Common use of Enforcement and Termination Clause in Contracts

Enforcement and Termination. 58. The United States shall provide West Virginia with written notice of any asserted breach, and shall engage in good faith discussions to resolve the dispute before seeking judicial enforcement. For conditions or practices that pose an immediate and serious threat to the life, health, or safety of individuals covered by this agreement, DHHR shall have seven (7) days from the date of the United States giving notice to cure the asserted breach. For all other conditions or practices, West Virginia shall have up to 60 days from the date of the notice to cure the asserted breach. 59. If the Parties are unable to reach a resolution of any asserted breach, the United States may file a lawsuit for breach of this agreement, or any provision thereof, in the United States District Court for the Southern District of West Virginia. In any action filed under this Paragraph, West Virginia agrees not to contest the exercise of personal jurisdiction over it by this Court and not to raise any challenge on the basis of venue. 60. In the event the United States files a lawsuit for breach of this agreement as contemplated by paragraph 59, above, the United States may seek, and the Court may grant as relief the following: 1) an order mandating specific performance of any term or provision in this agreement; 2) an order entering this agreement as an order of the Court and enforceable by the Court; and 3) any additional relief that may be authorized by law or equity. 61. Should the United States file a lawsuit for breach of this agreement, West Virginia expressly agrees not to count the time during which this agreement is in place, or use the terms or existence of this agreement to plead, argue or otherwise raise any defenses under theories of claim preclusion, issue preclusion, statute of limitations, estoppel, laches, or similar defenses. 62. The Parties acknowledge that monetary damages will be an inadequate remedy for breach of this agreement and consequently agree that this agreement shall be enforceable by specific performance and the United States shall be entitled to compel and DHHR and the other parties hereto acknowledge and agree with such right to compel specific performance of the obligations of the State of West Virginia under this agreement. The remedy of specific performance shall be cumulative of all the rights and remedies at law or in equity of the Parties under this agreement. 63. The agreement shall terminate on December 31, 2024, if the Parties agree that DHHR has attained substantial compliance with all substantive provisions and maintained that compliance for one year. Non-compliance with mere technicalities, or temporary failure to comply during a period of otherwise sustained compliance, will not constitute failure to maintain substantial compliance. 64. West Virginia may seek early termination regarding development of any home and community-based service described in section III.B. The burden will be on West Virginia to demonstrate that it has attained and maintained its substantial compliance as to that section for at least one year. 65. Regardless of this agreement’s specific requirements, this agreement will terminate, or substantive sections as described in paragraph 63 may terminate, upon a showing by the State that it has come into compliance with the requirements of the ADA that gave rise to this agreement and maintained that compliance for one year. 66. This agreement shall constitute the entire integrated agreement of the Parties. Any modification of this agreement shall be executed in writing by the Parties. 67. DHHR, the Department of Education, and the Department of Military Affairs and Public Safety agree that all appropriate agencies, bureaus, or divisions within those Departments shall take all actions necessary to comply with provisions of this agreement and shall collaborate to coordinate care for members of the target population as indicated. 68. If DHHR fails to obtain necessary appropriations to comply with this agreement, the United States has the right to withdraw its consent to this agreement and revive any claims otherwise barred by operation of this agreement. 69. The Parties agree that, as of the date of entry of this agreement, litigation is not “reasonably foreseeable” concerning the matters described in paragraph 3. To the extent that either Party previously implemented a litigation hold to preserve documents, electronically stored information, or things related to the matters described in paragraph 3, the Party is no longer required to maintain such a litigation hold. Nothing in this paragraph relieves either Party of any other obligations imposed by this agreement.