22-102 Omniware Networks for Peace Love Unity Youth Art Contest Exhibition, Grant Funding Agreement Page 1 of 8
CITY OF CUPERTINO GRANT FUNDING AGREEMENT
This Grant Agreement (“Agreement”) is entered into between the City of Cupertino, a municipal
corporation (“City”), and Omniware Networks, a non-profit public benefit corporation
(“Grantee”), together, the “Parties.” The allocation of funds pursuant to this Agreement will be a
grant. This Agreement is effective on the last date signed below (“Effective Date”).
The Parties agree as follows:
1. Purpose of Grant. This is a grant for "Peace Love Unity" Youth Art Contest Exhibition
as more specifically described in Exhibit A to this Agreement (“Grant Project” or “Grant
Project Description”), and all work funded by this Agreement shall be completed in
accordance with the Grant Project Description.
2. Term. This Agreement begins on the Effective Date and ends on June 30, 2023, unless
terminated earlier as provided herein.
3. Grant. The total grant funding provided pursuant to this Agreement shall not exceed the
total sum of two thousand dollars ($2,000.00) for work in connection with the Grant Project
(the “Grant Funds”).
4. Disbursement of Grant Funds. The City will not disburse Grant Funds to Grantee until
(1) this Agreement is fully executed, and (2) signed Federal Taxpayer ID Number Form
(substitute IRS Form W-9) has been submitted.
5. Use of Grant Funds. In accepting grant funds, Grantee agrees that it shall use or expend
grant funds, or any portion thereof, only as provided for in this Agreement and, without
limiting the generality of the foregoing, agrees to purchase materials, equipment, or other
property specified in Exhibit A only for use in connection with the Grant Project
authorized by this Agreement except as may be otherwise provided herein.
6. Grantee Obligations.
6.1 Performance. Grantee shall carry out the Grant Project to the best of Grantee’s
ability and in accordance with the generally accepted professional and ethical
standards of Grantee’s profession and community and currently approved methods
and practices in Grantee’s field and in accordance with the standards required by
the Grant Project Description.
6.2 Compliance with Laws.
a. Grantee shall observe and comply with all applicable laws, ordinances,
codes, and regulations of governmental agencies, including without
limitation all provisions of the Occupational Safety and Health Act of 1979,
Title VII of the Civil Rights Act of 1964, the Immigration Reform and
Control Act of 1986 and all other applicable federal, state, and local laws.
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b. Grantee represents and warrants to City that it has all licenses, permits,
qualifications, and approvals of whatsoever nature which are legally
required for Grantee to complete the Grant Project.
c. Grantee shall comply with all labor laws applicable to this Agreement. If
the Grant Project Description includes a “public works” component, Grantee
is required to comply with prevailing wage laws under Labor Code Section
1720 and other labor laws.
d. Grantee shall not discriminate on the basis of race, religious creed, color,
ancestry, national origin, ethnicity, handicap, disability, marital status,
pregnancy, age, sex, gender, sexual orientation, gender identity, Acquired-
Immune Deficiency Syndrome (AIDS), or any other protected
classification. Grantee shall comply with all anti-discrimination laws,
including Government Code Sections 12900 and 11135, and Labor Code
Sections 1735, 1777, and 3077.5. Consistent with City policy prohibiting
harassment and discrimination, Grantee understands that harassment and
discrimination directed toward a job applicant, an employee, a City
employee, or any other person, by Grantee or its employees, contractors, or
sub-contractors will not be tolerated.
6.3 Not an Employee. Grantee and the agents, employees, contractors, and
subcontractors of Grantee shall act in an independent capacity and not as officers
or employees or agents of City. Grantee acknowledges and promises that City is
not acting as an employer to any individuals furnishing services or work pursuant
to this Agreement.
6.4 Benefits and Taxes. Grantee shall not have any claim under this Agreement or
otherwise against City for seniority, vacation time, vacation pay, sick leave,
personal time off, overtime, health insurance, medical care, hospital care, insurance
benefits, social security, disability, unemployment, workers compensation or
employee benefits of any kind. Grantee shall be solely liable for and obligated to
pay directly all applicable taxes, including, but not limited to, federal and state
income taxes, and in connection therewith Grantee shall indemnify and hold City
harmless from any and all liability that City may incur because of Grantee’s failure
to pay such taxes.
6.5 Return of Unused Grant Funds. Any Grant Funds not expended for the Grant
Project and substantiated in the Grant Report described in Section 7, below, shall
be reimbursed to the City no later than fifteen (15) business days after submission
of the Grant Report.
7. Grant Report. By the fifteenth (15th) business day of July in the fiscal year following
disbursement of the Grant Funds, Grantee must submit to the City a written report (the
“Grant Report”) proving that Grant Funds have been spent in the matter and for the
purposes stated in the grant application. The Grant Report shall include, at a minimum, a
description of the work completed, a description of what the Grant Funds were spent on,
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substantiating documentation for grant expenditures (e.g., invoices, timesheets), and
information about the number of persons served and other results that benefit Cupertino.
The Grant Report shall also identify whether all Grant Funds were expended.
8. City Obligations. City shall make timely grant disbursements and may provide, at its
expense, such services of its officers and employees and such use of its premises, facilities,
supplies, and equipment as the City in its sole discretion determines is necessary in
connection with the administration or monitoring of this Agreement. Grantee shall not use
any such City services, premises, facilities, supplies, or equipment for any purpose other
than in the performance of Grantee’s obligations under this Agreement.
9. Grant Coordination.
City Grant Manager. City assigns Jacinta Liang as the City’s representative(s) for all
purposes under this Agreement, with authority to oversee the progress and performance of
the Grant Project. City reserves the right to substitute another grant manager at any time,
and without prior notice to Grantee.
Grantee Project Manager. Subject to City approval, Grantee assigns Fengdi Xu as its single
representative for all purposes under this Agreement, with authority to oversee the
progress and performance of the Grant Project. City written approval is required prior to
substituting a new representative.
10. Notice. All notices, requests and approvals must be sent in writing to the persons below,
which will be considered effective on the date of personal delivery or the date confirmed
by a reputable overnight delivery service, on the fifth (5th) calendar day after deposit in
the United States Mail, postage prepaid, registered or certified, or the next business day
following electronic submission:
To City of Cupertino:
10185 N Stelling Road
Cupertino, CA 95014
Attention:
Jacinta Liang - Community Funding
Email: communityfunding@cupertino.org
To Grantee:
656 Lytton Ave #G207,
Palo Alto, CA 94301
Attention:
Fengdi Xu
Email: omniwarenetworks@gmail.com
11. Assignments and Subcontracts. Grantee shall not assign, sublease, hypothecate, or
transfer this Agreement, or any interest therein, directly or indirectly, by operation of law
or otherwise, without prior written consent of City. Any attempt to do so will be null and
void. Any changes related to the financial control or business nature of Grantee as a legal
entity is considered an assignment of the Agreement and subject to City approval, which
shall not be unreasonably withheld. Control means fifty percent (50%) or more of the
voting power of the business entity.
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12. Retention of Records. Grantee must maintain complete and accurate accounting records
relating to its performance in accordance with generally accepted accounting principles.
The records must include detailed information of Grantee’s performance, benchmarks and
deliverables, which must be available to City for review and audit. The records and
supporting documents must be kept separate from other records and must be maintained
for five (5) years from the date of City’s final payment.
13. Conflicts of Interest. Grantee shall comply with all conflict of interest laws applicable to
this Agreement and must avoid any conflict of interest. Grantee warrants that no public
official, employee, or member of a City board or commission who might have been
involved in the making of this Agreement, has or will receive a direct or indirect financial
interest in this Agreement, in violation of California Government Code Section 1090, et
seq. Grantee may be required to file a conflict of interest form if Grantee makes certain
governmental decisions or serves in a staff capacity, as defined in Section 18700 of Title 2
of the California Code of Regulations. Grantee agrees to abide by the City’s rules
governing gifts to public officials and employees.
14. Rights to Material Produced.
14.1 Grantee agrees that all original writings, sound recordings, pictorial reproductions,
drawings, data, computer programs, and other works of similar nature produced in
the course of or under this Agreement, are subject to the rights of City as set forth
in this section. City shall have the right to reproduce, publish, and use all such work,
or any part thereof, in any manner and for any purpose whatsoever and to authorize
others to do so. If any such work is copyrightable, Grantee may copyright the same,
except that, as to any work which is copyrighted by the Grantee, the City reserves
a royalty-free, nonexclusive, and irrevocable license to reproduce, publish, and use
such work, or any part thereof, and to authorize others to do so. Grantee agrees to
deliver a reproducible copy of such documents and materials to City upon request.
14.2 City may, in its sole discretion, require Grantee to identify or credit City as the
funding agency or source for all materials or products generated or produced by
Grantee pursuant to the Grant Project Description. This identification or credit may
take the form of a logo or other representative mark of City or representative
wording (e.g. “funded in whole or in part by the City of Cupertino”) which is
printed or applied directly on or to those materials or products. Grantee shall not
use City materials including logos, flyers, etc., without written permission from
City.
14.3 Except as otherwise provided in this Agreement, Grantee shall have and retain title
to all real or personal property purchased or funded with grant funds; provided,
however, that City may require, as an additional condition of eligibility for grant
funds and in advance of approval of this Agreement, that the Grantee provide
security to City in order to ensure the performance of Grantee’s obligations under
this Agreement and that those obligations are performed consistent with the terms
and conditions of this Agreement.
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15. Intellectual Property. Grantee represents and warrants that it has the legal right to utilize
all intellectual property it will utilize in carrying out the Grant Project. Grantee shall
indemnify and hold City harmless from all loss and liability, including attorneys’ fees,
court costs, and all other litigation expenses for any infringement of the patent rights,
copyright, trade secret, or any other proprietary right or trademark, and all other intellectual
property claims of any person or persons in consequence of the use by City, or any of its
officers or agents, of articles or work to be carried out in the performance of this
Agreement.
16. Publicity. Any publicity generated by Grantee for the Grant Project under this Agreement,
during the term of this Agreement and for one (1) year thereafter, will reference the City’s
contributions in making the Grant Project possible. The words “City of Cupertino” will be
displayed in all pieces of publicity, including flyers, press releases, posters, brochures,
public service announcements, interviews, and newspaper articles. No signs may be posted,
exhibited, or displayed on or about City property, except signage required by law or this
Agreement, without prior written approval from the City.
17. Indemnification. To the fullest extent permitted by law, Grantee agrees to indemnify,
defend, and hold harmless City, its employees, agents, and officials, from any liability,
claims, suits, actions, arbitration proceedings, administrative proceedings, regulatory
proceedings, losses, expenses or costs (including, without limitation, costs and fees of
litigation) of any kind whatsoever without restriction or limitation, incurred in relation to,
as a consequence of or arising out of or in any way attributable actually, allegedly or
impliedly, in whole or in part, to the performance of this Agreement. All obligations under
this provision are to be paid by Grantee as they are incurred by the City. This Section 17
shall survive termination of the Agreement.
18. Termination. Either party may terminate this Agreement, with or without cause, by
providing thirty (30) days’ notice in writing to the other party. The City may terminate this
Agreement at any time without prior notice in the event that Grantee commits a material
breach of the terms of this Agreement. Upon termination, this Agreement shall become of
no further force or effect whatsoever, and each of the Parties hereto shall be relieved and
discharged from their obligations under this Agreement, subject to payment for acceptable
grant implementation work carried out prior to the expiration of the notice of termination.
Notwithstanding the foregoing, all provisions which by their nature must continue after the
Agreement expires or is terminated shall survive the Agreement and remain in full force
and effect, including but not limited to the Funding Agency Requirements, if applicable);
Grantee Obligations, Benefits and Taxes (Section 6.4); Retention of Records (Section 12);
Rights to Material Produced (Section 14); Intellectual Property (Section 15);
Indemnification (Section 17); Governing Law, Venue, and Dispute Resolution (Section
19); and Attorneys’ Fees (Section 20).
19. Governing Law, Venue, and Dispute Resolution. This Agreement is governed by the
laws of the State of California. Any lawsuits filed related to this Agreement must be filed
with the Superior Court for the County of Santa Clara, State of California. Grantee must
comply with the claims filing requirements under the Government Code prior to filing a
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civil action in court. If the Parties elect arbitration, the arbitrator’s award must be supported
by law and substantial evidence and include detailed written findings of law and fact.
20. Attorneys’ Fees. If City initiates legal action, files a complaint or cross-complaint, or
pursues arbitration, appeal, or other proceedings to enforce its rights or a judgment in
connection with this Agreement, the prevailing party will be entitled to reasonable
attorneys’ fees and costs.
21. Waiver. Neither the acknowledgement of work or disbursement of grant funds pursuant to
this Agreement shall constitute a waiver of any rights or obligations arising under this
Agreement. The failure by the City to enforce any of Grantee’s obligations or to exercise
City’s rights shall in no event be deemed a waiver of the right to do so thereafter.
22. Notice of Nonrenewal. Grantee understands and agrees that there is no representation,
implication, or understanding that Grantee may be entitled to grant funds in the future or
that the work or other activity funded by City pursuant to this Agreement will be funded
by the City under a new agreement following expiration or termination of this Agreement.
Grantee waives all rights or claims to notice or hearing respecting any failure by City to
continue to fund all or any such activities by Grantee following the expiration or
termination of this Agreement.
23. Third Party Beneficiaries. There are no intended third party beneficiaries of this
Agreement.
24. Entire Agreement. This Agreement represents the full and complete understanding of
every kind or nature between the Parties, and supersedes any other agreement(s) and
understanding(s) on this subject, either oral or written, between the Parties. Any
modification of this Agreement will be effective only if in writing and signed by each
Party’s authorized representative. No verbal agreement or implied covenant will be valid
to amend or abridge this Agreement. If there is any inconsistency between any term, clause,
or provision of the main Agreement and any term, clause, or provision of the attachments
or exhibits thereto, the terms of the main Agreement shall prevail and be controlling unless
otherwise indicated.
25. Severability. If any term or provision of this Agreement, or its application to a particular
situation, is found by the court to be void, invalid, illegal, or unenforceable, such term or
provision shall remain in force and effect to the extent allowed by such ruling. All other
terms and provisions of this Agreement or their application to specific situations shall
remain in full force and effect. The Parties agree to work in good faith to amend this
Agreement to carry out its intent.
26. Execution. Each individual executing this Agreement, on behalf of one of the Parties,
represents that he or she is duly authorized to sign and deliver the Agreement on behalf of
such party and that this Agreement is binding on such party in accordance with its terms.
This Agreement may be executed in two or more counterparts, each of which shall be
deemed an original, but all of which taken together shall constitute one and the same
instrument.
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IN WITNESS WHEREOF, the Parties have caused the Agreement to be executed.
CITY OF CUPERTINO
A Municipal Corporation
By
Name
Title
Date
GRANTEE
By
Name
Title
Date
Tax I.D. No.: Refer to W9
APPROVED AS TO FORM:
for
CHRISTOPHER D. JENSEN
Cupertino City Attorney
ATTEST:
KIRSTEN SQUARCIA
City Clerk
Date
Fengdi Xu
president
Aug 4, 2022
Michael Woo
Rachelle Sander
Acting Director of Parks and Recreation
Aug 5, 2022
Aug 5, 2022
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Exhibit A
Grant Project Description
Background
The City of Cupertino provides funding to local non-profit organizations in the areas of social
services, fine arts and other programs for the general public through the Community Funding Grant
Program. The program is guided by the Community Funding Grant Policy, which all funded
organizations must adhere to.
Grantee has applied for grant monies for the project described below and City has determined that
the Grantee is qualified to receive grant funds.
Project Description
Please refer to Exhibit A-1.
-End of Exhibit A-
"Peace Love Unity" Youth Art Contest Exhibition
Final Audit Report 2022-08-05
Created:2022-08-04
By:City of Cupertino (webmaster@cupertino.org)
Status:Signed
Transaction ID:CBJCHBCAABAAPxaTiZ-vNSAkVTR7FJAFU63ernVsfuu_
""Peace Love Unity" Youth Art Contest Exhibition" History
Document created by City of Cupertino (webmaster@cupertino.org)
2022-08-04 - 11:31:10 PM GMT- IP address: 35.229.54.2
Document emailed to Araceli Alejandre (aracelia@cupertino.org) for approval
2022-08-04 - 11:31:37 PM GMT
Document approved by Araceli Alejandre (aracelia@cupertino.org)
Approval Date: 2022-08-04 - 11:51:45 PM GMT - Time Source: server- IP address: 73.170.27.253
Document emailed to omniwarenetworks@gmail.com for signature
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Signer omniwarenetworks@gmail.com entered name at signing as Fengdi Xu
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Document e-signed by Fengdi Xu (omniwarenetworks@gmail.com)
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Agreement completed.
2022-08-05 - 3:23:38 PM GMT