9. Additional Provisions Regarding Notification of Non-Compliance, Dispute Resolution and Judicial Enforcement.
Any dispute between Claimants or Council and Wells Fargo regarding the terms of this Agreement or its implementation (other than those arising under Section 8 above) or prior to the initiation of any litigation pursuant to Section 7 of this Agreement shall be subject to the following dispute resolution process:
- 9.1 Notification of Non-Compliance and Opportunity to Cure.
- If at any time a party believes that the other party has not complied with any provision of this Agreement, that party shall notify the other party in writing describing the alleged act of non-compliance. Such notice shall be deemed to include a demand to immediately cure the non-compliance. The party allegedly in non-compliance shall respond in writing to the notice within ten (10) days of its receipt. The response shall describe the steps that the party will take, if any, to cure the non-compliance. Within ten (10) days of the response to any notice provided pursuant to this subsection, the parties shall meet and confer by telephone or in person to attempt to resolve the issue. The party allegedly in non-compliance will not be deemed to be in breach of the Agreement unless the Parties fail to resolve the dispute in the meet and confer process described in Section 9.3, below.
- 9.2 Notice of Dispute.
- If after compliance with Section 9.1, above, Claimants, Council or Wells Fargo have reason to believe that a dispute exists, the initiating party shall give prompt written notice to the other party, including: (a) a reference to the specific provisions of the Agreement that are involved; (b) a statement of the issue; (c) a statement of the remedial action sought by the initiating party; and (d) a brief statement of the specific facts, circumstances and any other arguments supporting the position of the initiating party.
- 9.3 Meet and Confer.
- Within two weeks of receipt of the notice provided by Section 9.2, Claimants, Council and Wells Fargo shall informally meet and confer and attempt to resolve the dispute.
- 9.4 Informal Discovery.
- As part of the meet and confer process, the parties shall exchange relevant documents and/or other information and engage in informal discovery in an attempt to resolve the issues in dispute. Such informal discovery may include, but is not limited to, interviewing witnesses and experts and requesting additional information or supporting documentation. Any disagreement about information to be provided shall be handled pursuant to the provisions of Sections 9.2 through 9.5, herein.
- 9.5 Right to File Complaint.
- If the meet and confer does not resolve the dispute within sixty (60) days of the first meet and confer session, or if the meet and confer reaches an impasse before the expiration of the sixty (60) day period, the initiating party may file a complaint in United States District Court for the Northern District of California or state court in the County of Alameda or the City and County of San Francisco to enforce the Agreement or to enforce any change in applicable law or regulations pursuant to Section 7.1. Where a dispute has arisen related to the compliance of Claimants or Council with the provisions contained in Sections 22.4 or 23, Wells Fargo shall have the right to seek injunctive relief immediately from a state or federal court.
10. Law Governing Interpretation and Application of Agreement.
The terms of this Agreement, and the provisions thereof, shall be interpreted and applied pursuant to the laws of the State of California and the ADA.
11. Notice or Communication to Parties.
Any notice or communication required or permitted to be given to the parties hereunder shall be given in writing by facsimile and certified United States. mail, addressed as follows:
- To Claimants and Council:
- c/o Saperstein, Goldstein, Demchak & Baller
1300 Clay Street, 11th Floor
Oakland, CA 94612
Fax No: (510) 835-1417
- To Wells Fargo:
- Wells Fargo Bank, N.A.
Attn: Teresa Lai, Esq.
633 Folsom Street, 7th Floor
San Francisco, CA 94107
Fax No.: (415) 975-7819
- Wilson, Sonsini, Goodrich & Rosati
Attn: Fred W. Alvarez, Esq.
650 Page Mill Road
Palo Alto, CA 94304
Fax No.: (650) 565-5100
12. Publicity/Ongoing Information to Persons with Vision Impairments.
Wells Fargo, Claimants and Council and their respective counsel have agreed upon a joint statement regarding the provisions of this Agreement, a copy of which is attached hereto as Exhibit B. The parties agree that statements made to the press and to third parties will be consistent with the joint statement.
13. Modification in Writing.
No modification of this Agreement by the parties shall be effective unless it is in writing and signed by authorized representatives of all the parties hereto.
14. Agreement Binding on Assigns and Successors; No Third Party Beneficiaries.
- 14.1 Assigns and Successors.
- This Agreement shall bind any assigns and successors of Wells Fargo and Council. Counsel shall be notified in writing within thirty (30) days of the existence, name, address and telephone number of any successors and assigns of Wells Fargo.
- 14.2 No Third Party Beneficiaries.
- This Agreement is for the benefit of the parties hereto only and no other person or entity shall be entitled to rely hereon, receive any benefit herefrom, or enforce against either party any provision hereof. The parties specifically intend that there be no third party beneficiaries to this Agreement, including, without limitation, the members of the Council.
15. Force Majeure.
The performance of Wells Fargo under this Agreement shall be excused during the period and to the extent that such performance is rendered impossible, impracticable or unduly burdensome due to acts of God, strikes or lockouts, unavailability of parts, equipment or materials through normal supply sources, Year 2000 problems arising from the fact that many computer programs were written using 2 digits rather than 4 to define the applicable year and/or without accounting for the fact that the Year 2000 is a Leap Year, or the failure of any utility to supply its services for reasons beyond the control of Wells Fargo. If Wells Fargo seeks to invoke this Section, it shall notify Counsel in writing as soon as reasonably possible, specifying the particular action that could not be performed and the specific reason for the non-performance. Counsel and Wells Fargo will thereafter meet and confer regarding an alternative schedule for completion of the action that could not be performed, or an alternative action. Any dispute regarding the applicability of this Section, or any future action to be taken, that remains after the meet and confer session will be handled as a dispute pursuant to Section 9 of this Agreement.
16. Integrated Agreement.
This Agreement and the Confidential Addendum executed concurrently herewith constitute the entire Agreement relating to the subject matters addressed therein.
17. Rules of Construction.
Each party and its legal counsel have reviewed and participated in the drafting of this Agreement; and any rule of construction to the effect that ambiguities are construed against the drafting party shall not apply in the interpretation or construction of this Agreement. Section titles used herein are intended for reference purposes only and are not to be construed as part of the Agreement. The Recitals are integral to the construction and interpretation of this Agreement and are therefore incorporated into this Agreement in their entirety.
18. Triplicate Originals/Execution in Counterparts.
All parties and Counsel shall sign three copies of this document and each such copy shall be considered an original. This document may be executed in counterparts.