25F - AGMT EXTENSION OF THE SOLID WASTE SERVICES

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be entitled to cancel this Agreement if the CITY, within seven (7) days after receipt of notice of the claimed default, deposits the amount in controversy into an interest bearing account in a commercial bank or lending institution and maintains such deposit until such time as a final judicial decision or agreement between the parties detennines the rightful disposition of the said atmormt in controversy; provided that CONTRACTOR shall be deemed to have waived all claims to the said amount if no agreement is reached nor any legal proceeding initiated within ninety (90) days of the CONTRACTOR's service of written notice of default on the CITY. 38. LIQUIDATED DAMAGES: (a) The CITY finds, and the CONTRACTOR agrees, that as of the time of the execution of this Agreement it is impractical, if not impossible, to reasonably ascertain the extent of damages which shall be incurred by the CITY as a result of a breach by CONTRACTOR of its obligations under this Agreement. The factors relating to the impracticability of ascertaining damages include, but are not limited to, the fact that: (i) substantial damage results to members of the public who are denied Solid Waste collection services or denied quality or reliable collection service; (ii) such breaches cause inconvenience, anxiety, frustration, and deprivation of the benefits of this Agreement to individual members of the general public for whose benefit this Agreement exists, in subjective ways and in varying degrees of intensity which are incapable of measurement in precise monetary terms; (iii) that the monetary loss resulting from denial of services or denial of quality or reliable services is impossible to calculate in precise monetary terms; and, (iv) the termination of this Agreement for such breaches, and other remedies are, at best, a means of future correction and not remedies which make the public whole for past breaches. (b) Accordingly, the CITY may, in its discretion but after complying with the notice and hearing procedures set forth in Section 35, assess liquidated damages of Five Hundred Dollars ($500.00) per day, for each calendar day that collection service is not provided by CONTRACTOR in accordance with this Agreement. The amount of the liquidated damages shall be subject to an annual CPI adjustment computed at one hundred (100%) percent of the CPI for All Urban Consumers (base years 1982-1984 = 100) for Los Angeles -Anaheim -Riverside CMSA, published by the United States Department of Labor, Bureau of Labor Statistics. (c) The CITY finds, and the CONTRACTOR acknowledges and agrees, that the above described liquidated damages provisions represent a reasonable sum in light of all of the circumstances. Said liquidated damages sums shall be applicable to each calendar day of delay during which CONTRACTOR has been found by the CITY to be in default after having been given the proper notice and hearing set forth in Section 35 of this Agreement. The CONTRACTOR shall pay any liquidated damages assessed by the CITY within ten (10) calendar days after they are assessed. If they are not paid within the ten (10) day period, the CITY may order the termination of this Agreement. 39. USE BY CITY OF CONTRACTOR'S EQUIPMENT: Upon cancellation of this Agreement by either party for any reason prior to the end of the period specified herein as the term of this Agreement, the CITY shall have the exclusive right to rent or lease and operate any or all trucks, trailers, tractors and other items of equipment used by 25P-39