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BFrS PROPOSED TERMS AND CONDITIONS <br /> (continued) <br /> <br /> maximum 10% annual increase in this surcharge. See Exhibit 1.) <br /> <br /> 2. If such a surcharge yields an operating ratio less than 91% on operating costs and <br /> BFI has not been compensated for one half of its actual loses from recycling <br /> operations between the March 1, 1889, and October 1,1992 (currently these losses <br />'-' are estimated to equal a total of $3.8 million) then. <br /> <br /> a. if the lower operating ratio results from the sale of recyclables or from BFI's <br /> affirmative action to reduce costs, then the surcharge shall be allowed to <br /> decline by 1/2 the value of the sale of recyclables. <br /> <br /> b. If the lower operating ratio results from any other cause, then the surcharge <br /> shall be adjusted to yield the operating ratio referenced above. <br /> <br />vii. Default: <br /> <br /> A. The SBTSA shall be in default if it fails to perform its obligations under this agreement <br /> and fails to cure the breach within thirty days (or commences the cure if not fully <br /> curable within thirty days). <br /> <br /> B. BFI shall be in default if it fails to perform its obligations under this agreement and fails <br /> to cure the breach within thirty days (or commences the cure if not fully curable within <br /> thirty days). In the event of BFI's matedal default, the SBTSA may suspend or terminate <br /> the agreement and BFI shall pay any additional costs of performance by another <br /> contractor selected by the SBTSA. <br /> <br />VIII. Guarantee: <br /> <br />BFI of California shall guarantee BFi of San Mateo County's performance of this agreement in a <br />form acceptable to the SBTSA. <br /> <br />IX. Indemnification <br /> <br /> A. General: BFI shall indemnify the SBTSA and member agencies against claims arising <br /> out of BFI's 'negligence or failure of performance under this agreement in a format <br /> acceptable to the SBTSA. <br /> <br /> B. AB 939 Indemnification: BFI shall protect, defend with counsel approved by the SBTSA, <br /> and indemnify the SBTSA and its member agencies against all fines or penalties <br /> imposed by the California Integrated Waste Management Board in the event the source <br /> <br /> Page 4 of 5 <br /> <br /> <br />