Common use of Schedule Liquidated Damages Clause in Contracts

Schedule Liquidated Damages. Vendor understands that if Vendor does not support EPC Contractor’s achievement of Substantial Completion by the Guaranteed Substantial Completion Date, as both terms are defined in the ECC, through the timely performance of it Scope of Work, as specified hereunder, and under the CPSFA, Owner will suffer damages which are difficult to determine and accurately specify. Vendor agrees, to pay liquidated damages for delay, subject to the limitations set forth in this Section 8.3.1, in Section 8.3.3 and in Article 21 (“Delay Liquidated Damages”) as follows: For each day that the steam output of the Solar Field and SRSG is insufficient (as defined in Section 8.2.3 of the Scope Book, as defined in the ECC) to enable the EPC Contractor to achieve Substantial Completion by the Guaranteed Substantial Completion Date under the ECC, and such failure is due to Vendor’s breach of the Solar Field and SRSG Performance Guarantee under this Agreement, or a failure of Vendor’s performance under the CPSFA, and not due to the Owner’s, EPC Contractor’s or Operator’s improper storage, handling, installation, erection, commissioning, start-up, operation or maintenance of the Solar Field or SRSG (excluding commissioning and start-up services with respect to the Leased Tools and the Solar Field provided by Vendor, its Affiliates or subcontractors) or to the EPC Contractor’s conduct of his other work under the ECC, Vendor shall pay to Owner, as Delay Liquidated Damages, [*] subject to a limitation equal to the lesser of: (i) an aggregate cap for such Delay Liquidated Damages under this Agreement of [*]; or (ii) a combined aggregate cap for such Delay Liquidated Damages and any delay liquidated damages assessed against and paid by Vendor or its Affiliates under the SFSS in respect of the failure to achieve Substantial Completion by the Guaranteed Substantial Completion Date under the ECC of [*]; provided, that in no event shall Vendor and its Affiliates be liable for more than [*] for each day of delay under this Agreement and the SFSS in the cumulative aggregate. Vendor shall not be liable for Delay Liquidated Damages during any period of time for which an extension of the Scheduled Substantial Completion Date is available under the ECC due to a Change Event (as defined in the ECC) unless such extension arises pursuant to Section 11.1.3 of the ECC due by a defect in the “Solar Field Equipment” or “Solar Receiver Steam Generator”, as such terms are defined in the ECC, for which the EPC Contractor is not responsible. Such Delay Liquidated Damages shall be paid as agreed stipulated damages, and not as a penalty. The Parties acknowledge and agree that the Delay Liquidated Damages are reasonable in the light of the difficulty of ascertaining as of the Effective Date the loss that Owner will sustain if Substantial Completion is not achieved by the Guaranteed Substantial Completion Date (as defined in the ECC). In the light of the difficulty of estimating the actual effect of a failure to achieve Substantial Completion by the Guaranteed Substantial Completion Date, the Parties agree that the Delay Liquidated Damages shall apply regardless of the actual amount of damage that may be suffered by Owner. Vendor shall pay any Delay Liquidated Damages monthly within thirty (30) Days of receipt of notice from Owner, delivered after the end of any month during which such damages accrued. Each such notice shall specify the amount of such damages due and payable and shall include reasonable data and calculations on the basis of which such damages have been determined to be due and payable by Vendor and assessed by Owner. Owner will have the right to offset any liability of Vendor under this Section 8.3.1 against any amount due or to become due from Owner to Vendor under this Agreement.