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FINAL EXECUTION COPY <br /> the Designated State Representative . If the Company fails to <br /> cure or otherwise resolve the alleged non-compliance within <br /> the time provided by the State, the Company shall, subject to <br /> the terms of this Section, be subject to a civil penalty of <br /> up to Five Thousand Dollars ($5, 000) for each day of such <br /> non-compliance as assessed by the State pursuant to Health & <br /> Safety Code Section 25188. <br /> No penalty shall be imposed or paid under this <br /> Section if the Company can establish that its failure to <br /> comply with a deadline (a) is due solely to an Act of God or <br /> other event or party over which the Company has no control, <br /> or (b) has been otherwise excused by the Department and/or <br /> Board through the Designated State Representative, or (c) is <br /> not a breach of its obligations under the Agreement and <br /> Order. <br /> Nothing in this Agreement or Order shall be con- <br /> strued to be a waiver by the Company of its constitutional, <br /> statutory or contractual rights to contest or appeal the <br /> imposition of any fine or other penalty based on its alleged <br /> non-compliance with the terms of this Agreement and/or Order. <br /> XI <br /> In consideration of the Company' s commitments in <br /> this Agreement and Order, the Department hereby covenants not <br /> to initiate or itself take judicial action or any other <br /> administrative or judicial enforcement action, including but <br /> not limited to any action seeking civil monetary penalties, <br /> against McCormick & Baxter based on the Company' s alleged <br /> 9 of 23 <br />