HomeMy WebLinkAboutExecuted Winepress Facility Use Agreement.pdf FACILITY USE AGREEMENT
THIS FACILITY USE AGREEMENT("Agreement")is made and entered into this 1 day of August,2022 (Effective Date"), by
and between the County of Fresno,a political subdivision of the State of California ("COUNTY")and Fresno Area Workforce
Investment Corporation,a California nonprofit corporation("FAWIC"),whose address is 212S Kern Street,Suite 208 Fresno,
California 93721.000NTY and FAWIC are collectively referred to herein as the"Parties" or singularly by their individual names or as
a"Party."
RECITALS:
A. FAWIC is a party to that certain lease dated January 25,2021,with AM], LTD,as the Lessor("Lease")for space located on
3170 W.Shaw Ave, Fresno,CA 93727("Facility").
B. COUNTY,through its Department of Social Services(DSS), desires to use the portion of the Facility described and depicted
in Exhibit A,attached hereto and incorporated herein by this reference("Premises"),to provide the services described in
Exhibit B,attached hereto and incorporated herein by this reference("Services").
C. FAWIC is willing to permit COUNTY to use the Premises to provide the Services, pursuant to the terms and
subject to the conditions of this Agreement. NOW,THEREFORE,in consideration of the mutual promises,covenants and
conditions hereinafter contained,such Parties,and each of them,do agree as follows:
ARTICLE I
USE OF THE FACILITY
1.1 Grant. FAWIC hereby grants to COUNTY an exclusive,revocable license to enter and use the Premises for the purpose of
providing the Services only and for no other purpose, pursuant to the terms and subject to the conditions set forth herein.
Notwithstanding anything to the contrary in this Agreement, FAWIC covenants,warrants and represents to COUNTY that FAWIC(a)
is in lawful possession of the Premises, (b)is not in breach or default under the Lease,(c) has permission under the Lease to enter
into this Agreement,and(d)does not have any legal dispute with the Lessor concerning FAWIC's use of the Premises.
1.2 Use of the Common Areas. COUNTY shall have the non-exclusive right in common with FAWIC,other tenants,subtenants and
invitees,to use the Facility lobbies,common corridors,and hallways, restrooms,visitor-only parking areas,loading/unloading areas,
and other generally understood public or common areas(the"Common Areas")of the Facility when providing Services. COUNTY's
use of the Common Areas must comply with FAWIC's Common Areas'policies as may be periodically adopted or imposed by FAWIC.
1.3 DISCLAIMER"AS IS." COUNTY agrees that the Premises are provided to COUNTY in "AS IS"condition,with all faults,if any,
without any representation or warranty,expressed or implied,other than those contained in this Agreement. COUNTY and FAWIC
shall conduct a walk-through of the Premises prior to the Effective Date to inspect the condition of the Premises.Notwithstanding
the foregoing, FAWIC covenants,represents,and warrants to COUNTY that FAWIC is not aware of any notice,order,or enforcement
action by any governmental authority claiming that the Facility violates any state laws, local ordinances,or other governmental
regulations concerning health and safety purposes.
1.4 Use Fee. Commencing on the Effective Date and continuing thereafter for the Term(as defined below),COUNTY shall pay FAWIC
a fee for the use of the Premises(the"Use Fee"). For the first year this Agreement is in effect,the amount of the Use Fee shall be
2.85 per square foot per month,or$1,006.05 per month.Thereafter,the Use Fee shall be increased by Three Percent(3%) per
square foot of the Premises on July 1st each year this Agreement is in effect.The Use Fee shall be paid monthly to FAWIC on or
before the first day of the month for which the Use Fee is due.All payments due under this Agreement shall be paid to FAWIC in
lawful money of the United States of America at FAWIC's address for notices under this Agreement or to another person or at
another place as FAWIC may designate by notice,in writing,to COUNTY.
1.5 Proportionate Share of Operational Costs. In addition to the Use Fee,COUNTY shall pay a proportionate share of the operational
costs of the Facility—including but not limited to the costs of internet,communications lines,utilities,security,and janitorial
services—which will be calculated based upon the number of square feet of the Premises relative to the total square feet of usable
square footage at the Facility. FAWIC will invoice COUNTY monthly for these costs,and COUNTY shall pay the invoiced amount no
later than 45 days after invoice.
1.6 Damages; Maintenance. COUNTY shall be solely responsible for paying for any damage caused to the Facility or the Premises by
COUNTY or COUNTY's invitees. Upon the expiration or earlier termination of this Agreement, COUNTY shall return the Premises to
FAWIC clean and in the same condition as on the date COUNTY took possession,except for normal wear and tear.Any damage to
the Premises or Facility,including any structural damage, resulting from COUNTY's use or from the removal of COUNTY's fixtures,
furnishings,and equipment shall be repaired by FAWIC at COUNTY's expense.
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1.7 Right of Entry. COUNTY shall permit FAWIC,at all times,to enter the Premises for the purposes of inspection,confirmation of
compliance with the terms of this Agreement,exercise of all rights under this Agreement,and all other lawful purposes.
1.8 Modification of Premises. COUNTY shall not make any modification to the Premises without FAWIC's prior written consent.
ARTICLE II
TERM AND TERMINATION
2.1.Term. The term of this Agreement shall commence on the Effective Date and, unless sooner terminated as provided herein,end
on June 30,2025(the"Term").
2.2 Early Termination. Either Party may terminate this Agreement for any reason, or for no reason, upon giving the other Party not
less than thirty(30)days prior written notice of its intention to terminate the Agreement.
2.3 Default. The occurrence of any and all of the following actions shall constitute a default by COUNTY under this Agreement:
(a)The failure by COUNTY to pay any Use Fee due within ten(10)days of the due date.
(b)The use of the Premises for any activity other than providing the Services.
(c)The failure by COUNTY to observe or perform any other material covenant,condition,or provision of this Agreement,
where such failure continues for a period of twenty(20)calendar days after written notice from FAWIC to COUNTY(or, if
such failure cannot be reasonably cured within such twenty(20)calendar day period,then where COUNTY fails to
commence all steps reasonably necessary to cure such condition within such twenty(20)calendar day period and fails to
continue to diligently remedy the same thereafter).
2.4 Remedies. If a default occurs,FAWIC shall have the following remedies,which remedies are not exclusive,but are cumulative
and in addition to any other rights and remedies at law or in equity:
(a)Continuation of Agreement. FAWIC may continue this Agreement in full force and effect,and this Agreement will
continue in effect as long as FAWIC does not terminate COUNTY's right to use the Premises,and FAWIC shall have the right
to collect the Use Fee when due during the period COUNTY is in default. FAWIC can enter and re-let the Premises,or any
part of it,to third parties for COUNTY's account. No act by FAWIC allowed by this subparagraph (a)shall terminate this
Agreement unless FAWIC gives COUNTY 30 days written notice,that FAWIC elects to terminate this Agreement.
(b)Termination of Right to Use Premises. FAWIC may terminate COUNTY's right to use the Premises. Except as otherwise
provided in subparagraph (a)of this Section, no act by FAWIC other than giving 30 day written notice to COUNTY of such
termination shall terminate this Agreement.Acts of maintenance or efforts to re-let the Premises shall not alone constitute
a termination of COUNTY's right to use the Premises.
(c) No Acceleration. Notwithstanding anything to the contrary in this Agreement, FAWIC's rights and remedies under this
Agreement shall be without acceleration of any future payment of any Use Fee by COUNTY before any such payment is due
and payable hereunder,and FAWIC hereby expressly waives any right and/or remedy at law or in equity to accelerate any
payment of any Use Fee before any such payment is due and payable hereunder in the event of a COUNTY default
hereunder.
ARTICLE III
MISCELLANEOUS
3.1 Indemnification. COUNTY and FAWIC shall mutually indemnify and hold harmless(the"Indemnifying Party") each party from
and against any and all losses,costs, expenses(including reasonable attorneys',experts'and consultants'fees and court costs at all
levels of proceedings),damages and/or liabilities which either of the Indemnified Parties may sustain or incur in connection with or
arising out of the performance of this Agreement or any breach by the Indemnifying Party of its obligations under this Agreement,
except to the extent the foregoing is caused by the gross negligence or willful misconduct of the Indemnified Parties.
3.2 Insurance. COUNTY,at its cost and throughout the Term,shall maintain in effect insurance or self-insurance providing coverage
that complies,at a minimum,with the following requirements,and shall provide written proof of such insurance to FAWIC upon the
FAWIC's request:(A)commercial general liability with limits of not less than$1,000,000 per occurrence and$2,000,000 general
aggregate and with coverage for property damage,bodily injury,and personal and advertising injury; (B)workers compensation with
limits of not less than$1,000,000 or as required by California laws,whichever is greater;(C)employer's liability insurance of not less
than$1,000,000;and (D)commercial automobile liability covering,at a minimum,non-owned and hired autos and,if there are any
autos owned by COUNTY,then also covering owned autos,with a combined single limit of not less than$1,000,000 per accident.
The commercial general liability insurance shall contain a blanket additional insured endorsement or be endorsed to name FAWIC
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and its officers,employees,agents,volunteers,and the owner of the Facility,as an additional insured.Within 30 days of the
Effective Date,COUNTY must furnish to FAWIC satisfactory proof of the required insurance.
FAWIC shall maintain during the term of this Agreement the following policies of insurance,which coverages may be
provided in whole or in part through one or more programs of self-insurance:
(a) Commercial General liability insurance with limits of not less than One Million Dollars($1,000,000)per occurrence and
an annual aggregate of not less than Three Million Dollars($3,000,000). This policy shall be issued on an occurrence
basis.
(b) (All-Risk property insurance.
(c) Worker's Compensation-A policy of Worker's Compensation insurance as may be required by the California Labor
Code.
FAWIC shall obtain endorsements to the Commercial General Liability insurance naming the County of Fresno, its officers,
agents,and employees,individually and collectively, as additional insureds,but only insofar as the operations under this Lease are
concerned.Such coverage for additional insureds shall apply as primary insurance and any other insurance,or self-insurance,
maintained by LESSEE,its officers,agents,and employees shall be excess only,and not contributing with insurance provided under
LESSOR'S policies herein.This insurance shall not be cancelled or changed without a minimum or thirty(30) days advance written
notice given to LESSEE.
FAWIC hereby waives its right to recover from COUNTY, its officers,agents,and employees any amounts paid by the policy
of worker's compensation insurance required by this Agreement. FAWIC is solely responsible to obtain any endorsement to such
policy that may be necessary to accomplish such waiver of subrogation, but FAWIC's waiver of subrogation under this paragraph is
effective whether or not FAWIC obtains such an endorsement.
Within (30)days from the date FAWIC executes this Agreement, FAWIC shall provide certificates of insurance and
endorsement as stated above for all of the foregoing policies,as required herein,to the County of Fresno, C/O Department of
Internal Services,Attn: ISD Purchasing,333 W. Pontiac Way,Clovis,CA 93612-5613,or via email:
PurchasingRequisitions@FresnoCountyCA.gov,stating that such insurance coverages have been obtained and are in full force;that
the County,its officers,agents and employees will not be responsible for any premiums on the policies;that for such worker's
compensation insurance the FAWIC has waived its right to recover from the COUNTY, its officers,agents,and employees any
amounts paid under the insurance policy and that waiver does not invalidate the insurance policy;that such Commercial General
Liability insurance names the County,its officers,agents, and employees,individually and collectively,as additional insured, but only
insofar as the operations under this Agreement are concerned.Coverage for additional insured shall apply as primary insurance and
any other insurance,or self-insurance,shall not be cancelled or changed without a minimum of thirty(30)days advance,written
notice given to COUNTY.
In the event FAWIC fails to keep in effect at all times insurance coverage as herein provided, COUNTY may,in addition to
other remedies it may have,suspend,or terminate this lease upon the occurrence of such event.
All policies shall be with admitted insurers licensed to do business in the State of California. Insurance shall be purchased
from companies possessing a current A.M. Best Company rating of A FSC VII or better.
3.3 FAWIC Representatives. The Executive Director of FAWIC and his or her duly appointed representative(s)shall administer this
Agreement and shall have authority to act on behalf of FAWIC.
3.4 Entire Agreement; Modifications. This Agreement,together with all exhibits attached hereto,constitutes the entire agreement
between the Parties relating to the Premises,and supersedes all prior and contemporaneous agreements,representations,and
understandings of the Parties with regard thereto. No alteration or modification of this Agreement shall be valid unless made in
writing and signed by the Parties.
3.5 Non-Discrimination and Equal Opportunity. COUNTY shall comply with all applicable laws providing equal employment
opportunities.COUNTY shall not discriminate against any person on the grounds of race,color,creed,gender,gender identity,
religion,marital status, registered domestic partner status,age, national origin or ancestry, physical or mental disability, medical
condition including genetic characteristics,sexual orientation, pregnancy,citizenship status, military or veteran status,or any other
characteristic made unlawful by federal,state,or local laws.These non-discrimination and equal opportunity requirements shall
apply to all of COUNTY's use of the Premises.
3.6 Notices. All notices required or permitted by this Agreement or applicable law shall be in writing and shall be delivered in person
(by hand or by courier)or shall be sent by certified or registered mail,or by email.The addresses noted below shall be that Party's
designated address and addressee for delivery or mailing of notices.Any Party may by written notice to the other specify a different
address for notice.Any notice sent by registered or certified mail, return receipt requested,shall be deemed given on the date of
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delivery shown on the receipt card,or if no delivery date is shown,three(3)days after the postmark thereon. If notice is received
after 4:30 p.m.or on a Saturday,Sunday or legal holiday it shall be deemed received on the next business day:
To FAWIC: To COUNTY:
Attn:Augie Quiroz County of Fresno, Department of Social Services
2125 Kern Street Suite 208 C/O Department of Internal Services
Fresno CA 93721 Attn: ISD Lease Services
Email:aquiroz@workforce-connection.com 333 W. Pontiac Way,
Clovis,CA 93612-5613
Email: ISDContracts@FresnoCountyCA.gov
3.7 Assignment and Binding Effect. COUNTY shall not assign all or any part of this Agreement,or any obligation or interest hereof,or
any monies due or which may become due hereunder,without the prior written consent of FAWIC,which consent may be withheld
in FAWIC's sole discretion.Subject to the provisions of the preceding sentence,this Agreement shall be binding upon,and inure to
the benefit of,the respective heirs,executors,administrators,successors and assigns of the Parties.
3.8 Attorneys' Fees. If an action at law or equity is necessary to enforce or interpret the terms of this Agreement,the prevailing
Party shall be entitled to reasonable attorneys',paralegals',and other professionals'fees and costs in addition to any other
reasonable relief to which it may be entitled. For purposes of this Section,the"prevailing Party" means the Party entitled to recover
costs of suit,whether or not any action proceeds to final judgment.
3.9 Governing Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of
California.The Parties agree that venue for any dispute or litigation arising under this Agreement shall be in the County of Fresno,
State of California,if instituted in the State courts,or the Eastern District of California(Fresno), if instituted in the Federal courts.
3.10 Waiver. A waiver of any breach of this Agreement by the Parties to this Agreement shall not constitute a continuing waiver,or
a waiver of any subsequent breach of the same,or any breach of another provision of this Agreement.
3.11 Partial Invalidity;Time. If any provision of this Agreement,or any portion thereof,is held by a court of competent jurisdiction
to be invalid,void or unenforceable,the remaining provisions of this Agreement,including,without limitation,the portions thereof
not held to be invalid,void or unenforceable,shall nevertheless continue to be in full force and effect without being impaired or
invalidated in any way.Time is of the essence of this Agreement and all of its provisions.
3.12 Counterparts. This Agreement may be executed in any number of counterparts and each such counterpart shall be deemed to
be an original instrument,all of which together shall constitute one and the same instrument.
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3.13 Dispute Resolution. If a dispute arises during the Term,then within three(3)business days after a written request by Party,
FAWIC's representative and COUNTY's representative,or a person designated by either such representative,shall confer to resolve
the issue. If the Parties'representatives or the designated person,as the case may be,cannot resolve the dispute or either Party
determines they are not making progress toward resolution of the issue within twenty(20)business days after their initial
conference,then the Parties reserve the right to resolve such dispute in any manner provided by law.
IN WITNESS WHEREOF,the Parties hereto have caused this Agreement to be executed as of the date and year first above written.
"FAW I C" "COUNTY"
Fresno Area Workforce Investment Corporation,a California County of Fresno, political subdivision of the State of California
nonprofit corporation
31d - J
Blake Konczal,Chief Executive ffic r Robert Bash, Director of Internal Services/
Chief Information Officer
APPROVED AS TO ACCOUNTING FORM:
OSCAR J.GARCIA,CPA
BOscr Cl�.n c.ir.
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AUDITOR-CONTROLLER/TREASURER-TAX COLLECTOR
APPROVED AS TO LEGAL FORM:
DANIEL C.CEDERBORG,COUNTY COUNSEL
By
Deputy
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3165795VI/16988.0001 '
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EXHIBIT A
Premises
Fresno County Direct Space:Cubicles C102 and C103
• Direct Space =279 sf.
• Circulation and Common = 74 sf.
• Total =353 sf.
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3165795v1/16988.0001
EXHIBIT B
SERVICES
A. COUNTY shall use the Premises solely to provide the following Services: liaison and employment-related services to DSS
clients.
B. COUNTY shall not keep,use or permit to be kept or used in or about the Premises or Facility any articles or materials which
may be prohibited in the standard form of fire insurance policies.
C. COUNTY shall,at its sole cost and expense,comply with any and all requirements pertaining to the Premises of any
insurance organization or company necessary for the maintenance of reasonable fire and public liability insurance covering the
Premises and appurtenances.
D. County agrees to not commit,suffer or permit any waste or nuisance on the Premises,and not to use or permit the use of
the Premises for any illegal or immoral purposes. County further agrees to comply with all state laws, local ordinances and other
governmental regulations which may be required by any governmental authority.
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