Common use of Additional Liquidated Damages Provisions Clause in Contracts

Additional Liquidated Damages Provisions. The parties acknowledge, recognize and agree on the following:‌ (i) that because of the unique nature of the Project, it is difficult or impossible to determine with precision the amount of damages that would or might be incurred by the Department as a result of the Developer’s failure to timely complete the Work; (ii) that any sums assessed under Section 8.10(b) and (c), Section 8.13, Section 8.14 and Section 11.05(a) are in the nature of liquidated damages, and not a penalty, and are fair and reasonable and such payment are reasonable in order to compensate the Department for damages it will incur as a result of the lost opportunity to the Department represented by this Agreement. Such damages include the harm from the difficulty, and substantial additional expense, to the Department, to procure and deliver, operate and maintain the Project through other means, potential loss of a portion of the Permit Fee, loss of or substantial delay in use, enjoyment and benefit of the Project by the general public, and injury to the credibility and reputation of the Department, with policy makers and with the general public who depend on and expect availability of service. The Developer further acknowledges that these damages are incapable of accurate measurement because of, among other things, the unique nature of the Project and the unavailability of a substitute for it; (iii) that any sums assessed under Section 8.10(b) and (c), Section 8.13, Section 8.14 and Section 11.05(a) will be in lieu of all liability of the Developer and its Contractors, and otherwise constitute the Department’s sole right to damages for, any and all Losses, whether direct, special or consequential, and of any nature whatsoever incurred by the Department (but excluding Non-Permitted Closures as described in Section 8.14), which are caused by the Developer’s failure to timely complete the construction Work, including failure to achieve Project Completion by the Project Completion Date or the Intermediate Milestones by dates set forth in Section 8.13. Notwithstanding the foregoing, the assessment of such sums will not affect in any manner whatsoever the Department’s rights to termination or other damages incurred by the Department as a result of a termination for Developer Default that may result from such failure to achieve either or both of Project Completion or the Intermediate Milestones by the required deadlines; (iv) that any sums assessed under this Section 8.09(e), Section 8.13, Section 8.14 and Section 11.05(a) will be due and owing to the Department upon assessment of such liquidated damages, subject to the dispute resolution procedures of Article 21; (v) notwithstanding the above, liquidated damages are not intended to excuse the Developer or any of its Contractors from liability for any other breach of its obligations under the Project Agreements, or limit the Department’s recourse to other remedies hereunder such as termination pursuant to Article 19 and Article 20; provided, that no Developer Default will occur solely as a result of a delay in achieving Project Completion, except as set forth in Section 19.01(i); (vi) that time is of the essence in meeting the deadlines related to Financial Close, Intermediate Milestone completion, and Project Completion; and

Additional Liquidated Damages Provisions. The parties acknowledge, recognize and agree on the following:‌ (i) that because of the unique nature of the Project, it is difficult or impossible to determine with precision the amount of damages that would or might be incurred by the Department as a result of the Developer’s failure to timely complete the Work; (ii) that any sums assessed under Section 8.10(b) and (c), Section 8.13, Section 8.14 and Section 11.05(a) are in the nature of liquidated damages, and not a penalty, and are fair and reasonable and such payment are reasonable in order to compensate the Department for damages it will incur as a result of the lost opportunity to the Department represented by this Agreement. Such damages include the harm from the difficulty, and substantial additional expense, to the Department, to procure and deliver, operate and maintain the Project through other means, potential loss of a portion of the Permit Fee, loss of or substantial delay in use, enjoyment and benefit of the Project by the general public, and injury to the credibility and reputation of the Department, with policy makers and with the general public who depend on and expect availability of service. The Developer further acknowledges that these damages are incapable of accurate measurement because of, among other things, the unique nature of the Project and the unavailability of a substitute for it; (iii) that any sums assessed under Section 8.10(b) and (c), Section 8.13, Section 8.14 and Section 11.05(a) will be in lieu of all liability of the Developer and its Contractors, and otherwise constitute the Department’s sole right to damages for, any and all Losses, whether direct, special or consequential, and of any nature whatsoever incurred by the Department (but excluding Non-Permitted Closures as described in Section 8.14), which are caused by the Developer’s failure to timely complete the construction Work, including failure to achieve Project Completion by the Project Completion Date or the Intermediate Milestones by dates set forth in Section 8.13. Notwithstanding the foregoing, the assessment of such sums will not affect in any manner whatsoever the Department’s rights to termination or other damages incurred by the Department as a result of a termination for Developer Default that may result from such failure to achieve either or both of Project Completion or the Intermediate Milestones by the required deadlines; (iv) that any sums assessed under this Section 8.09(e), Section 8.13, Section 8.14 and Section 11.05(a) will be due and owing to the Department upon assessment of such liquidated damages, subject to the dispute resolution procedures of Article 21; (v) notwithstanding the above, liquidated damages are not intended to excuse the Developer or any of its Contractors from liability for any other breach of its obligations under the Project Agreements, or limit the Department’s recourse to other remedies hereunder such as termination pursuant to Article 19 and Article 20; provided, that no Developer Default will occur solely as a result of a delay in achieving Project Completion, except as set forth in Section 19.01(i); (vi) that time is of the essence in meeting the deadlines related to Financial Close, Intermediate Milestone completion, and Project Completion; andSection