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FORCE MAJEURE. The City shall not be deemed in default hereunder, nor shall the City be responsible for any delay, interruption, or cessation in the performance of its obligations under this Agreement where such failure of performance is the result of any force majeure event, including, but not limited to, acts of God, riots, wars, strikes, epidemics, acts, governmental authorities or acts of nature or other similar cause.
LIVING WAGE. In accordance with the City of Memphis Ordinance No. 5185, commonly referred to as the Living Wage Ordinance, and any amendments thereto, certain businesses holding a service or service-related contract with the City of Memphis shall pay its employees performing work on said contract a minimum hourly wage. If applicable, the Contractor agrees to follow and comply with the requirements of said ordinance. The Contractor further agrees to provide certified payrolls associated with this agreement to the City of Memphis c/o Manager, Prevailing Wage Office; 125 N. Main St., Room 1B-18; Memphis, TN 38103.
SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, legal representatives, successors and assigns.
NOTICES. All notices and other communications required or permitted to be given hereunder shall be written and hand delivered with signed receipt; delivered by facsimile; delivered by a nationally recognized overnight courier; or mailed via certified U.S. mail, postage prepaid and return receipt requested. All notices shall be deemed received and effectively given as follows: (i) if by hand delivery, on the date of delivery; (ii) if by fax, on the day the fax transmission is received at the receiving location and receipt is telephonically confirmed by the sender; (iii) if by delivery via U.S. mail, on the date of receipt appearing on a return receipt card; or (iv) if by overnight courier, on the date receipt is confirmed by such courier service. All notices must be addressed to the respective party at the following addresses or to such other person or address as either party may designate in writing and deliver as provided herein.
CITY LIABILITY. The City shall have no liability except as specifically provided in this Agreement.
GOVERNING LAW, JURISDICTION AND VENUE. The terms and conditions of this Agreement shall be construed in accordance with and governed by the laws of the State of Tennessee. All actions, whether sounding in contract or in tort, relating to the validity, construction, interpretation and enforcement of this Agreement shall be instituted and litigated in the state or federal courts of the State of Tennessee, located in Shelby County, Tennessee, without regard to conflicts of laws principles. In accordance herewith, the parties to this Agreement submit to the jurisdiction of the courts of the State of Tennessee located in Shelby County, Tennessee.

1). Events of Default

Events of Default. In the event that CONTRACTOR shall fail to substantially perform its obligations under this Agreement or any other agreement related hereto, and shall have failed to cure the same within fourteen (14) days unless the event is caused by either an act or omission by City or CONTRACTOR, then an event of default (“Event of Default”) shall have occurred under this Agreement. When an action constituting an Event of Default shall occur, the City shall notify CONTRACTOR in writing and advise them of the Default, as well as the time period within which CONTRACTOR shall have to cure same. An Event of Default shall not have occurred if the failure to substantially perform cannot be cured within said cure period and such party has commenced to cure within said cure period and thereafter diligently pursues such cure. Each of the following events, upon failure to cure within the aforesaid curative periods, shall constitute an Event of Default hereunder:

  1. Any failure or omission on the part of CONTRACTOR to comply with the material terms and conditions of this Agreement;

  1. Misrepresentation or omission by CONTRACTOR of any material fact or facts related to this Agreement which materially and adversely affects the rights or obligations the parties hereto;

  1. The filing of any petition under any bankruptcy, moratorium, reorganization or insolvency act, federal or State, by or against CONTRACTOR which, if again same, is not dismissed within ninety (90) days of such filing:

  1. The filing of an application for the appointment of a receiver for, or the making of a general assignment for the benefit of creditors of, the CONTRACTOR, however expressed or indicated; and

  1. The failure of CONTRACTOR to pay or discharge any judgment or judgments against it for the payment of money (not covered by insurance) which singularly or in the aggregate exceed One Million Dollars ($1,000,000) and such judgment or judgments be not satisfied, or an appeal taken there from or enforcement stayed, or any levy thereon not be removed within thirty (30) days from issue;

2). Remedies Cumulative

All remedies of the parties provided for herein are cumulative and shall be in addition to all other rights and remedies provided by law. The exercise of any right or remedy by either party hereunder shall not in any way constitute a cure or waiver of default hereunder or invalidate any act done pursuant to any Event of Default hereunder or prejudice a party hereto in the exercise of any of its rights hereunder, unless in the exercise of said rights the party realizes all amount owed to it under this Agreement.

3). Right to Contest

Notwithstanding anything to the contrary herein contained, CONTRACTOR shall have the right to contest, in good faith, any claim, demand, levy or assessment, the assertion of which would constitute any Event of Default hereunder. Upon demand by the City, CONTRACTOR shall make suitable provision by deposit of funds or by bond or other assurance satisfactory to the City for the possibility that any such contest will be unsuccessful. Such provision shall be made within five (5) business days after receipt of demand by the City therefore.

1. It shall be cause for the immediate termination of this Agreement if, after its execution, the City determines that either:

a. the Contractor or any of its principals, partners or corporate officers, if a corporation, including the corporation itself, has plead nolo contendere, or has plead or been found guilty of a criminal violation, whether state or federal, involving, but not limited to, governmental sales or purchases, including but not

limited to the rigging of bids, price fixing, misappropriation of government funds, or any other collusive and illegal activity pertaining to bidding and governmental contracting; or

b. the Contractor subcontracted, assigned, delegated, or transferred its rights, obligations or interests, voluntarily or involuntarily, under this Agreement without the City's consent or approval; or

c. the Contractor has filed bankruptcy, has been adjudicated bankrupt become insolvent or made an assignment for the benefit of creditors, or a receiver, or similar officer is appointed to take charge of all or part of the Contractor's assets; or

2. The City may cancel/terminate this Agreement in whole or in part, upon providing written notice to the Contractor of the City's intention to terminate the Agreement as a result of Contractor's failure to provide the services specified under this Agreement or in violations) of any of the terms herein, and the Contractor has failed to cure such breach within 5 business days of such notice. The City may reject the entire services and cancel this Agreement for any services rendered or to be rendered hereunder. In the event of any such rejection/termination, the City shall, at the City's option, have the right to obtain like services elsewhere or to take over the work and prosecute the same to completion, both at the Contractor's expense; and in such event, the City may take possession of and utilize in completing the work, such materials, appliances, etc. as may be on the site of the work and necessary therefore. The Contractor shall be liable to the City for any loss, damage, or additional cost incurred thereby, including but not limited to any difference between the cost for procuring such like services and the price specified herein, attorneys' fees and court costs.

3. Notwithstanding the foregoing or any section herein to the contrary, the contractor shall not be relieved of liability to the City for damages sustained by the City by virtue of any breach of the Agreement by the Contractor, and the City may withhold any payments to the Contractor, for the purpose of setoff, until such time as the exact amount of damages due the City from die Contractor is determined.

4. The City may, in its sole discretion, suspend and/or terminate this Agreement for convenience upon giving five (5) days prior written notice to the Contractor. In the event of such termination, the Contractor shall be entitled to receive just and equitable compensation, as determined by the City, for any satisfactory authorized work performed in accordance with the Agreement up to the termination date; but in no event shall the City be liable to the Contractor for expenses incurred after the termination date. All services completed by the Contractor prior to the Termination Date shall be documented and all tangible work documents shall be transferred to the City prior to payment for services rendered, and shall become the sole property of the City. Such termination by the City shall not be deemed a Breach of Contract by the City, and the Contractor shall not be compensated for any anticipatory profits, or other damages of any description, that have not been earned as of the date of termination.

5. The Contractor shall deliver to the City all hard copy and electronic files maintained on behalf of the City within thirty (30) days of termination of this Agreement Upon reasonable request, the City reserves the right to obtain such information prior to the termination of this Agreement

  1. Notwithstanding the foregoing, this agreement may be terminated by either party upon providing thirty (30) days written notice of such intention to terminate to the other party.

1). Hold Harmless

Contractor agrees that it will hold the City harmless and will indemnify the City for all reasonable costs including attorney fees and court costs incurred by the City due to the failure of Contractor to comply with any and all statutes and regulations applicable under this contract. Contractor further agrees that the City is not responsible for personal and/or property damage liability claims that may result from work performed by the Contractor under the auspices of this contact.

2). Assignability/Transfer

Contractor agrees that it shall not assign or transfer any work or benefits under this agreement without the advanced written permission of the City.

3). Independent Contractor

Nothing in this Contract shall be deemed to represent that Contractor or any of Contractor’s employees or agents, are the agents, representatives or employees of the City of Memphis. Contractor shall be an independent contractor and shall have responsibility for and control over the details and means for performing its business.


This Agreement constitutes the entire agreement between the City of Memphis and Contractor and supersedes and replaces any and all prior written or oral agreements, understandings, representations, negotiations and correspondence between the parties. This Agreement shall not be supplemented, amended or modified by any course of dealing, course of performance or usage of trade and may only be amended or modified by a written instrument duly executed by officers of both parties.

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