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Salina Fieldhouse Artwork Design & Fabrication Services AgreementAGREEMENT FOR ARTWORK DESIGN AND FABRICATION SERVICES This Agreement for Artwork Design and Fabrication Services ("Agreement`) is entered into October 17. 2016. by and between the City of Salina, Kansas (the "City'). Jeremy Rockwell. an individual (the "Artist`), and A. Zahner Company. a Missouri corporation (the "Fabricator' and. together with the Artist. sometimes collectively referred to as the "Contractors"). Recitals A. The City has implemented the Community Art & Design Policy pursuant to the City of Salina Capital Improvement Program by allocating project funding for the establishment and display of artwork in public places. B. The Cit- has determined that it requires the assistance of the Artist to design. and the assistance of the Fabricator to fabricate and deliver_, certain artwork in connection with the Salina Field House construction project. The parties, in consideration of the mutual promises set forth in this Agreement. agree and covenant: ARTICLE 1 - Definitions Capitalized words and terms used in this Agreement shall have the following meanings: "Approved Artistic Design" — the artistic design approved by the City based upon review and comment relating to the Recommended Artistic Design. "Arts and Humanities Department' —the Arts and Humanities Department of the City of Salina. Kansas. "Artist's Design Concept' — a conceptual description of the Artwork as submitted by the Artist. "Artwork' — the creative piece of public artwork designed by the Artist in collaboration with the Fabricator. "CAD" —the Community Art & Design Advisory Committee. "Project" — the Salina Field House design and construction project. "Recommended Artistic Design" —the Artist's proposal for the artistic design, materials. dimensions. and location of the Artwork on the Site consistent with the Artist's Design Concept and suitable for installation on the Site. "Site" — the locations in and around the Salina Field House, 140 N. Fifth St.. Salina. Kansas. where the Artwork will be installed. ARTICLE 2 - Responsibilities of the Parties 2.1. Artist's Responsibilities: 2.1.1 The Artist shall prepare and present three different Artist's Design Concepts to the Project site committee. Upon request by the City, the Artist agrees to revise the Artist's Design Concept(s) for purposes of creating the Approved Artistic Design. L 2.1.2 The Artist shall deliver the Approved Artistic Design in a file format specified by the Cite so as to allow for the Artwork to be lasercut into metal panels by the Fabricator. 2.1.3 The Artist shall attend all required meetings with the Fabricator. the City's architect, City staff. the Project site committee, and the City Commission. 2.1.4 Within fifteen (I5) days after installation of the Artwork. the Artist shall furnish the City with the following photographs of the installed Artwork: A set of three digital, 300 dpi. JPG files. of the Artwork on a CD ROM orjump drive. Photographs must be labeled with the name of the Artwork. the date upon which the photograph was taken, and the viewpoint from which the photograph was taken. The Artist shall also furnish the City with a written narrative description of the Approved Artistic Design used for the Artwork. 2.2. Fabricator's Responsibilities: 2.2.1 Upon receipt of the Approved Artistic Design from the Artist and a formal notice to proceed from the City pursuant to Section 3.3 below. the Fabricator shall fabricate and furnish 36 perforated panels (1.231 square feet) made from 304 alloy 14ga stainless steel with Angel Hair finish on one side [two sides on freestanding scope], including: o Main Exterior Wall: 30 panels. o Exterior Entry Wall: 2 panels. o Interior Entry Wall: 3 panels [The City has idicated a desire to display names of donors on one of the panels. Milling stainless steel panels is not an option, but the Fabricator can provide examples of direct to metal printing options. This scope item to be further refined with the Architect during the design process]. o Entry Soffit: 1 panel. 2.2.2 Panels will have a custom perforation pattern developed through the Fabricator's ZIRA process, using the original image file for the Approved Artistic Design furnished by the Artist. The Fabricator will establish the perforation parameters (grid spacing, min/max hole sizes. number of hole sizes. etc.). The Fabricator will submit a file of the perforation layout to the City for approval. Pricing is based on a I" OC grid spacing. 2.2.3 The Fabricator shall provide painted aluminum mullions at every vertical panel seam. The color will be coordinated with the City's design team. These mullions will support panels and, on all scopes except the main exterior wall, will need a superstructure to ..Mich to attach. 2.2.4 The Fabricator shall provide a support structure as follows: Main Exterior Wall: Stainless steel columns with baseplates. Fabricator will work at minimizing baseplate size to work with existing rebar. Base bid includes 8" square baseplates. Exterior Entry Wall: Panels will have a double return and will fasten directly to the substrate. Interior Entry Wall: Aluminum mullions will be provided at every vertical panel seam. Mullions will be supported by aluminum angles that will be attached to wall substrate. This system allows for the wall panels to be backlit if desired. Color to be coordinated with design theme. Contractor will need to supply blocking for support where necessary. 2.2.5 Fabrication will be performed based on the Approved Artistic Design: the Fabricator shall not be responsible for field verified dimensions. Field verified dimensions shall be provided by the City's general contractor. 2.2.6 The Fabricator shall provide detailed specifications for installation of Artwork. All information will be submitted in hard copy and electronic format. 2.2.7 The Fabricator agrees to collaborate with the City. the Artist. and the Citv's architect as needed durine the design phase, project specification phase, and contractor installation. 23. City's Responsibilities: 2.3.1 The City shall provide administrative assistance in facilitating technical details and appropriate reviews of the Artwork prior to delivery. 2.3.2 The Cin• shall be responsible for providing the Artist and Fabricator with copies of existing designs. drawings, reports, a list of required permits. and other existing relevant data. if any. which may be requested by the Artist and Fabricator in order to perform this Agreement. 2.3.3 The City shall be responsible for leading the Artist through the required review process, organizing and scheduling meetings with review entities, and providing the Artist written instructions for the materials required at such meetings. 2.3.4 The City shall prepare the Site in accordance with the specifications detailed by the Fabricator. 2.3.5 The City shall provide and install a plaque on or near the Artwork containing a credit to the Artist and Fabricator and a copyright notice substantially in the following form: Copyright © [name, date of publication]. ARTICLE 3 - Schedule 3.1 Recommended Artistic Design. The Artist shall complete the Recommended Artistic Design on or before November 1. 2016. 3.2 Approved Artistic Design. Upon timely receipt of the Recommended Artistic Design. the City will promptly and reasonably provide aesthetic review through the Arts and Humanities Department. related City Departments, and the City's Governing Body. The City shall notify Artist of any concerns to be addressed with the Recommended Artistic Design as are necessary for the acceptance of the Artwork by the City's Governing Body. The Artist shall submit any necessary revisions to the Recommended Artistic Design prior to formal presentation to the City's Governing Body. The Artist and the City shall work cooperatively and expeditiously to resolve of any necessary matters leading toward the City's written approval of the Approved Artistic Design and formal notification to proceed. 3.3 Submission to Fabricator. The Artist shall submit the Approved Artistic Design and the City shall deliver a formal notice to proceed to the Fabricator within 5 business days of the City's final approval of the Approved Artistic Design. 3.4 Completion and Deliver-. The Fabricator shall complete fabrication and delivery of the Artwork and all related scope items in a single shipment to the Site on or before April 7. 2017. 3 ARTICLE 4 — Payment 4.1 Payment to Artist. In consideration for the Artist's services. the City shall pay the Artist the sum of $9.000. which shall constitute full and complete compensation for all the services performed. materials fumished. and expenses incurred by the Artist under this Agreement. The Artist's compensation shall be comprised of the following scheduled installments: o S2,000 — The parties acknowledge that the City has made a partial payment to the Artist for preliminary design work. in the amount of 52.000. o S1,000 — The Artist shall be paid the sum of S 1.000 upon execution of this Agreement. 0 53,000 — The Artist shall be paid the sum of 53.000 upon the City_ 's written approval of the Approved Artistic Design and formal notification to proceed. o S3,000 — The Artist shall be paid the final sum of 53.000 upon deliyen, of the Artwork to the Site and final acceptance by the City. 4.2 Payment to Fabricator. In consideration for the Fabricator's services. the City shall pay the Fabricator the sum of $110.634. which shall constitute full and complete compensation for all the services performed, materials furnished, and expenses incurred by the Fabricator under this Agreement. The Fabricator's compensation shall be comprised of the following scheduled installments: 0 511,063 — The Fabricator shall be paid the sum of 511,063 upon execution of this Agreement, as compensation for the Fabricator's assistance during the design phase. o 544,254 — The Fabricator shall be paid the sum of $44,254 upon the City's issuance of a notice to proceed with fabrication, following the Fabricator's receipt of the Approved Artistic Design from the Artist. o S55,317 — The Fabricator shall be paid the final sum of $55.317 upon shipment of all Artwork to the Site and delivery of a Bill of Sale for the Artwork to the City. ARTICLE 5 — Taxes The Artist and Fabricator shall pay sales. consumer, use. and similar taxes for the Artwork. Notwithstanding the foregoing. the parties acknowledge and agree that the compensation payable to the Artist and Fabricator under Article 4 was established on the basis of the parties' mutual understanding that the Project and Artwork will be entitled to an exemption from Kansas retailers' sales tax on tangible personal property or services to be incorporated in to the work, and that the City will provide the Artist and Fabricator with a project exemption certificate to be used by the Artist and Fabricator for the sales of tangible personal property to or services purchased by the Artist or Fabricator for the Artwork. Consequently, if the the parties are unable to rely on the project exemption certificate for the Artwork. the parties shall modify the compensation amounts via change order to account for payment of Kansas retailers' sales tax on tangible personal property or services to be incorporated into the Artwork, as may be required by applicable law. ARTICLE 6 - Approval and Acceptance 6.1 Notification to Citv. The Fabricator shall notify the City in writing when the Artwork has been completed and is ready for shipment to the Site. 6.2 Inspection Prior to Delivery for Installation. The City shall inspect the Artwork, either by personal representative or by photographs provided by the Fabricator, within ten (10) days of receiving notification that the Artwork has been completed pursuant to Section 6.1, prior to shipment, to 4 preliminary determine that the Artwork conforms with the requirements of this Agreement (subject to the City's final acceptance pursuant to Section 6.3) and to give approval for shipment of the Artwork to the Site. In the event that the City withholds final approval for shipment. the City shall submit the reasons for such disapproval in writing within ten (10) days of examining the fabricated Artwork. The Fabricator shall then have thirty (30) days from the date of the City's notice of the disapproval to make the necessary adjustments to the fabricated Artwork in accordance with such writing. The Fabricator shall not be penalized for any delay in the delivery and installation of the Artwork to the Site unless the Artist has willfully and substantially deviated from the requirements of this Agreement and the Approved Artistic Design without the prior approval of the City. The Fabricator shall then be held responsible for any expenses incurred in correcting such deviation. 6.3 Final Acceptance. The City shall promptly notify the Artist and Fabricator of its final acceptance of the Artwork within ten (10) days after the installation of all Artwork at the Site. The effective date of final acceptance shall be the date the City submits written notice to the Fabricator and Artist of its final acceptance of the Artwork. The final acceptance shall be understood to mean that the City acknowledges completion of the Artwork in substantial conformity with the requirements of this Agreement. and that the City confirms that all services as required of the Artist and the Fabricator have been completed. 6.4 Notification of Deficiencies. If the City reasonably disputes in good faith that all the services have been performed. the City shall notiA, the Fabricator in writing of those services the Fabricatorhas failed to perform within ten (10) days after the installation of all Artwork at the Site. The Fabricator shall promptly perform those services indicated by the City. 6.5 Fabricator's Review of Deficiencies. If the Fabricator disputes the City's determination that not all services have been performed, the Fabricator shall submit reasons in writing to the City within ten (10) days of the City's prior notification to the contrary The City shall make reasonable efforts to resolve the dispute with the Fabricator in good faith. However. final determination as to whether all services have been performed shall remain with the City, provided that the City's determination shall be reasonable and made in good faith. 6.6 Resolution of Deficiencies. Upon the resolution of any disputes that arise under this section. the City shall notify the Fabricator of its final acceptance of the Artwork pursuant to Section 6.3. ARTICLE 7 — Representations and Warranties 7.1 Artist's Warranties. The following representations and warranties shall survive the termination or other extinction of this Agreement The Artist represents and warrants that: 7.1.1 The Artwork is solely the result of the artistic effort of the Artist, except as otherwise disclosed in writing to the City, the Artwork is unique and original and. to Artist's knowledge, does not infringe upon any copyright or the rights of any person. 7.1.2 The Artwork (or duplicate thereof) has not been accepted for sale elsewhere: or any element thereof. or any copyright related thereto which may affect or impair the rights granted pursuant to this Agreement. 7.1.3 All Artwork created or performed by the Artist on under this Agreement. whether created by the Artist alone or in collaboration with others. shall be wholly original with the Artist and shall not knowingly infringe upon or violate the rights of any third party. 5 7.1.4 All services performed hereunder shall be performed in accordance with all applicable laws. regulations, ordinances, etc. and with all necessary care. skill. and diligence. 7.2 Fabricator's Warranties. These representations and warranties shall survive the termination or other extinction of this Agreement. The Fabricator represents and warrants that: 7.2.1 Standards. All work will be performed in accordance with professional "workmanlike` standards and free from defective or inferior materials and workmanship (including any defects consisting of "inherent vice." or qualities that cause or accelerate deterioration of the Artwork) for one year after the date of final acceptance by the City under Section 6.3. 7.2.2 Health and Safety. To the Fabricator's knowledge, the Artwork and the materials used are not currently known to be harmful to public health and safety. 7.2.3 Routine Cleaning and Repair. General routine cleaning and repair of the Artwork and any associated working parts and/or equipment will maintain the Artwork within an acceptable standard of public display. Foreseeable exposure to the elements and general wear and tear will cause the Artwork to experience only minor repairable damages and will not cause the Artwork to fall below an acceptable standard of public display With general routine cleaning and repair. and within the context of foreseeable exposure to the elements and general wear and tear, the Artwork will not experience irreparable fracturing, staining, chipping, tearing, abrading and peeling. 7.2.4 No Liens. The Artwork when delivered will be free and clear of any liens from any source whatsoever. 7.2.5 Curable Breach .within One Year. If within one year after the date of final acceptance by the City the City observes any breach of a warranty described in this Section that is curable by the Fabricator. the Fabricator shall, at the request of the City, cure the breach promptly. satisfactorily and consistent .with professional conservation standards, at no expense to the Citv. The City shall give notice to the Fabricator of such breach with reasonable promptness. 7.2.6 Curable Breach after One Year. If after one year following the date of final acceptance by the City the City observes anv damage to, or defect in. the Artwork that is curable by the Fabricator. the City shall contact the Fabricator to make or supervise repairs or restorations at a reasonable fee. The Fabricator shall have the right of first refusal to make or supervise repairs or restorations. Should the Fabricator be unavailable or unwilling to accept reasonable compensation under the industry standard. the City may seek the services of a qualified restorative conservator and maintenance expert. Notwithstanding any provision in this Agreement to the contrary, the City agrees that the Fabricator shall have no liability for any repairs or restorations to the Artwork after one year following the date of final acceptance by the City. 7.2.7 Breach within One Year Incurable by Fabricator. If within one year after the date of final acceptance by the City the City observes a breach of warranty described in this Section 7.2 that is not curable by the Fabricator the Fabricator shall be responsible for reimbursing the City for damages, expenses and loss incurred by the City as a result of the breach. However. ifthe Fabricator disclosed the risk of this breach in writing and the City accepted that it may occur. it shall not be deemed a breach for purposes of this section. 2 7.2.8 Assigment of Other Warranties. To the extent the Artwork incorporates products covered by a manufacturers warranty. the Fabricator shall assign and provide copies of such warranties to the City. 73 Warranty Conditions. The Cite acknowledges that (i) natural weathering and environmental conditions may have an effect on the appearance, but not the structural integrity, of the Artwork, and are not covered by the Fabricator's warranty and (ii) the Fabricators warranty does not coyer any damage to the Artwork caused by any factor other than a defect in materials or workmanship, including. without limitation. damage caused by actions or omissions by the City or any third party. or acts of God. The foregoing warranties are conditional, and shall be voided by the failure of the City to maintain the Artwork in accordance with the specifications of the Fabricator and the applicable conservation standards. 7.4 Misuse of the Artwork. The City acknowledges that the Artwork is not an interactive work of Art and is intended to be viewed by the public only. The City acknowledges that climbing or hanging on, pushing, touching, striking, or otherwisephysically misusing the Artwork ("Misuse") could damage the Artwork and lead to personal injury or property damage. The City agrees to not alter, distort or mutilate the Artwork and to take reasonable precautions to protect the Artwork from damaee. ARTICLE 8 — Bonds, Lien Waivers, Indemnity and Risk of Loss 8.1 Performance Bond. Fabricator shall a furnish a performance bond. at the Fabricator's sole cost and expense, in an amount equal to the Fabricator's compensation under this Agreement. as security for the faithful performance of all of the Fabricator's obliations under this Agreement. The bond shall name the City as obligee, and shall remain in effect until one year after the final acceptance date. The performance bond shall be on a form approved by the City. and shall be obtained from a surety company duly authorized to issue bonds in the amount required in the State of Kansas. 8.2 Lien Waivers. The Fabricator and Artist may be required, as a condition of payment, to provide lien waivers from all persons providing materials or labor in the completion, delivery and installation of the Artwork. 83 Indemnification. To the fullest extent permitted by law. the Artist and Fabricator shall defend. indemnify and hold harmless the City. its agents, representatives. officers, officials and employees from and against all claims. damages, losses and expenses (including but not limited to attorney fees and court costs) attributable to bodily injury, sickness, disease, death, or injury to, impairment, or destruction of property, including loss of use resulting therefrom. to the extent that such claims. damages. losses, and expenses relate to. arise out of. or are alleged to have resulted from the wrongful acts, negligent acts, errors. omissions. or defective work or services of the Artist or Fabricator, or their respective employees, agents, or any tier of subcontractors in the performance of this Agreement. 8.4 Risk of Loss. The Fabricator shall bear the risk of loss or damage to the Artwork until the City takes title to the Artwork pursuant to Article 9. The Fabricator shall take such measures as are reasonably necessary to protect the Artwork from damage. The Fabricator acknowledges that until such time as the City takes title to the Artwork pursuant to Article 9, any injury to property or persons caused by the Artwork or any damage to, theft of. vandalism to. or acts of God affecting the Artwork are the sole responsibility of the Fabricator, including, but not limited to, any loss occurring during the creation, storage, transportation or delivery of the Artwork. regardless of where such loss occurs. 7 Article 9 — Title; Limited Reproduction Rights Title to the Artwork shall pass to the Cite upon the City's final payment to the Fabricator pursuant to Section 4.2. The Fabricator shall provide the City with a Bill of Sale promptly upon receipt of final payment pursuant to Section 4.2. Transfer of title to the City shall be without prejudice to the City's rights under Section 6.3 and 6.4. or the Fabricator's obligations under Section 6.4. Artist grants to the City a non- exclusive, perpetual, royalty -free license to reproduce photos or images of the Artwork for the purposes of advertising and promoting the City and the Salina Field House. Except for the limited rights granted to Owner in this Agreement. Artist retains all copyright and other intellectual property rights in and to the Artwork. including. without limitation. all moral rights. Article 10—Termination 1 0. 1 Unilateral Termination by Cit\,. The City may terminate this Agreement without cause effective immediately upon written notice to the Artist and Fabricator. The City shall pay the Artist and Fabricator for any services performed, out-of-pocket expenses and commitments made prior to the date of termination. consistent with the schedule of payments set forth in Article 2. 10.2 Default by Either Party. If any party to this Agreement shall willfully or negligently fail to fulfill in a timely and proper manner. or otherwise violate any of the covenants. agreements or stipulations material to this Agreement. any other non -defaulting party shall thereupon have the right to terminate this Agreement by giving written notice to the defaulting part\, of its intent to terminate specifying the grounds for termination. The defaulting party shall have thirty (30) days after the effective date of the notice to cure the default. If it is not cured by that time, the non -defaulting party shall have the option to terminate this Agreement. 1 0.3 Default by Artist or Fabricator. If the Artist or Fabricator defaults. the Artist and/or Fabricator (as applicable) shall return to the City all funds provided by the City in excess of expenses already incurred. The Artist and/or Fabricator shall provide an accounting and shall deliver to the City all materials and fabrication completed at the time of default. The City shall retain the right to have the Artwork completed. fabricated, executed, delivered and installed. 10.4 Default bw City. If the City defaults. the City shall promptly compensate the Artist and the Fabricator for all service performed by the Artist and Fabricator prior to termination. The City shall pay the Artist and Fabricator for services performed and commitments made prior to the date of termination, consistent with the schedule of payments set forth in Article 2. 10.5 Cessation of Services. Upon notice of termination. the Artist. Fabricator and any of their subcontractors shall cease all services affected. ARTICLE 11 — General Terms and Conditions 11.1 Notices. All notices required or permitted to be Riven pursuant to this Agreement shall be in writing and delivered personally or sent by registered or certified mail, return receipt requested, or by generally recognized, prepaid, commercial courier or overnight air courier service. Notice shall be considered given when received on the date appearing on the return receipt, but if the receipt is not returned within five (5) days, then three (3) days after mailed, if sent by registered or certified mail or commercial courier service: or the next business day, if sent by overnight air courier service. Notices shall be addressed as appears below for each party, provided that if any party gives notice of a change of name or address, notices to the giver of that notice shall thereafter be given as demanded in that notice. E CITY: City Clerk P.O. Box 736 Salina, KS 67402-0736 ARTIST: Jeremy Rockwell 3023 Tomahawk Dr. Lawrence. KS 66049 FABRICATOR: A. Zahner Company Attn: Andrew Manto. Design Engineer 1400 East 9"' Street Kansas City, MO 64106 I L2 Retention and Inspection of Records. The Contractors shall maintain complete, accurate, and clearly identifiable records with respect to all costs and expenses incurred under this Agreement. The records shall be maintained during the term of this Agreement. and for a period of three (3) years from the date of final payment under this Agreement (the "Retention Period"): provided, however. that if any litigation. claim or audit is commenced prior to the expiration of the Retention Period. then the Retention Period shall be extended until all litigation, claims or audit findings have been completely terminated or resolved, without right of further appeal. During the Retention Period. the Contractors shall allow a representative of the City during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to, or arising under. this Agreement. The City agrees to responsibly utilize all information obtained pursuant to this paragraph for the purposes of reviewing, confirming, and verifying the nature and amount of all costs and expenses incurred under this Agreement. The City agrees to take reasonable precautions not to disclose such information outside the scope of those stated purposes. subject to the Kansas open records act or other applicable lay. 11.3 Non -appropriation. The City is subject to Kansas budget and cash basis laws, and operates on a calendar fiscal year. In the event that this Agreement involves financial obligations spanning multiple fiscal years for the City. it is subject to annual appropriation by the City's governing body for future fiscal years. If the City's governing body does not appropriate the funds necessary to fulfill the City's financial obligations pursuant to this Agreement. the City shall so notify the other parties to this Agreement and this Agreement shall be null and void for purposes of the fiscal year(s) affected by the decision of thegoverning body not to appropriate. 11.4 Relationship. It is expressly understood that Contractors in performing services under this Agreement. do so as an independent contractor. The City shall neither have nor exercise any control or direction over the methods by which Contractora perform their responsibilities. The sole interest and responsibility of the City is to see that the services covered by this Agreement are performed and rendered in a competent, efficient. and satisfactory manner. Contractors shall be exclusively responsible for all taxes. withholding payments, employment -based benefits. deferred compensation plans. including but not limited to its workers compensation and social security obligations. and the filing of all necessary documents. forms, or returns pertinent to the foregoing. 11.5 Subcontracting. Contractors shall not subcontract any work or services under this Agreement without the City's prior written consent. 11.6 Compliance with Applicable Law. Contractors shall comply with all applicable federal. state. and local law in the performance of this Agreement. 9 11.7 Equal Opportunity. (a) In conformity with the Kansas act against discrimination and Chapter 13 of the Salina Code. the Contractors and their subcontractors. if any, agree that: (1) The Contractors shall observe the provisions of the Kansas act against discrimination and Chapter 13 of the Salina Code and in doing so shall not discriminate against any person in the performance of work under this Agreement because of race. sex. religion, age, color, national origin, ancestry or disability: (2) The Contractors shall include in all solicitations. or advertisements for employees, the phrase "equal opportunity employer." or a similar phrase to be approved by the City's human relations director: (3) If the Contractors fail to comply with the manner in which the Contractors report to the Kansas human rights commission in accordance with the provisions of K.S.A. 44-1031 and amendments thereto. the Contractors shall be deemed to have breached this Agreement and it may be canceled. terminated or suspended, in whole or in part, by the City: (4) If the Contractors are found guilty of a violation of Chapter 13 of the Salina Code or the Kansas act against discrimination under a decision or order of the Salina human relations commission or the Kansas human rights commission which has become final. the Contractors shall be deemed to have breached this Agreement and it may be canceled. terminated or suspended, in whole or in part, by the City: (5) The Contractors shall not discriminate against any employee or applicant for employment in the performance of this Agreement because of race. sex. religion. age. color, national origin, ancestry or disability: and (6) The Contractors shall include similar provisions in any subcontract under this Agreement. 11.8 Administration of Agreement. All references in this Agreement requiring the City`s participation or approval shall mean the participation or approval of the City Manager or his designee, unless otherwise provided herein. 11.9 Attomev Fees. If any suit or action is instituted by either party hereunder. including all appeals, the prevailing party in such suit or action shall be entitled to recover reasonable attorney fees and expenses from the non -prevailing party, in addition to any other amounts to which it may be entitled. 11.10 Right to Independent Legal Advice. The Contractors understand and acknowledges the right to have this Agreement reviewed by legal counsel of the Contractors' choice. 11.11 Applicable Law: Venue. This Agreement and its validity. construction and performance shall be govemed by the laws of Kansas. In the event of any legal action to enforce or interpret this Agreement. the sole and exclusive venue shall be in the Saline Countv. Kansas District Court. 11.12 Interpretation. This Agreement shall be interpreted according to its fair meaning. and not in favor of or against any party. 10 1 1.13 Time. Time is of the essence of this Agreement. No extension will be eramed unless in writing and signed by the parties. Should the end of a time period fall on a legal holiday that termination time shall extend to 5:00 p.m. of the nest full business day. 11.14 Severability. The unenforceability, invalidity, or illegality of any provision of this Agreement shall not render the other provisions unenforceable, invalid, or illegal. 11.15 Authority and Consent to Transaction. Each party represents to the other that the person executing this Agreement has full and legal authority to bind such party to the terms of this Agreement, and that the execution and delivery of this Agreement have been duh and validly authorized by the eovernine body of each party. 11.16 Persons Bound. This Agreement shall extend to and bind the heirs. executors. administrators_. trustees. successors and authorized assigns of the parties hereto. 11.17 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, or in multiple originals, and all such counterparts or originals shall for all purposes constitute one agreement. 11.18 Amendments. Neither this Agreement nor any of its terns may be changed or modified. waived. or terminated except by an instrument in writing signed by an authorized representative of the party against whom the enforcement of the change, waiver, or termination is sought. 11.19 Waiver. No failure or delay by a pan, hereto to insist on the strict performance of any term of this Aereement, or to exercise any right or remedy consequent to a breach thereof shall constitute a waiver of any breach or any subsequent breach of such term. No waiver of any breach hereunder shall affect or alter the remaining terms of this Aereement, but each and every, term of this Agreement shall continue in full force and effect with respect to any other then existing or subsequent breach thereof. 11.20 Conflict Resolution. No interpretation of this Agreement shall be allowed to find the City has agreed to binding arbitration. 11.21 No Third Pam Beneficiaries. Solely the parties to this Agreement shall have rights and may make claims under this Agreement. There are no intended third pan beneficiaries under this Agreement. and no third parties shall have any rights or make any claims hereunder. 11.22 Typewritten or Handwritten Provisions. Typewritten or handwritten provisions inserted or attached. and initialed by all parties, shall supersede all conflicting printed provisions. 11.23 Feminine-Masculine. Singular-Plural. Wherever used; singular shall include the plural, plural the singular, and use of any gender shall include all genders. 11.24 Headings. The headings of the sections of this Agreement are included for the purposes of convenience only and shall not affect the interpretation of any provision hereof. 11.25 Merger Clause. These terms are intended by the parties as a complete, conclusive and final expression of all the conditions of their Agreement. No other promises, statements. warranties, agreements or understandings. oral or written. made before or at the signing thereof. shall be binding unless in writing and signed by all parties and attached hereto. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their authorized representatives. CITY OF SALINA, KANSAS By: Kaye J. Attest: 7ShanForm: CMC. City Clerk A. ZAHI'ER CMI VANN' (name) (title) ARTIST Jerenf<, Rockwell 12