Climate clause

GHG Emissions Management Plans in Infrastructure and Construction Project Finance [New]

Rose's Clause

Rose's Clause builds climate change mitigation into the environmental/ social standards in Development Finance Institution (DFI) or Export Credit Agency (ECA) finance transactions.

This is a climate clause

This clause brings climate considerations to your drafting. It is not yet net zero aligned. To align this clause with net zero, use our toolkit or join one of our events.

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Why use this?

By incorporating this clause to address climate change risks and incentivise whole life decarbonisation of assets, loan facilities will be more resilient in the medium to long term and are more likely to increase or retain an asset’s value, instead of the additional costs or capital that may otherwise be required.

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The clauses on this website (and published in our Climate Contract Playbook) have been prepared in good faith on a pro bono basis and are free to download and use. The clauses have been drafted and edited by a variety of lawyers and, as such, the approaches to drafting may not conform to any particular drafting norms. We acknowledge this as a consequence of the collaborative drafting process.

The clauses on this website (and published in our Climate Contract Playbook) are provided on an ‘as is’ basis and without any representation or warranty as to accuracy or that the clauses will achieve the relevant climate goal or any other outcome.

This website (and the Climate Contract Playbook) does not comprise, constitute or provide personal, specific or individual recommendations or advice of any kind, and does not contain legal or financial advice. The clauses are precedents for legal professionals to use, amend and negotiate using their professional skill and judgement and at their own risk.

While care has been taken in the drafting of these clauses, neither The Chancery Lane Project nor any of its contributors owe a duty of care to any party in relation to their preparation and do not accept any liability for any errors or omissions, nor for any loss incurred by any person relying on or using these clauses or any other person. Users should use their own professional judgement in the application of these clauses to any particular circumstance or jurisdiction or seek independent legal advice.

At present, all the clauses are based on the laws of England and Wales. We encourage the conversion of these precedent clauses for use in other jurisdictions.

The clause

Additional Recital

(A) Insert Eddie’s Recitals (Climate Recitals).

 

Additional Definitions [Applicable to Parts A and B]

[Adaptation and Resilience Action Plan means the adaptation and resilience action plan for the Project satisfactory to the ICCC that identifies (without limitation):

(a) any local risks of climate change, [Drafting note: Consider how the identification of climate risks will impact the planning aspects of the project]

(b) how such risks will impact the Project and local communities (in particular any vulnerable or disproportionately affected communities),

(c) actions needed to mitigate those risks,

(d) delivery partners and funding sources to mitigate those risks [Drafting Note: Consider including support from the lender(s) in finding or accessing funding and mitigating risks], and

(e) how the [Borrower] will implement, monitor and maintain the Adaptation and Resilience Plan.]

Carbon Budget means the aggregate of [value] tonnes of Carbon Dioxide Equivalent of Scope 1, 2 and 3 Greenhouse Gas Emissions permitted for all activities associated with the Project for each of the Construction Phase and the Operations Phase as set out in the Construction Phase GHG Emissions Management Plan and the Operations Phase GHG Emissions Management Plan respectively and itemised per activity.

Carbon Dioxide Equivalent (CO2e or CO2eq) means the standard metric measure used to compare the emissions from various Greenhouse Gases (GHGs) on the basis of their global warming potential over a specified timescale.

Climate Account means the bank account opened at [insert name of bank] by the Borrower in which the Borrower will [annually] maintain an amount of funding equal to the Climate Budget

Climate Budget means the [annual] budget relating to the Project to enable the Borrower to meet its obligations under [the [Adaptation and Resilience Action Plan and] the GHG Emissions Obligations.

Climate Professional means an appropriately qualified [environmental, sustainability, net zero] consultant who has the skills and experience to diligently, competently and professionally, advise on, monitor and report on structures and systems to achieve and measure Net Zero, environmental and/or sustainability targets of the project, monitor compliance with the environmental and/or sustainability targets connected with the project, assess environmental and/or sustainability and/or climate related risks and to perform any required environmental and/or sustainability and/or climate consultancy services in accordance with this agreement.

Contractor Climate Obligations means the contractual obligations that the [Borrower] will (i) include in each contract with contractors for the construction, operation, maintenance [and decommissioning] of the Project, and (ii) require each contractor to include in its contracts with any sub-contractors, to ensure that the [Project] is constructed, operated, maintained [and decommissioned] in accordance with [the Adaptation and Resilience Action Plan], the Construction Phase GHG Emissions Management Plan and the Operations Phase GHG Emissions Management Plan.

Construction Phase means the period from the commencement of design, development, pre-construction, construction and commissioning of the Project until the commencement of the Operations Phase [and including without limitation all life-cycle stages of the Project, from raw material extraction, product manufacturing and transport and installation on site]. [Drafting Note: Consider how controls can be incorporated into the tender stage before this, in order to promote early dialogue to embed net zero into the supply chain]

Construction Phase GHG Emissions Management Plan means the GHG Emissions management plan to ensure that the Construction Phase is Net Zero, including:

(a) a Carbon Budget for the Construction Phase [Drafting Note: consider whether it would be appropriate in a longer term project to include a mechanism to adjust the Carbon Budget and the Management Plan to reflect increased ambition or changes in circumstances];

(b) full consideration of where different methods or materials could be used to achieve GHG Emissions reductions in order to meet the Carbon Budget and, where possible reduce it;

(c) an Offsetting Strategy [for the Construction Phase];

(d) [benchmarking against similar projects and consideration of how further emissions reductions that are not possible in this Project could be achieved in future projects]; and

(e) full details of how the Construction Phase will be Net Zero,  

dated [●] as amended from time to time with the consent of [the Lenders].

[Drafting Note: Technical advice will be required to ensure, to the extent possible, that the Plan takes into account all life-cycle stages of the project, from raw material extraction, product manufacturing and transport and installation on site. Take into account new technology or techniques that may impact emissions. Consider also if the Plan should include design development, which plays a significant role in the completed Works’ functionality during the operations phase.]

Corrective Action Plan means a plan produced by the Borrower pursuant to Clause 1.2 (GHG Emissions Trigger Events) specifying in detail the corrective action (including the timings and responsibility for such action(s)) being taken or proposed to be taken in order to remedy or mitigate a GHG Emissions Trigger Event, as may be amended or updated from time to time with the consent of [the Lenders].

GHG Emissions Obligations means the obligations of any person to:

(a) comply with the requirements of the Construction Phase GHG Emissions Management Plan and the Operations Phase GHG Emissions Management Plan (including without limitation the respective Carbon Budgets contained in each); or

(b) comply with the requirements of any GHG Emissions Corrective Action Plan, in each case in relation to the Project.

GHG Emissions Obligation Breach means a breach of any GHG Emissions Obligation other than any such breach that has been disclosed to [the Lenders] and where such breach has resulted in corrective action under any Corrective Action Plan or other corrective action otherwise agreed with [the Lenders].

GHG Emissions Self-Monitoring Reports means the reports required pursuant to Clause 1.1 (GHG Emissions Self-Monitoring Reports).

GHG Emissions Trigger Event means a GHG Emissions Obligation Breach.

Greenhouse Gases or GHG means the natural and anthropogenic gases which trap thermal radiation in the earth’s atmosphere and as specified in Annex A to the Kyoto Protocol to the United Nations Framework Convention on Climate Change (UNFCCC), as may be amended from time to time, and which include carbon dioxide (CO2), methane (CH4), nitrous oxide (N2O), hydrofluorocarbons (HFCs), perfluorocarbons (PFCs), sulphur hexafluoride (SF6) and nitrogen trifluoride (NF3) each expressed as a total in units of Carbon Dioxide Equivalent (CO2e).

Greenhouse Gas Emissions or GHG Emissions means a party’s emissions of GHGs from all sources, categorised as scope 1, 2, and 3 emissions by The Greenhouse Gas Protocol: A Corporate Accounting and Reporting Standard, Revised Edition 2015 published by the Greenhouse Gas Protocol. 

[ICCC means the Climate Professional acceptable to [the Lenders] appointed as the independent climate change consultant pursuant to the ICCC Contract.]

[ICCC Contract means the contract or engagement letter for the monitoring of the GHG Emissions Obligations in respect of the Project, entered into or, as the context may require, to be entered into between [the Lenders] and the ICCC.]

Net Zero means a state of balance between all of the sources and sinks of GHG Emissions in each calendar year achieved by both an overall reduction and removal of emissions of GHGs to achieve the goals of the Paris Agreement.

[Drafting Note: The early involvement of the contractor and supply chain in consultation with the climate consultant will be critical to achieve Net Zero]

Offsetting Strategy means a plan specifying how, in the relevant phase:

(a) carbon credits will be purchased by the Borrower from a project that has been verified in accordance with [insert name of voluntary standard] or under the United Nations Framework Convention on Climate Change (UNFCCC) clean development mechanism (CDM) [or [successor/ equivalent] UNFCCC mechanism] to offset its Residual Emissions (including, where relevant, verified projects within the Borrower’s own supply chain or supply chain communities);

(b) the emissions of GHG avoided, reduced or removed by the project are additional;

(c) the Borrower will transition from using credits resulting from offsetting projects that avoid or reduce third party emissions of GHG to those from projects that remove emissions of GHG and involve long-term storage methods that have a low risk of reversal [over millennia];

(d) the Borrower will reduce its use of credits by reducing its Residual Emissions [to zero/ by [x] %] by 2050; and

(e) the relevant offsetting projects impact on a just transition and wider social and ecological goals.

Operations Phase means the period commencing on the date the [operator takes over responsibility for the Project] [until the Facility is repaid in full and all the obligations of the Borrower under the Finance Documents have been paid or discharged in full] [up to the date the Project is decommissioned] [and including without limitation operation, maintenance and material disposal or all elements of the Project].

Operations Phase GHG Emissions Management Plan means the GHG Emissions management plan to ensure that the Operations Phase is Net Zero, including:

(a) a Carbon Budget for the Operations Phase [Drafting Note: consider whether it would be appropriate in a longer term project to include a mechanism to adjust the Carbon Budget and the Management Plan to reflect increased ambition or changes in circumstances];

(b) full consideration of where different methods or materials could be used to achieve GHG Emissions reductions in order to meet the Carbon Budget and, where possible reduce it;

(c) an Offsetting Strategy [for the Operations Phase];

(d) [benchmarking against similar projects and consideration of how further emissions reductions that are not possible in this Project could be achieved in future projects;] and

(e) full details of how the Operations Phase will be Net Zero,

dated [●] and produced in accordance with Clause 1.4 (Operations Phase GHG Emissions Management Plan), as may be amended or updated from time to time with the consent of [the Lenders].

[Drafting Note: This will need to cover the operation, maintenance and eventual material disposal. Drafters may consider including the recycling or reusing of materials]

Project means [●]. 

Residual Emissions means the GHG Emissions that are emitted after all reasonable efforts have been made by [the parties/the Borrower/the Contractor] to reduce GHG Emissions.

 

Additional Clauses

CONSTRUCTION [Applicable to Parts A and B]

A GHG Emissions Trigger Event is “continuing” unless [the Lenders] have determined that it has been remedied. 

PART A – FOR INCLUSION IN FINANCING DOCUMENTS

All clauses in this Part A are the “Lenders’ Climate Requirements

CONDITIONS PRECEDENT

(a) [The Borrower has opened the Climate Account and deposited an amount equal to the Climate Budget for the first year of [this Agreement]];

(b) Adoption of a Construction Phase GHG Emissions Management Plan satisfactory to the ICCC; and

(c) Evidence that any actions required to be undertaken before the first utilisation date pursuant to the Construction Phase GHG Emissions Management Plan have been duly undertaken; 

(d) A template GHG Emissions Self-Monitoring Report for the Construction Phase prepared by the Borrower that is satisfactory to the [ICCC] [and the Lenders]; 

(e) [A certified copy of the duly executed ICCC Contract in form and substance acceptable to the Lenders [together with confirmation from the ICCC entitling [the Lenders] to rely on its reports]]; [and]

(f) Evidence satisfactory to the [ICCC] [Lenders] that the Borrower has entered into a contract with the [EPC/O&M/Design and Build] that contains the Contractor Climate Obligations. 

REPRESENTATIONS AND WARRANTIES

(a) No GHG Emissions Trigger Events have occurred and are continuing.

(b) [As far as it is aware [(having made all reasonable enquiries)], it has not omitted to provide [the Lenders] with any information in its possession which, had it been provided, would have resulted in any GHG Emissions report, audit or assessment being materially inaccurate or incomplete, and all information provided to [the Lenders] is, to the best of its knowledge [(having made all reasonable enquiries)], correct and up-to-date.]

(c) The Borrower will maintain an amount equal to the Climate Budget in the Climate Account. 

(d) The Borrower will within [insert time period] of entering into this agreement publicly set an organisational Net Zero target [validated by the Science Based Targets initiative][and sign up to Race to Zero.]

[Drafting Note: only to be included where achievable in the Borrower’s circumstances, and possibly with a commitment from the Lender to provide support and collaboration in doing so. Depending on the capabilities of the Borrower, the Lender may wish to incorporate other organisational requirements featured in TCLP clauses (https://chancerylaneproject.org/climate-clauses/) around governance, just transition, climate policy engagement and employee training and education, see the Net Zero Drafting Checklist.]

COVENANTS

1.1 GHG Emissions Self-Monitoring Reports

(a) The Borrower shall provide a report to [the Lenders] in a form and substance acceptable to [the ICCC] [and/or Lenders] at the times set out in paragraph (b) or (c) below, containing the following:

(i) a statement that (and details of how):

(A) (in respect of the first GHG Emissions Self-Monitoring Report) all GHG Emissions Obligations have been fulfilled since the date of this Agreement; and

(B) (in respect of each subsequent GHG Emissions Self-Monitoring Report) all GHG Emissions Obligations in the period since the most recent GHG Emissions Self-Monitoring Report have been fulfilled,

or, if it is not able to make such a statement, a disclosure of the GHG Emissions Obligations that have not been fulfilled providing full details of such occurrence and any planned remediation or compliance measures; and

(ii) any other matter pertaining to GHG Emissions in respect of the Project.

(b) The Borrower shall provide a GHG Emissions Self-Monitoring Report within ten (10) Business Days of the end of:

(i) each [three/six] [(3)/(6)] month period during the Construction Phase; and

(ii) each [twelve] [(12)] month period from the commencement of the Operations Phase.

[Drafting Note: Consider whether the borrower may set up a “control team” to report continually to the lenders and liaise with relevant others alongside design development, variations and completion.]

Notwithstanding the reporting requirements above, in the event that the Borrower becomes aware of a GHG Emissions Obligation Breach, or the likelihood of a GHG Emissions Obligation Breach, the Borrower shall notify the [Lenders/ICCC] of the same and provide full details within [x] days of becoming so aware.

[Drafting Note: Consider whether certain GHG Emissions Trigger Events would require more immediate notice than others, such as critical design matters that could impact the Project. This may require technical input.]

(c) If a GHG Emissions Trigger Event has occurred and is continuing, [the Lenders] may require the Borrower to provide GHG Emissions Self-Monitoring Reports on the corrective actions being taken in respect of that GHG Emissions Trigger Event upon request or at such intervals as it may require.

1.2 GHG Emissions Trigger Event

(a) Upon [the Lenders] being notified [Drafting Note: Consider providing for alternative notification periods during any Defects Notification Periods] of the occurrence of a GHG Emissions Trigger Event or determining that a GHG Emissions Trigger Event has occurred, in consultation with the Borrower, it may:

(i) determine that the GHG Emissions Trigger Event can be remedied by the Borrower and that the Borrower shall provide progress reports to [the Lenders] in the GHG Emissions Self-Monitoring Reports in accordance with Clause 1.1 (GHG Emissions Self-Monitoring Reports); 

(ii) require the Borrower to produce a Corrective Action Plan, in which case the Borrower shall, as soon as practicable following such request but in any event within fifteen (15) Business Days of such request, provide a draft Corrective Action Plan for that GHG Emissions Trigger Event to [the Lenders] for its acceptance, which shall not be withheld unreasonably; 

(iii) agree with the Borrower any other course of action to remedy the GHG Emissions Trigger Event; or

(iv) declare that such GHG Emissions Trigger Event is incapable of remedy.

(b) A GHG Emissions Trigger Event will be deemed incapable of remedy to the extent that [the Lenders] notify the Borrower that: 

(i) the GHG Emissions Trigger Event is incapable of remedy in accordance with paragraph (a)(iv) above; or 

(ii) the draft Corrective Action Plan has not been accepted within six (6) months of the request in accordance with the provisions of this Clause 1.2 (GHG Emissions Trigger Event).

(c) Following a request by [the Lenders] to provide a draft Corrective Action Plan in accordance with paragraph (a)(ii) above and pending acceptance by [the Lenders] of any draft Corrective Action Plan, the Borrower shall take or procure the taking of all such actions and measures to immediately address the relevant GHG Emissions Trigger Event, including such actions or measures as are required by any draft Corrective Action Plan in accordance with the timescales set out in that draft Corrective Action Plan.

(d) If [the Lenders] do not accept the draft Corrective Action Plan pursuant to paragraph 1.2(a)(ii) above: 

(i) [the Lenders] shall indicate to the Borrower in which areas the draft plan is deficient and the time period within which a revised draft Corrective Action Plan shall be re-submitted to [the Lenders] for its acceptance; and

(ii) the Borrower shall submit a revised draft Corrective Action Plan after consulting with and taking any views of [the Lenders] fully into account.

(e) If [the Lenders] do not accept the revised draft Corrective Action Plan, which acceptance shall not be withheld unreasonably, submitted pursuant to paragraph (d)(ii) above, [the Lenders] and the Borrower shall repeat the process set out in paragraph (d) above until such time as a revised draft Corrective Action Plan is accepted by [the Lenders]. 

(f) A draft Corrective Action Plan shall be deemed to have been accepted by [the Lenders] thirty (30) Business Days after its submission unless [the Lenders] advises the Borrower otherwise.

(g) After acceptance of the Corrective Action Plan, the Borrower shall take or procure the taking of all such actions and measures as are required by the Corrective Action Plan in accordance with the timescales set out therein.

(h) Every three (3) months from the date on which a Corrective Action Plan is accepted, the Borrower shall provide [the Lenders] with a supplemental GHG Emissions Self-Monitoring Report on the implementation of that Corrective Action Plan, and shall provide a final report to [the Lenders] on completion of the Corrective Action Plan, each such report to be in a form and substance acceptable to [the Lenders].

(i) To the extent that a GHG Emissions Trigger Event is not remedied within the timescales set out in the relevant Corrective Action Plan or in line with the GHG Emissions Management Plan, [the Lenders] may require the Borrower to produce a new Corrective Action Plan or take any other corrective measure in accordance with the procedures set out in Clause 1.2(a).

1.3 Site Visits

(a) The Borrower shall at the request of [the Lenders], ensure access to the Project and arrange for a site visit [Drafting Note: Consider if this should cover the Works’ related areas, such as any off-site elements or factories that the lenders should have access to] by [the Lenders] or their nominated representative [or the ICCC]:*

(i) at any time while a Corrective Action Plan is in place; and

(ii) for the purpose of monitoring the performance of the GHG Emissions Obligations (other than compliance with a Corrective Action Plan),

(A) [in the case of [the Lenders] or their nominated representative] at least once in each twelve (12) month period; and

(B) [in the case of the ICCC, at least every [3/6] months during the Construction Phase [and [6/12] months during the Operations Phase].]

(b) The agenda, scope and (subject to paragraph (a) above) timing of any site visits shall be determined by [the Lenders] or their nominated representative [or the ICCC] following consultation with the Borrower.

(c) The Borrower shall pay all reasonable costs and expenses of [the Lenders] and/or their nominated representatives in relation to each site visit.** To the extent that [the Lenders] or their nominated representative itself was required directly to pay any costs or expenses then the Borrower shall, within seven (7) Business Days of written demand, reimburse [the Lenders] and/or their nominated representative any such amounts incurred provided that such costs and expenses have not been caused or contributed to by any acts or omissions of [the Lenders] and/or their nominated representative.

(d) To the extent reasonably practicable, in advance of any visit to be made by [the Lenders] or their nominated representative [or the ICCC]:

(i) [the Lenders], their nominated representative [or the ICCC] shall provide the Borrower with written details of those matters that [the Lenders], their nominated representative [or the ICCC] wishes to address during the proposed visit in order to assist the Borrower in arranging the visit; and

(ii) the Borrower shall provide [the Lenders] or their nominated representative [or the ICCC] with such up to date information relating to those matters as [the Lenders] or their nominated representative [or the ICCC] may request.

(e) Following any visit made by [the Lenders] or their nominated representative [or the ICCC] the Borrower shall provide such follow up reports or information as [the Lenders] shall request.

* [Drafting Note: Consider including a warranty from the Lenders that they shall not do anything to impede or obstruct the carrying out of the Works/operation of the Project when carrying out its inspections. The Borrower may be under a similar obligation to ensure there are no such impediments to the Construction/O&M Contractor.]

** [Drafting Note: Consider if this is fair (especially in the context of a just transition) or if it would be fairer that the borrower only pays for visits under 1.3(a) (i) and the lenders for visits under 1.3(a) (ii).]

1.4 Operations Phase GHG Emissions Management Plan

(a) The Borrower shall, at least six (6) months before the start of the Operations Phase, provide [the Lenders] with a draft Operations Phase GHG Emissions Management Plan comprising of the GHG Emissions management procedures to ensure that all GHG Emissions Obligations are complied and/or aligned with (as applicable) in relation to the Operations Phase of the Project.

(b) [The Lenders] shall notify the Borrower within one (1) month of receipt whether the draft Operations Phase GHG Emissions Management Plan is accepted, which acceptance shall not be withheld unreasonably.  

(c) If [the Lenders] do not accept the draft Operations Phase GHG Emissions Management Plan submitted pursuant to paragraph (b) above:

(i) [the Lenders] shall indicate to the Borrower in which areas the draft Operations Phase GHG Emissions Management Plan is deficient and the period within which a revised draft Operations Phase GHG Emissions Management Plan shall be resubmitted to [the Lenders]; and 

(ii) the Borrower shall submit a revised draft Operations Phase GHG Emissions Management Plan after consulting with and taking any views of [the Lenders] fully into account. 

(d) If [the Lenders] do not accept the revised draft Operations Phase GHG Emissions Management Plan submitted pursuant to paragraph (c)(ii) above [the Lenders] and the Borrower shall repeat the process set out in paragraph (c) above until such time as a revised draft Operations Phase GHG Emissions Management Plan is accepted. 

(e) A draft Operations Phase GHG Emissions Management Plan shall be deemed to have been accepted by [the Lenders] thirty (30) Business Days after its submission unless [the Lenders] advises the Borrower otherwise.

BREACH 

1.5 GHG Emissions Breach

An [Event of Default]* will be considered to have occurred when:

(a) a GHG Emissions Trigger Event [(arising from a GHG Emissions Obligation Breach)] being declared incapable of remedy under paragraph (a)(iv) of Clause 1.2 (GHG Emissions Trigger Events) or is deemed to be incapable of remedy pursuant to paragraph (b) of Clause 1.2 (GHG Emissions Trigger Events); or

(b) any Operations Phase GHG Emissions Management Plan is not accepted by [the Lenders] within six (6) months of its first submission pursuant to Clause 1.4 (Operations Phase GHG Emissions Management Plan).

* [Align terminology and remedies available with the main contract and ensure that the remedy is appropriate. Drafting Notes: 

  • The consequences of a GHG Emissions Breach Event of Default will be determined on a project by project basis. The consequences will depend on the nature of the breach.
  • If the breach is significant and not capable of remedy, there may need to be a dismantling and then re-design of the project to ensure that the project does meet the emissions standards.]

PART B – FOR INCLUSION IN ENGINEERING, PROCUREMENT AND CONSTRUCTION (EPC), OPERATION AND MAINTENANCE (O&M) AND DESIGN AND BUILD (D&B) CONTRACTS

CONDITIONS PRECEDENT TO EFFECTIVENESS

(a) Adoption by the Contractor [and its Sub-Contractors] of the [Adaptation and Resilience Plan,] [the Construction Phase GHG Emissions Management Plan] [and the Operations Phase GHG Emissions Management Plan].

REPRESENTATIONS AND WARRANTIES

(a) The Contractor will [and will seek to ensure that its Sub-Contractors will] [carry out the Works][perform the Services] in compliance with [the Adaptation and Resilience Plan and] the GHG Emissions Obligations;* 

[(b) The Contractor will within [insert time period] of entering into this agreement publicly set an organisational Net Zero target [validated by the Science Based Targets initiative][and sign up to Race to Zero.]; and

(c) The Contractor has [and its Sub-Contractors have] adopted the [Adaptation and Resilience Plan,] [the Construction Phase GHG Emissions Management Plan] [and the Operations Phase GHG Emissions Management Plan].

* [Drafting Note: As an alternative approach, consider including the Adaptation and Resilience Plan and GHG Emissions Obligations in the “Employer’s Requirements” (or similar) in the construction contract.  This will ensure that the Works are carried out so as to comply with the Employer’s Requirements. Consider also including a requirement that the Contractor be obliged to use “Good Industry Practice” so as to ensure that the Works comply with the Adaptation and Resilience (A&R) Plan/GHG Emissions Obligations (provided that there are corresponding definitions in the Construction contract).]

COVENANTS

(a) The Contractor will [and will seek to ensure that its Sub-Contractors will] provide all such reasonable assistance to the [Project Company] under the Lenders’ Climate Obligations as set out in Annex A to enable the [Project Company] to meet its obligations to the Lenders, including without limitation performance of all actions that the Project Company is entitled in Annex A to require the Contractor to perform, such as the production of reports on GHG Emission Obligations, Corrective Action Plans, performance of actions identified in Corrective Action Plans, the production of GHG Emission Self Monitoring Reports and the production of acceptable Operations Phase GHG Emission Management Plan.  

[Drafting Note: Alternatively, or in addition, the obligations on the contractor can be included in the ‘Contractor’s Duties’ section of the EPC contract, which includes all Contractor requirements that are identified in Annex A, such that a breach of those requirements is a clear breach of the EPC contract itself. In addition, the Project Company’s remedies for a contractor’s non-compliance with these obligations should be specified.]

 

ANNEX A

Lenders’ Climate Obligations

1.1 GHG Emissions Self-Monitoring Reports

(a) The Contractor shall provide a report to the [Project Company] [at its own cost] [Drafting Note: Consider providing that the cost is included within the Contract Price. This would prevent the Contractor from claiming additional costs for producing the report] [in a form and substance acceptable to [the Project Company]][in the form contained at Appendix [  ] of the Employer’s Requirements] [Drafting Note: Consider including the report at the pre-contract stage and then including the report within the Contract Documents] at the times set out in paragraph (b) or (c) below, containing the following:

(i) a statement that (and details of how):

(A) (in respect of the first GHG Emissions Self-Monitoring Report) all GHG Emissions Obligations have been fulfilled since the date of this Agreement; and

(B) (in respect of each subsequent GHG Emissions Self-Monitoring Report) all GHG Emissions Obligations in the period since the most recent GHG Emissions Self-Monitoring Report have been fulfilled,

or, if it is not able to make such a statement, a disclosure of the GHG Emissions Obligations that have not been fulfilled providing full details of such occurrence and any planned mitigation; and

(ii) any other matter pertaining to GHG Emissions in respect of the Project.

(b) The Contractor shall provide a GHG Emissions Self-Monitoring Report at its own cost within [x] Business Days of the end of:

(i) each [three/six] [(3)/(6)] month period during the Construction Phase; and

(ii) each [twelve] [(12)] month period from the commencement of the Operations Phase.

Notwithstanding the reporting requirements above, in the event that the Contractor becomes aware of a GHG Emissions Obligation Breach, or the likelihood of a GHG Emissions Obligation Breach, the Contractor shall notify the Project Company of the same and provide full details within [x] days of becoming so aware.

(c) If a GHG Emissions Trigger Event has occurred and is continuing, [the Project Company] may require the Contractor to provide GHG Emissions Self-Monitoring Reports on the corrective actions being taken in respect of that GHG Emissions Trigger Event upon request or at such intervals as it may require.

1.2 GHG Emissions Trigger Event

(a) Upon the [Project Company] being notified of the occurrence of a GHG Emissions Trigger Event or determining that a GHG Emissions Trigger Event has occurred the Project Company may:

(i) determine that the GHG Emissions Trigger Event can be remedied by the Contractor and that the Contractor shall provide progress reports to [the Project Company] in the GHG Emissions Self-Monitoring Reports in accordance with Clause 1.1 (GHG Emissions Self-Monitoring Reports); 

(ii) require the Contractor to produce a Corrective Action Plan, in which case the Contractor shall, as soon as practicable following such request but in any event within [x] Business Days of such request, provide a draft Corrective Action Plan for that GHG Emissions Trigger Event to [the Project Company] for its acceptance[, which shall not unreasonably be withheld]; 

(iii) agree with the [Project Company] any other course of action to remedy the GHG Emissions Trigger Event; or

(iv) declare that such GHG Emissions Trigger Event is incapable of remedy.

(b) A GHG Emissions Trigger Event will be deemed incapable of remedy to the extent that the Project Company notifies the Contractor that: 

(i) the GHG Emissions Trigger Event is incapable of remedy in accordance with paragraph (a)(iv) above; or 

(ii) the draft Corrective Action Plan has not been accepted, [which acceptance shall not be unreasonably withheld,] within six (6) months of the request in accordance with the provisions of this Clause  1.2 (GHG Emissions Trigger Event).

(c) Following a request by [the Project Company] to provide a draft Corrective Action Plan in accordance with paragraph (a)(ii) above and pending acceptance by the Project Company of any draft Corrective Action Plan, the Contractor shall take or procure the taking of all such actions and measures to immediately address the relevant GHG Emissions Trigger Event, including such actions or measures as are required by any draft Corrective Action Plan in accordance with the timescales set out in that draft Corrective Action Plan.

(d) If [the Project Company] does not accept the draft Corrective Action Plan pursuant to paragraph (a)(ii) above: 

(i) [the Project Company] shall indicate to the Contractor in which areas the draft plan is deficient and the time period within which a revised draft Corrective Action Plan shall be re-submitted to [the Project Company] for its acceptance; and

(ii) the Contractor shall submit a revised draft Corrective Action Plan after consulting with and taking any views of [the Project Company] fully into account.

(e) If [the Project Company] does not accept the revised draft Corrective Action Plan submitted pursuant to paragraph (d)(ii) above, the Contractor shall repeat the process set out in paragraph (d) above until such time as a revised draft Corrective Action Plan is accepted by [the Project Company]. 

(f) A draft Corrective Action Plan shall be deemed to have been accepted by [the Project Company] [x] Business Days after its submission unless [the Lenders] advises the Contractor otherwise.

(g) After acceptance of the Corrective Action Plan, the Contractor shall take or procure the taking of all such actions and measures as are required by the Corrective Action Plan in accordance with the timescales set out therein.

(h) Every [x] months from the date on which a Corrective Action Plan is accepted, the Contractor shall provide [the Project Company] with a supplemental GHG Emissions Self-Monitoring Report on the implementation of that Corrective Action Plan, and shall provide a final report to [the Project Company] on completion of the Corrective Action Plan, each such report to be in a form and substance acceptable to [the Project Company].

(i) To the extent that a GHG Emissions Trigger Event is not remedied within the timescales set out in the relevant Corrective Action Plan or in line with the GHG Emissions Management Plan, [the Project Company] may require the Borrower to produce a new Corrective Action Plan or take any other corrective measure in accordance with the procedures set out in Clause 1.2(a).

1.3 Operations Phase GHG Emissions Management Plan

(a) The Contractor shall, at least [x] months before the start of the [Operations Phase/Defects Notification Period], provide [the Project Company] with a draft Operations Phase GHG Emissions Management Plan comprising of the GHG Emissions management procedures to ensure that all GHG Emissions Obligations are complied and/or aligned with (as applicable) in relation to the Operations Phase of the Project.

[Drafting Note: Depending on the underlying project it might not be possible to deliver the final Emissions Management Plan before the start of the Operations Phase. Contractors may request amendments stating that items such as the O&M Manuals, As-Builts or BREEAM certification (for example) are provided in draft form prior to practical completion, with the final versions then provided “within [x] months following the end of the Construction Phase/commencement of the Operations Phase”.]

(b) [The Project Company] shall notify the Contractor within [x] month of receipt whether the draft Operations Phase GHG Emissions Management Plan is accepted, [which acceptance shall not be unreasonably withheld].  

(c) If [the Project Company] does not accept the draft Operations Phase GHG Emissions Management Plan submitted pursuant to paragraph (b) above:

(i) [the Project Company] shall indicate to the Contractor in which areas the draft Operations Phase GHG Emissions Management Plan is deficient and the period within which a revised draft Operations Phase GHG Emissions Management Plan shall be resubmitted to [the Project Company]; and 

(ii) the Contractor shall submit a revised draft Operations Phase GHG Emissions Management Plan after consulting with and taking any views of [the Project Company] fully into account. 

(d) If [the Project Company] does not accept the revised draft Operations Phase GHG Emissions Management Plan submitted pursuant to paragraph (c)(ii) above [the Project Company] and the Contractor shall repeat the process set out in paragraph (c) above until such time as a revised draft Operations Phase GHG Emissions Management Plan is accepted. 

(e) A draft Operations Phase GHG Emissions Management Plan shall be deemed to have been accepted by [the Project Company] [x] Business Days after its submission unless [the Project Company] advises the Contractor otherwise.

BREACH

1.4 GHG Emissions Breach

An [Event of Default]* will be considered to have occurred when:

(a) a GHG Emissions Trigger Event [(arising from a GHG Emissions Obligation Breach)] is declared incapable of remedy under paragraph (a)(iv) of Clause 1.2 (GHG Emissions Trigger Events) or is deemed to be incapable of remedy pursuant to paragraph (b) of Clause 1.2 (GHG Emissions Trigger Events); or

(b) a Operations Phase GHG Emissions Management Plan is not accepted by [the Project company] within [x] months of its first submission pursuant to Clause 1.3 (Operations Phase GHG Emissions Management Plan).

* [Align terminology and remedies available with the main contract and ensure that the remedy is appropriate. Drafting Notes: 

  • The consequences of a GHG Emissions Breach Event of Default will be determined on a project by project basis. The consequences will depend on the nature of the breach.
  • If the breach is significant and not capable of remedy, there may need to be a dismantling and then re-design of the project to ensure that the project does meet the emissions standards. 
  • Consider including (in addition) an indemnity from the Contractor to the Project Company in respect of losses arising from such a breach.  Given the potentially high costs the Contractor may not agree to an indemnity unless there was a cap on liability.]

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