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July 15, 2024 Page 49 City of San Leandro/ACI Franchise Agreement either Party’s ability to perform under this Agreement. Any adjustment of Rates is contingent on 1943 City’s use of such Proposition 218 process as deemed necessary or advisable by the City. 1944 If, at any time, the existing Rates or a Rate adjustment determined to be appropriate by both City 1945 and Contractor to compensate Contractor for costs or increases in costs as described in this 1946 Agreement cannot be maintained or implemented for any reason, Contractor shall be granted the 1947 option to negotiate with City, in good faith, a reduction of services equal to the value of the Rate or 1948 Rate adjustment that cannot be implemented. If City and Contractor are unable to reach agreement 1949 about such a reduction in services, then Contractor may terminate this Agreement upon eighteen 1950 (18) months prior written notice to City, in which case the Contractor and City shall each be entitled 1951 to payment of amounts due for contract performance through the date of termination but 1952 otherwise will have no further obligation to one another unless this Agreement specifically states 1953 otherwise, after the date of such termination. The City shall not be in default of this Agreement if it 1954 is determined by a court of competent jurisdiction that the City lacks the authority to set new 1955 maximum Rates or increase maximum Rates as contemplated under this Agreement, or if a majority 1956 protest under Proposition 218 prevents City from doing so. In any such event, and subject to the 1957 next paragraph, Contractor’s obligations under this Agreement shall be reduced so as to reduce 1958 Contractor’s costs of performing this Agreement by a dollar amount equivalent to the dollar amount 1959 of the Rate adjustment that could not be implemented. The Parties shall negotiate in good faith to 1960 determine the change in Contractor’s obligations, and shall use best efforts to complete such 1961 negotiation, and reflect the mutually agreed changes in a written amendment to this Agreement, 1962 within ninety (90) calendar days after the court decision or majority protest. The change shall be 1963 consistent with the court’s decision, if any, and Applicable Law. 1964 Should a court of competent jurisdiction determine that the Contractor cannot charge and/or 1965 increase its Rates for any amount of charges related to Franchise Fees and/or City Reimbursements 1966 and/or other charges, Contractor shall reduce the Rates it charges Customers by a corresponding 1967 amount and shall be relieved from paying the amount of such Franchise Fees and/or City 1968 Reimbursements and/or other charges, provided said Franchise Fees and/or City Reimbursements 1969 and/or other charges disallowed by the court were determined not to be lawful or related to the 1970 cost of providing service hereunder and had been incorporated in the Rates charged by Contractor 1971 to its Customers. 1972 Nothing herein is intended to imply that California Constitution, Articles XIIIC or XIIID, apply to the 1973 Rates established for services provided under this Agreement; rather this Section is provided merely 1974 to allocate risk of an adverse judicial interpretation between the Parties. 1975 This provision (i.e., Section 9.1) shall survive the expiration or earlier termination of this Agreement 1976 and shall not be construed as a waiver of rights by City to contribution or indemnity from third 1977 parties. 1978 E. CalPERS Eligibility Indemnification. Contractor’s employees, agents, or Subcontractors providing 1979 service under this Agreement shall not: (i) qualify for any compensation and benefit under CalPERS; 1980 (ii) be entitled to any benefits under CalPERS; (iii) enroll in CalPERS as an employee of City; (iv) 1981 receive any employer contributions paid by City for CalPERS benefits; or, (v) be entitled to any other 1982 CalPERS-related benefit that would accrue to a City employee. Contractor’s employees, agents, or 1983 Subcontractors hereby waive any claims to benefits or compensation described in this Section 9.1. 1984 Docusign Envelope ID: 908A450D-1F36-4C09-B8A4-C1D639B5A05A