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provided, however, that if one party requests mediation and the other party rejects the proposal or refuses <br />to participate, the requesting party may initiate litigation immediately upon such refusal. <br />11. TERM & TERMINATION <br />11.1. Term & Termination. This MSA shall be in effect commencing on the Effective Date set <br />forth above and continuing for a term of three (3 ) years from October 1, 2023 through September 30, 2026, <br />(the "Term"). The City may, at its discretion, extend the agreement with the same or more limited scope of <br />required services for one (1) additional two (2) year period, upon mutual agreement contingent upon City <br />Council approval, or City Manager or City Attorney authorization, as appropriate. The total term of the <br />awarded agreement shall not exceed five (5) years. In the event this MSA should terminate or expire prior <br />to the completion date designated in any Schedule, such Schedule shall terminate concurrently with the <br />MSA. To the extent any Services are provided prior to the Effective Date, including without limitation, <br />implementation and conversion services, or the receipt of payroll contributions, the Effective Date of this <br />MSA is modified to the date that such contributions are determined to be in good order by Empower or its <br />Affiliate and this MSA will be in effect for the limited purpose of accepting such contributions and holding <br />them in trust. For all other Services, the Effective Date of the MSA shall be on TOA. <br />11.2. Termination for Convenience. This MSA or any Schedule attached hereto may be <br />terminated by either party by delivering ninety (90) days advance written notice to the other party. The <br />termination of this MSA shall also operate as a termination of all Schedules hereto. <br />11.3. Termination for Default. Either party may, upon written notice, terminate this MSA or any <br />Schedule attached hereto if the other party materially breaches or is in default of any material obligation <br />hereunder, which default is incapable of cure, or which being capable of cure, has not been cured within <br />ninety (90) days after receipt of notice of such defaultfrom the non -defaulting party, orwithin such additional <br />cure period as mutually agreed upon by the parties. <br />11.4. Transition Assistance Services. Upon termination for any reason, Empower will provide <br />to Plan Sponsor the deconversion and transition assistance services set forth in the Recordkeeping <br />Services Schedule, attached hereto. For the avoidance of doubt, this MSA will govern the transition <br />assistance services provided. <br />12. MISCELLANEOUS <br />12.1. Affiliates & Agents. Plan Sponsor agrees that Empower may utilize the services of <br />Affiliates, agents and suppliers selected by Empower. Empower's use of any such party will not relieve <br />Empower of its obligations under this MSA and Empower shall at all times remain liable for the performance <br />Of such Services. Plan Sponsor further agrees that the Empower Affiliate entering into each Schedule <br />(including the terms of the MSA incorporated therein by reference) is separately bound for its performance <br />obligations contained therein and is not jointly bound with any other entity. <br />12.2. Relationship of the Parties. The relationship between the parties is that of independent <br />contractors. Neither party nor its personnel shall be considered employees of the other party for any <br />purpose. None of the provisions of this MSA shall be construed to create an agency, partnership or joint <br />venture relationship between the parties or the partners, officers, members or employees of the other party <br />by virtue of either this MSA or actions taken pursuant to this MSA. The parties shall bear sole responsibility <br />City I y OL cl - 19 —11 9/19/2023 <br />