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July 15, 2024 Page 58 City of San Leandro/ACI Franchise Agreement reliable services is impossible to calculate in precise monetary terms; and, (iv) the termination of 2299 this Agreement for such breaches and other remedies are, at best, a means of future correction and 2300 not remedies which make the public whole for past breaches. 2301 B. Service Performance Standards; Liquidated Damages for Failure to Meet Standards. The Parties 2302 further acknowledge that consistent, reliable Collection services are of utmost importance to City 2303 and that City has considered and relied on Contractor's representations as to its quality of service 2304 commitment in awarding the Agreement to it. The Parties recognize that some quantified standards 2305 of performance are necessary and appropriate to ensure consistent and reliable service and 2306 performance. The Parties further recognize that if Contractor fails to achieve the performance 2307 standards or fails to submit required documents in a timely manner, City and its residents and 2308 businesses will suffer damages, and that it is, and will be, impractical and extremely difficult to 2309 ascertain and determine the exact amount of damages which City will suffer. Therefore, without 2310 prejudice to City’s right to treat such non-performance as an event of default under this Section, 2311 the Parties agree that the Liquidated Damages amounts established in Exhibit F of this Agreement 2312 and the Liquidated Damage amounts therein represent a reasonable estimate of the amount of such 2313 damages considering all of the circumstances existing on the Effective Date of this Agreement, 2314 including the relationship of the sums to the range of harm to City that reasonably could be 2315 anticipated and the anticipation that proof of actual damages would be costly or impractical. 2316 Contractor agrees to pay (as Liquidated Damages and not as a penalty) the amounts set forth in 2317 Exhibit F, Performance Standards and Liquidated Damages. 2318 Before assessing Liquidated Damages, City shall give Contractor notice of its intention to do so. The 2319 notice will include a brief description of the incident(s) and non-performance. City may review (and 2320 make copies at its own expense) all information in the possession of Contractor relating to 2321 incident(s) and/or non-performance. City may, within thirty (30) Business Days after issuing the 2322 notice, request a meeting with Contractor. City may present evidence of non-performance in writing 2323 and through testimony of its employees and others relevant to the incident(s) and non-2324 performance. City Manager will provide Contractor with a written explanation of their 2325 determination on each incident(s) and non-performance prior to authorizing the assessment of 2326 Liquidated Damages under this Section 10.6. Within ten (10) Business Days of receipt of such notice 2327 of intention to assess Liquidated Damages, or within forty (40) Business Days if the intended 2328 assessment results in a material impact, as defined in Section 5.8, no Liquidated Damages may be 2329 imposed on Contractor until Contractor has been given a reasonable opportunity to respond to 2330 allegations and to meet and confer with the City Manager. The City Manager’s decision shall be final 2331 subject to Contractor’s ability to pursue judicial relief in accordance with Section 10.9. 2332 C. Amount. City may assess Liquidated Damages for each calendar day or event, as appropriate, that 2333 Contractor is determined to be liable in accordance with this Agreement in the amounts specified 2334 in Exhibit F subject to annual adjustment described below. 2335 D. Timing of Payment. Contractor shall pay any Liquidated Damages assessed by City within ten (10) 2336 Business Days of the date the Liquidated Damages are assessed. If they are not paid within the ten 2337 (10) Business Day period, City may proceed against the performance bond required by the 2338 Agreement, order the termination of the rights or “franchise” granted by this Agreement, or all of 2339 the above. 2340 Docusign Envelope ID: 908A450D-1F36-4C09-B8A4-C1D639B5A05A