HomeMy WebLinkAboutFresno Arts Council, Inc - Agreements - 05.25.23AGREEMENT
BETWEEN CITY OF FRESNO AND
FRESNO ARTS COUNCIL, INC.
This AGREEMENT (Agreement) is made and entered into, effectiv2023,
by and between the CITY OF FRESNO, A California municipal corporation (City), and Fresno
Arts Council, Inc. (FAC), a California 501(c)3 public corporation.
RECITALS
WHEREAS, the California Department of Transportation (CALTRANS) is authorized
per the California Streets and Highways Code, Section 91.42 to expend Clean California
State Beautification Program of 2021 funds towards beautifying and cleaning up state
highways and eligible projects towards that goal; and
WHEREAS, Transportation Art includes graphic or sculptural artwork, either
freestanding or placed upon a required engineered transportation feature located on
CALTRANS' right-of-way (such as a noise barrier, retaining wall, bridge, bridge abutment,
bridge rail, or slope paving) that expresses unique attributes of a community's history,
resources, or character; and
WHEREAS, the City and CALTRANS have entered into a Transportation Art
Agreement for the Project, as executed o 2023; and
WHEREAS, the City has determined the need for certain Art related services to
complete the work defined in the Transportation Art Agreement, and FAC has agreed to
provide the same in accordance with the terms and conditions contained herein; and
WHEREAS, for the consideration hereinafter set forth, and other good and valuable
consideration, the receipt and sufficiency of which the parties by their signatures below
affirm, the parties do mutually agree as follows; and
WHEREAS, this Agreement will be administered for the City by its Public Works
Director (Director) or designee.
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 (the
"Services"), in accordance with the performance schedule established therein. FAC shall
include in the Call to Artists that the selected artist shall execute a waiver of moral rights
to the public art on a form acceptable to the City. In addition to the Services set forth in
Exhibit A, FAC shall fulfill all obligations imposed on the City within the CALTRANS
Transportation Art Agreement, attached hereto as Exhibit C and incorporated herein by
reference.
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
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claim to be, an officer, agent, representative, or employee of the City, or allow its personnel
to do so.
3. TERM. This Agreement shall be effective from the date first set forth above and
shall continue in full force and effect through the earlier of complete rendition of the services
hereunder or June 14, 2024, subject to any earlier termination in accordance with this
Agreement. The Services of FAC as described in Exhibit A are to commence upon the
City's issuance of a written "Notice to Proceed."
4. COMPENSATION. FAC shall perform the Services for the faced price/lump sum amount of
SIX -HUNDRED FORTY-TWO THOUSAND SIX -HUNDRED DOLLARS ($642,600).
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 SIX -HUNDRED FORTY-TWO THOUSAND SIX -HUNDRED DOLLARS
($642,600) for a Call to Artists, which includes, but is not limited to administration and
processing. The remaining funds for completed artwork on highway support columns should
not exceed an amount of TEN -THOUSAND DOLLARS ($10,000) upon completion of
services as described herein. The total value of the agreement shall not exceed SIX -
HUNDRED FORTY-TWO THOUSAND SIX -HUNDRED DOLLARS ($642,600).
6. PAYMENT. Contingent upon FAC's submittal of a proper invoice and supporting
documentation, City shall pay those undisputed amounts due and owing within the normal
course of City business.
7. INSURANCE.
(a) Throughout the life of this Agreement, 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 his/her designee at any time and
in his/her 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 available to CITY, State of California, and their 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
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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.
8. INDEMNIFICATION. To the furthest extent allowed by law, FAC shall indemnify,
hold harmless and defend CITY, State of California, and each of their 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 CITY, State of CA, FAC
or any other person, 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), arising or alleged to have arisen directly or indirectly out of performance of this
Agreement. FAC'S obligations under the preceding sentence shall apply regardless of
whether CITY, State of California, or any of their officers, officials, employees, agents and
volunteers are negligent, but shall not apply to any loss, liability, fines, penalties, forfeitures,
costs or damages caused solely by the gross negligence, or caused by the willful
misconduct, of CITY, State of California, or any of their officers, officials, employees, agents
and volunteers.
If FAC should subcontract all or any portion of the work to be performed under this
Agreement, FAC shall require each subcontractor to indemnify, hold harmless and defend
CITY, State of California, and each of their 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.
9. NOTICES. All required notices shall be given in writing, signed by the party giving
notice, and delivered to the following addresses.
City of Fresno
1626 E Street
Fresno, CA 93706
Mark. Stand riffCa7f resno. qov
Attention: Mark Standriff
Project Liaison/Program Admin
Fresno Arts Council, Inc.
1245 Van Ness
Fresno, CA 93721
Lilia ..fresnoartscouncil,arg
Attention: Lilia G. Chavez
Executive Director
ENTIRE AGREEMENT. This Contract, consisting of this document, Exhibit A and, Exhibit
B represents the entire and integrated agreement between City of Fresno 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.
IN WITNESS WHEREOF, the parties have executed this Agreement at Fresno,
California, on the day and year first above written.
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CITY OF FRESNO,
A California mun ipal cor oration
By:
Geor nne White
City Manager
BEAUTIFY FRESNO
11 nnii OF,f34
G
Mark Stand iff 1,11
Program ❑ire r
APPROVED AS TO FORM:
ANDREW JANZ
City Attorney
By: . c 71 /26Z3
Heather Thomas Date
Deputy City Attorney
ATTEST:
TODD STERMER, CMC
City Clerk
By: Z3
Deputy
Addresses:
City of Fresno
Attention: Mark Standriff, Project
Liaison/Program Admin
1626 E Street
Fresno, CA 93706
Phone: (559) 621-8626
E-mail: Mark.Standriff@fresno.gov
FRESNO ARTS COUNCIL,
a California 501(c)3 public corporation
By.
t -? -
Name L lia Gonzales Chavez
Title: Executive Director
(If corporation or LLC., Board
Chair, Pres. or Vice Pres.)
By:
Name: Olga Nunez
Title
_Board Treasurer
(If corporation or LLC., CFO,
Treasurer, Secretary or Assistant
Secretary)
Fresno Arts Council, Inc.
Attention: Lilia G. Chavez, Executive
Director
1245 Van Ness
Fresno, CA 93721
Phone: (559) 237-9734
E-mail: Lilia@fresnoartscouncil.org
Attachments:
1. Exhibit A - Scope of Services and Performance Schedule
2. Exhibit B - Insurance Requirements
3. Exhibit C — CALTRANS Transportation Art Agreement
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EXHIBIT A
SCOPE OF SERVICES AND PERFORMANCE SCHEDULE
Agreement between
City of Fresno (City) and Fresno Arts Council, Inc. (FAC)
FAC shall perform the following Services and shall complete the Services according to
the following schedule:
Subcontract selected Artists by November 1, 2023
1. Projects: Select and subcontract with artists to install art on highway support
columns at the following location:
a. Within Caltrans' right-of-way on twenty (20) columns along SR-180 at San Pablo
Park.
Each of the projects identified above will follow the tasks noted below.
Task 1: 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 2: 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 3: Art Selection Meetings
a) FAC shall coordinate up to four (4) 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 four (4) 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 Artist)
Meeting 2: Review of proposals received from artists; select up to three (3)
artists for more refined proposals.
• Meeting 3: Presentations from finalists; select artist(s)
• Meeting 4: Contingency meeting if necessary
Task 4: Subcontract
a) FAC shall subcontract with the selected artist/s as an agent of City to provide
artist payment for the project.
Page 5 of
Task 5: Oversight of Traffic Control
a) FAC shall contract with a Traffic Control Consultant to determine the Traffic Control
requirements for the installation.
b) FAC shall acquire and pay for the recommended Traffic Control measures.
c) FAC shall maintain Traffic Control throughout the time required for installation of the
artwork on highway support columns.
Deliverables:
• Art Selection Committee
■ Coordination and facilitation of up to four (4) Art Selection Committee meetings
• Scope of Work for Public Art Call to Artists
• Coordinate and facilitate a pre -proposal meeting
• Subcontract selected Artists
Due: Work to be completed by June 14, 2024.
Page 6 of 6
EXHIBIT B
INSURANCE REQUIREMENTS
Agreement between
City of Fresno (City) and Fresno Arts Council, Inc. (FAC)
MINIMUM SCOPE OF INSURANCE
Coverage shall be at least as broad as:
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 ISO *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).
Workers' Compensation insurance as required by the State of California and
Employer's Liability Insurance.
MINIMUM LIMITS OF INSURANCE
FAC shall procure and maintain for the duration of the contract, and for 5 years thereafter, insurance
with limits of liability not less than those set forth below. However, insurance limits available to CITY,
State of California, and their 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
(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 reguired by the State of California with
statutory limits and EMPLOYER'S LIABILITY with limits of liability not less than:
(i) $1,000,000 each accident for bodily injury;
(ii) $1,000,000 disease each employee; and,
(iii) $1,000,000 disease policy limit.
4. UMBRELLA OR EXCESS INSURANCE
(i) $5,000,000 per occurrence/aggregate
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. Any
self -insured retentions must be declared on the Certificate of Insurance, and approved by, the CITY'S
Risk Manager or his/her designee. At the option of the CITY'S Risk Manager or his/her designee,
either:
(�) The insurer shall reduce or eliminate such self -insured retentions as respects CITY,
State of California, and their officers, officials, employees, agents and volunteers; or
(ii) FAC shall provide a financial guarantee, satisfactory to CITY'S Risk Manager or
his/her designee, guaranteeing payment of losses and related investigations, claim
administration and defense expenses. At no time shall CITY be responsible for the
payment of any deductibles or self -insured retentions.
OTHER INSURANCE PROVISIONS/ENDORSEMENTS
(i) 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. 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, and applicable endorsements,
evidencing renewal of such policy not less than fifteen (15) calendar days prior to the
expiration date of the expiring policy.
(ii) The Commercial General and Automobile Liability insurance policies shall be written
on an occurrence form.
(iii) The Commercial General, Automobile, and Excess Liability insurance 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.
(iv) The Commercial General, Automobile, and Excess Liability insurance shall contain,
or be endorsed to contain, that the FACS' insurance shall be primary to and require
no contribution from the City and State of CA. These coverages shall contain no
special limitations on the scope of protection afforded to CITY, State of California, and
their officers, officials, employees, agents and volunteers. If FAC maintains higher
limits of liability than the minimums shown above, City and State of CA requires and
shall be entitled to coverage for the higher limits of liability maintained by FAC.
(v) Should any of these policies provide that the defense costs are paid within the Limits
of Liability, thereby reducing the available limits by defense costs, then the
requirement for the Limits of Liability of these polices will be twice the above stated
limits.
(vi) The Workers' Compensation insurance policy shall contain, or be endorsed to contain,
a waiver of subrogation as to CITY, State of CA, and their officers, officials, agents,
employees and volunteers.
(vii) The Commercial General and Automobile Liability insurance policies shall contain, or
be endorsed to contain, a waiver of subrogation as to CITY, State of CA, and their
officers, officials, agents, employees and volunteers.
PROVIDING OF DOCUMENTS - FAC shall furnish CITY with all certificate(s) and applicable
endorsements affecting 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
subcontractors working under the direction of FAC shall also be required to provide all
documents noted herein.
SUBCONTRACTORS - If FAC subcontracts any or all of the services to be performed under
this Agreement, FAC will be solely responsible for ensuring that its subcontractors maintain
insurance coverage as required herein.
06-FRE-180-57.61
EA: 06-1 E740
Project lD:0622000094
Agreement No. 06 — 1788
TRANSPORTATION ART AGREEMENT
Clean California Beautification Fund Contribution
JUAe- 2-7, 2 o Z-
This AGREEMENT, effective - is between the State of
California, acting through its Department of Transportation, referred to as CALTRANS, and:
City of Fresno, a body politic and municipal corporation or chartered city of the State of
California, referred to hereinafter as CITY.
RECITALS
i. PARTIES are authorized to enter into a cooperative agreement for improvements to the
State Highway System per the California Streets and Highways Code, Section 114.
2. CALTRANS is authorized per the California Streets and Highways Code, Section 91.42
to expend Clean California State Beautification Program of 2021 funds (FUNDS)
towards beautifying and cleaning up state highways and eligible projects towards that
goal.
3. Transportation Art includes graphic or sculptural artwork, either freestanding or placed
upon a required engineered transportation feature located on CALTRANS' right-of-way
(such as a noise barrier, retaining wall, bridge, bridge abutment, bridge rail, or slope
paving) that expresses unique attributes of a community's history, resources, or character,
4. CALTRANS intends to provide funding to CITY, and CITY agrees to procure artist(s),
administer artist contracts, provide and install the Transportation Art Mural Paintings on
twenty (20) Columns, at San Pablo Park under SR 180 at Belmont Ave. and San Pablo,
hereinafter referred to as PROJECT.
5. The term AGREEMENT, as used herein, includes any attachments, exhibits, and
amendments.
6. CITY shall obtain an encroachment permit from CALTRANS prior to the
commencement of any PROJECT work within CALTRANS' right-of-way.
7. CITY will follow the CALTRANS encroachment permit requirements for any and all
PROJECT work within CALTRANS' right-of-way, including by not limited to,
installation of artwork.
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Agreement No. 06-1788
CALTRANS will pay CITY an amount not to exceed $675,000 from FUNDS required
for PROJECT.
9. CALTRANS and CITY hereby set forth the terms, covenants, and conditions for
CALTRANS' contribution toward PROJECT.
SCOPE
10. CITY is responsible for completing all work for PROJECT.
11. CITY shall adhere to the CALTRANS' Transportation Art requirements as set forth in
CALTRANS' Project Development Procedures Manual (PDPM), Chapter 29, Section 9,
Transportation Art and CALTRANS' Transportation Art website at
hit s:lldot.ca. avl ra rantsldesr n/la landsca e-architectztre-rind-eommitnity-
livabilit lZa -liv-'-trans ortatian-art. This includes, but is not limited to, submittal of a
Transportation Art Proposal (TAP) to CALTRANS, execution of an Assignment and
Transfer of Copyright and Waiver of Moral Rights in Artwork Agreement (Caltrans
Copyright Assignment, CCA), and Project Specific Maintenance Agreement (PSMA).
12. CITY agrees that before commencing any PROJECT work on CALTRANS right-of-way,
LOCAL AGENCY and CALTRANS will enter into a PSMA for maintenance of the
PROJECT. PARTIES agree that no encroachment permit(s) will be issued by
CALTRANS for PROJECT until the PSMA is fully executed.
INVOICE & PAYMENT
13. CITY will invoice, no more frequently than monthly, and CALTRANS will reimburse for
actual costs incurred and paid towards PROJECT.
14. CALTRANS will pay CITY within 45 (forty-five) calendar days of receipt of invoices.
15. CALTRANS and CITY agree that the total amount of FUNDS paid out to CITY will not
exceed $675,000.
16- After CALTRANS and CITY agree that all work for PROJECT is complete, CITY will
submit a final accounting for all costs. Based on the final accounting, CITY will refund
or invoice as necessary in order to satisfy the financial commitment of AGREEMENT.
GENERAL CONDITIONS
17. All portions of this AGREEMENT, including the Recitals section, are enforceable.
18. All obligations of CALTRANS under the terms of AGREEMENT are subject to the
appropriation of resources by the Legislature and the State Budget Act authority.
Page 2 of 7
Agreement No. 06-1788
19. If CITY fails to complete the PROJECT for any reason, CITY shall, at CITY's expense,
return CALTRANS right-of-way to its original condition or to a safe and operable
condition acceptable to CALTRANS. if CITY fails to do so, CALTRANS reserves the
right to finish the work or place the PROJECT in a safe and operable condition.
CALTRANS will bill CITY for all expenses incurred and CITY agrees to pay said bill
within forty-five (45) days of receipt.
20. HM-1 is hazardous material (including, but not limited to, hazardous waste) that may
require removal and disposal pursuant to federal or state law, whether it is disturbed by
the PROJECT or not.
HM-2 is hazardous material (including, but not limited to, hazardous waste) that may
require removal and disposal pursuant to federal or state law only if disturbed by the
PROJECT.
The management activities related to HM-1 and HM-2, including and without limitation,
any necessary manifest requirements and disposal facility designations are referred to
herein as HM-I MANAGEMENT and HM-2 MANAGEMENT respectively.
21. If HM-I or HM-2 is found during PROJECT work, CITY will immediately notify
CALTRANS.
22. CALTRANS, independent of PROJECT, is responsible for any HM-I found within the
existing CALTRANS right-of-way. CALTRANS will undertake, or cause to be
undertaken, HM-1 MANAGEMENT with minimum impact to PROJECT schedule.
CALTRANS, independent of PROJECT will pay, or cause to be paid, the cost of HM-I
MANAGEMENT related to HM-I found within the existing CALTRANS right-of-way.
23. CITY, independent of PROJECT, is responsible for any HM-I found within PROJECT
limits and outside the existing CALTRANS right-of-way. CITY will undertake or cause
to be undertaken HM-I MANAGEMENT with minimum impact to PROJECT schedule.
CITY, independent of the PROJECT, will pay, or cause to be paid, the cost for 14M-1
MANAGEMENT for HM-1 found within PROJECT limits and outside of the existing
CALTRANS right-of-way.
24. CITY is responsible for HM-2 MANAGEMENT within the PROJECT limits.
25. HM-2 MANAGEMENT costs are PROJECT costs.
26. CALTRANS and CITY will enter into a PSMA before PROJECT work is performed
within CALTRANS right-of-way. CITY understands and acknowledges the terms of the
PSMA will include, but are not limited to, CITY shall be responsible for all regular and
emergency maintenance, repair, and replacement of the PROJECT at the LOCAL
AGENCY'S expense for as long as the artwork remains in place.
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Agreement, No. 06-1788
27. The PSMA will include indemnification provisions for anything done or omitted to be
done by CITY under or in connection with PROJECT.
28. Neither CITY nor any officer or employee thereof is responsible for any injury, damage,
or liability occurring by reason of anything done or omitted to be done by CALTRANS,
its contractors, sub -contractors, and/or its agents under or in connection with any work,
authority, or jurisdiction conferred upon CALTRANS under AGREEMENT. It is
understood and agreed that CALTRANS, to the extent permitted by law, will defend,
indemnify, and save harmless CITY and all of its officers and employees from all
claims, suits, or actions, including reasonable attorneys' fees, of every name, kind, and
description, brought forth under, but not limited to, tortious, contractual, inverse
condemnation, or other theories and assertions of liability occurring by reason of
anything done or omitted to be done by CALTRANS, its contractors, sub -contractors,
and/or its agents under AGREEMENT.
29. Neither CALTRANS nor any officer or employee thereof is responsible for any injury,
damage, or liability occurring by reason of anything done or omitted to be done by CITY,
its contractors, sub -contractors, and/or its agents under or in connection with any work,
authority, or jurisdiction conferred upon CITY under AGREEMENT. It is understood
and agreed that CITY , to the extent permitted by law, will defend, indemnify, and save
harmless CALTRANS and all of its officers and employees from all claims, suits, or
actions, including reasonable attorneys' fees, of every name, kind, and description
brought forth under, but not limited to, tortious, contractual, inverse condemnation,
claims based on (1) 17 U.S.C. §§ 10 1 -8 10 (the Copyright Act of 1976, as modified), (2)
17 U.S.C. § 106A(a) (the Visual Artists Rights Act of 1990, "VARA"), (3) 17 U.S.C. §
113, (4) California Civil Code § 987 (the California Art Preservation Act), California
Civil Code §989, or (5) any other rights arising under U.S. federal or state laws or under
the laws of any other country that conveys rights and protections of the same nature as
those conveyed under 17 U.S.C. § 106A(a) and California Civil Code §987, intellectual
property claims arising from or related to breach of contract, inverse condemnation,
conversion, and/or taking of property, or other theories and assertions of liability
occurring by reason of anything done or omitted to be done by CITY, its contractors,
sub -contractors, and/or its agents under AGREEMENT.
Page 4 of 7
Agreement No. 06-1788
30. If the work performed on PROJECT is done under contract and falls within the Labor
Code section 1720(a)(1) definition of "public works" in that it is construction, alteration,
demolition, installation, or repair; or maintenance work under Labor Code section 1771
CITY must conform to the provisions of Labor Code sections 1720 through 1815, and all
applicable provisions of California Code of Regulations found in Title 8, Chapter 8,
Subchapter 3, Articles 1-7. CITY agrees to include prevailing wage requirements in its
contracts for public work. Work performed by CITY's own forces is exempt from the
Labor Code's Prevailing Wage requirements.
CITY shall require its contractors to include prevailing wage requirements in all
subcontracts funded by AGREEMENT when the work to be performed by the
subcontractor is "public works" as defined in Labor Code Section 1720(a)(1) and Labor
Code Section 1771. Subcontracts shall include all prevailing wage requirements set forth
in CITY contracts.
31. AGREEMENT is intended to be CALTRANS' and CITY 's final expression and
supersedes all prior oral understandings pertaining to PROJECT, with the exception of
the required agreements to complete CALTRANS' Transportation Art process as
discussed herein. The required agreements include, but are not limited to, the TAP, CCA,
and PSMA.
32. AGREEMENT will terminate upon CALTRANS' acceptance of PROJECT. However,
all indemnification and maintenance articles of AGREEMENT will remain in effect until
terminated or modified in writing by mutual agreement.
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Agreement No. 06-1788
CONTACT INFORMATION
CALTRANS and CITY will notify each other in writing of any personnel or location changes.
Contact information changes do not require an amendment to AGREEMENT.
CALTRANS
Shavonne Conley, Project Manager
2015 E. Shields Ave.
Fresno, CA 93726
Mobile Phone: (559) 383-5609
shavonne.conley@dot.ca.gov
City of Fresno
Jason Miller, Supervising Professional Engineer
2600 Fresno Street
Fresno, CA 93721
Office Phone: (559) 621-8653
jason.miller@fresno.gov
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Agreement No. 06-1788
SIGNATURES
CALTRANS and CITY are empowered by the law to enter into this AGREEMENT and have
delegated to the undersigned the authority to execute this AGREEMENT on behalf of the
respective agencies and covenants to have followed all the necessary legal requirements to
validly execute this AGREEMENT.
CALTRANS and CITY acknowledge that executed copies of this AGREEMENT may be
exchanged by facsimile or email, and that such copies shall be deemed to be effective as
originals.
STATE OF CALIFORNIA
DEPARTMENT OF TRANSPORTATION
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Diana rnez
District Director
Verification of funds and authority:
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Claudia Juarez
District Resource Manager
Certified as to financial terms andpolicies'
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Darwin Salmos
HQ Accounting Supervisor
CITY OF FRESNO
Randall Morrison
Assistant Director of Public Works
Attest:
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Approved as to form andprocedure:
Heather Thomas
Attomey
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