Energy-generating facilities and infrastructure facilities are typically constructed pursuant to engineering, procurement, and construction (“EPC”) agreements that are based on guaranteed performance criteria and subject to performance testing for acceptance rather than architectural specifications. Drinker Biddle lawyers have drafted and negotiated EPC agreements for a wide variety of facilities such as:
Conventional power plants, including coal, natural gas, waste coal and nuclear;
Renewable energy facilities, including solar, biomass, landfill gas, wind geothermal, hydroelectric and tidal; and
Water and wastewater disposal facilities.
Other infrastructure projects, including oil refineries, offshore drilling rigs, pulp de-inking facilities and toll roads.
In addition to traditional construction contracts, we are familiar with turbine sales and erection agreements used in wind and natural gas facilities, master service agreements used for oil and gas field construction activities, and guaranteed energy savings agreements used in connection with energy efficiency improvements.
Energy and infrastructure construction contracts are critical to project financings for such facilities. Contracts typically contain performance-based liquidated damages for failure to achieve output and efficiency guarantees as well as delay-based liquidated damages, which assure lenders that financial projections will be met. Drinker Biddle lawyers understand lenders’ requirements and how a project can ensure they are adequately addressed.
Obtaining land use and environmental approvals is a key to any construction process. We help to identify all needed permits and draft construction agreements that clearly allocate the roles of the parties in obtaining them. We assist with permitting processes and engage with agencies and stakeholders. For our development clients we often create and execute plans to preempt, manage and mitigate public controversy and stakeholder intervention. When needed, we have a successful record of defending permits in litigation.
Most construction projects require technology rights, ranging from patented cleantech or nuclear hardware to proprietary software for systems management or emissions tracking. Drinker Biddle lawyers work to craft licenses and warranties for proprietary technology and protect intellectual property used in, or arising from, the design process. We also document assurances as to the future availability of proprietary spare parts.
Drinker Biddle drafts agreements with clear change order and risk allocation provisions to avoid disputes that can slow construction. We draft and negotiate dispute resolution provisions intended to resolve matters promptly if controversy does arise. When all else fails, Drinker Biddle lawyers have a record of successful construction litigation in courts throughout the United States.