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HomeMy WebLinkAboutFresno Arts Council, Inc - 1st Amdt. to Agrmt - 11-17-2022UVI:UOIYII CIIVCIUF u ILI. O:ICL// O/ C-000N-4JL/-h101J0-VO40:l4lJVr IV I FIRST AMENDMENT TO AGREEMENT THIS FIRST AMENDMENT TO AGREEMENT (First Amendment) made and entered into as of November 17, 2022, amends the Agreement entered into between the CITY OF FRESNO/FRESNO YOSEMITE INTERNATIONAL AIRPORT, a municipal corporation, (City), and Fresno Arts Council, Inc. (FAC) a California 501(c) 3 corporation. RECITALS WHEREAS, City and FAC entered into an agreement, dated July 18, 2022, for professional Art related services for public art at the Fresno Yosemite International Airport (Agreement); and WHEREAS, the City and FAC desire to amend the Agreement to add indemnification and insurance requirements in Section 7, to complete the Project; and WHEREAS, FAC agrees it has no claim, demands, or disputes against City. AMENDMENT NOW, THEREFORE, the Parties agree that the Agreement is amended as follows: 1. FAC shall provide required indemnification and insurance as required below: Indemnification: To the furthest extent allowed by law, FAC does hereby agree to indemnify, hold harmless, and defend the City of Fresno, and each of its officers, officials, employees, agents, and volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including, but not limited to personal injury, death at any time and property damage) incurred by the City, FAC or any other person, and from any and all claims, demands and actions in law or equity (including attorney's fees, litigation expenses, and costs to enforce this agreement), arising or alleged to have arisen out of performance of any work for City by the FAC. The FAC's obligations under the preceding sentence shall apply regardless of whether the City or any of its officers, officials, employees, agents, or volunteers are passively negligent, but shall not apply to any loss, liability, fines, penalties, forfeitures, costs or damages caused by the sole negligence, or willful misconduct, of the City or any of its officers, officials, employees, agents, or volunteers. If FAC should contract all or any portion of the work to be performed under this Agreement, FAC shall require each contractor to indemnify, hold harmless, and defend the City and each of its officers, officials, employees, agents, and volunteers in accordance with the terms of this Agreement. Insurance (a) Throughout the life of this Agreement, FAC, or any contractor they hire, shall pay for and maintain in full force and effect all insurance as required herein with an insurance company(ies) either (i) admitted by the California Insurance Commissioner to do business in the State of California and rated no less than "A-VII" in the Best's Insurance Rating Guide, or (ii) as may be authorized in UUUUJIIJ.II CI IVCIVFIC IL/. OJCU/O/ C-000M-4JL/-Mm O-VO'#OJ'il.,Vr IV I writing by CITY'S Risk Manager or his/her designee at any time and in his/her sole discretion. (b) If at any time during the life of the Agreement or any extension, FAC or any of its contractors fail to maintain any required insurance in full force and effect, all services and work under this Agreement shall be discontinued immediately, and all payments due or that become due to FAC shall be withheld until notice is received by CITY that the required insurance has been restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to CITY. Any failure to maintain the required insurance shall be sufficient cause for CITY to terminate this Agreement. No action taken by CITY pursuant to this section shall in any way relieve FAC of its responsibilities under this Agreement. The phrase "fail to maintain any required insurance" shall include, without limitation, notification received by CITY that an insurer has commenced proceedings, or has had proceedings commenced against it, indicating that the insurer is insolvent. (c) The fact that insurance is obtained by FAC shall not be deemed to release or diminish the liability of FAC, including, without limitation, liability under the indemnity provisions of this Agreement. The duty to indemnify CITY shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by FAC. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of FAC, contractors, suppliers, invitees, vendors, subcontractors, consultants or anyone employed directly or indirectly by any of them. FAC, or any contractor they hire, shall procure and maintain for the duration of the contract insurance with limits of liability not less than those set forth below. However, insurance limits available to CITY, its officers, officials, employees, agents and volunteers as additional insureds, shall be the greater of the minimum limits specified herein or the full limit of any insurance proceeds available to the named insured: COMMERCIAL GENERAL LIABILITY $1,000,000 per occurrence for bodily injury and property damage; $1,000,000 per occurrence for personal and advertising injury; $2,000,000 aggregate for products and completed operations; and, $2,000,000 general aggregate COMMERCIAL AUTOMOBILE LIABILITY $1,000,000 per accident for bodily injury and property damage. Workers' Compensation Insurance as required bV the State of California with statutory limits and EMPLOYER'S LIABILITY with limits of Iiabilitv not less than: $1,000,000 each accident for bodily injury; 2 UUUUOIIJ.II CI IVCIUFlt, IU. our-u1 O! C-UUOM-'#JG!-MO%,O-UOYOU'#VUr I I $1,000,000 disease each employee; and, $1,000,000 disease policy limit. FAC shall be responsible for payment of any deductibles contained in any insurance policy(ies) required herein and FAC shall also be responsible for payment of any self -insured retentions. All policies of insurance required herein shall be endorsed to provide that the coverage shall not be cancelled, non -renewed, reduced in coverage or in limits except after thirty (30) calendar days written notice has been given to CITY, except ten (10) days for nonpayment of premium. FAC is also responsible for providing written notice to the CITY under the same terms and conditions. In the event any policy is due to expire during the work to be performed for CITY, FAC shall provide a new certificate, and applicable endorsements, evidencing renewal of such policy not less than fifteen (15) calendar days prior to the expiration date of the expiring policy. (i) The Commercial General and Automobile Liability insurance policies shall be written on an occurrence form and policies shall be endorsed to name City, its officers, officials, agents, employees and volunteers as an additional insured. FAC shall establish additional insured status for the City and for all ongoing and completed operations under the Commercial General Liability policy by use of ISO Forms or an executed manuscript insurance company endorsement providing additional insured status. The Commercial General endorsements must be as broad as that contained in ISO Forms: GC 20 10 11 85 or both CG 20 10 & CG 20 37. (ii) All such policies of insurance shall be endorsed so the FACS' insurance shall be primary and no contribution shall be required of City. The coverage shall contain no special limitations on the scope of protection afforded to City, its officers, officials, employees, agents and volunteers. (iii) The Commercial General, Automobile Liability and Workers' Compensation insurance policies shall contain, or be endorsed to contain, a waiver of subrogation as to CITY, its officers, officials, agents, employees and volunteers. PROVIDING OF DOCUMENTS - FAC shall furnish CITY with all certificate(s) and applicable endorsements effecting coverage required herein All certificates and applicable endorsements are to be received and approved by the CITY'S Risk Manager or his/her designee prior to CITY'S execution of the Agreement and before work commences. All non -ISO endorsements amending policy coverage shall be executed by a licensed and authorized agent or broker. Upon request of CITY, FAC shall immediately furnish CITY with a complete copy of any insurance policy required under this Agreement, including all endorsements, with said copy certified by the underwriter to be a true and correct copy of the original policy. This requirement shall survive expiration or termination of this Agreement. All K UUUUJIYII CIIVCIUFIC IU. OJ1ZLJ1 O( C-000M-+UL I-MOl,O-UO'FOU-l%'Ur IU 1 subcontractors working under the direction of FAC shall also be required to provide all documents noted herein. 2. This Amendment shall become part of and subject to the terms and conditions of the Agreement, which except as modified herein, remains unchanged and in full force and effect. However, to the extent that the terms and conditions expressly set forth in this Amendment conflict with the terms and conditions of the Agreement, the terms and conditions expressly set forth in this Amendment will prevail. Unless otherwise defined in this Amendment, capitalized terms used herein shall have the meanings assigned to such terms in the Agreement. By signing below, the undersigned certify that they have read and understand, and agree to be legally bound by this Amendment. [Signatures follow on the next page.] Ell UUOU01 1I CI IVCIUFIC IU. OJCU/O/ C-000N-yJGl-MO%,O-VO'+OJ4l..Or I I IN WITNESS WHEREOF, the parties have executed this Amendment to Agreement in Fresno, California, the day and year first above written. FRESNO--YOSEMITE INTERNATIONAL Al &Igned by: By: " vt,bwtpSb ' 12/5/2022 FTEM71 nompson Director of Aviation CITY OF FRESNO, A C gnj@,MVnicipal corporation By: G'" $w� 12/5/2022 Gregory Barfield Assistant City Manager APPROVED AS TO FORM: RINA M. GONZALEZ Interim,jQjb n8gprney By: bv'a,In,hVU (hW 12/6/2022 Brandon M. Collet Date Supervising Deputy City Attorney ATTEST: TODDSTERMER, CRM City Clprc , nudbY: BY 'ram, q6w 12/6/2022 Deputy 5 FRESNO ARTS COUNCIL By: U Lilia Gonzales Chavez Executive Director By: Name: Olaa Nunez Title: Board Treasure (If corporation or LLC., CFO, Treasurer, Secretary or Assistant Secretary) LjUL;U0IY II CIIVCIUFIC IL). OUCLJ/01 G-000M-'4UG/-PAW-0-U0'40U'4liUr IQ Amendment - Fresno Arts Council Insurance Reqs CLEAN 111722 Final Audit Report 2022-11-29 Created: 2022-11-18 By: Eric Martinez (eric@fresnoartscouncil.org) Status: Signed Transaction ID: CBJCHBCAABAAkhWObzha_bSPDgiXddipiYnkeijU2Eyi "Amendment - Fresno Arts Council Insurance Reqs CLEAN 111 722" History Document created by Eric Martinez (eric@fresnoartscouncil.org) 2022-11-18 - 6:03:31 PM GMT I1`4 Document emailed to Lilia Chavez (lilia@fresnoartscouncil.org) for signature 2022-11-18 - 6:04:49 PM GMT Email viewed by Lilia Chavez (lilia@fresnoartscouncil.org) 2022-11-18 - 11:53:37 PM GMT 6© Document e-signed by Lilia Chavez (lilia@fresnoartscouncil.org) Signature Date: 2022-11-18 - 11:53:55 PM GMT - Time Source: server c4 Document emailed to nunezo@csufresno.edu for signature 2022-11-18 - 11:53:56 PM GMT Email viewed by nunezo@csufresno.edu 2022-11-29 - 6:57:08 PM GMT 6© Signer nunezo@csufresno.edu entered name at signing as Olga Nunez 2022-11-29 - 6:59:15 PM GMT Jo Document e-signed by Olga Nunez (nunezo@csufresno.edu) Signature Date: 2022-11-29 - 6:59:17 PM GMT - Time Source: server Agreement completed. 2022-11-29 - 6:59:17 PM GMT �' Adobe Acrobat Sign