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Page 5 of8 10. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Contractor, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terms of this Agreement and any attachments hereto, the terms of this Agreement shall prevail. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Contractor. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, that terms and conditions hereof, shall not bind or obligate Contractor nor the City. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein. 11. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Contractor, Contractor may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. Nothing in this Agreement shall be construed to limit the City's ability to have any of the services which are the subject to this Agreement performed by City personnel or by other Contractors retained by City. 12. TERMINATION AND DAMAGES a. Either party may terminate this Agreement, without penalty for cause immediately, or without cause upon thirty (30) days written notice of termination. In such event, Contractor shall be entitled to receive and the City shall pay Contractor compensation for all services performed by Contractor prior to receipt of such notice of termination, subject to the condition that payment need not be made for work which fails to meet the standard of performance specified in the Recitals of this Agreement. b. Material Breach: If the Director determines the Contractor has failed in the performance of its duties and/or schedule as provided, the Director may consider the Contractor in material breach. City may exercise all remedies in law or equity including but not limited to: 1) withholding all or a portion of payment owed, and/or forfeiture for any delay from non-performance 2) directing the work be accomplished by either City employees or another contractor, as determined by the Director. Contractor shall be responsible for all costs resulting from breach, including incidental and consequential damages. c. If Contractor performs the work in such a manner that the amount of payment withheld due to sub-standard performance, non-performance and forfeiture for non-completion per schedule totals five percent (5%) of the total contract price, the City will put Contractor under 'notice of non-compliance'. If Contractor continues to perform the work in such a manner that the amount of payment withheld due to substandard performance, non-performance and forfeiture for non-completion per schedule totals ten percent (10%) of the total contract price, the contract is subject to cancellation at the City option. In the event of cancellation for unsatisfactory performance, the original Contractor shall reimburse City for damage accrued by changing contractors. 25H-7