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ii. The Franchise transfer fees are over and above any Franchise Fees specified in the <br />Agreement <br />E. Transition. If the City consents to an assignment, at the point of transition, the Contractor shall <br />cooperate with the City and subsequent Contractor(s) or subcontractor(s) to assist in an orderly transition <br />which shall include but not be limited to the Contractor providing route lists and billing information. <br />12.6 MEDIATION AND 81NDING ARBITRATION <br />A. Continue Performance. Except for an Event of Default, in the event of any dispute arising under <br />this Agreement, the City and the Contractor shall continue performance of their respective obligations <br />under this Agreement and shall attempt to resolve such dispute in a cooperative manner, including but not <br />limited to negotiating in good faith. <br />B. Mediation. Any unresolved dispute arising between the Parties under this Agreement shall first <br />be submitted to non-binding mediation before a recognized mediator having experience with agreements of <br />this nature and that is mutually acceptable to the Parties, provided that neither Party shall unreasonably <br />withhold its acceptance. If the parties are unable, after a period of thirty (30) days from commencement of <br />the dispute resolution process, to agree on a mediator, either party shall be entitled to petition a court of <br />competent jurisdiction to appoint such a mediator for the Parties. Each Party shall bear its own costs, <br />including attorney's fees, incurred in connection with the mediation. If the mediation does not result in a <br />resolution of the dispute that is acceptable to both parties, either party may institute arbitration. <br />C. Binding Arbitration. Any unresolved dispute or claim which arises out of or which relates to this <br />Agreement, or to the interpretation or breach thereof, shall be resolved by binding arbitration pursuant to <br />California Code of Civil Procedure, Section 1280 ef.seq., Arbitration shall be by a single, neutral arbitrator <br />having experience with agreements of this nature. The Parses shall mutually agree upon said arbitrator, <br />but if the parties cannot so agree, either party may apply to the Superior Court of Alameda County to <br />appoint an arbitrator. The arbitrator shall follow applicable law in reaching a decision of any controversy <br />submitted to arbitration. The arbitrator's fees and expenses and all arbitration costs shall be awarded to <br />the prevailing party and against the losing party, unless otherwise required by this Agreement ar unless the <br />arbitrator, in his or her discretion, determines that a different apportionment of fees and costs is appropriate <br />in the interests of justice. If the binding arbitration reduces expenses applicable to the current year's <br />service, applicable Rate reductions may be enacted. The arbitratar selected shall have experience with <br />agreements of this nature. The rules for arbitration shall be the American Arbitration Association ("AAA") <br />rules. Discovery may be undertaken by the Parties in accordance with the Code of Civil Procedure rather <br />than the AAA rules. <br />D. Fxcention to Binding Arbitration. Notwithstanding any other provision to the contrary in this <br />Article 12.6 or elsewhere in this Agreement the Contractor shall have na cause of action for damages <br />against City in relation to any dispute or claim it may have relating to Rates, Special Charges or a fair and <br />reasonable rate of return. Any adjustment in Rates shall be recovered through the rate base. <br />J:\wpd~stafl\ak~n\fYnnchiaenew2.wpd 02/Dl/00 Page 54 of 59 <br />