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(D) Power to Obligate Waste Disposal and Comply with this Agreement. On or before the
<br />Commencement Date, (i) any City franchise, contract, lease, or other agreement which is lawfully in effect relating
<br />to or affecting Controllable Waste shall provide, or shall have been amended to provide, that the City shall have the
<br />right without material restriction on and after the Commencement Date to direct the delivery of all Controllable
<br />Waste to a disposal location selected by the City (whether or not such Controllable Waste is delivered to a transfer
<br />station as an intermediate step prior to landfill disposal) and otherwise to comply with its obligations under this
<br />Agreement with respect to Controllable Waste and Franchise Haulers, and (ii) the City shall designate the Disposal
<br />System as the disposal location pursuant to such franchise, contract, lease or other agreement. On and after the
<br />Commencement Date and throughout the Term of this Agreement the City (a) shall not enter into any franchise,
<br />contract, lease, agreement or obligation, issue any permit, license or approval, or adopt any ordinance, resolution or
<br />law which is materially inconsistent with the requirements of the Waste Disposal Covenant, and (b) shall maintain
<br />non-exclusive or exclusive franchises or other contractual arrangements over any City Acceptable Waste which, as
<br />of the Contract Date, is subject to non-exclusive or exclusive franchise or other contractual arrangements. The City
<br />agrees that the County shall be a third party beneficiary of the obligation of Franchise Haulers to deliver
<br />Controllable Waste to the Disposal System, and may directly enforce such obligation through any legal means
<br />available. The City shall notify in writing each Franchise Hauler of the County's third party beneficiary rights.
<br />(E) Waste Flow Enforcement. (1)The City, in cooperation with the Department, shall
<br />establish, implement, carry out and enforce a waste flow enforcement program which is sufficient to assure the
<br />delivery of all Controllable Waste to the Disposal System pursuant to and in accordance with the Waste Disposal
<br />Covenant for disposal at the times and in the manner provided herein. The waste flow enforcement program shall
<br />consist of amending City franchises, permits or authorizations with all Franchise Haulers, to the extent required by
<br />this Section and to the extent allowed by law, and shall include in addition, to the extent necessary and appropriate
<br />in the circumstances to assure compliance with the Waste Disposal Covenant, but shall not be limited to:
<br />(i) licensing or permitting Franchise Haulers, upon the condition of compliance with the Waste Disposal Covenant,
<br />(ii) providing for and taking appropriate enforcement action under any such franchise, license, or permit, such as but
<br />not limited to the suspension, revocation and termination of collection rights and privileges, the imposition of fines
<br />or collection of damages, and the exercise of injunctive relief against non -complying Franchise Haulers and
<br />(iii) causing any Transfer Station to which Controllable Waste is delivered for processing to deliver certification,
<br />under the penalty of perjury, of the amounts of Controllable Waste received and Residue remaining from processing
<br />at such Transfer Station.
<br />(2) The City acknowledges and agrees that in the event of a breach of the Waste Disposal Covenant by the
<br />City, the City shall pay the County an amount equal to the amount that the City would have been required to pay to
<br />the County had the Waste Disposal Covenant not been breached, which shall be calculated by (x) subtracting the
<br />number of tons actually delivered during the month(s) of the breach from the number of tons that were delivered
<br />during the same month(s) closest in time when there was no such breach, even if such month(s) closest in time was
<br />prior to the Term, and (y) multiplying such amount by the Contract Rate in effect at the time of such breach (or any
<br />higher rate with respect to which the County has provided notice pursuant to Section 4.2). In the event that the
<br />County terminates the Waste Disposal Agreement as a result of such breach, the damages due as a result of such
<br />termination shall be equal to (as) the average monthly deliveries by the City for the twelve months prior to the
<br />commencement of the breach multiplied by (bb) the Contract Rate in effect at the time of such breach (or any higher
<br />rate with respect to which the County has provided notice pursuant to Section 4.2), multiplied by (cc) the number of
<br />months that would have remained in the Term of the Agreement had the termination not occurred. The parties
<br />recognize that if the City fails to meet its obligations hereunder, the County will suffer damages and that it is and
<br />will be impracticable and extremely difficult to ascertain and determine the exact amount of such damages.
<br />Therefore, the patties agree that the damages specified above represent a reasonable estimate of the amount of such
<br />damages, considering all of the circumstances existing on the date hereto, including the relationship of the sums to
<br />the range of harm to the County that reasonably could be anticipated and anticipation that proof of actual damages
<br />would be costly or inconvenient. In signing this Agreement, each party specifically confirms the accuracy of the
<br />statements made above and the fact that each party had ample opportunity to consult with legal counsel and obtain
<br />an explanation of this liquidated damage provision at the time that this Agreement was made.
<br />(F) Leerd Challenges to Franchise System,
<br />The City shall use its best efforts to preserve,
<br />protect and defend its right to exercise and comply with the Waste Disposal Covenant against any challenge thereto,
<br />legal or otherwise (including any lawsuits against the City or the County, whether as plaintiff or defendant), by a
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<br />nzeculion Copy
<br />August 17, 2021 6 - 19 City of Santa Ana
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