HomeMy WebLinkAboutBanzai Japanese Bar & Kitchen a dba of Elev8te Hospitality LLC Reimbursable Grant Agreement (Small Business Facade Improvement Prog) 10-30-23 REIMBURSABLE GRANT AGREEMENT BETWEEN
THE CITY OF FRESNO AND ELEV8TE HOSPITALITY LLC DBA BANZAI JAPANESE
BAR & KITCHEN REGARDING FUNDING FOR THE SMALL BUSINESS FACADE
IMPROVEMENT PROGRAM
THIS REIMBURSABLE AGREEMENT (AGREEMENT) is made and entered into,
effective upon execution by both parties (the Effective Date), by and between the CITY
OF FRESNO (the CITY), and ELEV8TE HOSPITAILTY LLC DBA BANZAI JAPANESE &
BAR (the GRANTEE), to provide funding for small business facades improvements.
RECITALS
WHEREAS, the CITY desires to provide funds to support improvements of small
business facades in District 1 and District 5 in the City of Fresno (Project); and
WHEREAS, the GRANTEE represents that it desires to and is legally capable of
performing the services called for in this AGREEMENT; and
WHEREAS, the GRANTEE acknowledges that grant funds provided under this
AGREEMENT will be derived from the City of Fresno General Fund, and is subject to the
requirements of the Fresno Municipal Code; and
WHEREAS, the GRANTEE has applied to the CITY for grant assistance to
undertake activities which are consistent with the aforementioned goals. The CITY, in
reliance upon the representations contained in the GRANTEE's application attached
hereto and incorporated herein, has approved an award of grant funds to be expended
by the GRANTEE in accordance with the provisions of this AGREEMENT.
WHEREAS, this AGREEMENT will be administered for the CITY by its
Economic Development 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. The GRANTEE shall perform to the satisfaction of the
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. Grant Amount.
(a) The GRANTEE's sole compensation for satisfactory performance of
all services required or rendered pursuant to this AGREEMENT shall be
$9,319.75 , paid on the basis of the schedule contained in Exhibit A.
3. 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 through June 30, 2024, subject to any earlier termination in accordance with
this AGREEMENT. The services of the GRANTEE 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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4. Amendment to Increase or Decrease Scope of Services. 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 the GRANTEE'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. The GRANTEE shall not be entitled to any
additional compensation if services are performed prior to a signed written amendment.
5. Disbursement and Release of Fund. The GRANTEE agrees that all
payments made under this AGREEMENT represent reimbursements based on actual
costs and are made based upon the GRANTEE's satisfactory performance of the
GRANTEE's obligations under this AGREEMENT. The GRANTEE shall request
disbursements, and the CITY may make disbursements, which at all times shall be at The
CITY's discretion, in accordance with the following schedule and requirements:
(a) The GRANTEE may submit payment requests for costs incurred for
eligible expenditures on a form prescribed by the CITY, with copies of supporting
documents including invoices. The amount of payment request(s)shall not exceed
the costs incurred, or the total amount of the Grant Award. Reimbursement
requests may be submitted within twelve (12) months of the grant award date
unless a written time extension has been approved in writing by the CITY. The
GRANTEE may not seek reimbursement for any costs incurred prior to the
effective date of this Grant AGREEMENT.
(b) All payments made under this grant award are based on actual costs
and are made in consideration of the GRANTEE's promises and the GRANTEE's
satisfactory performance as set forth in this AGREEMENT.
(c) The documentation for the release of Grant Funds shall be in a form
and substance as required by the CITY.
(d) At all relevant times, the adequacy of the GRANTEE's request for
the release of Grant Funds shall be at the sole discretion of the CITY.
6. Termination, Remedies, and Force Ma'eure.
(a) This AGREEMENT shall terminate without any liability of the CITY to
the GRANTEE upon the earlier of : (i) the GRANTEE's filing for protection under
the federal bankruptcy laws, or any bankruptcy petition or petition for receiver
commenced by a third party against the GRANTEE; (ii) seven calendar days' prior
written notice with or without cause by the CITY to the GRANTEE; (iii) the CITY's
non-appropriation of funds sufficient to meet its obligations hereunder during any
the CITY's 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 GRANTEE 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 GRANTEE that are owned by the CITY. Subject to the terms of
this AGREEMENT, the GRANTEE shall be paid compensation for services
satisfactorily performed prior to the effective date of termination. The GRANTEE
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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 GRANTEE 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, 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
GRANTEE, nor shall such payment impair or prejudice any remedy available to
the CITY with respect to the breach.
(d) Upon the occurrence of any default, the Grantor may immediately
suspend GRANTEE's authority to receive any Grant funds at any time by notice to
Grantee.
(e) A default shall consist of: (i) any use of Grant funds for any purpose
other than as authorized by this AGREEMENT; or(ii) any breach of any covenant,
agreement, provision, representation or warranty of the GRANTEE, which was
made in this AGREEMENT.
(f) If a default occurs, the CITY shall provide written notice of default to,
and the GRANTEE shall have 60 days from the date the GRANTOR's notice was
postmarked to cure the default.
(g) In the event of termination for default:
(i) The GRANTEE's authority to request a disbursement shall
cease, the GRANTEE shall have no right, title or interest in or to any of the
Grant funds not disbursed, and the CITY may immediately demand
repayment of all or a portion of the Grant funds which have been disbursed;
and
(ii) The CITY's remedies described above may be exercised
contemporaneously with each other and with remedies pursuant to Section
9(h) below, and all of such rights shall survive the termination of this
AGREEMENT.
(h) If a default occurs, the CITY may at any time proceed to protect and
enforce all rights available to the CITY, by suit in equity, action at law, or by any
other appropriate proceedings, which rights and remedies shall survive the
termination of this AGREEMENT.
7. Records and Reports. The CITY shall monitor Grant activities and
compliance with the terms and conditions of this AGREEMENT. Within 30 days after
Project completion, the GRANTEE shall submit to the CITY a Final Report which shall
include an overview of all activities undertaken during the Project, a detail description of
the results of the Project and an accounting of all Project expenditures incurred (the "Final
Report").
(a) The CITY shall receive and review Grant reports, acceptance of
which shall not be unreasonably withheld. Notwithstanding the foregoing, the CITY
may, in its sole discretion, decline to accept any Grant report which does not
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demonstrate satisfactory progress towards completion of the Project or its
milestones.
(b) The GRANTEE shall maintain accurate financial records, in a form
acceptable to the CITY, of all transactions relating to the receipt and expenditure
of the Grant; 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.
(c) In addition, all books, documents, papers, and records of the
GRANTEE 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 GRANTEE should subcontract all or any portion of the
services to be performed under this AGREEMENT, the GRANTEE shall cause
each subcontractor to also comply with the requirements of this paragraph. This
Section 11(c) shall survive expiration or termination of this AGREEMENT.
8. Confidential Information and Ownership of Documents.
(a) Any reports, information, or other data prepared or assembled by the
GRANTEE pursuant to this AGREEMENT shall not be made available to any
individual or organization by the GRANTEE without the prior written approval of
the ADMINISTRATOR. During the term of this AGREEMENT, and thereafter, the
GRANTEE 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 Confidential Information
shall be and remain confidential and proprietary in the CITY.
(b) Any and all writings and documents prepared or provided by the
GRANTEE pursuant to this AGREEMENT 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 GRANTEE shall not permit the reproduction or use
thereof by any other person except as otherwise expressly provided herein.
(c) If the GRANTEE should subcontract all or any portion of the services
to be performed under this AGREEMENT, the GRANTEE shall cause each
subcontractor to also comply with the requirements of this Section 8.
(d) This Section 8 shall survive expiration or termination of this
AGREEMENT.
9. Professional Skill. It is further mutually understood and agreed by and
between the parties hereto that inasmuch as GRANTEE represents to the CITY that the
GRANTEE's subcontractors, are skilled in the profession and shall perform in accordance
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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 GRANTEE's
subcontractors, to do and perform such services in a skillful manner. Therefore, any
acceptance of such services by the CITY shall not operate as a release of the GRANTEE
or any subcontractors from said industry and professional standards. Should the
GRANTEE perform the services, then the GRANTEE agrees to thus perform the services
in a skillful manner.
10. Indemnification. To the furthest extent allowed by law, the GRANTEE 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), and from any and all
claims, demands and actions in law or equity (including reasonable attorney's fees, and
costs to enforce this AGREEMENT.) that arise out of, pertain to, or relate to the
negligence, recklessness or willful misconduct of the GRANTEE, its principals, officers,
employees, agents, subcontractors or volunteers in the performance of this
AGREEMENT.
If the GRANTEE should subcontract all or any portion of the services to be
performed under this AGREEMENT, the GRANTEE 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.
Notwithstanding the aforementioned, the GRANTEE recognizes that the source of
funds for the grant to be provided hereunder is the allocation from the CITY's General
funds. To this end the GRANTEE shall, without limitation, indemnify the CITY, and each
of its officers, officials, employees, agents, and volunteers from any and all loss, liability,
fines, penalties, forfeitures, costs, and damages incurred by the CITY from any and all
claims, demands and actions in law or equity (including attorney's fees and litigation
expenses), arising or alleged to have arisen directly or indirectly from the negligent or
intentional acts or omissions, or willful misconduct of the GRANTEE or any of its officers,
officials, employees, agents, or volunteers in the performance of this AGREEMENT and
compliance with the requirements of the Fresno Municipal Code.
This section shall survive termination or expiration of this AGREEMENT.
11. Insurance.
(a) Throughout the life of this Agreement, Grantee 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 its 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
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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,
Grantee 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 Grantee 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 Grantee of its responsibilities under
this Agreement. The phrase "fail to maintain any required insurance" shall include,
without limitation, notification received by City that an insurer has commenced
proceedings, or has had proceedings commenced against it, indicating that the
insurer is insolvent.
(c) The fact that insurance is obtained by Grantee shall not be deemed
to release or diminish the liability of Grantee, 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 Grantee. Approval or purchase of any insurance
contracts or policies shall in no way relieve from liability nor limit the liability of
Grantee, its principals, officers, agents, employees, or persons under the
supervision of Grantee, vendors, suppliers, invitees, consultants, sub-consultants,
subcontractors, or anyone employed directly or indirectly by any of them.
12. Conflict of Interest and Non-Solicitation.
(a) Prior to the CITY's execution of this AGREEMENT, the GRANTEE
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, the GRANTEE shall
have the obligation and duty to immediately notify the CITY in writing of any change
to the information provided by the GRANTEE in such a statement.
(b) The GRANTEE 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
the CITY, the GRANTEE shall provide a written opinion of its legal counsel and
that of any subcontractor that, after a due diligent inquiry, the GRANTEE and the
respective subcontractor(s) are in full compliance with all laws and regulations.
The GRANTEE 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 GRANTEE shall immediately
notify the CITY of these facts in writing.
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(c) In performing the work or services to be provided hereunder, the
GRANTEE 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.
(d) the GRANTEE 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) the GRANTEE 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, the
GRANTEE shall remain responsible for complying with Section 12(a), above.
(f) If the GRANTEE should subcontract all or any portion of the work to
be performed or services to be provided under this AGREEMENT, the GRANTEE
shall include the provisions of this Section 12 in each subcontract and require its
subcontractors to comply therewith.
(g) This Section 12 shall survive expiration or termination of this
AGREEMENT.
13. 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.
14. Nondiscrimination. To the extent required by controlling federal, state and
local law, the GRANTEE 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 GRANTEE agrees as follows:
(a) The GRANTEE or GRANTEE's subcontractor 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) The GRANTEE or the GRANTEE's subcontractor 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. Grantee shall ensure that
applicants are employed, and the employees are treated during employment,
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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 the GRANTEE'S or GRANTEE's
subcontractor'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. The GRANTEE agrees to post in
conspicuous places, available to employees and applicants for employment,
notices setting forth the provision of this nondiscrimination clause.
(c) The GRANTEE will, in all solicitations or advertisements for
employees placed by or on behalf of the GRANTEE 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) The GRANTEE 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
the GRANTEE'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 GRANTEE should subcontract all or any portion of the services
to be performed under this AGREEMENT, the GRANTEE shall cause each
subcontractor to also comply with the requirements of this Section 14.
15. Independent Contractor.
(a) In the furnishing of the services provided for herein, GRANTEE is
acting solely as an independent contractor. Neither the GRANTEE, nor any of its
officers, agents, subcontractors 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 GRANTEE shall perform its work and functions. However, the CITY shall
retain the right to administer this AGREEMENT so as to verify that the GRANTEE
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 GRANTEE and the CITY. The GRANTEE or GRANTEE's
subcontractor 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
GRANTEE shall bear its own costs and expenses in pursuit thereof.
(c) Because of its status as an independent contractor, the GRANTEE
and its officers, agents, subcontractors and employees shall have absolutely no
right to employment rights and benefits available to the CITY employees. The
GRANTEE 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, The GRANTEE shall be solely
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responsible, indemnify, defend and save the CITY harmless from all matters
relating to employment and tax withholding for and payment of the GRANTEE'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 GRANTEE may be providing services to others unrelated to the CITY or to this
AGREEMENT.
16. 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.
17. Bindin . Once this AGREEMENT is signed by all parties, it shall be binding
upon, and shall inure to the benefit of, all parties, and each party's respective heirs,
successors, assigns, transferees, agents, servants, employees, and representatives.
18. Assignment.
(a) This AGREEMENT is personal to the GRANTEE and there shall be
no assignment by the GRANTEE of its rights or obligations under this
AGREEMENT without the prior written approval of the City Manager or designee.
Any attempted assignment by the GRANTEE, its successors or assigns, shall be
null and void unless approved in writing by the City Manager or designee.
(b) The GRANTEE hereby agrees not to assign the payment of any
monies due to the GRANTEE 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 to the GRANTEE directly to the GRANTEE.
19. Compliance With Law. In providing the services required under this
AGREEMENT, the GRANTEE shall at all times comply with all applicable laws 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.
20. 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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21. 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 to 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.
22, 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.
23. 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.
24. 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.
25. 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.
26. Exhibits. Each exhibit and attachment referenced in this AGREEMENT is,
by the reference, incorporated into and made a part of this AGREEMENT.
27. 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.
28. 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.
29. 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.
30. 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 GRANTEE.
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31. The City Manager, or designee, is hereby authorized and directed to
execute and implement this AGREEMENT.
IN WITNESS WHEREOF, the parties have executed this Agreement at Fresno,
California, the day and year first above written.
CITY OF FRESNO, GRANTEE
a California municipal corp ration
r
By:
By: n JJ
lGergnne A. White, City Manager Name: VAVia R_a5aVothe City Manager Title: jPrt51 vt
APPROVED AS TO FORM: (If corporation or LLC., Board Chair,
ANDREW JANZ Pres. or Vice Pres.)
City Attor By:
B 0 Name:
ngela M. Karst Date
,r. Deputy City Attorney Title:
(If corporation or LLC., CFO, Treasurer,
ATTEST: Secretary or Assistant Secretary)
TODD STERMER, CMC
City Clerk
By:
Date
Deputy
Addresses:
Grantee:
City: Attention:
City of Fresno Phone:
Attention: Lance Lippincott, Director of E-mail:
Economic Development
2600 Fresno Street, Room 2156
Fresno, CA 93721
Phone: (559) 621-8350 960-0375
E-mail: lance.lippincott@fresno.gov
Attachments:
1. Exhibit A - Scope of Services
2. Exhibit B - Insurance Requirements
3. Exhibit C - Conflict of Interest Disclosure Form
-11-
ALL-B Grant Agt.(01-2023)
EXHIBIT A
SCOPE OF SERVICES
Service Agreement between City of Fresno
and ELEV8TE HOSPITALITYLLC DBA BANZAI JAPANESE BAR & KITCHEN
District 1 and District 5 Fagade Improvement Program
During Fiscal Year 2021 budget hearings, the Fresno City Council voted, pursuant to
Motion #47, to include funding for a limited facade program in City Council Districts 1
and 5. The intent of the funding is to allow grant awardees to update their facades,
thereby increasing the marketability to the businesses, and increasing profits.
Funding criteria:
1. Applicants for this program were previously identified and are split between City
Council Districts 1 and 5.
2. All grantees must be operational within the City of Fresno as of the date of this
Agreement.
3. Only EXTERIOR facade renovations of the selected applicants are eligible under
this funding;
4. All historic properties must comply with the Secretary of the Interior Standards for
the Rehabilitation of Historic Structures and receive approval from the City of
Fresno Historic Preservation Commission.
5. It is the applicants' responsibility to ensure that work is performed by a licensed
contractor with a valid City of Fresno Business Tax Certificate if applicable.
6. It is the applicant's responsibly to ensure compliance with prevailing wage
standards. The City is not responsible for any failure on the part of the applicant
to comply.
Reporting:
1. Grantees shall provide access to their facilities to verify the upgrades to the
facade, and before/after photographs of all updates to the building.
2. Failure to provide proper reporting may result in non-compliance under this
agreement.
Funding:
Funding for this project will be provided on a reimbursement basis dependent upon the
grantee submitting an invoice and providing receipts for eligible work done to update
their exterior facade.
ALL-B Grant Agt.(01-2023)
Page 1 of 1
EXHIBIT B
INSURANCE REQUIREMENTS
Service Agreement between City of Fresno ("CITY")
and ELEV8TE HOSPITALITYLLC DBA BANZAI JAPANESE BAR & KITCHEN
_("GRANTEE")
District 1 and District 5 Facade Improvement Program
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 Auto Coverage Form CA 00 01, providing
liability coverage arising out of the ownership, maintenance or use of
automobiles in the course of your business operations. The Automobile
Policy shall be written on an occurrence form and shall provide coverage
for all owned, hired, and non-owned automobiles or other licensed vehicles
(Code 1- Any Auto).
3, Workers' Compensation insurance as required by the State of California
and Employer's Liability Insurance.
MINIMUM LIMITS OF INSURANCE
GRANTEE, or any party the GRANTEE 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,
ALL-B Grant Agt.(01-2023)
Page 1 of 4
(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.
UMBRELLA OR EXCESS INSURANCE
In the event GRANTEE 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
GRANTEE shall be responsible for payment of any deductibles contained in any
insurance policy(ies) required herein and GRANTEE 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 CITY'S Risk Manager or his/her 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) GRANTEE shall provide a financial guarantee, satisfactory to CITY'S
Risk Manager or his/her designee, guaranteeing payment of losses
and related investigations, claim administration and defense
expenses. At no time shall CITY be responsible for the payment of
any deductibles or self-insured retentions.
OTHER INSURANCE PROVISIONS/ENDORSEMENTS
The General Liability and Automobile Liabilit insurance policies are to contain, or be
endorsed to contain, the following provisions:
ALL-B Grant Agt.(01-2023)
Page 2 of 4
1. CITY, its officers, officials, employees, agents and volunteers are to be
covered as additional insureds. GRANTEE shall establish additional
insured status for the City and for all operations by use of ISO Form CG 20
10 04 13 or CG 20 26 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 04 13 or CG 20 26 04 13.
2. The coverage shall contain no special limitations on the scope of protection
afforded to CITY, its officers, officials, employees, agents and volunteers.
Any available insurance proceeds in excess of the specified minimum limits
and coverage shall be available to the Additional Insured.
3. For any claims relating to this Agreement, GRANTEE'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 in excess of GRANTEE'S insurance and shall not
contribute with it. GRANTEE 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.
4. 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 Workers' Compensation insurance policy is to contain, or be endorsed to contain, the
following provision: GRANTEE and its insurer shall waive any right of subrogation against
CITY, its officers, officials, employees, agents and volunteers.
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. GRANTEE 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, GRANTEE
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,
GRANTEE 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.
ALL-B Grant Agt.(01-2023)
Page 3 of 4
Should any of the required policies provide that the defense costs 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 polices will be twice the above stated limits.
The fact that insurance is obtained by GRANTEE shall not be deemed to release or
diminish the liability of GRANTEE, 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 GRANTEE. Approval or purchase of any
insurance contracts or policies shall in no way relieve from liability nor limit the liability of
GRANTEE, its principals, officers, agents, employees, persons under the supervision of
GRANTEE, vendors, suppliers, invitees, consultants, sub-consultants, subcontractors, or
anyone employed directly or indirectly by any of them.
VERIFICATION OF COVERAGE
GRANTEE 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 his/her designee prior
to CITY'S execution of the Agreement and before work commences. All non-ISO
endorsements amending policy coverage shall be executed by a licensed and authorized
agent or broker. Upon request of CITY, GRANTEE shall immediately furnish City with a
complete copy of any insurance policy required under this Agreement, including all
endorsements, with said copy certified by the underwriter to be a true and correct copy of
the original policy. This requirement shall survive expiration or termination of this
Agreement.
SUBCONTRACTORS - If GRANTEE subcontracts any or all of the services to be
performed under this Agreement, GRANTEE shall 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.
ALL-B Grant Agt.(01-2023)
Page 4 of 4
EXHIBIT C
DISCLOSURE OF CONFLICT OF INTEREST
District 1 and District 5 Fa ade Improvement 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 ❑ l
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 ❑ 'F1 I
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
Dt
a V G#VO
Name
Vlejit' c Kr
Company
d 1 E, col i vt �,�e. 5��. C
Address
❑ Additional page(s) attached. I'V LO 0 o
City, State, Zip
ALL-B Grant Agt.(01/2023)
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