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whether such damages are foreseeable, except to the extent that such damages are included in third -party claims that are covered by the indemnities under Section 8.1. 9.4 Force Maieure• Abatement of License Payment; Termination (a) Neither BART nor City shall be in default hereunder if the performance of any act required of it hereunder is prevented or delayed by reason of events, contingencies or causes beyond its reasonable control and without its fault, including, but not limited to, (i) fire, flood, earthquakes, lightning, unusually severe weather; (ii) acts of God; (iii) war, riot, accidents, embargoes, strikes, labor disputes; or (iv) shortage of labor, fuel, raw materials, or machinery; affecting such party or its suppliers or subcontractors; provided, however, that nothing in this Section 9.4 shall excuse City from the prompt payment of any amount required under this Agreement. (b) Notwithstanding the proviso in Section 9.4(a), if the Dedicated Fibers are rendered unusable by an event described in Section 9.4(a) and if such condition continues for more than thirty (30) consecutive days, the License Payment for the Dedicated Fibers shall thereafter be abated until such time as such condition no longer exists. If such condition continues for more than sixty (60) consecutive days or if BART notifies City that it is impractical or uneconomic to restore any physical damage that is responsible for the interruption of service, either BART or City may terminate this Agreement by written notice to the other party. BART shall not be required to refund any portion of the License Payment hereunder, but City shall be entitled to a pro-rata credit for prepaid, but unusable, days in excess of thirty (30) consecutive days, which shall be applied against its next License Payment hereunder or, in the event of a termination of this Agreement, under any other similar agreement between BART and City. 10. MISCELLANEOUS 10.1 Taxes (a) Pursuant to Section 107.6 of the California Revenue and Taxation Code, BART hereby notifies City that one or more of the rights granted to City under Section 2.2(a) may be construed by California state or county taxing authorities as creating a possessory interest in City that is subject to property taxation and that, if so, City may be subject to the payment of property taxes levied on such possessory interest. (b) If any other real property or personal property taxes or assessments of any kind are levied with respect to the City Access Cables or City's use of the BART Real Property, City shall be responsible for such taxes or assessments. If bills for such taxes or assessments are sent to BART, rather than City, BART shall timely provide City with such bills or, if appropriate, with an invoice and documentation evidencing City's share of such taxes or assessments. ADMINLEGAL 122651.3