Key Personnel Liquidated Damages. 7.5.1 If any person filling a Key Person’s role is not available for, or actively involved in, the performance of the Work as required in Section 7.4, as determined by JPA in its good faith discretion, then:
(a) Design-Builder acknowledges that JPA and the Project will suffer significant and substantial damages and that it is impracticable and extremely difficult to ascertain and determine the actual damages which would accrue to JPA in such event; and
(b) JPA may, in its sole discretion, impose upon Design-Builder a liquidated amount as follows, for each position held by such individual, as deemed compensation to JPA for such damages: Design-Build Manager $150,000 Assistant Design-Build Manager $150,000 Design Manager $150,000 Construction Manager $100,000 Estimator $100,000 CEQA/NEPA Environmental Support Lead $100,000 Engineer-of-Record $50,000 Superintendent $50,000 Scheduler $50,000 Engineer $50,000 QC Manager $50,000 Preconstruction Manager $50,000
7.5.2 For each position listed above, JPA may, in its sole discretion, impose upon Design-Builder an additional liquidated amount equal to the corresponding amount specified in Section 7.5.1(b) for each six-month period where such Key Person’s position is vacant or not being fulfilled in accordance with this Agreement as reasonably determined by JPA. Additionally, JPA may impose upon Design-Builder a liquidated amount of $20,000 for any other individual proposed to perform a key role under the Proposal for each six-month period where such individual’s position is vacant or not being fulfilled in accordance with this Agreement as determined by JPA.
7.5.3 Design-Builder shall pay to JPA any amounts imposed under Sections 7.5.1 or 7.5.2; provided, however, that Design-Builder shall not be liable for such amounts if:
(a) Design-Builder removes or replaces any individual filling a Key Person’s role at the direction of JPA; or
(b) the individual filling a Key Person’s role is unavailable due to death, retirement, injury, illness, maternity leave, leave of absence, disability or no longer being employed by the applicable DB-Related Entity (provided that moving to an affiliated company or a Subcontractor is not considered grounds for avoiding liquidated damages), provided that in either scenario above, Design-Builder promptly proposes to JPA a satisfactory replacement for such individual for review and approval within 30 days of unavailability, and JPA, in its sole discretion, approves that replacement.
Key Personnel Liquidated Damages. Except for under those circumstances where the Progressive Contractor is not liable under Section 5.3 (Key Personnel), if the Department is entitled to assess Key Personnel Liquidated Damages under such under Section 5.3 (Key Personnel), then the amount of Liquidated Damages will be determined under Table 3 to Exhibit C (Progressive Contractor Team). The Progressive Contractor acknowledges and agrees that such Key Personnel Liquidated Damages are intended to compensate the Department solely for the Progressive Contractor’s failure to staff the Project with those individual persons proposed or thereafter agreed by the Department as Key Personnel. Payment of Key Personnel Liquidated Damages shall not excuse the Progressive Contractor from liability from any other breach of the Contract Documents.
Key Personnel Liquidated Damages
