[Note: Procuring agencies to determine on a project specific basis whether and what consequences should apply if Project Co fails to comply with its Major Projects Skills Guarantee Compliance Plan. In this Standard Form Project Deed, a failure to comply with the Major Projects Skills Guarantee Compliance Plan will result in liquidated damages payable at the Date of Commercial Acceptance and may result in a Major Default under paragraph (p) of that definition.]
(a) (Certification by the Independent Reviewer): On the Date of Commercial Acceptance, the Independent Reviewer must certify the percentage of the total labour hours for the Works performed by Apprentices, Trainees and Engineering Cadets to the Date of Commercial Acceptance, by issuing a certificate in the form set out in the Schedule of Certificates and Notices.
(b) (State's entitlement to liquidated damages): Without limiting clause 59.4(d), if, by the Date of Commercial Acceptance, Project Co has not met the Major Projects Skills Guarantee to the Date of Commercial Acceptance as determined in accordance with clause 59.4(a), Project Co will be liable to the State for liquidated damages as calculated in accordance with section [#] of the Payment Schedule and such amount will be a debt due and payable from Project Co to the State. [Note: The Payment Schedule must include the formula for calculating the liquidated damages.]
(c) (Calculation of liquidated damages): The parties acknowledge and agree that:
(i) the liquidated damages referred to in clause 59.4(b):
A. will be calculated in accordance with the formula set out in section [#] of the Payment Schedule; and
B. the formula has been agreed by the parties in good faith and the adjustment resulting from its application is a genuine pre-estimate of the anticipated or actual Liability the State will suffer if Project Co fails to meet the Major Projects Skills Guarantee by the Date of Commercial Acceptance;
(ii) each party wishes to avoid the difficulties of proof of damages in connection with a failure by Project Co to meet the Major Projects Skills Guarantee by the Date of Commercial Acceptance; and
(iii) the liquidated damages payable in accordance with clause 59.4(b) are reasonable and are not intended as a penalty.
(d) (State's entitlement to common law damages): Notwithstanding clause 59.4(e), to the extent that all or any part of this clause 59.4(d) is found for any reason to be void, invalid, unenforceable or otherwise inoperative so as to disentitle the State from receiving the amount of liquidated damages payable in accordance with clause 59.4(b), the State will be entitled to recover common law damages for the failure by Project Co to meet the Major Projects Skills Guarantee to the Date of Commercial Acceptance but Project Co's Liability for such damages will not be any greater than the Liability which it would have had if this clause 59.4 had not been void, invalid, unenforceable or otherwise inoperative.
(e) (Sole remedy): Subject to clauses 59.4(d) and 59.4(f), payment by Project Co of liquidated damages in accordance with clause 59.4(b) will be the State's sole financial remedy for a failure by Project Co to meet the Major Projects Skills Guarantee to the Date of Commercial Acceptance.
(f) (Default): Clause 59.4(e) does not limit the State's rights under clauses 45 and 46, in circumstances where Project Co breaches clause 59.1(b) and that breach becomes a Major Default under paragraph (p) of the definition of Major Default.