Item 20 - Solid Waste Services Proposers

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RFP No. 20-097 - Collection and Handling of Solid Waste Generated, Produced and/or Accumulated in the City of Santa Ana 29 or denial of quality or reliable services is impossible to calculate in precise monetary terms; and (iv) the termination of this Agreement for such specific breaches, and other remedies are, at best, a means of future correction and not remedies which make the public whole for past breaches. B. Service Performance Standards; Liquidated Damages for Failure to Meet Standards. The parties further acknowledge that consistent, reliable Solid Waste Handling Service is of utmost importance to City and that City has considered and relied on Contractor's representations as to its quality of service commitment in entering this Agreement. The Parties further recognize City asserts that some quantified standards of performance are necessary and appropriate to ensure consistent and reliable service and performance. The Parties further recognize City asserts that if Contractor fails to achieve the performance standards, or fails to submit required documents in a timely manner, City and its residents will suffer damages and that it is and will be impractical and extremely difficult to ascertain and determine the exact amount of damages which City will suffer. Therefore, without prejudice to City's right to treat such breaches as an event of default under this Article 11, the Parties agree City asserts that the following liquidated damage amounts represent a reasonable estimate of the amount of such damages for such specific breaches, considering all of the circumstances existing on the date of this Agreement, including the relationship of the sums to the range of harm to City that reasonably could be anticipated and the anticipation that proof of actual damages would be costly or impractical. In placing their initials at the places provided, each party specifically confirms the accuracy of the statements Contractor acknowledges the City’s assertions made above and the fact that each party has had ample opportunity to consult with legal counsel and obtain an explanation of the liquidated damage provisions at the time that the Agreement was made. Contractor City Initial Here Initial Here City asserts that Contractor agrees to pay is liable for (as liquidated damages and not as a penalty) the amounts set forth below: Rationale: Contractor is unable to agree at this time to the City’s assertion regarding the liquidated damage amounts since it declined Contractor’s request for an analysis consistent with the standards set forth in Ridgley v. Topa Thrift & Loan Assn. (1998) 17 Cal.4th 970. As held by the California Supreme Court in Ridgley, to be enforceable liquidated damages must represent a reasonable estimate of the damages to be incurred as of the time a contract is entered into. If not, any attempt to impose these charges would be an unenforceable penalty. However, Contractor would be willing to discuss this issue further as part of contract negotiations. Contractor understands the general need for these provisions, but they must be in amounts that satisfy the legal standard set by Ridgley. Section 11.6, (first paragraph) – Notice, Hearing and Appeal of City Breach Should Contractor contend that City is in breach of this Agreement, or it wishes to contest a determination made by the City related to the services to be performed hereunder, it shall file with the Executive Director of Public Works a written request with City for an administrative hearing. Said request shall be made within ninety (90) one (1) days year of the event or incident which allegedly gave rise to the breach. City shall notify Contractor of the time and date said hearing shall be held within thirty (30) days of receipt of Contractor's request. Contractor shall present its position and all relevant facts after City staff has made its presentation. Contractor shall be notified of City's ruling in writing within fourteen (14) days of the administrative hearing. The City’s administrative ruling shall be final. Rationale: This revision broadens the types of matters that can be subject to appeal to extend to all City determinations. Examples of this include, for instance, disagreements over service requirements at Attachment 6 6 - 14