HomeMy WebLinkAboutSculpture Conservation of Studio in Constantinople Inc l 1 ,
VENDOR AGREEMENT
CITY OF FRESNO, CALIFORNIA
THIS AGREEMENT is made and entered into effective rcrt,Grt� �Sf
, by and between the CITY OF FRESNO, a California municipal corporation
(CITY), and SCULPTURE CONSERVATION OF STUDIO OF CONSTANTINOPLE,
INC., a California corporation (VENDOR).
RECITALS
WHEREAS, CITY desires to obtain artwork maintenance services for Annual
Artwork Maintenance Services (Project); and
WHEREAS, VENDOR is engaged in the business of furnishing artwork
maintenance services and hereby represents that it desires to and is professionally and
legally capable of performing the services called for by this Agreement; and
WHEREAS, VENDOR acknowledges that this Agreement is subject to the
requirements of Fresno Municipal Code Section 4-107; and
WHEREAS, this Agreement will be administered for CITY by its
Public Works Director (Administrator) or designee.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and of the covenants,
conditions, and premises hereinafter contained to be kept and performed by the
respective parties, it is mutually agreed as follows:
1. Scope of Services. VENDOR shall perform to the satisfaction of CITY the
services described in Exhibit A, including all work incidental to, or necessary to
perform, such services even though not specifically described in Exhibit A.
2. Term of Agreement and Time for Performance. This Agreement shall be
effective from the date first set forth above (Effective Date) and shall continue in full
force and effect for two years, subject to any earlier termination in accordance with this
Agreement. The CITY, in its discretion, may extend the Agreement for up to three
additional one-year terms. The Administrator shall have the authority to execute an
extension of this Agreement. The services of VENDOR as described in Exhibit A are
to commence upon the Effective Date and shall be completed in a sequence assuring
expeditious completion, but in any event, all such services shall be completed prior to
expiration of this Agreement and in accordance with any performance schedule set forth
in Exhibit A.
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3. Compensation.
(a) VENDOR's sole compensation for satisfactory performance of all
services required or rendered shall be in accordance with the services and fee schedule
detailed in (i), (ii), and (iii):
(i) VENDOR's compensation for Annual Artwork Maintenance
Services shall be a lump sum of $87,500 for the first year. Such fee
includes all expenses incurred by VENDOR in performance of the services
in accordance with Exhibit A.
(ii) VENDOR's compensation for Annual Artwork Maintenance
Services, following first year, shall be a lump sum of $62,000 with an
allowable increase of up to 10% per year as agreed to in writing by both
parties. Such fee includes all expenses incurred by VENDOR in
performance of the services in accordance with Exhibit A.
(iii) VENDOR's compensation for additional services including
but not limited to, artwork conservation, artwork repair, artwork relocation
or reinstallation, and consultation shall be a total fee of$15,000, paid on a
Time and Materials basis. Such fee includes all expenses incurred by
VENDOR in performance of the services in accordance with Exhibit A and
must be approved by the Director of the Public Works Department or
designee prior to the services being rendered.
(b) Detailed statements shall be rendered monthly for services
performed in the preceding month and will be payable in the normal course of CITY
business.
(c) The parties may modify this Agreement to increase or decrease the
scope of services or provide for the rendition of services not required by this Agreement,
which modification shall include an adjustment to VENDOR's compensation. Any
change in the scope of services must be made by written amendment to the Agreement
signed by an authorized representative for each party. VENDOR shall not be entitled to
any additional compensation if services are performed prior to a signed written
amendment.
4. Termination. Remedies and Force Majeure.
(a) This Agreement shall terminate without any liability of CITY to
VENDOR upon the earlier of: (i) VENDOR's filing for protection under the federal
bankruptcy laws, or any bankruptcy petition or petition for receiver commenced by a
third party against VENDOR; (ii) seven calendar days' prior written notice with or without
cause by CITY to VENDOR; (iii) CITY's non-appropriation of funds sufficient to meet its
obligations hereunder during any CITY fiscal year of this Agreement, or insufficient
funding for the Project; or (iv) expiration of this Agreement.
(b) Immediately upon any termination or expiration of this Agreement,
VENDOR shall (i) immediately stop all work hereunder; (ii) immediately cause any and
all of its subcontractors to cease work; and (iii) return to CITY any and all unearned
payments and all properties and materials in the possession of VENDOR that are
owned by CITY. Subject to the terms of this Agreement, VENDOR shall be paid
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compensation for services satisfactorily performed prior to the effective date of
termination. VENDOR shall not be paid for any work or services performed or costs
incurred which reasonably could have been avoided.
(c) In the event of termination due to failure of VENDOR to
satisfactorily perform in accordance with the terms of this Agreement, CITY may
withhold an amount that would otherwise be payable as an offset to, but not in excess
of, CITY's damages caused by such failure. In no event shall any payment by CITY
pursuant to this Agreement constitute a waiver by CITY of any breach of this Agreement
which may then exist on the part of VENDOR, nor shall such payment impair or
prejudice any remedy available to CITY with respect to the breach.
(d) Upon any breach of this Agreement by VENDOR, CITY may
(i) exercise any right, remedy (in contract, law or equity), or privilege which may be
available to it under applicable laws of the State of California or any other applicable
law; (ii) proceed by appropriate court action to enforce the terms of the Agreement;
and/or (iii) recover all direct, indirect, consequential, economic and incidental damages
for the breach of the Agreement. If it is determined that CITY improperly terminated this
Agreement for default, such termination shall be deemed a termination for convenience.
(e) VENDOR shall provide CITY with adequate written assurances of
future performance, upon Administrator's request, in the event VENDOR fails to comply
with any terms or conditions of this Agreement.
(f) VENDOR shall be liable for default unless nonperformance is
caused by an occurrence beyond the reasonable control of VENDOR and without its
fault or negligence such as, acts of God or the public enemy, acts of CITY in its
contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, unusually
severe weather, and delays of common carriers. VENDOR shall notify Administrator in
writing as soon as it is reasonably possible after the commencement of any excusable
delay, setting forth the full particulars in connection therewith, and shall remedy such
occurrence with all reasonable dispatch, and shall promptly give written notice to
Administrator of the cessation of such occurrence.
5. Confidential Information and Ownership of Documents.
(a) Any reports, information, or other data prepared or assembled by
VENDOR pursuant to this Agreement shall not be made available to any individual or
organization by VENDOR without the prior written approval of the Administrator. During
the term of this Agreement, and thereafter, VENDOR shall not, without the prior written
consent of CITY, disclose to anyone any Confidential Information. The term
Confidential Information for the purposes of this Agreement shall include all proprietary
and confidential information of CITY, including but not limited to business plans,
marketing plans, financial information, materials, compilations, documents, instruments,
models, source or object codes and other information disclosed or submitted, orally, in
writing, or by any other medium or media. All Confidential Information shall be and
remain confidential and proprietary in CITY.
(b) Any and all writings and documents prepared or provided by
VENDOR pursuant to this Agreement are the property of CITY at the time of preparation
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and shall be turned over to CITY upon expiration or termination of the Agreement.
VENDOR shall not permit the reproduction or use thereof by any other person except as
otherwise expressly provided herein.
(c) If VENDOR should subcontract all or any portion of the services to
be performed under this Agreement, VENDOR shall cause each subcontractor to also
comply with the requirements of this Section 5.
(d) This Section 5 shall survive expiration or termination of this
Agreement.
6. Indemnification. To the furthest extent allowed by law, VENDOR 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 and litigation
expenses) that arise out of, pertain to, or relate to the negligence, recklessness or willful
misconduct of VENDOR, its principals, officers, employees, agents, or volunteers in the
performance of this Agreement.
If VENDOR should subcontract all or any portion of the services to be performed
under this Agreement, VENDOR 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.
7. Insurance.
(a) Throughout the life of this Agreement, VENDOR shall pay for and
maintain in full force and effect all insurance as required in Exhibit B, which is
incorporated into and part of this Agreement, 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
his/her sole discretion. The required policies of insurance as stated in Exhibit B shall
maintain limits of liability of not less than those amounts stated therein. However, the
insurance limits 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,
VENDOR or any of its subcontractors/sub-VENDORs 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 VENDOR 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 VENDOR of its responsibilities under
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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 VENDOR shall not be
deemed to release or diminish the liability of VENDOR, 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 VENDOR. Approval or purchase of any insurance
contracts or policies shall in no way relieve from liability nor limit the liability of
VENDOR, its principals, officers, agents, employees, persons under the supervision of
VENDOR, VENDORs, suppliers, invitees, Contractors, sub-Vendors, subcontractors, or
anyone employed directly or indirectly by any of them.
(d) If VENDOR should subcontract all or any portion of the services to
be performed under this Agreement, VENDOR shall require each subcontractor/sub-
VENDOR to provide insurance protection, as an additional insured, to the CITY and
each of its officers, officials, employees, agents, and volunteers in accordance with the
terms of this section, except that any required certificates and applicable endorsements
shall be on file with VENDOR and CITY prior to the commencement of any services by
the subcontractor. VENDOR and any subcontractor/sub-Vendor shall establish
additional insured status for CITY, its officers, officials, employees, agents, and
volunteers by using Insurance Service Office (ISO) Form CG 20 10 11 85 or both CG
20 10 10 01 and CG 20 37 10 01 or by an executed manuscript company endorsement
providing additional insured status as broad as that contained in ISO Form CG
20 10 11 85.
8. Conflict of Interest and Non-Solicitation.
(a) Prior to CITY's execution of this Agreement, VENDOR shall
complete a CITY of Fresno conflict of interest disclosure statement in the form as set
forth in Exhibit C. During the term of this Agreement, VENDOR shall have the
obligation and duty to immediately notify CITY in writing of any change to the
information provided by VENDOR in such statement.
(b) VENDOR shall comply, and require its subcontractors to comply,
with all applicable (i) professional canons and requirements governing avoidance of
impermissible client conflicts; and (ii) federal, state, and local conflict of interest laws
and regulations including, without limitation, California Government Code Section 1090
et. seq., the California Political Reform Act (California Government Code Section 87100
et. seq.) and the regulations of the Fair Political Practices Commission concerning
disclosure and disqualification (2 California Code of Regulations Section 18700 et.
seq.). At any time, upon written request of CITY, VENDOR shall provide a written
opinion of its legal counsel and that of any subcontractor that, after a due diligent
inquiry, VENDOR and the respective subcontractor(s) are in full compliance with all
laws and regulations. VENDOR shall take, and require its subcontractors to take,
reasonable steps to avoid any appearance of a conflict of interest. Upon discovery of
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any facts giving rise to the appearance of a conflict of interest, VENDOR shall
immediately notify CITY of these facts in writing.
(c) In performing the work or services to be provided hereunder,
VENDOR shall not employ or retain the services of any person while such person either
is employed by CITY or is a member of any CITY council, commission, board,
committee, or similar CITY body. This requirement may be waived in writing by the
CITY Manager, if no actual or potential conflict is involved.
(d) VENDOR represents and warrants that it has not paid or agreed to
pay any compensation, contingent or otherwise, direct or indirect, to solicit or procure
this Agreement or any rights/benefits hereunder.
(e) Neither VENDOR, nor any of VENDOR's subcontractors performing
any services on this Project, shall bid for, assist anyone in the preparation of a bid for,
or perform any services pursuant to, any other contract in connection with this Project
unless fully disclosed to and approved by the CITY Manager, in advance and in writing.
VENDOR and any of its subcontractors shall have no interest, direct or indirect, in any
other contract with a third party in connection with this Project unless such interest is in
accordance with all applicable law and fully disclosed to and approved by the CITY
Manager, in advance and in writing. Notwithstanding any approval given by the CITY
Manager under this provision, VENDOR shall remain responsible for complying with
Section 9(b), above.
(f) If VENDOR should subcontract all or any portion of the work to be
performed or services to be provided under this Agreement, VENDOR shall include the
provisions of this Section 9 in each subcontract and require its subcontractors to comply
therewith.
(g) This Section 9 shall survive expiration or termination of this
Agreement.
9. Recycling Program. In the event VENDOR maintains an office or
operates a facility(ies), or is required herein to maintain or operate same, within the
incorporated limits of the CITY of Fresno, VENDOR at its sole cost and expense shall:
(i) Immediately establish and maintain a viable and ongoing recycling
program, approved by CITY's Solid Waste Management Division, for each
office and facility. Literature describing CITY recycling programs is
available from CITY's Solid Waste Management Division and by calling
CITY of Fresno Recycling Hotline at (559) 621-1111.
(ii) Immediately contact CITY's Solid Waste Management Division at
(559) 621-1452 and schedule a free waste audit, and cooperate with such
Division in their conduct of the audit for each office and facility.
(iii) Cooperate with and demonstrate to the satisfaction of CITY's Solid Waste
Management Division the establishment of the recycling program in
paragraph (i) above and the ongoing maintenance thereof.
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10. General Terms.
(a) Except as otherwise provided by law, all notices expressly required
of CITY within the body of this Agreement, and not otherwise specifically provided for,
shall be effective only if signed by the Administrator or designee.
(b) Records of VENDOR's expenses pertaining to the Project shall be
kept on a generally recognized accounting basis and shall be available to CITY or its
authorized representatives upon request during regular business hours throughout the
life of this Agreement and for a period of three years after final payment or, if longer, for
any period required by law. In addition, all books, documents, papers, and records of
VENDOR pertaining to the Project shall be available for the purpose of making audits,
examinations, excerpts, and transcriptions for the same period of time. If any litigation,
claim, negotiations, audit or other action is commenced before the expiration of said
time period, all records shall be retained and made available to CITY until such action is
resolved, or until the end of said time period whichever shall later occur. If VENDOR
should subcontract all or any portion of the services to be performed under this
Agreement, VENDOR shall cause each subcontractor to also comply with the
requirements of this paragraph. This Section 11(b) shall survive expiration or
termination of this Agreement.
(c) Prior to execution of this Agreement by CITY, VENDOR shall have
provided evidence to CITY that VENDOR is licensed to perform the services called for
by this Agreement (or that no license is required). If VENDOR should subcontract all or
any portion of the work or services to be performed under this Agreement, VENDOR
shall require each subcontractor to provide evidence to CITY that subcontractor is
licensed to perform the services called for by this Agreement (or that no license is
required) before beginning work.
11. Nondiscrimination. To the extent required by controlling federal, state and
local law, VENDOR shall not employ discriminatory practices in the provision of
services, employment of personnel, or in any other respect on the basis of race,
religious creed, color, national origin, ancestry, physical disability, mental disability,
medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a
disabled veteran or veteran of the Vietnam era. Subject to the foregoing and during the
performance of this Agreement, VENDOR agrees as follows:
(a) VENDOR will comply with all applicable laws and regulations
providing that no person shall, on the grounds of race, religious creed, color, national
origin, ancestry, physical disability, mental disability, medical condition, marital status,
sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the
Vietnam era be excluded from participation in, be denied the benefits of, or be subject to
discrimination under any program or activity made possible by or resulting from this
Agreement.
(b) VENDOR will not discriminate against any employee or applicant
for employment because of race, religious creed, color, national origin, ancestry,
physical disability, mental disability, medical condition, marital status, sex, age, sexual
orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era.
VENDOR shall ensure that applicants are employed, and the employees are treated
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during employment, without regard to their race, religious creed, color, national origin,
ancestry, physical disability, mental disability, medical condition, marital status, sex,
age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam
era. Such requirement shall apply to VENDOR's employment practices including, but
not be limited to, the following: employment, upgrading, demotion or transfer;
recruitment or recruitment advertising; layoff or termination; rates of pay or other forms
of compensation; and selection for training, including apprenticeship. VENDOR agrees
to post in conspicuous places, available to employees and applicants for employment,
notices setting forth the provision of this nondiscrimination clause.
(c) VENDOR will, in all solicitations or advertisements for employees
placed by or on behalf of VENDOR in pursuit hereof, state that all qualified applicants
will receive consideration for employment without regard to race, religious creed, color,
national origin, ancestry, physical disability, mental disability, medical condition, marital
status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of
the Vietnam era.
(d) VENDOR will send to each labor union or representative of workers
with which it has a collective bargaining agreement or other contract or understanding, a
notice advising such labor union or workers' representatives of VENDOR's commitment
under this section and shall post copies of the notice in conspicuous places available to
employees and applicants for employment.
(e) If VENDOR should subcontract all or any portion of the services to
be performed under this Agreement, VENDOR shall cause each subcontractor to also
comply with the requirements of this Section 12.
12. Independent Contractor.
(a) In the furnishing of the services provided for herein, VENDOR is
acting solely as an independent contractor. Neither VENDOR, nor any of its officers,
agents, or employees shall be deemed an officer, agent, employee, joint venturer,
partner, or associate of CITY for any purpose. CITY shall have no right to control or
supervise or direct the manner or method by which VENDOR shall perform its work and
functions. However, CITY shall retain the right to administer this Agreement so as to
verify that VENDOR is performing its obligations in accordance with the terms and
conditions thereof.
(b) This Agreement does not evidence a partnership or joint venture
between VENDOR and CITY. VENDOR shall have no authority to bind CITY absent
CITY's express written consent. Except to the extent otherwise provided in this
Agreement, VENDOR shall bear its own costs and expenses in pursuit thereof.
(c) Because of its status as an independent contractor, VENDOR and
its officers, agents, and employees shall have absolutely no right to employment rights
and benefits available to CITY employees. VENDOR shall be solely liable and
responsible for all payroll and tax withholding and for providing to, or on behalf of, its
employees all employee benefits including, without limitation, health, welfare and
retirement benefits. In addition, together with its other obligations under this
Agreement, VENDOR shall be solely responsible, indemnify, defend and save CITY
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harmless from all matters relating to employment and tax withholding for and payment
of VENDOR's employees, including, without limitation, (i) compliance with Social
Security and unemployment insurance withholding, payment of workers' compensation
benefits, and all other laws and regulations governing matters of employee withholding,
taxes and payment; and (ii) any claim of right or interest in CITY employment benefits,
entitlements, programs and/or funds offered employees of CITY whether arising by
reason of any common law, de facto, leased, or co-employee rights or other theory. It is
acknowledged that during the term of this Agreement, VENDOR may be providing
services to others unrelated to CITY or to this Agreement.
13. Notices. Any notice required or intended to be given to either party under
the terms of this Agreement shall be in writing and shall be deemed to be duly given if
delivered personally, transmitted by facsimile followed by telephone confirmation of
receipt, or sent by United States registered or certified mail, with postage prepaid, return
receipt requested, addressed to the party to which notice is to be given at the party's
address set forth on the signature page of this Agreement or at such other address as
the parties may from time to time designate by written notice. Notices served by United
States mail in the manner above described shall be deemed sufficiently served or given
at the time of the mailing thereof.
14. Binding. Subject to Section 16, below, once this Agreement is signed by
all parties, it shall be binding upon, and shall inure to the benefit of, all parties, and each
parties' respective heirs, successors, assigns, transferees, agents, servants, employees
and representatives.
15. Assignment.
(a) This Agreement is personal to VENDOR and there shall be no
assignment by VENDOR of its rights or obligations under this Agreement without the
prior written approval of the CITY Manager or designee. Any attempted assignment by
VENDOR, its successors or assigns, shall be null and void unless approved in writing
by the CITY Manager or designee.
(b) VENDOR hereby agrees not to assign the payment of any monies
due VENDOR from CITY under the terms of this Agreement to any other individual(s),
corporation(s) or entity(ies). CITY retains the right to pay any and all monies due
VENDOR directly to VENDOR.
16. Compliance with Law. In providing the services required under this
Agreement, VENDOR shall at all times comply with all applicable laws of the United
States, the State of California and CITY, and with all applicable regulations promulgated
by federal, state, regional, or local administrative and regulatory agencies, now in force
and as they may be enacted, issued, or amended during the term of this Agreement.
17. Waiver. The waiver by either party of a breach by the other of any
provision of this Agreement shall not constitute a continuing waiver or a waiver of any
subsequent breach of either the same or a different provision of this Agreement. No
provisions of this Agreement may be waived unless in writing and signed by all parties
to this Agreement. Waiver of any one provision herein shall not be deemed to be a
waiver of any other provision herein.
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18. Governing Law and Venue. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of California,
excluding, however, any conflict of laws rule which would apply the law of another
jurisdiction. Venue for purposes of the filing of any action regarding the enforcement or
interpretation of this Agreement and any rights and duties hereunder shall be Fresno
County, California.
19. Headings. The section headings in this Agreement are for convenience
and reference only and shall not be construed or held in any way to explain, modify or
add to the interpretation or meaning of the provisions of this Agreement.
20. SeverabilitV. The provisions of this Agreement are severable. The
invalidity, or unenforceability of any one provision in this Agreement shall not affect the
other provisions.
21. Interpretation. The parties acknowledge that this Agreement in its final
form is the result of the combined efforts of the parties and that, should any provision of
this Agreement be found to be ambiguous in any way, such ambiguity shall not be
resolved by construing this Agreement in favor of or against either party, but rather by
construing the terms in accordance with their generally accepted meaning.
22. Attorney's Fees. If either party is required to commence any proceeding
or legal action to enforce or interpret any term, covenant or condition of this Agreement,
the prevailing party in such proceeding or action shall be entitled to recover from the
other party its reasonable attorney's fees and legal expenses.
23. Exhibits. Each exhibit and attachment referenced in this Agreement is, by
the reference, incorporated into and made a part of this Agreement.
24. Precedence of Documents. In the event of any conflict between the body
of this Agreement and any exhibit or attachment hereto, the terms and conditions of the
body of this Agreement shall control and take precedence over the terms and conditions
expressed within the exhibit or attachment. Furthermore, any terms or conditions
contained within any exhibit or attachment hereto which purport to modify the allocation
of risk between the parties, provided for within the body of this Agreement, shall be null
and void.
25. Cumulative Remedies. No remedy or election hereunder shall be deemed
exclusive but shall, wherever possible, be cumulative with all other remedies at law or in
equity.
26. No Third Party Beneficiaries. The rights, interests, duties and obligations
defined within this Agreement are intended for the specific parties hereto as identified in
the preamble of this Agreement. Notwithstanding anything stated to the contrary in this
Agreement, it is not intended that any rights or interests in this Agreement benefit or
flow to the interest of any third parties.
27. Extent of Agreement. Each party acknowledges that they have read and
fully understand the contents of this Agreement. This Agreement represents the entire
and integrated agreement between the parties with respect to the subject matter hereof
and supersedes all prior negotiations, representations or agreements, either written or
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oral. This Agreement may be modified only by written instrument duly authorized and
executed by both CITY and VENDOR.
[Signatures follow on the next page.]
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IN WITNESS WHEREOF, the parties have executed this Agreement at Fresno,
California, the day and year first above written.
CITY OF FRESNO, SCULPTURE CONSERVATION
a California municipal corporation STUDIO OF CONSTANTINOPLE, INC.,
a Californi rporation
By:
Afte-1
Randall Morrison, PE, MCE, By:
Assistant Director /J, ��ip<4 Nia�
Department of Public Works Name: J`Y/�J�•fr�11
Title.
APPROVED AS FORM: (If corporation or LLA, Board Chair,
City A ey's ict es.)
By: 1 WIr By:
Lgrgndon M. Collet Date
Senior Deputy City Attorney Name: ®e-- Nk' S T r&w
ATTEST: Title:
YVONNE SPENCE, CRM MMC (If corporation or LLC., CFO, Treasurer,
City Clerk Secretary or Assistant Secretary)
By: `•� ,��%t�,�j Cf � Any Applicable Professional License:
Date Number:
Deputy M orr—o M4w"t Name:
Addresses:
Date of Issuance:
City: Vendor:
City of Fresno Sculpture Conservation Studio of
Attention: Randall Morrison, Constantinople, Inc.
Public Works Department, Assistant Attention: Andrea Morse,
Director Principal Conservator
2600 Fresno St. 1946 S. La Cienega Blvd.
Fresno, CA 93721 Los Angeles, CA 90034
Phone: (559) 621-8703 Phone: (310) 839-3500
FAX: (559) 457-1277 FAX: (310) 839-5044
Attachments:
1. Exhibit A - Scope of Services
2. Exhibit B - Insurance Requirements
3. Exhibit C - Conflict of Interest Disclosure Form
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EXHIBIT A
SCOPE OF SERVICES
Vendor Service Agreement between City of Fresno (City)
and Sculpture Conservation Studio of Constantinople, Inc. (Vendor)
Annual Artwork Maintenance Services
Annual Artwork Maintenance Services First Year
Artworks (32) on Fulton Street between Inyo and Tuolumne Streets were in good
condition at the reopening on October 21, 2017. However, due to calcium and other
minerals in the water and rain, dust, car, and other forms of pollution, the condition of
the artworks' appearance has started to degrade quickly. As such, the CITY and
VENDOR are establishing an Artworks Maintenance program for the first year to
perform preventive maintenance on the public art collection on Fulton Street. As part of
this agreement between the CITY and VENDOR, all labor costs based on prevailing
wages, materials, travel time, room, equipment rentals, and per diem are included in the
cost. The VENDOR shall provide regular conservation maintenance in accordance with
the following process:
1. Dust artworks with soft bristle brushes.
2. Wash with Orvus detergent, a pH balanced, biodegradable detergent, and
distilled water.
3. Rinse with distilled water.
4. Dry with cotton cloths.
5. Remove all bird guano and accretions using wooden sticks.
6. Remove or reduce all minerals using wooden sticks or other softening methods
to help remove the minerals.
7. Hot wax with a propane torch and hard paste wax.
8. Buff artwork.
VENDOR may alter the regular conservation maintenance process in order to better
service each individual piece of artwork and in the best interest of the CITY.
Seven days throughout the year, VENDOR will send a Conservator to assess and
conserve artworks.
Once a month, for the first 8 months, and then bi-monthly thereafter, VENDOR will send
a team of 2 trained conservation professionals, for a period of 4 days to the City of
Fresno. Conservation professionals will be responsible for regular conservation
maintenance to the following artworks:
• Ellipsoid VI
16 Obos
• Aquarius Ovoid
• Talos
• Abre Exhelle
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■ The Visit
Twice a year, VENDOR will send a team of 2 trained conservation professionals, for a
period of 4 days to the CITY. Conservation professionals will be responsible for regular
conservation maintenance to the following artworks:
Mosaic Benches
• Rite of the Crane
La Grande Laveuse
• Valley Landing
■ Clay Pipes (4 Sets)
■ All small and large plaques
Once every year, VENDOR will send a team of 2 trained conservation professionals, for
a period of 3 days to the CITY. Conservation professionals will be responsible for
regular conservation maintenance to the following artworks:
Mother and Child
Orion
■ Dancing Waters
® Yokuts Indian
• Trisem
■ Leaping Fires
■ Spreading Fires
• Smoldering Fires
Any extra time VENDOR's conservation professionals have on routine visits will be used
to dust and/or lightly clean sculptures in need, including those beyond what is
designated for maintenance.
Annual Artwork Maintenance Services, following First Year
The CITY and VENDOR are establishing an Artworks Maintenance program following
the first year Artworks Maintenance program to perform preventive maintenance on the
public art collection on Fulton Street. As part of this agreement between the CITY and
VENDOR, all labor costs based on prevailing wages, materials, travel time, room,
equipment rentals, and per diem are included in the cost. The VENDOR shall provide
regular conservation maintenance in accordance with the following process:
1. Dust artworks with soft bristle brushes.
2. Wash with Orvus detergent, a pH balanced, biodegradable detergent, and
distilled water.
3. Rinse with distilled water.
4. Dry with cotton cloths.
5. Remove all bird guano and accretions using wooden sticks.
6. Remove or reduce all minerals using wooden sticks or other softening methods
to help remove the minerals.
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7. Hot wax with a propane torch and hard paste wax.
8. Buff artwork.
VENDOR may alter the regular conservation maintenance process in order to better
service each individual piece of artwork and in the best interest of the CITY.
Seven days throughout the year, VENDOR will send a Conservator to assess and
conserve artworks.
Once every other month, VENDOR will send a team of 2 trained conservation
professionals, for a period of 4 days to the City of Fresno. Conservation professionals
will be responsible for regular conservation maintenance to the following artworks:
■ Ellipsoid VI
■ Obos
® Aquarius Ovoid
• Talos
• Abre Exhelle
• The Visit
Twice a year, VENDOR will send a team of 2 trained conservation professionals, for a
period of 4 days to the CITY. Conservation professionals will be responsible for regular
conservation maintenance to the following artworks:
■ Mosaic Benches
■ Rite of the Crane
• La Grande Laveuse
• Valley Landing
• Clay Pipes (4 Sets)
■ All small and large plaques
Once every year, VENDOR will send a team of 2 trained conservation professionals, for
a period of 3 days to the CITY. Conservation professionals will be responsible for
regular conservation maintenance to the following artworks:
• Mother and Child
■ Orion
• Dancing Waters
• Yokuts Indian
■ Trisem
■ Leaping Fires
• Spreading Fires
■ Smoldering Fires
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Any extra time VENDOR's conservation professionals have on routine visits will be used
to dust and/or lightly clean sculptures in need, including those beyond what is
designated for maintenance.
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Additional Services
VENDOR will provide additional services to CITY including but not limited to, artwork
conservation, artwork repair, artwork relocation or reinstallation, and consultation.
Additional services provided by VENDOR will be done on a Time and Material basis.
Additionally, all work done by VENDOR will conform to the strictest conservation
standards and guidelines outlined by the American Institute for Conservation of Historic
and Artistic (AIC) and with the United States Department of Interior's Standard for
Historic Buildings as applicable and must be approved by the Director of the Public
Works Department or designee prior to VENDOR starting said work.
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EXHIBIT B
INSURANCE REQUIREMENTS
Vendor Service Agreement between City of Fresno (City)
and Sculpture Conservation Studios of Constantinople, Inc. (VENDOR)
Annual Artwork Maintenance Services
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 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). If personal automobile
coverage is used, the CITY, its officers, officials, employees, agent, and
volunteers are to be listed as additional insureds.
3. Workers' Compensation insurance as required by the State of California
and Employer's Liability Insurance.
4. Property and Professional Liability (Errors and Omissions) insurance
appropriate to VENDOR's profession as an Art Conservation Professional
MINIMUM LIMITS OF INSURANCE
VENDOR, or any party the VENDOR 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 the 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,
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(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.
5. ART CONSERVATION INSURANCE (Errors and Omissions):
(i) $1,000,000 per claim/occurrence; and,
(ii) $1,000,000 policy aggregate.
UMBRELLA OR EXCESS INSURANCE
In the event VENDOR 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
VENDOR shall be responsible for payment of any deductibles contained in any
insurance policy(ies) required herein and VENDOR shall also be responsible for
payment of any self-insured retentions. Any deductibles or self-insured retentions must
be declared on the Certificate of Insurance, and approved by, the CITY's Risk Manager
or designee. At the option of the CITY's Risk Manager or designee, either:
(i) The insurer shall reduce or eliminate such deductibles or self-
insured retentions as respects CITY, its officers, officials,
employees, agents, and volunteers; or
(ii) VENDOR shall provide a financial guarantee, satisfactory to CITY's
Risk Manager or 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
The General Liability and Automobile Liability insurance Policies are to contain, or be
endorsed to contain, the following provisions:
1. CITY, its officers, officials, employees, agents, and volunteers are to be
covered as additional insureds. VENDOR shall establish additional
insured status for the CITY and for all ongoing and completed operations
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by use of ISO Form CG 20 10 11 85 or both CG 20 10 10 01 and
CG 20 37 10 01 or by an executed manuscript insurance company
endorsement providing additional insured status as broad as that
contained in ISO Form CG 20 10 11 85.
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. For any claims related to this Agreement, VENDOR'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 VENDOR's insurance and shall not
contribute with it. VENDOR shall establish primary and non-contributory
status by using ISO Form CG 20 01 04 13 or by an executed manuscript
insurance company endorsement that provides primary and
non-contributory status as broad as that contained in ISO Form CG
2001 0413.
The Workers' Compensation insurance-12olicy is to contain, or be endorsed to contain,
the following provision: VENDOR and its insurer shall waive any right of subrogation
against CITY, its officers, officials, employees, agents, and volunteers.
The Art Conservation insurance policy shall be endorsed to the name of the CITY OF
FRESNO as a Loss Payee under this coverage
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 VENDOR.
2. Insurance must be maintained and evidence of insurance must be
provided for at least five years after completion of the Agreement work or
termination of the Agreement, whichever occurs first, or, in the alternative,
the policy shall be endorsed to provide not less than a five-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 VENDOR, VENDOR
must purchase "extended reporting" coverage for a minimum of five years
after 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.
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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. VENDOR 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, VENDOR
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, VENDOR 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.
Should any of the required policies provide that the defense cost are paid within the
Limits of Liability, thereby reducing the available limits by any defense costs, then the
requirement for the Limits of Liability of these policies will be twice the above stated
limits.
The fact that insurance is obtained by VENDOR shall not be deemed to release or
diminish the liability of VENDOR, 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 VENDOR. Approval or purchase of any
insurance contracts or policies shall in no way relieve from liability nor limit the liability of
VENDOR, its principals, officers, agents, employees, persons under the supervision of
VENDOR, contractors, vendors, suppliers, invitees, consultants, sub-consultants,
subcontractors, or anyone employed directly or indirectly by any of them.
SUBCONTACTORS
If VENDOR subcontracts any or all of the services to be performed under this
Agreement, VENDOR 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 Agreement is
required, VENDOR will be solely responsible for ensuring that its subcontractors
maintain insurance coverage at levels no less than those required by applicable law and
is customary in the relevant industry.
VERIFICATION OF COVERAGE
VENDOR 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, VENDOR 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.
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EXHIBIT C
DISCLOSURE OF CONFLICT OF INTEREST
Annual Artwork Maintenance Services
YES* NO
1 Are you currently in litigation with the City of Fresno or any of its ❑ `'�
agents?
2 Do you represent any firm, organization, or person who is in ❑
litigation with the City of Fresno?
3 Do you currently represent or perform work for any clients who do ❑
business with the City of Fresno?
4 Are you or any of your principals, managers, or professionals,
owners or investors in a business which does business with the ❑
City of Fresno, or in a business which is in litigation with the City of
Fresno?
5 Are you or any of your principals, managers, or professionals,
related by blood or marriage to any City of Fresno employee who
has any significant role in the subject matter of this service?
6 Do you or any of your subcontractors have, or expect to have, any
interest, direct or indirect, in any other contract in connection with ❑
this Project?
* If the answer to any question is yes, please explain in full below.
Explanation:
Signature
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Date
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Name
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Coy
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Address �
❑Additional page(s) attached. GAS A�eZ °� ""j6& . 14K2�
(City, State Zip)