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D) Power to Obligate Waste Disposal and Complv with this Agreement. On or before the
<br />Commencement Date, (i) any City franchise, contract, lease, or other agreement which is lawfully in effect relating
<br />to or affecting Controllable Waste shall provide, or shall have been amended to provide, that the City shall have the
<br />right without material restriction on and after the Commencement Date to direct the delivery of all Controllable
<br />Waste to a disposal location selected by the City (whether or not such Controllable Waste is delivered to a transfer
<br />station as an intermediate step prior to landfill disposal) and otherwise to comply with its obligations under this
<br />Agreement with respect to Controllable Waste and Franchise Haulers, and (ii) the City shall designate the Disposal
<br />System as the disposal location pursuant to such franchise, contract, lease or other agreement. On and after the
<br />Commencement Date and throughout the Term of this Agreement the City (a) shall not enter into any franchise,
<br />contract, lease, agreement or obligation, issue any permit, license or approval, or adopt any ordinance, resolution or
<br />law which is materially inconsistent with the requirements of the Waste Disposal Covenant, and (b) shall maintain
<br />non-exclusive or exclusive franchises or other contractual arrangements over any City Acceptable Waste which, as
<br />of the Contract Date, is subject to non-exclusive or exclusive franchise or other contractual arrangements. The City
<br />agrees that the County shall be a third party beneficiary of the obligation of Franchise Haulers to deliver
<br />Controllable Waste to the Disposal System, and may directly enforce such obligation through any legal means
<br />available. The City shall notify in writing each Franchise Hauler of the County's third party beneficiary rights.
<br />E) Waste Flow Enforcement. (1) The City, in cooperation with the Department, shall
<br />establish, implement, carry out and enforce a waste flow enforcement program which is sufficient to assure the
<br />delivery of all Controllable Waste to the Disposal System pursuant to and in accordance with the Waste DisposalCovenantfordisposalatthetimesandinthemannerprovidedherein. The waste flow enforcement program shall
<br />consist of amending City franchises, permits or authorizations with all Franchise Haulers, to the extent required bythisSectionandtotheextentallowedbylaw, and shall include in addition, to the extent necessary and appropriateinthecircumstancestoassurecompliancewiththeWasteDisposalCovenant, but shall not be limited to:
<br />i) licensing or permitting Franchise Haulers, upon the condition of compliance with the Waste Disposal Covenant,
<br />ii) providing for and taking appropriate enforcement action under any such franchise, license, or permit, such as but
<br />not limited to the suspension, revocation and termination of collection rights and privileges, the imposition of fines
<br />or collection of damages, and the exercise of injunctive relief against non-complying Franchise Haulers and
<br />iii) causing any Transfer Station to which Controllable Waste is delivered for processing to deliver certification,
<br />under the penalty of perjury, of the amounts of Controllable Waste received and Residue remaining from processing
<br />at such Transfer Station.
<br />2) The City acknowledges and agrees that in the event of a breach of the Waste Disposal Covenant by the
<br />City, the City shall pay the County an amount equal to the amount that the City would have been required to pay to
<br />the County had the Waste Disposal Covenant not been breached, which shall be calculated by (x) subtracting the
<br />number of tons actually delivered during the month(s) of the breach from the number of tons that were delivered
<br />during the same month(s) closest in time when there was no such breach, even if such month(s) closest in time was
<br />prior to the Term, and (y) multiplying such amount by the Contract Rate in effect at the time of such breach (or anyhigherratewithrespecttowhichtheCountyhasprovidednoticepursuanttoSection4.2). In the event that the
<br />County terminates the Waste Disposal Agreement as a result of such breach, the damages due as a result of such
<br />termination shall be equal to (aa) the average monthly deliveries by the City for the twelve months prior to the
<br />commencement of the breach multiplied by (bb) the Contract Rate in effect at the time of such breach (or any higher
<br />rate with respect to which the County has provided notice pursuant to Section 4.2), multiplied by (cc) the number of
<br />months that would have remained in the Term of the Agreement had the termination not occurred. The partiesrecognizethatiftheCityfailstomeetitsobligationshereunder, the County will suffer damages and that it is and
<br />will be impracticable and extremely difficult to ascertain and determine the exact amount of such damages.Therefore, the parties agree that the damages specified above represent a reasonable estimate of the amount of such
<br />damages, considering all of the circumstances existing on the date hereto, including the relationship of the sums to
<br />the range of harm to the County that reasonably could be anticipated and anticipation that proof of actual damageswouldbecostlyorinconvenient. In signing this Agreement, each party specifically confirms the accuracy of the
<br />statements made above and the fact that each party had ample opportunity to consult with legal counsel and obtain
<br />an explanation of this liquidated damage provision at the time that this Agreement was made.
<br />F) Leeal Challenges to Franchise Svstem. The City shall use its best efforts to preserve,
<br />protect and defend its right to exercise and comply with the Waste Disposal Covenant against any challenge thereto,
<br />legal or otherwise (including any lawsuits against the City or the County, whether as plaintiff or defendant), by a
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<br />Execution Copy
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<br />City Council 22 – 17 5/20/2025
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