Common use of Liability and Damages Clause in Contracts

Liability and Damages. 15.1 The Parties agree that the failure of any Party to perform its obligations under this Agreement (exclusive of a Party’s breach of its obligation under this Agreement to make in a timely manner a payment to a Constructing Party with respect to any Cost of Work performed by such Constructing Party or to bear such Cost) may result in damages to other Parties, but that such damages are indefinite and difficult to quantify. Therefore, in lieu of any other remedy for monetary damages, the Parties agree that in the event of a material breach of this Agreement by any Party (“Breaching Party”) that is not cured within a period of sixty (60) days following such Breaching Party’s receipt of written notice from any other Party of such breach, the Breaching Party shall pay to ColumbiaGrid the following amounts as liquidated damages and not as a penalty: 15.1.1 For each day that a Party, by breaching its obligation to use reasonable efforts to perform Work for which it is responsible pursuant to Appendix B, causes the [insert name of EOP] EOP not to be completed and placed in commercial operation by the Target Date (or causes the [insert name of EOP] EOP to be placed in commercial operation after the Target Date), the sum of $500 per day up to a maximum aggregate total for all such breaches by such Breaching Party of $50,000. 15.1.2 For each material breach of this Agreement other than a breach described in section 15.1.1, the sum of $10,000, up to a maximum aggregate total for all such breaches by such Breaching Party of $50,000; 15.2 Except as provided in section 15.1.1 or in section 15.1.2 and except as provided with respect to restitution in section 11.1, no Party shall be liable under this Agreement to any other Party for monetary damages for breach of this Agreement, and each Party hereby waives all remedies for monetary damages for breach of this Agreement except as provided in such sections. All other equitable remedies (other than for the payment of money) for breach of this Agreement that may be available as between ColumbiaGrid and a Breaching Party are preserved, subject to the requirements of law and any regulatory authority having jurisdiction. 15.3 Notwithstanding this section 15 or any other provision of this Agreement, nothing in this Agreement shall amend or modify the WIS Agreement as it relates to parties thereto, including any Parties. 15.4 In no event shall any Party have any right against any other Party to specific performance of this Agreement. Nothing in this Agreement shall limit any Party’s right to declaratory judgment with respect to declaration of any rights or obligations of any Party under this Agreement.

Liability and Damages. 15.1 The Parties agree that the failure of any Party to perform its obligations under this Agreement (exclusive of a Party’s breach of its obligation under this Agreement to make in a timely manner a payment to a Constructing Party with respect to any Cost of Work performed by such Constructing Party or to bear such Cost) may result in damages to other Parties, but that such damages are indefinite and difficult to quantify. Therefore, in lieu of any other remedy for monetary damages, the Parties agree that in the event of a material breach of this Agreement by any Party (“Breaching Party”) that is not cured within a period of sixty (60) days following such Breaching Party’s receipt of written notice from any other Party of such breach, the Breaching Party shall pay to ColumbiaGrid the following amounts as liquidated damages and not as a penalty: 15.1.1 For each day that a Party, by breaching its obligation to use reasonable efforts to perform Work for which it is responsible pursuant to Appendix B, causes the [insert name of EOP] EOP not to be completed and placed in commercial operation by the Target Date (or causes the [insert name of EOP] EOP to be placed in commercial operation after the Target Date), the sum of $500 per day up to a maximum aggregate total for all such breaches by such Breaching Party of $50,000. 15.1.2 For each material breach of this Agreement other than a breach described in section 15.1.1, the sum of $10,000, up to a maximum aggregate total for all such breaches by such Breaching Party of $50,000; 15.2 Except as provided in section 15.1.1 or in section 15.1.2 and except as provided with respect to restitution in section 11.1, no Party shall be liable under this Agreement to any other Party for monetary damages for breach of this Agreement, and each Party hereby waives all remedies for monetary damages for breach of this Agreement except as provided in such sections. All other equitable remedies (other than for the payment of money) for breach of this Agreement that may be available as between ColumbiaGrid and a Breaching Party are preserved, subject to the requirements of law and any regulatory authority having jurisdiction. 15.3 Notwithstanding this section 15 or any other provision of this Agreement, nothing in this Agreement shall amend or modify the WIS Agreement as it relates to parties thereto, including any Parties. 15.4 The following provision of this section 15.4 shall apply if a Party is a United States government entity (including, but not limited to, a federal power marketing administration): the United States, including Bonneville Power Administration, is liable for torts of its officers, agents, and employees arising out of or with respect to this Agreement only as permitted by the Federal Tort Claims Act, as amended. 15.5 In no event shall any Party have any right against any other Party to specific performance of this Agreement. Nothing in this Agreement shall limit any Party’s right to declaratory judgment with respect to declaration of any rights or obligations of any Party under this Agreement.