65B - INITIATION OF NEW SOLID WASTE SRVS CONTRACT PROCESS

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35. DEFAULT. DAMAGES AND TERMINATION OF AGREEMENT: (a) In the event CONTRACTOR defaults in the performance of any of the obligations, covenants or agreements to be kept, done or performed by it under the terms of this Agreement, or any other applicable Federal, State, or local law or regulation, the CITY shall notify CONTRACTOR in writing of the nature of such default. (b) The Executive Director may, in such written instrument, set a reasonable time within which correction of all such deficiencies is to be made. Unless otherwise specified, a reasonable time for correction shall be thirty (30) days from the receipt by the CONTRACTOR of such written notice. If the CONTRACTOR cannot reasonably correct or remedy the breach within the time set forth in such notice, CONTRACTOR shall still be required to commence to correct or remedy the violation within such time as set forth in the notice and shall be required to diligently achieve such correction or remedy as soon thereafter as possible. (c) The Executive Director shall review the CONTRACTOR's response to the notice of deficiencies and shall either decide the matter and notify the CONTRACTOR of that decision in writing, or, refer the matter to the City Council. A decision or order of the Executive Director shall be final and binding on CONTRACTOR if the CONTRACTOR fails to file a "Notice of Appeal" with the City Clerk within 10 days of receipt of the Executive Director's decision. Within thirty working days of receipt of a Notice of Appeal, the City Clerk shall refer the appeal to the City Council for proceedings in accordance with Chapter three of the Santa Ana Municipal Code. (d) In such case, the City Council may set the matter for hearing. The City Clerk shall give CONTRACTOR written notice of the time and place of the hearing. At the hearing, the City Council shall consider the report of the Executive Director indicating the deficiencies, and shall give the CONTRACTOR a reasonable opportunity to be heard. (e) Based on the evidence presented at the public hearing, the City Council shall determine by Resolution whether this Agreement should be terminated. If, based upon the record, the City Council determines that the performance of CONTRACTOR is in breach of any material term of this Agreement or any material provision of any applicable Federal, State, or local statute or regulation, the City Council, in the exercise of its sole discretion, may terminate forthwith the Agreement. The decision of the City Council shall be final and conclusive, CONTRACTOR's performance under the Agreement is not excused during the period of time prior to the City Council's final determination as to whether such performance is deficient. (f) The rights of termination or imposition of liquidated damages, as set forth in Section 36 hereof, are in addition to any other rights of CITY upon a failure of CONTRACTOR to perform its obligations under this Agreement. The CITY further reserves the right to terminate CONTRACTOR's Agreement or impose liquidated damages in the event of any of the following: the CITY; (1) If the CONTRACTOR practices, or attempts to practice, any fraud upon 23 65B-33