Basis for Deductions Clause Samples
Basis for Deductions.
6.4.2.1 Developer acknowledges that the monetary deductions assessed in accordance with the Contract Documents are reasonable liquidated damages in order to compensate the Department for:
1. The Department’s increased costs of administering this Agreement, including the increased costs of engineering, legal, accounting, monitoring, oversight and overhead, and could also include obligations to pay or reimburse Governmental Entities with regulatory jurisdiction over the Project for violation of applicable Governmental Approvals or for their increased costs of monitoring and enforcing Developer’s compliance with applicable Governmental Approvals;
2. Potential harm and future costs to the Department from reduction in the condition and Design Life of the Project;
3. Potential harm to the credibility and reputation of the Department’s transportation improvement program with other Governmental Entities, with policy makers and with the general public;
4. Potential harm and detriment to Users, which may include additional wear and tear on vehicles and increased costs of congestion, travel time and accidents; and
5. The Department’s increased costs of addressing potential harm to the Environment, including increased harm to air quality caused by congestion, and harm to water quality, soils conditions, historic structures and other environmental resources caused by Noncompliance.
6.4.2.2 Developer further acknowledges that these damages would be difficult and impracticable to measure and prove, because, among other things, (a) the Project is of a unique nature and no substitute for it is available; (b) the costs of monitoring and oversight prior to increases in the level thereof will be variable and extremely difficult to quantify; (c) the nature and level of increased monitoring and oversight will be variable depending on the circumstances; and (d) the variety of factors that influence use of and demand for the Project make it difficult to sort out causation of the matters that will trigger these liquidated damages and to quantify actual damages.
Basis for Deductions. 6.4.2.1 Developer acknowledges that the monetary deductions assessed in accordance with the Contract Documents are reasonable liquidated damages in order to compensate the Department for:
1. The Department’s increased costs of administering this Agreement, including the increased costs of monitoring and oversight and could also include obligations to pay or reimburse Governmental Entities with regulatory jurisdiction over the Project for their increased costs of monitoring and enforcing Developer’s compliance with applicable Governmental Approvals;
2. Potential harm to the credibility and reputation of the Department’s transportation improvement program with policy makers and with the general public; and
3. Potential harm and detriment to Users, which may include additional wear and tear on vehicles and increased costs of congestion, travel time and accidents.
6.4.2.2 Developer further acknowledges that such increased costs, and harm and detriment to Users, would be difficult and impracticable to measure and prove, because, among other things, the costs of monitoring and oversight prior to increases in the level thereof will be variable and extremely difficult to quantify; the nature and level of increased monitoring and oversight will be variable depending on the circumstances; and the variety of factors that influence use of and demand for the Project make it difficult to sort out causation of the matters that will trigger these liquidated damages.
Basis for Deductions. 8.4.2.1 Developer acknowledges that any Performance Deductions assessed in accordance with this Agreement are reasonable liquidated damages in order to compensate the Owner for:
1. The Owner’s increased costs of administering the Contract Documents, including the increased costs of Oversight and any obligations to pay or reimburse Governmental Entities with regulatory jurisdiction over the Project for their increased costs of monitoring and enforcing Developer’s compliance with applicable Governmental Approvals;
2. The Owner’s increased costs of accommodating the Airport Activities;
3. The Owner’s potential loss of Concession Revenues due to the reduction in the availability and quality of the Project so as to adversely affect the experience of Users;
4. Potential harm to the credibility and reputation of the Owner, the Airport and the revitalization project with Users and potential Users, stakeholders, policy makers and with the general public; and
5. Potential harm and detriment to Users, which may include disruption to travel, shopping and other Airport Activities.
8.4.2.2 Developer further acknowledges that such increased costs and loss of revenue, and harm and detriment to Users, would be difficult and impracticable to measure and prove, because, among other things, the costs of Oversight prior to increases in the level thereof will be variable and extremely difficult to quantify, the nature and level of increased Oversight will be variable depending on the circumstances, and the variety of factors that influence use of and demand for the Terminal Improvements make it difficult to sort out causation and quantify the precise revenue loss attributable to the matters that will trigger these liquidated damages.
8.4.2.3 Subject to any other remedy expressly provided in this Agreement, any monetary deduction assessed in accordance with this Agreement shall constitute the Owner’s sole remedy in respect of the delay, breach or failure, as applicable, for which such monetary deduction is assessed.
Basis for Deductions. 11.5.2.1 Developer acknowledges that the Quarterly Noncompliance Adjustments and Quarterly Unavailability Adjustments assessed in accordance with the PPA Documents are reasonable liquidated damages in order to compensate IFA for damages it will incur by reason of Developer’s failure to comply with the availability and performance standards. Such damages include:
a. IFA’s increased costs of administering this Agreement, including the increased costs of engineering, legal, accounting, monitoring, oversight and overhead, and could also include obligations to pay or reimburse Governmental Entities with regulatory jurisdiction over the O&M Limits for violation of applicable Governmental Approvals or for their increased costs of monitoring and enforcing Developer’s compliance with applicable Governmental Approvals;
b. Potential harm and future costs to IFA from reduction in the condition and Useful Life of the O&M Limits;
c. Potential harm to the credibility and reputation of IFA with other Governmental Entities, with policy makers and with the general public who depend on and expect timely and quality O&M Limits delivery and availability of service;
d. Potential harm and detriment to Users, which may include loss of use, enjoyment and benefit of the O&M Limits and of facilities connecting to the O&M Limits, additional wear and tear on vehicles, and increased costs of congestion, travel time and accidents;
e. IFA’s increased costs of addressing potential harm to the Environment, including increased harm to air quality caused by congestion, and harm to water quality, soils conditions, historic structures and other environmental resources caused by Noncompliance Events; and
f. Loss of Toll Revenues.
Basis for Deductions. 11.5.2.1 Developer acknowledges that the Quarterly Noncompliance Adjustments and Quarterly Unavailability Adjustments assessed in accordance with the PPA Documents are reasonable liquidated damages in order to compensate IFA for damages it will incur by reason of Developer’s failure to comply with the availability and performance standards. The damages addressed by the Quarterly Noncompliance Adjustments and Quarterly Unavailability Adjustments imposed in accordance with Exhibit 10 (Payment Mechanism) include:
a. IFA’s increased costs of administering this Agreement, including the increased costs of engineering, legal, accounting, monitoring, oversight and overhead, and could also include obligations to pay or reimburse Governmental Entities with regulatory jurisdiction over the O&M Limits for violation of applicable Governmental Approvals or for their increased costs of monitoring and enforcing Developer’s compliance with applicable Governmental Approvals;
b. Potential harm and future costs to IFA from reduction in the condition and Useful Life of the O&M Limits;
c. Potential harm to the credibility and reputation of IFA with other Governmental Entities, with policy makers and with the general public who depend on and expect timely and quality O&M Limits delivery and availability of service;
d. Potential harm and detriment to Users, which may include loss of use, enjoyment and benefit of the O&M Limits and of facilities connecting to the O&M Limits, additional wear and tear on vehicles, and increased costs of congestion, travel time and accidents; and
e. IFA’s increased costs of addressing potential harm to the Environment, including increased harm to air quality caused by congestion, and harm to water quality, soils conditions, historic structures and other environmental resources caused by Noncompliance Events.