Common use of Amount of Performance Stipulated Damages Clause in Contracts

Amount of Performance Stipulated Damages. (a) TSP acknowledges and agrees that because of the unique nature of the Project, and the fact that performance of the TCS in conformance with the Guaranteed Performance Requirements is essential to the Joint Board’s ability to collect toll revenue to enable the State’s Parties to continue to finance, construct, operate and maintain and improve their respective highway systems, it is not possible to ascertain and determine the actual Losses, including lost toll revenues, which would accrue to the Joint Board and the public from such failures. Therefore, commencing upon the applicable Revenue Service Date for each Bridge , TSP shall pay to the Joint Board an amount determined as follows (the “Performance Stipulated Damages”) as deemed compensation to the Joint Board for lost toll revenues from failure to meet the Guaranteed Performance Requirements. (b) With respect to any failure to meet the Performance Requirements set forth in TR Items PR-002, PR-003, PR-005, PR-006, PR-007, PR-008 and PR-014, the parties hereby agree that the Performance Stipulated Damages payable for lost toll revenues shall be calculated based upon a comparison of the number of transactions identified by the TCS during the period of failure to meet the Guaranteed Performance Requirements and the number of transactions identified by the TCS during a comparable prior period determined by the Joint Board; provided, however, that if the Project does not have at least six months of operating history from which to compare, Performance Stipulated Damages shall be determined by reference to the traffic and revenue study estimates for the period of time in question and may also consider available live traffic data from the Digital Video Audit System and other subsystems for such period. For example, if, during the period in which the System fails to meet the Guaranteed Performance Requirements, the TCS identifies 100 transactions, and during a comparable prior period the TCS identifies 1000 transactions, the Stipulated Damages for the failure to meet the Guaranteed Performance Requirements for the period in question would be the value of the difference in the number of transactions, i.e., an amount equal to 900 multiplied by the toll rate(s) applicable to such transactions. (c) In no event shall the foregoing calculation ever be a negative number or result in TSP being entitled to additional payment from the Joint Board. TSP understands and agrees that any Performance Stipulated Damages payable in accordance with this Section 4.10.7.2 are in the nature of stipulated damages and not a penalty and that the methodology for determining such sums was established based on the parties’ agreement that the amounts so determined will constitute a reasonable approximation of the actual damages from lost toll revenues that the Joint Board will accrue as a result of the circumstances giving rise to such Performance Stipulated Damages. TSP further acknowledges and agrees that Performance Stipulated Damages may be owing even though no TSP Event of Default has occurred. (d) Except as provided in, pursuant to or as a result of this Section 4.10, Section 4.12, Section 16.1.1(n) or in connection with Persistent Breach, the Performance Stipulated Damages payable hereunder are the Joint Board’s sole monetary remedy for TSP’s failure to comply with the Guaranteed Performance Requirements. The Performance Stipulated Damages under this Section 4.10 are cumulative and may be aggregated if multiple or cumulative failures occur, but in no event shall the Joint Board be entitled to payments in excess of lost revenue stipulated hereby.

Amount of Performance Stipulated Damages. (a) TSP acknowledges and agrees that because of the unique nature of the Project, and the fact that performance of the TCS in conformance with the Guaranteed Performance Requirements is essential to the Joint Board’s ability to collect toll revenue to enable the State’s Parties to continue to finance, construct, operate and maintain and improve their respective highway systems, it is not possible to ascertain and determine the actual Losses, including lost toll revenues, which would accrue to the Joint Board and the public from such failures. Therefore, commencing upon the applicable Revenue Service Date for each Bridge , TSP shall pay to the Joint Board an amount determined as follows (the “Performance Stipulated Damages”) as deemed compensation to the Joint Board for lost toll revenues from failure to meet the Guaranteed Performance Requirements. (b) With respect to any failure to meet the Performance Requirements set forth in TR Items PR-002, PR-003, PR-005, PR-006, PR-007, PR-008 and PR-014PR-008, the parties hereby agree that the Performance Stipulated Damages payable for lost toll revenues shall be calculated based upon a comparison of the number of transactions identified by the TCS during the period of failure to meet the Guaranteed Performance Requirements and the number of transactions identified by the TCS during a comparable prior period determined by the Joint Board; provided, however, that if the Project does not have at least six months of operating history from which to compare, Performance Stipulated Damages shall be determined by reference to the traffic and revenue study estimates for the period of time in question and may also consider available live traffic data from the Digital Video Audit System and other subsystems for such periodquestion. For example, if, during the period in which the System fails to meet the Guaranteed Performance Requirements, the TCS identifies 100 transactions, and during a comparable prior period the TCS identifies 1000 transactions, the Stipulated Damages for the failure to meet the Guaranteed Performance Requirements for the period in question would be the value of the difference in the number of transactions, i.e., an amount equal to 900 multiplied by the toll rate(s) applicable to such transactions. (c) In no event shall the foregoing calculation ever be a negative number or result in TSP being entitled to additional payment from the Joint Board. TSP understands and agrees that any Performance Stipulated Damages payable in accordance with this Section 4.10.7.2 are in the nature of stipulated damages and not a penalty and that the methodology for determining such sums was established based on the parties’ agreement that the amounts so determined will constitute a reasonable approximation of the actual damages from lost toll revenues that the Joint Board will accrue as a result of the circumstances giving rise to such Performance Stipulated Damages. TSP further acknowledges and agrees that Performance Stipulated Damages may be owing even though no TSP Event of Default has occurred. (d) Except as provided in, pursuant to or as a result of this Section 4.10, Section 4.12, Section 16.1.1(n) or in connection with Persistent Breach, the Performance Stipulated Damages payable hereunder are the Joint Board’s sole monetary remedy for TSP’s failure to comply with the Guaranteed Performance Requirements. The Performance Stipulated Damages under this Section 4.10 are cumulative and may be aggregated if multiple or cumulative failures occur, but in no event shall the Joint Board be entitled to payments in excess of lost revenue stipulated hereby.

Amount of Performance Stipulated Damages. (a) TSP acknowledges and agrees that because of the unique nature of the Project, and the fact that performance of the TCS in conformance with the Guaranteed Performance Requirements is essential to the Joint Board’s ability to collect toll revenue to enable the State’s Parties to continue to finance, construct, operate and maintain and improve their respective highway systems, it is not possible to ascertain and determine the actual Losses, including lost toll revenues, which would accrue to the Joint Board and the public from such failures. Therefore, commencing upon the applicable Revenue Service Date for each Bridge , TSP shall pay to the Joint Board an amount determined as follows (the “Performance Stipulated Damages”) as deemed compensation to the Joint Board for lost toll revenues from failure to meet the Guaranteed Performance Requirements. (b) With respect to any failure to meet the Performance Requirements set forth in TR Items PR-002, PR-003, PR-005, PR-006, PR-007, PR-008 and PR-014, the parties hereby agree that the Performance Stipulated Damages payable for lost toll revenues shall be calculated based upon a comparison of the number of transactions identified by the TCS during the period of failure to meet the Guaranteed Performance Requirements and the number of transactions identified by the TCS during a comparable prior period determined by the Joint Board; provided, however, that if the Project does not have at least six months of operating history from which to compare, Performance Stipulated Damages shall be determined by reference to the traffic and revenue study estimates for the period of time in question and may also consider available live traffic data from the Digital Video Audit System and other subsystems for such period. For example, if, during the period in which the System fails to meet the Guaranteed Performance Requirements, the TCS identifies 100 transactions, and during a comparable prior period the TCS identifies 1000 transactions, the Stipulated Damages for the failure to meet the Guaranteed Performance Requirements for the Indiana Finance Authority/Joint Board 53. Toll Services Agreement LSIORB Toll Services Project Execution Version period in question would be the value of the difference in the number of transactions, i.e., an amount equal to 900 multiplied by the toll rate(s) applicable to such transactions. (c) In no event shall the foregoing calculation ever be a negative number or result in TSP being entitled to additional payment from the Joint Board. TSP understands and agrees that any Performance Stipulated Damages payable in accordance with this Section 4.10.7.2 are in the nature of stipulated damages and not a penalty and that the methodology for determining such sums was established based on the parties’ agreement that the amounts so determined will constitute a reasonable approximation of the actual damages from lost toll revenues that the Joint Board will accrue as a result of the circumstances giving rise to such Performance Stipulated Damages. TSP further acknowledges and agrees that Performance Stipulated Damages may be owing even though no TSP Event of Default has occurred. (d) Except as provided in, pursuant to or as a result of this Section 4.10, Section 4.12, Section 16.1.1(n) or in connection with Persistent Breach, the Performance Stipulated Damages payable hereunder are the Joint Board’s sole monetary remedy for TSP’s failure to comply with the Guaranteed Performance Requirements. The Performance Stipulated Damages under this Section 4.10 are cumulative and may be aggregated if multiple or cumulative failures occur, but in no event shall the Joint Board be entitled to payments in excess of lost revenue stipulated hereby.