2016-08-10_GENERAL DOCUMENTS - M1981185 (2)

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whether the conditions constitute a Force Majeure event or whether the length of time for fulfilling the provision of the Consent Decree at issue should be extended, any party may seek a resolution of the dispute under the procedures in Section VIII of this Consent Decree. 35. Proof of Force Majeure Event. Defendants shall bear the burden of proving by a preponderance of the evidence that (1) the noncompliance at issue was caused by circumstances entirely beyond. the control of Defendants and any entity controlled by Defendants, including their contractors and consultants; (2) Defendants or any entity controlled by Defendants could not have foreseen and prevented. such noncompliance; and (3) the number of days of noncompliance that were caused by such circumstances. X. STIPULATED PENALTIES 36. Stipulated Penalties. After entry of this Consent Decree, if either Defendant fails to timely fulfill any requirement of the Consent Decree, Defendants shall pay a stipulated penalty to the United States for each violation of each requirement of this Consent Decree as follows: A. For Day 1 up to and including Day 30 of noncompliance, $1,000 per day. B. For Day 31 up to and including Day 60 of noncompliance, $2,000 per day. C. For Day 61 and beyond of noncompliance, $3,000 per day. Such. payments shall be made by the Defendants) without demand by the United States on or before the last day of the month following the month in which the stipulated penalty accrued. 37. Disputes Re ardin~ Stipulated Penalties. Any disputes concerning the amount of stipulated penalties, or the underlying violation that gives rise to the stipulated penalties, that cannot be resolved by the parties pursuant to the Dispute Resolution provisions in Section VIII and/or the Force Majeure provisions in Section IX shall be resolved upon motion to this —14— Case 1:16-cv-02008-WYD Document 2 Filed 08/08/16 USDC Colorado Page 16 of 82