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4443 service commitment in entering into this Agreement. The Parties further recognize that 4444 quantified standards of performance are necessary and appropriate to ensure consistent 4445 and reliable service. The Parties further recognize that if Contractor fails to achieve the 4446 performance standards, Agency and its residents will suffer damages and that it is and 4447 will be impracticable and extremely difficult to ascertain and determine the exact amount 4448 of damages that Agency will suffer. Therefore, the Parties agree that the Liquidated 4449 Damage amounts listed in Attachment J and the Performance Disincentive amounts 4450 listed in Attachment I represent a reasonable estimate of the amount of such damages 4451 considering all of the circumstances existing on the date of this Agreement, including the 4452 relationship of the sums to the range of harm to Agency that reasonably could be 4453 anticipated and recognition that proof of actual damages would be costly or 4454 inconvenient. By initialing the places provided, each Party specifically confirms the 4455 accuracy of the statements made above and the fact that each Party had ample 4456 opportunity to consult with legal counsel and obtain an explanation of this liquidated 4457 damage provision at the time that this Agreement was made. 4458 Contractor Initial Here: � Agency Initial Here:' y 4459 Contractor agrees to pay (as liquidated damages and not as a penalty) the amount set 4460 forth in Attachments J and I. 4461 In addition to considering the reports submitted by Contractor pursuant to Article 9, 4462 Agency may determine the occurrence of events giving rise to Liquidated Damages or 4463 Performance Disincentives through the observation of its own employees or agents, 4464 through discussions with Customers, and through investigation of Customer Complaints 4465 made directly to Agency. Prior to assessing Liquidated Damages or Performance 4466 Disincentives based on such observations or investigations, Agency shall give 4467 Contractor notice of its intention to do so. The notice will include a brief description of 4468 the incidents)/non-performance. Contractor may review (and make copies at its own 4469 expense) all non -confidential information in the possession of Agency relating to 4470 incident(s)/non-performance. Contractor may, within ten (10) Days after receiving the 4471 notice, request a meeting with Agency's Manager or his or her designee. Contractor 4472 may present evidence in writing and through testimony of its employees and others 4473 relevant to the incident(s)/non-performance. Agency's Manager or his or her designee 4474 will provide Contractor with a written explanation of his or her determination on each 4475 incident(s)/non-performance prior to authorizing the assessment of Liquidated Damages 4476 or Performance Disincentives. The decision of Agency's Manager or his or her designee 4477 shall be final. 4478 Agency's right to recover Liquidated Damages for Contractor's failure to meet the 4479 service performance standards shall not preclude Agency from obtaining equitable relief 4480 for persistent failures to meet such standards nor from terminating the Agreement for 4481 such persistent failures. 4482 14.08 AGENCY DEFAULT 4483 Agency shall be in default under this Agreement ("Agency default") in the event Agency 4484 commits a material breach of the Agreement and fails to cure such breach within thirty 4485 (30) Days after receiving notice from the Contractor specifying the breach, provided that 4486 if the nature of the breach is such that it will reasonably require more than thirty (30) 4487 Days to cure, Agency shall not be in default so long as Agency promptly commences the 4488 cure and diligently proceeds to completion of the cure. REV: 03-16-18 MI Page 110 of 126 ATTY/AGR.2018.054/Recology of San Mateo