Common use of PERFORMANCE STANDARDS AND LIQUIDATED DAMAGES Clause in Contracts

PERFORMANCE STANDARDS AND LIQUIDATED DAMAGES. ‌ 2076 A. General. The Parties find that as of the time of the execution of this Agreement, it is impractical, 2077 if not impossible, to reasonably ascertain the extent of damages which shall be incurred by County 2078 as a result of a breach by Contractor of its obligations under this Agreement. The factors relating 2079 to the impracticability of ascertaining damages include, but are not limited to, the fact that: (i) 2080 substantial damage results to members of the public who are denied services or denied quality or 2081 reliable service; (ii) such breaches cause inconvenience, anxiety, frustration, and deprivation of 2082 the benefits of the Agreement to individual members of the general public for whose benefit this 2083 Agreement exists, in subjective ways and in varying degrees of intensity which are incapable of 2084 measurement in precise monetary terms; (iii) that exclusive services might be available at 2085 substantially lower costs than alternative services and the monetary loss resulting from denial of 2086 services or denial of quality or reliable services is impossible to calculate in precise monetary 2087 terms; and, (iv) the termination of this Agreement for such breaches, and other remedies are, at 2088 best, a means of future correction and not remedies which make the public whole for past 2089 breaches. 2090 B. Service Performance Standards; Liquidated Damages for Failure to Meet Standards. The Parties 2091 further acknowledge that consistent, reliable Collection services are of utmost importance to 2092 County and that County has considered and relied on Contractor's representations regarding its 2093 quality-of-service commitment in awarding the Agreement to it. The Parties recognize that some 2094 quantified standards of performance are necessary and appropriate to ensure consistent and 2095 reliable service and performance. The Parties further recognize that if Contractor fails to achieve 2096 the performance standards or fails to submit required documents in a timely manner, County and 2097 its residents and businesses will suffer damages, and that it is, and will be, impractical and 2098 extremely difficult to ascertain and determine the exact amount of damages which County will 2099 suffer. Therefore, without prejudice to County’s right to treat such non-performance as an event 2100 of default under this Section, the Parties agree that the Liquidated Damages amounts established 2101 in Exhibit F of this Agreement and the Liquidated Damage amounts therein represent a reasonable 2102 estimate of the amount of such damages considering all of the circumstances existing on the 2103 Effective Date of this Agreement, including the relationship of the sums to the range of harm to 2104 County that reasonably could be anticipated and the anticipation that proof of actual damages 2105 would be costly or impractical. 2106 Contractor agrees to pay (as Liquidated Damages and not as a penalty) the amounts set forth in 2107 the Performance Standards and Liquidated Damages, Exhibit F. 2108 Before assessing Liquidated Damages, County Contract Manager shall give Contractor notice of 2109 County’s intention to do so. The notice will include a brief description of the incident(s) and non- 2110 performance. County Contract Manager may review (and make copies at County’s own expense) 2111 all information in the possession of Contractor relating to incident(s) and/or non-performance. 2112 Contractor may, within ten (10) Business Days after receiving the notice, request a meeting with 2113 County Contract Manager. County Contract Manager may present evidence of non-performance 2114 in writing and through testimony of County’s employees and others relevant to the incident(s) 2115 and non-performance. County Contract Manager will provide Contractor with a written 2116 explanation of their determination on each incident(s) and non-performance prior to authorizing 2117 the assessment of Liquidated Damages under this Section 10.6. The decision of County Contract 2118 Manager to assess Liquidated Damages that exceed $30,000 in total may be appealed by 2119 Contractor to the County Council by filing an appeal with the County Clerk within ten (10) Business 2120 Days of the County Contract Manager’s decision. If Contractor has made such an appeal within 2121 the required timeframe, the intended assessment of Liquidated Damages will not be imposed on 2122 Contractor until the County Council issues a decision. In such case, the decision of the County 2123 Council shall be final and Contractor shall not be subject to, or required to exhaust, any further 2124 administrative remedies. Should Contractor not exercise its right to appeal as described in this 2125 paragraph, and in all other cases, the decision of the County Contract Manager shall be final and 2126 Contractor shall not be subject to, or required to exhaust, any further administrative remedies. 2127 The County Contract Manager shall provide Contractor with a written explanation of their 2128 determination on each incident prior to assessing the Liquidated Damages. 2129 C. Amount. County Contract Manager may assess Liquidated Damages for each calendar day or 2130 event, as appropriate, that Contractor is determined to be liable in accordance with this 2131 Agreement in the amounts specified in Exhibit F subject to annual adjustment described below. 2132 D. Timing of Payment. Contractor shall pay any Liquidated Damages assessed by County Contract 2133 Manager within ten (10) Business Days of the date the Liquidated Damages are assessed. If they 2134 are not paid within the ten (10) Business Day period, County Contract Manager may proceed 2135 against the performance bond required by the Agreement, order the termination (subject to the 2136 provisions of Section 10.2) of the rights granted by this Agreement, or all of the above, except 2137 that no payment of Liquidated Damages shall be due to the County until any appeal by Contractor 2138 to the County Council has been decided. 2139 10.7 EXCUSE FROM PERFORMANCE‌ 2140 Notwithstanding any other provision in this Agreement, each Party shall be excused from performing its 2141 respective obligations hereunder and from any obligation to pay Liquidated Damages if that Party is 2142 prevented from so performing by reason of floods, earthquakes, other acts of nature, governmental 2143 actions (including judicial action) or inactions, laws or regulations, including, without limitation, 2144 restrictions, directives or orders, epidemics or pandemics that actually negatively impact such Party’s 2145 ability to perform, war, civil insurrection, riots, and other similar catastrophic events which are beyond 2146 the control of and not the fault of the Party claiming excuse from performance hereunder (each a “Force 2147 Majeure Event”). 2148 In the case of labor unrest or job action directed at a third party over whom Contractor has no control, 2149 the inability of Contractor to provide services in accordance with this Agreement due to the unwillingness 2150 or failure of the third party to: (i) provide reasonable assurance of the safety of Contractor's employees 2151 while providing such services; or, (ii) make reasonable accommodations with respect to Container 2152 placement and point of Delivery, time of Collection, or other operating circumstances to minimize any 2153 confrontation with pickets or the number of Persons necessary to make Collections shall, to that limited 2154 extent, excuse performance. The foregoing excuse shall be conditioned on Contractor's cooperation in 2155 performing Collection services at different times and in different locations. Further, in the event of labor 2156 unrest, including but not limited to strike, work stoppage or slowdown, sickout, picketing, or other 2157 concerted job action conducted by the Contractor’s employees or directed at the Contractor, or a 2158 subsidiary, the Contractor shall not be excused from performance. In such case, Contractor shall continue 2159 to provide a reasonably satisfactory level of performance during the pendency thereof, but the Contractor 2160 shall not be required to adhere strictly to the specific requirements of this Agreement regarding routes, 2161 Collection times or similar matters; provided, however, that in no event shall more than seven (7) calendar 2162 days elapse between pickups for Residential and Commercial Customers. Any labor action initiated by 2163 Contractor, including but not limited to a lock-out, shall not be grounds for any excuse from performance 2164 and Contractor shall perform all obligations under this Agreement during the pendency of such 2165 Contractor-initiated labor action. 2166 The Party claiming excuse from performance shall, within two (2) calendar days after such Party has notice 2167 of such cause, give the other Party notice of the facts constituting such cause and asserting its claim to 2168 excuse under this Section. 2169 If either Party validly exercises its rights under this Section, the Parties hereby waive any claim against 2170 each other for any damages sustained thereby. 2171 The partial or complete interruption or discontinuance of Contractor's services caused by one (1) or more 2172 of the Force Majeure Events shall not constitute a default by Contractor under this Agreement. 2173 Notwithstanding the foregoing, however, if Contractor is excused from performing its obligations 2174 hereunder for any of the causes listed in this Section for a period of thirty (30) calendar days or more, 2175 County shall nevertheless have the right, in its sole discretion, to terminate this Agreement by giving ten 2176 2177

PERFORMANCE STANDARDS AND LIQUIDATED DAMAGES. ‌ 2076 1099 A. General. The Parties find that as of the time of the execution of this Agreement, it is 1100 impractical, 2077 if not impossible, to reasonably ascertain the extent of damages which shall be 1101 incurred by County 2078 Agency as a result of a breach by Contractor of its obligations under this Agreement. 1102 The factors relating 2079 to the impracticability of ascertaining damages include, but are not limited 1103 to, the fact that: (i) 2080 substantial damage results to members of the public who are denied 1104 services or denied quality or 2081 reliable service; (ii) such breaches cause inconvenience, anxiety, 1105 frustration, and deprivation of 2082 the benefits of the Agreement to individual members of the 1106 general public for whose benefit this 2083 Agreement exists, in subjective ways and in varying 1107 degrees of intensity which are incapable of 2084 measurement in precise monetary terms; (iii) that 1108 exclusive services might be available at 2085 substantially lower costs than alternative services and 1109 the monetary loss resulting from denial of 2086 services or denial of quality or reliable services is 1110 impossible to calculate in precise monetary 2087 terms; and, (iv) the termination of this Agreement 1111 for such breaches, and other remedies are, at 2088 best, a means of future correction and not 1112 remedies which make the public whole for past 2089 breaches. 2090 1113 B. Service Performance Standards; Liquidated Damages for Failure to Meet Standards. The {Agency – 1114 HF&H recommends that you work with Contractor to establish quantified performance 1115 standards that the Contractor already monitors as part of their normal business operations. (e.g. 1116 Waste Management’s “Service Machine”)}The Parties 2091 further acknowledge that consistent, 1117 reliable Collection services are of utmost importance to 2092 County Agency and that County Agency has considered 1118 and relied on Contractor's representations regarding as to its 2093 quality-of-quality of service commitment in awarding 1119 the Agreement to it. The Parties recognize that some 2094 quantified standards of performance are 1120 necessary and appropriate to ensure consistent and 2095 reliable service and performance. The 1121 Parties further recognize that if Contractor fails to achieve 2096 the performance standards standards, or fails to 1122 submit required documents in a timely manner, County Agency and 2097 its residents and businesses will 1123 suffer damages, and that it is, and will be, impractical and 2098 extremely difficult to ascertain and 1124 determine the exact amount of damages which County Agency will 2099 suffer. Therefore, without prejudice 1125 to CountyAgency’s right to treat such non-performance non‐performance as an event 2100 of default under this Section, the 1126 Parties agree that the Liquidated Damages amounts established 2101 in Exhibit F of this Agreement 1127 and the Liquidated Damage amounts therein represent a reasonable 2102 estimate of the amount of 1128 such damages considering all of the circumstances existing on the 2103 Effective Date of this 1129 Agreement, including the relationship of the sums to the range of harm to 2104 County Agency that 1130 reasonably could be anticipated and the anticipation that proof of actual damages 2105 would be 1131 costly or impractical. 2106 1132 Contractor agrees to pay (as Liquidated Damages and not as a penalty) the amounts set forth in 2107 1133 the Performance Standards and Liquidated Damages, Exhibit F. 2108 1134 Before assessing Liquidated Damages, County Contract Manager Agency shall give Contractor notice of 2109 County’s its intention to do 1135 so. The notice will include a brief description of the incident(s) and non- 2110 performancenon‐performance. County Contract Manager Agency 1136 may review (and make copies at County’s its own expense) 2111 all information in the possession of Contractor 1137 relating to incident(s) and/or non-performancenon‐performance. 2112 Contractor Agency may, within ten (10) Business Days after receiving 1138 issuing the notice, request a meeting with 2113 County Contract ManagerContractor. County Contract Manager Agency may present evidence of non-non‐ 1139 performance 2114 in writing and through testimony of County’s its employees and others relevant to the 1140 incident(s) 2115 and non-performancenon‐performance. County Agency Contract Manager will provide Contractor with a 1141 written 2116 explanation of their determination on each incident(s) and non-performance non‐performance prior to 1142 authorizing 2117 the assessment of Liquidated Damages under this Section 10.6. The decision of County 1143 Agency Contract 2118 Manager to assess Liquidated Damages that exceed $30,000 in total may be appealed by 2119 Contractor to the County Council by filing an appeal with the County Clerk within ten (10) Business 2120 Days of the County Contract Manager’s decision. If Contractor has made such an appeal within 2121 the required timeframe, the intended assessment of Liquidated Damages will not be imposed on 2122 Contractor until the County Council issues a decision. In such case, the decision of the County 2123 Council shall be final and Contractor shall not be subject to, or required to exhaust, any further 2124 administrative remedies. Should Contractor not exercise its right to appeal as described in this 2125 paragraph, and in all other cases, the decision of the County Contract Manager shall be final and 2126 Contractor shall not be subject to, or required to 1144 exhaust, any further administrative remedies. 2127 1145 C. Two‐Phase Performance Management. The County Contract Manager shall provide Contractor Parties desire to minimize the time and cost 1146 involved in monitoring Contractor’s performance under this Agreement, particularly with a written explanation regard 1147 to the assessment of their 2128 determination on each incident prior to assessing the Liquidated Damages. 2129 C. AmountExhibit F to this Agreement identifies each 1148 “Performance Area” for which the Agency desires to establish performance standards for this 1149 Agreement. County Contract Manager Contractor’s performance within each “Performance Area” shall be primarily 1150 monitored using the “Performance Indicator” described for each. The Agency shall not assess 1151 Liquidated Damages for the “Specific Performance Measures” identified in Exhibit F unless 1152 Contractor fails to meet the minimum standard for the “Performance Indicator” within the same 1153 “Performance Area”. 1154 X. Xxxxxx. Agency may assess Liquidated Damages for each calendar day or 2130 event, as 1155 appropriate, that Contractor is determined to be liable in accordance with this 2131 Agreement in the 1156 amounts specified in Exhibit F subject to annual adjustment described below. 2132 D. Timing 1157 X. Xxxxxx of Payment. Contractor shall pay any Liquidated Damages assessed by County Contract 2133 Manager Agency within 1158 ten (10) Business Days of the date the Liquidated Damages are assessed. If they 2134 are not paid 1159 within the ten (10) Business Day period, County Contract Manager Agency may proceed 2135 against the performance bond 1160 required by the Agreement, order the termination (subject to the 2136 provisions of Section 10.2) of the rights or “franchise” granted by this 1161 Agreement, or all of the above, except 2137 that no payment of Liquidated Damages shall be due to the County until any appeal by Contractor 2138 to the County Council has been decided. 2139 1162 10.7 EXCUSE FROM PERFORMANCE‌ 2140 Notwithstanding any other provision in this Agreement, each Party PERFORMANCE 1163 The Parties shall be excused from performing its 2141 their respective obligations hereunder and from any 1164 obligation to pay Liquidated Damages if that Party is 2142 they are prevented from so performing by reason of floods, 1165 earthquakes, other acts of nature, governmental 2143 actions (including judicial action) or inactions, laws or regulations, including, without limitation, 2144 restrictions, directives or orders, epidemics or pandemics that actually negatively impact such Party’s 2145 ability to perform, war, civil insurrection, riots, acts of any government (including judicial 1166 action), and other similar catastrophic events which are beyond 2146 the control of and not the fault of the 1167 Party claiming excuse from performance hereunder (each a “Force 2147 Majeure Event”)hereunder. 2148 In the case of labor unrest or job action directed at 1168 a third party over whom Contractor has no control, 2149 the inability of Contractor to provide services in 1169 accordance with this Agreement due to the unwillingness 2150 or failure of the third party to: (i) provide 1170 reasonable assurance of the safety of Contractor's employees 2151 while providing such services; or, (ii) make 1171 reasonable accommodations with respect to Container 2152 placement and point of Delivery, time of 1172 Collection, or other operating circumstances to minimize any 2153 confrontation with pickets or the number 1173 of Persons necessary to make Collections shall, to that limited 2154 extent, excuse performance. The 1174 foregoing excuse shall be conditioned on Contractor's cooperation in 2155 performing Collection services at 1175 different times and in different locations. Further, in the event of labor 2156 unrest, including but not limited 1176 to strike, work stoppage or slowdown, sickout, picketing, or other 2157 concerted job action conducted by 1177 the Contractor’s employees or directed at the Contractor, or a 2158 subsidiary, the Contractor shall not be 1178 excused from performance. In such case, Contractor shall continue 2159 to provide a reasonably satisfactory 1179 level of performance during the pendency thereof, but the Contractor 2160 shall not be required to adhere 1180 strictly to the specific requirements of this Agreement regarding routes, 2161 Collection times or similar 1181 matters; provided, however, that in no event shall more than seven (7) calendar 2162 days elapse between 1182 pickups for Residential and Commercial Customers. Any labor action initiated by 2163 Contractor, including but not limited to a lock-out, shall not be grounds for any excuse from performance 2164 and Contractor shall perform all obligations under this Agreement during the pendency of such 2165 Contractor-initiated labor action. 2166 1183 The Party claiming excuse from performance shall, within two (2) calendar days after such Party has 1184 notice 2167 of such cause, give the other Party notice of the facts constituting such cause and asserting its 1185 claim to 2168 excuse under this Section. 2169 1186 If either Party validly exercises its rights under this Section, the Parties hereby waive any claim against 2170 1187 each other for any damages sustained thereby. 2171 1188 The partial or complete interruption or discontinuance of Contractor's services caused by one (1) or 1189 more 2172 of the Force Majeure Events events described in this Article shall not constitute a default by Contractor under this 1190 Agreement. 2173 Notwithstanding the foregoing, however, if Contractor is excused from performing its 1191 obligations 2174 hereunder for any of the causes listed in this Section for a period of thirty (30) calendar days 1192 or more, 2175 County Agency shall nevertheless have the right, in its sole discretion, to terminate this Agreement by 1193 giving ten 2176 2177(10) Business Days’ notice to Contractor, in which case the provisions of Section 10.4 shall 1194 apply.

PERFORMANCE STANDARDS AND LIQUIDATED DAMAGES. ‌ 2076 1748 A. General. The Parties find that as of the time of the execution of this Agreement, it is 1749 impractical, 2077 if not impossible, to reasonably ascertain the extent of damages which shall 1750 be incurred by County 2078 as a result the RA Members because of a breach by Contractor of its obligations under 1751 this Agreement. The factors relating 2079 to the impracticability of ascertaining damages 1752 include, but are not limited to, the fact that: (i) 2080 substantial damage results to members of 1753 the public who are denied services or denied quality or 2081 reliable service; (ii) such breaches 1754 cause inconvenience, anxiety, frustration, and deprivation of 2082 the benefits of the 1755 Agreement to individual members of the general public for whose benefit this 2083 Agreement 1756 exists, in subjective ways and in varying degrees of intensity which are incapable of 2084 1757 measurement in precise monetary terms; (iii) that exclusive services might be available at 2085 1758 substantially lower costs than alternative services and the monetary loss resulting from 1759 denial of 2086 services or denial of quality or reliable services is impossible to calculate in 1760 precise monetary 2087 terms; and, (iv) the termination of this Agreement for such breaches, 1761 and other remedies are, at 2088 best, a means of future correction and not remedies which 1762 make the public whole for past 2089 breaches. 2090 1763 B. Service Performance Standards; Liquidated Damages for Failure to Meet Standards. The 1764 Parties 2091 further acknowledge that consistent, reliable Collection services are of utmost 1765 importance to 2092 County the RA Members and that County has the RA Members have considered and relied on 1766 Contractor's representations regarding as to its 2093 quality-of-quality of service commitment in awarding the 1767 Agreement to it. The Parties recognize that some 2094 quantified standards of performance are 1768 necessary and appropriate to ensure consistent and 2095 reliable service and performance. The 1769 Parties further recognize that if Contractor fails to achieve 2096 the performance standards or 1770 fails to submit required documents in a timely manner, County RA Members and 2097 its residents and 1771 businesses will suffer damages, and that it is, and will be, impractical and 2098 extremely 1772 difficult to ascertain and determine the exact amount of damages which County the RA Members 1773 will 2099 suffer. Therefore, without prejudice to County’s RA Members’ right to treat such non-performance 1774 non‐performance as an event 2100 of default under this Section, the Parties agree that the 1775 Liquidated Damages amounts established 2101 in Exhibit F Attachment G of this Agreement and the Liquidated Damage amounts therein represent a 1776 reasonable 2102 estimate of the amount of such damages considering all of the circumstances 1777 existing on the 2103 Effective Date of this Agreement, including the relationship of the sums to 1778 the range of harm to 2104 County the RA Members that reasonably could be anticipated and the 1779 anticipation that proof of actual damages 2105 would be costly or impractical. 2106 1780 Contractor agrees to pay (as Liquidated Damages and not as a penalty) the amounts set 1781 forth in 2107 the Performance Standards and Liquidated Damages, Exhibit F. 2108 Before Attachment G. 1782 In addition to considering the reports submitted by Contractor pursuant to Section 7.3, 1783 the RA Members may determine the occurrence of events giving rise to liquidated 1784 damages through the observation of its own employees or agents, through discussions 1785 with Customers, and through investigation of Customer complaints made directly to the 1786 Regional Agency or RA Members. Prior to assessing Liquidated DamagesDamages based on such 1787 observations or investigations, County Contract Manager the Regional Agency shall give Contractor notice of 2109 County’s its 1788 intention to do so. The notice will also include a brief description of the incident(s) and non- 2110 incident(s)/non- 1789 performance. County Contract Manager Contractor may review (and make copies at County’s its own expense) 2111 all non- 1790 confidential information in the possession of Contractor the Member Agencies or Regional Agency 1791 relating to incident(s) and/or nonincident(s)/non-performance. 2112 Contractor may, within ten (10) Business Days after 1792 receiving the notice, request a meeting with 2113 County Contract Manager. County Regional Agency Contract Manager or his or 1793 her designee. Contractor may present evidence of non-performance 2114 in writing and through testimony of County’s its 1794 employees and others relevant to the incident(s) 2115 and nonincident(s)/non-performance. County The Regional Agency 1795 Contract Manager or his or her designee will provide Contractor with a written 2116 1796 explanation of their her or her determination on each incident(s) and nonincident(s)/non-performance prior to 1797 authorizing 2117 the assessment of Liquidated Damages under this Section 10.6Damages. The decision of County the Regional Agency 1798 Contract 2118 Manager or his or her designee shall be final. 1799 C. Two‐Phase Performance Management. The Parties desire to minimize the time and cost 1800 involved in monitoring Contractor’s performance under this Agreement, particularly about 1801 the assessment of Liquidated Damages. Attachment G to this Agreement identifies each 1802 “Performance Area” for which the RA Members desire to establish performance standards 1803 for this Agreement. Contractor’s performance within each “Performance Area” shall be 1804 primarily monitored using the “Performance Indicator” described for each. The RA 1805 Members shall not assess Liquidated Damages that exceed $30,000 for the “Specific Performance Measures” 1806 identified in total may be appealed by 2119 Attachment G unless Contractor fails to meet the County Council by filing an appeal with minimum standard for the County Clerk 1807 “Performance Indicator” within ten (10) Business 2120 Days of the County Contract Manager’s decisionsame “Performance Area”. If Contractor has made such an appeal within 2121 the required timeframe, the intended assessment of Liquidated Damages will not be imposed on 2122 Contractor until the County Council issues a decision. In such case, the decision of the County 2123 Council shall be final and Contractor shall not be subject to, or required to exhaust, any further 2124 administrative remedies. Should Contractor not exercise its right to appeal as described in this 2125 paragraph, and in all other cases, the decision of the County Contract Manager shall be final and 2126 Contractor shall not be subject to, or required to exhaust, any further administrative remedies. 2127 The County Contract Manager shall provide Contractor with a written explanation of their 2128 determination on each incident prior to assessing the Liquidated Damages. 2129 C. 1808 D. Amount. County Contract Manager The RA Members may assess Liquidated Damages for each calendar day or 2130 1809 event, as appropriate, that Contractor is determined to be liable in accordance with this 2131 1810 Agreement in the amounts specified in Exhibit F Attachment G subject to annual adjustment 1811 described below. 2132 D. 1812 E. Timing of Payment. Contractor shall pay any Liquidated Damages assessed by County Contract 2133 Manager the RA 1813 Members within ten (10) Business Days of the date the Liquidated Damages are assessed. 1814 If they 2134 are not paid within the ten (10) Business Day period, County Contract Manager RA Members may proceed 2135 1815 against the performance bond required by the Agreement, order the termination (subject to the 2136 provisions of Section 10.2) of the 1816 rights or “franchise” granted by this Agreement, or all of the above, except 2137 that no payment of Liquidated Damages shall be due to the County until any appeal by Contractor 2138 to the County Council has been decided. 2139 10.7 EXCUSE FROM PERFORMANCE‌ 2140 Notwithstanding any other provision in this Agreement, each Party shall be excused from performing its 2141 respective obligations hereunder and from any obligation to pay Liquidated Damages if that Party is 2142 prevented from so performing by reason of floods, earthquakes, other acts of nature, governmental 2143 actions (including judicial action) or inactions, laws or regulations, including, without limitation, 2144 restrictions, directives or orders, epidemics or pandemics that actually negatively impact such Party’s 2145 ability to perform, war, civil insurrection, riots, and other similar catastrophic events which are beyond 2146 the control of and not the fault of the Party claiming excuse from performance hereunder (each a “Force 2147 Majeure Event”). 2148 In the case of labor unrest or job action directed at a third party over whom Contractor has no control, 2149 the inability of Contractor to provide services in accordance with this Agreement due to the unwillingness 2150 or failure of the third party to: (i) provide reasonable assurance of the safety of Contractor's employees 2151 while providing such services; or, (ii) make reasonable accommodations with respect to Container 2152 placement and point of Delivery, time of Collection, or other operating circumstances to minimize any 2153 confrontation with pickets or the number of Persons necessary to make Collections shall, to that limited 2154 extent, excuse performance. The foregoing excuse shall be conditioned on Contractor's cooperation in 2155 performing Collection services at different times and in different locations. Further, in the event of labor 2156 unrest, including but not limited to strike, work stoppage or slowdown, sickout, picketing, or other 2157 concerted job action conducted by the Contractor’s employees or directed at the Contractor, or a 2158 subsidiary, the Contractor shall not be excused from performance. In such case, Contractor shall continue 2159 to provide a reasonably satisfactory level of performance during the pendency thereof, but the Contractor 2160 shall not be required to adhere strictly to the specific requirements of this Agreement regarding routes, 2161 Collection times or similar matters; provided, however, that in no event shall more than seven (7) calendar 2162 days elapse between pickups for Residential and Commercial Customers. Any labor action initiated by 2163 Contractor, including but not limited to a lock-out, shall not be grounds for any excuse from performance 2164 and Contractor shall perform all obligations under this Agreement during the pendency of such 2165 Contractor-initiated labor action. 2166 The Party claiming excuse from performance shall, within two (2) calendar days after such Party has notice 2167 of such cause, give the other Party notice of the facts constituting such cause and asserting its claim to 2168 excuse under this Section. 2169 If either Party validly exercises its rights under this Section, the Parties hereby waive any claim against 2170 each other for any damages sustained thereby. 2171 The partial or complete interruption or discontinuance of Contractor's services caused by one (1) or more 2172 of the Force Majeure Events shall not constitute a default by Contractor under this Agreement. 2173 Notwithstanding the foregoing, however, if Contractor is excused from performing its obligations 2174 hereunder for any of the causes listed in this Section for a period of thirty (30) calendar days or more, 2175 County shall nevertheless have the right, in its sole discretion, to terminate this Agreement by giving ten 2176 2177.

PERFORMANCE STANDARDS AND LIQUIDATED DAMAGES. ‌ 2076 1748 A. General. The Parties find that as of the time of the execution of this Agreement, it is 1749 impractical, 2077 if not impossible, to reasonably ascertain the extent of damages which shall 1750 be incurred by County 2078 as a result the RA Members because of a breach by Contractor of its obligations under 1751 this Agreement. The factors relating 2079 to the impracticability of ascertaining damages 1752 include, but are not limited to, the fact that: (i) 2080 substantial damage results to members of 1753 the public who are denied services or denied quality or 2081 reliable service; (ii) such breaches 1754 cause inconvenience, anxiety, frustration, and deprivation of 2082 the benefits of the 1755 Agreement to individual members of the general public for whose benefit this 2083 Agreement 1756 exists, in subjective ways and in varying degrees of intensity which are incapable of 2084 1757 measurement in precise monetary terms; (iii) that exclusive services might be available at 2085 1758 substantially lower costs than alternative services and the monetary loss resulting from 1759 denial of 2086 services or denial of quality or reliable services is impossible to calculate in 1760 precise monetary 2087 terms; and, (iv) the termination of this Agreement for such breaches, 1761 and other remedies are, at 2088 best, a means of future correction and not remedies which 1762 make the public whole for past 2089 breaches. 2090 1763 B. Service Performance Standards; Liquidated Damages for Failure to Meet Standards. The 1764 Parties 2091 further acknowledge that consistent, reliable Collection services are of utmost 1765 importance to 2092 County the RA Members and that County has the RA Members have considered and relied on 1766 Contractor's representations regarding as to its 2093 quality-of-quality of service commitment in awarding the 1767 Agreement to it. The Parties recognize that some 2094 quantified standards of performance are 1768 necessary and appropriate to ensure consistent and 2095 reliable service and performance. The 1769 Parties further recognize that if Contractor fails to achieve 2096 the performance standards or 1770 fails to submit required documents in a timely manner, County RA Members and 2097 its residents and 1771 businesses will suffer damages, and that it is, and will be, impractical and 2098 extremely 1772 difficult to ascertain and determine the exact amount of damages which County the RA Members 1773 will 2099 suffer. Therefore, without prejudice to County’s RA Members’ right to treat such non-performance 1774 non‐performance as an event 2100 of default under this Section, the Parties agree that the 1775 Liquidated Damages amounts established 2101 in Exhibit F Attachment G of this Agreement and the Liquidated Damage amounts therein represent a 1776 reasonable 2102 estimate of the amount of such damages considering all of the circumstances 1777 existing on the 2103 Effective Date of this Agreement, including the relationship of the sums to 1778 the range of harm to 2104 County the RA Members that reasonably could be anticipated and the 1779 anticipation that proof of actual damages 2105 would be costly or impractical. 2106 1780 Contractor agrees to pay (as Liquidated Damages and not as a penalty) the amounts set 1781 forth in 2107 the Performance Standards and Liquidated Damages, Exhibit F. 2108 Before Attachment G. 1782 In addition to considering the reports submitted by Contractor pursuant to Section 7.3, 1783 the RA Members may determine the occurrence of events giving rise to liquidated 1784 damages through the observation of its own employees or agents, through discussions 1785 with Customers, and through investigation of Customer complaints made directly to the 1786 Regional Agency or RA Members. Prior to assessing Liquidated DamagesDamages based on such 1787 observations or investigations, County Contract Manager the Regional Agency shall give Contractor notice of 2109 County’s its 1788 intention to do so. The notice will also include a brief description of the incident(s) and non- 2110 incident(s)/non- 1789 performance. County Contract Manager Contractor may review (and make copies at County’s its own expense) 2111 all non- 1790 confidential information in the possession of Contractor the Member Agencies or Regional Agency 1791 relating to incident(s) and/or nonincident(s)/non-performance. 2112 Contractor may, within ten (10) Business Days after 1792 receiving the notice, request a meeting with 2113 County Contract Manager. County Regional Agency Contract Manager or his or 1793 her designee. Contractor may present evidence of non-performance 2114 in writing and through testimony of County’s its 1794 employees and others relevant to the incident(s) 2115 and nonincident(s)/non-performance. County The Regional Agency 1795 Contract Manager or his or her designee will provide Contractor with a written 2116 1796 explanation of their her or her determination on each incident(s) and nonincident(s)/non-performance prior to 1797 authorizing 2117 the assessment of Liquidated Damages under this Section 10.6Damages. The decision of County the Regional Agency 1798 Contract 2118 Manager or his or her designee shall be final. 1799 C. Two‐Phase Performance Management. The Parties desire to minimize the time and cost 1800 involved in monitoring Contractor’s performance under this Agreement, particularly about 1801 the assessment of Liquidated Damages. Attachment G to this Agreement identifies each 1802 “Performance Area” for which the RA Members desire to establish performance standards 1803 for this Agreement. Contractor’s performance within each “Performance Area” shall be 1804 primarily monitored using the “Performance Indicator” described for each. The RA 1805 Members shall not assess Liquidated Damages that exceed $30,000 for the “Specific Performance Measures” 1806 identified in total may be appealed by 2119 Attachment G unless Contractor fails to meet the County Council by filing an appeal with minimum standard for the County Clerk 1807 “Performance Indicator” within ten (10) Business 2120 Days of the County Contract Manager’s decisionsame “Performance Area”. If Contractor has made such an appeal within 2121 the required timeframe, the intended assessment of Liquidated Damages will not be imposed on 2122 Contractor until the County Council issues a decision1808 X. Xxxxxx. In such case, the decision of the County 2123 Council shall be final and Contractor shall not be subject to, or required to exhaust, any further 2124 administrative remedies. Should Contractor not exercise its right to appeal as described in this 2125 paragraph, and in all other cases, the decision of the County Contract Manager shall be final and 2126 Contractor shall not be subject to, or required to exhaust, any further administrative remedies. 2127 The County Contract Manager shall provide Contractor with a written explanation of their 2128 determination on each incident prior to assessing the Liquidated Damages. 2129 C. Amount. County Contract Manager RA Members may assess Liquidated Damages for each calendar day or 2130 1809 event, as appropriate, that Contractor is determined to be liable in accordance with this 2131 1810 Agreement in the amounts specified in Exhibit F Attachment G subject to annual adjustment 1811 described below. 2132 D. Timing 1812 X. Xxxxxx of Payment. Contractor shall pay any Liquidated Damages assessed by County Contract 2133 Manager the RA 1813 Members within ten (10) Business Days of the date the Liquidated Damages are assessed. 1814 If they 2134 are not paid within the ten (10) Business Day period, County Contract Manager RA Members may proceed 2135 1815 against the performance bond required by the Agreement, order the termination (subject to the 2136 provisions of Section 10.2) of the 1816 rights or “franchise” granted by this Agreement, or all of the above, except 2137 that no payment of Liquidated Damages shall be due to the County until any appeal by Contractor 2138 to the County Council has been decided. 2139 10.7 EXCUSE FROM PERFORMANCE‌ 2140 Notwithstanding any other provision in this Agreement, each Party shall be excused from performing its 2141 respective obligations hereunder and from any obligation to pay Liquidated Damages if that Party is 2142 prevented from so performing by reason of floods, earthquakes, other acts of nature, governmental 2143 actions (including judicial action) or inactions, laws or regulations, including, without limitation, 2144 restrictions, directives or orders, epidemics or pandemics that actually negatively impact such Party’s 2145 ability to perform, war, civil insurrection, riots, and other similar catastrophic events which are beyond 2146 the control of and not the fault of the Party claiming excuse from performance hereunder (each a “Force 2147 Majeure Event”). 2148 In the case of labor unrest or job action directed at a third party over whom Contractor has no control, 2149 the inability of Contractor to provide services in accordance with this Agreement due to the unwillingness 2150 or failure of the third party to: (i) provide reasonable assurance of the safety of Contractor's employees 2151 while providing such services; or, (ii) make reasonable accommodations with respect to Container 2152 placement and point of Delivery, time of Collection, or other operating circumstances to minimize any 2153 confrontation with pickets or the number of Persons necessary to make Collections shall, to that limited 2154 extent, excuse performance. The foregoing excuse shall be conditioned on Contractor's cooperation in 2155 performing Collection services at different times and in different locations. Further, in the event of labor 2156 unrest, including but not limited to strike, work stoppage or slowdown, sickout, picketing, or other 2157 concerted job action conducted by the Contractor’s employees or directed at the Contractor, or a 2158 subsidiary, the Contractor shall not be excused from performance. In such case, Contractor shall continue 2159 to provide a reasonably satisfactory level of performance during the pendency thereof, but the Contractor 2160 shall not be required to adhere strictly to the specific requirements of this Agreement regarding routes, 2161 Collection times or similar matters; provided, however, that in no event shall more than seven (7) calendar 2162 days elapse between pickups for Residential and Commercial Customers. Any labor action initiated by 2163 Contractor, including but not limited to a lock-out, shall not be grounds for any excuse from performance 2164 and Contractor shall perform all obligations under this Agreement during the pendency of such 2165 Contractor-initiated labor action. 2166 The Party claiming excuse from performance shall, within two (2) calendar days after such Party has notice 2167 of such cause, give the other Party notice of the facts constituting such cause and asserting its claim to 2168 excuse under this Section. 2169 If either Party validly exercises its rights under this Section, the Parties hereby waive any claim against 2170 each other for any damages sustained thereby. 2171 The partial or complete interruption or discontinuance of Contractor's services caused by one (1) or more 2172 of the Force Majeure Events shall not constitute a default by Contractor under this Agreement. 2173 Notwithstanding the foregoing, however, if Contractor is excused from performing its obligations 2174 hereunder for any of the causes listed in this Section for a period of thirty (30) calendar days or more, 2175 County shall nevertheless have the right, in its sole discretion, to terminate this Agreement by giving ten 2176 2177.