possible delays in commencing the WorkWorks, conditions relating to the transportation, handling and storage of materials and availability of labour and the character and availability of equipment, materials and facilities needed to perform the Work and to identify any Design Issues. Project Co has delivered to the Consultant requests for information in respect of all questions arising out of the foregoing inspections, investigations and examinations and in respect of each Design Issue identified. Based on this review, Project Co has established a Project Co Design Contingency adequate, in its judgement, to fund any change or delay cost that may arise as a result of any further Design Issue that may be identified and properly characterized as a Project Co Design IssueWorks;
(xix) Project Co has sufficient expertise available to it with the appropriate skills to review the Contract Documents Project Agreement and the Background Information in accordance with the standard of care set out in Section 11.2(a)(viii11.8(a)(viii);
(xx) Project Co has solicited bids from and will award Subcontracts for the Approved Subcontractor Work only to the applicable Approved Subcontractors and has not solicited bids from and will not award Subcontracts for the Approved Subcontractor Work except to the applicable Approved Subcontractors; and
(xxi) Project Co has secured the Financing and is in a position to implement the Financing on or before the Financial Close Target Date, subject to the satisfaction of reasonable conditions that are customary in closing financing for projects similar to the Project;
(xxi) No Restricted Person has Direct or Indirect Power or Control over any member of the Project Co Group in relation to the decisions, management, actions or policies of Project Co or in relation to the operation, management and ownership of the Project; and
(xxii) No Restricted Person has directly or indirectly, an Economic Interest in Project Co or the Project.
Appears in 1 contract
Samples: Project Agreement
Project Co Representations and Warranties. (a) Project Co represents and warrants to Owner Contracting Authority that as of the date of this Project AgreementCommercial Close:
(i) Project Co is a limited liability corporation incorporated and validly existing under the laws of Alberta, is in good standing with the Registrar of Corporations of Alberta with respect to the filing of annual returns, and [REDACTED] has all the requisite corporate power and authority to own, lease and operate own its properties and assets, to carry on its business as it is currently being conducted, and to enter into this Project Agreement and the Implementing Agreements to which it is a party, and to perform its obligations hereunder and thereunderhereunder;
(ii) Project Co and the Project Co Parties, collectively, have extensive experience and are knowledgeable in the design and construction of infrastructure and facilities similar to those included in the scope of the Project in scale, scope, type and complexity, and have the required ability, experience, skill and capacity to perform the Works in a timely and professional manner as set out in this Project Agreement;
(iii) Project Co has the requisite power, authority and corporate capacity to execute and execute, deliver and perform this Project Agreement and the Implementing Agreements to which it is a partyAgreement, and to do all acts and things, and execute, deliver and perform all other agreements, instruments, undertakings and documents as are required by this Project Agreement to be done, executed, delivered or performed;
(iii) Project Co has obtained all necessary Project Co Permits, Licences and Approvals required to commence the Work;
(iv) no steps or proceedings have been taken or are pending to supersede, repeal supersede or amend its the constating documents, articles or by-laws or any shareholders agreement of Project Co in a manner that would materially impair or limit its ability to perform its the obligations of Project Co under this Project Agreement or any of the Implementing Agreements to which it is a party, and such documents and agreements are in full force and effect as of the date hereofAgreement;
(v) this Project Agreement and the Implementing Agreements (when executed and delivered) to which Project Co is a party have has been duly authorized, executed, and delivered by Project Co and constitute constitutes a legal, valid, and binding obligations obligation of Project Co, enforceable against Project Co in accordance with their respective its terms, subject only to:
(A) limitations with respect to the enforcement of remedies by bankruptcy, insolvency, moratorium, winding-up, arrangement, reorganization, fraudulent preference and conveyance and other laws of general application affecting the enforcement of creditors’ rights generally; and
(B) general equitable principles and the fact that the availability of equitable remedies is in the discretion of a court and that a court may stay proceedings or the execution of judgments;
(vi) the authorization, execution, delivery delivery, and performance by Project Co of this Project Agreement does not and the Implementing Agreements to which it is a party does will not violate or conflict with, or constitute a default under:
(A) its constating constating, formation or organizational documents or documents, including any unanimous shareholders agreement or similar rights agreement binding on Project Coby- laws;
(B) any Applicable Law; or
(C) any covenant, contract, instrumentagreement, agreement or understanding to which it is a party or by which it or any of its properties or assets is bound or affected;
(vii) Project Co is an Affiliate of each of the Contractor and the Construction Guarantor;
(viii) no Project Co Event of Default has occurred and is continuing;
(ixviii) all of the information regarding Project Co set out in Schedule 4 31 – Project Co Information, Information is true and correct in all material respects;
(xix) there are no actions, suits, proceedings, or investigations pending or, to the knowledge of its senior management, or threatened against Project Co or or, to Project Co’s knowledge, any Project Co Party, Party at law or in equity, equity before any Governmental Authority or arbitral body (whether or not covered by insurance) that individually or in the aggregate could result in any material adverse effect on the business, properties, or assets, or the condition, financial or otherwise, of Project Co or in any impairment of its ability to perform its obligations under this Project Agreement or any Implementing Agreements to which it is a partyAgreement, and Project Co has no knowledge of any violation or default with respect to any order, writ, injunction injunction, or decree of any Governmental Authority or arbitral body that would could result in any such material adverse effect or impairment;
(xix) Project Co has reviewed the Background Information set out in Section 7 and conducted the investigations in respect of the Lands as set out in Section 16 and, without affecting anything in Section 7, Section 16 and Section 18, has conducted its own additional investigations (other than in respect of the Background Information and the Lands) and has carefully reviewed the whole of this Project Agreement, including all of the Contract Documents, and all other documents made available to Project Co by or on behalf of OwnerContracting Authority, and, to Project Co’s knowledge, nothing contained herein or therein inhibits or prevents Project Co from completing the Work Works or performing the Works in accordance with this Project Agreement in a good and safe manner so as to achieve and satisfy the requirements of this Project Agreement;
(xiixi) Project Co is able to meet its obligations as they generally become due;
(xiiixii) Project Co is registered under Subdivision d of Division V of Part IX of the Excise Tax Act (Canada) and has been assigned GST/its HST Number registration number is [REDACTED];
(xiii) the Scheduled Interim Completion Date is a realistic date and is achievable by Project Co performing the Works in accordance with this Project Agreement;
(xiv) the Scheduled Substantial Completion Date is a realistic date and is achievable by Project Co performing the Work Works in accordance with this Project Agreement;
(xv) Project Co and the Project Co Parties, collectively, have extensive experience in the construction of health facilities and other public buildings and have the necessary high degree of expertise and experience to perform the services required by the Contract Documents, to review and interpret the Contract Documents and to complete the Work in accordance with the standard of care set out in Section 11.2(a)(viii)is not a Non-Resident;
(xvi) the manager or supervisory personnel Project Co has assigned to the Project are highly experienced;
(xvii) Project Co has a sufficient staff of qualified and competent personnel to replace its designated supervisors, subject to Owner’s approval, in the event of death, incapacity or resignation;
(xviii) Project Co has conducted inspections of the Site during the Request for Proposals process and an investigation and examination of the Contract Documents, and any other documents made available to Project Co by Owner (which include, to the extent made available to Project Co by Owner, equipment lists, a legal description of the Site, copies of any registered and unregistered agreements affecting the Site, results of tests, reports of independent testing agencies and surveys and documents indicating the location of Utilities and other structures to the extent obtained by Owner, information regarding the critical requirements to maintain the operations of the Existing Facility, hospital protocols and rules and regulations, if any, including the Site Background Reports and the Contract Documents referred to in Section 11.7(c) so as to ascertain the nature or location of the Work and the Site, the physical conditions of the Site, the interface with the Existing Facility and protocols, rules and regulations if any, possible delays in commencing the Work, conditions relating to the transportation, handling and storage of materials and availability of labour and the character and availability of equipment, materials and facilities needed to perform the Work and to identify any Design Issues. Project Co has delivered to the Consultant requests for information in respect of all questions arising out of the foregoing inspections, investigations and examinations and in respect of each Design Issue identified. Based on this review, Project Co has established a Project Co Design Contingency adequate, in its judgement, to fund any change or delay cost that may arise as a result of any further Design Issue that may be identified and properly characterized as a Project Co Design Issue;
(xix) Project Co has sufficient expertise available to it with the appropriate skills to review the Contract Documents in accordance with the standard of care set out in Section 11.2(a)(viii);
(xx) Project Co has solicited bids from and will award Subcontracts for the Approved Subcontractor Work only to the applicable Approved Subcontractors and has not solicited bids from and will not award Subcontracts for the Approved Subcontractor Work except to the applicable Approved Subcontractors; and
(xxi) Project Co has secured the Financing and is in a position to implement complete the Financing on or before the Financial Close Target Date, subject to the satisfaction of reasonable conditions that are customary in closing financing for projects similar to the Project;
(xvii) no Restricted Person has Direct or Indirect Power or Control over any member of the Project Co Group in relation to the decisions, management, actions or policies of Project Co or in relation to the operation, management and ownership of the Project;
(xviii) to the knowledge of Project Co, following the exercise of reasonable due diligence, no Restricted Person has directly or indirectly, an Economic Interest in Project Co or the Project; and
(xix) either:
(A) the COR-Certified Construction Project Co Party is in possession of its COR Certification in good standing as required under this Project Agreement and has the ability to maintain such COR Certification in good standing at all times during the performance of the Works in accordance with its terms, provisions and conditions; or
(B) the COR-Qualified Construction Project Co Party:
(I) is in possession of its OHSAS 18001 Accreditation or ISO 45001 Accreditation which remains in good standing and has the ability to maintain such OHSAS 18001 Accreditation or ISO 45001 Accreditation in good standing at all times during the performance of the Works until such COR-Qualified Construction Project Co Party receives its COR Certification as required under this Project Agreement, and
(II) has made an application to the IHSA for its COR Certification as required under this Project Agreement.
Appears in 1 contract
Samples: Project Agreement
Project Co Representations and Warranties. (a) Project Co represents and warrants to Owner Contracting Authority that as of the date of this Project Agreement:
(i) Project Co is a limited liability corporation incorporated and validly existing under the laws of Alberta, is in good standing with the Registrar of Corporations of Alberta with respect to the filing of annual returns[REDACTED], and has all the requisite corporate power and authority to own, lease and operate own its properties and assets, to carry on its business as it is currently being conducted, and to enter into this Project Agreement and the Implementing Agreements to which it is a party, and to perform its obligations hereunder and thereunderhereunder;
(ii) Project Co is duly registered to carry on business as an extra-provincial corporation in the Province of Ontario;
(iii) Project Co is a wholly owned subsidiary of the Construction Contractor;
(iv) Project Co will have a Canadian residency requirement for withholding tax purposes;
(v) To the knowledge of Project Co, no Restricted Person has directly or indirectly, an Economic Interest in Project Co or the Project;
(vi) Project Co and the Project Co Parties, collectively, have extensive experience and are knowledgeable in the design and construction of courthouse facilities and have the required ability, experience, skill and capacity to perform the Works in a timely and professional manner as set out in this Project Agreement;
(vii) Project Co has the requisite power, authority and corporate capacity to execute and deliver and perform this Project Agreement and the Implementing Agreements to which it is a partyAgreement, and to do all acts and things, and execute, deliver and perform all other agreements, instruments, undertakings and documents as are required by this Project Agreement to be done, executed, delivered or performed;
(iii) Project Co has obtained all necessary Project Co Permits, Licences and Approvals required to commence the Work;
(ivviii) no steps or proceedings have been taken or are pending to supersede, repeal supersede or amend its the constating documents, articles or by-laws or any shareholders agreement of Project Co in a manner that would materially impair or limit its ability to perform its the obligations of Project Co under this Project Agreement or any of the Implementing Agreements to which it is a party, and such documents and agreements are in full force and effect as of the date hereofAgreement;
(vix) this Project Agreement and the Implementing Agreements (when executed and delivered) to which Project Co is a party have has been duly authorized, executed, and delivered by Project Co and constitute constitutes a legal, valid, and binding obligations obligation of Project Co, enforceable against Project Co in accordance with their respective its terms, subject only to:
(A) limitations with respect to the enforcement of remedies by bankruptcy, insolvency, moratorium, winding-up, arrangement, reorganization, fraudulent preference and conveyance and other laws of general application affecting the enforcement of creditors’ rights generally; and
(B) general equitable principles and the fact that the availability of equitable remedies is in the discretion of a court and that a court may stay proceedings or the execution of judgments;
(vix) the authorization, execution, delivery delivery, and performance by Project Co of this Project Agreement does not and the Implementing Agreements to which it is a party does will not violate or conflict with, or constitute a default under:
(A) its constating constating, formation or organizational documents or documents, including any unanimous shareholders agreement or similar rights agreement binding on Project Coby- laws;
(B) any Applicable Law; or
(C) any covenant, contract, instrumentagreement, agreement or understanding to which it is a party or by which it or any of its properties or assets is bound or affected;
(vii) Project Co is an Affiliate of each of the Contractor and the Construction Guarantor;
(viiixi) no Project Co Event of Default has occurred and is continuing;
(ixxii) all of the information regarding Project Co set out in Schedule 4 31 – Project Co Information, Information is true and correct in all material respects;
(xxiii) there are no actions, suits, proceedings, or investigations pending or, to the knowledge of its senior management, or threatened against Project Co or or, to Project Co’s knowledge, any Project Co Party, Party at law or in equity, equity before any Governmental Authority or arbitral body (whether or not covered by insurance) that individually or in the aggregate could result in any material adverse effect on the business, properties, or assets, or the condition, financial or otherwise, of Project Co or in any impairment of its ability to perform its obligations under this Project Agreement or any Implementing Agreements to which it is a partyAgreement, and Project Co has no knowledge of any violation or default with respect to any order, writ, injunction injunction, or decree of any Governmental Authority or arbitral body that would could result in any such material adverse effect or impairment;
(xixiv) Project Co has carefully reviewed the whole of this Project Agreement, including all of the Contract Documents, and all other documents made available to Project Co by or on behalf of OwnerContracting Authority, and, to Project Co’s knowledge, nothing contained herein or therein inhibits or prevents Project Co from completing the Work Works or performing the Works in accordance with this Project Agreement in a good and safe manner so as to achieve and satisfy the requirements of this Project Agreement;
(xiixv) Project Co is able to meet its obligations as they generally become due;
(xiiixvi) Project Co is registered under Division V of Part IX of the Excise Tax Act (Canada) and has been assigned GST/its HST Number registration number is [REDACTED];
(xivxvii) the Scheduled Interim Completion Date is a realistic date and is achievable by Project Co performing the Works in accordance with the Project Agreement;
(xviii) the Scheduled Substantial Completion Date is a realistic date and is achievable by Project Co performing the Work Works in accordance with this Project Agreement;
(xvxix) Project Co and the Project Co Parties, collectively, have extensive experience in the construction of health facilities and other public buildings and have the necessary high degree of expertise and experience to perform the services required by the Contract Documents, to review and interpret the Contract Documents and to complete the Work in accordance with the standard of care set out in Section 11.2(a)(viii)is not a Non-Resident;
(xvixx) Project Co has obtained all necessary Project Co Permits, Licences, Approvals and Agreements required to commence the Works;
(xxi) the manager or supervisory personnel Project Co has assigned to the Project are highly experienced;
(xviixxii) Project Co has a sufficient staff of qualified and competent personnel to replace its designated supervisors, subject to OwnerContracting Authority’s approval, in the event of death, incapacity or resignation;
(xviiixxiii) Project Co has conducted inspections and certain of the Site during the Request for Proposals process and Project Co Parties have conducted an investigation and examination of the Contract DocumentsProject Agreement, the Background Information and any other documents made available to Project Co by Owner (which include, to the extent made available to Project Co by Owner, equipment lists, a legal description of the Site, copies of any registered and unregistered agreements affecting the Site, results of tests, reports of independent testing agencies and surveys and documents indicating the location of Utilities and other structures to the extent obtained by Owner, information regarding the critical requirements to maintain the operations of the Existing Facility, hospital protocols and rules and regulations, if any, including the Site Background Reports and the Contract Documents referred to in Section 11.7(c) Contracting Authority so as to ascertain the nature or location of the Work Works and the Site, the physical conditions of the Site, the interface with the Existing Facility Facilities and Site and protocols, rules and regulations if any, possible delays in commencing the Work, conditions relating to the transportation, handling and storage of materials and availability of labour and the character and availability of equipment, materials and facilities needed to perform the Work and to identify any Design Issues. Project Co has delivered to the Consultant requests for information in respect of all questions arising out of the foregoing inspections, investigations and examinations and in respect of each Design Issue identified. Based on this review, Project Co has established a Project Co Design Contingency adequate, in its judgement, to fund any change or delay cost that may arise as a result of any further Design Issue that may be identified and properly characterized as a Project Co Design IssueWorks;
(xix) Project Co has sufficient expertise available to it with the appropriate skills to review the Contract Documents in accordance with the standard of care set out in Section 11.2(a)(viii);
(xx) Project Co has solicited bids from and will award Subcontracts for the Approved Subcontractor Work only to the applicable Approved Subcontractors and has not solicited bids from and will not award Subcontracts for the Approved Subcontractor Work except to the applicable Approved Subcontractors; and
(xxixxiv) Project Co has secured the Financing and is in a position to implement complete the Financing on or before the Financial Close Target Date, subject to the satisfaction of reasonable conditions that are customary in closing financing for projects similar to the Project;
(xxv) No Restricted Person has Direct or Indirect Power or Control over any member of the Project Co Group in relation to the decisions, management, actions or policies of Project Co or in relation to the operation, management and ownership of the Project; and
(xxvi) either
(A) The COR-Certified Construction Project Co Party is in possession of its COR Certification in good standing as required under this Project Agreement and has the ability to maintain such COR Certification in good standing at all times during the performance of the Works in accordance with its terms, provisions and conditions, or
(B) The COR-Qualified Construction Project Co Party:
(I) is in possession of its OHSAS 18001 Accreditation which remains in good standing and has the ability to maintain such OHSAS 18001 Accreditation in good standing at all times during the performance of the Works until such COR-Qualified Construction Project Co Party receives its COR Certification as required under this Project Agreement, and
(II) has made an application to the IHSA for its COR Certification as required under this Project Agreement.
Appears in 1 contract
Samples: Project Agreement
