Appendix 8 Liquidated Damages - Operations: L D - O A 8 G C C D, B O S W F

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Appendix 8
Liquidated Damages – Operations
LIQUIDATED DAMAGES-OPERATIONS
APPENDIX 8 TO THE GENERAL CONDITIONS
FOR A CONTRACT TO
DESIGN, BUILD AND OPERATE
A SOLID WASTE DISPOSAL FACILITY
[Note: The Liquidated Damages clauses that follow relate to the Operations Services. While a
general format is set out, it will be important to identify, on a case by case basis, those
performance failures that ought to give rise to Liquidated Damages.
In addition, the liquidated damages provisions will have to be determined for each jurisdiction
because the law in each jurisdiction may vary about the enforceability of liquidated damages.
Typically, in a design-build contract, a delay by the Operator would result in a payment of

liquidated damages based on an assessment of the Owner’s per diem costs or lost profits caused
by the delay and this is dealt with in the General Conditions and Special Conditions of Contract.
In an operating contract, however, it is more difficult to characterize a payment for breach of a
technical standard as a “liquidated damage”, since the breach would not necessarily result in
an increased cost or loss of profit to the Owner. In this case, the payment by the Operator might
be classified as a penalty, and the local law would be relevant to determining the enforceability
of such penalties.]
Page 1 of 2
LIQUIDATED DAMAGES
SECTION 1 - GENERAL
1.1 Operator’s Acknowledgements
The Operator acknowledges and agrees that,
(a) a failure of the Operator to meet the Technical Standards set out in the Technical
Standards Appendix is a breach of the Contract;
(b) the Operator shall pay to the Owner liquidated damages (the “Liquidated
Damages”) upon an Occurrence (as defined in LDA Section 1.2); and
(c) Liquidated Damages payable under this Liquidated Damages Appendix do not
constitute the only or the full quantum of damage incurred by the Owner as a
result of an Occurrence and represent only a genuine pre-estimate of the damages
that will be suffered by the Owner upon an Occurrence.
1.2 Definition of Damages
For the purposes of this Liquidated Damages Appendix, the Operator shall be obliged to
pay Liquidated Damages in accordance with LDA Article 2 if it breaches certain identified Technical
Standards set out in the Technical Standards Appendix as identified in this Liquidated Damages
Appendix.
1.3 No Waiver
The right of the Owner to receive such Liquidated Damages shall not limit any of its
other rights pursuant to the Contract including, without limitation, the Owner’s rights pursuant to GC
Section 1.6 and 11.2.
SECTION 2 - CALCULATION OF LIQUIDATED DAMAGES AND PAYMENT
2.1 Calculation for Breach of Technical Standards
(1) Liquidated Damages shall be paid by the Operator for each Occurrence and the
amount of the Liquidated Damages for each Occurrence shall be calculated pursuant to the
formulae set out in the chart as follows:
Page 2 of 2
Occurrence Amount of Liquidated Damages for the

Occurrence
The Operator fails to [ ] [Note: The occurrence [Insert amount or formula to calculate the
and technical standard will have to be inserted. liquidated damages or penalties]
See the following sample occurrences:]
[The Operator fails to achieve the minimum [US$________ for each occurrence monitored
overall density of 700 kgs/cubic meter of at the end of each quarter of the New
compacted waste, including daily cover Operations Period]
(OSA 4.2(q))]
[The Operator fails to maintain leachate heads [US$________for each occurrence during the
within 1 m of the top of the engineered barrier New Operations Services Period]
(OSA 8.2.4(c)]
[The Operator fails to make the Site available [US$________ for each day or part day when
for the receipt and deposition of waste the Site and New Facility are not available for
the receipt and deposition of waste during the
(DBSA 2.1.5)]
Contract Term]
[The Operator is in breach of any of the [In accordance with any penalties imposed
conditions stipulated in the Environmental upon the Owner by any regulatory authority.]
Compliance Certificate]
[The Operator fails to deliver any of the reports [US$________ for each occurrence during the
contemplated under the Contract within the Contract Term]
time limits specified in the Contract]
(2) Liquidated Damages shall not be calculated for an Occurrence listed in LDA
Section 2.1(1) if the cause of the Occurrence was beyond the Operator’s control.
(3) The total amount of Liquidated Damages payable by the Operator in any month shall not
exceed 40 per cent of the fee for that month.
2.2 Payment of Liquidated Damages
(1) The Operator shall provide the Owner with an account for its review and approval of any
Liquidated Damages payable to the Owner for a month within 15 days after the end of the applicable
month. If the Operator does not provide the Owner with such an account within such 15 day period, the
Owner may request that the CSCU Director or the Design-Build Engineer, as applicable, provide the
account.
(2) Upon approval of the account by the Owner, the Operator shall pay the Liquidated
Damages to the Owner in Local Currency to a bank account in City as directed by the Owner.
(3) The Owner may, in its sole discretion, deduct any Liquidated Damages payable by the
Operator from any amount owed by the Owner to the Operator.
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Appendix 8 Liquidated Damages - Operations: L D - O A 8 G C C D, B O S W F

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Typically, in a design-build contract, a delay by the Operator would result in a payment of

1.1 Operator’s Acknowledgements

The Operator acknowledges and agrees that,

1.2 Definition of Damages

SECTION 2 - CALCULATION OF LIQUIDATED DAMAGES AND PAYMENT

2.1 Calculation for Breach of Technical Standards

Occurrence Amount of Liquidated Damages for the

2.2 Payment of Liquidated Damages

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