ADMINISTRATIVE SERVICES AGREEMENT FOR THE EXPANDED ACCESS TO
ARTS AND CULTURE GRANT PROGRAM
THIS AGREEMENT is made and entered into effect on August 10, 2023, by and between the City of Fresno, a California municipal corporation (City), and Fresno Arts Council, a non-profit corporation (Service Provider) to provide grant management and administration of the Measure P Expanded Access to Arts and Culture Grant Program.
RECITALS
WHEREAS, The Fresno Arts Council entered into a Memorandum of Understanding with the City of Fresno on December 20, 1989 , wherein the Fresno Arts Council’s role in partnering, seeking funding, conducting research, preparing plans, holding public meetings and advising on matters relating to cultural arts policy, planning and budgeting issues are outlined; and
WHEREAS, in 2018 a majority of Fresno voters approved Measure P – the Fresno Clean and Safe Neighborhood Parks Transaction and Use Tax (Measure P), which was thereafter codified in Chapter 7, Article 15 of the Fresno Municipal Code (FMC); and WHEREAS, Measure P imposes a retail and transaction tax for the purpose of providing clean and safe parks; new parks and recreation facilities; youth and senior recreation and after-school facilities and job training; improved walking and biking trails; the San Joaquin River Parkway; beautification of streets; and expanded access to arts and culture; and
WHEREAS, FMC Section 7 -1506(b)(4)(A) requires that 12% of the funds made available pursuant to Measure P be made available on an annual basis to invest in competitive grants for nonprofit organizations that support and expand access to arts and cultural programming; and
WHEREAS, FMC Section 7-1508(a) states the authority to expend funds, issue grants, or enter into contracts or memoranda of understanding relating to Measure P revenues is delegated to the City of Fresno; and
WHEREAS, grants funded pursuant to FMC Section 7 -1506(b)(4)(B) shall be implemented by the Parks, Recreation and Arts Commission (PRAC) in partnership with the Fresno Arts Council, or its successor local arts agency; and WHEREAS, The Fresno City Council passed a resolution on May 25, 2023, which directs the City of Fresno to contract with the Fresno Arts Council for administrative services relating to implementing the provisions of FMC Section 7-1506(b)(4)(A), subject to the provisions of Measure P and further Council direction in accordance therewith; and WHEREAS, this Agreement will be administered for the City by its PARCS Director (Administrator) or designee.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and of the covenants, conditions, and pr emises hereinafter contained to be kept and performed by the respective parties, it is mutually agreed as follows:
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1. Scope of Services. The Service Provider 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 a five-year period concluding on August 10, 2028 , subject to any earlier termination in accordance with this Agreement. The services of the Service Provider as described in Exhibit A are to commence upon a written notice to proceed provided to the Service Provider 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.
3. Notice to Proceed.
(a) The Parks, Recreation and Arts Commission (PRAC) shall work in partnership with the Service Provider and cultural stakeholders, to develop a Cultural Arts Plan for the City of Fresno that would identify needs in the arts and cultural community; prioritize outcomes and investments; and develop a vision and goals for the future of Fresno arts and cultural programs that are reflective of the cultural, demographic, and geographic diversity of Fresno. This process shall include a robust community engagement process, including multiple public meetings. (b) Following adoption of the Cultural Arts Plan by the F resno City Council, and the completion of the Risk Assessment by the Service Provider (Exhibit B) the Fresno Arts Council shall receive a written notice to proceed from the City Manager or designee. Upon receipt of the notice to proceed, the Fresno Arts Co uncil may begin work under this Agreement.
(c) The City Manager or designee shall, each fiscal year, provide a written notice to proceed to the Service Provider which includes the total funding available for Services and the total funding available for grants.
4. Measure P Compliance.
(a) The Scope of services outlined in this Agreement shall be implemented in compliance with the Fresno Clean and Safe Neighborhood Parks Transactions and Use Tax (Measure P) FMC Chapter 7, Article 15, attached herein as Exhibit C. The Service Provider shall provide quarterly updates to the PRAC on the status of the deliverables outlined in the scope of work (Exhibit A). Quarterly reports shall be submitted on October 1st, January 1st, April 1st, and July 1st. (b) Pursuant to FMC Section 7 -1510(b), no bonds or liens shall be secured by any revenues or interest generated from Measure P funding.
5. Compensation for Administration
(a) The Service Provider’s sole compensation for satisfactory performance of all services required or rendered pursuant to this Agreement shall be an annual total fee not to exceed 2% of funding accrued pursuant to Section 7-1506(b)(4)(A) and authorized under Section 7-1508(e)(3) of Measure P.
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(b) Total fee shall be paid on the basis of the rates set forth in the schedule of fees and expenses contained in Section II of Exhibit A. Such fee includes all expenses incurred by the Service Provider in performance of the services. (c) Funding received for the purposes of administering the Expanded Access to Arts and Culture grant program shall be held by the Service Provider in a separate account and the Service Provider must maintain a separate method of tracking all Measure P funding provided for administration costs. Funding shall not be comingled with revenue from other sources, including revenue made available for gran ts to non - profits described in Section 5 of this Agreement.
(d) In fulfilling the obligations contained wi thin this Agreement, the Service Provider shall not self -award grant funding to the Service Provider for administrative costs associated with administering the Expanded Access to Arts and Culture Grant program pursuant to Section 7-1506(b)(4). (e) The City of Fresno Finance Department shall notify the Service Provider annually, in writing, of the total accruals available for program implementation/administration authorized under Section 7 -1508(e)(3). The Finance Department shall remit funds to the Service Provider for program implementation annually by October 1st of each calendar year (see Section II of Exhibit A- Service Provider Total Compensation and Payment Terms).
(f) The parties may modify this Agreement to increase or decrease the scope of services (see Section I of Exhibit A, intended to be all encompassing such that Service Provider handles all aspects of any services and appurtenant requirements ) or provide for the retention of services not required by this Agreement, which modification shall not receive additional compensation for such services. Should additional services outside the scope of services be necessary, the Parties may modify this Agreement in writing. Any additional compensation, therefore, shall be from sources other than Measure P. Any change in the scope of services must be made by written amendment to the Agreement signed by an authorized representative for each party. The Service Provider shall not be entitled to any additional compensation if services are performed prior to a signed written amendment.
6. Expanded Access to Arts and Culture Grant Program Funding. (a) Pursuant to Section 7-1506(b)(4)(A) funding shall be provided to the Service Provider for the purposes of the Expanded Access to Arts and Culture Grant Program. Grant Program funding shall be held by the Service Provider in a separate account and the Service Provider must maintain a separate method of tracking all Measure P funding. Funding shall not be comingled with revenue from other sources, or with funding allocated for program administration under Section 4 of this Agreement. Any carryover funding shall be identified.
(b) All interest earned from this grant award shall be used by the Service Provider for arts and culture grants pursuant to Section 7-1506(b)(4)(A). (c) Annually the City of Fresno Finance Department shall notify the Service Provider, in writing, of the total accruals available for competitive grants pursuant to Section 7 -1506(b)(4)(A). The Finance Department shall remit funds to the Service Provider for competitive grants annually by October 1st.
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7. Audit Requirements.
(a) The Service provider shall maintain financial records in accordance with Generally Accepted Accounting Principles (GAAP) and will be subject to an annual independent audit for financial reporting and program compliance . The annual independent audit shall be funded and coordinated by the City of Fresno Department of Finance and conducted by an external auditor. The Service provider shall provide all requested financial records no later than September 30th for each preceding year. (b) The City of Fresno is required to prepare and publish an Annual Comprehensive Financial Report (ACFR) which includes an independent auditor’s report.
The results of audit findings associated with the funds managed under this Administrative Service Agreement by the Service Provider may have a material impact on the City of Fresno’s ACFR. If at any time the annual independent audit re sults in significant or material findings, this Agreement shall be subject to reopening, renegotiation and/or termination.
8. Termination, Remedies, and Force Majeure.
(a) This Agreement shall terminate without any liability of the City to the Service Provider upon the earlier of: (i) The Service Provider’s filing for protection under the federal bankruptcy laws, or any bankruptcy petition or petition for receiver commenced by a third party against the Service Provider; (ii) fourteen calendar days’ prior written notice with or without cause by the City to the Service Provider; (iii) the 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, the Service Provider shall (i) immediately stop all work hereunder; (ii) immediately cause any and all of its subcontractors to cease work; and (iii) return to the City any and all unearned payments and all properties and materials in the possession of the Service Provider that are owned by the City. Subject to the terms of this Agreement, the Service Provider shall be paid compensation for services sa tisfactorily performed prior to the effective date of termination. The Service Provider 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 the Service Provider to satisfactorily perform in accordance with the terms of this Agreement , the City may withhold an amount that would otherwise be payable as an offset to, but not in excess of, the City’s damages caused by such failure. In no event shall any payment by the City pursuant to this Agreement constitute a waiver by the City of any breach of this Agreement which may then exist on the part of the Service Provider, nor shall such payment impair or prejudice any remedy available to the City with respect to the breach. (d) Upon any breach of this Agreement by the Service Provider, the 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 the City improperly terminated this Agreement for default, such termination shall be deemed a termination for convenience.
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(e) The Service Provider shall provide the City with adequate written assurances of future performance, upon Administrator’s request, in the event the Service Provider fails to comply with any terms or conditions of this Agreement. (f) The Service Provider shall be liable for default unless nonperformance is caused by an occurrence beyond the reasonable control of the Service Provider and without its fault or negligence such as, acts of God or the public enemy, acts of the City in its contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, unusually severe weather, and delays of common carriers. The Service Provider 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 di spatch, and shall promptly give written notice to Administrator of the cessation of such occurrence.
9. Confidential Information and Ownership of Documents (a) Any reports, information, or other data prepared or assembled by the Service Provider pursuant to this Agreement shall not be made available to any individual or organization by the Service Provider without the prior written approval of the Administrator. During the term of this Agreement, and thereafter, the Service Provider shall not, without the prior written consent of the 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 the 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 Confid ential Information shall be and remain confidential and proprietary in the City. (b) Any and all writings and documents prepared or provided by the Service Provider pursuant to this Agreement for the purposes of administering the Expanded Access to Arts an d Culture Grant Program are the property of the City at the time of preparation and shall be turned over to the City upon expiration or termination of the Agreement. The Service Provider shall not permit the reproduction or use thereof by any other person except as otherwise expressly provided herein. (c) If the Service Provider should subcontract all or any portion of the services to be performed under this Agreement, the Service Provider shall cause each subcontractor to also comply with the requirements of this Section 9. (d) This Section 9 shall survive expiration o r termination of this Agreement.
10. Level of Skill. It is further mutually understood and agreed by and between the parties hereto that inasmuch as the Service Provider represents to the City that the Service Provider and its subcontractors, if any, are skilled in the profession and shall perform in accordance with the standards of said industry necessary to perform the services agreed to be done by it under this Agreement, the City relies upon the skill of the Service Provider and its subcontractors, if any, to do and perform such services in a skillful manner and the Service Provider agrees to thus perform the services and require the same of any subcontractors. Therefore, any acceptance of such services by the City shall DocuSign Envelope ID: 0E4A0696-A05E-4AFB-A842-4DE88E110A97 DocuSign Envelope ID: 1A19B576-6144-4CE1-AF96-3628E3B66DC1
not operate as a release of the Service Provider or any subcontractors from said industry and professional standards.
11. Indemnification. To the furthest extent allowed by law, the Service Provider shall indemnify, hold harmless and defend the 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) incurred by the City, the Service Provider 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. The Service Provider’s obligations under the preceding sentence shall apply regardless of whether the City or any of its officers, officials, employees, agents or 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 the City or any of its officers, officials, employees, agents or volunteers.
If the Service Provider should subcontract all or any portion of the work to be performed under this Agreement, the Service Provider shall require each subcontractor to indemnify, hold harmless and defend the 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.
12. Insurance.
(a) Throughout the life of this Agreement, the Service Provider 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 the City’s Risk Manager or designee at any time and in its sole discretion. The required policies of insurance as stated in Exhibit D shall maintain limits of liability of not less than those amounts stated therein. However, the insurance limits available to the 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, the Service Provider 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 the Service Provider shall be withheld until notice is received by the 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 the City. Any failure to maintain the required insurance shall be suf ficient cause for the City to terminate this Agreement. No action taken by the City pursuant to this section shall in any way relieve the Service Provider of its responsibilities under this Agreement. The phrase “fail to maintain any required insurance” shall include, without DocuSign Envelope ID: 0E4A0696-A05E-4AFB-A842-4DE88E110A97 DocuSign Envelope ID: 1A19B576-6144-4CE1-AF96-3628E3B66DC1
limitation, notification received by the 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 the Service Provider shall not be deemed to release or diminish the liability of the Service Provider, including, without limitation, liability under the indemnity provisions of this Agreement. The duty to indemnify the 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 the Service Provider. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of the Service Provider, its principals, officers, agents , employees, or persons under the supervision of the Service Provider , vendors, suppliers, invitees, consultants, s ub- consultants, subcontractors, or anyone employed directly or indirectly by any of them.
13. Conflict of Interest and Non-Solicitation.
(a) Prior to the City’s execution of this Agreement, the Service Provider shall complete a City of Fresno conflict of interest disclosure statement in the form as set forth in Exhibit E. During the term of this Agreement, the Service Provider shall have the obligation and duty to immediately notify the City in writing of any c hange to the information provided by the Service Provider in such statement. (b) As th e Expanded Access to Arts and Culture Grant Program administrator, the Service Provider shall not apply for grant funding. (c) The Service Provider shall not serve as an administrative agent on behalf of any grant applicant or any grantee awarded funding under the Expanded Access to Arts and Culture Grant Program.
(d) The Service Provider shall comply with, and require its grant review and scoring committee members or any subcontractor, 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 Po litical Practices Commission concerning disclosure and disqualification (2 California Code of Regulations Section 18700 et. seq.). At any time, upon written request of the City, the Service Provider shall provide a written opinion of its legal counsel and that of any subcontractor that, after a due diligent inquiry, the Service Provider and the respective subcontractor(s) are in full compliance with all laws and regulations. The Service Provider shall take, and require its subcontractors to take, reasonable steps to avoid any appearance of a conflict of interest. Upon discovery of any facts giving rise to the appearance of a conflict of interest, the Service Provider shall immediately notify the City of these facts in writing.
(e) In performing the work or services to be provided hereunder, the Service Provider shall not employ or retain the services of any person while such person either is employed by the City or is a member of any the 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.
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(f) The Service Provider 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. (g) The Service Provider 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 Manage r under this provision, the Service Provider shall remain responsible for complying with Section 9(a), above. (h) If the Service Provider should subcontract all or any portion of the work to be performed or services to be provided under this Agreement, the Service Provider shall include the provisions of this Section 9 in each subcontract and require its subcontractors to comply therewith.
(i) This Section 13 shall survive expiration or termination of this Agreement.
14. Public Right of Way.
(a) The Service Provider shall not recommend for award any grant applications within the City of Fresno right of way for award without prior written approval to proceed from the City of Fresno . The Service Provider shall provide a list of grant applications within the City of Fresno right of way that are recommended for award to the PARCS Department. The PARCS Department shall coordinate with the City Manager to facilitate preliminary review and written approval to proceed . The Service Provider shall incorporate 10 business days in the grant review and award schedule to account for this process.
(b) Any projects within the public right of way that are awarded grant funds are subject to all City of Fresno permitting and approval processes. Service Provider shall ensure costs associated with permitting and approval for projects within the public right of way are eligible for reimbursement in grant agreements.. (c) Any art or cultural installation or capital improvement installed or affixed to the City’s right of w ay shall become property of the City of Fresno. This does not apply to temporary installations or exhibits.
15. Recycling Program. In the event the Service Provider maintains an office or operates a facility(ies), or is required herein to maintain or oper ate same, within the incorporated limits of the City of Fresno, the Service Provider at its sole cost and expense shall:
(a) Immediately establish and maintain a viable and ongoing recycling program, approved by the City’s Solid Waste Management Division, for each office and facility. Literature describing the City recycling programs is available from the City’s Solid Waste Management Division and by calling the City of Fresno Recycling Hotline at (559) 621-1111.
(b) Immediately contact the 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.
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(c) Cooperate with and demonstrate to the satisfaction of the City’s Solid Waste Management Division the establishment of the recycling program in paragraph (i) above and the ongoing maintenance thereof.
16. General Terms.
(a) Except as otherwise provided by law, all notices expressly required of the 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 the Service Provider’s expenses pertaining to the Project shall be kept on a generally recognized accounting basis and shall be available to the City or its authorized representatives upon request during regular business hours throughout the life of this Agreement and for a period of three (3) years from project completion or, if longer, for any period required by law. In addition, all books, documents, papers, and records of the Service Provider 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 the City until such action is resolved, or until the end of said time period whichever shall later occur. If the Service Provider should subcontract all or any portion of the services to be performed under this Agreement, the Service Provider shall cause each subcontractor to also comply with the requirements of this paragraph. This Section 16(b) shall survive expiration or termination of this Agreement. (c) Prior to execution of this Agreement by the City, the Service Provider shall have provided evidence to the City that the Service Provider is licensed to perform the services called for by this Agreement (or that no license is required). If the Service Provider should subcontract all or any portion of the work or services to be performed under this Agreement, the Service Provider shall require each subcontractor to provide evidence to the City that subcontractor is licensed to perform the services called for by this Agreement (or that no license is required) before beginning work.
17. Nondiscrimination. To the extent required by controlling federal, state and local law, the Service Provider 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, the Service Provider agrees as follows:
(a) The Service Provider 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 ori entation, 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) The Service Provider 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 DocuSign Envelope ID: 0E4A0696-A05E-4AFB-A842-4DE88E110A97 DocuSign Envelope ID: 1A19B576-6144-4CE1-AF96-3628E3B66DC1
orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era. The Service Provider shall ensure that applicants are employed, and the employees are treated during employment, without regard to their race, religious creed, color, natio nal 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 the Service Provider’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, includ ing apprenticeship. The Service Provider agrees to post in conspicuous places, available to employees and applicants for employment, notices setting forth the provision of this nondiscrimination clause.
(c) The Service Provider will, in all solicitations or advertisements for employees placed by or on behalf of the Service Provider in pursuit hereof, state that all qualified applicants will receive consideration for employment without regard to race, religious creed, color, national origin, ancestry, physi cal disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era.
(d) The Service Provider will send to each labor union or representative of workers w ith which it has a collective bargaining agreement or other contract or understanding, a notice advising such labor union or workers' representatives of the Service Provider’s commitment under this section and shall post copies of the notice in conspicuous places available to employees and applicants for employment. (e) If the Service Provider should subcontract all or any portion of the services to be performed under this Agre ement, the Service Provider shall cause each subcontractor to also comply with the requirements of this Section 17.
18. Independent Contractor.
(a) In the furnishing of the services provided for herein, the Service Provider is acting solely as an independent contractor. Neither the Service Provider, nor any of its officers, agents , or employees shall be deemed an officer, agent, employee, joint venturer, partner, or associate of the City for any purpose. The City shall have no right to control or supervise or direct the manner or method by which the Service Provider shall perform its work and functions. However, the City shall retain the right to administer this Agreement so as to verify that the Service Provider is performing its obligations in accordance with the terms and conditions thereof.
(b) This Agreement does not evidence a partnership or joint venture between the Service Provider and the City. The Service Provider shall have no authority to bind the City absent the City’s express written consent. Except to the extent otherwise provided in this Agreement, the Service Provider shall bear its own costs and expenses in pursuit thereof.
(c) Because of its status as an independent contractor, the Service Provider and its officers, agents , and employees shall have absolutely no right to employment rights and benefits available to the City employees. The Service Provider 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, DocuSign Envelope ID: 0E4A0696-A05E-4AFB-A842-4DE88E110A97 DocuSign Envelope ID: 1A19B576-6144-4CE1-AF96-3628E3B66DC1
welfare and retirement benefits. In addition, together with its other obligations under this Agreement, The Service Provider shall be solely responsible, indemnify, defend and save the City harmless from all matters relating to employment and tax withholding for and payment of the Service Provider’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 the City employment benefits, entitlements, programs and/or funds offered employees of the 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, the Service Provider may be providing services to others unrelated to the City or to this Agreement.
19. 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.
20. Binding. Subject to Section 21, 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.
21. Assignment.
(a) This Agreement is personal to the Service Provider and there shall be no assignment by the Service Provider of its rights or obligations under this Agreement without the prior written approval of the City Manager or designee . Any attempted assignment by the Service Provider, its successors or assigns, shall be null and void unless approved in writing by the City Manager or designee. (b) the Service Provider hereby agrees not to assign the payment of any monies due the Service Provider from the City under the terms of this Agreement to any other individual(s), corporation(s) or entity(ies). the City retains the right to pay any and all monies due the Service Provider directly to the Service Provider.
22. Compliance With Law . In providing the services required under this Agreement, the Service Provider shall at all times comply with all applicable la ws of the United States, the State of California and the 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.
23. 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.
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Waiver of any one provision herein shall not be deemed to be a waiver of any other provision herein.
24. 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.
25. 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.
26. Severability. The provisions of this Agreement are severable. The invalidity, or unenforceability of any one provision in this Agreement shall not affect the other provisions.
27. 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 ambiguo us 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.
28. 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.
29. Exhibits. Each exhibit and attachment referenced in this Agreement is, by the reference, incorporated into and made a part of this Agreement.
30. 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.
31. Amendments. The City Manager or designee is authorized to modify the Scope of Work (Exhibit A- Section I), including modifications to the t imelines, set forth herein. Any changes shall be made only by means of a written amendment dually signed by the City Manager and Service Provider.
32. Cumulative Remedies. No remedy or electi on hereunder shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity.
33. 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.
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34. 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 oral. This Agreement may be modified only by written instrument duly authorized and executed by both the City and the Service Provider.
35. The City Manager or designee is hereby authorized and directed to execute and implement this Agreement.
[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,
a California municipal corporation
By:
GEORGEANNE A. WHITE
City Manager
APPROVED AS TO FORM:
ANDREW JANZ
City Attorney
By:
Angela M. Karst Date
Senior Deputy City Attorney
ATTEST:
TODD STERMER, CMC
City Clerk
By:
Deputy Date
Addresses:
CITY:
City of Fresno
Attention: Aaron A. Aguirre, Director
1515 E. Divisadero Street
Fresno, CA 93721
Phone: (559) 621-2900
FRESNO ARTS COUNCIL,
a nonprofit corporation
By:
Name:
Title:
(If corporation or LLC., Board Chair,
Pres. or Vice Pres.)
By:
Name:
Title:
(If corporation or LLC., CFO, Treasurer,
Secretary or Assistant Secretary)
SERVICE PROVIDER:
FRESNO ARTS COUNCIL
Attention: Lilia Gonzales-Chavez,
Executive Director
1245 Van Ness Ave.
Fresno, CA 93721
Phone: (559) 237-9734
Attachments:
1. Exhibit A – Scope of Services & Compensation
2. Exhibit B – Risk Assessment
3. Exhibit C – Measure P Ordinance
4. Exhibit D – Insurance Requirements
5. Exhibit E – Conflict of Interest Disclosure Form
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Executive Director
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Secretary
EXHIBIT A
SCOPE OF SERVICES & COMPENSATION
Administrative Service Agreement between the City of Fresno and the Fresno Arts Council
SECTION I
Scope of Services
Deliverable #1: Grant Guideline Development for the Measure P Expanded Access to Arts and Culture Grant Program.
1. The Service Provider, in partnership with the PRAC, will develop written Grant Guidelines to make grant awards consistent with the priorities , recommendations, and strategies identified in the City adopted Cultural Arts Plan and the requirements outlined in the Fresno Municipal Code Article 15 – Fresno Clean and Safe Neighborhood Parks Tax Ordinance (Measure P).
2. The Service Provider , in partnership with the PRAC , shall seek community engagement and incorporate community feedback into grant guidelines.
3. The Service Provider, in partnership with the PRAC, shall develop a list of acknowledgement requirements including, but not limited to, required use of the Measure P logo, signage and funding statements(s) on all programs and projects funded in whole or in part by Measure P.
4. Grant Guidelines shall include all information necessary to ensure a transparent process, including, but not limited to:
(a) Scoring criteria and project selection process for grant proposals. (b) Eligible scoring committee members.
(c) A written process for public disclosure of potential conflicts of interest.
(d) Priority funding categories.
(e) Expenditure or project delivery deadlines, if applicable. (f) Risk assessment – Optional (see Exhibit B)
5. Grant guidelines shall include a list of funding acknowledgement requirements including, but not limited to, required use of the Measure P logo, signage and funding statement(s) on all programs and projects funded in whole or in part by Measure P.
6. Grant guidelines shall include r eporting requirements and the m ethods to be used to evaluate the extent to which grants expanded access to arts or culture in the City of Fresno. At a mi nimum, data collected shall include information needed to demonstrate compliance with Section 7-1506(b)(4)(D) such as:
(a) Attendance data:
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(i) Number of youth participants served . Youth shall be defined as age seventeen (17) and younger.
(ii) Number of adult participants served. Adult shall be defined as ages eighteen (18) through sixty-one (61).
(iii) Number of senior participants served. Senior shall be defined as age sixty-two (62) and older.
(b) Participant zip code data to identify the number and percentage of Fresnans served.
(c) race, ethnicity, household income and gender identity. (d) For murals only: total square feet installed and location/address.
7. Grant Guidelines shall acknowledge site control requirements for public or private facilities not owned by the grantee, including any permit or approval requirements for projects or programs within the City of Fresno’s right of way per the terms outlined in Section 14 of this agreement.
8. Grant Guidelines shall list, describe and adhere to requirements for grant funding outlined within Section 7-1506(b)(4)(D) and Section 7-1506(b)(4)(E).
9. Grant Guidelines shall be reviewed by PRAC in partnership with the Service Provider, at a minimum, every five (5) years to ensure compliance with the grant program.
10. By majority vote, PRAC may review and amend the Grant Guidelines no more than once a year. Grant guidelines and any subsequent amendments must be adopted by the Fresno City Council (FMC Section 7 -1509(e)(3)) prior to proceeding with Deliverable #3.
Timeline: Development of Grant Guidelines will commence upon approval of this agreement by the Fresno City Council.
Deliverable #2: Grant Guideline Approval
1. Prior to releasing the notice of funding opportunity to non -profits, the PRAC along with the Service provider shall present draft guidelines before the PRAC.
In accordance with Section 7 -1509(e)3, the PRAC shall review and make recommendations for the City Council’s adoption of competitive grant program guidelines.
2. The Grant Guidelines prepared by the Service Provider and PRAC shall be presented to the Fresno City Council by the PARCS Department, for consideration and adoption.
Timeline:
Year one:
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September 25, 2023 * - The first draft of the grant guidelines will be presented to the PRAC.
October 5, 2023* - Final draft guidelines will be presented to the Fresno City Council for consideration and adoption.
*timeline is subject to change based on PRAC and/or Council actions.
Deliverable #3: Release Notice of Funding Opportunity (NOFO) Announcements and Grant Application(s) for Grant Solicitations
1. Grant solicitations shall be released according to the terms outlined in the Measure P expenditure plan Section 7 -1506(b)(4). At a minimum, grant solicitations shall occur at least once per year.
2. The PRAC in partnership with the Service Provider shall use multiple solicitations that allow for a diverse set of programs, with different program sizes and reach, including core operating and project-support grants.
3. The Service Provider shall provide, at minimum, a 60-day public NOFO for all grant solicitations.
4. The Service Provider, in partnership with the PRAC , shall ensure that g rant solicitations are provided in English, Hmong, Punjabi and Spanish and other languages as requested.
5. The Service Provider, in partnership with the PRAC, shall ensure that grant solicitations are provided in an accessible format, in accordance with the Americans with Disabilities Act (ADA) requirements.
Timeline:
NOFO shall be released within thirty calendar days of completion of deliverable #2.
NOFO shall, at a minimum, be posted for 60 calendar days.
Deliverable #4: Provide Technical Assistance to Grantees
1. The Service Provider shall provide technical assistance and support to all applicants at no-cost to the applicant to ensure equitable access to available funds.
Timeline:
Technical Assistance will be available for 60 calendar days from the release date of any NOFO/grant application.
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Deliverable #5: Collect, Review and Make Recommendations for Award of Grant Funds
1. Grant applications shall be submitted to the Service Provider.
2. The Service Provider shall convene a scoring committee which includes the PRAC Cultural Arts Subcommittee, to review, score and prepare recommendations for grant awards to PRAC.
3. Pursuant to FMC Section 7 -1506(b)(4)(B), PRAC shall ensure that the grant applications are reviewed in a transparent, competitive process.
4. The Service Provider shall ensure that all grantees recommended for award are verified nonprofit organizations with a 501(c)3 in good standing with state and federal entities prior to entering into a grant agreement. The Service Provider shall keep documents s ubstantiating this verification on file for three (3) years from project completion.
Timeline:
Grant application review will begin within 30 calendar days from the date the NOFO/ grant application period closes.
Grant application review will be completed within 60 to 90 calendar days from the date the NOFO/grant application period closes.
Deliverable #6: Acceptance of Recommended Grant Awards
1. In partnership with the PRAC Cultural Arts Subcommittee, the Service Provider shall present a list of recommended grantees, award amounts, project titles and a brief summary of the project location, scope, schedule and anticipated impact to PRAC for review and acceptance of the list of recommended grantees.
2. Following PRAC acceptance in deliverable 6.1, the Service Provider shall have the delegative authority to make awards under the Expanded Access to Arts and Culture Grant Program on behalf of the City.
3. The Service Provider shall maintain a list of all applicants including the amount of grant funding requested by each applicant and the scope of work . The list shall be furnished to the City upon request.
Timeline:
Service Provider to present grant recommendations to PRAC within 120 calendar days of the date the NOFO/grant application period closes.
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Deliverable #7: Grant Agreements
1. Service Provider to enter into grant agreements with all grantees that include a detailed scope of work , budget, schedule for project or program completion, expected project or program deliverables, and any information needed to ensure transparency including, but not limited to , progress reporting requirements and metrics to measure the community impacts of the grant as outlined in Deliverable #1. Grant agreements shall also include a list of funding acknowledgement requirements including, but not limited to , use of the Measure P logo, signage and funding statement (s) on all programs and projects funded in whole or in part by Measure P.
2. Fully executed copies of all grant agreements shall be retained by the Service Provider for a minimum of three (3) years from grant completion, and available to the City of Fresno upon request.
3. In pursuit to FMC Section 7 -1506(b)(4)(A), Service Provider to collect all documents required to ensure non-profits are in good standing, including tax ID information, signature authority and other documentation required in the grant guidelines provided.
4. The Service Provider shall submit any proposed grant project or program occurring within the City of Fresno right of way to the City Manager for written approval prior to executing a grant agreement with grantee. At least 10 business days must be allowed for review.
5. The Service Provider shall include any expenditure deadlines and/or carryover provisions within the grant agreement.
Timeline:
Grantee Agreements shall be fully executed within 30 -calendar days from completion of Deliverable #6 – Adoption by PRAC.
Deliverable #8: Project Delivery
1. The Service Provider shall manage grantee oversight and monitoring to ensure Expanded Access to Arts and Culture grants are delivered according to the scope of work, schedule, budget and expected deliverables stated in the grant agreement and available to the City of Fresno upon request.
2. The Service Provider shall provide limited-scope technical assistance to all grantees for the duration of each grant agreement.
3. Any grant funding that remains unspent following the conclusion or cancelation of grants awarded by the Service Provider shall be re-appropriated for the Expanded Access to Arts and Culture Grant Program. Unspent grant funding shall not be appropriated to Grant Program administration, which is limited to a maximum of 2% of annual accruals under the Measure P Ordinance.
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Timeline:
Ongoing, throughout term of agreement
Deliverable #9: Payment Processing and Fiscal Oversight
1. The Service Provider shall manage all grant payment processes and record management according to Generally Accepted Accounting Principles (GAAP).
2. The Service Provider will ensure all awardees are compliant and are verified 501(c)(3) organizations in good stand ing with State and Federal Entities prior to all grant funding disbursements.
3. Service Provider to maintain and make available to the City of Fresno upon request fiscal documentation including general ledgers, invoices, encumbrances, receipts, progress reporting and other records and population requests as necessary for fiscal oversight.
4. Service Provider shall make available a general ledger listing of annual activity; including, but not limited to transaction date, dollar amount, a brief description of each expenditure, and vendor name.
Timeline:
Annually by September 30th for the preceding fiscal year.
Deliverable #10: Reporting and Accountability
1. Service Provider to provide a minimum of quarterly progress updates to PRAC on the status Exhibit A deliverables #1 through #8 in accordance with section 4 of the agreement.
Timeline:
Quarterly updates will be presented to the PRAC according to the following schedule:
October Report – July through September
January Report – October through December
April Report – January through March
August report – April through June
2. Service Provider shall provide annual reporting to the City of Fresno PARCS Department and PRAC which includes, at a minimum:
(a) A written report on the progress made toward achieving each of the goals and priorities listed in the Cultural Arts Plan.
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(b) A written report demonstrating that grants funded pursuant to Section 7-1506 (4) (B) prioritized organizations and programs that support and expand diverse public or youth engagement or equity, consistent with Section 7-1506(4)(E) requirements.
(c) Data demonstrating that funding for operating support that was distributed support ed organizational stability for arts and cultural organizations that reflect the cultural, geographic and demographic diversity of the City of Fresno; and reflect the proportion of each grantee’s overall operations that serves residents within, or visitors to, the City of Fresno Sphere of Influence. (Section 7-1506(4)(D) Data shall include:
(a) Attendance data by grantee:
(i) Total number of youth participants served. Youth shall be defined as age seventeen (17) and younger.
(ii) Total number of adult participants served. Adult shall be defined as ages eighteen (18) through sixty-one (61).
(iii) Total number of senior participants served. Senior shall be defined as age sixty-two (62) and older.
(b) Participant zip code data to identify the number and percentage of Fresnans served.
(c) Summary of total Race, ethnicity, household income and gender identity.
(d) Photos and/or videos highlighting grant funded projects, events, programs, etc.
(e) For murals only: total square feet installed and
location/address.
(f) Other information, as requested by PRAC.
Timeline: Annually by September 30th for the preceding fiscal year.
Note: timelines listed within Exhibit A -Section I may be modified in accordance with Section 31 of this agreement.
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SECTION II
Service Provider Total Compensation and Payment Terms
1. In making the expenditures provided in Section 7-1506(4), the Service Provider shall be permitted to use no more than two percent (2%) of the funds allocated pursuant to Section 7-1506(4) and authorized under Section 7-1508(e)(3) on an annual basis for administrative costs associated with the delivery of programs and projects pursuant to each paragraph.
2. City to compensate the Service Provider according to the following schedule:
Agreement
Year
Measure P
Receipts
Compensation Payment Date
1 June 1, 2021
to
June 30, 2023
Total fee not to exceed 2% of funding
received pursuant to Section 7-
1506(b)(4)(A) and authorized under
Section 7-1508(e)(3) of Measure P
during the agreement year 1 accrual
period.
October 1, 2023
or within thirty
days of contract
execution if
executed after
October 1, 2023.
2 July 1, 2023
to
June 30, 2024
Total fee not to exceed 2% of funding
received pursuant to Section 7-
1506(b)(4)(A) and authorized under
Section 7-1508(e)(3) of Measure P
during the agreement year 2 accrual
period.
October 1, 2024
3 July 1, 2024
to
June 30, 2025
Total fee not to exceed 2% of funding
received pursuant to Section 7-
1506(b)(4)(A) and authorized under
Section 7-1508(e)(3) of Measure P
during the agreement year 3 accrual
period.
October 1, 2025
4 July 1, 2025
to
June 30, 2026
Total fee not to exceed 2% of funding
received pursuant to Section 7-
1506(b)(4)(A) and authorized under
Section 7-1508(e)(3) of Measure P
during the agreement year 4 accrual
period.
October 1, 2026
5 July 1, 2026
to
June 30, 2027
Total fee not to exceed 2% of funding
received pursuant to Section 7-
1506(b)(4)(A) and authorized under
Section 7-1508(e)(3) of Measure P
during the agreement year 5 accrual
period.
October 1, 2027
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EXHIBIT B – Risk Assessment
Completion of the risk assessment below is required prior to issuing the notice to proceed.
The Risk Assessment shall be completed and provided to the City of Fresno PARCS Department. Information contained within the Risk Assessment is collected for program and financial compliance purposes.
Service Provider Contact Information
Full Legal Organization/Business Name:
Address:
City, State, Zip:
Telephone number:
E-mail address:
Website:
How long has your organization been in business?
Number of employees:
EIN (Employee ID Number):
Organization fiscal year range:
Service Provider Type of Organization (select one):
Government Nonprofit corporation Other
corporation
Individual
Service Provider Personnel Contact Information
Contact for Subaward
Name:
Title:
Telephone Number:
E-mail Address:
Attachments: Please attach the following or check N/A if not applicable.
Document Attached N/A
a. IRS Determination Letter (granting
income tax exemption under IRC §
501(c)(3))
b. Form 990 or 990-EZ from the last
two (2) years, including Form 990-
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T and all supporting schedules and
attachments
c. List of all awards to Service
Provider from City of Fresno during
the last two (2) years
1. Has your agency operated with or managed grant funds (within the last 3 years)?
Yes
No
2. Has your agency’s annual financial statements been audited by an independent audit firm? If yes, provide a copy of the statement from the last fiscal year.
Yes
No
3. If the answers to Questions 2 or 3 is yes, were there any findings or questioned costs in the last two (2) fiscal years? If yes, please explain any findings or questioned costs.
Yes
No
Not Applicable
Explanation (if applicable):
4. Are all payments properly documented with evidence or receipt of goods or performance of services?
Yes
No
5. Has your agency had any significant changes in key personnel within the past 12 months? (e.g., Controller, Exec. Director, Program Manager, Accounting Manager, etc.) If yes, please explain.
Yes
No
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Explanation (if applicable):
6. Does your agency have policies that address the following? If yes, please provide a copy.
Ethics/Professional Conduct Yes No Pay Rates and Benefits Yes No Discrimination Yes No
Purchasing/Procurement Yes No Property and Equipment Yes No Segregation of Duties Yes No Record Retention Yes No
7. Does your agency certify that they are not presently debarred, suspended, proposed for debarment, declared ineligible or voluntarily excluded from participation in this transaction by any Federal or State department or agency?
Yes
No
By its authorized signatory below, your agency hereby certifies and attests to the accuracy of the above responses and all corresponding information has been transmitted to the City of Fresno PARCS Department.
Signature: ______________________________________________________
Printed Name: __________________________________________________
Title: __________________________________________________________
Phone Number: __________________________________________________
Date: ___________________________________________________________
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EXHIBIT C – Measure P Ordinance
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EXHIBIT D - INSURANCE REQUIREMENTS
Administrative Service Agreement between the City of Fresno (City) and the Fresno Arts Council (Service Provider)
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, agents 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. Professional Liability (Errors and Omissions) insurance appropriate to the Service Provider’s profession.
MINIMUM LIMITS OF INSURANCE
The Service Provider, or any party the Service Provider subcontracts with, shall maintain limits of liability of not less than those set forth below. However, insurance limits available to the 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:
1. $1,000,000 per occurrence for bodily injury and property damage;
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3. $2,000,000 aggregate for products and completed operations; and,
4. $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’ COMPENSATIO N 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. PROFESSIONAL LIABILITY (Errors and Omissions) appropriate to the Service Provider’s profession:
(i) $1,000,000 per claim/occurrence; and,
(ii) $2,000,000 policy aggregate.
UMBRELLA OR EXCESS INSURANCE
In the event the Service Provider 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
The Service Provider shall be responsible for payment of any deductibles contained in any insurance policy(ies) required herein and the Service Provider shall also be responsible for payment of any self -insured retentions. Any deductibles or self -insured retentions must be declared to on the Certificate of Insurance, and approved by, the City’s Risk Manager or his/her designee. At the option of the C ity’s Risk Manager or his/her designee, either:
1. The insurer sha ll reduce or eliminate such deductibles or self -insured retentions as respects the City, its officers, officials, employees, agents and volunteers; or
2. The Service Provider shall provide a financial guarantee, satisfactory to the City’s Risk Manager or his/her designee, guaranteeing payment of losses and related DocuSign Envelope ID: 0E4A0696-A05E-4AFB-A842-4DE88E110A97 DocuSign Envelope ID: 1A19B576-6144-4CE1-AF96-3628E3B66DC1
investigations, claim administration and defense expenses. At no time shall the 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. The City, its officers, officials, employees, agents and volunteers are to be covered as additional insureds. The Service Provider shall establish additional insured status for the City and for all ongoing and completed operations by use of ISO Form CG 20 10 11 85 or both CG 20 10 04 13 and CG 20 37 04 13 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 scop e of protection afforded to the 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 relatin g to this Agreement, the Service Provider’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 the Service Provider’s insurance and shall not contribute with it. The Service Provider 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 20 01 04 13.
The Workers’ Compensation insurance policy is to contain, or be endorsed to contain, the following provision: The Service Provider and its insurer shall waive any right of subrogation against the City, its officers, officials, employees, agents and volunteers.
If the Professional (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 the Service Provider.
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 endorsed to provide not less than a five (5) year discovery period.
DocuSign Envelope ID: 0E4A0696-A05E-4AFB-A842-4DE88E110A97 DocuSign Envelope ID: 1A19B576-6144-4CE1-AF96-3628E3B66DC1
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 the Service Provider, the Service Provider 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 the City for review.
5. These requirements shall survive expiration or termination of the Agreement.
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 certifi ed mail, return receipt requested, has been given to the City. The Service Provider 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 cancellati on, non-renewal, or reduction in coverage or in limits, the Service Provider shall furnish the 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 the City, the Service Provider 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 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.
The fact that insurance is obtained by the Service Provider shall not be deemed to release or diminish the liability of the Service Provider, 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 the Service Provider. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of the Service Provider , its principals, officers, agents, emplo yees, persons under the supervision of the Service Provider , vendors, suppliers, invitees, consultants, sub-consultants, subcontractors, or anyone employed directly or indirectly by any of them.
VERIFICATION OF COVERAGE
The Service Provider shall furnish the 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 his/her designee prior to the City’s execution of the Agreement and before work commences. All non-ISO endorsements amending policy coverage shall be executed by a licensed and DocuSign Envelope ID: 0E4A0696-A05E-4AFB-A842-4DE88E110A97 DocuSign Envelope ID: 1A19B576-6144-4CE1-AF96-3628E3B66DC1
authorized agent or broker. Upon request of the City, the Service Provider shall immediately furnish the 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 the Service Provider should subcontract all or any portion of the services to be performed under this Agreement, the Service Provider shall require and verify that all subcontractors maintain insurance meeting all the requirements stated. The subcontractors' certificates and endorsements shall be on file with the Service Provider prior to the commencement of any work by the subcontractor.
DocuSign Envelope ID: 0E4A0696-A05E-4AFB-A842-4DE88E110A97 DocuSign Envelope ID: 1A19B576-6144-4CE1-AF96-3628E3B66DC1
EXHIBIT E
DISCLOSURE OF CONFLICT OF INTEREST
ADMINISTRATIVE SERVICES AGREEMENT FOR THE CITY OF FRESNO
EXPANDED ACCESS TO ARTS AND CULTURE GRANT PROGRAM
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
Date
Name
Company
Address
☐ Additional page(s) attached.
City, State, Zip
DocuSign Envelope ID: 0E4A0696-A05E-4AFB-A842-4DE88E110A97 DocuSign Envelope ID: 1A19B576-6144-4CE1-AF96-3628E3B66DC1 Fresno CA 93721
X
X
1245 Van Ness Ave
8/2/2023
X
X
Fresno Arts Council
X
X
Lilia Gonzales Chavez