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10. EXCLUSIVITY AND AMENDMENT <br />Page 5 of 8 <br />This Agreement represents the complete and exclusive statement between the City and <br />Contractor, and supersedes any and all other agreements, oral or written, between the parties. In the <br />event of a conflict between the terms of this Agreement and any attachments hereto, the terms of this <br />Agreement shall prevail. This Agreement may not be modif ed except by written instrument signed by <br />the City and by an authorized representative of Contractor. The parties agree that any terms or <br />conditions of any purchase order or other instrument that are inconsistent with, or in addition to, that <br />terms and conditions hereof, shall not bind or obligate Contractor nor the City. Each party to this <br />Agreement acknowledges that no representations, inducements, promises or agreements, orally or <br />otherwise, have been made by any party, or anyone acting on behalf of any party, which are not <br />embodied herein. <br />11. ASSIGNMENT <br />Inasmuch as this Agreement is intended to secure the specialized services of Contractor, <br />Contractor may not assign, transfer, delegate, or subcontract any interest herein without the prior <br />written consent of the City and any such assignment, transfer, delegation or subcontract without the <br />City's prior written consent shall be considered null and void. Nothing in this Agreement shall be <br />construed to limit the City's ability to have any of the services which are the subject to this Agreement <br />performed by City personnel or by other Contractors retained by City. <br />12. TERMINATION AND DAMAGES <br />a. Either party may terminate this Agreement, without penalty for cause immediately, or <br />without cause upon thirty (30) days written notice of termination. In such event, Contractor shall be <br />entitled to receive and the City shall pay Contractor compensation for all services performed by <br />Contractor prior to receipt of such notice of termination, subject to the condition that payment need not be <br />made for work which fails to meet the standard of performance specified in the Recitals of this <br />Agreement. <br />b. Material Breach: If the Director determines the Contractor has failed in the performance of <br />its duties and/or schedule as provided, the Director may consider the Contractor in material breach. <br />City may exercise all remedies in law or equity including but not limited to: 1}withholding all or a <br />portion of payment owed, and/or forfeiture for any delay from non-performance 2) directing the work <br />be accomplished by either City employees or another contractor, as determined by the Director. <br />Contractor shall be responsible for all costs resulting from breach, including incidental and <br />consequential damages. <br />c. If Contractor performs the work in such a manner that the amount of payment <br />withheld due to sub-standard performance, non-performance and forfeiture for non-completion per <br />schedule totals five percent (5%) of the total contract price, the City will put Contractor under `notice <br />ofnon-compliance'. If Contractor continues to perform the work in such a manner that the amount of <br />payment withheld due to substandard performance, non-performance and forfeiture for non-completion <br />per schedule totals ten percent (10%) of the total contract price, the contract is subject to cancellation <br />at the City option. In the event of cancellation for unsatisfactory performance, the original Contractor <br />shall reimburse City for damage accrued by changing contractors. <br />25H-7 <br />