Common use of Assessment of Points and Cure Periods Clause in Contracts

Assessment of Points and Cure Periods. The Department may assess Performance Points as described in Section 8.16(c) and (d) subject to the following terms and conditions. (i) The Performance Points system will apply commencing on the fifth anniversary of the Service Commencement Date. In addition, there will be a phased introduction of the Performance Points system, and for the initial year that the Performance Points system is applicable, the thresholds for “Total Cumulative Number of Uncured Points” specified on page 1 of Exhibit T will be increased by 50% for the first year, and over the period of the next five years such threshold will be reduced 10% per year such that the thresholds in Exhibit T (30, 45 and 68 total cumulative number of uncured points, respectively) apply. (ii) The Department will not assess points for the first instance of each breach or failure provided that the breach or failure is cured within the cure period stated in Exhibit T. However, the Department will provide notice to the Concessionaire that a breach or failure has occurred. Any subsequent instances of each breach or failure may be subject to the assessment of Performance Points. (iii) Exhibit T sets forth the maximum number of Performance Points the Department may assess for each breach or failure. The Department may, in its sole discretion, assess fewer Performance Points for a particular breach or failure based on the merits of the individual breach or failure. (iv) Where a single act or omission gives rise to more than one breach or failure as described in Exhibit T, the Department may assess Performance Points for only one breach or failure. In such circumstances, the Department may, in its sole discretion, assess performance Points for the breach or failure with the highest maximum number of Performance Points shall apply. (v) For breaches or failures classified as category A in Exhibit T, Performance Points shall be assessed only at the end of the applicable cure period if the Concessionaire has failed to cure within that time. Additional Performance Points may be assessed again at the end of each subsequent cure period, until the breach or failure is cured, or the cumulative total of cured and uncured Performance Points equals or exceeds the level described in Section 8.16(e)(iii). (vi) For breaches or failures classified as category B in Exhibit T, the Performance Points shall be assessed on the date of the written determination from the Department to the Concessionaire. Provided that the breach or failure is not then cured within the applicable cure period, Performance Points shall be assessed again at the end of the first and each subsequent cure period, until the breach or failure is cured, or the cumulative total of cured and uncured Performance Points equals or exceeds the level described in Section 8.16(e)(iii). (vii) For breaches or failures identified as category C in Exhibit T (no applicable cure period), the Performance Points shall be assessed on the date of the written determination from the Department to the Concessionaire. (viii) Any cure period specified in Exhibit T shall be extended day-for-day for any Delay Event that prevents performance of Work to cure a breach or failure. (ix) At every 10 year anniversary of the Agreement Date, or upon significant revision of the Technical Requirements, either party, by written notice to the other party at least 90 days prior to such anniversary reserves the right to request a review of the Performance Points system. Upon receiving the notice, both parties must review the existing performance point system in place and agree in writing to any revisions required to the system.

Assessment of Points and Cure Periods. The Department may assess Performance Non-Compliance Points as described in Section 8.16(c) and (d) subject to the following terms and conditions. (i) The Performance Non-Compliance Points system will apply commencing on the fifth anniversary of the Initial Service Commencement Date. In addition, there will be a phased introduction of the Performance Non-Compliance Points system, and for the initial year that the Performance Non- Compliance Points system is applicable, the thresholds for “Total Cumulative Number of Uncured Points” specified on page 1 of Exhibit T will be increased by 50% for the first year, and over the period of the next five years such threshold will be reduced 10% per year such that the thresholds in Exhibit T (30, 45 and 68 total cumulative number of uncured points, respectively) apply. (ii) The Department will not assess points for the first instance of each breach or failure provided that the breach or failure is cured within the cure period stated in Exhibit T. However, the Department will provide notice to the Concessionaire that a breach or failure has occurred. Any subsequent instances of each breach or failure may be subject to the assessment of Performance Points.Exhibit (iii) Exhibit T sets forth the maximum number of Performance Non-Compliance Points the Department may assess for each breach or failure. The Department may, in its sole discretion, assess fewer Performance Non-Compliance Points for a particular breach or failure based on the merits of the individual breach or failure. (iv) Where a single act or omission gives rise to more than one breach or failure as described in Exhibit T, the Department may assess Performance Non-Compliance Points for only one breach or failure. In such circumstances, the Department may, in its sole discretion, assess performance Non-Compliance Points for the breach or failure with the highest maximum number of Performance Non-Compliance Points shall apply. (v) For breaches or failures classified as category A in Exhibit T, Performance Non- Compliance Points shall be assessed only at the end of the applicable cure period if the Concessionaire has failed to cure within that time. Additional Performance Non-Compliance Points may be assessed again at the end of each subsequent cure period, until the breach or failure is cured, or the cumulative total of cured and uncured Performance Non-Compliance Points equals or exceeds the level described in Section 8.16(e)(iii). (vi) For breaches or failures classified as category B in Exhibit T, the Performance Non- Compliance Points shall be assessed on the date of the written determination from the Department to the Concessionaire. Provided that the breach or failure is not then cured within the applicable cure period, Performance Non-Compliance Points shall be assessed again at the end of the first and each subsequent cure period, until the breach or failure is cured, or the cumulative total of cured and uncured Performance Non-Compliance Points equals or exceeds the level described in Section 8.16(e)(iii). (vii) For breaches or failures identified as category C in Exhibit T (no applicable cure period), the Performance Non-Compliance Points shall be assessed on the date of the written determination from the Department to the Concessionaire. (viii) Any cure period specified in Exhibit T shall be extended day-for-day for any Delay Event that prevents performance of Work to cure a breach or failure. (ix) At every 10 year anniversary of the Agreement Date, or upon significant revision of the Technical Requirements, either party, by written notice to the other party at least 90 days prior to such anniversary reserves the right to request a review of the Performance Non- Compliance Points system. Upon receiving the notice, both parties must review the existing performance non-compliance point system in place and agree in writing to any revisions required to the system.