Agdapkt 2010-12-06 clsd and regular

Browse Search

6.3A Page 53 1 this Agreement. The Parties further recognize that quantified standards of performance 2 are necessary and appropriate to ensure consistent and reliable service. The Parties 3 further recognize that if Contractor fails to achieve the performance standards identified 4 in Attachment 10, the Authority will suffer damages and that it is and will be 5 impracticable and extremely difficult to asce�tain and determine the exact amount of 6 damages that the Authority will suffer. Therefore, the Parties agree that the liquidated 7 damage amounts listed on Attachment 10 represent a reasonable estimate of the 8 amount of such damages considering all of the circumstances existing on the date of this 9 Agreement, including the relationship of the sums to the range of harm to the Authority 10 that reasonably could be anticipated and anticipation that proof of actual damages would 11 be costly or inconvenient. In placing their initials at the places provided, each party 12 specifically confirms the accuracy of the statements made above and the fact that each 13 party had ample opportunity to consult with legal counsel and obtain an explanation of 14 this liquidated damage provision at the time that this Agreement was made. 15 Contractor Initial Here: Authority Initial Here: 16 Contractor agrees to pay (as liquidated damages and not as a penalty) the amount set 17 forth on Attachment 10. 18 The Authority may determine the occurrence of events giving rise to liquidated damages 19 based upon any or all of the following: Contractor's reporting pursuant ta Article 9 of this 20 Agreement; the observation of the Authority's or Contractor's employees, agents or 21 representatives; and/or through investigation and/or reports by any third party or parties. 22 The Authority may assess liquidated damages for each calendar day or event, as 23 appropriate, that Contractor is determined to be liable in accordance with this 24 Agreement. 25 Contractor shall pay any liquidated damages assessed by the Authority within ten (10) 26 days after they are assessed. 27 The Authority's right to recover liquidated damages for Contractor's failure to meet the 28 service pertormance standards shall not preclude Authority from obtaining equitable 29 relief for persistent failures to meet such standards nor from terminating the Agreement 30 for such persistent failures. 31 Notwithstanding any other provision of this Agreement, if this Paragraph 11.07, 32 Attachment 10, or any provision or requirement contained in eithe�, is set aside or 33 invalidated by a court for any reason, the provision and/or requirement that is set aside 34 or invalidated shall be severed from the rest of this Agreement, and the Authority shall 35 reserve and be entitled to any and alf other rights and remedies available under this 36 Agreement, law and equity. 37 11.08 AUTHORITY DEFAULT 38 The Authority shall be in default under this Agreement ("Authority Default") in the event 39 the Authority commits a material breach of the Agreement and fails to cure such breach 40 within thirty (30) days after receiving notice from the Contractor specifying the breach, 41 provided that if the nature of the breach is such that it will reasonably require more than 42 thirty (30) days to cure, the Authority shall not be in default so long as the Authority 43 promptly commences the cure and diligently proceeds to completion of the cure. 44 In the event of an asserted Authority Default, Contractor shall continue to perform all of 45 its obligations hereunder until a court of competent jurisdiction has issued a final 46 judgment declaring that the Authority is in default. Operating Agreement for Shoreway Center Page - 44 - 7/30/09