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<br />Page5of8 <br /> <br />10. EXCLUSIVITY AND AMENDMENT <br /> <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 modified 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 /> <br />11. ASSIGNMENT <br /> <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 /> <br />12. TERMINATION AND DAMAGES <br /> <br />This Agreement may be terminated by the City upon thirty (30) days written notice of <br />termination. In such event, Contractor shall be entitled to receive and the City shall pay Contractor <br />compensation for all services performed by Contractor prior to receipt of such notice of termination, <br />subject to the following conditions: <br /> <br />a. As a condition of such payment, the Executive Director may require Contractor to deliver to the <br />City all work product completed as of such date, and in such case such work product shall be the property <br />of the City unless prohibited by law, and Contractor consents to the City's use thereof for such purposes as <br />the City deems appropriate. <br /> <br />b. Payment need not be made for work which fails to meet the standard of performance specified <br />in the Recitals of this Agreement. <br /> <br />c. Material Breach: If the Director determines the Contractor has failed in the performance of <br />its duties andlor 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, andlor 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 /> <br />d. PUTATIVE DAMAGES: Because of the unknown nature of damage, failure of the <br />Contractor to have the Irrigation Specialist either performing or supervising irrigation system repairs or <br />modifications shall result in $150.00 per occurrence being deducted as damages from the next monthly <br />lllVOlce. <br />