Liquidated Damages upon Early Termination without Cause. CONTRACTOR has agreed to enter into this Agreement in consideration for the right to operate the Facility for the “life of the Site” and the expected delivery of approximately 42 million tons of Accepted Waste at the Facility after the Effective Date according to CONTRACTOR’S estimates (and without any representation or warranty by either Party as to such tonnage capacity amount). By entering into this Agreement, CONTRACTOR has agreed to reduce its per ton charge for Accepted Waste under the Initial Operation Agreement by an average of $2.00 per ton for the life of the Existing Cell. With remaining tonnage capacity at the Existing Cell of approximately 7.6 million tons, CONTRACTOR therefore asserts that it is giving up the right to receive approximately $15.2 million in revenues that it would have received under the Initial Operation Agreement. The actual or agreed upon amount of such lost revenues pertaining to the Existing Cell and the Initial Operation Agreement shall be based on the actual number of tons of Accepted Waste received after the Effective Date in the Existing Cell by CONTRACTOR up to 8.5 million tons, multiplied by $2.00 per ton, and shall not in any event exceed $17,000,000 (the “Existing Cell Lost Revenues”). CONTRACTOR’S asserted right to the Existing Cell Lost Revenues upon termination by the CITY assumes that the CITY must continue to direct the flow of all Solid Waste to the Facility, which CITY asserts that it is not obligated to do under the Initial Operation Agreement after the payoff of the excess land costs (as described in Section 7.7. and in the Initial Operation Agreement), which will occur in approximately two years after the Effective Date, a position which is disputed by CONTRACTOR. CONTRACTOR has also agreed herein to assume all of the costs of Closure and Post Closure for the Existing Cell under applicable permits and laws, beginning on or after the Effective Date (“Existing Cell Closure Costs”) for which it was not responsible under the Initial Operation Agreement, and CONTRACTOR has also agreed to assume all of the costs of Closure and Post Closure of the Expanded Cell under applicable permits and laws (“Expanded Cell Closure Costs”). The specific amount of the Existing Cell Closure Costs and Expanded Cell Closure Costs are undetermined at this time. While the CITY disagrees with the CONTRACTOR’S asserted right to the Existing Cell Lost Revenues, in consideration for mutual promises herein, the Parties agree that in the...
