R2018-96 Authorizing an Amendment to the Services Agreement with Johnson Controls CP 2018-07

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(xi) The filing of a bankruptcy petition whether by the COMPANY or its creditors against the COMPANY which proceeding shall not have been dismissed within sixty (60) days of its filing, or an involuntary assignment for the benefit of creditors or the liquidation or insolvency of the COMPANY; (xii) Any failure by the COMPANY to perform or comply with the terms and conditions of this Agreement, including breach of any covenant contained herein except that such failure, if corrected or cured within thirty (30) days after notice to the COMPANY demanding that such failure to perform be cured, shall be deemed cured for purpose of this Agreement. 11.4 Remedies upon Default by the Company. The occurrence of any Event of Default described in paragraph 11.3(xi) shall constitute an immediate default. The occurrence of any Event of Default other than an Event of Default described in paragraph 11.3(xi) which the COMPANY has failed to cure within thirty (30) calendar days after receipt of notice given in accordance with the terms of this Agreement and specifying the Event of Default shall, at the sole option of the CITY, permit the CITY to declare the COMPANY in default; provided however, that if such Event of Default cannot reasonably be cured within such thirty (30) day period, such Event of Default shall not constitute a default if the COMPANY begins to cure such Event of Default within such thirty (30)-day period and diligently pursues the actions necessary to cure such Event of Default so that the Event of Default is cured as soon as reasonably possible. Written notification of the Event of Default, and the intention of the CITY to terminate this Agreement, shall be provided to the COMPANY and such decision shall be final and effective upon the COMPANY's receipt, as defined herein, of such notice. Upon the giving of such notice as provided herein, the COMPANY must discontinue any services, unless otherwise directed in the notice, and deliver all materials accumulated in the performance of this Agreement, whether completed or in process, to the CITY. At such time the CITY may exercise all rights and remedies available to it under this Agreement or applicable law. If the CITY considers it to be in its best interests, it may elect not to declare default or to terminate this Agreement. The parties acknowledge that this provision is solely for the benefit of the CITY and that if the CITY permits the COMPANY to continue to perform the Work and other services despite one or more Events of Default, the COMPANY shall in no way be relieved of any of its responsibilities, duties or obligations under this Agreement nor shall the CITY waive or relinquish any of its rights. ARTICLE 12: REPRESENTATIONS AND WARRANTIES 12.1 Each party warrants and represents to the other that: (a) It has all requisite power, authority, licenses, permits, and franchises, corporate or otherwise, to execute and deliver this Agreement and perform its obligations hereunder; (b) Its execution, delivery, and performance of this Agreement have been duly authorized by, or are in accordance with, its organic instruments, and this Agreement has been duly executed and delivered for it by the signatories so authorized, and it constitutes its legal, valid, and binding obligation; (c) Its execution, delivery, and performance of this Agreement will not result in a breach or violation of, or constitute a default under, any material agreement, lease or instrument to which it is a party or by which it or its properties may be bound or affected; and 18