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Museum Tree Design 'Project- 04-16GUJ AGREEMENT FOR TREE FABRICATION SERVICES This AGREEMENT, made on this ~ay of July, 2005, in Salina, Kansas between the City of Salina, Kansas, hereinafter referred to as the "OWNER", and Scott Clark d/b/a Scott Clarke Design, hereinafter referred to as the "CONTRACTOR". RECITALS OWNER wishes to obtain the services of CONTRACTOR for a PROJECT involving the fabrication and installation of a simulated oak tree in the Smoky Hill Museum Lobby as part of the Crossroads of the Heartland Gallery Renovation Project. CONTRACTOR has negotiated the terms of such an Agreement with OWNER and has agreed to the terms as set forth hereafter. AGREEMENT The parties agree as follows: 1. TERM OF AGREEMENT OWNER retains CONTRACTOR and CONTRACTOR accepts such responsibilities for the development of a PROJECT for fabrication and installation of a simulated oak tree in the lobby of the Smoky Hill Museum, Salina, Kansas. PROJECT period will commence July 18, 2005 and terminate with installation and completion of the project on August 12, 2005 2. SCOPE OF CONTRACTOR'S SERVICES CONTRACTOR agrees to complete the PROJECT, as specifically set forth: a) Design and fabricate a simulated oak tree. This will include: 1) CONTRACTOR will be responsible for developing a design that fits within the existing Smoky Hill Museum exhibition master plan. 2) Tree will simulate an oak tree appropriate to the Smoky Hill geographical region, and illustrate spring/summer foliage. 3) Tree trunk will be approximately l' in diameter, spreading out at the base. Canopy will measure approximately 15' in diameter. Tree height will be approximately 15-16' high. 2 4) CONTRACTOR will utilize fabrication methods similar to that of the existing trees in the Smoky Hill Museum Prairie Education Lab Learning Center. Exterior of tree will be fabricated of blown concrete and painted. Transport and install simulated oak tree in the lobby of the Smoky Hill b) Museum. 1) CONTRACTOR will be responsible for transportation of pre-fabricated simulated oak tree to the Smoky Hill Museum. 2) CONTRACTOR will be responsible for all aspects of the installation process, including on-site fabrication, finish painting, and limb and leaf installation. 3) Tree installation will utilize a pressure-plate mounting system that will tie into the concrete ceiling, but will not damage the terrazzo flooring. OWNER'S RESPONSIBILITIES 3. OWNER agrees to provide to CONTRACTOR: a) OWNER will work with the CONTRACTOR to complete the tree project, providing review, information, and resources as required. b) OWNER will provide access the Smoky Hill Museum building during regularly- scheduled hours, or as arranged between CONTRACTOR and OWNER. OWNER will handle CONTRACTOR'S requests for information in a timely manner to avoid delays. c) 4. CONTRACTOR TO COMPLY WITH ALL APPLICABLE LAWS AND OBTAIN ALL APPLICABLE PERMITS In fulfilling its obligation under the Agreement, the CONTRACTOR, its agents and employees shall comply with all Federal, State and City laws, ordinances, regulations and requirements which in any way affect the construction of the PROJECT. 5. PERFORMANCE OF DUTIES CONTRACTOR agrees that he, and any person representing him, shall perform at all times faithfully, industriously, and to the best of their ability, experience, and 3 talents, all of the duties that may be required to complete the project described hereunder and shall devote such time to the performance of such duties as may be necessary. 6. CONTRACTOR'S COMPENSATION AND SCHEDULE The OWNER shall pay an amount not to exceed fifteen thousand dollars ($15,000) for services provided by the CONTRACTOR under this Agreement. OWNER shall pay CONTRACTOR according to the terms and schedule set forth. a) Each check to CONTRACTOR shall be made payable to: Scott Clarke, Clarke Design, 1410 Garfield Street, Lincoln NE 68502. b) OWNER shall make payments to the CONTRACTOR according to the following schedule: An initial payment of $7,500.00 shall be made upon beginning the contracted work. The remaining balance of $7,500.00 shall be paid upon successful completion of the project. CONTRACTOR shall make written request for final payment for the remaining balance of this Agreement upon receiving written acknowledgment by OWNER of completion of PROJECT in accordance to the Scope of Contractor's Services as outlined in Section 2. c) d) Final payment shall be subject to OWNER'S review of product workmanship, fabrication and conformance with Scope of Contractor's Services, as included in Section 2. CONTRACTOR'S acceptance of the last payment shall discharge all of OWNER'S payment obligations under this Agreement. OWNER shall not pay CONTRACTOR for work incidental to changes required by CONTRACTOR'S errors or omissions. CONTRACTOR shall be responsible for additional costs incurred as a result of their own errors or omissions. "Additional costs" means those costs that can be reasonably determined to be in excess of what was approved by the OWNER. e) f) 7. CONTRACTOR'S WARRANTIES AND GUARANTEES The CONTRACTOR warrants the PROJECT for the following: 4 a) The PROJECT is the original product of CONTRACTOR'S own creative efforts. The PROJECT is clear of any liens from any source whatsoever. CONTRACTOR'S work will continue to be free from faults of material and b) c) d) workmanship for a period of one (1) calendar year after installation. This warranty shall apply only to that work which is entirely that of the CONTRACTOR or of the CONTRACTOR'S agents or employees. If the PROJECT fails to comply with subsection c. the CONTRACTOR, at the CONTRACTOR'S own expense shall remedy the problem to the OWNER'S satisfaction within a reasonable period of time as determined by the OWNER. 7. INDEMNIFICATION CLAUSE The CONTRACTOR agrees to indemnify and save harmless the City of Salina, their officials, agents, servants, officers, directors and employees from and against all claims, expenses, demands, judgments and causes of action for personal injury or death or damage to property where, and to the extent that, such claims, expenses, demands, judgment or causes or action arise from the CONTRACTOR'S negligent acts. 8. EQUAL OPPORTUNITY AND AFFIRMATIVE ACTION During the performance of the contract, the CONTRACTOR will not discriminate against any employee or applicant for employment in the performance of said contract and CONTRACTOR shall include similar provisions in all subcontracts under his contract with the OWNER. The CONTRACTOR shall observe all provisions of Sections 13-131; 13-132; 13-133, and 13-134 of the Salina Code. 10. NON-ASSIGNMENT Neither party may assign any of its rights under this Agreement without the prior written consent of the other party. 5 11. OWNERSHIP OF PROJECT Finished PROJECT shall become the property of the OWNER once it is accepted by the OWNER. Acceptance shall be by formal letter to CONTRACTOR as required in Scope of Contractor's Services, Section 2. 12. COPYRIGHT The OWNER acknowledges that the CONTRACTOR is an independent contractor and that the PROJECT is not a work for hire (defined in this Agreement as works produced by employees within the scope of their employment). The OWNER retains copyright on all intellectual content and site specific design for the PROJECT. Except as provided in this Agreement, the CONTRACTOR owns and retains all other copyrights in the PROJECT. The OWNER has no obligation to sue or defend on behalf of the CONTRACTOR to protect CONTRACTOR'S claims. 13. IRREVOCABLE LICENSE TO REPRODUCE FOR NON-COMMERCIAL PURPOSES The CONTRACTOR hereby grants the OWNER, without charge to the OWNER, irrevocable license to make, or cause to be made, photographs and other two-dimensional reproductions of the PROJECT for educational, public relations, tourism, promotional purposes without payment of a royalty to the CONTRACTOR. For the purposes of this Agreement, the following are among those deemed to be permissible reproductions for the above cited purposes: brochures and pamphlets pertaining to the OWNER; reproduction in exhibition catalogues, books, slides, photographs, postcards, posters, and calendars; in museum magazines, museum books and museum and news sections of newspapers; general books and magazines not primarily devoted to museums; slides and film strips; video; computer web sites; and television. 14. DEFAULT AND REMEDIES If the CONTRACTOR willfully or negligently fails to fulfill in a timely and proper manner, or otherwise violates any of the covenants, agreements, or stipulations 6 material to this Agreement, the OWNER shall have the right to give written notice of default to the CONTRACTOR, defining the default(s) and date by which the default(s) must be remedied to avoid termination of this Agreement. The CONTRACTOR shall have thirty (30) calendar days after receipt of the notice to remedy the default(s). Defaults may include, but are not limited to: failure to complete the PROJECT in accordance with the Scope of Contractor's Services in Section 2. 15. TERMINATION a) The OWNER may, at its option, without further notice or demand upon CONTRACTOR, immediately cancel and terminate this Agreement and terminate each, every and all of the rights of CONTRACTOR and of any and all persons claiming by or through CONTRACTOR under this Agreement, if any of the following events occur: 1) At any stage of the work the CONTRACTOR abandons the PROJECT; or b) 2) CONTRACTOR defaults in the performance of the Agreement, as described in Article 13 of this Agreement, and fails to remedy such default within thirty (30) calendar days following the service on the CONTRACTOR of a written notice from the OWNER specifying the default(s) complained of and the date on which its rights will be terminated as provided if such default(s) are not remedied; or 3) CONTRACTOR files a voluntary petition for bankruptcy; or 4) CONTRACTOR is adjudicated as bankrupt; or 5) CONTRACTOR makes a general assignment for the benefit of creditors. In the event the OWNER elects to terminate this Agreement, the OWNER shall pay CONTRACTOR the reasonable value of completed portions of work that have been inspected and accepted by OWNER up to the date of termination, but not to exceed the amounts as scheduled in the Agreement. All finished and unfinished products prepared for submission by the CONTRACTOR under this Agreement shall at OWNER'S option become its 7 property. CONTRACTOR shall also completely absolve himself of all credit to PROJECT reproductions, transfer all copyright in PROJECT to OWNER, and grant OWNER with irrevocable license to complete design and fabrication of PROJECT. 16. MODIFICATIONS This agreement represents the entire agreement between the OWNER and CONTRACTOR and supersedes any and all prior negotiations and agreements either written or oral. Modification to this contract may be made by mutual agreement and must be made in writing. IN WITNESS WHEREOF, the parties have executed this Agreement on the date written below. OWNER: CITY OF SALINA, KANSAS CONTRACTOR: SCOTT CLARK d/b/a CLARKE DESIGN By: rA¡~ ason Gage By: /M &:~¿-/ Scott Clarke Title: City Manager Title: 0 Lt ~ ~--"--- Date: 7-z. &;--Or Date: '7 - 2ð-o~