EPC Contracting for Power & Energy Projects

July 30-31, 2024 | Denver, CO :: Mountain Time

0724-epc-contracts

“I came away from this course with a much better grasp of the context of so many terms and concepts I’d heard.  It brought together contract management, regulatory frameworks, and legal issues in a way that connected them well without being overly complex.” Senior Project Manager II, Duquesne Light Company

“EUCI trainings are consistently well planned and executed.” Sr. Pre-Construction Manager, EDF Renewables

“This course did an excellent job at both laying out an overview of important issues and providing practical solutions to actual issues faced by EPC contractors on an everyday basis.” General Counsel, Gridworks

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“The course did a very good job outlining the EPC contract process and what is covered.” Project Manager, Ampirical

“Presenters are active and knowledgeable about the field they presented on.” Business Development Project Manager, Jamaica Public Service

“The opportunity to see contracting from the Owner’s perspective will assist in supporting a successful contract negotiation and build a strong working relationship going forward. Thank you for the opportunity to engage with individuals who sit on both sides of the table.” Contracts Manager, Renewable Energy Systems

“This course provides a comprehensive introduction to key contract terms for people new to the process, and materials and information for those with experience as well. Contract positions are presented from both the Owner/Client and Contractor perspectives, and the presenters are open to questions and discussions.” Contracts Manager, Renewable Energy Systems

“Great refresher on EPC contracting, with updates on the latest and greatest in the industry. Instructors are very knowledgeable. Overall enjoyed attending the course.” – Shell

“Industry expertise, from industry experts.” – AES Clean Energy

“All topics were very interesting and full of actual information. Great!” – CMI Capital

An EPC contract is utilized for the development of power and energy projects and comprehensively addresses all aspects of the design, procurement, and construction of the project. It sets forth the duties, obligations, and responsibilities of the parties, defines the scope of work, allocates risk among the parties, and sets forth the financial obligations and entitlements of the parties. Understanding the provisions, mechanisms, and concepts regularly utilized in an EPC contract is critical to successfully developing a project from inception to commercial operation. 

This course will cover everything from conception to completion, with the end goal of teaching the attendees everything they need to know in order to go back to their organizations with a vast and holistic knowledge of the contracting process in order to participate in in-depth conversations.

Learning Outcomes

• Review the differences between EPC vs. other contracts and their primary objectives
• Evaluate site conditions and feasibility, including location, surface conditions, environmental factors, and more
• Discuss the RFP and bid process and the real property concerns in power projects
• Study the key issues in EPC contracts (i.e., schedule, performance, equipment, delays, indemnity, warranties, termination, etc.)
• Examine contractor prerequisites and learn how to avoid and manage claims

 

Tuesday, July 30, 2024 : Mountain Time

 

Introduction & Overview

• What are EPC contracts and why are they used?
  • Overview of EPC contracts
• Differences between EPC contracting and other contracting mechanisms
• Primary EPC contract objectives
  • Formalize the commercial agreement
    • Define parties’ relationships and respective obligations
    • Specify scope, timing, and price
    • Identify guarantees and penalties
  • Provide structure for project delivery (i.e., contract administration)
  • Create an enforceable agreement
  • Identify and allocate risk

Evaluation of Site Conditions & Project Feasibility

• Location
  • Labor
  • Delivery of major equipment
  • Availability; deliver of materials
  • Zoning and permitting
• Surface conditions
  • Slope/grade; sediment and erosion control
  • Regional watershed
• Subsurface conditions
  • Site investigations
  • Foundation design
  • Blasting/cutting
  • Drainage
  • Caverns, fissures, and voids
• Environmental
  • Protected Flora and Fauna

RFP & Bid Process

• Identify and solicit bid opportunities
• Review of bid specifications
  • Technical evaluation
  • Standards of performance
  • Contractor obligations
  • Owner obligations
• Develop and submit commercial bid and pricing
  • RFIs: Q&As
  • Subtrade engagement
• Contract review and negotiations

Real Property Concerns in Power Projects

• Site location and project feasibility
  • Required physical characteristics
  • Preliminary site investigations
  • Interconnection – proximity to regional transmission grid
  • Satisfying balancing authority requirements
• Securing the Project site – primary issues in land purchase and/or lease agreements
• Real property rights for project performance
  • Site access
  • Delivery of major equipment
  • Power distribution (i.e., transmission)
• NIMBY
  • Issues with adjacent landowners

Power Purchase Agreements (PPAs)

• What is a PPA and what is it used for?
• Overview of PPA process
  • Project Development
  • RFQ
  • PPA negotiation
  • Asset performance
• Key issues in PPAs
  • Term
  • Pricing; curtailment
  • Liquidated Damages
• Regulatory Approval and Conditions Precedent

Key Issues in EPC Contracts for Power and Energy Projects

• Schedule
  • LNTPs and Commencement Date
  • Project milestones – interim and final
    • Common interim milestones
    • What is Substantial Completion?
    • Final Completion
  • Schedule Liquidated Damages
    • Daily and aggregate LD liability caps
    • Claw-back provisions
• Price and payment
  • Work schedule
  • Payment schedule – deliverables and milestones
  • Cash Flow & Drawdown Schedule
  • Time and Materials & Unit Pricing
  • Retainage
  • Alternative Payment Arrangements
  • Liens and Lien Waivers

• Performance
  • Defining performance metrics and tests
  • Measuring performance
  • Performance Guarantees
  • Performance Liquidated Damages
    • Daily and aggregate Performance LD liability caps
    • Buy-downs and “off ramps”
• Major equipment
  • Contractor vs. Owner-supplied
  • Offloading, inspection, and installation
  • Delivery schedule and demurrage
  • Commissioning and performance
  • Warranty
• Delays
  • Excusable events
    • Force Majeure
    • Adverse Weather
    • Wind
    • Owner-Caused Delay
    • COVID-19 Impacts
    • Materials cost escalation and supply chain disruptions
    • Change in Law
  • Compensable vs. non-compensable delays
  • Concurrent delays
  • Notice requirements
  • Recovery Plans
    • Acceleration
• Changes
  • Scope change
  • Change Order Process
  • Pricing change (markups)
  • Schedule change
• Site conditions
  • Differing site conditions
    • Soils
    • Caverns, fissures, and voids
    • Other
  • Pre-Existing Hazardous Materials
• Limitations damages
  • Overall limitation of liability
  • Mutual waiver of consequential damages
  • Exclusions
  • Daily and aggregate LD liability caps
• Warranties
  • Term
  • Scope of service warranty
  • Notice and Contractor response time
• Indemnity
  • Commercial vs. EPC contracting
  • Indemnitees
  • Scope
  • Indemnification process
  • Exclusions

 

Wednesday, July 31, 2024 : Mountain Time

 

Key Issues in EPC Contracts for Power and Energy Projects (Continued)

• Termination
  • Termination for Convenience
  • Default and Termination for Cause
  • Notice and opportunity to cure
  • Contractor’s right to terminate
• Payment and Performance Security
  • Contractor Security
    • Bonds: Letter of Credit
    • Parent Guarantee
  • Owner Security
    • Letter of Credit
    • Parent Guarantee
  • Project Financing
    • Assignment
    • Estoppels and consents
    • Representations and warranties
    • Lien subordination
    • Audit rights
• Other
  • Tax Exemptions
  • Insurance
    • Builder’s Risk
    • Risk of loss
  • Domestic content and local hiring requirements
  • Collective Bargaining Agreements
  • Non-solicitation provisions
  • FCPA and anti-bribery
  • Dispute Resolution

Contract Administration in EPC Contracts for Power & Energy Projects

• Contractor prerequisites
  • Licensing
  • Contractor Safety Program
  • Code of Conduct
  • Diversity Requirements and EEOC
  • Cybersecurity – information security
  • Invoicing
  • Quality management, inspection, testing, and documentation
  • Major subcontractors
  • Equipment and material procurement
  • Taxes
• Development of exhibits
  • Technical specification – conformance specification and Standards of Performance
  • Environmental and site description
  • Permits – contractor and utility
  • Reporting requirements (daily, weekly, monthly, quarterly)
  • Spare parts list
  • Commissioning and testing plan
  • Key personnel
  • Contractor safety program
  • Major subcontractors and approved equipment suppliers
  • Optional pricing schedule
  • Training programs
  • Document submittals

Avoiding and Managing Claims

• Common claims and their causes
• Best practices for avoiding and managing claims and disputes
• Navigating the disputes process

Sara Bergan, Partner, Husch Blackwell

Sara represents developers throughout the development, procurement, construction, and acquisition/divestiture stages of renewable energy projects. Sara enjoys helping clients navigate complex transactions that require a holistic understanding of industry, regulatory, and market trends. She has, for example, assisted numerous developer clients in build transfer arrangements with utilities across the country and understands the important role such transactions play in laying the foundation for long-lasting partnerships through the project’s construction, transfer, and ongoing business with the utility.

Sara joined Husch Blackwell in 2023 out of enthusiasm for both the firm’s robust national energy practice and its strong presence in the MISO, SPP, and ERCOT regions and surrounding states where so many of the clients she works with are active. While her own practice is nationwide, she never hesitates to jump into projects in and around her home state of Minnesota.

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Ben Kass, Partner, Husch Blackwell

Ben is a partner in the firm’s Energy & Natural Resources group and has a wide range of experience in renewable energy development, construction, financing, and transactional matters.

Prior to joining the firm, Ben served as senior counsel for a large international renewable energy company, where he provided legal advice on all aspects of the company’s activities, including the development, construction, sale and acquisition of utility and distributed scale wind, solar and battery storage projects. Ben has more than a decade of experience in renewable energy and has worked on nearly all aspects of the development, construction, acquisition, sale and financing of more than 5,000 MW of wind, solar and battery storage projects in 40 U.S. states, Guam, Canada and Mexico. 

Ben’s legal skills include the drafting and negotiation of all major project contracts, including representing both sellers and buyers in utility-scale and distributed-scale PPAs and corporate PPAs, EPCs, BOPs and all other major construction contracts, as well as equipment procurement, O&M and long-term service agreements.

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Steven Neely, Partner, Husch Blackwell

Steve provides practical solutions to complex commercial disputes and focuses his litigation and arbitration practice on government contracts, renewable energy, and construction projects. He began his career litigating construction disputes on federal government projects, but now assists clients across the industry spectrum who contract with, or accept grants from, the federal government. Steve has represented clients in bid protests and claims litigation at both the state and federal level in numerous jurisdictions across the country. He also has guided clients through numerous audits, internal investigations, and due diligence matters, as well as other contract compliance and administration issues.

In the renewable energy arena, Steve represents owners and developers of wind, solar, and hydroelectric projects with all of their project construction and operation issues. He has extensive experience in the preparation and pursuit of warranty claims and has successfully litigated or settled disputes against several of the world’s top original equipment manufacturers and EPC contractors. He also counsels owners and developers on corporate matters that affect day-to-day operations.

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Andrew Parker, Senior Associate, Husch Blackwell

Andrew supports clients’ transactional needs in the development and construction of renewable energy and commercial construction projects. He came to the practice of law with a strong interest in the business world and a goal of working in-house where he could partner with both legal and business teams. Early in his career, he accepted an in-house role with an EPC contractor focused on construction in the renewable energy sector as well as industrial manufacturing facilities.

In a succession of in-house roles with EPC contractors, Andrew gained experience with multimillion-dollar EPC agreements as well as other engineering, construction, and equipment supply contracts. He worked frequently with wind, solar, and energy storage projects throughout the construction process before joining Husch Blackwell for broader opportunities to support clients at other stages of project development, such as developers, owners, lenders, and investors. Andrew supports both utility-scale and small-scale wind, solar, battery storage, hydrogen, biogas, carbon capture, and other commercial construction projects all the way from financing to siting and permitting to construction and sale.

Andrew’s experience encompasses the drafting and negotiation of major project contracts, including representing both owners and contractors in EPCs, BOPs, and other major construction contracts, as well as equipment procurement, O&M, and long-term service agreements.

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David Raymond, Partner, Husch Blackwell

A licensed professional engineer and a trial lawyer, David brings on-the-ground experience to Husch Blackwell. His practice focuses on all aspects of construction, from preparation and negotiation of contracts to pursuing and defending claims in lawsuits and arbitrations. David’s link to the industry began before law school, when he worked as an engineer for a construction company. He’s applied his industry experience in representing owners, architects, engineers, contractors, subcontractors, and suppliers in all stages of the construction process. He has helped clients in negotiating professional services, construction and design/build contracts for individual projects costing in excess of $100 million.

REGISTER NOW FOR THIS EVENT:

EPC Contracting for Power & Energy Projects

July 30-31, 2024 | Denver, CO

Buy 4 in-person seats and only pay for 3! For this event every fourth in-person attendee is free!

Your registration may be transferred to a member of your organization up to 24 hours in advance of the event. Cancellations must be received on or before June 28, 2024 in order to be refunded and will be subject to a US $195.00 processing fee per registrant. No refunds will be made after this date. Cancellations received after this date will create a credit of the tuition (less processing fee) good toward any other EUCI event. This credit will be good for six months from the cancellation date. In the event of non-attendance, all registration fees will be forfeited. In case of conference cancellation, EUCIs liability is limited to refund of the event registration fee only. For more information regarding administrative policies, such as complaints and refunds, please contact our offices at 303-770-8800

Instructional Methods

Case studies and PowerPoint presentations will be used in this program.

Requirements for Successful Completion of Program 

Participants must log in each day and be in attendance for the entirety of the course to be eligible for continuing education credit.

Course Credits 

EUCI can provide CEU credits, CPE credits, or a simple Certificate of Course Completion (shows total course hours (PDH).  We can also assist with CLE applications.  Registrants requiring CLEs should make their request in advance of their course.

IACET Credits

EUCI is authorized by IACET to offer 1.1 CEUs for this event.

EUCI is accredited by the International Accreditors for Continuing Education and Training (IACET) and offers IACET CEUs for its learning events that comply with the ANSI/IACET Continuing Education and Training Standard. IACET is recognized internationally as a standard development organization and accrediting body that promotes quality of continuing education and training.

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CPE Credits

Upon successful completion of this event, program participants interested in receiving CPE credits will receive a certificate of completion.

Course CPE Credits: 13.0
There is no prerequisite for this Course.
Program field of study: Specialized Knowledge
Program Level: Basic
Delivery Method: Group Internet Based
Advanced Preparation: None

EUCI is registered with the National Association of State Boards of Accountancy (NASBA) as a sponsor of continuing professional education on the National Registry of CPE Sponsors. State boards of accountancy have final authority on the acceptance of individual courses for CPE credit. Complaints regarding registered sponsors may be submitted to the National Registry of CPE Sponsors through its web site: www.nasbaregistry.org

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Colorado CLE Credits

The Colorado Office of CLJE has accredited the continuing legal education program (EPC Contracts) under C.R.C.P. 250.  Colorado attorneys and judges who attend this entire seminar, i.e., who attend or complete all accredited, educational sessions, may claim the CLE Credits indicated below.  

EUCI is authorized by Colorado Office of CLJE to offer 13.0 credits for the course.