HomeMy WebLinkAboutFresno Arts Council Contract (FYI) 10-1-23Page 1 of 11
CONTRACT
BETWEEN
FRESNO YOSEMITE INTERNATIONAL AIRPORT / CITY OF FRESNO AND
FRESNO ARTS COUNCIL
This Contract, effective as of October 1, 2023 – April 30, 2026, is made and entered into by
and between The City of Fresno/Fresno Yosemite International Airport (City), a corporation
whose office is located at 4995 E. Clinton Way, Fresno, CA 93727-1525; to be represented by
Henry Thompson – Director of Aviation, whose office is 4995 E. Clinton Way, Fresno, CA
93727-1525 and Fresno Arts Council, Inc. (FAC), a California a 501(c)3 corporation with offices
at 1245 Van Ness Ave, Fresno, CA 93721.
RECITALS
City has determined the need for certain Art related services to develop and implement a terminal
expansion public art program at the Fresno Yosemite International Airport; and
FAC has agreed to provide the same in accordance with the terms and conditions contained
herein.
TERMS
The foregoing recitals are incorporated herein for all purposes as if fully set forth.
1. SERVICES AND PERFORMANCE SCHEDULE
FAC shall perform the services set forth in Exhibit A, Scope of Services, Performance
Schedule, and Compensation (Services), in accordance with the performance schedule
established therein. FAC shall include in the terminal expansion public art program that the
selected artists shall execute a waiver of moral rights to the public art on a form acceptable
to the City.
2. INDEPENDENT CONTRACTOR
FAC is an independent contractor and is not in a joint venture, partnership, principal -
agent, or employer-employee relationship with the City. As such, FAC shall be solely
responsible for the means, methods, techniques, sequences, and procedures utilized in
the performance of the Services, and shall have sole direction and control over its
employees, agents, servants, and lower- tier subcontractors. FAC, consistent with its
status as an independent contractor, shall not hold itself out as, or claim to be, an officer,
agent, representative, or employee of the City, or allow its personnel to do so.
3. SUBCONTRACT
FAC shall enter into an agreement as necessary with the selected artists or artist
collective to complete the terminal expansion public art program as proposed in their
submission and shall oversee and manage planning, Call to Artists, artwork selections,
preparation and installation as necessary. Nothing contained in this Contract or otherwise
DocuSign Envelope ID: 33B2FD30-E4FE-42FA-AAF1-E5F38E1C7C10
Page 2 of 11
shall create any contractual relation between the City and Subcontractors, and no
subcontract shall relieve FAC from their responsibilities and obligations under this
Contract. FAC’s obligation to pay its Subcontractor is an independent obligation from the
City’s obligation to make payment to FAC. As a result, the Contractor shall have no
obligation to pay or enforce payment of any money to the su bcontractor.
4. COMPENSATION
FAC shall perform the Services for an amount not to exceed $20,000.00.
5. INVOICES
FAC shall submit its invoice to the City promptly upon completion of all Services and
obligations under the Contract.
For services satisfactorily rendered in accordance with the terms of this Agreement, and
upon receipt and approval of the invoices by the City, the City agrees to compensate FAC
with a lump sum payment of $20,000.00 for the development and implementation of a
terminal expansion public art program, which includes, but is not limited to administration
and processing.
6. PAYMENT
Contingent upon FAC’s submittal of a proper invoice and supporting documentation,
the City shall pay those undisputed amounts due and owing within 10 days.
7. INDEMNIFICATION
To the furthest extent allowed by law, FAC shall indemnify, hold harmless and defend City
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), and from any and all claims, demands and actions in law or equity (including
reasonable attorney's fees, litigation expenses and cost to enforce this agreement) that
arise out of, pertain to, or relate to the negligence, recklessness or willful misconduct of
FAC, its principals, officers, employees, agents or volunteers in the performance of this
Agreement.
If FAC should subcontract all or any portion of the services to be performed under this
Agreement, FAC shall require each subcontractor to indemnify, hold harmless and defend
City and each of its officers, officials, employees, agents and volunteers in accordance with
the terms of the preceding paragraph.
This section shall survive termination or expiration of this Agreement.
8. INSURANCE REQUIREMENTS
(a) Throughout the life of this Contract, FAC shall pay for and maintain in full force
and effect all insurance as required in Exhibit B 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 writing by City's Risk Manager or designee at any time and in its sole
discretion. The required policies of insurance as stated herein shall maintain limits of
liability of not less than those amounts stated therein. However, the insurance limits
DocuSign Envelope ID: 33B2FD30-E4FE-42FA-AAF1-E5F38E1C7C10
Page 3 of 11
available to City, its officers, officials, employees, agents and volunteers as additional
insureds, shall be the greater of the minimum limits specified therein or the full limit of any
insurance proceeds to the named insured.
(b) If at any time during the life of the Agreement or any extension, FAC or any of
its subcontractors 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, vendors, suppliers, invitees, contractors, sub-contractors,
subcontractors, or anyone employed directly or indirectly by any of them.
9. NOTICES
All required notices shall be given in writing, signed by the party giving notice, and
delivered to the following address.
CITY FRESNO ARTS COUNCIL
Fresno Yosemite International Airport
4995 E. Clinton Way
Fresno, CA 93727-1525
Attention:
Henry Thompson
Director of Aviation
Henry.Thompson@fresno.gov
Fresno Arts Council, Inc.
1245 Van Ness Ave
Fresno, CA 93721
Attention:
Lilia G. Chavez
Executive Director
Lilia@fresnoartscouncil.og
///
DocuSign Envelope ID: 33B2FD30-E4FE-42FA-AAF1-E5F38E1C7C10
Page 4 of 11
10. ENTIRE AGREEMENT
This Contract, consisting of this document and, Exhibit A, represents the entire and
integrated agreement between Fresno Yosemite International Airport and the Fresno Arts
Council and supersedes and replaces all prior and contemporaneous inducements,
understandings, agreements, arrangements, negotiations, and representations, whether
written or oral, with respect to the subject matter hereof. This Contract may not be
modified except in writing, by an amendment signed by the parties hereto.
[Signatures follow on the next page.]
DocuSign Envelope ID: 33B2FD30-E4FE-42FA-AAF1-E5F38E1C7C10
Page 5 of 11
IN WITNESS WHEREOF, FAC and City have duly executed this Contract at Fresno,
California, effective as of the date first written above.
CITY OF FRESNO
By:
Georgeanne A. White
City Manager
FRESNO ARTS COUNCIL
By:
Lilia Gonzales Chavez
Executive Director
(If corporation or LLC., Board Chair,
Pres. or Vice Pres.)
FRESNO YOSEMITE
INTERNATIONAL AIRPORT
By:
Henry Thompson
Director of Aviation
APPROVED AS TO FORM:
ANDREW JANZ
City Attorney
By:
Brandon M. Collet Date
Senior Deputy City Attorney
ATTEST:
TODD STERMER, CMC
City Clerk
By:
Date
Deputy
By:
Name:
Title:
(If corporation or LLC., CFO, Treasurer,
Secretary or Assistant Secretary)
EXHIBITS:
Exhibit A – Scope of Services and Performance Schedule
Exhibit B – Insurance Requirements
DocuSign Envelope ID: 33B2FD30-E4FE-42FA-AAF1-E5F38E1C7C10
11/7/2023
Treasurer
Harpreet Gill
11/7/2023
11/7/2023
11/13/2023
11/13/2023
11/13/2023
Page 6 of 11
EXHIBIT A
SCOPE OF SERVICES AND PERFORMANCE
SCHEDULE
FAC shall perform the following Services and shall complete the Services according to the
following schedule:
Task 1: Development and Implementation
a. FAC shall develop a terminal expansion public art program
b. FAC shall prepare the Call to Artists
c. FAC shall prepare and coordinate meetings for the selection of artwork
d. FAC shall coordinate selected artwork installations
Task 2: Request for Proposals
a. FAC shall prepare the Call to Artists
b. FAC shall identify a list of artists to receive the Call to Artists
c. FAC shall coordinate and facilitate a pre-proposal meeting
Task 3: Art Selection Committee Formation
a. FAC shall, in conjunction with the City, identify three (3) to (7) people to serve on
the Art Selection Committee.
b. FAC shall contact and obtain commitments from at least three (3) members to
serve on the Art Selection Committee.
Task 4: Art Selection Meetings
a. FAC shall coordinate a minimum of five (5) meetings for the selection of art.
Coordination refers to scheduling meetings to meet members’ availability,
identifying a location for the meeting, facilitating the meeting, and preparing a
record of the meeting.
b. The five (5) meetings are expected to consist of the following general agendas:
• Meeting 1: Orientation to the project (project background; development and or
review of the Call to Artists)
• Meeting 2: Review of proposals received from artists; select multiple artists based
on defined public art locations within the terminal expansion for more refined
proposals.
• Meeting 3: Presentations from finalists; select artist(s)
• Meeting 4: Coordinate artist studio visits to view existing artwork
• Meeting 5: Contingency meeting if necessary
Task 5: Subcontract
a. FAC shall subcontract with the selected artists as an agent of the City to provide
artists payment for the project.
Deliverables:
• Develop and implement a terminal expansion public art program
DocuSign Envelope ID: 33B2FD30-E4FE-42FA-AAF1-E5F38E1C7C10
Page 7 of 11
• Art Selection Committee Membership
• Coordination and facilitation a minimum of six (6) Art Selection Committee
meetings
• Scope of Work for Public Art Call to Artists
• Coordinate and facilitate a pre-proposal meeting
• Subcontract selected Artists
Due: Substantial work to be completed within 18 months of full execution of this contract
DocuSign Envelope ID: 33B2FD30-E4FE-42FA-AAF1-E5F38E1C7C10
Page 8 of 11
EXHIBIT B
INSURANCE REQUIREMENTS
MINIMUM SCOPE OF INSURANCE
Coverage shall be at least as broad as:
1. The most current version of Insurance Services Office (ISO) Commercial
General Liability Coverage Form CG 00 01, providing liability coverage arising out of your
business operations. The Commercial General Liability policy shall be written on an
occurrence form and shall provide coverage for “bodily injury,” “property damage” and
“personal and advertising injury” with coverage for premises and operations (including the
use of owned and non-owned equipment), products and completed operations, and
contractual liability (including, without limitation, indemnity obligations under the Agreement)
with limits of liability not less than those set forth under “Minimum Limits of Insurance.”
2. The most current version of Commercial Auto Coverage Form CA 00 01,
providing liability coverage arising out of the ownership, maintenance or use of automobiles
in the course of your business operations. The Automobile Policy shall be written on an
occurrence form and shall provide coverage for all owned, hired, and non -owned
automobiles or other licensed vehicles (Code 1- Any Auto).
3. Workers’ Compensation insurance as required by the State of California and
Employer’s Liability Insurance.
4. Professional Liability (Errors and Omissions) insurance appropriate to FAC’S
profession.
MINIMUM LIMITS OF INSURANCE
FAC, or any party the FAC subcontracts with, shall maintain limits of liability of 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 th e minimum limits specified herein
or the full limit of any insurance proceeds available to the named insured:
1. COMMERCIAL GENERAL LIABILITY:
(i) $1,000,000 per occurrence for bodily injury and property damage;
(ii) $1,000,000 per occurrence for personal and advertising injury;
(iii) $2,000,000 aggregate for products and completed operations; and,
(iv) $2,000,000 general aggregate applying separately to the work performed
under the Agreement.
2. COMMERCIAL AUTOMOBILE LIABILITY:
$1,000,000 per accident for bodily injury and property damage.
3. WORKERS’ COMPENSATION INSURANCE as required by the State of California
with statutory limits.
4. EMPLOYER’S LIABILITY:
(i) $1,000,000 each accident for bodily injury;
(ii) $1,000,000 disease each employee; and,
(iii) $1,000,000 disease policy limit.
DocuSign Envelope ID: 33B2FD30-E4FE-42FA-AAF1-E5F38E1C7C10
Page 9 of 11
5. PROFESSIONAL LIABILITY (Errors and Omissions):
(i) $1,000,000 per claim/occurrence; and,
(ii) $2,000,000 policy aggregate.
UMBRELLA OR EXCESS INSURANCE
In the event FAC purchases an Umbrella or Excess insurance policy(ies) to meet the “Minimum
Limits of Insurance,” this insurance policy(ies) shall “follow form” and afford no less coverage than
the primary insurance policy(ies). In addition, such Umbrella or Excess insurance policy(ies) shall
also apply on a primary and non-contributory basis for the benefit of the City, its officers, officials,
employees, agents and volunteers.
DEDUCTIBLES AND SELF-INSURED RETENTIONS
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.
OTHER INSURANCE PROVISIONS/ENDORSEMENTS
The General Liability and Automobile Liability insurance policies are to contain, or be endorsed to
contain, the following provisions:
1. The City, its officers, officials, employees, agents and volunteers are to be
covered as additional insureds. FAC shall establish additional insured status for the City
under the General Liability policy for all ongoing and completed operations by use of
endorsements providing additional insured status as broad as that contained in ISO Form
CG 20 10 11 85 or CG 20 10 04 13.
2. The coverage shall contain no special limitations on the scope of protection
afforded to City, its officers, officials, employees, agents and volunteers. Any available
insurance proceeds in excess of the specified minimum limits and coverage shall be
available to the Additional Insured.
3. FAC’S insurance coverage shall be primary insurance with respect to the City,
its officers, officials, employees, agents and volunteers. Any insurance or self -insurance
maintained by the City, its officers, officials, employees, agents and volunteers shall be
excess of FAC’S insurance and shall not contribute with it. FAC shall establish primary and
non-contributory status on the General Liability policy by use of ISO Form CG 20 01 04 13,
or by an executed endorsement that provides primary and non -contributory status as broad
as that contained in ISO Form CG 20 01 04 13.
4. The Workers’ Compensation insurance policy is to contain, or be endorsed to
contain, the following provision: FAC and its insurer shall waive any right of subrogation
against City, its officers, officials, employees, agents and volunteers.
5. 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 by certified mail, return receipt requested, has been
given to City. FAC is also responsible for providing written notice to the City under the same
terms and conditions. Upon issuance by the insurer, broker, or agent of a notice of
cancellation, non-renewal, or reduction in coverage or in limits, FAC shall furnish City with a
new certificate and applicable endorsements for such policy(ies). In the event any policy is
due to expire during the work to be performed for City, FAC shall provide a new certificate,
DocuSign Envelope ID: 33B2FD30-E4FE-42FA-AAF1-E5F38E1C7C10
Page 10 of
11
and applicable endorsements, evidencing renewal of such policy not less than fifteen (15)
calendar days prior to the expiration date of the expiring policy.
6. Should any of the required policies provide that the defense costs are paid
within the Limits of Liability, thereby reducing the available limits by an y defense costs, then
the requirement for the Limits of Liability of these polices will be twice the above stated limits.
7. 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 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, its principals, officers,
agents, employees, persons under the supervision of FAC, vendors, suppliers, invitees,
consultants, sub-consultants, subcontractors, or anyone employed directly or indirectly by
any of them.
CLAIMS-MADE POLICIES
If the Professional Liability (Errors and Omissions) insurance policy is written on a claims -made
form:
1. The retroactive date must be shown, and must be before the effective date of
the Agreement or the commencement of work by FAC.
2. Insurance must be maintained and evidence of insurance must be provided
for at least five (5) years after completion of the Agreement work or termination of the
Agreement, whichever occurs first, or, in the alternative, the policy shall be end orsed to
provide not less than a five (5) year discovery period.
3. If coverage is canceled or non-renewed, and not replaced with another claims-
made policy form with a retroactive date prior to the effective date of the Agreement or the
commencement of work by FAC, FAC must purchase “extended reporting” coverage for a
minimum of five (5) years completion of the Agreement work or termination of the
Agreement, whichever occurs first.
4. A copy of the claims reporting requirements must be submitted to City for
review.
5. These requirements shall survive expiration or termination of the Agreement.
VERIFICATION OF COVERAGE
FAC shall furnish City with all certificate(s) and applicable endorsements effecting coverage
required hereunder. All certificates and applicable endorsements are to be received and approved
by the City’s Risk Manager or 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.
SUBCONTRACTORS
If FAC subcontracts any or all of the services to be performed under this Agreement, FAC shall
require, at the discretion of the City Risk Manager or designee, subcontractor(s) to enter into a
separate side agreement with the City to provide required indemnification and insurance
protection. Any required side agreement(s) and associated insurance documents for the
subcontractor must be reviewed and preapproved by City Risk Manager or designee. If no side
DocuSign Envelope ID: 33B2FD30-E4FE-42FA-AAF1-E5F38E1C7C10
Page 11 of
11
agreement is required, FAC shall require and verify that subcontractors maintain insurance
meeting all the requirements stated herein and FAC shall ensure that City, its officers, officials,
employees, agents, and volunteers are additional insureds. The subcontractors' certificates and
endorsements shall be on file with FAC, and City, prior to commencement of any work by the
subcontractor.
DocuSign Envelope ID: 33B2FD30-E4FE-42FA-AAF1-E5F38E1C7C10