Loading...
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. Page 2 of 8 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, Page 3 of 8 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. Page 4 of 8 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. Page 5 of 8 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 Page 6 of 8 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. Page 7 of 8 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 Page 8 of 8 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 2022-08-04 - 11:51:47 PM GMT Email viewed by omniwarenetworks@gmail.com 2022-08-05 - 0:16:28 AM GMT- IP address: 66.249.84.234 Signer omniwarenetworks@gmail.com entered name at signing as Fengdi Xu 2022-08-05 - 0:22:48 AM GMT- IP address: 73.252.202.40 Document e-signed by Fengdi Xu (omniwarenetworks@gmail.com) Signature Date: 2022-08-05 - 0:22:49 AM GMT - Time Source: server- IP address: 73.252.202.40 Document emailed to Michael Woo (michaelw@cupertino.org) for signature 2022-08-05 - 0:22:52 AM GMT Email viewed by Michael Woo (michaelw@cupertino.org) 2022-08-05 - 0:26:40 AM GMT- IP address: 104.47.74.126 Document e-signed by Michael Woo (michaelw@cupertino.org) Signature Date: 2022-08-05 - 0:27:21 AM GMT - Time Source: server- IP address: 73.189.58.134 Document emailed to Rachelle Sander (rachelles@cupertino.org) for signature 2022-08-05 - 0:27:23 AM GMT Email viewed by Rachelle Sander (rachelles@cupertino.org) 2022-08-05 - 1:48:49 PM GMT- IP address: 104.28.124.110 Document e-signed by Rachelle Sander (rachelles@cupertino.org) Signature Date: 2022-08-05 - 3:08:19 PM GMT - Time Source: server- IP address: 64.165.34.3 Document emailed to Kirsten Squarcia (kirstens@cupertino.org) for signature 2022-08-05 - 3:08:22 PM GMT Email viewed by Kirsten Squarcia (kirstens@cupertino.org) 2022-08-05 - 3:23:24 PM GMT- IP address: 172.226.36.1 Document e-signed by Kirsten Squarcia (kirstens@cupertino.org) Signature Date: 2022-08-05 - 3:23:38 PM GMT - Time Source: server- IP address: 172.226.36.95 Agreement completed. 2022-08-05 - 3:23:38 PM GMT