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July 15, 2024 Page 48 City of San Leandro Post Collection amount of such damages considering all of the circumstances existing on the Effective Date of this 1844 Agreement, including the relationship of the sums to the range of harm to City that reasonably could 1845 be anticipated and the anticipation that proof of actual damages would be costly or impractical. 1846 Contractor agrees to pay (as Liquidated Damages and not as a penalty) the amounts set forth in 1847 Exhibit F, Performance Standards and Liquidated Damages. 1848 Before assessing Liquidated Damages, City shall give Contractor notice of its intention to do so. 1849 Such notice must be within one-hundred and twenty (120) days from when the City reasonably 1850 became aware of the underlying event. The notice will include a brief description of the incident(s) 1851 and non-performance. Each party may review (and make copies at its own expense) all 1852 information in the possession of the other party relating to incident(s) and/or non-performance. 1853 Either party may, within thirty (30) Business Days after City issuing the notice, request a meeting 1854 with the other party. Each party may present evidence of non-performance in writing and through 1855 testimony of its employees and others relevant to the incident(s) and alleged non-performance. 1856 City Manager shall provide Contractor with a written explanation of their determination on each 1857 incident(s) and non-performance prior to authorizing the assessment of and non-performance 1858 prior to authorizing the assessment of Liquidated Damages under this Section 10.6. Within ten 1859 (10) Business Days of receipt of such notice of intention to assess Liquidated Damages, or within 1860 forty (40) Business Days if the intended assessment results in a material impact, as defined in 1861 Section 5.5, no Liquidated Damages may be imposed on Contractor until Contractor has been 1862 given a reasonable opportunity to respond to allegations and to meet and confer with the City 1863 Manager. The City Manager’s decision shall be final subject to Contractor’s ability to pursue 1864 judicial relief in accordance with Section 10.9. 1865 C. Amount. City may assess Liquidated Damages for each Working Day or event, as appropriate, that 1866 Contractor is determined to be liable in accordance with this Agreement in the amounts specified 1867 in Exhibit F. Liquidated Damages shall be subject to annual adjustment on each July 1 equal to the 1868 Annual Percentage Change in the CPI-U as defined in Section 8.3. 1869 D. Timing of Payment. Contractor shall pay any Liquidated Damages recoverable under this 1870 Agreement and assessed by City within ten (10) Business Days of the date the Liquidated Damages 1871 are assessed. If they are not paid within the ten (10) Business Day period, City may proceed against 1872 the performance bond required by the Agreement, order the termination of the rights or granted 1873 by this Agreement, or all of the above. 1874 10.7 EXCUSE FROM PERFORMANCE 1875 A. General. Notwithstanding any other provision in this Agreement, each Party shall be excused from 1876 performing its respective obligations hereunder and from any obligation to pay Liquidated Damages 1877 if it is prevented from so performing by reason of floods, earthquakes, other acts of nature, war, 1878 civil insurrection, riots, acts of any local, State, or Federal government (including judicial action), 1879 and other similar catastrophic events which are beyond the control of and not the fault of the Party 1880 claiming excuse from performance hereunder (each a “Force Majeure Event”). 1881 B. Third Party Labor Unrest. In the case of labor unrest or job action directed at a third party over 1882 whom Contractor has no control, the inability of Contractor to provide services in accordance with 1883 this Agreement due to the unwillingness or failure of the third party to: (i) provide reasonable 1884 Docusign Envelope ID: C78C62DE-8589-496F-8F5A-DEC38EE5853C