Agmt10 Recology San Mateo County

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• • • 4164 and Agency has considered and relied on Contractor's representations as to its quality 4165 of service commitment in entering into this Agreement. The Parties further recognize 4166 that quantified standards of performance are necessary and appropriate to ensure 4167 consistent and reliable service. The Parties further recognize that if Contractor fails to 4168 achieve the performance standards, Agency and its residents will suffer damages and 4169 that it is and will be impracticable and extremely difficult to ascertain and determine the 4170 exact amount of damages that Agency will suffer. Therefore, the Parties agree that the 4171 Liquidated Damage amounts listed on Attachment J represent a reasonable estimate of 4172 the amount of such damages considering all of the circumstances existing on the date of 4173 this Agreement, including the relationship of the sums to the range of harm to Agency 4174 that reasonably could be anticipated and recognition that proof of actual damages would 4175 be costly or inconvenient. By initialing the places provided, each party specifically 4176 confirms the accuracy of the statements made above and the fact that each party had 4177 ample opportunity to consult with legal counsel and obtain an explanation of this 4178 Liquidated Damage provision at the time that this Agreement was made. 4179 Contractor Initial Here: 5 Agency Initial Here: 4180 Contractor agrees to pay (as Liquidated Damages and not as a penalty) the amount set 4181 forth in Attachment J. 4182 In addition to considering the reports submitted by Contractor pursuant to Article 9, 4183 Agency may determine the occurrence of events giving rise to Liquidated Damages 4184 through the observation of its own employees or agents,through discussions with 4185 Customers, and through investigation of Customer Complaints made directly to Agency. 4186 Prior to assessing Liquidated Damages based on such observations or investigations, 4187 Agency shall give Contractor notice of its intention to do so. The notice will include a 4188 brief description of the incidents) /non- performance. Contractor may review (and make 4189 copies at its own expense) all non - confidential information in the possession of Agency 4190 relating to incident(s) /non - performance. Contractor may, within ten (10) Days after 4191 receiving the notice, request a meeting with Agency's Manager or his or her designee. 4192 Contractor may present evidence in writing and through testimony of its employees and 4193 others relevant to the incident(s) /non - performance. Agency's Manager or his or her 4194 designee will provide Contractor with a written explanation of his or her determination on 4195 each incident(s) /non- performance prior to authorizing the assessment of Liquidated 4196 Damages. The decision of Agency's Manager or his or her designee shall be final. 4197 Agency's right to recover Liquidated Damages for Contractor's failure to meet the 4198 service performance standards shall not preclude Agency from obtaining equitable relief 4199 for persistent failures to meet such standards nor from terminating the Agreement for 4200 such persistent failures. 4201 14.08 AGENCY DEFAULT 4202 Agency shall be in default under this Agreement ( "Agency default ") in the event Agency 4203 commits a material breach of the Agreement and fails to cure such breach within thirty 4204 (30) Days after receiving notice from the Contractor specifying the breach, provided that 4205 if the nature of the breach is such that it will reasonably require more than thirty (30) 4206 Days to cure, Agency shall not be in default so long as Agency promptly commences the 4207 cure and diligently proceeds to completion of the cure. Franchise Agreement for Collection Services with Recology San Mateo County City of Redwood City ATTY /AGR/2010.014 040510 Page 104 of 115