2008-07-22 Resolution_702-08_re_Violations_of_federal_clean_air_act_gas_emissions_and_controls_for_West_Hawaii_Landfill

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incidental thereto, including attorneys' fees (collectively, "Damages"), which WMH may hereafter suffer, incur, be responsible for or pay out,arising from or in connection with any future County breach of the following paragraphs of the CAFO: (a) Paragraphs 33, 34, and 37 through 42 (Supplemental Environmental Project); (b) Paragraph 36 (Certification of SEP), with respect to the County's certifications thereunder; (c) Paragraph 44 (Stipulated Penalties for Failure to Complete SEP or Spend 90% of SEP amount); and (d) Paragraphs 45 and 46, to the extent such Damages arise as a result of the County's failure to complete the SEP in accordance with Paragraphs 33, 34, and 37 through 42. 4. Limitation on Damages. Neither Party shall be liable for any special, indirect, incidental, consequential, or punitive damages of any nature arising out of the performance of this Agreement, including, without limitation, loss of actual or anticipated income, revenue, profits, financing, business, or reputation, loss of use of facilities, or loss of management or employee productivity or of the services of such person. 5. No Waiver or Admission. Nothing in this Agreement shall be construed as an admission by either Party hereto of any allegation or statement contained in the CAFO,unless and to the extent that such allegation or statement is expressly admitted therein by the Party. 6. Legal Fees. In the event any legal action is taken by either Party against the other Party to enforce any of the terms and conditions of this Agreement, it is agreed that the unsuccessful Party to such action shall pay to the prevailing Party therein all court costs, reasonable attorneys' fees and expenses incurred by the prevailing Party. 7. Relationship of the Parties. The execution of this Agreement shall not create any agency, partnership,joint venture, association, or any other relationship between the Parties other than as independent contracting parties. Neither Party shall act as an agent for the other party. Nor shall have the authority to bind or make commitments on behalf of the other Party. 8. Entire Agreement; Amendment. This Agreement constitutes the entire agreement among the Parties concerning the subject matter hereof and supersedes all previous correspondence, communications, agreements and understandings,whether oral or written among the Parties. This Agreement may not be modified, in whole or in part, except upon unanimous approval of the Parties and by a writing signed by all the Parties. 9. Advice of Counsel. This Agreement was negotiated at arms-length with each Party receiving advice from independent legal counsel. It is the intent of the Parties that no part of this Agreement be construed against either of the Parties because of the identity of the drafter. Page 3 of 5