Common use of Construction Performance Security Clause in Contracts

Construction Performance Security. 11.1.1 Prior to the Effective Date, the Concessionaire has provided and delivered to the Agency the Construction Performance Security. The Construction Performance Security: (a) has been issued and maintained without any recourse on the Concessionaire, its assets or properties; and (b) has not been secured through any Concession Assets and no Encumbrance of any nature has been created on the assets and properties of the Concessionaire in respect of the same. All costs, expenses, fees and other charges of any nature, in each case, associated with the issuance, maintenance and encashment of the Construction Performance Security are solely on account of the Sponsor. 11.1.2 The Construction Performance Security shall secure: (a) all of the Sponsor’s obligations, liabilities, payments, indemnities, representations, guarantees, warranties and responsibilities under the Agency Agreements to which it is a party; and (b) all of the Concessionaire’s obligations, liabilities, payments, liquidated damages, indemnities, representations, guarantees, warranties and responsibilities under the Agency Agreements, including the integrity and quality of the Concessionaire’s and its Contractors’ workmanship, the timely and continuous performance of the Project Works, the quality and quantity of any equipment, materials, items and components supplied, the performance of Project Works by the Concessionaire and compliance of the same with the Applicable Standards and all other works and services to be provided by the Concessionaire under the Agency Agreements. 11.1.3 The Construction Performance Security came into force and became effective upon issuance and delivery of the same to the Agency. 11.1.4 The Construction Performance Security shall be encashable in accordance with the terms thereof and shall be payable on the Agency’s first written demand without any prior notice, reference or recourse to the Concessionaire, the Sponsors or any other entity. 11.1.5 The Concessionaire shall be obligated to adjust the Construction Performance Security from time to time to reflect any amounts payable by the Agency pursuant to Article 16 (Change of Scope), such increase being an amount equal to two percent (2%) of the amounts payable to the Concessionaire from time to time in accordance with Article 16 (Change of Scope). In addition, the Construction Performance Security shall be adjusted, as condition precedent to issuance of the Construction Completion Certificate, prior to the Construction Completion Date so that it is equal in value to two percent (2%) of the Total Project Cost less the aggregate of any encashments made by the Agency prior to the date of adjustment. 11.1.6 The Concessionaire shall be obligated to maintain and keep valid the Construction Performance Security until the date falling twenty four (24) months following Substantial Completion Date (the Construction Performance Security Expiry Date), as evidenced by a certificate jointly issued by the Independent Engineer and the Independent Auditor/Expert. In the event the Construction Performance Security expires prior to the Construction Performance Security Expiry Date, the Concessionaire shall extend the validity of the Construction Performance Security, at least fifteen (15) business days prior to its expiry, so as to keep it valid and enforceable until the Construction Performance Security Expiry Date. In the event of failure by the Concessionaire to keep valid or extend the validity of the Construction Performance Security in accordance with this Section 11.1.6, the Agency shall have the right to encash the Construction Performance Security at any time to its full outstanding value. 11.1.7 Upon the issuance of a certificate jointly issued by the Independent Engineer and the Independent Auditor/Expert evidencing the occurrence of Construction Performance Security Expiry Date, the Construction Performance Security shall be null and void and shall be returned to the Concessionaire by the Agency within fifteen (15) days of receipt by the Agency of the afore-stated certificate.

Construction Performance Security. 11.1.1 Prior 11.2.1 At any time prior to the Effective Bid Security Expiry Date, the Concessionaire has provided shall provide and delivered deliver to the Agency GoS the Construction Performance Security. The Construction Performance Security: (a) has been shall be issued and maintained without any recourse on the Concessionaire, its assets or properties; and; (b) has shall not been be secured through any Concession Assets and no Encumbrance of any nature has been shall be created on the assets and properties of the Concessionaire in respect of the same. All costs, expenses, fees and other charges of any nature, in each case, associated with the issuance, maintenance and encashment of the Construction Performance Security are solely on account of the Sponsor. 11.1.2 11.2.2 The Construction Performance Security shall secure: (a) all of the Sponsor’s Sponsors’ obligations, liabilities, payments, indemnities, representations, guarantees, warranties and responsibilities under the Agency GoS Agreements to which it is they are a party; and (b) all of the Concessionaire’s obligations, liabilities, payments, liquidated damages, indemnities, representations, guarantees, warranties and responsibilities under the Agency GoS Agreements, including the integrity and quality of the Concessionaire’s and its Contractors’ workmanship, the timely and continuous performance of the Project Works, the quality and quantity of the any equipment, materials, items and components supplied, the performance of Project Works (including the Preliminary Works) by the Concessionaire and compliance of the same with the Applicable Standards and all other works and services to be provided by the Concessionaire under the Agency GoS Agreements. 11.1.3 11.2.3 The Construction Performance Security came shall come into force and became shall become automatically effective upon issuance and delivery of the same to the Agency.GoS. 11.1.4 11.2.4 The Construction Performance Security shall be encashable in accordance with the terms thereof and shall be payable on the Agency’s GoS’ first written demand without any prior notice, reference or recourse to the Concessionaire, the Sponsors or any other entity. 11.1.5 11.2.5 The Concessionaire shall be obligated to adjust the Construction Performance Security from time to time to reflect any amounts payable by the Agency GoS pursuant to Article 16 (Change of Scope), such increase being an amount equal to two one percent (2%) of 1%)of the amounts payable to the Concessionaire from time to time in accordance with Article 16 (Change of Scope). In addition, the Construction Performance Security shall be adjusted, as condition precedent to issuance of the Final Project Construction Completion Certificate, prior to the Project Construction Completion Date so that it is equal in value to two [one percent (2%) of 1%)]of the Total Project Cost less the aggregate of any encashments made by the Agency GoS prior to the date of adjustment. 11.1.6 11.2.6 The Concessionaire shall be obligated to maintain and keep valid the Construction Performance Security until the date falling twenty four ninety (2490) months following Substantial Completion Date days after the expiry of the Defects Liability Period (the Construction Performance Security Expiry Date), as evidenced by a certificate jointly issued by the Independent Engineer and the Independent Auditor/Expert. In the event the Construction Performance Security expires prior to the Construction Performance Security Expiry Date, the Concessionaire shall extend the validity of the Construction Performance Security, at least [fifteen (15) )] business days prior to its expiry, so as to keep it valid and enforceable until the Construction Performance Security Expiry Date. In the event of failure by the Concessionaire to keep valid or extend the validity of the Construction Performance Security in accordance with this Section 11.1.611.2.6, the Agency GoS shall have the right to encash the Construction Performance Security at any time to its full outstanding valuevalue at any time. 11.1.7 11.2.7 Upon the issuance of a certificate jointly issued by the Independent Engineer and the Independent Auditor/Expert Auditor evidencing the occurrence of Construction Performance Security Expiry Date, the Construction Performance Security shall be null and void and shall be returned to the Concessionaire by the Agency GoS within fifteen [seven (15) 7)] business days of receipt by the Agency GoS of the afore-stated certificate.