Common use of Extension of Substantial Completion Deadline Clause in Contracts

Extension of Substantial Completion Deadline. In the event City fails to achieve Substantial Completion of the Venue Improvements Work on or before the Substantial Completion Deadline (as the same may have been extended by any Excusable Delay Period), City shall have the continuing right and option to extend the Substantial Completion Deadline, as such Substantial Completion Deadline may be extended pursuant to the terms of this Section 5.2 so that City may cause Substantial Completion of the Venue Improvements Work to occur, provided each of the following requirements is satisfied: (a) City must continue to diligently and continuously prosecute the Venue Improvements Work (subject to Excusable Delay) after the original Substantial Completion Deadline (as the same may have been extended by Excusable Delay or the terms of this Section 5.2). (b) In the event that the Venue is not completed by the Substantial Completion Deadline (as the same may have been extended by Excusable Delay, Club delay or BSD delay) and Club is not in default under this Agreement, City shall pay to Club a liquidated damages amount of $50,000 per week during the period of such delay plus any fines or penalties assessed by the Office of the Commissioner of Major League Baseball, MiLB, or the League (“Club Late Opening Charges”). These liquidated damages are not a penalty but are intended to compensate Club for actual expenses incurred by Club including but not limited to payroll, administrative expenses, travel and lodging expenses, equipment costs, League and National Association dues, and debt service on the Hardball Contribution to the Venue (as defined in the Venue License Agreement), which damages are caused by the aforementioned failure to complete the Venue by the Substantial Completion Deadline. This shall be Club’s sole and exclusive remedy for damages due to delay in the Substantial Completion of the Venue. City and Club agree that because of the difficulty or impossibility of determining Club’s damages as a result of such a delay in Substantial Completion of the Venue Improvements Work, the difficulties of proof of loss and the inconvenience or non-feasibility of Club otherwise having a remedy for such failure to achieve Substantial Completion of the Venue Improvements Work by the original Substantial Completion Deadline (as the same may have been extended by any Excusable Delay Period or the terms of this Section 5.2), the Club Late Opening Charges are a reasonable amount to be paid for such failure. (c) So long as can be done on commercially reasonable terms, City may require the Contractor to pay Late Opening Charges. In lieu of the City paying Club Late Opening Charges under (b) above, the City may assign to Club any Late Opening Charges due from Contractor. Any such Late Opening Charges received by Club from Contractor shall reduce the Club Late Opening Charges due from City, dollar-for-dollar. This shall be Club’s sole and exclusive remedy for damages due to City’s delay in the Substantial Completion of the Venue. Provided that the City is not the cause of such delay, the City shall not be obligated to pay Late Opening Charges to Club or BSD or to pay any other damages for delay to Club or BSD, it being agreed that the sole source for such payment of Late Opening Charges shall be the Contractor pursuant to the Venue Construction Contract. In the event the Contractor fails to cause Substantial Completion of the Venue Improvements Work to occur on or before the date required by the Venue Construction Contract, City hereby agrees it will not (i) amend or modify the provisions providing for liquidated damages in the Venue Construction Contract, (ii) waive, release, reduce or terminate the liquidated damages payable by the Contractor thereunder or (iii) waive, release, extend or terminate the Contractor’s obligation to achieve Substantial Completion in accordance with the Venue Construction Schedule, without the prior Approval of Club, such Approval not to be unreasonably withheld, conditioned or denied.

Extension of Substantial Completion Deadline. In the event City fails to achieve Substantial Completion of the Venue Improvements Work on or before the Substantial Completion Deadline (as the same may have been extended by any Excusable Delay Period), City shall have the continuing right and option to extend the Substantial Completion Deadline, as such Substantial Completion Deadline may be extended pursuant to the terms of this Section 5.2 so that City may cause Substantial Completion of the Venue Improvements Work to occur, provided each of the following requirements is satisfied: (a) City must continue to diligently and continuously prosecute the Venue Improvements Work (subject to Excusable Delay) after the original Substantial Completion Deadline (as the same may have been extended by Excusable Delay or the terms of this Section 5.2). (b) In the event that the Venue is not completed by the Substantial Completion Deadline (as the same may have been extended by Excusable Delay, Club delay or BSD delay) and Club is not in default under this Agreement, City shall pay to Club a liquidated damages amount of $50,000 per week during the period of such delay plus any fines or penalties assessed by the Office of the Commissioner of Major League Baseball, MiLB, or the League (“Club Late Opening Charges”). These liquidated damages are not a penalty but are intended to compensate Club for actual expenses incurred by Club including but not limited to payroll, administrative expenses, travel and lodging expenses, equipment costs, League and National Association dues, and debt service on the Hardball Contribution to the Venue (as defined in the Venue License Agreement), which damages are caused by the aforementioned failure to complete the Venue by the Substantial Completion Deadline. This shall be Club’s sole and exclusive remedy for damages due to delay in the Substantial Completion of the Venue. City and Club agree that because of the difficulty or impossibility of determining Club’s damages as a result of such a delay in Substantial Completion of the Venue Improvements Work, the difficulties of proof of loss and the inconvenience or non-feasibility of Club otherwise having a remedy for such failure to achieve Substantial Completion of the Venue Improvements Work by the original Substantial Completion Deadline (as the same may have been extended by any Excusable Delay Period or the terms of this Section 5.2), the Club Late Opening Charges are a reasonable amount to be paid for such failure. (c) So long as can be done on commercially reasonable terms, City may require the Contractor to pay Late Opening Charges. In lieu of the City paying Club Late Opening Charges under (b) above, the City may assign to Club any Late Opening Charges due from Contractor. Any such Late Opening Charges received by Club from Contractor shall reduce the Club Late Opening Charges due from City, dollar-for-dollar. This The liquidated damages provided in (b) above reduced by any Late Opening Charges received from Contractor shall be Club’s sole and exclusive remedy for damages due to City’s delay in the Substantial Completion of the Venue. Provided that the City is not the cause of such delay, the City shall not be obligated to pay Late Opening Charges to Club or BSD or to pay any other damages for delay to Club or BSD, it being agreed that the sole source for such payment of Late Opening Charges shall be the Contractor pursuant to the Venue Construction Contract. In the event the Contractor fails to cause Substantial Completion of the Venue Improvements Work to occur on or before the date required by the Venue Construction Contract, City hereby agrees it will not (i) amend or modify the provisions providing for liquidated damages in the Venue Construction Contract, (ii) waive, release, reduce or terminate the liquidated damages payable by the Contractor thereunder or (iii) waive, release, extend or terminate the Contractor’s obligation to achieve Substantial Completion in accordance with the Venue Construction Schedule, without the prior Approval of Club, such Approval not to be unreasonably withheld, conditioned or denied.