Common use of Performance Fees Clause in Contracts

Performance Fees. The City reserves the right to make periodic, unscheduled inspection visits and/or reviews to determine the Contractor’s compliance with the provisions and requirements of this Contract. In the event that the City’s inspection and/or reviews reveal that the Contractor has failed to satisfactorily perform any duties of this Contract, the City shall present an incident report to the Contractor detailing such unsatisfactory performance. The Contractor and the City agree that upon receiving such report, the Contractor shall pay the following dollar amounts, not as a penalty, but as performance fees for failure to satisfactorily perform its duties under this Contract. The City and the Contractor agree that the City’s damages would be difficult to calculate in any litigation and that these dollar amounts are a reasonable estimate of the damages sustained by the City as a result of the Contractor's failure to satisfactorily perform its duties under this Contract. The performance fees in this section shall not apply to the service impacts of labor disruptions, as separate performance fees shall apply under those circumstances. These performance fees apply even if not specifically listed in other sections of this Contract. Performance fees shall include: 1. Failure to ensure that all Customers have Contract- compliant Garbage, Recyclables, and Compostables Containers on or before the Effective Date, and/or Containers are Contract-compliant by the dates referenced in the Contract. Five thousand dollars ($5,000) per day, plus twenty-five dollars ($25) per Container per day. 2. Collection before or after the times specified, except as expressly permitted in writing. Five hundred dollars ($500) per vehicle on each route. 3. Repetition of complaints on a route after notification, including, but not limited to, failure to replace Containers in designated locations, missed service, spilling, not locking Containers, not closing gates, not replacing lids, crossing planted areas, or similar violations. One hundred dollars ($100) per Customer site, not to exceed five hundred dollars ($500) per vehicle daily. 4. Missed collection of a block segment of Single- family Residences. This excludes initial collections prevented by inclement weather, but includes delays on recovery after inclement weather. Two hundred fifty dollars ($250) per block segment if a collection is performed the following collection day; one thousand dollars ($1,000) if not collected by the next business day. 5. Failure to collect missed materials within one (1) business day of notification. One hundred dollars ($100) per Customer per collection day to a maximum of five hundred dollars ($500) per vehicle. 6. The collection as Garbage of non-contaminated Source-separated Recyclables, Yard Debris, or Compostables in clearly identified Containers, bags, or boxes. One thousand dollars ($1,000) per Customer per incident. 7. Rejection of Garbage, Recyclables, or Compostables without providing documentation to the Customer of the reason for rejection. One hundred dollars ($100) per Customer per incident. 8. Failure to properly document and/or notify Customer of contamination. One hundred dollars ($100) per Customer per incident. 9. Failure to deliver or remove Containers within three (3) business days of a request to Customers requesting service after the Effective Date. One hundred dollars ($100) per Customer per day. 10. Failure to include City-approved promotional materials when Garbage, Recycling, and/or Compostables Containers are delivered to Customers. One hundred dollars ($100) per Customer. 11. The use of outdated or unauthorized labels or lack of required labels on Contractor-provided Containers. One hundred dollars ($100) per Container. 12. Failure to maintain clean, sanitary, and properly painted Containers. Fifty dollars ($50) per Container, up to a maximum of one thousand dollars ($1,000) per inspection. 13. Failure to replace a leaking Container within one (1) business day of notification. One hundred dollars ($100) per business day that the Container is not replaced. 14. Failure to initiate clean-up or collect leaked or spilled materials and/or failure to notify the City within three (3) hours of Contractor knowledge of such release. Five hundred dollars ($500) per vehicle, per occurrence, plus clean-up costs. 15. City observed or customer photographed leakage or spillage from Contractor vehicles or of vehicle contents. Five hundred dollars ($500) per vehicle, inspection, clean-up costs, and potential code fines/penalties. 16. Failure to maintain Contract-compliant vehicles. Two hundred fifty dollars ($250) per vehicle, up to a maximum of two thousand five hundred dollars ($2,500) per inspection. 17. Failure to separate collection of materials from Service Area Customers from non-Service Area customers. Five thousand dollars ($5,000) per route per day. 18. Failure to meet Customer Service answer and on- hold time performance requirements. Five thousand dollars ($5,000) per month. 19. Failure to meet the service and performance standards, outside of the Customer service answer and on-hold time, for two (2) consecutive months. Two hundred fifty dollars ($250) per day until the service standards are met for ten (10) consecutive business days. 20. Failure to provide accurate information to Customers by Customer Service staff, including inappropriately directing Customers to contact the City. One hundred dollars ($100) per Customer. 21. Failure to include accurate and/or required information on the Contractor’s website. Two hundred fifty dollars ($250) per day. 22. Failure to provide the required annual or monthly reports on time. Five hundred dollars ($500) per day past the deadline. 23. Misrepresentation by Contractor in records or reporting. Five thousand dollars ($5,000) per occurrence. 24. Inability to reach the Contractor’s staff via the emergency phone number. Two hundred fifty dollars ($250) per day. 25. Failure to fulfill contract requirements not otherwise addressed. One hundred dollars ($100) per incident or day, as appropriate, plus any cost or damages to the City. The City may impose these performance fees based on each instance of non-performance or each day non-performance continues, depending on the Contractor’s type of non-performance. Nothing in this section shall be construed as providing an exclusive list of the acts or omissions of the Contractor that shall be considered violations or breaches of the Contract, and the City reserves the right to exercise any and all remedies it may have with respect to these and other violations and breaches. Any specific reference in a section of this Contract stating that a specific provision is subject to performance fees shall not in any manner limit the imposition of performance fees in any other section. The performance fees schedule set forth here shall not affect the City’s ability to terminate this Contract as described in the Contract Default Section. Performance fees, if assessed during a given month, shall be invoiced in writing by the City to the Contractor. The Contractor shall be required to pay the City the invoiced amount within thirty (30) Days of billing. Failure to pay performance fees shall be considered a breach of this Contract, and shall accrue penalty charges of eight percent (8%) per month of the amount of any delinquent payments. Any performance fees assessed against the Contractor may be appealed by the Contractor in writing to the City within ten (10) Days of being invoiced for assessed performance fees. The Contractor shall be allowed to present evidence as to why the amount of the assessed performance fees should be lessened or eliminated, including the provision of incorrect information provided by a previous contractor for contract failures during the initial transition period. The City’s decision shall be final and not subject to appeal.

Performance Fees. The Contractor may be subject to performance fees for the following acts or omissions if documented in an incident report presented by the City to the Contractor. The City reserves the right to make periodic, unscheduled inspection visits and/or reviews or use other means to determine the Contractor’s compliance with the provisions and requirements of this Contract. In Deductions for misses will not be applied for collections prevented by weather or holiday rescheduling or collections missed due to labor disruptions during the event that the City’s inspection and/or reviews reveal that the Contractor has failed to satisfactorily perform any duties of this Contract, the City shall present an incident report to the Contractor detailing such unsatisfactory performance. The Contractor and the City agree that upon receiving such report, the Contractor shall pay the following dollar amounts, not as a penalty, but as performance fees for failure to satisfactorily perform its duties under this Contract. The City and the Contractor agree that the City’s damages would be difficult to calculate in any litigation and that these dollar amounts are a reasonable estimate first week of the damages sustained by the City as a result of the Contractor's failure to satisfactorily perform its duties under this Contract. The performance fees in this section shall not apply to the service impacts of labor disruptions, as separate performance fees shall apply under those circumstances. These performance fees apply even if not specifically listed in other sections of this Contractdisruption. Performance fees shall include: 1. Failure to ensure that all Customers have Contract- compliant Garbage, Recyclables, and Compostables Containers on or before the Effective Date, and/or Containers are Contract-compliant by the dates referenced in the Contract. Five thousand dollars ($5,000) per day, plus twenty-five dollars ($25) per Container per day. 2. as follows: Collection before or after the times specifiedspecified in Section 2.1.4, except as expressly permitted in writingby the City. Five hundred dollars Two Hundred Fifty Dollars ($500250) per vehicle truck route (each truck on each route. 3route is a separate incident). Repetition of complaints on a route after notification, including, but not limited to, failure to replace Containers in designated locations, missed service, spilling, not locking Containers, not closing gates, not replacing lids, use of profanity, creation of excessive noise, collection of Commercial Containers in Residential areas outside hours Twenty-Five dollars ($25) per incident, not to exceed thirty (30) complaints per truck per day. specified herein for Residential areas, crossing or driving over planted areas, observed reckless driving, or similar violations. One hundred dollars ($100) per Customer siteFailure to collect spilled materials. Twice the cost of cleanup to the City or King County, not to exceed five hundred dollars plus Five Hundred Dollars ($500) per vehicle daily. 4incident. Missed collection of a block segment of Single- family Residences. This excludes initial collections prevented Failure to maintain placards on service vehicles as required by inclement weather, but includes delays on recovery after inclement weather. Section 2.1.14 Two hundred fifty dollars Hundred Fifty Dollars ($250) per block segment if a collection is performed vehicle, per day. Curable Leakage from Contractor vehicles or vehicle contents, observed by the following collection day; one thousand dollars City, its agents or photographed by Customers. Two Hundred Fifty Dollars ($1,000250) if not collected by the next business per vehicle, per day. 5, plus clean-up costs. Failure to collect missed materials within one (1) business day of after notification. One hundred dollars Hundred Dollars ($100) per Customer per collection day incident to a maximum of five hundred dollars Five Hundred Dollars ($500) per vehicle. 6truck per day on Single-Family Residence routes and no maximum for Multi-Family Complex and Commercial Customer routes. The Missed collection of entire block segment of Single-Family Residences (excluding collections prevented by inclement weather). One Hundred Fifty Dollars ($150) per block segment if collection is performed the following day; Five Hundred Dollars ($500) if not collected by the following day. Collection as Garbage or disposal as Garbage of non-contaminated Source-separated Recyclables, Yard Debris, Separated Recyclables or Compostables in clearly identified Containers, bags, bags or boxes. One thousand dollars Hundred Dollars ($100) per incident, up to a maximum of One Thousand Dollars ($1,000) per Customer truck, per day. Collection of Garbage containing visible quantities of Yard Debris. Twenty-Five Dollars ($25) per incident. 7. Rejection of Garbage, Recyclables, Recyclables or Compostables Yard Debris without providing documentation to the Customer of the reason for rejection. One hundred dollars Twenty-Five Dollars ($10025) per Customer per incident. 8. Failure to properly document and/or notify Customer of contamination. One hundred dollars ($100) per Customer per incident. 9. Failure to deliver Detachable Containers to new Commercial Customers within three (3) Fifty Dollars ($50) per Container per day. business days. Failure to deliver carts, Detachable Containers, or remove Drop-Box Containers within three (3) business days of a request to Customers requesting service after the Effective Date. One hundred dollars ($100) per Customer per day. 10. Failure to include City-approved promotional materials when Garbage, Recycling, and/or Compostables Containers are delivered to Multi- Family Complex or Commercial Customers. One hundred dollars ($100) per Customer. 11. The use of outdated or unauthorized labels or lack of required labels on Contractor-provided Containers. One hundred dollars ($100) per Container. 12. Failure to maintain clean, sanitary, and properly painted Containers. Fifty dollars Dollars ($50) per Container, up to a maximum of one thousand dollars ($1,000) Container per inspection. 13day. Failure to replace a leaking Container deliver Garbage, Recycling or Compostables Carts within one seven (17) business day days of notificationrequest to Single-Family Residence Customers. One hundred dollars Fifteen Dollars ($10015) per business day that the Container is not replaced. 14per day. Failure to initiate cleanDelivery or use of incorrectly labeled or colored Container Twenty-up or collect leaked or spilled materials and/or failure to notify the City within three (3) hours of Contractor knowledge of such release. Five hundred dollars five Dollars ($50025) per vehicle, per occurrence, plus clean-up costs. 15. City observed or customer photographed leakage or spillage from Contractor vehicles or of vehicle contents. Five hundred dollars ($500) per vehicle, inspection, clean-up costs, and potential code fines/penalties. 16. Failure to maintain Contract-compliant vehicles. Two hundred fifty dollars ($250) per vehicle, up to a maximum of two thousand five hundred dollars ($2,500) per inspection. 17. Failure to separate collection of materials from Service Area Customers from non-Service Area customers. Five thousand dollars ($5,000) per route Container per day. 18. Failure to meet Customer Service answer and on- hold time performance requirements. Five thousand dollars ($5,000) per month. 19. Failure to meet the service and performance standards, outside of the Customer service answer and on-hold time, for two (2) consecutive months. Two hundred fifty dollars ($250) per day until the service standards are met for ten (10) consecutive business days. 20. Failure to provide accurate information to Customers by Customer Service staff, including inappropriately directing Customers to contact the City. One hundred dollars ($100) per Customer. 21. Failure to include accurate and/or required information on the Contractor’s website. Two hundred fifty dollars ($250) per day. 22. Failure to provide the required annual or monthly reports on time. Five hundred dollars ($500) per day past the deadline. 23. Misrepresentation Substantial misrepresentation by Contractor in records or reporting. Five thousand dollars Thousand Dollars ($5,000) per occurrence. 24incident. Inability Failure to reach the Contractor’s staff via the emergency phone numberprovide required reports on time. Two hundred fifty dollars Hundred Fifty Dollars ($250) per day. 25incident. Failure to fulfill contract requirements not otherwise addressedmaintain clean, graffiti-free and sanitary inventory of Containers distributed to Customers, vehicles, and facilities. One hundred dollars Fifty Dollars ($10050) per incident incident, up to maximum of One Thousand Dollars ($1,000) per inspection. Landfilling or day, as appropriate, plus any cost incineration of Recyclables or damages to Compostables in violation of Section 2.1.11 without the express written permission of the City. The City may impose these One Thousand Dollars ($1,000) per vehicle, per incident. Failure to meet recycling processing performance requirements of Section 2.1.11. One Thousand Dollars ($1,000) per month, for any occurrence during that month. Failure to meet customer service ring and on- hold time performance customer service requirements more than twelve weeks out of a rolling twelve month period. Two Hundred Fifty Dollars ($250) per week. Failure to include instructional/promotional materials when Garbage, Recycling and/or Compostables Carts are delivered. Fifty Dollars ($50) per incident. Any of the foregoing performance fees based that are assessed on each instance a per truck route, per vehicle, per truck, or per Container basis shall be applied only with respect to the route(s), vehicle(s), truck(s), or Container(s) on account of non-which the performance or each day non-fee is assessed. The parties acknowledge the difficulty in anticipating actual damages to remedy the damage. The parties further agree that the performance continues, depending on fees listed in this Section represent a reasonable estimate of the Contractor’s type of non-performanceloss likely to result from the remedy for the damage. Nothing in this section Section shall be construed as providing an exclusive list of the acts or omissions of the Contractor that shall be considered violations or breaches of the ContractContract and, and except for those listed breaches set forth above, the City reserves the right to exercise any and all remedies it may have with respect to these and other violations and breaches. Any specific reference in a section of this Contract stating that a specific provision is subject to performance fees shall not in any manner limit the imposition of performance fees in any other section. The performance fees schedule set forth here shall not affect the City’s 's ability to terminate this Contract as described in the Contract Default SectionSection 4.2. Performance fees, if assessed during a given month, shall be invoiced in writing by the City to the Contractor. Performance fees may be levied only if documented in an incident report presented by the City to the Contractor. Performance fees shall only be assessed after the Contractor has been given the opportunity, but has failed to rectify the deficiencies of which it has been notified. The Contractor shall be required to pay the City the invoiced amount within thirty (30) Days days of billing. Failure to pay performance fees shall be considered a breach of this Contract, and shall accrue penalty charges of eight percent (8%) per month of the amount of any delinquent payments. Any performance fees assessed against the Contractor imposed under this Section may be appealed by the Contractor in writing to the City within ten (10) Days of being invoiced for assessed performance feesCity. The Contractor shall be allowed to present evidence as to why the amount of the assessed performance fees should be lessened or eliminated, including the provision of incorrect information provided by a previous contractor for contract failures during the initial transition period. The City’s decision of the City with respect to any such appeal shall be final and not subject to appealfinal.

Performance Fees. The Contractor may be subject to performance fees for the following acts or omissions if documented in an incident report presented by the City to the Contractor. The City reserves the right to make periodic, unscheduled inspection visits and/or reviews or use other means to determine the Contractor’s compliance with the provisions and requirements of this Contract. In Deductions for misses will not be applied for collections prevented by weather or holiday rescheduling or collections missed due to labor disruptions during the event that the City’s inspection and/or reviews reveal that the Contractor has failed to satisfactorily perform any duties of this Contract, the City shall present an incident report to the Contractor detailing such unsatisfactory performance. The Contractor and the City agree that upon receiving such report, the Contractor shall pay the following dollar amounts, not as a penalty, but as performance fees for failure to satisfactorily perform its duties under this Contract. The City and the Contractor agree that the City’s damages would be difficult to calculate in any litigation and that these dollar amounts are a reasonable estimate first week of the damages sustained by the City as a result of the Contractor's failure to satisfactorily perform its duties under this Contract. The performance fees in this section shall not apply to the service impacts of labor disruptions, as separate performance fees shall apply under those circumstances. These performance fees apply even if not specifically listed in other sections of this Contractdisruption. Performance fees shall include: 1. Failure to ensure that all Customers have Contract- compliant Garbage, Recyclables, and Compostables Containers on or before the Effective Date, and/or Containers are Contract-compliant by the dates referenced in the Contract. Five thousand dollars ($5,000) per day, plus twenty-five dollars ($25) per Container per day. 2. as follows: Collection before or after the times specifiedspecified in Section 2.1.4, except as expressly permitted in writingby the City. Five hundred dollars Two Hundred Fifty Dollars ($500250) per vehicle truck route (each truck on each route. 3route is a separate incident). Repetition of complaints on a route after notification, including, but not limited to, failure to replace Containers in designated locations, missed service, spilling, not locking Containers, not closing gates, not replacing lids, use of profanity, creation of Twenty-Five dollars ($25) per incident, not to exceed thirty (30) complaints per truck per day. excessive noise, collection of Commercial Containers outside hours specified herein for Residential areas, crossing or driving over planted areas, observed reckless driving, or similar violations. One hundred dollars ($100) per Customer siteFailure to collect spilled materials. Twice the cost of cleanup to the City or King County, not to exceed five hundred dollars plus Five Hundred Dollars ($500) per vehicle daily. 4incident. Missed collection of a block segment of Single- family Residences. This excludes initial collections prevented Failure to maintain placards on service vehicles as required by inclement weather, but includes delays on recovery after inclement weather. Section 2.1.14 Two hundred fifty dollars Hundred Fifty Dollars ($250) per block segment if a collection is performed vehicle, per day. Curable Leakage from Contractor vehicles or vehicle contents, observed by the following collection day; one thousand dollars City, its agents or photographed by Customers. Two Hundred Fifty Dollars ($1,000250) if not collected by the next business per vehicle, per day. 5, plus clean up costs. Failure to collect missed materials within one (1) business day of after notification. One hundred dollars Hundred Dollars ($100) per Customer per collection day incident to a maximum of five hundred dollars Five Hundred Dollars ($500) per vehicle. 6truck per day on Single-Family Residence routes and no maximum for Multi-Family Complex and Commercial Customer routes. The Missed collection of entire block segment of Single-Family Residences (excluding collections prevented by inclement weather). One Hundred Fifty Dollars ($150) per block segment if collection is performed the following day; Five Hundred Dollars ($500) if not collected by the following day. Collection as Garbage or disposal as Garbage of non-contaminated Source-separated Recyclables, Yard Debris, Separated Recyclables or Compostables in clearly identified Containers, bags, bags or boxes. One thousand dollars Hundred Dollars ($100) per incident, up to a maximum of One Thousand Dollars ($1,000) per Customer truck, per day. Collection of Garbage containing visible quantities of Yard Debris. Twenty-Five Dollars ($25) per incident. 7. Rejection of Garbage, Recyclables, Recyclables or Compostables Yard Debris without providing documentation to the Customer of the reason for rejection. One hundred dollars Twenty-Five Dollars ($10025) per Customer per incident. 8. Failure to properly document and/or notify Customer of contamination. One hundred dollars ($100) per Customer per incident. 9. Failure to deliver Detachable Containers to Fifty Dollars ($50) per Container per day. new Commercial Customers within three (3) business days. Failure to deliver carts, Detachable Containers, or remove Drop-Box Containers within three (3) business days of a request to Customers requesting service after the Effective Date. One hundred dollars ($100) per Customer per day. 10. Failure to include City-approved promotional materials when Garbage, Recycling, and/or Compostables Containers are delivered to Multi- Family Complex or Commercial Customers. One hundred dollars ($100) per Customer. 11. The use of outdated or unauthorized labels or lack of required labels on Contractor-provided Containers. One hundred dollars ($100) per Container. 12. Failure to maintain clean, sanitary, and properly painted Containers. Fifty dollars Dollars ($50) per Container, up to a maximum of one thousand dollars ($1,000) Container per inspection. 13day. Failure to replace a leaking Container deliver Garbage, Recycling or Compostables Carts within one seven (17) business day days of notificationrequest to Single-Family Residence Customers. One hundred dollars Fifteen Dollars ($10015) per business day that the Container is not replaced. 14per day. Failure to initiate cleanDelivery or use of incorrectly labeled or colored Container Twenty-up or collect leaked or spilled materials and/or failure to notify the City within three (3) hours of Contractor knowledge of such release. Five hundred dollars five Dollars ($50025) per vehicle, per occurrence, plus clean-up costs. 15. City observed or customer photographed leakage or spillage from Contractor vehicles or of vehicle contents. Five hundred dollars ($500) per vehicle, inspection, clean-up costs, and potential code fines/penalties. 16. Failure to maintain Contract-compliant vehicles. Two hundred fifty dollars ($250) per vehicle, up to a maximum of two thousand five hundred dollars ($2,500) per inspection. 17. Failure to separate collection of materials from Service Area Customers from non-Service Area customers. Five thousand dollars ($5,000) per route Container per day. 18. Failure to meet Customer Service answer and on- hold time performance requirements. Five thousand dollars ($5,000) per month. 19. Failure to meet the service and performance standards, outside of the Customer service answer and on-hold time, for two (2) consecutive months. Two hundred fifty dollars ($250) per day until the service standards are met for ten (10) consecutive business days. 20. Failure to provide accurate information to Customers by Customer Service staff, including inappropriately directing Customers to contact the City. One hundred dollars ($100) per Customer. 21. Failure to include accurate and/or required information on the Contractor’s website. Two hundred fifty dollars ($250) per day. 22. Failure to provide the required annual or monthly reports on time. Five hundred dollars ($500) per day past the deadline. 23. Misrepresentation Substantial misrepresentation by Contractor in records or reporting. Five thousand dollars Thousand Dollars ($5,000) per occurrence. 24incident. Inability Failure to reach the Contractor’s staff via the emergency phone numberprovide required reports on time. Two hundred fifty dollars Hundred Fifty Dollars ($250) per day. 25incident. Failure to fulfill contract requirements not otherwise addressedmaintain clean and sanitary Containers, vehicles, and facilities. One hundred dollars Fifty Dollars ($10050) per incident incident, up to maximum of One Thousand Dollars ($1,000) per inspection. Landfilling or day, as appropriate, plus any cost incineration of Recyclables or damages to Compostables in violation of Section 2.1.11 without the express written permission of the City. One Thousand Dollars ($1,000) per vehicle, per incident. Failure to meet recycling processing performance requirements of Section 2.1.11. One Thousand Dollars ($1,000) per month, for any occurrence during that month. Failure to meet Average Speed of Answer and Abandon % performance customer service requirements. These are based on monthly averages and monthly occurrences. Two Hundred Fifty Dollars ($250) per incident. Failure to include instructional/promotional materials when Garbage, Recycling and/or Compostables Carts are delivered. Fifty Dollars ($50) per incident. The City may impose these parties acknowledge the difficulty in anticipating actual damages to remedy the damage. The parties further agree that the performance fees based on each instance listed in this Section represent a reasonable estimate of non-performance or each day non-performance continues, depending on the Contractor’s type of non-performanceloss likely to result from the remedy for the damage. Nothing in this section Section shall be construed as providing an exclusive list of the acts or omissions of the Contractor that shall be considered violations or breaches of the ContractContract and, and except for those listed breaches set forth above, the City reserves the right to exercise any and all remedies it may have with respect to these and other violations and breaches. Any specific reference in a section of this Contract stating that a specific provision is subject to performance fees shall not in any manner limit the imposition of performance fees in any other section. The performance fees schedule set forth here shall not affect the City’s 's ability to terminate this Contract as described in the Contract Default SectionSection 4.2. Performance fees, if assessed during a given month, shall be invoiced deducted from City payments to the Contractor. Performance fees may be levied only if documented in writing an incident report presented by the City to the Contractor. The Contractor shall be required to pay the City the invoiced amount within thirty (30) Days of billing. Failure to pay performance Performance fees shall only be considered a breach assessed after the Contractor has been given the opportunity, but has failed to rectify the deficiencies of this Contract, and shall accrue penalty charges of eight percent (8%) per month of the amount of any delinquent paymentswhich it has been notified. Any performance fees assessed against the Contractor imposed under this Section may be appealed by the Contractor in writing to the City within ten (10) Days of being invoiced for assessed performance feesCity. The Contractor shall be allowed to present evidence as to why the amount of the assessed performance fees should be lessened or eliminated, including the provision of incorrect information provided by a previous contractor for contract failures during the initial transition period. The City’s decision of the City shall be final and not subject to appealfinal.