Common use of Delay Liquidated Damages Clause in Contracts

Delay Liquidated Damages. TSP and the Joint Board acknowledge that in the event that TSP fails to achieve the Pre-Toll Operations Readiness, Mobilization Readiness, East-End Bridge Tolling Readiness, Downtown Bridges Temporary Traffic Configuration Tolling Readiness, or Downtown Bridges Final Traffic Configuration Tolling Readiness by the relevant Completion Deadlines, the Joint Board shall incur damages that are incapable of accurate measurement. Such damages include additional costs to the Joint Board of administering this Contract (including engineering, management, legal, accounting, overhead and other administrative costs) with respect to failure to achieve Mobilization Readiness by the Mobilization Readiness Deadline, and loss of toll revenues, together with additional costs to the Joint Board of administering this Contract and additional costs with respect to a failure to achieve Pre-Toll Operations Readiness, and Tolling Readiness by the relevant TCS Completion Deadlines. These damages are incapable of exact measurement because of, among other things, the unique nature of the Ohio River Bridges Project. The Parties agree that as of the Execution Date, the amounts of Delay Liquidated Damages set forth in Sections 4.12.2 through and including 4.12.4 represent a good faith estimate as to a portion only of the potential actual damages that the Joint Board would incur as a result of late Pre-Toll Operations Readiness, Mobilization Readiness or Tolling Readiness and do not constitute a penalty. TSP shall pay any such Delay Liquidated Damages owing under this Contract on a monthly basis within five days following receipt of the Joint Board’s written demand therefor, and such Delay Liquidated Damages shall be subject to offset by the Joint Board. All Delay Liquidated Damages payable hereunder shall be paid directly to the Joint Board. The fact that the Joint Board has agreed to accept Delay Liquidated Damages as compensation for its damages associated with any delay in meeting a Completion Deadline shall not preclude the Joint Board from exercising its other rights and remedies respecting the delay set forth in Section 16.2 and, if applicable, Section 16.3 or elsewhere in this Contract, other than the right to collect other damages due solely to the delay, except that the Joint Board agrees not to exercise such other rights and remedies respecting the delay so long as (a) the Project Schedule demonstrates that TSP is capable of meeting such Completion Deadline within 90 Days after the Completion Deadline, and (b) TSP diligently performs the Work in accordance with said schedule. Notwithstanding the foregoing, TSP shall not be responsible for the payment of Delay Liquidated Damages if (i) TSP has fully complied with its obligations regarding coordination with the ETC Contractor; (ii) TSP has fully complied with the inspection, review, testing, oversight and commissioning obligations of the TSP regarding the Joint Board-Provided ETC Equipment; and (iii) notwithstanding clauses (i)-(ii) herein, the sole and direct cause of the failure of the TCS to meet the applicable milestones set forth in this Section 4.12 is a Latent Defect in the Joint Board-Provided ETC Equipment. TSP shall bear the burden of proof that the conditions in clauses (i) through (iii) herein are satisfied.

Delay Liquidated Damages. TSP and the Joint Board acknowledge that in the event that TSP fails to achieve the Pre-Toll Operations Readiness, Mobilization Readiness, East-End Bridge Tolling Readiness, Downtown Bridges Temporary Traffic Configuration Tolling Readiness, or Downtown Bridges Final Traffic Configuration Tolling Readiness by the relevant Completion Deadlines, the Joint Board shall incur damages that are incapable of accurate measurement. Such damages include additional costs to the Joint Board of administering this Contract (including engineering, management, legal, accounting, overhead and other administrative costs) with respect to failure to achieve Mobilization Readiness by the Mobilization Readiness Deadline, and loss of toll revenues, together with additional costs to the Joint Board of administering this Contract and additional costs with respect to a failure to achieve Pre-Toll Operations Readiness, and Tolling Readiness by the relevant TCS Completion Deadlines. These damages are incapable of exact measurement because of, among other things, the unique nature of the Ohio River Bridges Project. The Parties agree that as of the Execution Date, the amounts of Delay Liquidated Damages damages set forth in Sections 4.12.2 through and including 4.12.4 represent a good faith estimate as to a portion only of the potential actual damages that the Joint Board would incur as a result of late Pre-Toll Operations Readiness, Mobilization Readiness or Tolling Readiness and do not constitute a penalty. TSP shall pay any such Delay Liquidated Damages owing under this Contract on a monthly basis within five days following receipt of the Joint Board’s written demand therefor, and such Delay Liquidated Damages shall be subject to offset by the Joint Board. All Delay Liquidated Damages payable hereunder shall be paid directly to the Joint Board. The fact that the Joint Board has agreed to accept Delay Liquidated Damages as compensation for its damages associated with any delay in meeting a Completion Deadline shall not preclude the Joint Board from exercising its other rights and remedies respecting the delay set forth in Section 16.2 and, if applicable, Section 16.3 or elsewhere in this Contract, other than the right to collect other damages due solely to the delay, except that the Joint Board agrees not to exercise such other rights and remedies respecting the delay so long as (a) the Project Schedule demonstrates that TSP is capable of meeting such Completion Deadline within 90 Days after the Completion Deadline, and (b) TSP diligently performs the Work in accordance with said schedule. Notwithstanding the foregoing, TSP shall not be responsible for the payment of Delay Liquidated Damages if (i) TSP has fully complied with its obligations regarding coordination with the ETC Contractor; (ii) TSP has fully complied with the inspection, review, testing, oversight and commissioning obligations of the TSP regarding the Joint Board-Provided ETC Equipment; and (iii) notwithstanding clauses (i)-(ii) herein, the sole and direct cause of the failure of the TCS to meet the applicable milestones set forth in this Section 4.12 is a Latent Defect in the Joint Board-Provided ETC Equipment. TSP shall bear the burden of proof that the conditions in clauses (i) through (iii) herein are satisfied.

Delay Liquidated Damages. TSP If Contractor has not achieved Project Substantial Completion by the Guaranteed Project Substantial Completion Date (as such date may be extended pursuant to Article 8 as a result of the occurrence of a Force Majeure Event or the occurrence of a Scope Change pursuant to Article 9), Contractor shall pay to Owner, as liquidated damages and as Owner’s sole and exclusive remedy for such late completion, [**] ($[**]) per incomplete WTG per Day following the Joint Board acknowledge Guaranteed Project Substantial Completion Date until the date that Contractor delivers to Owner a WTG Substantial Completion Certificate that is accepted by Owner (“Delay Liquidated Damages”); provided, however, in the event that TSP fails to achieve Contractor achieves Project Substantial Completion within a period of sixty (60) Days after the Pre-Toll Operations Readiness, Mobilization Readiness, East-End Bridge Tolling Readiness, Downtown Bridges Temporary Traffic Configuration Tolling Readiness, or Downtown Bridges Final Traffic Configuration Tolling Readiness by the relevant Guaranteed Project Substantial Completion Deadlines, the Joint Board shall incur damages that are incapable of accurate measurement. Such damages include additional costs to the Joint Board of administering this Contract (including engineering, management, legal, accounting, overhead and other administrative costs) with respect to failure to achieve Mobilization Readiness by the Mobilization Readiness Deadline, and loss of toll revenues, together with additional costs to the Joint Board of administering this Contract and additional costs with respect to a failure to achieve Pre-Toll Operations Readiness, and Tolling Readiness by the relevant TCS Completion Deadlines. These damages are incapable of exact measurement because of, among other things, the unique nature of the Ohio River Bridges Project. The Parties agree that as of the Execution Date, the amounts of then Owner will refund to Contractor all Delay Liquidated Damages set forth in Sections 4.12.2 through and including 4.12.4 represent a good faith estimate as to a portion only of the potential actual damages that the Joint Board would incur as a result of late Pre-Toll Operations Readiness, Mobilization Readiness or Tolling Readiness and do not constitute a penaltyhave been paid by Contractor. TSP shall pay any such Delay Liquidated Damages owing under this Contract on a monthly basis within five days following receipt of the Joint Board’s written demand therefor, and such Delay Liquidated Damages shall be subject to offset by due and payable in weekly installments beginning with the Joint Boardseventh (7th) Day following the first (1st) Day after the Guaranteed Project Substantial Completion Date. All Delay Liquidated Damages payable hereunder shall be paid directly Subject to the Joint Board. The fact that the Joint Board has agreed to accept Delay Liquidated Damages as compensation for its damages associated with any delay in meeting a Completion Deadline shall not preclude the Joint Board from exercising its other rights and remedies respecting the delay provisions set forth in Section 16.2 and11.1, if applicableContractor shall continue to make such payments of Delay Liquidated Damages for each incomplete WTG until achievement of Project Substantial Completion, Section 16.3 or elsewhere in this Contract, other than the right to collect other damages at which time Contractor shall pay all previously accrued and unpaid Delay Liquidated Damages amounts. Any Delay Liquidated Damages not paid when due solely to the delay, except that the Joint Board agrees not to exercise such other rights and remedies respecting the delay so long as (a) the Project Schedule demonstrates that TSP is capable of meeting such Completion Deadline within 90 Days after the Completion Deadline, and (b) TSP diligently performs the Work shall bear interest at a rate calculated in accordance with said scheduleSection 4.8. Notwithstanding the foregoing, TSP In no event shall not be responsible for the payment of Delay Liquidated Damages if (i) TSP excuse Contractor from performance of any of its other obligations hereunder, including the obligation to cause Project Substantial Completion to occur. ______________________ [**] Denotes confidential information that has fully complied with its obligations regarding coordination been omitted from the exhibit and filed separately, accompanied by a confidential treatment request, with the ETC Contractor; (ii) TSP has fully complied with the inspection, review, testing, oversight Securities and commissioning obligations Exchange Commission pursuant to Rule 24b-2 of the TSP regarding the Joint Board-Provided ETC Equipment; and (iii) notwithstanding clauses (i)-(ii) herein, the sole and direct cause Securities Exchange Act of the failure of the TCS to meet the applicable milestones set forth in this Section 4.12 is a Latent Defect in the Joint Board-Provided ETC Equipment1934. TSP shall bear the burden of proof that the conditions in clauses (i) through (iii) herein are satisfied.50

Delay Liquidated Damages. TSP and the Joint Board acknowledge that in the event that TSP fails to achieve the Pre-Toll Operations Readiness, Mobilization Readiness, East-End Bridge Tolling Readiness, Downtown Bridges Temporary Traffic Configuration Tolling Readiness, or Downtown Bridges Final Traffic Configuration Tolling Readiness by the relevant Completion Deadlines, the Joint Board shall incur damages that are incapable of accurate measurement. Such damages include additional costs to the Joint Board of administering this Contract (including engineering, management, legal, accounting, overhead and other administrative costs) with respect to failure to achieve Mobilization Readiness by the Mobilization Readiness Deadline, and loss of toll revenues, together with additional costs to the Joint Board of administering this Contract and additional costs with respect to a failure to achieve Pre-Toll Operations Readiness, and Tolling Readiness by the relevant TCS Completion Deadlines. These damages are incapable of exact measurement because of, among other things, the unique nature of the Ohio Indiana Finance Authority/Joint Board 56. Toll Services Agreement LSIORB Toll Services Project Execution Version River Bridges Project. The Parties agree that as of the Execution Date, the amounts of Delay Liquidated Damages set forth in Sections 4.12.2 through and including 4.12.4 represent a good faith estimate as to a portion only of the potential actual damages that the Joint Board would incur as a result of late Pre-Toll Operations Readiness, Mobilization Readiness or Tolling Readiness and do not constitute a penalty. TSP shall pay any such Delay Liquidated Damages owing under this Contract on a monthly basis within five days following receipt of the Joint Board’s written demand therefor, and such Delay Liquidated Damages shall be subject to offset by the Joint Board. All Delay Liquidated Damages payable hereunder shall be paid directly to the Joint Board. The fact that the Joint Board has agreed to accept Delay Liquidated Damages as compensation for its damages associated with any delay in meeting a Completion Deadline shall not preclude the Joint Board from exercising its other rights and remedies respecting the delay set forth in Section 16.2 and, if applicable, Section 16.3 or elsewhere in this Contract, other than the right to collect other damages due solely to the delay, except that the Joint Board agrees not to exercise such other rights and remedies respecting the delay so long as (a) the Project Schedule demonstrates that TSP is capable of meeting such Completion Deadline within 90 Days after the Completion Deadline, and (b) TSP diligently performs the Work in accordance with said schedule. Notwithstanding the foregoing, TSP shall not be responsible for the payment of Delay Liquidated Damages if (i) TSP has fully complied with its obligations regarding coordination with the ETC Contractor; (ii) TSP has fully complied with the inspection, review, testing, oversight and commissioning obligations of the TSP regarding the Joint Board-Provided ETC Equipment; and (iii) notwithstanding clauses (i)-(ii) herein, the sole and direct cause of the failure of the TCS to meet the applicable milestones set forth in this Section 4.12 is a Latent Defect in the Joint Board-Provided ETC Equipment. TSP shall bear the burden of proof that the conditions in clauses (i) through (iii) herein are satisfied.