Difficulty of Ascertaining Certain Damages. The amount of Liquidated Damages as set forth in Table 26.2 below, is fixed and agreed to by and between the Contractor and ATL because both Parties agree and acknowledge the impracticability and extreme difficulty of fixing and ascertaining the true value of the damages which ATL will sustain by failure of the Contractor to failure to meet Project milestones, such as loss of revenue, service charges, interest charges, harm and inconvenience to the public, delays caused to other activities of ATL by failure to perform this Contract, increase of inspection and administrative costs, harm to ATL’s reputation and other damages, some of which are indefinite and not susceptible of easy proof, said amounts were actively negotiated between the Parties, and are in each instance agreed by both Parties to be a reasonable estimate of the amount of damages which ATL will sustain in each instance and said amount shall be deducted from any monies due or that may become due to the Contractor. Both Parties hereto acknowledge that any Liquidated Damages assessed by ATL and paid by Contractor to ATL shall limit and constitute Contractor’s sole liability and ATL’s sole remedy with respect to the milestones and the service levels for which Liquidated Damages are assessed as enumerated in Table 26.2. Liquidated Damages as specified in Table 26.2 that are assessed by ATL will be deducted from any money due the Contractor, not as a penalty, but as a reasonable estimate of ATL’s damages; provided however, that due consideration shall be taken of any adjustment of the time for performance granted under the provisions of Section 20.3 (Delay and Extensions of Time).
Difficulty of Ascertaining Certain Damages. The amount of liquidated damages as set forth in Section 25.1 is fixed and agreed to by and between Contractor and the Commission because both Parties agree and acknowledge the impracticability and extreme difficulty of fixing and ascertaining the true value of the damages which the Commission will sustain by failure of Contractor to meet the items set forth in Section 25.1, such as loss of revenue, service charges, interest charges, harm and inconvenience to the public, delays caused to other activities of the Commission by failure to perform this Contract, increase of inspection and administrative costs, and other damages, some of which are indefinite and not susceptible of easy proof, said amounts were actively negotiated between the Parties, and are in each instance agreed by both Parties to be a reasonable estimate of the amount of damages which the Commission will sustain in each instance and said amount shall be deducted from any monies due or that may become due to Contractor. The Parties intend that the liquidated damages constitute compensation, and not a penalty. The Parties acknowledge and agree that the Commission’s harm caused by a Contractor delay would be impossible or very difficult to accurately estimate, and that the liquidated damages are a reasonable estimate of the anticipated or actual harm that might arise from Contractor’s delay. Contractor’s payment of the liquidated damages is Contractor’s sole liability and entire obligation and the Commission’s exclusive remedy for the occurrences set forth in Section 25.1.
