Representations, Warranties, and Covenants of DBT. DBT makes the representations, warranties, and covenants set forth in this Section 2.3. 2.3.1 During all periods necessary for the performance of the Work, all DBT-Related Entities shall maintain all required authority, licenses, registrations, professional ability, and skills to perform the Work in accordance with the Contract Documents. 2.3.2 As of the Effective Date, based upon DBT’s Reasonable Investigation, DBT has evaluated the constraints affecting design and construction of the Project, including the limits of the Schematic ROW as well as the conditions of the NEPA Approval, and has concluded that the Project can be designed and built within such constraints. 2.3.3 DBT has evaluated the feasibility of performing the Work within the Completion Deadlines and for the Contract Price, accounting for constraints affecting the Project, and has concluded that such performance (including achievement of Substantial Completion and Final Acceptance by the applicable Completion Deadlines for the Contract Price) is feasible and practicable. 2.3.4 Prior to the Proposal Due Date, DBT conducted a Reasonable Investigation and as a result of such Reasonable Investigation is familiar with and accepts the requirements of the Work. 2.3.5 DBT has familiarized itself with the requirements of any and all applicable Laws and the conditions of any required Governmental Approvals prior to entering into this Agreement. DBT shall obtain and maintain each and every Governmental Approval in due course so as to enable the Work to proceed in accordance with the Contract Documents. 2.3.6 DBT has familiarized itself with the requirements of the Commonwealth and the County of Washington and the conditions therein prior to entering into this Agreement. DBT shall comply with all such requirements to enable the Work to proceed in accordance with the Contract Documents. 2.3.7 All Work furnished by DBT shall be performed by or under the supervision of Persons who hold all necessary and valid licenses to perform the Work in the Commonwealth, by personnel who are careful, skilled, experienced, and competent in their respective trades or professions, who are professionally qualified to perform the Work in accordance with the Contract Documents, and who shall assume professional responsibility for the accuracy and completeness of the Design Documents, Construction Documents, and other documents prepared or checked by them. 2.3.8 The standard of care for all Work performed or furnished under this Agreement shall be the care and skill ordinarily used by members of the engineering profession practicing under similar conditions at the same time and locality." 2.3.9 As of the Effective Date, DBT is a [FORM OF ORGANIZATION – CORPORATION/JOINT VENTURE/LLC], duly organized and validly existing under the laws of the Commonwealth of Kentucky with all requisite power and all required licenses to carry on its present and proposed obligations under the Contract Documents. DBT has full power, right, and authority to execute and deliver the Contract Documents and the Subcontracts to which DBT is (or will be) a party and to perform each and every obligation of DBT therein. 2.3.10 DBT is duly qualified to do business, and is in good standing, in the Commonwealth as of the Effective Date, and will remain in good standing during the Work and for as long thereafter as any obligations remain outstanding under the Contract Documents. 2.3.11 The execution, delivery, and performance of the Contract Documents and the Subcontracts to which DBT is (or will be) a party have been (or will be) duly authorized by all necessary corporate action of DBT; each person executing the Contract Documents and the Subcontracts on behalf of DBT has been (or at the time of execution will be) duly authorized to execute and deliver each such document on behalf of DBT; and the Contract Documents and the Subcontracts have been (or will be) duly executed and delivered by DBT. 2.3.12 Neither the execution and delivery by DBT of the Contract Documents or the Subcontracts to which DBT is (or will be) a party, nor the consummation of the transactions contemplated hereby or thereby, is (or at the time of execution will be) in conflict with or has resulted or will result in a default under or a violation of the governing instruments or organizational documents of DBT or a breach or default under any indenture or loan or credit agreement or other material agreement or instrument to which DBT is a party or by which its properties and assets may be bound or affected. 2.3.13 Each of the Contract Documents and the Subcontracts to which DBT is (or will be) a party constitutes (or at the time of execution and delivery will constitute) the legal, valid, and binding obligation of DBT, enforceable against DBT, in accordance with its terms, subject only to applicable bankruptcy, insolvency, and similar laws affecting the enforceability of the rights of creditors generally and to general principles of equity. 2.3.14 As of the Effective Date, there is no action, suit, proceeding, investigation or litigation pending and served, or of which DBT is otherwise aware, against DBT which challenges DBT’s authority to execute, deliver or perform, or the validity or enforceability of, the Contract Documents or the Subcontracts to which DBT is a party, or which challenges the authority of any of DBT’s officials that are executing the Contract Documents or the Subcontracts; and DBT has disclosed to KYTC prior to the Effective Date any pending and un-served or threatened action, suit, proceeding, investigation or litigation with respect to such matters of which DBT is aware. 2.3.15 As of the Proposal Due Date, DBT disclosed to KYTC in writing all organizational conflicts of interest of DBT and its Subcontractors of which DBT was actually aware; and between the Proposal Due Date and the Effective Date, DBT has not obtained knowledge of any additional organizational conflict of interest, and there have been no organizational changes to DBT or its Subcontractors identified in its Proposal that have not been approved in writing by KYTC. For this purpose, organizational conflict of interest has the meaning set forth in the RFP. 2.3.16 To the extent the Lead Contractor is not DBT, DBT represents and warrants, as of the Effective Date of the relevant Subcontract between DBT and the Lead Contractor, as follows: (a) The Lead Contractor is duly organized, validly existing, and in good standing under the laws of the Commonwealth of its organization and is duly qualified to do business, and is in good standing, in the Commonwealth; (b) The ownership interests of the Lead Contractor are owned by the Persons whom DBT has set forth in a written certification delivered to KYTC prior to the Effective Date; (c) The Lead Contractor has the power and authority to do all acts and things and execute and deliver all other documents as are required to be done, observed or performed by it in connection with its engagement by DBT; (d) The Lead Contractor has (i) obtained and will maintain all necessary or required registrations, permits, licenses, and approvals required under applicable Law and (ii) the expertise, qualifications, experience, competence, skills, and know-how to perform the Work in accordance with the Contract Documents; (e) The Lead Contractor will comply with all health, safety, and Environmental Laws in the performance of any Work activities for, or on behalf of, DBT for the benefit of KYTC; and (f) The Lead Contractor is not in breach of any applicable Law that would have a material adverse effect on any aspect of the Work. 2.3.17 DBT, on behalf of itself and all DBT-Related Entities, warrants compliance with all federal immigration laws and regulations that relate to their employees. A breach of this warranty shall be deemed a material breach of the Agreement that is subject to penalties up to and including termination of the Agreement. KYTC retains the legal right to inspect the papers of any employee who performs any of the Work hereunder to ensure compliance with this warranty. 2.3.18 This Agreement shall be subject to available funding, and nothing in this Agreement shall bind the Commonwealth to expenditures in excess of funds appropriated or otherwise allotted for the purposes outlined in this Agreement.
Appears in 2 contracts
Sources: Design Build Agreement, Design Build Agreement