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number of tons actually delivered during the month(s)of the breach from the number of tons that were delivered during
<br /> the same month(s)closest in time when there was no such breach,even if such month(s)closest in time was prior to
<br /> the Term,and(2)multiplying such amount by the Contract Rate in effect at the time of such breach(or any higher rate
<br /> with respect to which the County has provided notice pursuant to Section 4.2). In the event that the County terminates
<br /> the Agreement as a result of such breach,the damages due as a result of such termination shall be equal to the average
<br /> monthly deliveries by the City for the twelve(12)months prior to the commencement of the breach multiplied by the
<br /> Contract Rate in effect at the time of such breach(or any higher rate with respect to which the County has provided
<br /> notice pursuant to Section 4.2), multiplied by the number of months that would have remained in the Term of the
<br /> Agreement had the termination not occurred. The parties recognize that if the City fails to meet its obligations
<br /> hereunder,the County will suffer damages and that it is and will be impracticable and extremely difficult to ascertain
<br /> and determine the exact amount of such damages. Therefore, the parties agree that the damages specified above
<br /> represent a reasonable estimate of the amount of such damages, considering all of the circumstances existing on the
<br /> date hereto, including the relationship of the sums to the range of harm to the County that reasonably could be
<br /> anticipated and anticipation that proof of actual damages would be costly or inconvenient.In signing this Agreement,
<br /> each party specifically confirms the accuracy of the statements made above and the fact that each party had ample
<br /> opportunity to consult with legal counsel and obtain an explanation of this liquidated damage provision at the time that
<br /> this Agreement was made.
<br /> (F) Legal Challenges to Franchise System.The City shall use its best efforts to preserve,protect
<br /> and defend its right to exercise and comply with the Waste Disposal Covenant against any challenge thereto, legal or
<br /> otherwise(including any lawsuits against the City or the County, whether as plaintiff or defendant), by a Franchise
<br /> Hauler or any other person, based upon breach of contract, violation of law or any other legal theory. The City shall
<br /> bear the cost and expense of any such Legal Proceeding or other challenge. In the event any such Legal Proceeding
<br /> relating to the Waste Disposal Covenant or the City's exercise thereof establishes in a final determination that such
<br /> covenant or exercise thereof is void,unlawful or unenforceable,or if any Franchise Hauler fails to deliver Controllable
<br /> Waste to the Waste Infrastructure System in breach of its franchise with the City on the grounds that a judicial
<br /> determination made by any court or other Applicable Law has rendered its obligation to deliver Controllable Waste to
<br /> the Disposal System void,unlawful or unenforceable on any legal grounds,with the result that actual waste deliveries
<br /> to the Disposal System fall below the Cumulative Tonnage Targets,the County shall be entitled to avail itself of the
<br /> remedies described in Section 4.2(B)hereof.
<br /> (G) Franchise Haulers. The City shall compile and provide the Department with the following
<br /> information concerning all Franchise Haulers: name, address and phone number; identification number; area of
<br /> collection and transportation;and franchise and permit terms.
<br /> (H) Waste Information System. The City shall cooperate with the Department in collecting
<br /> information and otherwise monitoring Franchise Haulers in order to assure compliance with this Agreement,the Act,
<br /> Organics Legislation,or other Applicable Law. Such information may include information such as,data pertaining to
<br /> Controllable Waste collected, transported, stored, processed and disposed of, Recycled City Acceptable Waste
<br /> collected,transported, stored,processed and marketed or disposed of, Controllable Organic Waste collected, stored,
<br /> processed and marketed or disposed of, Franchise Haulers' franchise, permit or license terms, collection areas,
<br /> transportation routes and compliance with Applicable Law; and all other information which may reasonably be
<br /> required by the Department in connection with this Agreement. The City agrees to include in any revised franchise,
<br /> contract,license or permit or other authorization granted to Franchise Haulers an obligation of the Franchise Hauler to
<br /> provide to the County information relating to the Controllable Waste collected by such Franchise Hauler, including
<br /> origins from which such Controllable Waste was collected (identifying Controllable Organic Waste, Recycled City
<br /> Acceptable Waste,or as otherwise may be required under this Agreement or under Applicable Law),tonnage by type
<br /> of load(residential,commercial,roll-off box),customer service levels,tonnage delivered by transfer station or material
<br /> recovery facility utilized,and other related information.
<br /> (I) City Actions Affecting County. The City agrees to carry out and fulfill its responsibilities
<br /> under this Agreement and Applicable Law so as to permit full and timely compliance by the County with its covenants
<br /> and agreements with the State. In particular,the City agrees not to conduct, authorize or permit any disposal services
<br /> for Controllable Waste to be provided in competition with the Disposal Services provided by the County hereunder,
<br /> and not to take or omit to take any action with respect to Controllable Waste, its collection,transportation, transfer,
<br /> storage,treatment,processing,or disposal that may materially and adversely affect the County's ability to achieve such
<br /> timely compliance. Notwithstanding the foregoing, the City shall not be required to deny any permit or license or
<br /> refuse to grant any approval while exercising its police powers.
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