Common use of Delay Liquidated Damages Clause in Contracts

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 Xxxx 0 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) Xxxx 0 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.

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 Xxxx 0 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) Xxxx 0 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.

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 Xxxx 0 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) Xxxx 0 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.

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 Clause 7.11(b), if the actual damages Owner would incur if Contractor does not achieve Substantial Completion of Unit 6 Concessionaire fails to complete the work corresponding to any Payment Milestone by the Guaranteed Substantial Scheduled PaymentMilestone Completion Date or fails to complete the construction of the Facilities and restoration of the Associated Infrastructure by the Scheduled Construction Completion Date, then the Jal Xxxxx shall be entitled to liquidated damages for Unit 6 (each day of delay beyond the Scheduled PaymentMilestone Completion Date, or, as the Guaranteed Substantial case may be, the Scheduled Construction Completion Date, at the rate of 0.1% of the Performance Security for each day of delay up to 6 months from the relevant Scheduled PaymentMilestone Completion Date, or, as the case may be, the Scheduled Construction 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(collectively, the Delay Liquidated Damages). The Delay Liquidated Damages will be payable until the work for each Day that Substantial the relevant Payment Milestone is completed or, as the case may be, the construction of the Facilities and restoration of the Associated Infrastructure is completed, as certified by the Jal Xxxxx in accordance with Clause 7.13. If the Concessionaire completes the construction and rehabilitation of the Facilities and the Associated Infrastructure by the Scheduled Construction Completion of Unit 6 is delayed beyond the Guaranteed Substantial Completion Date for Unit 6; providedDate, that in no event shall the aggregate Delay Liquidated Damages recovered by the Jal Xxxxx under this Clause 7.12(a) for Xxxx 0 exceed its Delay Liquidated Damages Capa delay in achieving any Payment Milestone shall be refunded by the Jal Xxxxx to the Concessionaire, without any interest. (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) Xxxx 0 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 Jal Xxxxx shall be entitled to recover from Contractor as liquidated damages, and not as a penalty, deduct the Delay Liquidated Damages from the amount payable to the Concessionaire for each Day after any Payment Milestone, and if such amounts are insufficient, the Guaranteed Tie-In Commencement Date that Unit 5 Scrubber Tie-In does not commence, each Day after Jal Xxxxx shall have a right to invoke the Guaranteed Tie-In Completion Date that Performance Security to the successful Tie-In extent 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. Damages. (c) The Parties hereby agree acknowledge that the Delay Liquidated Damages payable pursuant are a genuine pre- estimation of and reasonable compensation for the loss that shall be suffered by the Jal Xxxxx as a result of the delay in the completion of the Facilities and restoration of the Associated Infrastructure, and not as penalty. (d) If, for any reason, the above paragraphs relating to this Section 12.1(b) shall not be duplicative. By way the payment of example, if Contractor is assessed Delay Liquidated Damages due are void, invalid or otherwise inoperative so as to disentitle 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 Jal Xxxxx from claiming any Delay Liquidated Damages Damages, then the Jal Xxxxx will be entitled to claim against the Concessionaire for the same two (2) day general damages for delay in completing Unit 5 Scrubber Tie-In the works for the relevant Payment Milestone by the Scheduled PaymentMilestone Completion Date, or for the delay in achieving Substantial Completion completing the construction of the Unit 5 ScrubberFacilities and restoration of the Associated Infrastructure by the Scheduled Construction Completion Date. (ce) Contractor If the Concessionaire fails to complete the works for a PaymentMilestone within 6 months of the Scheduled PaymentMilestone Completion Date or if the Concessionaire fails to complete the construction of the Facilities and restoration of the Associated Infrastructure within 6 months from the Scheduled Construction Completion Date, other than on account of any Delay Event (Grace Period), then such failure shall have no liability or obligation be deemed to be a Concessionaire Event of Default in accordance with Clause 16.1. (f) The Concessionaire shall be required to pay the Delay Liquidated Damages to Owner hereunder for the Jal Xxxxx within 30 days of a demand being made by the Jal Xxxxx. If the Concessionaire does not pay the Delay Liquidated Damages within the above time period, then such failure shall be deemed to be a Concessionaire Event of Default in accordance with Clause 16.1. (g) The payment or deduction of Delay Liquidated Damages shall not relieve the Concessionaire from its obligations to complete the construction of the Facilities and the restoration of the Associated Infrastructure, or from any of its other duties, obligations or responsibilities under the Agreement. The Concessionaire shall use and continue to use its best endeavours to avoid or reduce further delay in Contractor’s performance of completing the Work to Facilities and rehabilitating 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 AgreementAssociated infrastructure.

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 Xxxx 0 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) Xxxx 0 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.

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 Xxxx 0 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) Xxxx 0 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.

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 Xxxx 0 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) Xxxx 0 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.

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 Xxxx 0 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) Xxxx 0 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.”]

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 Xxxx 0 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) Xxxx 0 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.

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 Xxxx 0 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) Xxxx 0 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.