1 AGREEMENT
RFP No. 23/24-1667 Expanded Learning Programs
This AGREEMENT is hereby entered into between Fontana Unified School District, hereinafter referred to as "DISTRICT", and City of Fontana hereinafter referred to as "CONSULTANT."
WHEREAS, DISTRICT is authorized by Section 53060 of the California Government Code to contract with and employ any persons for the furnishing of special services and advice in financial, economic, accounting, engineering, legal or administrative matters, if such persons are specially trained, experienced and competent to perform the special services required; and WHEREAS, CONSULTANT is specially trained, experienced and competent to perform the special services required by the DISTRICT, and such services are needed by DISTRICT on a limited basis; CONSULTANT has reviewed the entirety of the AGREEMENT, including Exhibit "A" as to the Services to be provided, and represents and warrants that the CONSULTANT is qualified, has sufficient staff and expertise, licensed and certified where required, and availability to timely and fully perform the special services for the DISTRICT.
NOW THEREFORE, the parties agree as follows:
1. Incorporation of Recitals: The parties adopt and incorporate by reference the foregoing recitals as a term of the AGREEMENT.
2. Services to be Provided by CONSULTANT: SEE EXHIBIT "A" ATTACHED for detailed description of services.
3. Precedence of AGREEMENT Over Exhibits: Should there be any ambiguity or inconsistency between any exhibits to this AGREEMENT and the terms of this AGREEMENT, the terms of this AGREEMENT take precedence.
4. Term: The effective time period of this Agreement is July 1, 2024, through June 30, 2027, and subject to all provisions of the primary CDE Grant, as well as any subsequent contract modification or additional requirements by the CDE. If this Agreement differs from the primary Grant, then this Agreement governs the understanding between the DISTRICT and CONSULTANT, so long as this AGREEMENT does not abrogate any provision of the Grant. Pricing shall be held firm for the duration of the contract.
DISTRICT shall pay CONSULTANT in Net 30 Payment Terms, unless otherwise stated.
5. Compensation:
A. DISTRICT agrees to pay the CONSULTANT for services, SEE EXHIBIT "B", satisfactory rendered pursuant to this AGREEMENT, a total NOT TO EXCEED AMOUNT of:
Nineteen Million Two Hundred Eighty-Eight Thousand Two Hundred Sixty-Six Dollars and 0/100 Cents ($19,288,266.00.)
DISTRICT shall pay CONSULTANT in Net 30
Payment Terms, unless otherwise stated.
B. [NOT USED.]
C. CONSULTANT shall submit a monthly invoice for all Services rendered in accordance with this AGREEMENT within 30 days of providing such Services and shall include a reasonably descriptive invoice as to the services rendered, costs or sums billed over the time frame being billed. All invoices are to be sent to the school site/department that requested services to be signed by Principal/Department Head. Payment cannot be processed until signature of Principal/Department Head is on either Request for Payment Form or Invoice.
D. Upon early termination pursuant to the early termination provisions of this AGREEMENT, the DISTRICT shall pay CONSULTANT for all approved Services performed in accordance with 2 this AGREEMENT prior to the date of termination. Any amounts disputed and unpaid by the DISTRICT shall be withheld pending the outcome of the dispute resolution procedures set forth herein.
6. Expenses: DISTRICT shall not be liable to CONSULTANT for any cost or expenses paid for or incurred by CONSULTANT in performing services for DISTRICT, unless indicated in Paragraph 5 above, absent a prior signed written consent by an authorized DISTRICT representative as to the proposed expense absent which no costs or expenses of CONSULTANT shall be the responsibility or obligation of the DISTRICT to pay or reimburse. CONSULTANT shall oversee staff and service delivery per costs indicated in Paragraph 5.
7. Independent Contractor: CONSULTANT, in the performance of this AGREEMENT, shall be and act as an independent contractor and as such, is subject to direction of DISTRICT as to the result to be accomplished and not as the means and manner by which such results is to be accomplished.
CONSULT ANT understand and agrees that CONSULTANT and all of CONSULTANT's employees shall not be considered officers, employees or agents of the DISTRICT, and are not entitled to benefits of any kind or nature normally provided to employees of the DISTRICT and/or to which DISTRICT'S employees are normally entitled, including, but not limited to, State Unemployment Compensation or Workers' Compensation. CONSULTANT assumes full responsibility for the acts and/or omissions of CONSULTANT'S employees or agents as they relate to the services to be provided under this AGREEMENT. CONSULTANT shall have no authority, express or implied, to bind DISTRICT in any manner, nor to incur any obligation, debt or liability of any kind or behalf of, or against, DISTRICT, whether by contractor or otherwise, unless such authority is expressly conferred to CONSULTANT under this AGREEMENT or is otherwise expressly conferred by DISTRICT in writing.
CONSULTANT shall assume full responsibility for payment of all federal, state, and local taxes or contributions, including unemployment insurance, Social Security, and income taxes with respect to CONSULTANT'S employees. CONSULTANT covenants and agrees to defend, indemnify, and hold harmless the DISTRICT from any loss, damage or sums claimed as against the DISTRICT by reason of CONSULTANT's breach or failure to perform as recited.
Removal of Employees or Agents: If any of CONSULTANT's officers, employees, agents, contractors, subcontractors or subconsultants is determined by the DISTRICT Representatives to be uncooperative, incompetent, a threat to the adequate or timely performance of the tasks assigned to CONSULTANT, a threat to persons or property, or if any of CONSULTANT' s officers, employees, agents, contractors, subcontractors or subconsultants fail or refuse to perform the Work in a manner acceptable to the DISTRICT in the DISTRICT's sole unfettered discretion, such officer, employee, agent, contractor, subcontractor or subconsultant shall be promptly removed by CONSULTANT and shall not be re-assigned to perform any of the Work.
8. Conflicts of Interest: CONSULTANT warrants and covenants that CONSULTANT presently has no interest in, nor shall any interest be hereinafter acquired in, any matter which will render this AGREEMENT a violation of any applicable state, local, or federal law, or District policy, regarding conflicts of interest, including, but not limited to, Government Code section 1090. CONSULTANT shall comply with all provisions of the Political Reform Act and implementing regulations, as applicable, and in accordance with the DISTRICT's Conflict of Interest Code. If any principal CONSULTANT of the Services is a "consultant" for the purposes of the Fair Political Practices Act (Gov. Code § 81000 et seq.), each such person shall comply with Form 721 Statement of Economic Interests filing requirements in accordance with state or local Conflict of Interest Code. If any conflict of interest should hereinafter arise, CONSULTANT shall promptly notify DISTRICT of the existence of such conflict of interest. The existence of a conflict of interest which violates any applicable state, local, or federal law, or DISTRICT policy shall be cause for immediate termination of this AGREEMENT.
3 9. Non-Discrimination: In the performance of this AGREEMENT, CONSULTANT shall not discriminate against any employee, subcontractor, subconsultant, or applicant for employment because of race, color, creed, religion, sex, marital status, sexual orientation, national origin, ancestry, age, physical or mental disability or medical condition as well as any further protected classes or protections against discrimination not expressly recited.
10. Material: CONSULTANT shall furnish, at his/her own expense, all labor, materials, equipment, supplies and other items necessary to complete the services to be provided pursuant to this AGREEMENT, unless otherwise arranged with site. CONSULTANT's services will be performed, findings obtained, reports and recommendations prepared in accordance with generally and currently accepted principles and practices of his/her profession.
11. Originality of Services: CONSULTANT agrees that all technologies, formulas, procedures, processes, methods, writings, ideas, dialogue, compositions, recordings, teleplays, and video productions prepared for, written for, submitted to the DISTRICT and/or used in connection with this AGREEMENT, shall be original to CONSULTANT and shall not be copied in whole or in part from any other source, except that submitted to CONSULTANT by DISTRICT as a basis for such services.
12. Copyright/Trademark Patent: DISTRICT agrees that CONSULTANT shall use its previously developed and to-be-developed tools, surveys and other copyright and patent-protectable resources in fulfillment of this AGREEMENT. All such material shall remain the exclusive ownership of CONSULTANT with a limited right to use and reproduce those materials pr ovided to DISTRICT for its continued use and application of the training services which include workbook material and surveys. DISTRICT may not reproduce or in any way utilize these materials for competitive purposes or provide them to others including the use of the materials to provide substantially similar training outside of DISTRICT's own internal use.
13. Work Product Ownership: All reports, studies, information, data, statistics, forms, designs, plans, procedures, systems, work products, and other materials (collectively, the "Work Product") produced by CONSULTANT under this AGREEMENT shall be the property of DISTRICT and CONSULTANT. No Work Product produced, either in whole or in part, under this AGREEMENT shall be subject to private use, copyright, or patent by CONSULTANT in the United States or in any country without the prior written consent of the DISTRICT. The DISTRICT and CONSULTANT shall have unrestricted authority to publish, disclose, distribute, transfer, and use copyright or patent any Work Product produced by CONSULTANT under this AGREEMENT. No CONSULTANT, firm, or corporation may use the DISTRICT logo without pre-approval from the District's Superintendent or authorized designee.
14. Failure to Provide Satisfactory Service, Abandonment of Project. Cancellation of Agreement:
A. If, at any time during the performance of the AGREEMENT, DISTRICT determines, at DISTRICT'S reasonable discretion to suspend indefinitely or abandon the work under this AGREEMENT, DISTRICT shall have the right to cancel this AGREEMENT and terminate the performance of CONSULTANT's services hereunder. In the event of such cancellation, written notice shall be given at least one hundred eighty (180) days prior and in accordance with CDE Grant provisions. CONSULTANT may not terminate this AGREEMENT except for cause as provided under Section 14.B., below. If this AGREEMENT is terminated as provided herein, DISTRICT may require CONSULTANT to provide all finished or unfinished documents and data and other information of any kind prepared by CONSULTANT in connection with the performance of the professional services, and DISTRICT shall pay CONSULTANT for all approved services provided in accordance with this AGREEMENT up to the date of the notice of cancellation. CONSULTANT shall be required to provide such documents and data within fifteen (15) calendar days of DISTRICT's written request. No actual or asserted breach of this AGREEMENT on the part of DISTRICT pursuant to Section 14.B., below, shall operate to prohibit or otherwise restrict DISTRICT's ability to terminate this AGREEMENT for convenience as provided under this Section.
B. If CONSULTANT fails to perform after-school program service delivery as per grant/fundi ng provisions e stablished by the California Department of Education (CDE), After School Education and Safety Grant (ASES) and Expanded Learning Opportuniti es Program (ELO-P) 4 requirements, the DISTRICT may terminate this AGREEMENT, and DISTRICT shall be obligated to pay CONSULTANT only for those approv ed services performed by CONSULTANT in accordance with this AGREEMENT as of the effective date of such termination. If the cancellation is the result of DISTRICT’S decision to suspend indefinitely or abandon the work under this AGREEMENT, DISTRICT shall be obligated to pay CONSULTANT only for those services performed by CONSULTANT through the effective date of cancellation or termination. Within ten (10) business days of DISTRICT's issuance of a notice of te rmination for any failure of CONSULTANT to provide satisfactory performance, CONSULTANT is to provide DISTRICT or DISTRICT's employees or agents with any information and/or written reports, documentation, or work product which CONSULTANT is obligate d to provide to DISTRICT or DISTRICT's employees or agents under this AGREEMENT. CONSULTANT shall have ten (10) business days from the date of the notice of termination to fully cure all deficiencies stated in notice of termination to the reasonable satisfaction of the DISTRICT. Prior to the expiration of the 10-day cure period, CONTRACTOR may submit a written request for additional time to cure the unsatisfactory performance upon a showing that CONSULTANT has commenced efforts to cure the noted deficiencies and that the deficiencies cannot be reasonably cured within the 10-day cure period. The foregoing notwithstanding, DISTRICT shall be under no obligation to grant additional time for the cure of an Event of Default that exceeds fourteen (14) calendar days from the end of the initial 10- day cure period. The foregoing provisions are in addition to and not a limitation of any other rights or remedies available to the DISTRICT.
C. Early Termination: This AGREEMENT may be terminated as follows unless otherwise specified herein:
a. Mutual: The Parties may terminate this AGREEMENT at any time by mutual agreement in writing.
b. Breach: Either party may terminate this AGREEMENT in the event of a material breach by the other party. To be effective, the party seeking termination must give to the other party written notice of the breach and its intent to terminate. Said notice must describe the breach in sufficient detail to provide the other party with ten (10) business days’ notice and an opportunity to cure. Prior to the expiration of the 10-day cure period, the breaching party may submit a written request for additional time to cure the breach upon a showing that the breaching party has commenced efforts to cure the breach and that the breach cannot be reasonably cured within the 10-day cure period. The foregoing notwithstanding, the non-breaching party shall be under no obligation to grant additional time for the cure of a breach that exceeds fourteen (14) calendar days from the end of the initial 10-day cure period. c. CONSULTANT Licensing; Bankruptcy: Notwithstanding any other provision herein, DISTRICT may terminate this AGREEMENT immediately by written notice to CONSULTANT upon either of the following events: (1) denial, suspension, revocation, or non-renewal of any license, permit, insurance, or certificate that CONSULTANT must hold to perform the Services; or (2) in the event CONSULTANT files for bankruptcy.
d. Furlough: DISTRICT reserves the right to immediately terminate or otherwise suspend this AGREEMENT without notice if DISTRICT's Governing Board determines that funding for the Services (including If ASES and ELOP Grant funding) is insufficient to pay for all services required under this AGREEMENT.
15. Special Provisions:
A. If CONSULTANT is an individual, they shall complete the certification block on the "Request for Payment" form provided by DISTRICT stating whether or not CONSULTANT is a retired member of the State Teacher's Retirement System of the State of California .
B. This AGREEMENT may be amended by the mutual written consent of the parties hereto. Any amendment or modification of this AGREEMENT shall be effective only if it is in writing and signed by the parties.
5 16. Indemnification: DISTRICT and CONSULTANT mutually agree to and does hereby indemnify, hold harmless and defend the DISTRICT and CONSULTANT, its officers, agents and employees from every claim or demand made and every liability, loss damage or expense, of any nature whatsoever, which may be incurred by reason of:
A. Liability for damages for: (1) death or bodily injury to person; (2) injury to, loss or theft of property; or (3) any other loss, damage or expense arising out of (1) or (2) above, sustained by any person, firm or corporation employed either directly or by independent contract, upon or in connection with the services called for in this AGREEMENT, however caused, except for liability for damages referred to above which result from the sole negligence or willful misconduct of its officers, employees or agents .
B. Any injury to or death of any persons, its officers, agents and employees, or damage to or loss of any property caused by any act, neglect, default, or omission of any person, firm or corporation employed by the consultant, either directly or by independent contract, arising out of, or in any way connected with, services covered by this AGREEMENT, whether said injury or damage occurs either on or off DISTRICT'S property, except for liability for damages which result from the sole negligence or willful misconduct of the DISTRICT, its officers, employees or agents.
C. Any liability for damages which may arise from the furnishing or use of any copyrighted or uncopyrighted matter or patented or unpatented invention under this AGREEMENT.
D. DISTRICT shall have the right to offset against the amount of any compensation due CONSULTANT under this AGREEMENT any amount due DISTRICT from CONSULTANT as a result of CONSULTANT's failure to pay DISTRICT promptly any indemnification arising under this Article and related to CONSULTANT's failure to either (i) pay taxes on amounts received pursuant to this AGREEMENT or (ii) comply with applicable workers' compensation laws.
17. Insurance: During the term of this AGREEMENT, at CONSULTANT's sole cost and expense, CONSULTANT agrees to procure and maintain the following insurance:
Comprehensive general liability insurance in an amount not less than $1,000,000 per occurrence and $2,000,000 aggregate per coverage year.
(Contract Services $1,000,000 or more: Per Occurrence $2,000,000 /Aggregate $4,000,000) If CONSULTANT's services, identified in paragraph 2 of the AGREEMENT, requires CONSULTANT to work directly with students or requires CONSULTANT to be in a site when students are present, Sexual Abuse/Molestation Coverage must be included under General Liability or obtained in separate policy in an amount of not less than $2,000,000 per occurrence and $4,000,000 aggregate. ____ Certificate of General Liability Insurance and Additional Insured Endorsement attached.
____ Certificate of Sexual Abuse and Molestation Coverage & Additional Insured Endorsement attached.
Automobile liability insurance in an amount not less than $1,000,000 per occurrence. ___ Certificate of Auto Liability attached.
Professional liability insurance (aka: errors and omissions or malpractice) in an amount not less than $1,000,000 per occurrence and $2,000,000 aggregate per coverage year.
____ Certificate of Professional Insurance is attached. Workers' Compensation insurance as required under California law with statutory limits an d Employers' Liability limits of $1,000,000 per disease or accident. The Workers' compensation policy shall be endorsed with a Waiver of Subrogation in favor of the DISTRICT for all work performed by the CONSULTANT, its employees, and agents.
______Workers' Compensation Insurance Certificate attached and Waiver of Subrogation endorsement, OR
______Sole Proprietor / No Workers' Compensation Insurance is required. CONSULTANT must attach District's certification stating CONSULTANT is an owner or a partner and is exempt from having to provide Workers' Compensation because of having no employees. 6 Cyber Liability Insurance with limits of not less than $2,000,000 for each occurrence and an annual aggregate of at least $2,000,000 covering claims involving privacy violations, information theft, damage to or destruction of electronic data, intentional and/or unintentional release of private data, alteration of electronic data, extortion and network s ecurity. Coverage is required only if (1) products or services related to information technology for hardware or software are provided to the District and (2) if Consultant has access to personally identifiable information of the District through the provision of such technology related products or services (required for web-based services or when CONSULTANT has access to DISTRICT's electronic data, personally identifiable information, and/or protected health information. _____ Certificate of Cyber Liability attached.
In addition, CONSULTANT agrees to provide an endorsement to its policy naming the DISTRICT as an additional insured and stating, "Such insurance as is afforded by this policy shall be primary, and any insurance carried by DISTRICT shall be excess and noncontributory." Prior to providing services under this AGREEMENT, CONSULTANT shall provide DISTRICT with certificates of insurance evidencing all coverages and endorsements required hereunder including a thirty (30) day written notice of cancellation or reduction in coverage. CONSULTANT agrees to name DISTRICT, its officers, agents, and employees as additional insured under said policy. Except for Errors and Omissions Liability and Professional Liability, CONSULTANT shall require the carriers of the above-required coverages to waive all rights of subrogation against DISTRICT, its officers, employees, agents, volunteers, contractors, and subcontractors. All varieties of insurance required under this AGREEMENT shall be procured from insurers admitted in the State of California and authorized to issue policies directly to California insureds. Except as otherwise provided elsewhere under this Article, all required insurance shall be procured from insurers, who according to the latest edition of the Best's Insurance Guide have an A.M. Best's rating of no less than A: VII. DISTRICT may also accept policies procured by insurance carriers with a Standard& Poor's rating of no less than BBB according to the latest published edition the Standard & Poor's rating guide. (This requirement can only be waived by the Director of Purchasing or Director of Risk Management).
18. Assignment: Neither party shall assign this AGREEMENT except as mutually agreed upon in writing by both parties.
19. Subcontracting: CONSU LTANT shall not subcontract any portion of the se rvices required by this AGREEMENT, except as expressly stated herein, without the prior written approval of DISTRICT.
Subcontracts (including without limitation subcontracts with subconsultants), if any, shall contain a provision making them subject to all provisions stipulated in this AGREEMENT, including provisions relating to insurance requirements and indemnification.
20. Confi dentiality: All data, documents, discussion, or other information developed or or provided fo r performance of this AGREEMENT are deemed confidential and shall not be disclosed to third parties without prior mutual written consent of both parties or unless legally required. Upon request, all DISTRICT data shall be returned to DISTRICT upon the termination or expiration of this AGREEMENT.
CONSULTANT shall not use DISTRICTs name or insignia, photographs, or any publicity relating to their service to DISTRICT in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of DISTRICT. As used herein, "Confidential Information" means all student data, pupil records, or other information that is privileged, confidential, not publicly available, which is covered federal or state privacy laws, rules, and regulations, or which is ot herwise considered confidential and protected from disclosure by the policies and procedures of DISTRICT.
CONSULTANT understands and agrees that all Confidential Information shall be preserved and protected as privileged or confidential, that Confidential Information shall be held strictly in accordance with applicable law and the DISTRICT' s policies and procedures, and that Confidential Information shall not be shared with any third party without the express written authorization of DISTRICT. All requirements under this paragraph shall be subject to any applicable laws, regulations, court orders, or other legal requirements which may require disclosure of any such information, documents, or Confidential Information. 7 21. Student Data Privacy: If CONSULTANT will provide technology services that involve the digital access, use, storage, or management of pupil records, then CONSULTANT must complete and attach a student data privacy certification for compliance with Education Code section 49073.1. The student data privacy certification is available through the DISTRICT. Pupil records includes any information directly related to a pupil that i s maintained by the DISTRICT or acquired directly from the pupil through the use of instructional software or applications assigned to the pupil by a DISTRICT employee.
22. Record Retention: The CONSULTANT shall maintain and preserve any and all written and electronic records relating to this Agreement, including without limitation, invoice support (e.g., hours and days worked and other detail) for a period of not less than three (3) years after final payment under this Agreement. The DISTRICT, its employees and agents and the Office of the State Auditor shall have the right to audit, examine, inspect, and copy any and all of CONSULTANT's records relating to th is Agreement at any time during normal business hours. Additionally, pursuant to Government Code Section 8546.7, the CONSULTANT is hereby advised that every contract involving the expenditure of public funds in excess of ten thousand dollars ($10,000.00) shall be subject to examination and audit of the State Auditor as specified in the Government Code.
23. Compliance with Applicable Laws: The services completed herein must meet the approval of the DISTRICT and shall be subject to the DISTRICT'S general right of inspection to confirm CONSULTANT is property performing after-school program service delivery as per grant/funding provision established by the California Department of Education (CDE), After School Education and Safety Grant (ASES), and Expanded Learning Opportunities Program (ELO-P) requirements in accordance with this AGREEMENT. CONSULTANT agrees to comply with all federal, state, and local laws, rules, regulations, and ordinances that are now or may in the future become applicable to CONSULTANT, CONSULTANT's business, equipment, and personnel engaged in operations covered by the AGREEMENT or accruing out of the performance of such operations.
24. Public Health Mandates and Orders — District Policies Compliance: CONSULTANT covenants and agrees to comply, directly and as to all employees, staff, contractors or others providing services under this agreement, with all California issued Public Health Mandates as to testing, vaccinations and other public health requirements, as well as to related laws and legal requirements as to school site and property access for reasons of the health and safety of students, staff and others.
25. Animals on Campus: Animals are not allowed on any school campus unless approved, in writing, from the DISTRICT.
26. Safety and Security: CONSULTANT shall perform all Services so as to avoid injury or dama ge to any person or property by exercising all necessary safety and security precautions as may be appropriate to the nature of the Services and the conditions under which the Services ar e to be performed. CONSULTANT further agrees to comply with all of the following:
a. Ide ntification: When performing Services on District property, CONSULTANT shall be in appropriate work attire (or uniform, if applicable) at all times. If CONSULTANT does not have a specific uniform, then CONSULTANT shall provide identification tags and/or any other mechanism the DISTRICT in its sole discretion determines is required to easily identify CONSULTANT, as opposed to faculty, staff, parents, students, or other members of the public. CONSULTANT and its employees shall (i) display on their clothes the above-mentioned identifying information and (ii) carry photo identification and present it to any DISTRICT personnel upon request. If CONSULTANT cannot produce such identification or if the identification is unacceptable to DISTRICT, DISTRICT may provide at its sole discretion, District-produced identification tags to CONSULTANT, costs to be borne by CONSULTANT.
b. Sign -in Required: As required by schools and other DISTRICT locations , CONSULTANT personnel must sign into the location's main office to receive an in- school identification/visitor tag. Such individuals must display this tag on their person at all times while on DISTRICT property.
8 27. Fingerprinting: This AGREEMENT is subject to the provisions of Education Code Section 45125.1. Any CONSULTANT's employees who interact with pupils, outside the immediate supervision and control of the pupil's parent or guardian or a school employee, must have a valid criminal records summary, by submitting fingerprints to the Department of Justice. When CONSULTANT performs the criminal background check, CONSULTANT shall immediately provide any subsequent arrest and conviction information it receives to the DISTRICT. The Department of Justice will ascertain whether the employee, whose fingerprints were submitted, has been arrested or convicted of any crime insofar as that fact can be ascertained from information available to the Department of Justice. CONSULTANT shall not permit an employee to come in contact with students until the Department of Justice has ascertained that the employee has not been convicted of a felony as defined in E ducation Code Section 45122.1 CONSULTANT shall provide DISTRICT with a list of names of employees who may come in contact with students and must certify in writing to the DISTRICT that none of its employees who may come in contact with students have been convicted of a felony as defined in Education Code Section 45122.1.
DISTRICT may request the removal of an employee from a DISTRICT site at any time. Failure to comply with this provision may result in termination of the AGREEMENT. Certification Form is attached hereto.
28. False Claims Act: CONSULTANT warrants and represents that neither CONS ULTANT nor any person who is an officer of, in a managing position with, or has an ownership interest in CONSULTANT has been determined by a court or tribunal of competent jurisdiction to have violated the False Claims Act, 31 U.S.C. Section 3789 et seq. and the California False Claims Act, Government Code Section 12650 et seq.
29. Drug Free Workplace Certification: CONSULTANT shall apprise its officials and employees of the Drug- Free Workplace Act of 1990 (Govt. Code Section 8350 et seq.) (hereinafter, the "Act") which requires that every person or organization awarded a contract or grant for the procurement of property or services from any State agency must certify that it will provide a drug-free workplace by doing certain specified acts. In addition, the Act provides that each contract or grant awarded by a state agency may be subject to suspension of payments or termination of the contract or grant, and the contractor or grantee may be subj ect to debarment from future contracting, if the contracting agency determines that specified acts have occurred.
CONSULTANT shall comply with the requirements publication and notification requirements of Government Code Section 8355 as to all employees performing services and tasks under this AGREEMENT on DISTRICT property or from DISTRICT facilities.
30. Permit/Licenses: CONSULTANT and CONSULTANT'S employee(s) or agent(s) shall secure and maintain in force such permits and licenses as are required by law in connection with the furnishing of services pursuant to this AGREEMENT.
31. [NOT USED.]
32. Time is of the Essence: Time is of the essence for each an d every provision of this AGREEMENT.
33. Entire Agreement/Amendment: This AGREEMENT and any exhibits attached hereto constitute the entire AGREEMENT among the parties to it and supersedes any prior or contemporaneous understanding or AGREEMENT with respect to the services contemplated and may be amended only by a written amendmen t executed by both parties to the AGREEMENT.
34. Non-Waiver: The failure of DISTRICT or CONSULTANT to seek redress for violation of, or to insist upon the strict performance of any term or condition of the AGREEMENT, shall not be deemed a waiver by that party of such term or condition, or prevent a subsequent similar act from again constituting a violation of such term or condition.
35. Notice: All notices or demands to be given under this AGREEMENT by either party to the other, shall be in writing and given either by: (a) personal service or (b) by U.S. Mail, mailed either by registered or certified mail, return receipt requested, with postage prepaid. Service shall be considered given when received, if personally served, or if mailed on the third day after deposit in any U.S. Post Office. The address to which notices or demands may be given by either party may be changed by written notice given in accordance with the notice provisions or this section. At the date of this AGREEMENT, the addresses of the parties are as follows:
9 DISTRICT:
FONTANA UNIFIED SCHOOL DISTRICT
9680 CITRUS AVENUE
FONTANA, CA 92335
CONSULTANT:
CITY OF FONTANA
COMMUNITY SERVICES DEPARTMENT
8353 SIERRA AVENUE
FONTANA, CA 92335
E-MAIL: [email protected]
36. Severability: If any term, condition, or provisions of this AGREEMENT is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions will nevertheless continue in full force and effect, and shall not be affected, impaired or invalidated in any way.
37. Disputes:
a. Resolution Procedures: Any dispute that either Party may have regarding this AGREEMENT, including, but not limited to, disputes for additional compensation, shall be submitted to DISTRICT within 30 days of the occurrence which gave rise to the dispute. DISTRICT and CONSULTANT shall attempt to negotiate a resolution of such dispute and process an amendment to this AGREEMENT to implement the terms of such resolution. If the dispute cannot be resolved through direct discussions, the Parties agree to first endeavor to resolve th e dispute in an amicable manner by non-binding mediation under the applicable rules of th e Judicial Arbitration and Mediation Service (JAMS), or other similar organization mutually selected by the Parties. If any unresolved controversy or claim arising out of or relating to this AGREEMENT, or breach thereof, remains after mediation, the matter shall be determined in a court of law of proper jurisdiction which shall be in the state of California, County of San Bernardino.
b. Services Pen ding Outcome: Unless the AGREEMENT has been terminated pursuant to the early termination provisions of this AGREEMENT, CONSULTANT agrees to continue to perform all Services required under this AGREEMENT pending the outcome of any claim, dispute, or mediation and DISTRICT agrees to make payment for all undisputed costs provided in accordance with this AGREEMENT.
c. Claims Statute Requirement: This provision does not relieve CONSULTANT of its obligation to timely comply with all applicable provisions of the Government Claims Act before initiating any legal proceeding
against the DISTRICT.
d. Remedies: In case of breach by a party, and in addition to any other provision of this Agreement, the non-breaching party shall be entitled to any other available legal and equitable remedies.
38. Governing Law: The terms and conditions of this AGREEMENT shall be governed by the laws of the State of California. In the event of any dispute or litigation between the DISTRICT and CONSULTANT, the prevailing party shall be entitled to recover all reasonable legal fees, costs, and other expenses.
39. Warranty of Authority: The undersigned warrant that they are duly authorized representatives of the Parties and have been empowered to execute this AGREEMENT on behalf of the party indicated.
Please check one of the following:
I am a retiree who falls under CalSTRS
I am a retiree who falls under CalPERS
I am an active employee who falls under CalSTRS
I am an active employee who falls under CalPERS
YES/NO
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10 CONSULTANT
Signature Date
Type/Print Name & Title
Phone Number
Email Address
Address
Taxpayer Identification Number (TIN)
FONTANA UNIFIED SCHOOL
DISTRICT
Leslie Barnes, Ed.D. Date
Associate Superintendent, Business Services