Common use of Difficulty of Ascertaining Certain Damages Clause in Contracts

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 liquidated damages as set forth in Table 26.2 28.2 below, in Section 28.3 (Closure of Lanes; Failure to Reopen) and in Appendix D (Performance Requirements and SLAs) of the RFP is fixed and agreed to by and between the TSI Contractor and ATL SRTA because both Parties agree and acknowledge the impracticability and extreme difficulty of fixing and ascertaining the true value of the damages which ATL SRTA will sustain by failure of the TSI Contractor to failure to meet Project milestones, failure to reopen the lanes as set forth in Section 28.3 (Closure of Lanes; Failure to Reopen), and/or failure to meet the service levels set forth in Appendix D of the RFP, such as loss of revenue, service charges, interest charges, harm and inconvenience to the public, delays caused to other activities of ATL SRTA 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 SRTA will sustain in each instance and said amount shall be deducted from any monies due or that may become due to the TSI Contractor. Both Parties hereto acknowledge that any Liquidated Damages assessed by ATL SRTA and paid by TSI Contractor to ATL SRTA shall limit and constitute TSI Contractor’s sole liability and ATLSRTA’s sole remedy with respect to the milestones and the service levels for which Liquidated Damages liquidated damages are assessed as enumerated in Table 26.228.2 below and in Appendix D (Performance Requirements and SLAs). Liquidated Damages damages as specified in Table 26.2 28.2 and in Appendix D (Performance Requirements and SLAs) that are assessed by ATL SRTA will be deducted from any money due the TSI Contractor, not as a penalty, but as a reasonable estimate of ATLSRTA’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 17.3 (Delay and Extensions of Time).

Difficulty of Ascertaining Certain Damages. The amount of Liquidated Damages liquidated damages as set forth in Table 26.2 below, 28.2 below and in Appendix D (Performance Requirements and SLAs) of the RFP is fixed and agreed to by and between the TSI Contractor and ATL SRTA because both Parties agree and acknowledge the impracticability and extreme difficulty of fixing and ascertaining the true value of the damages which ATL SRTA will sustain by failure of the TSI Contractor to failure to meet Project milestonesmilestones and service levels set forth in Appendix D of the RFP, such as loss of revenue, service charges, interest charges, harm and inconvenience to the public, delays caused to other activities of ATL SRTA 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 SRTA will sustain in each instance and said amount shall be deducted from any monies due or that may become due to the TSI Contractor. Both Parties hereto acknowledge that any Liquidated Damages assessed by ATL SRTA and paid by TSI Contractor to ATL SRTA shall limit and constitute TSI Contractor’s sole liability and ATLSRTA’s sole remedy with respect to the milestones and the service levels for which Liquidated Damages liquidated damages are assessed as enumerated in Table 26.228.2 below and in Appendix D (Performance Requirements and SLAs). Liquidated Damages damages as specified in Table 26.2 28.2 and in Appendix D (Performance Requirements and SLAs) that are assessed by ATL SRTA will be deducted from any money due the TSI Contractor, not as a penalty, but as a reasonable estimate of ATLSRTA’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 17.3 (Delay and Extensions of Time).. Each milestone in Table 28.2 references a section of the RFP or the Contract that provides more details and a precise description of the specific milestone and associated liquidated damages. The terms and conditions of the referenced section of the RFP or Contract shall control over the terms and conditions of Table 28.7 in the event of any conflict. Table 28* General Description of Milestone Milestone Deadline** Days Prior to Substantial Completion Liquidated Damages Amount Factory Acceptance Test (FAT) Completed 75S – No Later Than 360 NWC - No Later Than 420 $1,000 a day First Site Installation Test (Toll Site Approved) 75S - No Later Than 163 NWC - No Later Than 219 $5,000 a day 100% of Toll and ITS Sites Integrated with Network 75S - No Later Than 70 NWC - No Later Than 70 $5,000 a day System Integration Test Completed 75S - No Later Than 0 NWC - No Later Than 0 $10,000 a day