Delay Liquidated Damages. (a) The Parties agree that it would be extremely difficult and impracticable under presently known and anticipated facts and circumstances to ascertain and fix the actual damages Owner would incur if Contractor does not achieve Substantial Completion of Unit 6 by the Guaranteed Substantial Completion Date for Unit 6 (as the Guaranteed Substantial Completion Date for Unit 6 may be extended due to Force Majeure, Owner caused delays, differing site conditions, discovery of Hazardous Materials, Changes in Law, or as otherwise contemplated in this Agreement), and, accordingly, if Contractor does not achieve Substantial Completion of Unit 6 by that date, subject to Section 12.1(c) below, Owner’s sole and exclusive remedy for such delay shall be to recover from Contractor as liquidated damages, and not as a penalty, the Delay Liquidated Damages for each Day that Substantial Completion of Unit 6 is delayed beyond the Guaranteed Substantial Completion Date for Unit 6; provided, that in no event shall the aggregate Delay Liquidated Damages for ▇▇▇▇ ▇ exceed its Delay Liquidated Damages Cap. (b) The Parties agree that it would be extremely difficult and impracticable under presently known and anticipated facts and circumstances to ascertain and fix the actual damages Owner would incur if (i) ▇▇▇▇ ▇ Scrubber Tie-In does not commence by the Guaranteed Tie-In Commencement Date, (ii) Contractor does not complete the successful tie-in of the Unit 5 Scrubber by the Guaranteed Tie-In Completion Date or (iii) after the successful Tie-In of the Unit 5 Scrubber, Contractor does not achieve Substantial Completion of the Unit 5 Scrubber by the Guaranteed Substantial Completion Date (in each case, as the Guaranteed Tie-In Commencement Date, the Guaranteed Tie-in Completion Date or the Guaranteed Substantial Completion Date of the Unit 5 Scrubber, as applicable, may be extended due to Force Majeure, Owner caused delays, differing site conditions, discovery of Hazardous Materials, Changes in Law, or as otherwise contemplated in this Agreement), and, accordingly, upon the occurrence of either event, subject to Section 12.1(c) below, Owner’s sole and exclusive remedy therefore shall be to recover from Contractor as liquidated damages, and not as a penalty, the Delay Liquidated Damages for each Day after the Guaranteed Tie-In Commencement Date that Unit 5 Scrubber Tie-In does not commence, each Day after the Guaranteed Tie-In Completion Date that the successful Tie-In of the Unit 5 Scrubber has not been achieved, and, after the successful Tie-In of the Unit 5 Scrubber has been achieved, each Day after the Guaranteed Substantial Completion of the Unit 5 Scrubber that Substantial Completion of the Unit 5 Scrubber is not achieved, as applicable; provided, that in no event shall the aggregate Delay Liquidated Damages for the Unit 5 Scrubber exceed its Delay Liquidated Damages Cap. The Parties hereby agree that the Delay Liquidated Damages payable pursuant to this Section 12.1(b) shall not be duplicative. By way of example, if Contractor is assessed Delay Liquidated Damages due to the commencement of Unit 5 Scrubber Tie-In on a date that is two (2) days after the Guaranteed Tie-In Commencement Date, Contractor shall not be liable for Delay Liquidated Damages for the same two (2) day delay in completing Unit 5 Scrubber Tie-In or in achieving Substantial Completion of the Unit 5 Scrubber. (c) Contractor shall have no liability or obligation to pay Delay Liquidated Damages to Owner hereunder for any delay in Contractor’s performance of the Work to the extent attributable to the performance of any Owner Equipment, unless such delay is the result of Contractor’s failure to comply with the requirements set forth in this Agreement.
Appears in 2 contracts
Sources: Engineering, Procurement and Construction Agreement (Duke Energy CORP), Engineering, Procurement and Construction Agreement (Duke Energy Carolinas, LLC)
Delay Liquidated Damages. a. To the extent that (ai) The Parties agree that it would be extremely difficult a PREPA Risk Event delays Resource Provider’s ability to achieve Commercial Operation as determined under Section 3.4 (Extensions of Time) and impracticable under presently known and anticipated facts and circumstances (ii) Resource Provider achieves either Deemed Completion or Commercial Operation, then PREPA shall pay to ascertain and fix the actual damages Owner would incur if Contractor does not achieve Substantial Completion of Unit 6 by the Guaranteed Substantial Completion Date for Unit 6 (Resource Provider, as the Guaranteed Substantial Completion Date for Unit 6 may be extended due to Force Majeure, Owner caused delays, differing site conditions, discovery of Hazardous Materials, Changes in Law, or as otherwise contemplated in this Agreement), and, accordingly, if Contractor does not achieve Substantial Completion of Unit 6 by that date, subject to Section 12.1(c) below, OwnerResource Provider’s sole and exclusive remedy for in respect of such delay, an amount per Day of such delay shall be equal to recover from Contractor one thirtieth (1/30) of the Capability Payment Price applicable to the first Agreement Year as liquidated damages, and not as a penalty, damages (the “PREPA Delay Liquidated Damages for each Day Damages”) no later than forty-five (45) Days after receipt of an invoice therefor; provided that Substantial Completion of Unit 6 is delayed beyond the Guaranteed Substantial Completion Date for Unit 6; provided, that in no event shall the aggregate Delay Liquidated Damages for ▇▇▇▇ ▇ exceed its Delay Liquidated Damages Cap.
(bA) The Parties agree that it would be extremely difficult and impracticable under presently known and anticipated facts and circumstances to ascertain and fix the actual damages Owner would incur if (i) ▇▇▇▇ ▇ Scrubber Tie-In does not commence by the Guaranteed Tie-In Commencement Date, (ii) Contractor does not complete the successful tie-in of the Unit 5 Scrubber by the Guaranteed Tie-In Completion Date or (iii) after the successful Tie-In of the Unit 5 Scrubber, Contractor does not achieve Substantial Completion of the Unit 5 Scrubber by the Guaranteed Substantial Completion Date (in each case, as the Guaranteed Tie-In Commencement Date, the Guaranteed Tie-in Completion Date or the Guaranteed Substantial Completion Date of the Unit 5 Scrubber, as applicable, may be extended due to Force Majeure, Owner caused delays, differing site conditions, discovery of Hazardous Materials, Changes in Law, or as otherwise contemplated in this Agreement), and, accordinglyif, upon the occurrence of either eventCommercial Operation Date, subject the Monthly Contract Capability established by the Initial Performance Tests falls below the Design Dmax, then the Parties shall reduce the PREPA Delay Liquidated Damages and Resource Provider shall credit PREPA’s account for any overpayment according to the ratio that such Monthly Contract Capability bears to the Design Dmax; and (B) the Term shall reduce for each Day in respect of which PREPA has paid PREPA Delay Liquidated Damages. The Parties acknowledge and agree that the PREPA Delay Liquidated Damages represent a fair and reasonable estimate of the losses which Resource Provider will suffer if Commercial Operation does not occur by the Guaranteed Commercial Operation Date, and accordingly the Parties hereby waive their right to dispute the validity of this paragraph (a) of Section 12.1(c3.5.
b. For each Day of delay in achieving Commercial Operation after the Guaranteed Commercial Operation Date until the earlier of (i) belowthe Commercial Operation Date, Ownerand (ii) the Long-Stop Date, other than any Day in respect of which PREPA has an obligation to pay PREPA Delay Liquidated Damages in accordance with paragraph (a) above, Resource Provider shall pay to PREPA as liquidated damages the Resource Provider Delay Liquidated Damages, no later than forty-five (45) Days after receipt of an invoice therefor. The Resource Provider Delay Liquidated Damages shall constitute PREPA’s sole and exclusive remedy therefore shall be to recover from Contractor as liquidated damagesin respect of such delay, and not as a penalty, the Delay Liquidated Damages for each Day after the Guaranteed Tie-In Commencement Date that Unit 5 Scrubber Tie-In does not commence, each Day after the Guaranteed Tie-In Completion Date that the successful Tie-In other than those remedies arising out of the Unit 5 Scrubber has not been achieved, and, after the successful Tie-In of the Unit 5 Scrubber has been achieved, each Day after the Guaranteed Substantial Completion of the Unit 5 Scrubber that Substantial Completion of the Unit 5 Scrubber is not achieved, as applicable; provided, that in no event shall the aggregate Delay Liquidated Damages termination by PREPA for the Unit 5 Scrubber exceed its Delay Liquidated Damages Cap. The Parties hereby agree that the Delay Liquidated Damages payable pursuant to this delay under Section 12.1(b) shall not be duplicative. By way of example, if Contractor is assessed Delay Liquidated Damages due to the commencement of Unit 5 Scrubber Tie-In on a date that is two 15.1 (2) days after the Guaranteed Tie-In Commencement Date, Contractor shall not be liable for Delay Liquidated Damages for the same two (2) day delay in completing Unit 5 Scrubber Tie-In or in achieving Substantial Completion of the Unit 5 Scrubber.
(c) Contractor shall have no liability or obligation to pay Delay Liquidated Damages to Owner hereunder for any delay in Contractor’s performance of the Work to the extent attributable to the performance of any Owner Equipment, unless such delay is the result of Contractor’s failure to comply with the requirements set forth in this Agreement.
Appears in 2 contracts
Sources: Energy Storage Services Agreement, Energy Storage Services Agreement
Delay Liquidated Damages. a. To the extent that (ai) The Parties agree that it would be extremely difficult a PREPA Risk Event delays Resource Provider’s ability to achieve Commercial Operation as determined under Section 3.4 (Extensions of Time) and impracticable under presently known and anticipated facts and circumstances (ii) Resource Provider achieves either Deemed Completion or Commercial Operation, then PREPA shall pay to ascertain and fix the actual damages Owner would incur if Contractor does not achieve Substantial Completion of Unit 6 by the Guaranteed Substantial Completion Date for Unit 6 (Resource Provider, as the Guaranteed Substantial Completion Date for Unit 6 may be extended due to Force Majeure, Owner caused delays, differing site conditions, discovery of Hazardous Materials, Changes in Law, or as otherwise contemplated in this Agreement), and, accordingly, if Contractor does not achieve Substantial Completion of Unit 6 by that date, subject to Section 12.1(c) below, OwnerResource Provider’s sole and exclusive remedy for in respect of such delay, an amount per Day of such delay shall be equal to recover from Contractor the product of (A) the Base Rate multiplied by (B) the P50 Energy Yield for the first Agreement Year divided by three hundred sixty-five (365) as liquidated damages, and not as a penalty, damages (the “PREPA Delay Liquidated Damages for each Day Damages”) no later than forty-five (45) Days after receipt of an invoice therefor; provided that Substantial Completion of Unit 6 is delayed beyond the Guaranteed Substantial Completion Date for Unit 6; provided, that in no event shall the aggregate Delay Liquidated Damages for ▇▇▇▇ ▇ exceed its Delay Liquidated Damages Cap.
(bA) The Parties agree that it would be extremely difficult and impracticable under presently known and anticipated facts and circumstances to ascertain and fix the actual damages Owner would incur if (i) ▇▇▇▇ ▇ Scrubber Tie-In does not commence by the Guaranteed Tie-In Commencement Date, (ii) Contractor does not complete the successful tie-in of the Unit 5 Scrubber by the Guaranteed Tie-In Completion Date or (iii) after the successful Tie-In of the Unit 5 Scrubber, Contractor does not achieve Substantial Completion of the Unit 5 Scrubber by the Guaranteed Substantial Completion Date (in each case, as the Guaranteed Tie-In Commencement Date, the Guaranteed Tie-in Completion Date or the Guaranteed Substantial Completion Date of the Unit 5 Scrubber, as applicable, may be extended due to Force Majeure, Owner caused delays, differing site conditions, discovery of Hazardous Materials, Changes in Law, or as otherwise contemplated in this Agreement), and, accordinglyif, upon the occurrence of either eventCommercial Operation Date, subject the Contract Capacity established by the Initial Performance Tests falls below the Maximum Dispatch Limit, then the Parties shall reduce the PREPA Delay Liquidated Damages, and Resource Provider shall credit PREPA’s account for any overpayment, according to the ratio that such Contract Capacity bears to the Maximum Dispatch Limit; and (B) the Supply Period shall reduce for each Day in respect of which PREPA has paid PREPA Delay Liquidated Damages. The Parties acknowledge and agree that the PREPA Delay Liquidated Damages represent a fair and reasonable estimate of the losses which Resource Provider will suffer if Commercial Operation does not occur by the Guaranteed Commercial Operation Date, and accordingly the Parties hereby waive their right to dispute the validity of this paragraph
(a) of Section 12.1(c3.5.
b. For each Day of delay in achieving Commercial Operation after the Guaranteed Commercial Operation Date until the earlier of (i) belowthe Commercial Operation Date, Ownerand (ii) the Long-Stop Date, other than any Day in respect of which PREPA has an obligation to pay PREPA Delay Liquidated Damages in accordance with paragraph (a) above, Resource Provider shall pay to PREPA as liquidated damages the Resource Provider Delay Liquidated Damages, no later than forty-five (45) Days after receipt of an invoice therefor. The Resource Provider Delay Liquidated Damages shall constitute PREPA’s sole and exclusive remedy therefore shall be to recover from Contractor as liquidated damagesin respect of such delay, and not as a penalty, the Delay Liquidated Damages for each Day after the Guaranteed Tie-In Commencement Date that Unit 5 Scrubber Tie-In does not commence, each Day after the Guaranteed Tie-In Completion Date that the successful Tie-In other than those remedies arising out of the Unit 5 Scrubber has not been achieved, and, after the successful Tie-In of the Unit 5 Scrubber has been achieved, each Day after the Guaranteed Substantial Completion of the Unit 5 Scrubber that Substantial Completion of the Unit 5 Scrubber is not achieved, as applicable; provided, that in no event shall the aggregate Delay Liquidated Damages termination by PREPA for the Unit 5 Scrubber exceed its Delay Liquidated Damages Cap. The Parties hereby agree that the Delay Liquidated Damages payable pursuant to this delay under Section 12.1(b) shall not be duplicative. By way of example, if Contractor is assessed Delay Liquidated Damages due to the commencement of Unit 5 Scrubber Tie-In on a date that is two 15.1 (2) days after the Guaranteed Tie-In Commencement Date, Contractor shall not be liable for Delay Liquidated Damages for the same two (2) day delay in completing Unit 5 Scrubber Tie-In or in achieving Substantial Completion of the Unit 5 Scrubber.
(c) Contractor shall have no liability or obligation to pay Delay Liquidated Damages to Owner hereunder for any delay in Contractor’s performance of the Work to the extent attributable to the performance of any Owner Equipment, unless such delay is the result of Contractor’s failure to comply with the requirements set forth in this Agreement.
Appears in 1 contract
Delay Liquidated Damages. (a) The Parties agree that it would be extremely difficult and impracticable under presently known and anticipated facts and circumstances to ascertain and fix the actual damages Owner Owners would incur if Contractor a Unit does not achieve Substantial Completion of Unit 6 Nuclear Fuel Load by the Guaranteed Substantial Completion Nuclear Fuel Load Date for such Unit 6 (as the Guaranteed Substantial Completion Date for Unit 6 may be extended due to Force Majeure, Owner caused delays, differing site conditions, discovery of Hazardous Materials, Changes in Law, or as otherwise contemplated in this Agreement), and, accordingly, if Contractor a Unit does not achieve Substantial Completion of Unit 6 Nuclear Fuel Load by that datesuch Unit’s Nuclear Fuel Load Date, subject to Section 12.1(c) below, Owner’s sole and exclusive Owners’ remedy for such delay shall be to recover from Contractor as liquidated damages, and not as a penalty, liquidated damages (“Delay Liquidated Damages”) as follows: January 31, 2019 for the First Unit; January 31, 2020 for the Second Unit [***] reduction in the payment set forth in Section 8.11(f) or (g), as applicable [***] for the First Unit; [***] for the Second Unit [***] further reduction in the payment set forth in Section 8.11(f) or (g), as applicable [***] for the First Unit; [***] for the Second Unit [***] further reduction in the payment set forth in Section 8.11(f) or (g), as applicable Thereafter following [***] for the First Unit; thereafter following [***] for the Second Unit [***]/Day payment Thereafter following [***] for the First Unit; thereafter following [***] for the Second Unit [***]/Day payment Beginning with the date that the Contractor’s Costs for performance of this Agreement exceed the Contract Price (excluding any adjustment made pursuant to Section 7.3), and until such date as Owners have paid the maximum amount of Financial Integrity Payments as provided in Section 7.3, no Delay Liquidated Damages shall be due or shall accrue. From and after the date (if any) that Owners incur liability for each Day that Substantial Completion the maximum amount of Unit 6 is delayed beyond Financial Integrity Payments, Delay Liquidated Damages shall again begin to accrue to the Guaranteed Substantial Completion Date for Unit 6; provided, that in extent they are due and payable under the other provisions of this Agreement. In no event shall the aggregate Delay Liquidated Damages for ▇▇▇▇ ▇ exceed its Delay Liquidated Damages Cap.
(b) The Parties agree that it would be extremely difficult and impracticable under presently known and anticipated facts and circumstances to ascertain and fix the actual damages Owner would incur if (i) ▇▇▇▇ ▇ Scrubber Tie-In does not commence by the Guaranteed Tie-In Commencement Date, (ii) Contractor does not complete the successful tie-in of the Unit 5 Scrubber by the Guaranteed Tie-In Completion Date or (iii) after the successful Tie-In of the Unit 5 Scrubber, Contractor does not achieve Substantial Completion of the Unit 5 Scrubber by the Guaranteed Substantial Completion Date (in each case, as the Guaranteed Tie-In Commencement Date, the Guaranteed Tie-in Completion Date or the Guaranteed Substantial Completion Date of the Unit 5 Scrubber, as applicable, may be extended due to Force Majeure, Owner caused delays, differing site conditions, discovery of Hazardous Materials, Changes in Law, or as otherwise contemplated in this Agreement), and, accordingly, upon the occurrence of either event, subject to Section 12.1(c) below, Owner’s sole and exclusive remedy therefore shall be to recover from Contractor as liquidated damages, and not as a penalty, the Delay Liquidated Damages for each Day after the Guaranteed Tie-In Commencement Date that Unit 5 Scrubber Tie-In does not commence, each Day after the Guaranteed Tie-In Completion Date that the successful Tie-In of the Unit 5 Scrubber has not been achieved, and, after the successful Tie-In of the Unit 5 Scrubber has been achieved, each Day after the Guaranteed Substantial Completion of the Unit 5 Scrubber that Substantial Completion of the Unit 5 Scrubber is not achieved, as applicable; provided, that in no event shall the aggregate total Delay Liquidated Damages for the failure to achieve Nuclear Fuel Load of a Unit 5 Scrubber on or prior to the Nuclear Fuel Load Date for such Unit exceed its Delay Liquidated Damages Capin the aggregate an amount equal to [***] of the Contract Price for such Unit. The Parties hereby agree that Payment of the Delay Liquidated Damages payable pursuant to this Section 12.1(b) shall not be duplicative. By way of example, if Contractor is assessed Delay Liquidated Damages due to the commencement of Unit 5 Scrubber Tie-In on a date that is two (2) days after the Guaranteed Tie-In Commencement Date, Contractor shall not be liable Owners’ sole and exclusive remedy for Delay Liquidated Damages for the same two (2) day delay in completing Unit 5 Scrubber Tie-In or in achieving Substantial Completion of the Unit 5 Scrubber.
(c) Contractor shall have no liability or obligation to pay Delay Liquidated Damages to Owner hereunder for any delay in Contractor’s performance of the Work to the extent attributable to the performance of any Owner Equipment, unless such delay is the result of Contractor’s failure to comply achieve Nuclear Fuel Load of a Unit on or before the Nuclear Fuel Load Date for such Unit and for any other delay to, or failure to meet, the Project Schedule, including without limitation failure to achieve Substantial Completion of either Unit on or before its GSCD; however, Delay Liquidated Damages are intended only to cover damages suffered by Owners as a result of delay and shall not affect the right of Owners to terminate this Agreement pursuant to Article 22 or their remedies provided for in Article 22 as a result of such termination. Delay Liquidated Damages stated in this Section 13.1 shall not be payable to the extent that the Nuclear Fuel Load Date for a Unit is not met as a result of the late delivery of the LSS-ISVs and related impacts on training of operators; provided, however, that, in such event, Owners and Contractor shall meet and discuss which of the following options shall be provided to Owners for training its instructors and operator candidates, with such services to be provided by Contractor on a priority basis (as to Contractor’s other AP1000 customers) and on a Time and Materials Basis with a discount of [***] to be applied to such Time and Materials Basis consistent with the requirements set forth discount offered in this Agreementconnection with the Alliance Agreement for Outage Services, Equipment and Associated Engineering Services between Southern Nuclear Operating Company Inc. and Westinghouse Electric Company LLC, dated January 1, 2004, as modified by Revision 1, June 30, 2009: Owners’ use of the simulator located at Contractor’s Cranberry ▇▇▇▇▇ Facility to:
a. Teach a system class in parallel to Owners’ ongoing classes.
b. Have the Owners’ licensed class taught by Contractor instructors at Cranberry ▇▇▇▇▇ to learn on Contractor's simulator.
c. Provide an additional instructor class for Owners.
d. Review Owners’ training schedules with respect to the Second Unit start date to determine the number of trained operators that are needed.
e. Help Owners conduct their audit tests to get operators ready for the NRC license exam.
f. Write the audit and or NRC license exams thereby freeing up Owners’ instructors for teaching.
Appears in 1 contract
Sources: Engineering, Procurement and Construction Agreement (Alabama Power Co)
Delay Liquidated Damages. (a) The Parties agree that it would be extremely difficult and impracticable under presently known and anticipated facts and circumstances to ascertain and fix the actual damages Owner would incur if Contractor does not achieve satisfy the conditions for Substantial Completion of Unit 6 a Power Block by the Guaranteed Substantial Completion Date for Unit 6 (as such Power Block, and accordingly, if Contractor does not satisfy the conditions for Substantial Completion of a Power Block by the Guaranteed Substantial Completion Date for Unit 6 may be extended due to Force Majeure, Owner caused delays, differing site conditions, discovery of Hazardous Materials, Changes in Law, or as otherwise contemplated in this Agreement), and, accordingly, if Contractor does not achieve Substantial Completion of Unit 6 by that date, subject to Section 12.1(c) belowsuch Power Block, Owner’s 's sole and exclusive remedy for such delay shall be to recover from Contractor, and Contractor shall pay to Owner, as liquidated damages, damages and not as a penalty, the Delay Liquidated Damages for each Day or portion of a Day that Substantial Completion of Unit 6 the Power Block is delayed beyond the Guaranteed Substantial Completion Date for Unit 6such Power Block; provided, however, that if any delay in achievement of Substantial Completion of a Power Block is directly and solely attributable to the failure of a Major Equipment Vendor to timely perform its obligations under a Major Equipment Contract, then Contractor's liability for Delay Liquidated Damages shall be limited to any liquidated damages for delay payable by the Major Equipment Vendor under the applicable Major Equipment Contract; and provided further, that in no event shall the aggregate Delay Liquidated Damages for ▇▇▇▇ ▇ exceed its the Delay Liquidated Damages Cap.
(b) The Parties agree that it would be extremely difficult and impracticable under presently known and anticipated facts and circumstances to ascertain and fix . If Contractor satisfies the actual damages Owner would incur if (i) ▇▇▇▇ ▇ Scrubber Tie-In does not commence by the Guaranteed Tie-In Commencement Date, (ii) Contractor does not complete the successful tie-in of the Unit 5 Scrubber by the Guaranteed Tie-In Completion Date or (iii) after the successful Tie-In of the Unit 5 Scrubber, Contractor does not achieve conditions for Substantial Completion of the Unit 5 Scrubber by a Power Block on or before the Guaranteed Substantial Completion Date (in each case, as the Guaranteed Tie-In Commencement Date, the Guaranteed Tie-in Completion Date or the Guaranteed Substantial Completion Date of the Unit 5 Scrubber, as applicable, may be extended due to Force Majeure, Owner caused delays, differing site conditions, discovery of Hazardous Materials, Changes in Law, or as otherwise contemplated in this Agreement), and, accordingly, upon the occurrence of either event, subject to Section 12.1(c) below, Owner’s sole and exclusive remedy therefore shall be to recover from Contractor as liquidated damages, and not as a penalty, the Delay Liquidated Damages for each Day after the Guaranteed Tie-In Commencement Date that Unit 5 Scrubber Tie-In does not commence, each Day after the Guaranteed Tie-In Completion Date that the successful Tie-In of the Unit 5 Scrubber has not been achieved, and, after the successful Tie-In of the Unit 5 Scrubber has been achieved, each Day after the Guaranteed Substantial Completion of the Unit 5 Scrubber that Substantial Completion of the Unit 5 Scrubber is not achieved, as applicable; provided, that in no event shall the aggregate Delay Liquidated Damages for the Unit 5 Scrubber exceed its Delay Liquidated Damages Cap. The Parties hereby agree that the Delay Liquidated Damages payable pursuant to this Section 12.1(b) shall not be duplicative. By way of example, if Contractor is assessed Delay Liquidated Damages due to the commencement of Unit 5 Scrubber Tie-In on a date that is two (2) days after the Guaranteed Tie-In Commencement Datesuch Power Block, Contractor shall not be liable for any Delay Liquidated Damages for the same two (2) day under this Section 10.1. The Delay Liquidated Damages identified in this Section 10.1 relate solely to Contractor's delay in completing Unit 5 Scrubber Tie-In or in achieving satisfying the conditions for Substantial Completion of a Power Block by the Unit 5 Scrubber.
(c) Guaranteed Substantial Completion Date for such Power Block and not to any other breaches, actions or omissions of Contractor shall have no liability or obligation to pay Delay Liquidated Damages to Owner hereunder for any delay in Contractor’s performance of the Work with respect to the extent attributable to the performance of any Owner Equipment, unless such delay is the result of Contractor’s failure to comply with the requirements set forth in this AgreementWork.
Appears in 1 contract
Sources: Engineering, Procurement and Construction Agreement (Sierra Pacific Resources /Nv/)
Delay Liquidated Damages. 11.7.1 In the event that the Contractor fails to achieve Completion Date as per clause 11.2 , due to reasons other than Force Majeure or for reasons solely attributable to the Authority, then the Contractor shall pay Damages to the Authority of a sum calculated at the rate of 0.1% (aZero point One percent) of Contract Price for each days delay reckoned from the Completion Date as per clause 11.2 or for each interim Project Milestone as defined in Clause 11.1.2 and until such Completion Date as per clause 11.2 or interim Project Milestone date is achieved; provided that if the period for any milestone date or Completion Date is extended in accordance with the provisions of this Contract, the interim Project Milestone date or Completion Date shall be deemed to be modified accordingly, and the provisions of this Contract shall apply as if interim Project Milestone date or Completion Date has been amended as above. For the avoidance of doubt, it is agreed that recovery of Damages under this Clause 11.7.1 shall be without prejudice to the rights of the Authority under this Contract including the right of termination thereof. The Authority shall notify the Contractor of its decision to impose Damages in pursuance of the provisions of this Clause 11.7.1. The Parties expressly agree that the total amount of Damages under Clause 11.7.1 shall not exceed 10% (ten percent) of the Contract Price The Authority shall notify the Contractor of its decision to impose Damages in pursuance with the provisions of this Clause 11.7.1. Provided that no deduction on account of Damages shall be effected by the Authority without notifying the Contractor of its decision to impose the Damages, and taking into consideration the representation, if any, made by the Contractor within 7 (seven) days of such notice. The Parties expressly agree that the total amount of Damages under Clause 11.7.1 shall not exceed 10% (ten percent) of the Contract Price. If the damages exceed 10% (ten percent) of the Contract Price, the Contractor shall be deemed to be in default of this Contract having no cure and the Authority shall be entitled to terminate this Contract.
11.7.2 The payment of such damages by the Contractor shall not relieve the Contractor from its obligations to complete the Project or from any other obligation and liabilities under the Contract.
11.7.3 If the Contractor fails to pay the amount of liquidated damages within the said period of 7 (seven) days of its demand, the Authority shall be entitled to recover the said amount of the liquidated damages by invoking the Performance Security and/or Performance Guarantee. If the then Performance Security and/or Performance Guarantee is for an amount which is less than the amount of the liquidated damages payable by the Contractor to the Authority under this Clause 11.7.3, the Authority shall adjust the same from the Retention Money or money payable to the Contractor. For avoidance of doubt it would be extremely difficult is clarified that this clause will survive the termination or expiry of this Contract.
11.7.4 The Contractor shall comply with the Programme Schedule prepared by the Contractor (and impracticable under presently known which has been approved by the Authority), and anticipated facts and circumstances perform its Works in such manner that the Contractor is able to ascertain and fix the actual damages Owner would incur if Contractor does not achieve Substantial ensure Completion of Unit 6 by the Guaranteed Substantial Works on or before the Construction Completion Date for Unit 6 as per clause 11.2 (as the Guaranteed Substantial Completion Date for Unit 6 may be extended due to Force Majeure, Owner caused delays, differing site conditions, discovery of Hazardous Materials, Changes in Law, or as otherwise contemplated in this Agreementunder Clause 11.3), and, accordingly, if Contractor does not achieve Substantial Completion of Unit 6 by that date, subject to Section 12.1(c) below, Owner’s sole and exclusive remedy for such delay shall be to recover from Contractor as liquidated damages, and not as a penalty, the Delay Liquidated Damages for each Day that Substantial Completion of Unit 6 is delayed beyond the Guaranteed Substantial Completion Date for Unit 6; provided, that in no event shall the aggregate Delay Liquidated Damages for ▇▇▇▇ ▇ exceed its Delay Liquidated Damages Cap.
(b) The Parties agree that it would be extremely difficult and impracticable under presently known and anticipated facts and circumstances to ascertain and fix the actual damages Owner would incur if (i) ▇▇▇▇ ▇ Scrubber Tie-In does not commence by the Guaranteed Tie-In Commencement Date, (ii) Contractor does not complete the successful tie-in of the Unit 5 Scrubber by the Guaranteed Tie-In Completion Date or (iii) after the successful Tie-In of the Unit 5 Scrubber, Contractor does not achieve Substantial Completion of the Unit 5 Scrubber by the Guaranteed Substantial Completion Date (in each case, as the Guaranteed Tie-In Commencement Date, the Guaranteed Tie-in Completion Date or the Guaranteed Substantial Completion Date of the Unit 5 Scrubber, as applicable, may be extended due to Force Majeure, Owner caused delays, differing site conditions, discovery of Hazardous Materials, Changes in Law, or as otherwise contemplated in this Agreement), and, accordingly, upon the occurrence of either event, subject to Section 12.1(c) below, Owner’s sole and exclusive remedy therefore shall be to recover from Contractor as liquidated damages, and not as a penalty, the Delay Liquidated Damages for each Day after the Guaranteed Tie-In Commencement Date that Unit 5 Scrubber Tie-In does not commence, each Day after the Guaranteed Tie-In Completion Date that the successful Tie-In of the Unit 5 Scrubber has not been achieved, and, after the successful Tie-In of the Unit 5 Scrubber has been achieved, each Day after the Guaranteed Substantial Completion of the Unit 5 Scrubber that Substantial Completion of the Unit 5 Scrubber is not achieved, as applicable; provided, that in no event shall the aggregate Delay Liquidated Damages for the Unit 5 Scrubber exceed its Delay Liquidated Damages Cap. The Parties hereby agree that the Delay Liquidated Damages payable pursuant to this Section 12.1(b) shall not be duplicative. By way of example, if Contractor is assessed Delay Liquidated Damages due to the commencement of Unit 5 Scrubber Tie-In on a date that is two (2) days after the Guaranteed Tie-In Commencement Date, Contractor shall not be liable for Delay Liquidated Damages for the same two (2) day delay in completing Unit 5 Scrubber Tie-In or in achieving Substantial Completion of the Unit 5 Scrubber.
(c) Contractor shall have no liability or obligation to pay Delay Liquidated Damages to Owner hereunder for any delay in Contractor’s performance of the Work to the extent attributable to the performance of any Owner Equipment, unless such delay is the result of Contractor’s failure to comply with the requirements set forth in this Agreement.
Appears in 1 contract
Sources: Construction Contract
Delay Liquidated Damages. (a) The Parties agree that it would be extremely difficult and impracticable under presently known and anticipated facts and circumstances to ascertain and fix the actual damages Owner Owners would incur if Contractor a Unit does not achieve Substantial Completion of Unit 6 by the Guaranteed Substantial Completion Date for such Unit 6 (as the Guaranteed Substantial Completion Date for Unit 6 may be extended due to Force Majeure, Owner caused delays, differing site conditions, discovery of Hazardous Materials, Changes in Law, or as otherwise contemplated in this Agreement), and, accordingly, if Contractor a Unit does not achieve Substantial Completion of Unit 6 by that datesuch Unit’s Guaranteed Substantial Completion Date, subject as such date may be extended pursuant to Section 12.1(c) belowthis Agreement, Owner’s sole and exclusive Owners’ remedy for such delay shall be to recover from Contractor as liquidated damages, and not as a penalty, liquidated damages (“Delay Liquidated Damages”) as follows: [***] The amount of proceeds to which Owners are entitled on a daily basis pursuant to the delay in start-up insurance coverage (following the deductible period thereunder) shall, if procured pursuant to Section 16.3, reduce the Delay Liquidated Damages due from Contractor for each Day for which such insurance is payable; provided that in the event the daily amount of such insurance proceeds exceed the daily Delay Liquidated Damages, Contractor shall have no claim to such excess. Beginning with the date that [***]. In no event shall the total Delay Liquidated Damages for the failure to achieve Substantial Completion of a Unit 6 is delayed beyond on or prior to the Guaranteed Substantial Completion Date for such Unit 6; provided, that exceed in no event shall the aggregate an amount equal to [***]. Payment of the Delay Liquidated Damages shall be Owners’ sole and exclusive remedy for ▇▇▇▇ ▇ exceed its Delay Liquidated Damages Cap.
(b) The Parties agree that it would be extremely difficult and impracticable under presently known and anticipated facts and circumstances Contractor’s failure to ascertain and fix the actual damages Owner would incur if (i) ▇▇▇▇ ▇ Scrubber Tie-In does not commence by the Guaranteed Tie-In Commencement Date, (ii) Contractor does not complete the successful tie-in of the Unit 5 Scrubber by the Guaranteed Tie-In Completion Date or (iii) after the successful Tie-In of the Unit 5 Scrubber, Contractor does not achieve Substantial Completion of the a Unit 5 Scrubber by on or before the Guaranteed Substantial Completion Date (in each casefor such Unit; however, as the Guaranteed Tie-In Commencement Date, the Guaranteed Tie-in Completion Date or the Guaranteed Substantial Completion Date of the Unit 5 Scrubber, as applicable, may be extended due to Force Majeure, Owner caused delays, differing site conditions, discovery of Hazardous Materials, Changes in Law, or as otherwise contemplated in this Agreement), and, accordingly, upon the occurrence of either event, subject to Section 12.1(c) below, Owner’s sole and exclusive remedy therefore shall be to recover from Contractor as liquidated damages, and not as a penalty, the Delay Liquidated Damages for each Day after are intended only to cover damages suffered by Owners as a result of delay and shall not affect the Guaranteed Tie-In Commencement Date that Unit 5 Scrubber Tie-In does not commence, each Day after right of Owners to terminate the Guaranteed Tie-In Completion Date that the successful Tie-In of the Unit 5 Scrubber has not been achieved, and, after the successful Tie-In of the Unit 5 Scrubber has been achieved, each Day after the Guaranteed Substantial Completion of the Unit 5 Scrubber that Substantial Completion of the Unit 5 Scrubber is not achieved, as applicable; provided, that in no event shall the aggregate Delay Liquidated Damages for the Unit 5 Scrubber exceed its Delay Liquidated Damages Cap. The Parties hereby agree that the Delay Liquidated Damages payable Agreement pursuant to this Section 12.1(b) shall not be duplicative. By way of example, if Contractor is assessed Delay Liquidated Damages due to the commencement of Unit 5 Scrubber Tie-In on Article 22 or their remedies provided for in Article 22 as a date that is two (2) days after the Guaranteed Tie-In Commencement Date, Contractor shall not be liable for Delay Liquidated Damages for the same two (2) day delay in completing Unit 5 Scrubber Tie-In or in achieving Substantial Completion of the Unit 5 Scrubber.
(c) Contractor shall have no liability or obligation to pay Delay Liquidated Damages to Owner hereunder for any delay in Contractor’s performance of the Work to the extent attributable to the performance of any Owner Equipment, unless such delay is the result of Contractor’s failure to comply with the requirements set forth in this Agreementsuch termination.
Appears in 1 contract
Sources: Engineering, Procurement and Construction Agreement (Alabama Power Co)
Delay Liquidated Damages. (a) The Parties agree that it would be extremely difficult and impracticable under presently known and anticipated facts and circumstances If the Supplier fails to ascertain and fix the actual damages Owner would incur if Contractor does not achieve Substantial Completion of Unit 6 reach Delivery by the Guaranteed Substantial Completion Date for Unit 6 (Delivery of items of Equipment specified in Annexure B as the Guaranteed Substantial Completion Date for Unit 6 may be extended due items to Force Majeure, Owner caused delays, differing site conditions, discovery of Hazardous Materials, Changes in Law, or as otherwise contemplated in this Agreement), and, accordingly, if Contractor does not achieve Substantial Completion of Unit 6 by that date, subject to Section 12.1(c) below, Owner’s sole and exclusive remedy for such delay shall be to recover from Contractor as liquidated damages, and not as a penalty, the which Delay Liquidated Damages for each Day that Substantial Completion of Unit 6 is delayed beyond apply, the Guaranteed Substantial Completion Date for Unit 6; provided, that in no event shall Supplier will be liable to pay to the aggregate Principal Delay Liquidated Damages for ▇▇▇▇ ▇ exceed its at the applicable Delay Liquidated Damages CapRate, set out in Annexure G, for every calendar week (or part thereof on a pro-rata basis) after the Date for Delivery up to and including the actual date of Delivery.
(b) The Parties agree that it would be extremely difficult and impracticable under presently known and anticipated facts and circumstances to ascertain and fix the actual damages Owner would incur if (i) ▇▇▇▇ ▇ Scrubber Tie-In does not commence by the Guaranteed Tie-In Commencement Date, (ii) Contractor does not complete the successful tie-in payment of the Unit 5 Scrubber by the Guaranteed Tie-In Completion Date or (iii) after the successful Tie-In of the Unit 5 Scrubber, Contractor does not achieve Substantial Completion of the Unit 5 Scrubber by the Guaranteed Substantial Completion Date (in each case, as the Guaranteed Tie-In Commencement Date, the Guaranteed Tie-in Completion Date or the Guaranteed Substantial Completion Date of the Unit 5 Scrubber, as applicable, may be extended due to Force Majeure, Owner caused delays, differing site conditions, discovery of Hazardous Materials, Changes in Law, or as otherwise contemplated in this Agreement), and, accordingly, upon the occurrence of either event, subject to Section 12.1(c) below, Owner’s sole and exclusive remedy therefore shall be to recover from Contractor as liquidated damages, and not as a penalty, the Delay Liquidated Damages for each Day after the Guaranteed Tie-In Commencement Date that Unit 5 Scrubber Tie-In does not commence, each Day after relieve the Guaranteed Tie-In Completion Date that Supplier of its obligations to perform the successful Tie-In Works or any of the Unit 5 Scrubber has not been achieved, and, after the successful Tie-In of the Unit 5 Scrubber has been achieved, each Day after the Guaranteed Substantial Completion of the Unit 5 Scrubber that Substantial Completion of the Unit 5 Scrubber is not achieved, as applicable; provided, that in no event shall the aggregate Delay Liquidated Damages for the Unit 5 Scrubber exceed its Delay Liquidated Damages Cap. The Parties hereby agree that the Delay Liquidated Damages payable pursuant to other obligations under this Section 12.1(b) shall not be duplicative. By way of example, if Contractor is assessed Delay Liquidated Damages due to the commencement of Unit 5 Scrubber Tie-In on a date that is two (2) days after the Guaranteed Tie-In Commencement Date, Contractor shall not be liable for Delay Liquidated Damages for the same two (2) day delay in completing Unit 5 Scrubber Tie-In or in achieving Substantial Completion of the Unit 5 ScrubberContract.
(c) Contractor shall have no liability or obligation to pay Delay Liquidated Damages become due 30 days following the issue of an invoice by the Principal setting out the amount of Delay Liquidated Damages payable by the Supplier to Owner hereunder the Principal.
(d) The Principal may recover the amount of Delay Liquidated Damages on demand from the Supplier, even though Delivery has not occurred.
(e) If after:
(1) the Supplier has paid; or
(2) the Principal has deducted, Delay Liquidated Damages, the Date for Delivery is extended, the Principal must as soon as practicable repay to the Supplier any delay Delay Liquidated Damages paid or deducted in Contractor’s performance respect of the Work period prior to and including the new Date for Delivery.
(f) The Supplier acknowledges that all amounts payable by the Supplier to the extent attributable Principal under this clause 14.4:
(1) represent a genuine pre-estimate of the damages (including financing costs) likely to be suffered by the Principal if the Works do not reach Delivery by the Date for Delivery;
(2) those amounts are not to be construed as a penalty; and
(3) are the Principal’s sole remedy and the Supplier’s sole liability for delay up to the performance cap on Delay Liquidated Damages, after which the provisions of any Owner Equipment, unless such delay is the result of Contractor’s failure to comply with the requirements set forth in this Agreementclause 30 shall apply.
Appears in 1 contract
Sources: Supply Contract (Lihir Gold LTD)
Delay Liquidated Damages. (a) The Parties agree that it would be extremely difficult and impracticable under presently known and anticipated facts and circumstances to ascertain and fix the actual damages Owner would incur if If Contractor does has not achieve achieved Project Substantial Completion of Unit 6 by the Guaranteed Project Substantial Completion Date for Unit 6 (as the Guaranteed Substantial Completion Date for Unit 6 such date may be extended due pursuant to Article 8 as a result of the occurrence of a Force Majeure, Owner caused delays, differing site conditions, discovery Majeure Event or the occurrence of Hazardous Materials, Changes in Law, or as otherwise contemplated in this Agreementa Scope Change pursuant to Article 9), andContractor shall pay to Owner, accordingly, if Contractor does not achieve Substantial Completion of Unit 6 by that date, subject to Section 12.1(c) below, as liquidated damages and as Owner’s sole and exclusive remedy for such delay late completion, One Thousand Eight Hundred and 00/100 Dollars ($1,800.00) per incomplete WTG per Day following the Guaranteed Project Substantial Completion Date until the date that Contractor delivers to Owner a WTG Substantial Completion Certificate that is accepted by Owner (“Delay Liquidated Damages”); provided, however, in the event that Contractor achieves Project Substantial Completion within a period of sixty (60) Days after the Guaranteed Project Substantial Completion Date, then Owner will refund to Contractor all Delay Liquidated Damages that have been paid by Contractor. Delay Liquidated Damages shall be due and payable in weekly installments beginning with the seventh (7th) Day following the first (1st) Day after the Guaranteed Project Substantial Completion Date. Subject to recover from the provisions set forth in Section 11.1, Contractor as liquidated damages, and not as a penalty, the shall continue to make such payments of Delay Liquidated Damages for each Day that incomplete WTG until achievement of Project Substantial Completion of Unit 6 is delayed beyond the Guaranteed Substantial Completion Date for Unit 6; providedCompletion, that at which time Contractor shall pay all previously accrued and unpaid Delay Liquidated Damages amounts. Any Delay Liquidated Damages not paid when due shall bear interest at a rate calculated in accordance with Section 4.8. In no event shall the aggregate payment of Delay Liquidated Damages for ▇▇▇▇ ▇ exceed its Delay Liquidated Damages Cap.
(b) The Parties agree that it would be extremely difficult and impracticable under presently known and anticipated facts and circumstances to ascertain and fix the actual damages Owner would incur if (i) ▇▇▇▇ ▇ Scrubber Tie-In does not commence by the Guaranteed Tie-In Commencement Date, (ii) excuse Contractor does not complete the successful tie-in of the Unit 5 Scrubber by the Guaranteed Tie-In Completion Date or (iii) after the successful Tie-In of the Unit 5 Scrubber, Contractor does not achieve Substantial Completion of the Unit 5 Scrubber by the Guaranteed Substantial Completion Date (in each case, as the Guaranteed Tie-In Commencement Date, the Guaranteed Tie-in Completion Date or the Guaranteed Substantial Completion Date of the Unit 5 Scrubber, as applicable, may be extended due to Force Majeure, Owner caused delays, differing site conditions, discovery of Hazardous Materials, Changes in Law, or as otherwise contemplated in this Agreement), and, accordingly, upon the occurrence of either event, subject to Section 12.1(c) below, Owner’s sole and exclusive remedy therefore shall be to recover from Contractor as liquidated damages, and not as a penalty, the Delay Liquidated Damages for each Day after the Guaranteed Tie-In Commencement Date that Unit 5 Scrubber Tie-In does not commence, each Day after the Guaranteed Tie-In Completion Date that the successful Tie-In of the Unit 5 Scrubber has not been achieved, and, after the successful Tie-In of the Unit 5 Scrubber has been achieved, each Day after the Guaranteed Substantial Completion of the Unit 5 Scrubber that Substantial Completion of the Unit 5 Scrubber is not achieved, as applicable; provided, that in no event shall the aggregate Delay Liquidated Damages for the Unit 5 Scrubber exceed its Delay Liquidated Damages Cap. The Parties hereby agree that the Delay Liquidated Damages payable pursuant to this Section 12.1(b) shall not be duplicative. By way of example, if Contractor is assessed Delay Liquidated Damages due to the commencement of Unit 5 Scrubber Tie-In on a date that is two (2) days after the Guaranteed Tie-In Commencement Date, Contractor shall not be liable for Delay Liquidated Damages for the same two (2) day delay in completing Unit 5 Scrubber Tie-In or in achieving Substantial Completion of the Unit 5 Scrubber.
(c) Contractor shall have no liability or obligation to pay Delay Liquidated Damages to Owner hereunder for any delay in Contractor’s performance of the Work to the extent attributable to the performance of any Owner Equipmentof its other obligations hereunder, unless such delay is including the result of Contractor’s failure obligation to comply with the requirements set forth in this Agreement.cause Project Substantial Completion to occur. ______________________
Appears in 1 contract
Sources: Turnkey Engineering, Procurement and Construction Services Agreement (Otter Tail Corp)
Delay Liquidated Damages. If Subcontractor (a1) The Parties agree that it would be extremely difficult fails to deliver the engineering/document deliverables on the dates set forth in Attachment A and impracticable under presently known Attachment D, as applicable, and anticipated facts and circumstances in the manner this Agreement specifies, (2) fails to ascertain and fix deliver the actual damages Owner would incur if material/equipment deliverables on the dates set forth in Attachment D, (3) fails to deliver the construction deliverables on the dates set forth in Attachment D, or (4) Contractor does not achieve Substantial Completion of Unit 6 by fails to meet the Guaranteed Substantial Completion Date for Unit 6 (as the Guaranteed Substantial Completion Date for Unit 6 may be extended due to Force MajeureSubcontractor (including its subcontractors and suppliers), Owner caused delaysContractor and Subcontractor agree Contractor would be damaged. As it would be almost impossible to ascertain the actual damages precisely due to the failures described in the prior sentence, differing site conditions, discovery of Hazardous Materials, Changes Subcontractor agrees to pay delay liquidated damages in Law, the amounts listed in Attachment E (which shall not be construed to limit Subcontractor’s other obligations or as otherwise contemplated in liabilities under this Agreement), and, accordingly. Contractor and Subcontractor agree any and all sums payable under this Section 38(a)(i) and Attachment E are in the nature of liquidated damages and not a penalty. Performance Guarantee Liquidated Damages. [NOTE: include performance guarantee(s), if Contractor does not achieve Substantial Completion of Unit 6 by that dateapplicable. Should performance guarantee(s) be included, subject performance guarantee liquidated damages need to Section 12.1(cbe added, unless the obligation(s) below, Owner’s sole and exclusive remedy for such delay shall be to recover from Contractor as performance guarantee(s) is (are) “make good” (see (iii) below for “make good” performance guarantees). For performance guarantees with liquidated damages, state the following, “If Subcontractor fails to meet (list out the specific performance guarantee(s)), Contractor and not as a penalty, the Delay Liquidated Damages for each Day that Substantial Completion of Unit 6 is delayed beyond the Guaranteed Substantial Completion Date for Unit 6; provided, that in no event shall the aggregate Delay Liquidated Damages for ▇▇▇▇ ▇ exceed its Delay Liquidated Damages Cap.
(b) The Parties Subcontractor agree that Contractor would be damaged. As it would be extremely difficult and impracticable under presently known and anticipated facts and circumstances almost impossible to ascertain and fix the actual damages Owner would incur if (i) ▇▇▇▇ ▇ Scrubber Tie-In does not commence by the Guaranteed Tie-In Commencement Date, (ii) Contractor does not complete the successful tie-in of the Unit 5 Scrubber by the Guaranteed Tie-In Completion Date or (iii) after the successful Tie-In of the Unit 5 Scrubber, Contractor does not achieve Substantial Completion of the Unit 5 Scrubber by the Guaranteed Substantial Completion Date (in each case, as the Guaranteed Tie-In Commencement Date, the Guaranteed Tie-in Completion Date or the Guaranteed Substantial Completion Date of the Unit 5 Scrubber, as applicable, may be extended precisely due to Force Majeurethe (insert “failure” or “failures” depending on whether one performance guarantee or multiple performance guarantees are tied to liquidated damages) described in the prior sentence, Owner caused delays, differing site conditions, discovery of Hazardous Materials, Changes Subcontractor agrees to pay performance guarantee liquidated damages in Law, the amounts listed in Attachment E (which shall not be construed to limit Subcontractor’s other obligations or as otherwise contemplated in liabilities under this Agreement), and, accordingly, upon . Contractor and Subcontractor agree any and all sums payable under this Section 38(a)(ii) and Attachment E are in the occurrence nature of either event, subject to Section 12.1(c) below, Owner’s sole and exclusive remedy therefore shall be to recover from Contractor as liquidated damages, damages and not as a penalty.”] Performance Guarantee Make Good Obligations. [NOTE: include performance guarantee(s), if applicable. For performance guarantees with “make good” obligations, list out the Delay Liquidated Damages for each Day after specific performance guarantee(s) and state the Guaranteed Tie-In Commencement Date that Unit 5 Scrubber Tie-In does not commencespecific performance guarantee(s) is (are) make good. Thereafter, each Day after the Guaranteed Tie-In Completion Date that the successful Tie-In include one of the Unit 5 Scrubber has not been achievedfollowing sentences, anddepending on whether there is one performance guarantee or multiple performance guarantees with a make good obligation, after the successful Tie-In of the Unit 5 Scrubber has been achieved, each Day after the Guaranteed Substantial Completion of the Unit 5 Scrubber that Substantial Completion of the Unit 5 Scrubber is not achieved, as applicable; provided, that in no event shall the aggregate Delay Liquidated Damages for the Unit 5 Scrubber exceed its Delay Liquidated Damages Cap. The Parties hereby agree that the Delay Liquidated Damages payable pursuant to this Section 12.1(b) shall not be duplicative. By way of example, if Contractor is assessed Delay Liquidated Damages due to the commencement of Unit 5 Scrubber Tie-In on a date that is two (2) days after the Guaranteed Tie-In Commencement Date, Contractor shall not be liable for Delay Liquidated Damages for the same two (2) day delay in completing Unit 5 Scrubber Tie-In or in achieving Substantial Completion of the Unit 5 Scrubber.
(c) Contractor shall have no liability or “Subcontractor’s make good obligation to pay Delay Liquidated Damages to Owner hereunder for any delay in Contractor’s performance of the Work to the extent attributable to meet the performance guarantee is absolute. Accordingly, for its make good obligation, Subcontractor shall do all things necessary to achieve the performance guarantee, including exercising each and every repair or replacement alternative, regardless of any Owner Equipmentcost to Subcontractor or associated difficulties.” Or, unless such delay is “Subcontractor’s make good obligations to meet the result performance guarantees are absolute. Accordingly, for its make good obligations, Subcontractor shall do all things necessary to achieve the performance guarantees, including exercising each and every repair or replacement alternative, regardless of Contractor’s failure cost to comply with the requirements set forth in this AgreementSubcontractor or associated difficulties.”]
Appears in 1 contract
Sources: Subcontract Agreement
Delay Liquidated Damages. (a) The Parties agree that it would be extremely difficult and impracticable under presently known and anticipated facts and circumstances to ascertain and fix the actual damages Owner Owners would incur if Contractor a Unit does not achieve Substantial Completion of Unit 6 by the Guaranteed Substantial Completion Date for such Unit 6 (as the Guaranteed Substantial Completion Date for Unit 6 may be extended due to Force Majeure, Owner caused delays, differing site conditions, discovery of Hazardous Materials, Changes in Law, or as otherwise contemplated in this Agreement), and, accordingly, if Contractor a Unit does not achieve Substantial Completion of Unit 6 by that datesuch Unit’s Guaranteed Substantial Completion Date, subject as such date may be extended pursuant to Section 12.1(c) belowthis Agreement, Owner’s sole and exclusive Owners’ remedy for such delay shall be to recover from Contractor as liquidated damages, and not as a penalty, liquidated damages (“Delay Liquidated Damages”) as follows: For the first [***] following the Guaranteed Substantial Completion Date [***] Thereafter [***] The amount of proceeds to which Owners are entitled on a daily basis pursuant to the delay in start-up insurance coverage (following the deductible period thereunder) shall, if procured pursuant to Section 16.3, reduce the Delay Liquidated Damages due from Contractor for each Day for which such insurance is payable; provided that in the event the daily amount of such insurance proceeds exceed the daily Delay Liquidated Damages, Contractor shall have no claim to such excess. Beginning with the date that [***], no Delay Liquidated Damages shall be due or shall accrue. From and after the date (if any) that [***], Delay Liquidated Damages shall again begin to accrue to the extent they are due and payable under the other provisions of this Agreement. In no event shall the total Delay Liquidated Damages for the failure to achieve Substantial Completion of a Unit 6 is delayed beyond on or prior to the Guaranteed Substantial Completion Date for such Unit 6; provided, that exceed in no event shall the aggregate an amount equal to [***] of the Contract Price for such Unit. Payment of the Delay Liquidated Damages shall be Owners’ sole and exclusive remedy for ▇▇▇▇ ▇ exceed its Delay Liquidated Damages Cap.
(b) The Parties agree that it would be extremely difficult and impracticable under presently known and anticipated facts and circumstances Contractor’s failure to ascertain and fix the actual damages Owner would incur if (i) ▇▇▇▇ ▇ Scrubber Tie-In does not commence by the Guaranteed Tie-In Commencement Date, (ii) Contractor does not complete the successful tie-in of the Unit 5 Scrubber by the Guaranteed Tie-In Completion Date or (iii) after the successful Tie-In of the Unit 5 Scrubber, Contractor does not achieve Substantial Completion of the a Unit 5 Scrubber by on or before the Guaranteed Substantial Completion Date (in each casefor such Unit; however, as the Guaranteed Tie-In Commencement Date, the Guaranteed Tie-in Completion Date or the Guaranteed Substantial Completion Date of the Unit 5 Scrubber, as applicable, may be extended due to Force Majeure, Owner caused delays, differing site conditions, discovery of Hazardous Materials, Changes in Law, or as otherwise contemplated in this Agreement), and, accordingly, upon the occurrence of either event, subject to Section 12.1(c) below, Owner’s sole and exclusive remedy therefore shall be to recover from Contractor as liquidated damages, and not as a penalty, the Delay Liquidated Damages for each Day after are intended only to cover damages suffered by Owners as a result of delay and shall not affect the Guaranteed Tie-In Commencement Date that Unit 5 Scrubber Tie-In does not commence, each Day after right of Owners to terminate the Guaranteed Tie-In Completion Date that the successful Tie-In of the Unit 5 Scrubber has not been achieved, and, after the successful Tie-In of the Unit 5 Scrubber has been achieved, each Day after the Guaranteed Substantial Completion of the Unit 5 Scrubber that Substantial Completion of the Unit 5 Scrubber is not achieved, as applicable; provided, that in no event shall the aggregate Delay Liquidated Damages for the Unit 5 Scrubber exceed its Delay Liquidated Damages Cap. The Parties hereby agree that the Delay Liquidated Damages payable Agreement pursuant to this Section 12.1(b) shall not be duplicative. By way of example, if Contractor is assessed Delay Liquidated Damages due to the commencement of Unit 5 Scrubber Tie-In on Article 22 or their remedies provided for in Article 22 as a date that is two (2) days after the Guaranteed Tie-In Commencement Date, Contractor shall not be liable for Delay Liquidated Damages for the same two (2) day delay in completing Unit 5 Scrubber Tie-In or in achieving Substantial Completion of the Unit 5 Scrubber.
(c) Contractor shall have no liability or obligation to pay Delay Liquidated Damages to Owner hereunder for any delay in Contractor’s performance of the Work to the extent attributable to the performance of any Owner Equipment, unless such delay is the result of Contractor’s failure to comply with the requirements set forth in this Agreementsuch termination.
Appears in 1 contract
Sources: Engineering, Procurement and Construction Agreement (Georgia Power Co)
Delay Liquidated Damages. (a) The Parties agree that it would be extremely difficult If Seller fails to achieve a Milestone set forth in Appendix I (other than the Commercial Operation Date) by its respective Milestone Date, Seller shall pay liquidated damages to Buyer in an amount equal to Four Thousand Dollars ($4,000) per day, for each day intervening between such Milestone Date and impracticable under presently known the earlier of (x) the date such Milestone is achieved, and anticipated facts and circumstances to ascertain and fix (y) the actual damages Owner would incur if Contractor does not achieve Substantial Completion of Unit 6 by the Guaranteed Substantial Completion Date for Unit 6 (as the Guaranteed Substantial Completion Date for Unit 6 may be extended due to Force Majeure, Owner caused delays, differing site conditions, discovery of Hazardous Materials, Changes in Law, or as otherwise contemplated in this Agreement), and, accordinglydate, if Contractor does not achieve Substantial Completion of Unit 6 by that dateany, subject on which this Agreement is terminated pursuant to Section 12.1(c) below, Owner’s sole and exclusive remedy for such delay shall be to recover from Contractor as liquidated damages, and not as a penalty, the Delay Liquidated Damages for each Day that Substantial Completion of Unit 6 is delayed beyond the Guaranteed Substantial Completion Date for Unit 6; provided, that in no event shall the aggregate Delay Liquidated Damages for ▇▇▇▇ ▇ exceed its Delay Liquidated Damages Cap2.4.
(b) The Parties agree that it would be extremely difficult If Seller fails to achieve the Commercial Operation Date on or before the Milestone Date therefor, Seller shall pay liquidated damages to Buyer in an amount equal to Ten Thousand Dollars ($10,000) per day for each day intervening between such Milestone Date and impracticable under presently known and anticipated facts and circumstances to ascertain and fix the actual damages Owner would incur if earlier of (ix) ▇▇▇▇ ▇ Scrubber Tie-In does not commence by the Guaranteed Tie-In Commencement Commercial Operation Date, and (iiy) Contractor does not complete the successful tie-in of the Unit 5 Scrubber by the Guaranteed Tie-In Completion Date or (iii) after the successful Tie-In of the Unit 5 Scrubberdate, Contractor does not achieve Substantial Completion of the Unit 5 Scrubber by the Guaranteed Substantial Completion Date (in each caseif any, as the Guaranteed Tie-In Commencement Date, the Guaranteed Tie-in Completion Date or the Guaranteed Substantial Completion Date of the Unit 5 Scrubber, as applicable, may be extended due to Force Majeure, Owner caused delays, differing site conditions, discovery of Hazardous Materials, Changes in Law, or as otherwise contemplated in on which this Agreement), and, accordingly, upon the occurrence of either event, subject Agreement is terminated pursuant to Section 12.1(c) below, Owner’s sole and exclusive remedy therefore shall be to recover from Contractor as liquidated damages, and not as a penalty, the Delay Liquidated Damages for each Day after the Guaranteed Tie-In Commencement Date that Unit 5 Scrubber Tie-In does not commence, each Day after the Guaranteed Tie-In Completion Date that the successful Tie-In of the Unit 5 Scrubber has not been achieved, and, after the successful Tie-In of the Unit 5 Scrubber has been achieved, each Day after the Guaranteed Substantial Completion of the Unit 5 Scrubber that Substantial Completion of the Unit 5 Scrubber is not achieved, as applicable; provided, that in no event shall the aggregate Delay Liquidated Damages for the Unit 5 Scrubber exceed its Delay Liquidated Damages Cap. The Parties hereby agree that the Delay Liquidated Damages payable pursuant to this Section 12.1(b) shall not be duplicative. By way of example, if Contractor is assessed Delay Liquidated Damages due to the commencement of Unit 5 Scrubber Tie-In on a date that is two (2) days after the Guaranteed Tie-In Commencement Date, Contractor shall not be liable for Delay Liquidated Damages for the same two (2) day delay in completing Unit 5 Scrubber Tie-In or in achieving Substantial Completion of the Unit 5 Scrubber2.4.
(c) Contractor shall have no liability or obligation Damages that Buyer would incur due to pay Delay Liquidated Damages to Owner hereunder for any delay in Contractor’s performance of the Work to the extent attributable to the performance of any Owner Equipment, unless such delay is the result of ContractorSeller’s failure to comply timely achieve a Milestone would be difficult or impossible to predict with certainty, and it is impractical or difficult to assess actual damages in those circumstances, but the requirements liquidated damages set forth in this AgreementSection 3.6 are fair and reasonable calculations of such damages, and shall be Seller’s sole liability and obligation, and Buyer’s sole right and remedy, for Seller’s failure to achieve any Key Milestone by its Milestone Date.
(d) If during any period Seller has failed to achieve two or more Milestones by their respective Milestone Dates, Seller shall only be obligated to pay liquidated damages for the first of such Milestones, and shall not pay liquidated damages concurrently for more than one missed Milestone Date.
(e) If Seller pays any delay liquidated damages under this Section 3.6, and thereafter achieves the Commercial Operation Date on or before the original Milestone Date therefor as set forth on Appendix I (without taking into account any extensions to such Milestone Date), then Buyer shall reasonably promptly refund to Seller all such delay liquidated damages previously paid.
Appears in 1 contract
Sources: Power Purchase Agreement
Delay Liquidated Damages. (a) The Parties agree that it would be extremely difficult and impracticable under presently known and anticipated facts and circumstances to ascertain and fix the actual damages Owner would incur if If Contractor does has not achieve achieved Project Substantial Completion of Unit 6 by the Guaranteed Project Substantial Completion Date for Unit 6 (as the Guaranteed Substantial Completion Date for Unit 6 such date may be extended due pursuant to Article 8 as a result of the occurrence of a Force Majeure, Owner caused delays, differing site conditions, discovery Majeure Event or the occurrence of Hazardous Materials, Changes in Law, or as otherwise contemplated in this Agreementa Scope Change pursuant to Article 9), andContractor shall pay to Owner, accordingly, if Contractor does not achieve Substantial Completion of Unit 6 by that date, subject to Section 12.1(c) below, as liquidated damages and as Owner’s sole and exclusive remedy for such delay late completion, [**] ($[**]) per incomplete WTG per Day following the Guaranteed Project Substantial Completion Date until the date that Contractor delivers to Owner a WTG Substantial Completion Certificate that is accepted by Owner (“Delay Liquidated Damages”); provided, however, in the event that Contractor achieves Project Substantial Completion within a period of sixty (60) Days after the Guaranteed Project Substantial Completion Date, then Owner will refund to Contractor all Delay Liquidated Damages that have been paid by Contractor. Delay Liquidated Damages shall be due and payable in weekly installments beginning with the seventh (7th) Day following the first (1st) Day after the Guaranteed Project Substantial Completion Date. Subject to recover from the provisions set forth in Section 11.1, Contractor as liquidated damages, and not as a penalty, the shall continue to make such payments of Delay Liquidated Damages for each Day that incomplete WTG until achievement of Project Substantial Completion of Unit 6 is delayed beyond the Guaranteed Substantial Completion Date for Unit 6; providedCompletion, that at which time Contractor shall pay all previously accrued and unpaid Delay Liquidated Damages amounts. Any Delay Liquidated Damages not paid when due shall bear interest at a rate calculated in accordance with Section 4.8. In no event shall the aggregate payment of Delay Liquidated Damages for ▇▇▇▇ ▇ exceed its Delay Liquidated Damages Cap.
(b) The Parties agree that it would be extremely difficult and impracticable under presently known and anticipated facts and circumstances to ascertain and fix the actual damages Owner would incur if (i) ▇▇▇▇ ▇ Scrubber Tie-In does not commence by the Guaranteed Tie-In Commencement Date, (ii) excuse Contractor does not complete the successful tie-in of the Unit 5 Scrubber by the Guaranteed Tie-In Completion Date or (iii) after the successful Tie-In of the Unit 5 Scrubber, Contractor does not achieve Substantial Completion of the Unit 5 Scrubber by the Guaranteed Substantial Completion Date (in each case, as the Guaranteed Tie-In Commencement Date, the Guaranteed Tie-in Completion Date or the Guaranteed Substantial Completion Date of the Unit 5 Scrubber, as applicable, may be extended due to Force Majeure, Owner caused delays, differing site conditions, discovery of Hazardous Materials, Changes in Law, or as otherwise contemplated in this Agreement), and, accordingly, upon the occurrence of either event, subject to Section 12.1(c) below, Owner’s sole and exclusive remedy therefore shall be to recover from Contractor as liquidated damages, and not as a penalty, the Delay Liquidated Damages for each Day after the Guaranteed Tie-In Commencement Date that Unit 5 Scrubber Tie-In does not commence, each Day after the Guaranteed Tie-In Completion Date that the successful Tie-In of the Unit 5 Scrubber has not been achieved, and, after the successful Tie-In of the Unit 5 Scrubber has been achieved, each Day after the Guaranteed Substantial Completion of the Unit 5 Scrubber that Substantial Completion of the Unit 5 Scrubber is not achieved, as applicable; provided, that in no event shall the aggregate Delay Liquidated Damages for the Unit 5 Scrubber exceed its Delay Liquidated Damages Cap. The Parties hereby agree that the Delay Liquidated Damages payable pursuant to this Section 12.1(b) shall not be duplicative. By way of example, if Contractor is assessed Delay Liquidated Damages due to the commencement of Unit 5 Scrubber Tie-In on a date that is two (2) days after the Guaranteed Tie-In Commencement Date, Contractor shall not be liable for Delay Liquidated Damages for the same two (2) day delay in completing Unit 5 Scrubber Tie-In or in achieving Substantial Completion of the Unit 5 Scrubber.
(c) Contractor shall have no liability or obligation to pay Delay Liquidated Damages to Owner hereunder for any delay in Contractor’s performance of the Work to the extent attributable to the performance of any Owner Equipmentof its other obligations hereunder, unless such delay is including the result of Contractor’s failure obligation to comply with the requirements set forth in this Agreement.cause Project Substantial Completion to occur. ______________________
Appears in 1 contract
Sources: Turnkey Engineering, Procurement and Construction Services Agreement (Otter Tail Corp)
Delay Liquidated Damages. Except as otherwise excused due to Uncontrollable Circumstances and the Sewer District Fault, the Design-Build Contractor shall pay daily delay liquidated damages to the Sewer District in the sum of One Thousand Dollars (a$1,000.00) The Parties agree that it would be extremely difficult per day for each and impracticable under presently known and anticipated facts and circumstances to ascertain and fix the actual damages Owner would incur if Contractor does not achieve every calendar day of unexcused delays in achieving Substantial Completion beyond the date set for Substantial Completion. The Design-Build Contractor shall pay daily delay liquidated damages to the Sewer District in the sum of Unit 6 Five Hundred Dollars ($500.00) per day for each and every calendar day of unexcused delays in achieving Final Completion and continuing for each day that Final Completion falls after the date set for Final Completion in accordance with Section 7.12 of this Design-Build Agreement, and thereafter until any termination of this Design-Build Agreement for an Event of Default. The Design-Build Contractor shall also indemnify the Sewer District in accordance with and subject to the limitations set forth in Section 11.3 hereof against all Loss-and-Expense resulting from any Legal Proceeding originated by any third-party arising from such failure to achieve Final Acceptance by the Guaranteed Substantial applicable Scheduled Final Acceptance Date except to the extent such failure is caused by an Uncontrollable Circumstance, and/or arising from a failure to achieve Final Completion Date by the applicable date set for Unit 6 (Final Completion in accordance with Section 7.12 of this Design-Build Agreement. Any sums due and payable as liquidated damages by the Guaranteed Substantial Completion Date for Unit 6 may be extended due to Force Majeure, Owner caused delays, differing site conditions, discovery of Hazardous Materials, Changes in Law, or as otherwise contemplated in this Agreement), and, accordingly, if Design-Build Contractor does not achieve Substantial Completion of Unit 6 by that date, subject to Section 12.1(c) below, Owner’s sole and exclusive remedy for such delay shall be to recover from Contractor as liquidated damagespayable, and not as a penalty, but as liquidated damages representing a reasonable and fair approximation of the Delay Liquidated Damages for each Day damages likely to be sustained by the Sewer District as a result of the Design-Build Contractor’s delay, estimated at the time of executing the Design-Build Agreement. When the Sewer District reasonably believes that Substantial Completion of Unit 6 is delayed beyond or Final Completion will be inexcusably delayed, the Guaranteed Substantial Completion Date for Unit 6; providedSewer District shall be entitled, that in no event shall but not required, to withhold from any amounts otherwise due the aggregate Delay Design-Build Contractor an amount then believed by the Sewer District to be adequate to recover Liquidated Damages for ▇▇▇▇ ▇ exceed its Delay Liquidated Damages Cap.
(b) The Parties agree that it would be extremely difficult applicable to such delays. If and impracticable under presently known and anticipated facts and circumstances to ascertain and fix when the actual damages Owner would incur if (i) ▇▇▇▇ ▇ Scrubber TieDesign-In does not commence by Build Contractor overcomes the Guaranteed Tie-In Commencement Date, (ii) Contractor does not complete the successful tie-in of the Unit 5 Scrubber by the Guaranteed Tie-In Completion Date or (iii) after the successful Tie-In of the Unit 5 Scrubber, Contractor does not achieve Substantial Completion of the Unit 5 Scrubber by the Guaranteed Substantial Completion Date (in each case, as the Guaranteed Tie-In Commencement Date, the Guaranteed Tie-in Completion Date or the Guaranteed Substantial Completion Date of the Unit 5 Scrubber, as applicable, may be extended due to Force Majeure, Owner caused delays, differing site conditions, discovery of Hazardous Materials, Changes in Law, or as otherwise contemplated in this Agreement), and, accordingly, upon the occurrence of either event, subject to Section 12.1(c) below, Owner’s sole and exclusive remedy therefore shall be to recover from Contractor as liquidated damages, and not as a penalty, the Delay Liquidated Damages for each Day after the Guaranteed Tie-In Commencement Date that Unit 5 Scrubber Tie-In does not commence, each Day after the Guaranteed Tie-In Completion Date that the successful Tie-In of the Unit 5 Scrubber has not been achieved, and, after the successful Tie-In of the Unit 5 Scrubber has been achieved, each Day after the Guaranteed Substantial Completion of the Unit 5 Scrubber that Substantial Completion of the Unit 5 Scrubber is not achieved, as applicable; provided, that in no event shall the aggregate Delay Liquidated Damages for the Unit 5 Scrubber exceed its Delay Liquidated Damages Cap. The Parties hereby agree that the Delay Liquidated Damages payable pursuant to this Section 12.1(b) shall not be duplicative. By way of example, if Contractor is assessed Delay Liquidated Damages due to the commencement of Unit 5 Scrubber Tie-In on a date that is two (2) days after the Guaranteed Tie-In Commencement Date, Contractor shall not be liable for Delay Liquidated Damages for the same two (2) day delay in completing Unit 5 Scrubber Tie-In or in achieving Substantial Completion of or Final Completion, for which the Unit 5 Scrubber.
(c) Contractor shall have no liability or obligation Sewer District has withheld from payment amounts sufficient to pay Delay cover Liquidated Damages to Owner hereunder for any delay in Contractor’s performance of commensurate with the Work anticipated delays, the Sewer District shall promptly release to the extent attributable to the performance of any Owner Equipment, unless such delay is the result of Contractor’s failure to comply with the requirements set forth Design-Build Contractor those funds withheld as liquidated damages for anticipated delays which did not occur. Nothing in this Agreementsection shall be constructed to limit any non-damage remedies, including termination, also provided for with respect to any such nonperformance, breach or default.
Appears in 1 contract
Sources: Design Build Agreement
Delay Liquidated Damages. (a) The Parties agree that it would be extremely difficult and impracticable under presently known and anticipated facts and circumstances Subject to ascertain and fix the actual damages Owner would incur if Contractor does not achieve Substantial Completion of Unit 6 by the Guaranteed Substantial Completion Date for Unit 6 (as the Guaranteed Substantial Completion Date for Unit 6 may be extended due to Force Majeure, Owner caused delays, differing site conditions, discovery of Hazardous Materials, Changes in Law, or as otherwise contemplated in this Agreementparagraph 3.3(c), and, accordingly, if Contractor does not achieve Substantial Completion of Unit 6 by that date, subject the Design-Builder fails to Section 12.1(c) below, Owner’s sole and exclusive remedy for such delay shall be to recover from Contractor as liquidated damages, and not as a penalty, the Delay Liquidated Damages for each Day that Substantial Completion of Unit 6 is delayed beyond the Guaranteed Substantial Completion Date for Unit 6; provided, that in no event shall the aggregate Delay Liquidated Damages for ▇▇▇▇ ▇ exceed its Delay Liquidated Damages Cap.
(b) The Parties agree that it would be extremely difficult and impracticable under presently known and anticipated facts and circumstances to ascertain and fix the actual damages Owner would incur if (i) ▇▇▇▇ ▇ Scrubber Tie-In does not commence by the Guaranteed Tie-In Commencement Date, (ii) Contractor does not complete the successful tie-in of the Unit 5 Scrubber by the Guaranteed Tie-In Completion Date or (iii) after the successful Tie-In of the Unit 5 Scrubber, Contractor does not achieve Substantial Completion of the Unit 5 Scrubber by Building on or before the Guaranteed Target Building Substantial Completion Date (in each case, as and the Guaranteed Tie-In Commencement Date, Authority has not extended the Guaranteed Tie-in Completion Date or the Guaranteed Target Building Substantial Completion Date of in the Unit 5 Scrubber, as applicable, may be extended due to Force Majeure, Owner caused delays, differing site conditions, discovery of Hazardous Materials, Changes Time Schedule in Law, or as otherwise contemplated in accordance with this Agreement), and, accordingly, upon the occurrence Design-Builder will pay to the Authority by way of either event, subject to Section 12.1(c) below, Owner’s sole and exclusive remedy therefore shall be to recover from Contractor as liquidated damages, damages and not as a penalty, penalty the Delay Liquidated Damages sum of for each Day and every day after the Guaranteed Tie-In Commencement Date that Unit 5 Scrubber Tie-In does not commence, each Day after the Guaranteed Tie-In Target Building Substantial Completion Date that the successful Tie-In of the Unit 5 Scrubber has not been achieved, and, after the successful Tie-In of the Unit 5 Scrubber has been achieved, each Day after the Guaranteed Substantial Completion of the Unit 5 Scrubber that Substantial Completion of the Unit 5 Scrubber Building is not achievedachieved (or if the Authority has extended the Target Building Substantial Completion Date in the Time Schedule in accordance with this Agreement, as applicable; provided, that in no event shall the aggregate Delay Liquidated Damages such other date established for the Unit 5 Scrubber exceed its Delay Liquidated Damages CapTarget Building Substantial Completion Date). The Parties hereby agree that the Delay Liquidated Damages payable pursuant Subject to this Section 12.1(b) shall not be duplicative. By way of exampleparagraph 3.3(c), if Contractor is assessed Delay Liquidated Damages due the Design-Builder fails to the commencement of Unit 5 Scrubber Tie-In on a date that is two (2) days after the Guaranteed Tie-In Commencement Date, Contractor shall not be liable for Delay Liquidated Damages for the same two (2) day delay in completing Unit 5 Scrubber Tie-In or in achieving achieve Substantial Completion of the Unit 5 Scrubber.
Project on or before the Target Project Substantial Completion Date and the Authority has not extended the Target Project Substantial Completion Date in the Time Schedule in accordance with this Agreement, the Design-Builder will pay to the Authority by way of liquidated damages and not as a penalty the sum of for each and every day after the Target Project Substantial Completion Date that Substantial Completion of the Project is not achieved (cor if the Authority has extended the Target Project Substantial Completion Date in the Time Schedule in accordance with this Agreement, such other date established for the Target Project Substantial Completion Date). If the Design-Builder provides a notice to the Authority at least one hundred and eighty (180) Contractor shall days prior to the Target Building Substantial Completion Date or the Target Project Substantial Completion Date that it will not achieve the Target Building Substantial Completion Date or the Target Project Substantial Completion date, respectively, the Authority will extend such date(s) in the Time Schedule and the above 3.3(a) and 3.3(b) delay liquidated damages will only be applicable to the revised date(s) of Target Building Substantial Completion and/or Target Project Substantial Completion as was provided by the Design-Builder in such notice. Within such notice, the Design-Builder may only extend the current Target Building Substantial Completion Date and/or the current Target Project Substantial Completion Date by a maximum of ninety (90) days. The Design-Builder may only provide the notice contemplated by this paragraph 3.3(c) once. The maximum aggregate amount of such liquidated damages will be of the Contract Price at any one time. If this Agreement is terminated, the reference in this Section 3.3 to the "Contract Price" will be deemed only for purposes of this Section 3.3 to be the amount to which the Design-Builder would have no liability been entitled if the Design-Builder had properly performed and completed the Work and this Agreement had not been terminated. The liquidated damages will be the Authority's sole claim for damages against the Design- Builder for failure to achieve Substantial Completion of the Building by the Target Building Substantial Completion Date or for failure to achieve Substantial Completion of the Project by the Target Project Substantial Completion Date. The liquidated damages will not relieve the Design-Builder from its obligation to pay Delay Liquidated Damages to Owner hereunder for complete the Work or from any delay in Contractor’s performance other duties, obligations or responsibilities of the Work Design-Builder under this Agreement, and will not limit the Authority's rights to terminate this Agreement for default of the extent attributable to the performance of any Owner Equipment, unless such delay is the result of Contractor’s failure to comply with the requirements set forth in Design- Builder under this Agreement.
Appears in 1 contract
Sources: Design Build Agreement
Delay Liquidated Damages. (a) The Parties agree that it would be extremely difficult and impracticable under presently known and anticipated facts and circumstances to ascertain and fix If the actual damages Owner would incur if Contractor Work Completion Date does not achieve Substantial Completion of Unit 6 occur by the Guaranteed Substantial Completion Date, Seller will be liable for liquidated damages for each day from the Guaranteed Completion Date until the Work Completion Date, provided Seller will not be liable for Unit 6 (such liquidated damages for delay to the extent that such delay was caused by an Excusable Event or, if Seller is the prevailing party in such dispute, for the duration of any proceedings commenced as contemplated in Section 2.12.2 to the extent such dispute proceedings are commenced prior to the Guaranteed Substantial Completion Date Date. Seller will pay Buyer, as liquidated damages for Unit 6 may such failure the sum of [ Dollars ($ )] for each day of such delay, not to exceed [ Dollars ($ )] in the aggregate. Any and all amounts due from Seller for liquidated damages under this Section 2.13 will be extended due to Force Majeure, Owner caused delays, differing site conditions, discovery treated as a reduction in the Purchase Price if the Closing occurs. Except for termination of Hazardous Materials, Changes in Law, or as otherwise contemplated in this Agreement), and, accordingly, if Contractor does not achieve Substantial Completion of Unit 6 by that date, subject Agreement pursuant to Section 12.1(c) below10.1, Ownerin which case Seller’s obligation to pay liquidated damages under this Section 2.13 shall cease, the payment by Seller to Buyer of liquidated damages under this Section 2.13 are Buyer’s sole and exclusive remedy for Seller’s delay in completing the Work and the Project Assets by the Guaranteed Completion Date. The Parties acknowledge and agree that because of the unique nature of the Work and the Project Assets, it is difficult or impossible to determine with precision the amount of damages that would or might be incurred by ▇▇▇▇▇ as a result of Seller’s failure to timely perform the Work and complete the Project Assets by the Guaranteed Completion Date. It is understood and agreed by the Parties that (a) Buyer will be damaged by the failure of Seller to meet such delay shall obligations, (b) it would be impracticable or extremely difficult to recover from Contractor as fix the actual damages resulting therefrom, (c) any sums which would be payable under this Section 2.13 are in the nature of liquidated damages, and not as a penalty, the Delay Liquidated Damages for each Day that Substantial Completion of Unit 6 is delayed beyond the Guaranteed Substantial Completion Date for Unit 6; provided, that in no event shall the aggregate Delay Liquidated Damages for ▇▇▇▇ ▇ exceed its Delay Liquidated Damages Cap.
(b) The Parties agree that it would be extremely difficult and impracticable under presently known are fair and anticipated facts and circumstances to ascertain and fix the actual damages Owner would incur if (i) ▇▇▇▇ ▇ Scrubber Tie-In does not commence by the Guaranteed Tie-In Commencement Date, (ii) Contractor does not complete the successful tie-in of the Unit 5 Scrubber by the Guaranteed Tie-In Completion Date or (iii) after the successful Tie-In of the Unit 5 Scrubber, Contractor does not achieve Substantial Completion of the Unit 5 Scrubber by the Guaranteed Substantial Completion Date (in each case, as the Guaranteed Tie-In Commencement Date, the Guaranteed Tie-in Completion Date or the Guaranteed Substantial Completion Date of the Unit 5 Scrubber, as applicable, may be extended due to Force Majeure, Owner caused delays, differing site conditions, discovery of Hazardous Materials, Changes in Law, or as otherwise contemplated in this Agreement), and, accordingly, upon the occurrence of either event, subject to Section 12.1(c) below, Owner’s sole and exclusive remedy therefore shall be to recover from Contractor as liquidated damagesreasonable, and not as (d) each payment represents a penalty, the Delay Liquidated Damages for each Day after the Guaranteed Tie-In Commencement Date that Unit 5 Scrubber Tie-In does not commence, each Day after the Guaranteed Tie-In Completion Date that the successful Tie-In reasonable estimate of the Unit 5 Scrubber has not been achieved, and, after the successful Tie-In of the Unit 5 Scrubber has been achieved, each Day after the Guaranteed Substantial Completion of the Unit 5 Scrubber that Substantial Completion of the Unit 5 Scrubber is not achieved, as applicable; provided, that in no event shall the aggregate Delay Liquidated Damages fair compensation for the Unit 5 Scrubber exceed its Delay Liquidated Damages Cap. The Parties hereby agree losses that the Delay Liquidated Damages payable pursuant to this Section 12.1(b) shall not may reasonably be duplicative. By way of example, if Contractor is assessed Delay Liquidated Damages due to the commencement of Unit 5 Scrubber Tie-In on a date that is two (2) days after the Guaranteed Tie-In Commencement Date, Contractor shall not be liable for Delay Liquidated Damages for the same two (2) day delay in completing Unit 5 Scrubber Tie-In or in achieving Substantial Completion of the Unit 5 Scrubberanticipated from each such failure.
(c) Contractor shall have no liability or obligation to pay Delay Liquidated Damages to Owner hereunder for any delay in Contractor’s performance of the Work to the extent attributable to the performance of any Owner Equipment, unless such delay is the result of Contractor’s failure to comply with the requirements set forth in this Agreement.
Appears in 1 contract
Delay Liquidated Damages. (a) The Parties agree that it would be extremely difficult and impracticable under presently known and anticipated facts and circumstances to ascertain and fix the actual damages Owner would incur if Contractor does not achieve Substantial Completion of Unit 6 by the Guaranteed Substantial Completion Date for Unit 6 (as the Guaranteed Substantial Completion Date for Unit 6 may be extended due to Force Majeure, Owner caused delays, differing site conditions, discovery of Hazardous Materials, Changes in Law, or as otherwise contemplated in this Agreement), and, accordingly, if Contractor does not achieve Substantial Completion of Unit 6 by that date, subject to Section 12.1(c) below, Owner’s sole and exclusive remedy for such delay shall be to recover from Contractor as liquidated damages, and not as a penalty, the Delay Liquidated Damages for each Day that Substantial Completion of Unit 6 is delayed beyond the Guaranteed Substantial Completion Date for Unit 6; provided, that in no event shall the aggregate Delay Liquidated Damages for ▇▇▇▇ ▇ exceed its Delay Liquidated Damages Cap.
(b) The Parties agree that it would be extremely difficult and impracticable under presently known and anticipated facts and circumstances to ascertain and fix the actual damages Owner would incur if (i) ▇▇▇▇ ▇ Scrubber Tie-In does not commence by the Guaranteed Unit 5 Tie-In Commencement Date, (ii) Contractor does not complete the successful tieTie-in In of the Unit 5 Scrubber by the Guaranteed Unit 5 Tie-In Completion Date or (iii) after the successful Tie-In of the Unit 5 Scrubber, Contractor does not achieve Substantial Completion of the Unit 5 Scrubber by the Guaranteed Substantial Completion Date (in each case, as the Guaranteed Unit 5 Tie-In Commencement Date, the Guaranteed Tie-in Completion Date or the Guaranteed Substantial Completion Date of the Unit 5 Scrubber, as applicable, may be extended due to Force Majeure, Owner caused delays, differing site conditions, discovery of Hazardous Materials, Changes in Law, or as otherwise contemplated in this Agreement), and, accordingly, upon the occurrence of either event, subject to Section 12.1(c) below, Owner’s sole and exclusive remedy therefore shall be to recover from Contractor as liquidated damages, and not as a penalty, the Delay Liquidated Damages for each Day after the Guaranteed Unit 5 Tie-In Commencement Date that Unit 5 Scrubber Tie-In does not commence, each Day after the Guaranteed Unit 5 Tie-In Completion Date that the successful Tie-In of the Unit 5 Scrubber has not been achieved, and, after the successful Tie-In of the Unit 5 Scrubber has been achieved, each Day after the Guaranteed Substantial Completion of the Unit 5 Scrubber that Substantial Completion of the Unit 5 Scrubber is not achieved, as applicable; provided, that in no event shall the aggregate Delay Liquidated Damages for the Unit 5 Scrubber exceed its Delay Liquidated Damages Cap. The Parties hereby agree that the Delay Liquidated Damages payable pursuant to this Section 12.1(b) shall not be duplicative. By way of example, if Contractor is assessed Delay Liquidated Damages due to the commencement of Unit 5 Scrubber Tie-In on a date that is two (2) days Days after the Guaranteed Unit 5 Tie-In Commencement Date, Contractor shall not be liable for Delay Liquidated Damages for the same two (2) day Day delay in completing Unit 5 Scrubber Tie-In or in achieving Substantial Completion of the Unit 5 Scrubber.
(c) Contractor shall have no liability or obligation to pay Delay Liquidated Damages to Owner hereunder for any delay in Contractor’s performance of the Work to the extent attributable to the performance of any Owner Equipment, unless such delay is the result of Contractor’s failure to comply with the requirements set forth in this Agreement.
Appears in 1 contract
Sources: Engineering, Procurement and Construction Agreement (Duke Energy CORP)
Delay Liquidated Damages. a. To the extent that (ai) The Parties agree that it would be extremely difficult a PREPA Risk Event delays Resource Provider’s ability to achieve Commercial Operation as determined under Section 3.4 (Extensions of Time) and impracticable under presently known and anticipated facts and circumstances (ii) Resource Provider achieves either Deemed Completion or Commercial Operation, then PREPA shall pay to ascertain and fix the actual damages Owner would incur if Contractor does not achieve Substantial Completion of Unit 6 by the Guaranteed Substantial Completion Date for Unit 6 (Resource Provider, as the Guaranteed Substantial Completion Date for Unit 6 may be extended due to Force Majeure, Owner caused delays, differing site conditions, discovery of Hazardous Materials, Changes in Law, or as otherwise contemplated in this Agreement), and, accordingly, if Contractor does not achieve Substantial Completion of Unit 6 by that date, subject to Section 12.1(c) below, OwnerResource Provider’s sole and exclusive remedy for in respect of such delay, an amount per Day of such delay shall be equal to recover from Contractor one thirtieth (1/30) of the product of the aggregate Guaranteed Capability for the first Agreement Year multiplied by the sum of the Demand Reduction Price plus the Demand Build Price applicable to the first Agreement Year as liquidated damages, and not as a penalty, damages (the “PREPA Delay Liquidated Damages for each Day Damages”) no later than forty-five (45) Days after receipt of an invoice therefor; provided that Substantial Completion of Unit 6 is delayed beyond the Guaranteed Substantial Completion Date for Unit 6; provided, that in no event shall the aggregate Delay Liquidated Damages for ▇▇▇▇ ▇ exceed its Delay Liquidated Damages Cap.
(bA) The Parties agree that it would be extremely difficult and impracticable under presently known and anticipated facts and circumstances to ascertain and fix the actual damages Owner would incur if (i) ▇▇▇▇ ▇ Scrubber Tie-In does not commence by the Guaranteed Tie-In Commencement Date, (ii) Contractor does not complete the successful tie-in of the Unit 5 Scrubber by the Guaranteed Tie-In Completion Date or (iii) after the successful Tie-In of the Unit 5 Scrubber, Contractor does not achieve Substantial Completion of the Unit 5 Scrubber by the Guaranteed Substantial Completion Date (in each case, as the Guaranteed Tie-In Commencement Date, the Guaranteed Tie-in Completion Date or the Guaranteed Substantial Completion Date of the Unit 5 Scrubber, as applicable, may be extended due to Force Majeure, Owner caused delays, differing site conditions, discovery of Hazardous Materials, Changes in Law, or as otherwise contemplated in this Agreement), and, accordinglyif, upon the occurrence of either eventCommercial Operation Date, subject the Capability established by the Initial Performance Tests falls below the aggregate Guaranteed Capability for the first Agreement Year, then the Parties shall reduce the PREPA Delay Liquidated Damages and Resource Provider shall credit PREPA’s account for any overpayment according to the ratio that such Capability bears to Guaranteed Capability; and (B) the Term shall reduce for each Day in respect of which PREPA has paid PREPA Delay Liquidated Damages. The Parties acknowledge and agree that the PREPA Delay Liquidated Damages represent a fair and reasonable estimate of the losses which Resource Provider will suffer if Commercial Operation does not occur by the Guaranteed Commercial Operation Date, and accordingly the Parties hereby waive their right to dispute the validity of this Section 12.1(c3.5.
b. For each Day of delay in achieving Commercial Operation after the Guaranteed Commercial Operation Date until the earlier of (i) belowthe Commercial Operation Date, Ownerand (ii) the Long-Stop Date, other than any Day in respect of which PREPA has an obligation to pay PREPA Delay Liquidated Damages in accordance with paragraph (a) of this Section 3.5, Resource Provider shall pay to PREPA, as liquidated damages, the Resource Provider Delay Liquidated Damages, no later than forty-five (45) Days after receipt of an invoice therefor. The Resource Provider Delay Liquidated Damages shall constitute PREPA’s sole and exclusive remedy therefore shall be to recover from Contractor as liquidated damagesin respect of such delay, other than those remedies arising out of the termination by PREPA for delay under Section 15.1 (Termination Date). The Parties acknowledge and not as a penalty, the agree that Resource Provider Delay Liquidated Damages for each Day after represent a fair and reasonable estimate of the losses which PREPA will suffer if Commercial Operation does not occur by the Guaranteed Tie-In Commencement Date Commercial Operation Date, and accordingly the Parties hereby waive their right to dispute the validity of this Section 3.5.
c. The Parties acknowledge and agree that Unit 5 Scrubber Tie-In does Resource Provider’s maximum aggregate liability arising out of this Agreement for delays in achieving Commercial Operation shall not commenceexceed the Security Amount. If, each Day after prior to the Guaranteed Tie-In Completion Date Commercial Operation Date, the accrued 16 Note: On past projects, PREB has prohibited PREPA from granting an aggregate time extension under this Agreement that the successful Tie-In exceeds 10% of the Unit 5 Scrubber contractually agreed period for achieving the Commercial Operation Date. More recently, PREB has not been achieved, and, after the successful Tie-In required approval of the Unit 5 Scrubber has been achieved, each Day after the Guaranteed Substantial Completion of the Unit 5 Scrubber that Substantial Completion of the Unit 5 Scrubber is not achieved, as applicable; provided, that in no event shall the aggregate all extensions. Resource Provider Delay Liquidated Damages for (determined without reference to the Unit 5 Scrubber exceed its Security Amount) exceed, or will likely exceed, the applicable Security Amount, then Resource Provider shall have the right to increase the Security Amount by an amount specified in a written notice to PREPA; provided that, if the amount of such increase exceeds the amount (expressed in USD) corresponding to the product of the per Day Resource Provider Delay Liquidated Damages Cap. The Parties hereby agree that amount multiplied by the Delay Liquidated Damages payable pursuant number of Days corresponding to this Section 12.1(ba ten percent (10%) increase, in the aggregate with all of the extensions of time to achieve Commercial Operation, then such increase shall not be duplicative. By way become effective until PREPA obtains PREB’s approval of example, if Contractor is assessed Delay Liquidated Damages due to such increase (which PREPA shall request upon receipt of a written request from the commencement of Unit 5 Scrubber Tie-In on a date that is two (2) days after Resource Provider specifying the Guaranteed Tie-In Commencement Date, Contractor shall not be liable for Delay Liquidated Damages for the same two (2) day delay in completing Unit 5 Scrubber Tie-In or in achieving Substantial Completion nature and extent of the Unit 5 Scrubber.
expected increase). If Resource Provider desires to increase the Security Amount under this paragraph (c) Contractor of this Section 3.5, then such increase shall have no liability or obligation not become effective until Resource Provider has delivered a replacement Performance Security with a total face amount to pay Delay Liquidated Damages to Owner hereunder for any delay in Contractor’s performance of cover the Work to the extent attributable to the performance of any Owner Equipment, unless such delay is the result of Contractor’s failure to comply with the requirements set forth in this Agreementincreased Security Amount.
Appears in 1 contract
Sources: Grid Services Agreement