Representations, Warranties and Covenants of Developer. 8 Developer makes the representations, warranties, and covenants set forth in this 9 Section 2.3. 10 2.3.1 During all periods necessary for the performance of the Work, all Developer- 11 Related Entities shall maintain all required authority, licenses, registrations, professional 12 ability, and skills to perform the Work in accordance with the Contract Documents. 13 2.3.2 As of the Effective Date, based upon Developer’s Reasonable Investigation, 14 Developer has evaluated the constraints affecting design and construction of the Project, 15 including the limits of the Schematic ROW as well as the conditions of the NEPA Approval, 16 and has concluded that the Project can be designed and built within such constraints. 17 2.3.3 Developer has evaluated the feasibility of performing the Work within the 18 Completion Deadlines and for the Contract Price, accounting for constraints affecting the 19 Project, and has concluded that such performance (including achievement of Substantial 20 Completion and Final Acceptance by the applicable Completion Deadlines for the 21 Contract Price) is feasible and practicable. 22 2.3.4 Prior to the Proposal Due Date, Developer conducted a Reasonable 23 Investigation and as a result of such Reasonable Investigation is familiar with and accepts 24 the requirements of the Work. 25 2.3.5 Developer has familiarized itself with the requirements of any and all 26 applicable Laws and the conditions of any required Governmental Approvals prior to 27 entering into this Agreement. Developer shall obtain and maintain each and every 28 Governmental Approval in due course so as to enable the Work to proceed in accordance 29 with the Contract Documents. 30 2.3.6 Developer has familiarized itself with the requirements of the Local 31 Jurisdictions and the conditions therein prior to entering into this Agreement. Developer 32 shall comply with all such requirements to enable the Work to proceed in accordance with 33 the Contract Documents. 34 2.3.7 All Work furnished by Developer shall be performed by or under the 35 supervision of Persons who hold all necessary and valid licenses to perform the Work in 36 the State, by personnel who are careful, skilled, experienced, and competent in their 37 respective trades or professions, who are professionally qualified to perform the Work in 1 accordance with the Contract Documents, and who shall assume professional 2 responsibility for the accuracy and completeness of the Design Documents, Construction 3 Documents, and other documents prepared or checked by them. 4 2.3.8 As of the Effective Date, Developer is a Joint Venture, duly organized and 5 validly existing under the laws of the state of Arizona with all requisite power and all 6 required licenses to carry on its present and proposed obligations under the Contract 7 Documents. Developer has full power, right, and authority to execute and deliver the 8 Contract Documents and the Subcontracts to which Developer is (or will be) a party and 9 to perform each and every obligation of Developer therein. 10 2.3.9 Developer is duly qualified to do business, and is in good standing, in the 11 State as of the Effective Date, and will remain in good standing during the Work and for 12 as long thereafter as any obligations remain outstanding under the Contract Documents. 13 2.3.10 At any time a Guaranty is required to be in place pursuant to the Contract 14 Documents, the applicable Guarantor is duly organized, validly existing, and in good 15 standing under the laws of the state of its organization, and, except for Guarantor Xxxxxxxx 00 Construction Corp., is duly qualified to do business in, and is in good standing in, the 17 State. Guarantor shall remain in good standing for as long as any obligations guaranteed 18 by such Guarantor remain outstanding under the Contract Documents, and, each such 19 Guarantor has all requisite power and all required licenses to carry on its present and 20 proposed obligations under the Contract Documents. In the case of Guarantor Xxxxxxxx 00 Construction Corp., it is not doing business in the State, is not qualified to do business in 22 the State, and has not obtained a certificate of good standing in the State; however, 23 Guarantor Flatiron Construction Corp. has all requisite power to carry out its present and 24 proposed obligations under the Guaranty and the Contract Documents. 25 2.3.11 At any time a Guaranty is required to be in place pursuant to the Contract 26 Documents, all required approvals have been obtained with respect to the execution, 27 delivery, and performance of such Guaranty, and performance of such Guaranty will not 28 result in a breach of or a default under the applicable Guarantor’s organizational 29 documents or any indenture or loan or credit agreement or other material agreement or 30 instrument to which the applicable Guarantor is a party or by which its properties and 31 assets may be bound or affected. 32 2.3.12 Each Guaranty has been duly authorized by all necessary corporate action, 33 has been duly executed and delivered by each Guarantor, and constitutes the legal, valid, 34 and binding obligation of such Guarantor, enforceable in accordance with its terms, 35 subject only to applicable bankruptcy, insolvency, and similar laws affecting the 36 enforceability of the rights of creditors generally and the general principles of equity. 37 2.3.13 The execution, delivery, and performance of the Contract Documents and 38 the Subcontracts to which Developer is (or will be) a party have been (or will be) duly 39 authorized by all necessary corporate action of Developer; each person executing the 40 Contract Documents and the Subcontracts on behalf of Developer has been (or at the 41 time of execution will be) duly authorized to execute and deliver each such document on 1 behalf of Developer; and the Contract Documents and the Subcontracts have been (or 2 will be) duly executed and delivered by Xxxxxxxxx. 3 2.3.14 Neither the execution and delivery by Developer of the Contract Documents 4 or the Subcontracts to which Developer is (or will be) a party, nor the consummation of 5 the transactions contemplated hereby or thereby, is (or at the time of execution will be) in 6 conflict with or has resulted or will result in a default under or a violation of the governing 7 instruments or organizational documents of Developer or a breach or default under any 8 indenture or loan or credit agreement or other material agreement or instrument to which 9 Developer is a party or by which its properties and assets may be bound or affected. 10 2.3.15 Each of the Contract Documents and the Subcontracts to which Developer 11 is (or will be) a party constitutes (or at the time of execution and delivery will constitute) 12 the legal, valid, and binding obligation of Developer, enforceable against Developer, in 13 accordance with its terms, subject only to applicable bankruptcy, insolvency, and similar 14 laws affecting the enforceability of the rights of creditors generally and to general 15 principles of equity. 16 2.3.16 As of the Effective Date, there is no action, suit, proceeding, investigation 17 or litigation pending and served, or of which Developer is otherwise aware, against 18 Developer which challenges Xxxxxxxxx’s authority to execute, deliver or perform, or the 19 validity or enforceability of, the Contract Documents or the Subcontracts to which 20 Developer is a party, or which challenges the authority of any of Developer’s officials that 21 are executing the Contract Documents or the Subcontracts; and Developer has disclosed 22 to ADOT prior to the Effective Date any pending and un-served or threatened action, suit, 23 proceeding, investigation or litigation with respect to such matters of which Xxxxxxxxx is 24 aware. 25 2.3.17 As of the Proposal Due Date, Developer disclosed to ADOT in writing all 26 organizational conflicts of interest of Developer and its Subcontractors of which Developer 27 was actually aware; and between the Proposal Due Date and the Effective Date, 28 Developer has not obtained knowledge of any additional organizational conflict of interest, 29 and there have been no organizational changes to Developer or its Subcontractors 30 identified in its Proposal that have not been approved in writing by ADOT. For this 31 purpose, organizational conflict of interest has the meaning set forth in the RFP. 32 2.3.18 To the extent the Lead Engineering Firm is not Developer, Developer 33 represents and warrants, as of the effective date of the relevant Subcontract between 34 Developer and the Lead Engineering Firm, as follows: (a) The Lead Engineering Firm is duly organized, validly existing, and in 36 good standing under the laws of the state of its organization and is duly qualified to do 37 business, and is in good standing, in the State; 38 (b) The ownership interests of the Lead Engineering Firm are owned by 39 the Persons whom Xxxxxxxxx has set forth in a written certification delivered to ADOT 40 prior to the Effective Date;
Appears in 1 contract
Samples: Design Build Agreement
Representations, Warranties and Covenants of Developer. 8 28 Developer makes the representations, warranties, warranties and covenants set forth in this 9 29 Section 2.3.
10 30 2.3.1 During all periods necessary for the performance of the Work, all Developer- 11 Related Entities Developer 31 and its Subcontractors shall maintain all required authority, licenses, registrations, 32 professional 12 ability, skills and skills capacity to perform the Work in accordance with the 33 requirements contained in the Contract Documents.
13 34 2.3.2 As of the Effective Date, based upon Developer’s Reasonable 35 Investigation, 14 Developer has evaluated the constraints affecting design and construction 36 of the Project, 15 including the limits of the Schematic ROW as well as the conditions of the 1 NEPA Approval, 16 and has concluded reasonable grounds for believing and does believe that the 2 Project can be designed and built within such constraints.
17 3 2.3.3 Developer has evaluated the feasibility of performing the D&C Work 4 within the 18 Completion Deadlines and for the Contract D&C Price, accounting for constraints 5 affecting the 19 Project, including the Maximum Allowable Cumulative Draw Schedule set 6 forth in Exhibit 6 and the assumed NTP 3 Window, and has concluded reasonable grounds for 7 believing and does believe that such performance (including achievement of Freeway 8 Opening, Substantial 20 Completion and Final Acceptance by the applicable Completion 9 Deadlines for the 21 Contract D&C Price) is feasible and practicable, subject to Developer’s right to 10 seek relief for Necessary Schematic ROW changes under Article 14.
22 11 2.3.4 Prior to the Proposal Due Date, Developer conducted a Reasonable 23 Investigation and as a result of such Reasonable Investigation is familiar with and accepts 24 the requirements of the Work.
25 2.3.5 Developer has familiarized itself with evaluated the requirements feasibility of any performing the Maintenance 12 Services throughout the Maintenance Period and all 26 applicable Laws and the conditions of any required Governmental Approvals prior to 27 entering into this Agreement. Developer shall obtain and maintain each and every 28 Governmental Approval in due course so as to enable the Work to proceed in accordance 29 with the Contract Documents.
30 2.3.6 Developer has familiarized itself with the requirements of the Local 31 Jurisdictions and the conditions therein prior to entering into this Agreement. Developer 32 shall comply with all such requirements to enable the Work to proceed in accordance with 33 the Contract Documents.
34 2.3.7 All Work furnished by Developer shall be performed by or under the 35 supervision of Persons who hold all necessary and valid licenses to perform the Work in 36 the State, by personnel who are careful, skilled, experienced, and competent in their 37 respective trades or professions, who are professionally qualified to perform the Work in 1 accordance with the Contract Documents, and who shall assume professional 2 responsibility for the accuracy and completeness of the Design Documents, Construction 3 Documents, and other documents prepared or checked by them.
4 2.3.8 As of the Effective Date, Developer is a Joint Venture, duly organized and 5 validly existing under the laws of the state of Arizona with all requisite power and all 6 required licenses to carry on its present and proposed obligations under the Contract 7 Documents. Developer has full power, right, and authority to execute and deliver the 8 Contract Documents and the Subcontracts to which Developer is (or will be) a party and 9 to perform each and every obligation of Developer therein.
10 2.3.9 Developer is duly qualified to do business, and is in good standing, in the 11 State as of the Effective Date, and will remain in good standing during the Work and for 12 as long thereafter as any obligations remain outstanding under the Contract Documents.
13 2.3.10 At any time a Guaranty is required to be in place pursuant to the Contract 14 Documents, the applicable Guarantor is duly organized, validly existing, and in good 15 standing under the laws of the state of its organization, and, except for Guarantor Xxxxxxxx 00 Construction Corp., is duly qualified to do business in, and is in good standing in, the 17 State. Guarantor shall remain in good standing for as long as any obligations guaranteed 18 by such Guarantor remain outstanding under the Contract Documents, and, each such 19 Guarantor has all requisite power and all required licenses to carry on its present and 20 proposed obligations under the Contract Documents. In the case of Guarantor Xxxxxxxx 00 Construction Corp., it is not doing business in the State, is not qualified to do business in 22 the State, Maintenance Price and has not obtained a certificate of good standing in the State; however, 23 Guarantor Flatiron Construction Corp. has all requisite power to carry out its present 13 reasonable grounds for believing and 24 proposed obligations under the Guaranty and the Contract Documents.
25 2.3.11 At any time a Guaranty does believe that such performance is required to be in place pursuant to the Contract 26 Documents, all required approvals have been obtained with respect to the execution, 27 delivery, and performance of such Guaranty, and performance of such Guaranty will not 28 result in a breach of or a default under the applicable Guarantor’s organizational 29 documents or any indenture or loan or credit agreement or other material agreement or 30 instrument to which the applicable Guarantor is a party or by which its properties and 31 assets may be bound or affected.
32 2.3.12 Each Guaranty has been duly authorized by all necessary corporate action, 33 has been duly executed and delivered by each Guarantor, and constitutes the legal, valid, 34 and binding obligation of such Guarantor, enforceable in accordance with its terms, 35 subject only to applicable bankruptcy, insolvency, and similar laws affecting the 36 enforceability of the rights of creditors generally and the general principles of equity.
37 2.3.13 The execution, delivery, and performance of the Contract Documents and 38 the Subcontracts to which Developer is (or will be) a party have been (or will be) duly 39 authorized by all necessary corporate action of Developer; each person executing the 40 Contract Documents and the Subcontracts on behalf of Developer has been (or at the 41 time of execution will be) duly authorized to execute and deliver each such document on 1 behalf of Developer; and the Contract Documents and the Subcontracts have been (or 2 will be) duly executed and delivered by Xxxxxxxxx.
3 2.3.14 Neither the execution and delivery by Developer of the Contract Documents 4 or the Subcontracts to which Developer is (or will be) a party, nor the consummation of 5 the transactions contemplated hereby or thereby, is (or at the time of execution will be) in 6 conflict with or has resulted or will result in a default under or a violation of the governing 7 instruments or organizational documents of Developer or a breach or default under any 8 indenture or loan or credit agreement or other material agreement or instrument to which 9 Developer is a party or by which its properties and assets may be bound or affected.
10 2.3.15 Each of the Contract Documents and the Subcontracts to which Developer 11 is (or will be) a party constitutes (or at the time of execution and delivery will constitute) 12 the legal, valid, and binding obligation of Developer, enforceable against Developer, in 13 accordance with its terms, subject only to applicable bankruptcy, insolvency, and similar 14 laws affecting the enforceability of the rights of creditors generally and to general 15 principles of equity.
16 2.3.16 As of the Effective Date, there is no action, suit, proceeding, investigation 17 or litigation pending and served, or of which Developer is otherwise aware, against 18 Developer which challenges Xxxxxxxxx’s authority to execute, deliver or perform, or the 19 validity or enforceability of, the Contract Documents or the Subcontracts to which 20 Developer is a party, or which challenges the authority of any of Developer’s officials that 21 are executing the Contract Documents or the Subcontracts; and Developer has disclosed 22 to ADOT prior to the Effective Date any pending and un-served or threatened action, suit, 23 proceeding, investigation or litigation with respect to such matters of which Xxxxxxxxx is 24 aware.
25 2.3.17 As of the Proposal Due Date, Developer disclosed to ADOT in writing all 26 organizational conflicts of interest of Developer and its Subcontractors of which Developer 27 was actually aware; and between the Proposal Due Date and the Effective Date, 28 Developer has not obtained knowledge of any additional organizational conflict of interest, 29 and there have been no organizational changes to Developer or its Subcontractors 30 identified in its Proposal that have not been approved in writing by ADOT. For this 31 purpose, organizational conflict of interest has the meaning set forth in the RFP.
32 2.3.18 To the extent the Lead Engineering Firm is not Developer, Developer 33 represents and warrants, as of the effective date of the relevant Subcontract between 34 Developer and the Lead Engineering Firm, as follows:
(a) The Lead Engineering Firm is duly organized, validly existing, and in 36 good standing under the laws of the state of its organization and is duly qualified to do 37 business, and is in good standing, in the State; 38 (b) The ownership interests of the Lead Engineering Firm are owned by 39 the Persons whom Xxxxxxxxx has set forth in a written certification delivered to ADOT 40 prior to the Effective Date;feasible and
Appears in 1 contract
Samples: Design Build Maintain Agreement
Representations, Warranties and Covenants of Developer. 8 29 Developer makes the representations, warranties, warranties and covenants set forth in this 9 Section 30 2.3.
10 31 2.3.1 During all periods necessary for the performance of the Work, all Developer- 11 Related Entities 32 Developer and its Subcontractors shall maintain all required authority, licenses, 33 registrations, professional 12 ability, skills and skills capacity to perform the Work in accordance 34 with the requirements contained in the Contract Documents.
13 35 2.3.2 As of the Effective Date, based upon Developer’s Reasonable 36 Investigation, 14 Developer has evaluated the constraints affecting design and construction 37 of the Project, 15 including the limits of the Schematic ROW as well as the conditions of the 1 NEPA Approval, 16 and has concluded reasonable grounds for believing and does believe that the 2 Project can be designed and built within such constraints.
17 3 2.3.3 Developer has evaluated the feasibility of performing the D&C Work 4 within the 18 Completion Deadlines and for the Contract D&C Price, accounting for constraints 5 affecting the 19 Project, including the Maximum Allowable Cumulative Draw Schedule set 6 forth in Exhibit 6 and the assumed NTP 3 Window, and has concluded reasonable grounds for 7 believing and does believe that such performance (including achievement of Substantial 20 8 Completion and Final Acceptance by the applicable Completion Deadlines for the 21 Contract D&C 9 Price) is feasible and practicable, subject to Developer’s right to seek relief for Necessary 10 Schematic ROW changes under Article 14.
22 11 2.3.4 Prior to the Proposal Due Date, Developer conducted a Reasonable 23 Investigation and as a result of such Reasonable Investigation is familiar with and accepts 24 the requirements of the Work.
25 2.3.5 Developer has familiarized itself with evaluated the requirements feasibility of any performing the Maintenance 12 Services throughout the Maintenance Period and all 26 applicable Laws and the conditions of any required Governmental Approvals prior to 27 entering into this Agreement. Developer shall obtain and maintain each and every 28 Governmental Approval in due course so as to enable the Work to proceed in accordance 29 with the Contract Documents.
30 2.3.6 Developer has familiarized itself with the requirements of the Local 31 Jurisdictions and the conditions therein prior to entering into this Agreement. Developer 32 shall comply with all such requirements to enable the Work to proceed in accordance with 33 the Contract Documents.
34 2.3.7 All Work furnished by Developer shall be performed by or under the 35 supervision of Persons who hold all necessary and valid licenses to perform the Work in 36 the State, by personnel who are careful, skilled, experienced, and competent in their 37 respective trades or professions, who are professionally qualified to perform the Work in 1 accordance with the Contract Documents, and who shall assume professional 2 responsibility for the accuracy and completeness of the Design Documents, Construction 3 Documents, and other documents prepared or checked by them.
4 2.3.8 As of the Effective Date, Developer is a Joint Venture, duly organized and 5 validly existing under the laws of the state of Arizona with all requisite power and all 6 required licenses to carry on its present and proposed obligations under the Contract 7 Documents. Developer has full power, right, and authority to execute and deliver the 8 Contract Documents and the Subcontracts to which Developer is (or will be) a party and 9 to perform each and every obligation of Developer therein.
10 2.3.9 Developer is duly qualified to do business, and is in good standing, in the 11 State as of the Effective Date, and will remain in good standing during the Work and for 12 as long thereafter as any obligations remain outstanding under the Contract Documents.
13 2.3.10 At any time a Guaranty is required to be in place pursuant to the Contract 14 Documents, the applicable Guarantor is duly organized, validly existing, and in good 15 standing under the laws of the state of its organization, and, except for Guarantor Xxxxxxxx 00 Construction Corp., is duly qualified to do business in, and is in good standing in, the 17 State. Guarantor shall remain in good standing for as long as any obligations guaranteed 18 by such Guarantor remain outstanding under the Contract Documents, and, each such 19 Guarantor has all requisite power and all required licenses to carry on its present and 20 proposed obligations under the Contract Documents. In the case of Guarantor Xxxxxxxx 00 Construction Corp., it is not doing business in the State, is not qualified to do business in 22 the State, Maintenance Price and has not obtained a certificate of good standing in the State; however, 23 Guarantor Flatiron Construction Corp. has all requisite power to carry out its present 13 reasonable grounds for believing and 24 proposed obligations under the Guaranty and the Contract Documents.
25 2.3.11 At any time a Guaranty does believe that such performance is required to be in place pursuant to the Contract 26 Documents, all required approvals have been obtained with respect to the execution, 27 delivery, and performance of such Guaranty, and performance of such Guaranty will not 28 result in a breach of or a default under the applicable Guarantor’s organizational 29 documents or any indenture or loan or credit agreement or other material agreement or 30 instrument to which the applicable Guarantor is a party or by which its properties and 31 assets may be bound or affected.
32 2.3.12 Each Guaranty has been duly authorized by all necessary corporate action, 33 has been duly executed and delivered by each Guarantor, and constitutes the legal, valid, 34 and binding obligation of such Guarantor, enforceable in accordance with its terms, 35 subject only to applicable bankruptcy, insolvency, and similar laws affecting the 36 enforceability of the rights of creditors generally and the general principles of equity.
37 2.3.13 The execution, delivery, and performance of the Contract Documents and 38 the Subcontracts to which Developer is (or will be) a party have been (or will be) duly 39 authorized by all necessary corporate action of Developer; each person executing the 40 Contract Documents and the Subcontracts on behalf of Developer has been (or at the 41 time of execution will be) duly authorized to execute and deliver each such document on 1 behalf of Developer; and the Contract Documents and the Subcontracts have been (or 2 will be) duly executed and delivered by Xxxxxxxxx.
3 2.3.14 Neither the execution and delivery by Developer of the Contract Documents 4 or the Subcontracts to which Developer is (or will be) a party, nor the consummation of 5 the transactions contemplated hereby or thereby, is (or at the time of execution will be) in 6 conflict with or has resulted or will result in a default under or a violation of the governing 7 instruments or organizational documents of Developer or a breach or default under any 8 indenture or loan or credit agreement or other material agreement or instrument to which 9 Developer is a party or by which its properties and assets may be bound or affected.
10 2.3.15 Each of the Contract Documents and the Subcontracts to which Developer 11 is (or will be) a party constitutes (or at the time of execution and delivery will constitute) 12 the legal, valid, and binding obligation of Developer, enforceable against Developer, in 13 accordance with its terms, subject only to applicable bankruptcy, insolvency, and similar 14 laws affecting the enforceability of the rights of creditors generally and to general 15 principles of equity.
16 2.3.16 As of the Effective Date, there is no action, suit, proceeding, investigation 17 or litigation pending and served, or of which Developer is otherwise aware, against 18 Developer which challenges Xxxxxxxxx’s authority to execute, deliver or perform, or the 19 validity or enforceability of, the Contract Documents or the Subcontracts to which 20 Developer is a party, or which challenges the authority of any of Developer’s officials that 21 are executing the Contract Documents or the Subcontracts; and Developer has disclosed 22 to ADOT prior to the Effective Date any pending and un-served or threatened action, suit, 23 proceeding, investigation or litigation with respect to such matters of which Xxxxxxxxx is 24 aware.
25 2.3.17 As of the Proposal Due Date, Developer disclosed to ADOT in writing all 26 organizational conflicts of interest of Developer and its Subcontractors of which Developer 27 was actually aware; and between the Proposal Due Date and the Effective Date, 28 Developer has not obtained knowledge of any additional organizational conflict of interest, 29 and there have been no organizational changes to Developer or its Subcontractors 30 identified in its Proposal that have not been approved in writing by ADOT. For this 31 purpose, organizational conflict of interest has the meaning set forth in the RFP.
32 2.3.18 To the extent the Lead Engineering Firm is not Developer, Developer 33 represents and warrants, as of the effective date of the relevant Subcontract between 34 Developer and the Lead Engineering Firm, as follows:
(a) The Lead Engineering Firm is duly organized, validly existing, and in 36 good standing under the laws of the state of its organization and is duly qualified to do 37 business, and is in good standing, in the State; 38 (b) The ownership interests of the Lead Engineering Firm are owned by 39 the Persons whom Xxxxxxxxx has set forth in a written certification delivered to ADOT 40 prior to the Effective Date;feasible and
Appears in 1 contract
Samples: Design Build Maintain Agreement
Representations, Warranties and Covenants of Developer. 8 Developer makes the representations, warranties, and covenants set forth in this 9 Section 2.3.
10 2.3.1 During all periods necessary for the performance of the Work, all Developer- 11 Related Entities shall maintain all required authority, licenses, registrations, professional 12 ability, and skills to perform the Work in accordance with the Contract Documents.
13 2.3.2 As of the Effective Date, based upon Developer’s Reasonable Investigation, 14 Developer has evaluated the constraints affecting design and construction of the Project, 15 including the limits of the Schematic ROW as well as the conditions of the NEPA Approval, 16 and has concluded that the Project can be designed and built within such constraints.
17 2.3.3 Developer has evaluated the feasibility of performing the Work within the 18 Completion Deadlines and for the Contract Price, accounting for constraints affecting the 19 Project, and has concluded that such performance (including achievement of Substantial 20 Completion and Final Acceptance by the applicable Completion Deadlines for the 21 Contract Price) is feasible and practicable.
22 2.3.4 Prior to the Proposal Due Date, Developer conducted a Reasonable 23 Investigation and as a result of such Reasonable Investigation is familiar with and accepts 24 the requirements of the Work.
25 2.3.5 Developer has familiarized itself with the requirements of any and all 26 applicable Laws and the conditions of any required Governmental Approvals prior to 27 entering into this Agreement. Developer shall obtain and maintain each and every 28 Governmental Approval in due course so as to enable the Work to proceed in accordance 29 with the Contract Documents.
30 2.3.6 Developer has familiarized itself with the requirements of the Local 31 Jurisdictions and the conditions therein prior to entering into this Agreement. Developer 32 shall comply with all such requirements to enable the Work to proceed in accordance with 33 the Contract Documents.
34 2.3.7 All Work furnished by Developer shall be performed by or under the 35 supervision of Persons who hold all necessary and valid licenses to perform the Work in 36 the State, by personnel who are careful, skilled, experienced, and competent in their 37 respective trades or professions, who are professionally qualified to perform the Work in 1 accordance with the Contract Documents, and who shall assume professional 2 responsibility for the accuracy and completeness of the Design Documents, Construction 3 Documents, and other documents prepared or checked by them.
4 2.3.8 As of the Effective Date, Developer is a Joint Venture, duly organized and 5 validly existing under the laws of the state of Arizona with all requisite power and all 6 required licenses to carry on its present and proposed obligations under the Contract 7 Documents. Developer has full power, right, and authority to execute and deliver the 8 Contract Documents and the Subcontracts to which Developer is (or will be) a party and 9 to perform each and every obligation of Developer therein.
10 2.3.9 Developer is duly qualified to do business, and is in good standing, in the 11 State as of the Effective Date, and will remain in good standing during the Work and for 12 as long thereafter as any obligations remain outstanding under the Contract Documents.
13 2.3.10 At any time a Guaranty is required to be in place pursuant to the Contract 14 Documents, the applicable Guarantor is duly organized, validly existing, and in good 15 standing under the laws of the state of its organization, and, except for Guarantor Xxxxxxxx 00 Flatiron 16 Construction Corp., is duly qualified to do business in, and is in good standing in, the 17 State. Guarantor shall remain in good standing for as long as any obligations guaranteed 18 by such Guarantor remain outstanding under the Contract Documents, and, each such 19 Guarantor has all requisite power and all required licenses to carry on its present and 20 proposed obligations under the Contract Documents. In the case of Guarantor Xxxxxxxx 00 Flatiron 21 Construction Corp., it is not doing business in the State, is not qualified to do business in 22 the State, and has not obtained a certificate of good standing in the State; however, 23 Guarantor Flatiron Construction Corp. has all requisite power to carry out its present and 24 proposed obligations under the Guaranty and the Contract Documents.
25 2.3.11 At any time a Guaranty is required to be in place pursuant to the Contract 26 Documents, all required approvals have been obtained with respect to the execution, 27 delivery, and performance of such Guaranty, and performance of such Guaranty will not 28 result in a breach of or a default under the applicable Guarantor’s organizational 29 documents or any indenture or loan or credit agreement or other material agreement or 30 instrument to which the applicable Guarantor is a party or by which its properties and 31 assets may be bound or affected.
32 2.3.12 Each Guaranty has been duly authorized by all necessary corporate action, 33 has been duly executed and delivered by each Guarantor, and constitutes the legal, valid, 34 and binding obligation of such Guarantor, enforceable in accordance with its terms, 35 subject only to applicable bankruptcy, insolvency, and similar laws affecting the 36 enforceability of the rights of creditors generally and the general principles of equity.
37 2.3.13 The execution, delivery, and performance of the Contract Documents and 38 the Subcontracts to which Developer is (or will be) a party have been (or will be) duly 39 authorized by all necessary corporate action of Developer; each person executing the 40 Contract Documents and the Subcontracts on behalf of Developer has been (or at the 41 time of execution will be) duly authorized to execute and deliver each such document on 1 behalf of Developer; and the Contract Documents and the Subcontracts have been (or 2 will be) duly executed and delivered by Xxxxxxxxx.
3 2.3.14 Neither the execution and delivery by Developer Xxxxxxxxx of the Contract Documents 4 or the Subcontracts to which Developer is (or will be) a party, nor the consummation of 5 the transactions contemplated hereby or thereby, is (or at the time of execution will be) in 6 conflict with or has resulted or will result in a default under or a violation of the governing 7 instruments or organizational documents of Developer or a breach or default under any 8 indenture or loan or credit agreement or other material agreement or instrument to which 9 Developer is a party or by which its properties and assets may be bound or affected.
10 2.3.15 Each of the Contract Documents and the Subcontracts to which Developer 11 is (or will be) a party constitutes (or at the time of execution and delivery will constitute) 12 the legal, valid, and binding obligation of Developer, enforceable against Developer, in 13 accordance with its terms, subject only to applicable bankruptcy, insolvency, and similar 14 laws affecting the enforceability of the rights of creditors generally and to general 15 principles of equity.
16 2.3.16 As of the Effective Date, there is no action, suit, proceeding, investigation 17 or litigation pending and served, or of which Developer is otherwise aware, against 18 Developer which challenges Xxxxxxxxx’s authority to execute, deliver or perform, or the 19 validity or enforceability of, the Contract Documents or the Subcontracts to which 20 Developer is a party, or which challenges the authority of any of Developer’s officials that 21 are executing the Contract Documents or the Subcontracts; and Developer has disclosed 22 to ADOT prior to the Effective Date any pending and un-served or threatened action, suit, 23 proceeding, investigation or litigation with respect to such matters of which Xxxxxxxxx is 24 aware.
25 2.3.17 As of the Proposal Due Date, Developer disclosed to ADOT in writing all 26 organizational conflicts of interest of Developer and its Subcontractors of which Developer 27 was actually aware; and between the Proposal Due Date and the Effective Date, 28 Developer has not obtained knowledge of any additional organizational conflict of interest, 29 and there have been no organizational changes to Developer or its Subcontractors 30 identified in its Proposal that have not been approved in writing by ADOT. For this 31 purpose, organizational conflict of interest has the meaning set forth in the RFP.
32 2.3.18 To the extent the Lead Engineering Firm is not Developer, Developer 33 represents and warrants, as of the effective date of the relevant Subcontract between 34 Developer and the Lead Engineering Firm, as follows:
(a) The Lead Engineering Firm is duly organized, validly existing, and in 36 good standing under the laws of the state of its organization and is duly qualified to do 37 business, and is in good standing, in the State; 38 (b) The ownership interests of the Lead Engineering Firm are owned by 39 the Persons whom Xxxxxxxxx has set forth in a written certification delivered to ADOT 40 prior to the Effective Date;
Appears in 1 contract
Samples: Design Build Agreement
Representations, Warranties and Covenants of Developer. 8 28 Developer makes the representations, warranties, warranties and covenants set forth in this 9 29 Section 2.3.
10 30 2.3.1 During all periods necessary for the performance of the Work, all Developer- 11 Related Entities 31 Developer and its Subcontractors shall maintain all required authority, licenses, 32 registrations, professional 12 ability, skills and skills capacity to perform the Work in accordance 33 with the requirements contained in the Contract Documents.
13 34 2.3.2 As of the Effective Date, based upon Developer’s Reasonable 35 Investigation, 14 Developer has evaluated the constraints affecting design and construction 36 of the Project, 15 including the limits of the Schematic ROW as well as the conditions of the 1 NEPA Approval, 16 and has concluded reasonable grounds for believing and does believe that the 2 Project can be designed and built within such constraints.
17 3 2.3.3 Developer has evaluated the feasibility of performing the D&C Work 4 within the 18 Completion Deadlines and for the Contract D&C Price, accounting for constraints 5 affecting the 19 Project, including the Maximum Allowable Cumulative Draw Schedule set 6 forth in Exhibit 6 and the assumed NTP 3 Window, and has concluded reasonable grounds for 7 believing and does believe that such performance (including achievement of Substantial 20 8 Completion and Final Acceptance by the applicable Completion Deadlines for the 21 Contract D&C 9 Price) is feasible and practicable, subject to Developer’s right to seek relief for 10 Necessary Schematic ROW changes under Article 14.
22 11 2.3.4 Developer has evaluated the feasibility of performing the Maintenance 12 Services throughout the Maintenance Period and for the Maintenance Price and has 13 reasonable grounds for believing and does believe that such performance is feasible 14 and practicable.
15 2.3.5 Prior to the Proposal Due DateDate and in accordance with Good Industry 16 Practice, Developer Xxxxxxxxx conducted a Reasonable 23 Investigation and as a result of such 17 Reasonable Investigation is familiar with and accepts 24 the physical requirements of the 18 Work, subject to Developer’s right to seek relief under Article 14.
25 2.3.5 19 2.3.6 Developer has familiarized itself with the requirements of any and all 26 20 applicable Laws and the conditions of any required Governmental Approvals prior to 27 21 entering into this Agreement. As of the Effective Date, Developer shall obtain and maintain each and every 28 has no reason to 22 believe that any Governmental Approval required to be obtained by Developer will not 23 be granted in due course and thereafter remain in effect so as to enable the Work to 24 proceed in accordance 29 with the Contract Documents.
30 2.3.6 Developer has familiarized itself with the requirements of the Local 31 Jurisdictions and the conditions therein prior to entering into this Agreement. Developer 32 shall comply with all such requirements to enable the Work to proceed in accordance with 33 the Contract Documents.
34 25 2.3.7 All Work furnished by Developer shall be performed by or under the 35 26 supervision of Persons who hold all necessary and valid licenses to perform the Work in 36 27 the State, by personnel who are careful, skilled, experienced, experienced and competent in their 37 28 respective trades or professions, who are professionally qualified to perform the Work in 1 29 accordance with the Contract Documents, Documents and who shall assume professional 2 30 responsibility for the accuracy and completeness of the Design Documents, 31 Construction 3 Documents, Documents and other documents prepared or checked by them.
4 32 2.3.8 As of the Effective Date, Developer is a Joint Venture, duly organized and 5 validly existing under the laws of the state of Arizona with all requisite power and all 6 required licenses to carry on its present and proposed obligations under the Contract 7 Documents. Developer has full power, right, and authority to execute and deliver the 8 Contract Documents and the Subcontracts to which Developer is (or will be) a party and 9 to perform each and every obligation of Developer therein.
10 2.3.9 Developer is duly qualified to do business, and is in good standing, in the 11 State as of the Effective Date, and will remain in good standing during the Work and for 12 as long thereafter as any obligations remain outstanding under the Contract Documents.
13 2.3.10 At any time a Guaranty is required to be in place pursuant to the Contract 14 Documents, the applicable Guarantor is duly organized, validly existing, and in good 15 standing under the laws of the state of its organization, and, except for Guarantor Xxxxxxxx 00 Construction Corp., is duly qualified to do business in, and is in good standing in, the 17 State. Guarantor shall remain in good standing for as long as any obligations guaranteed 18 by such Guarantor remain outstanding under the Contract Documents, and, each such 19 Guarantor has all requisite power and all required licenses to carry on its present and 20 proposed obligations under the Contract Documents. In the case of Guarantor Xxxxxxxx 00 Construction Corp., it is not doing business in the State, is not qualified to do business in 22 the State, and has not obtained a certificate of good standing in the State; however, 23 Guarantor Flatiron Construction Corp. has all requisite power to carry out its present and 24 proposed obligations under the Guaranty and the Contract Documents.
25 2.3.11 At any time a Guaranty is required to be in place pursuant to the Contract 26 Documents, all required approvals have been obtained with respect to the execution, 27 delivery, and performance of such Guaranty, and performance of such Guaranty will not 28 result in a breach of or a default under the applicable Guarantor’s organizational 29 documents or any indenture or loan or credit agreement or other material agreement or 30 instrument to which the applicable Guarantor is a party or by which its properties and 31 assets may be bound or affected.
32 2.3.12 Each Guaranty has been duly authorized by all necessary corporate action, 33 has been duly executed and delivered by each Guarantor, and constitutes the legal, valid, 34 and binding obligation of such Guarantor, enforceable in accordance with its terms, 35 subject only to applicable bankruptcy, insolvency, and similar laws affecting the 36 enforceability of the rights of creditors generally and the general principles of equity.
37 2.3.13 The execution, delivery, and performance of the Contract Documents and 38 the Subcontracts to which Developer is (or will be) a party have been (or will be) duly 39 authorized by all necessary corporate action of Developer; each person executing the 40 Contract Documents and the Subcontracts on behalf of Developer has been (or at the 41 time of execution will be) duly authorized to execute and deliver each such document on 1 behalf of Developer; and the Contract Documents and the Subcontracts have been (or 2 will be) duly executed and delivered by Xxxxxxxxx.
3 2.3.14 Neither the execution and delivery by Developer of the Contract Documents 4 or the Subcontracts to which Developer is (or will be) a party, nor the consummation of 5 the transactions contemplated hereby or thereby, is (or at the time of execution will be) in 6 conflict with or has resulted or will result in a default under or a violation of the governing 7 instruments or organizational documents of Developer or a breach or default under any 8 indenture or loan or credit agreement or other material agreement or instrument to which 9 Developer is a party or by which its properties and assets may be bound or affected.
10 2.3.15 Each of the Contract Documents and the Subcontracts to which Developer 11 is (or will be) a party constitutes (or at the time of execution and delivery will constitute) 12 the legal, valid, and binding obligation of Developer, enforceable against Developer, in 13 accordance with its terms, subject only to applicable bankruptcy, insolvency, and similar 14 laws affecting the enforceability of the rights of creditors generally and to general 15 principles of equity.
16 2.3.16 As of the Effective Date, there is no action, suit, proceeding, investigation 17 or litigation pending and served, or of which Developer is otherwise aware, against 18 Developer which challenges Xxxxxxxxx’s authority to execute, deliver or perform, or the 19 validity or enforceability of, the Contract Documents or the Subcontracts to which 20 Developer is a party, or which challenges the authority of any of Developer’s officials that 21 are executing the Contract Documents or the Subcontracts; and Developer has disclosed 22 to ADOT prior to the Effective Date any pending and un-served or threatened action, suit, 23 proceeding, investigation or litigation with respect to such matters of which Xxxxxxxxx is 24 aware.
25 2.3.17 As of the Proposal Due Date, Developer disclosed to ADOT in writing all 26 organizational conflicts of interest of Developer and its Subcontractors of which Developer 27 was actually aware; and between the Proposal Due Date and the Effective Date, 28 Developer has not obtained knowledge of any additional organizational conflict of interest, 29 and there have been no organizational changes to Developer or its Subcontractors 30 identified in its Proposal that have not been approved in writing by ADOT. For this 31 purpose, organizational conflict of interest has the meaning set forth in the RFP.
32 2.3.18 To the extent the Lead Engineering Firm is not Developer, Developer 33 represents and warrants, as of the effective date of the relevant Subcontract between 34 Developer and the Lead Engineering Firm, as follows:
(a) The Lead Engineering Firm is duly organized, validly existing, and in 36 good standing under the laws of the state of its organization and is duly qualified to do 37 business, and is in good standing, in the State; 38 (b) The ownership interests of the Lead Engineering Firm are owned by 39 the Persons whom Xxxxxxxxx has set forth in a written certification delivered to ADOT 40 prior to the Effective Date;[NTD – INSERT
Appears in 1 contract
Samples: Design Build Maintain Agreement
