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N <br />b. Should Owner reasonably determine that Contractor has failed to perform the Work related to <br />a Request for Payment, or fail to meet acceptable Performance Measures, Owner, at its <br />discretion may withhold the final payment without penalty until such time as Contractor cures <br />the breach. <br />(i) Should Contractor or its representatives fail to cure the breach within ninety (90) <br />business days, or fail to reasonably agree to such modified schedule, Owner may <br />immediately terminate this Agreement in writing, without penalty or incurring further <br />obligation to Contractor. <br />(ii) This section shall not be interpreted to limit the definition of breach to the failure to <br />perform the Work related to a Request for Payment. <br />c. The Contractor has included in the Contract Price and shall pay all taxes assessed by any <br />authority on the Work or the labor and materials used therein. It shall be the Contractor's <br />responsibility to furnish the Owner documentary evidence showing the materials used and <br />sales and use tax paid by the Contractor and each of its subcontractors. <br />d. Should the Owner receive notice that the Contractor has failed to pay a Subcontractor for the <br />Work performed related to a Request for Payment, Owner shall have the authority to withhold <br />payment of the disputed amount until parties resolve their dispute. Failure to pay the <br />Contractor pursuant to this section of the Agreement shall not be deemed to be a breach of the <br />Agreement. <br />6. NON — APPROPRIATION <br />a. Contractor acknowledges that Owner is a governmental entity, and the validity of this <br />Agreement is based upon the availability of public funding under the authority of its statutory <br />mandate. <br />b. In the event that public funds are unavailable and not appropriated for the performance of <br />Owner's obligations under this Agreement, then this Agreement shall automatically expire <br />without penalty to Owner immediately upon written notice to Contractor of the unavailability <br />and non - appropriation of public funds. It is expressly agreed that Owner shall not activate this <br />non - appropriation provision for its convenience or to circumvent the requirements of this <br />Agreement, but only as an emergency fiscal measure during a substantial fiscal crisis. <br />c. In the event of a change in the Owner's statutory authority, mandate and/or mandated <br />functions, by state and /or federal legislative or regulatory action, which adversely affects <br />Owner's authority to continue its obligations under this Agreement, then this Agreement shall <br />automatically terminate without penalty to Owner upon written notice to Contractor of such <br />limitation or change in Owner's legal authority. <br />7. NOTICES <br />Any notice required by this Agreement shall be in writing and delivered by certified or registered mail, <br />return receipt requested to the following: <br />Owner: Contractor: <br />Orange County Open Broadband, LLC <br />Attn: Alan Fitzpatrick <br />5 <br />