AgdaPkt 2018-03-26 Joint SA PFA - Laserfiche WebLink

Browse Search

REV: 03-16-18 MI ATTY/AGR/2018.054/RECOLOGY OF SAN MATEO Page 108 of 119 and reliable service. The Parties further recognize that if Contractor fails to achieve the 4361 performance standards, Agency and its residents will suffer damages and that it is and will 4362 be impracticable and extremely difficult to ascertain and determine the exact amount of 4363 damages that Agency will suffer. Therefore, the Parties agree that the Liquidated Damage 4364 amounts listed in Attachment J and the Performance Disincentive amounts listed in 4365 Attachment I represent a reasonable estimate of the amount of such damages considering 4366 all of the circumstances existing on the date of this Agreement, including the relationship 4367 of the sums to the range of harm to Agency that reasonably could be anticipated and 4368 recognition that proof of actual damages would be costly or inconvenient. By initialing the 4369 places provided, each Party specifically confirms the accuracy of the statements made 4370 above and the fact that each Party had ample opportunity to consult with legal counsel 4371 and obtain an explanation of this liquidated damage provision at the time that this 4372 Agreement was made. 4373 Contractor Initial Here: ______ Agency Initial Here: _____ 4374 Contractor agrees to pay (as liquidated damages and not as a penalty) the amount set 4375 forth in Attachments J and I. 4376 In addition to considering the reports submitted by Contractor pursuant to Article 9, Agency 4377 may determine the occurrence of events giving rise to Liquidated Damages or 4378 Performance Disincentives through the observation of its own employees or agents, 4379 through discussions with Customers, and through investigation of Customer Complaints 4380 made directly to Agency. Prior to assessing Liquidated Damages or Performance 4381 Disincentives based on such observations or investigations, Agency shall give Contractor 4382 notice of its intention to do so. The notice will include a brief description of the 4383 incident(s)/non-performance. Contractor may review (and make copies at its own 4384 expense) all non-confidential information in the possession of Agency relating to 4385 incident(s)/non-performance. Contractor may, within ten (10) Days after receiving the 4386 notice, request a meeting with Agency's Manager or his or her designee. Contractor may 4387 present evidence in writing and through testimony of its employees and others relevant to 4388 the incident(s)/non-performance. Agency's Manager or his or her designee will provide 4389 Contractor with a written explanation of his or her determination on each incident(s)/non-4390 performance prior to authorizing the assessment of Liquidated Damages or Performance 4391 Disincentives. The decision of Agency's Manager or his or her designee shall be final. 4392 Agency’s right to recover Liquidated Damages for Contractor’s failure to meet the service 4393 performance standards shall not preclude Agency from obtaining equitable relief for 4394 persistent failures to meet such standards nor from terminating the Agreement for such 4395 persistent failures. 4396 14.08 AGENCY DEFAULT 4397 Agency shall be in default under this Agreement (“Agency default”) in the event Agency 4398 commits a material breach of the Agreement and fails to cure such breach within thirty 4399 (30) Days after receiving notice from the Contractor specifying the breach, provided that 4400 if the nature of the breach is such that it will reasonably require more than thirty (30) Days 4401 to cure, Agency shall not be in default so long as Agency promptly commences the cure 4402 and diligently proceeds to completion of the cure. 4403 In the event of an asserted Agency default, Contractor shall continue to perform all of its 4404 obligations hereunder until a court of competent jurisdiction has issued a final judgment 4405 declaring that Agency is in default. 4406 6.2.B. - Page 121