Common use of Performance Stipulated Damages Generally Clause in Contracts

Performance Stipulated Damages Generally. (a) TSP understands and agrees that if the Performance Requirements specified herein are not met at any time after the Revenue Service Date for each Bridge, as demonstrated by the Operations Tests and the results reported in the Monthly Operations and Maintenance Reports, the Joint Board will suffer substantial Losses. TSP agrees that it shall be liable for all such Losses to the extent set forth in this Section 4.10.7.1 and elsewhere in this Contract. TSP and the Joint Board have agreed to stipulate to a process to determine the amount of damages payable for such failure. TSP acknowledges and agrees that such Performance Stipulated Damages are intended to compensate the Joint Board solely for its damages caused by the failure to meet the Guaranteed Performance Requirements specified in Section 4.10.7.2, and shall not excuse TSP from liability to correct any defects in the TCS or from any other breach of requirements of the Contract Documents. The Joint Board agrees to accept Performance Stipulated Damages as its sole compensation for damages caused by such failure, provided that the Joint Board shall not be precluded from exercising its other rights and remedies respecting such failure, including requiring TSP to make adjustments to the TCS that will cause it to meet the Performance Requirements after the Joint Board’s written notice to TSP of the failure. (b) Notwithstanding clause (a), TSP shall not be responsible for the payment of Performance Stipulated Damages if (i) TSP has fully complied with its obligations regarding coordination with the ETC Contractor; (ii) TSP has fully complied with the inspection, review, testing, oversight and commissioning obligations of the TSP regarding the Joint Board-Provided ETC Equipment; and (iii) notwithstanding clauses (i)-(ii) herein, the sole and direct cause of the failure of the TCS to comply with the Performance Requirements is a Latent Defect in the Joint Board-Provided ETC Equipment. (c) Notwithstanding clause (a), TSP shall not be responsible for the payment of Performance Stipulated Damages if (i) TSP has fully complied with its obligations regarding coordination with Other Joint Board Contractors; (ii) notwithstanding such coordination TSP is required to shut down the System or otherwise delay its performance of a Guaranteed Performance Requirement in order to accommodate maintenance or other activities on a Bridge by an Other Joint Board Contractor through no fault of TSP; (iii) the need for such maintenance does not arise out of or relate, in whole or in part, to any action, omission, fault, breach, negligence, willful misconduct or recklessness by any TSP-Related Entity; and (iv) such shut down or delay is the direct and sole and cause of the failure of the TCS in a manner that directly and solely causes TSP to fail to meet such Guaranteed Performance Requirement. (d) TSP’s obligation to pay Performance Stipulated Damages for failure to meet Guaranteed Performance Requirements shall apply from and after the first Revenue Service Date. If TSP becomes obligated to pay Performance Stipulated Damages, such Performance Stipulated Damages shall be due and payable directly to the Joint Board or to such other person as directed by the Joint Board in writing, without notice or demand, on the tenth day of the following month and if not paid when due shall thereafter accrue interest as provided in Section 12.7. The Joint Board may, in its sole discretion, offset such Performance Stipulated Damages against amounts otherwise payable by the Joint Board to the TSP. (e) TSP shall bear the burden of proof that the conditions in clauses (b)(i) through (iii), and (c)(i) through (iv) herein are satisfied. TSP further acknowledges and agrees that Performance Stipulated Damages may be owing even though no TSP Event Default has occurred.

Performance Stipulated Damages Generally. (a) TSP understands and agrees that if the Performance Requirements specified herein are not met at any time after the Revenue Service Date for each Bridge, as demonstrated by the Operations Tests and the results reported in the Monthly Operations and Maintenance Reports, the Joint Board will suffer substantial Losses. TSP agrees that it shall be liable for all such Losses to the extent set forth in this Section 4.10.7.1 and elsewhere in this Contract. TSP and the Joint Board have agreed to stipulate to a process to determine the amount of damages payable for such failure. TSP acknowledges and agrees that such Performance Stipulated Damages are intended to compensate the Joint Board solely for its damages caused by the failure to meet the Guaranteed Performance Requirements specified in Section 4.10.7.2, and shall not excuse TSP from liability to correct any defects in the TCS or from any other breach of requirements of the Contract Documents. The Joint Board agrees to accept Performance Stipulated Damages as its sole compensation for damages caused by such failure, provided that the Joint Board shall not be precluded from exercising its other rights and remedies respecting such failure, including requiring TSP to make adjustments to the TCS that will cause it to meet the Performance Requirements after the Joint Board’s written notice to TSP of the failure. (b) Notwithstanding clause (a), TSP shall not be responsible for the payment of Performance Stipulated Damages if (i) TSP has fully complied with its obligations regarding coordination with the ETC Contractor; (ii) TSP has fully complied with the inspection, review, testing, oversight and commissioning obligations of the TSP regarding the Joint Board-Provided ETC Equipment; and (iii) notwithstanding clauses (i)-(ii) herein, the sole and direct cause of the failure of the TCS to comply with the Performance Requirements is a Latent Defect in the Joint Board-Provided ETC Equipment. (c) Notwithstanding clause (a), TSP shall not be responsible for the payment of Performance Stipulated Damages if (i) TSP has fully complied with its obligations regarding coordination with Other Joint Board Contractors; (ii) notwithstanding such coordination TSP is required to shut down the System or otherwise delay its performance of a Guaranteed Performance Requirement in order to accommodate maintenance or other activities on a Bridge by an Other Joint Board Contractor through no fault of TSP; (iii) the need for such maintenance does not arise out of or relate, in whole or in part, to any action, omission, fault, breach, negligence, willful misconduct or recklessness by any TSP-Related Entity; and (iv) such shut down or delay is the direct and sole and cause of the failure of the TCS in a manner that directly and solely causes TSP to fail to meet such Guaranteed Performance Requirement. (d) TSP’s obligation to pay Performance Stipulated Damages for failure to meet Guaranteed Performance Requirements shall apply from and after the first Revenue Service Date. If TSP becomes obligated to pay Performance Stipulated Damages, such Performance Stipulated Damages shall be due and payable directly to the Joint Board or to such other person as directed by the Joint Board in writing, without notice or demand, on the tenth day of the following month and if not paid when due shall thereafter accrue interest as provided in Section 12.7. The Joint Board may, in its sole discretion, offset such Performance Stipulated Damages against amounts otherwise payable by the Joint Board to the TSP. (e) TSP shall bear the burden of proof that the conditions in clauses (b)(i) through (iii), and or (c)(i) through (iviii) herein are satisfied. TSP further acknowledges and agrees that Performance Stipulated Damages may be owing even though no TSP Event Default has occurred.