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(D) Power to Obligate Waste Disposal and Complv 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 (aa) 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 parties 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) Leeal Challenges to Franchise Svstem. 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 <br />10 <br />Execution Copy <br />