evaluate the Acceleration Plan. Any revisions to the Acceleration Plan necessary
as a result of this review shall be resubmitted to Owner no later than the tenth
(10th) Business Day after such meeting or such other date as may be agreed in
writing by the Parties, and Owner will have the right to accept or reject such
revised Acceleration Plan. The agreed Acceleration Plan shall be the schedule
which Contractor shall use in planning, organizing, directing, coordinating,
performing, and executing that portion of the Work that is affected by such
acceleration, with the CPM Schedule governing the performance of all other Work.
(c)
Owner's review and acceptance of the Acceleration Plan shall not
constitute an independent evaluation or determination by Owner of the
workability, feasibility, or reasonableness of that schedule.
ARTICLE 5
PROJECT PERFORMANCE
5.1
Guaranteed Performance Levels. Contractor guarantees that each Stage will
meet all of the Guaranteed Performance Levels for such Stage under the
Performance Conditions during the applicable Performance Tests or Contractor
shall take the actions provided for in Section 9.10.
5.2
Liquidated Damages.
5.2.1
Performance Damage Amounts. If a Stage meets the Minimum Performance
Standards but fails to meet the Guaranteed Performance Levels by the last
Performance Test conducted by Contractor prior to the Guaranteed Substantial
Completion Date, Contractor shall take the actions to cure the applicable
deficiencies and pay to Owner the Performance Liquidated Damages in accordance
with Section 9.10 and Appendix G, as applicable.
5.2.2
Performance LD Cap; Performance Liquidated Damages Not a Penalty.
(a)
Contractor's maximum liability to Owner for Performance Liquidated
Damages for a Stage is the Performance LD Cap for such Stage.
(b)
THE PARTIES HEREBY ACKNOWLEDGE AND AGREE THAT IT WOULD BE DIFFICULT IF
NOT IMPOSSIBLE TO ASCERTAIN AND QUANTIFY THE ACTUAL DAMAGES THAT OWNER WOULD
INCUR IF CONTRACTOR SHOULD FAIL TO MEET ANY OF THE GUARANTEED PERFORMANCE
LEVELS. ACCORDINGLY, IT IS EXPRESSLY AGREED THAT THE PERFORMANCE LIQUIDATED
DAMAGES
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PAYABLE UNDER THIS AGREEMENT DO NOT CONSTITUTE A PENALTY AND THAT THE PARTIES,
HAVING NEGOTIATED IN GOOD FAITH FOR SUCH SPECIFIC PERFORMANCE DAMAGES AND HAVING
AGREED THAT THE AMOUNT OF SUCH PERFORMANCE LIQUIDATED DAMAGES IS REASONABLE IN
LIGHT OF THE ANTICIPATED HARM CAUSED BY THE BREACH RELATED THERETO, ARE ESTOPPED
FROM CONTESTING THE VALIDITY OR ENFORCEABILITY OF THE RATE OF PERFORMANCE
LIQUIDATED DAMAGES ON THE BASIS THAT SUCH RATE CONSTITUTES A PENALTY OR IS
OTHERWISE UNENFORCEABLE OR INVALID.
(c)
PAYMENT OF ANY PERFORMANCE LIQUIDATED DAMAGES FOR A STAGE WITH RESPECT TO
ANY WORK SHALL BE IN ADDITION TO, AND NOT IN LIEU OF, CONTRACTOR'S OTHER
OBLIGATIONS UNDER THIS AGREEMENT. NOTWITHSTANDING THE FOREGOING, SUBJECT TO
CONTRACTOR HAVING ACHIEVED THE MINIMUM PERFORMANCE STANDARDS AND OWNER'S RIGHTS
AND REMEDIES PURSUANT TO SECTION 9.10, AND SECTION 21.2, PERFORMANCE LIQUIDATED
DAMAGES SHALL BE THE SOLE AND EXCLUSIVE REMEDY OF OWNER AND COMMON FACILITIES
OWNER FOR THE FAILURE OF CONTRACTOR TO ACHIEVE THE GUARANTEED PERFORMANCE LEVELS
TO WHICH SUCH MINIMUM PERFORMANCE STANDARDS APPLY; PROVIDED, THAT THE FOREGOING
SHALL NOT BE CONSTRUED OR DEEMED TO LIMIT