Common use of Damages for breach of maintenance obligations Clause in Contracts

Damages for breach of maintenance obligations. 17.8.1 In the event that the Concessionaire fails to repair or rectify any defect or deficiency set forth in the Maintenance Requirements within the period specified therein, it shall be deemed to be in breach of this Agreement and the Authority shall be entitled to recover Damages, to be calculated and paid for each day of delay until the breach is cured, at the higher of (a) 0.5% (zero point five per cent) of Average Daily Fee, and (b) 0.1% (zero point one per cent) of the cost of such repair or rectification as estimated by the Independent Engineer. Notwithstanding anything contained in this agreement, should the actual traffic exceed the design capacity, during any year or part thereof and the Concessionaire fails to repair or rectify any defect or deficiency set forth in the Maintenance Requirements within the period specified therein, it shall be deemed to be in breach of this Agreement and the Authority shall be entitled, from such date, to recover Damages, to be calculated and paid for each day of delay until the breach is cured, at the higher of (a) 5% (five per cent) of Average Daily Fee, and (b) 1% (one per cent) of the cost of such repair or rectification as estimated by the Independent Engineer, for the balance period of the concession. Recovery of such Damages shall be without prejudice to the rights of the Authority under this Agreement, including the right of Termination thereof. 17.8.2 The Damages set forth in Clause 17.8.1 may be assessed and specified forthwith by the Independent Engineer; provided that the Authority may, in its discretion, demand a smaller sum as Damages, if in its opinion, the breach has been cured promptly and the Concessionaire is otherwise in compliance with its obligations hereunder. The Concessionaire shall pay such Damages forthwith and in the event that it contests such Damages, the Dispute Resolution Procedure shall apply.

Damages for breach of maintenance obligations. 17.8.1 18.7.1 In the event that the Concessionaire fails does not maintain and/ or repair the Project or a part thereof up to repair or rectify any defect or deficiency set forth and in accordance with the Specifications and Standards and/or in accordance with the Maintenance Requirements Programme or the Maintenance Manual, and shall have failed to commence remedial works within 15 (fifteen) days of receipt of notice in this behalf from Authority, or the period specified thereinO&M Inspection Report, it shall be deemed as the case may be, Authority shall, without prejudice to be in breach of its rights under this Agreement and the Authority shall Agreement, including Termination thereof, be entitled to recover Damages, to be calculated undertake the repair and paid for each day maintenance of delay until the breach is cured, Project at the higher risk and cost of (a) 0.5the Concessionaire and to recover the same from the Concessionaire. In addition to recovery of the aforesaid cost of repair and maintenance by the Authority, a sum equal to 25% (zero point twenty-five per cent) of Average Daily Feesuch cost shall also be recovered by the Authority from the Concessionaire as Damages. The Authority shall have the right and the Concessionaire hereby expressly grants to the Authority the right to recover the same directly from the Escrow Account and for that purpose the Concessionaire hereby expressly authorizes Authority and hereby gives irrevocable instructions to the Escrow Bank to make payment from the Escrow Account in accordance with the instructions of Authority under this Clause. 18.7.2 In the event the Authority does not exercise its option to undertake the required repair and maintenance after expiry of the 15 (fifteen) days period set forth in 18.7.1, it shall recover Damages from the Concessionaire for default in operating and maintaining the Project Site in conformity with this Agreement. Such Damages shall be payable after the aforesaid period of 15 (fifteen) days and until the default is cured. The amount of Damages shall be calculated for each day of default at the higher of the following, namely (a) Rs.10,000 (Rs. Ten thousand), and (b) 0.1% (zero point one per cent) of the cost of such repair or rectification as estimated by the Independent Engineer. Notwithstanding anything contained in this agreement, should the actual traffic exceed the design capacity, during any year or part thereof and the Concessionaire fails to repair or rectify any defect or deficiency set forth in the Maintenance Requirements within the period specified therein, it shall be deemed to be in breach of this Agreement and the Authority shall be entitled, from such date, to recover Damages, to be calculated and paid for each day of delay until the breach is cured, at the higher of (a) 5% (five per cent) of Average Daily Fee, and (b) 1% (one per cent) of the cost of such repair or rectification as estimated by the Independent Engineer, for the balance period of the concessionAuthority. Recovery of such Damages shall be without prejudice to the rights of the Authority under this Agreement, including the right of Termination thereof. 17.8.2 The 18.7.3 Damages set forth in Clause 17.8.1 18.7 may be assessed and specified forthwith by the Independent EngineerAuthority; provided that the Authority may, in its discretion, demand a smaller sum as Damages, if in its opinion, the breach has been cured promptly and the Concessionaire is otherwise in compliance with its obligations hereunder. The Concessionaire shall pay such Damages forthwith and in the event that it contests such Damages, the Dispute Resolution Procedure shall apply. 18.7.4 If in the reasonable opinion of the Authority, the Concessionaire is in Material Breach of its obligations under this Agreement and, in particular, the Maintenance Requirements, and such breach is causing or likely to cause material hardship or danger to the people, the Authority may, without prejudice to any of its rights under this Agreement including Termination thereof, by notice require the Concessionaire to take reasonable measures immediately for rectifying or removing such hardship or danger, as the case may be.

Damages for breach of maintenance obligations. 17.8.1 In 15.8.1 I n the event that the Concessionaire fails to repair or rectify any defect or deficiency set forth in the Maintenance Requirements within the period specified therein(Annex-I & Annex-II to Schedule-F), it shall be deemed to be in breach of this Agreement and the Authority Government shall be entitled to recover damages as under : - i) I n case defects/ deficiencies with respect to routine maintenance items specified in Annex-I I to Schedule-F are observed by the Engineer during the monthly inspection, the damages at the rates as specified therein shall be levied and recovered against each defect/ deficiency. Recovery of such damages shall be final and binding on Concessionaire. For avoidance of doubt recovery of such damages shall be without prejudice to the right s of the Govt. to recover damages specified under 15.8.1 (ii) below. Further, the Concessionaire shall rectify the defects observed during the monthly inspection within the period as specified in Annex-I to Schedule-F. ii) Failure of the Concessionaire to repair or rectify any defect or deficiency set forth in the Maintenance Requirements (including those observed during monthly inspections) within the period specified therein shall be deemed to be a breach of this Agreement and the Government shall be entitled to recover Damages, to be calculated and paid for each day of delay until the breach is cured, at the higher of (a) 0.5% (zero point five per centpercent) of Average Daily Fee, and (b) 0.1% (zero point one per centpercent) of the cost of such repair or of rectification as estimated by the Independent Engineer. Notwithstanding anything contained in this agreement, should the actual traffic exceed the design capacity, during any year or part thereof and the Concessionaire fails to repair or rectify any defect or deficiency set forth in the Maintenance Requirements within the period specified therein, it shall be deemed to be in breach of this Agreement and the Authority shall be entitled, from such date, to recover Damages, to be calculated and paid for each day of delay until the breach is cured, at the higher of (a) 5% (five per cent) of Average Daily Fee, and (b) 1% (one per cent) of the cost of such repair or rectification as estimated by the Independent Engineer, for the balance period of the concession. Recovery of such Damages shall be without prejudice to the rights of the Authority Government under this Agreement, including the right of Termination thereof. 17.8.2 15.8.2 The Damages set forth in Clause 17.8.1 15.8.1 (ii) may be assessed and specified forthwith by the Independent Engineer; provided that the Authority Government may, in its discretion, demand a smaller sum as Damages, if in its opinion, the breach has been cured promptly and the Concessionaire is otherwise in compliance with its obligations hereunder. The Concessionaire shall pay such Damages forthwith and in the event that it contests such Damages, the Dispute Resolution Procedure shall apply.

Damages for breach of maintenance obligations. 17.8.1 In the event that the Concessionaire fails to repair or rectify any defect or deficiency set forth in the Maintenance Requirements within the period specified therein, it shall be deemed to be in breach of this Agreement and the Concessioning Authority shall be entitled to recover Damages, to be calculated and paid for each day of delay until the breach is cured, at the higher of (a) 0.5% (zero point five per cent) of Average Daily Feethe applicable Performance Security, and (b) 0.1% (zero point one per cent) of the cost of such repair or rectification as estimated by the Independent Engineer. Notwithstanding anything contained in this agreement, should the actual traffic exceed the design capacity, during any year or part thereof and the Concessionaire fails to repair or rectify any defect or deficiency set forth in the Maintenance Requirements within the period specified therein, it shall be deemed to be in breach of this Agreement and the Authority shall be entitled, from such date, to recover Damages, to be calculated and paid for each day of delay until the breach is cured, at the higher of (a) 5% (five per cent) of Average Daily Fee, and (b) 1% (one per cent) of the cost of such repair or rectification as estimated by the Independent Engineer, for the balance period of the concession. Recovery of such Damages shall be without prejudice to the rights of the Concessioning Authority under this Agreement, including the right of Termination thereof. 17.8.2 The Damages set forth in Clause 17.8.1 may be assessed and specified forthwith by the Independent Engineer, in consultation with the Concessioning Authority; provided that the Concessioning Authority may, in its discretion, demand a smaller sum as Damages, if in its opinion, the breach has been cured promptly and the Concessionaire is otherwise in compliance with its obligations hereunder. The Concessionaire shall pay such Damages forthwith and in the event that it contests such Damages, the Dispute Resolution Procedure shall apply.

Damages for breach of maintenance obligations. 17.8.1 15.8.1 In the event that the Concessionaire fails to repair or rectify any defect or deficiency set forth in the Maintenance Requirements within the period specified therein(Annex-I & Annex-II to Schedule-F), it shall be deemed to be in breach of this Agreement and the Authority Government shall be entitled to recover damages as under :- i) In case defects/deficiencies with respect to routine maintenance items specified in Annex-II to Schedule-F are observed by the Engineer during the monthly inspection, the damages at the rates as specified therein shall be levied and recovered against each defect/deficiency. Recovery of such damages shall be final and binding on Concessionaire. For avoidance of doubt recovery of such damages shall be without prejudice to the rights of the Govt. to recover damages specified under 15.8.1 (ii) below. Further, the Concessionaire shall rectify the defects observed during the monthly inspection within the period as specified in Annex-I to Schedule-F. ii) Failure of the Concessionaire to repair or rectify any defect or deficiency set forth in the Maintenance Requirements (including those observed during monthly inspections) within the period specified therein shall be deemed to be a breach of this Agreement and the Government shall be entitled to recover Damages, to be calculated and paid for each day of delay until the breach is cured, at the higher of (a) 0.5% (zero point five per centpercent) of Average Daily Fee, and (b) 0.1% (zero point one per centpercent) of the cost of such repair or of rectification as estimated by the Independent Engineer. Notwithstanding anything contained in this agreement, should the actual traffic exceed the design capacity, during any year or part thereof and the Concessionaire fails to repair or rectify any defect or deficiency set forth in the Maintenance Requirements within the period specified therein, it shall be deemed to be in breach of this Agreement and the Authority shall be entitled, from such date, to recover Damages, to be calculated and paid for each day of delay until the breach is cured, at the higher of (a) 5% (five per cent) of Average Daily Fee, and (b) 1% (one per cent) of the cost of such repair or rectification as estimated by the Independent Engineer, for the balance period of the concession. Recovery of such Damages shall be without prejudice to the rights of the Authority Government under this Agreement, including the right of Termination thereof. 17.8.2 15.8.2 The Damages set forth in Clause 17.8.1 15.8.1 (ii) may be assessed and specified forthwith by the Independent Engineer; provided that the Authority Government may, in its discretion, demand a smaller sum as Damages, if in its opinion, the breach has been cured promptly and the Concessionaire is otherwise in compliance with its obligations hereunder. The Concessionaire shall pay such Damages forthwith and in the event that it contests such Damages, the Dispute Resolution Procedure shall apply.

Damages for breach of maintenance obligations. 17.8.1 In the event that the Concessionaire fails to repair or rectify any defect or deficiency set forth in the Maintenance Requirements within the period specified therein, it shall be deemed to be in breach of this Agreement and the Concessioning Authority shall be entitled to recover Damages, to be calculated and paid for each day of delay until the breach is cured, at the higher of (a) 0.5% (zero point five per cent) of Average Daily Feethe applicable Performance Security, and (b) 0.1% (zero point one per cent) of the cost of such repair or rectification as estimated by the Independent Engineer. Notwithstanding anything contained in this agreement, should the actual traffic exceed the design capacity, during any year or part thereof and the Concessionaire fails Concessioning Authority with a limit of maximum up to repair or rectify any defect or deficiency set forth in the Maintenance Requirements within the period specified therein, it shall be deemed to be in breach of this Agreement and the Authority shall be entitled, from such date, to recover Damages, to be calculated and paid for each day of delay until the breach is cured, at the higher of (a) 510% (five per cent) of Average Daily Fee, and (b) 1% (one per cent) of the cost of such repair or rectification as estimated by the Independent Engineer, for the balance period of the concessionPerformance Security. Recovery of such Damages shall be without prejudice to the rights of the Concessioning Authority under this Agreement, including the right of Termination thereof. 17.8.2 The Damages set forth in Clause 17.8.1 may be assessed and specified forthwith by the Independent EngineerConcessioning Authority; provided that the Concessioning Authority may, in its discretion, demand a smaller sum as Damages, if in its opinion, the breach has been cured promptly and the Concessionaire is otherwise in compliance with its obligations hereunder. The Concessionaire shall pay such Damages forthwith and in the event that it contests such Damages, the Dispute Resolution Procedure shall apply. 17.8.3 Steering Group A Steering Group comprising of Transport Commissioner, Odisha; Additional Commissioner Transport (Technical), 2 Divisional Transport Commissioner; and a representative of the Concessionaire shall be constituted during the O&M Period to monitor and ensure the compliance of Operation and Maintenance of the Project as per the provisions of Schedule-K. The Steering Group shall meet once in every six (6) months or earlier and will ensure the compliance of the Operation and Maintenance of the Project in accordance with the provisions of this Agreement thereof. For the avoidance of doubt, it is clarified that for the repair and/ or deficiencies of services mentioned in Schedule-K for which financial damages provisions have been clearly detailed out, the Steering Group shall be entitled to impose damages accordingly which shall be recovered by the Concessioning Authority. For the services, for which damages provisions are not detailed out or cannot be computed in financial terms in Schedule-K, provisions of Clause 17.8.1 of this Agreement shall apply.