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Original to: Strada Collaborative, Inc. d/b/a Roadtrip Nation NOVA AGREEMENT BETWEEN CITY OF SUNNYVALE AND STRADA COLLABORATIVE, INC. FOR YOUTH WORKFORCE DEVELOPMENT SERVICES This Agreement (“Agreement”) is made on ____________________, 2023 between the City of Sunnyvale, a California chartered municipal corporation (hereinafter referred to as “City”), on behalf of the NOVA Workforce Board (“NOVA”), and Strada Collaborative, Inc., d/b/a Roadtrip Nation, an Indiana 501(c)(3) nonprofit educational and training institution (hereinafter referred to as “Contractor,” “Roadtrip Nation,” or “RTN”). Whereas, City has applied for and been granted funds from the State of California to provide workforce development services to youth under the Workforce Innovation and Opportunity Act (WIOA) Title I; and Whereas, the NOVAworks Foundation has applied for and been granted funds from Google LLC through the Tides Foundation, the James Irvine Foundation, and LinkedIn to support the work of the NOVAworks Foundation that includes developing innovative programs that advance economic sustainability for workers in transition and for new entrants to the labor market; and Whereas, under this Agreement, Contractor is participating in the operation of such youth services as a contractor of funds; and Whereas, City and Contractor are required to execute an Agreement wherein they agree to adhere to and comply with the conditions and requirements established for use of the funds of this grant; Now, therefore, it is agreed: 1. Terms and Conditions: Contractor agrees to comply with requirements in accordance with the following:
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(a) Program Design and Standards – Exhibit A; (b) Special Provisions – Exhibit B; (c) Assurances and Certifications – Exhibit C; (d) Budget and Method of Payment – Exhibit D; and (e) Exhibit E. The above-referenced Attachments and Exhibits are incorporated by reference as though fully set forth herein. 2. Term of Agreement: August 14, 2023 through August 13, 2025 3. Funding Limit: $755,000 (WIOA: $605,000; NOVAworks Foundation: $150,000) 4. Agreement Number: 001-301-24 5. State of California Subgrant No: AA311021/AA411021 6. Assistance Listing # (formerly known as CFDA #): 17.259 (youth) Signatures on next page.
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The parties, by and through their authorized representatives as indicated below, hereby acknowledge and agree to the terms and conditions of this Agreement. CITY OF SUNNYVALE STRADA COLLABORATIVE, INC. d/b/a ROADTRIP NATION BY: BY: NAME: Teri Silva NAME: Mike Marriner TITLE: Assistant City Manager TITLE: President APPROVED AS TO FORM: By_______________________________ Susan Yoon Assistant City Attorney Exhibit A Agreement No. 001-301-24 Page 4 of 38
PROGRAM DESIGN AND STANDARDS I. PROGRAM DESIGN A. PROJECT OVERVIEW: The following is a programmatic description of what will be accomplished during the contract period. Today’s young adults are navigating an uncertain path which requires a lifelong learning approach to continue to grow in the context of a rapidly changing labor market. Many jobs that will exist in the next decade haven’t been invented yet. In addition, the COVID-19 pandemic has further accelerated trends in automation, remote work, and necessitated a reevaluation of current skills and priorities. It has also intensified the growing inequities in access for marginalized communities. As a result, there is greater urgency to stay informed about future career opportunities and the skills that will be needed for these new careers which may require advanced education and training. Essential workers, disproportionately impacted by the pandemic, will need additional guidance and training to pursue new sustainable careers. Diverse populations will benefit from a unique set of strategies and tactics to ensure equal access to future opportunities and a more inclusive talent pool. Roadtrip Nation, in partnership with NOVA Workforce Services (“NOVAworks”), a department of the City of Sunnyvale (“City”), seeks to transform the current narrative around the future of work, shifting from fear and uncertainty to empowerment, innovation and hope for the opportunities that lie ahead. B. SCOPE OF SERVICES Under the direction of the City, Contractor is responsible for providing the following services: 1) Community Landing Page a. Contractor will develop and host a Silicon Valley community landing page (the “Landing Page”) that will be publicly accessible by viewers without requiring end users to create an account. Phase 1 will begin at a date to be determined; Phase 2 will begin at a date to be determined. NOVAworks will provide one logo for inclusion in the Landing Page. NOVAworks reserves the right to add additional logos of funders and contributors, provided, however, that any such funders and contributors shall execute Exhibit E and provide a copy to Contractor. b. The Landing Page will include the following elements: 1. Video Content. Feature thematic Contractor interview videos, documentary films, and day in the life video segments. 2. Action Tiles. Include a maximum of eight (8) custom action tiles or resources that link to additional resources provided by NOVAworks. a. NOVAworks may suggest and provide relevant content for these action tiles, such as links, videos and downloads. b. Contractor reserves the right to approve all NOVAworks content related to the Landing Page described herein. 3. Roadtrip Nation Experience. Contractor will provide access to its opportunity youth, work-based project experience (the “Roadtrip Nation Experience”) through a link to Exhibit A Agreement No. 001-301-24 Page 5 of 38
Contractor’s publicly facing Roadtrip Nation Experience page, for mentors/educators to help students develop the skills necessary to successfully navigate authentic career exploration. NOVAworks and City acknowledge that access to Roadtrip Nation Experience is subject to RTN’s Terms of Use and Privacy Policy. c. Contractor will maintain the Landing Page for a term of two (2) years from the Phase 2 launch date (the “Landing Page Term”). The Phase 2 launch date is scheduled for a date to be determined. The Landing Page Term may be extended in writing by the mutual agreement of the parties, provided that any such extension shall be subject to an annual maintenance fee to be agreed by the parties. d. The Landing Page and all content featured or included therein is provided on an “as is” and “as available” basis without any warranties of any kind, and Contractor expressly disclaims any and all warranties, whether express or implied, including, but not limited to, the implied warranties of merchantability, title, fitness for a particular purpose, and non-infringement. NOVAworks and City acknowledge that Contractor does not warrant that access to the Landing Page will be uninterrupted, timely, secure, error-free or virus-free, nor does it make any warranty as to the results that may be obtained from use of the Landing Page. e. NOVAworks may subcontract its rights and responsibilities under this Community Landing Page Section (Section I.B.1), including the funding of the Landing Page. 2) Custom Videos Contractor will create custom videos in cooperation with NOVAworks (the “Custom Videos”), which will be featured on the NOVAworks Landing Page and will also be contained within Contractor’s Interview Archive. a. Custom Video Production. Contractor will conduct a maximum of eight (8) video interviews featuring individuals identified by NOVAworks, resulting in thirty-plus (30+) short-form videos. (The custom video production process described herein shall be completed by a date to be determined.) 1. Production Timeline. a. Pre-production. NOVAworks is responsible for identifying interviewees and providing contact info or introductions to interviewees; Contractor is responsible for scheduling and preparing interviewees. The filming will be conducted virtually, to be mutually agreed to by both Contractor and NOVAworks. (Pre-production shall be completed by a date to be determined.) b. Production. Contractor to carry all on-site production logistics. (Production shall be completed by a date to be determined.) c. Post-Production. Includes the footage ingestion, editing, color correction, audio mixing and exporting of all interview videos. Contractor to carry all post-production work and NOVAworks may review videos using the following protocol. (Post-production shall be completed by a date to be determined.) 2. Review Protocol. a. Contractor will share one (1) initial rough cut of each edited video with NOVAworks for review. NOVAworks may provide Contractor with Exhibit A Agreement No. 001-301-24 Page 6 of 38
feedback and comments regarding each video; however, NOVAworks understands and agrees that its right to approve the videos shall be limited to purported factual misrepresentations, slanderous statements, and any statements or representations that in NOVAworks' reasonable opinion at the time of review would disparage or otherwise impair the reputation of the City within a video. Notwithstanding the forgoing, Contractor will in good faith consider NOVAworks’ suggestions of any other nature; however, both parties understand and agree that Contractor retains final creative control of each video produced pursuant to the terms of this plan. b. In order to ensure that Contractor adheres to its production schedule, NOVAworks will provide its feedback and comments to Contractor in writing within five (5) business days of receipt of the video interview. If NOVAworks does not respond within such five-business day period, the video will be deemed approved by NOVAworks. c. If the issues within a certain video are significant enough that NOVAworks feels it necessary to see a second cut before approving such video, NOVAworks shall request one (1) additional review in writing to Contractor and Contractor will share the re-edited version with NOVAworks. NOVAworks shall provide any further comments to Contractor in the same manner and time frame as provided in the previous subsection. 3. Custom Video License and Term. Roadtrip Nation shall solely and exclusively own all intellectual property rights in and to the Custom Videos; however, Roadtrip Nation grants to NOVAworks a non-exclusive, non-transferrable, royalty-free right and license (“License”) to each of the Custom Videos commencing as of the delivery date of each video and continuing for five (5) years (“Custom Video License Term”). The Licenses to each of the Custom Videos will automatically renew upon the expiration of the Custom Video License Term, and will continue for successive periods of one year’s duration under the same terms and conditions stated in this Section I.B.2, subsection 3, unless either party gives at least 60 days’ written notice to the other party that the License is to terminate at the end of the Custom Video License Term or at the end of any successive period of one year. During the Custom Video License Term, NOVAworks may use the Custom Videos in connection with the Landing Page, social media channels, as well as for internal purposes, such as presentations. NOVAworks may not edit or alter the Custom Videos, unless approved by Roadtrip Nation. The license for the Custom Videos may be renewed at no cost to NOVAworks beyond the Custom Video License Term, with a writing signed by the parties. Notwithstanding the expiration of the Custom Video License Term, NOVAworks may continue to use the Custom Videos for internal purposes and historical or archival records, and may request, on a case by case basis, permission from Roadtrip Nation to use individual Custom Videos for other purposes.
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3) Roadtrip & Special a. Creation of Roadtrip & Special. Seeking to highlight stories of inspiring professionals from diverse backgrounds who have found unique ways to overcome hurdles and achieve career successes, RTN will launch a roadtrip called the Future of Silicon Valley & San Mateo Workforce Roadtrip (“Roadtrip”), funded by the City, with a team of three individuals who will hit the road and interview inspiring leaders and professionals across the Silicon Valley and San Mateo County who have successfully pursued a variety of emerging career pathways. The conversations between leaders and roadtrippers during the Roadtrip will be filmed using the RTN model and content production infrastructure to create a one-hour or episodic video (the “Special”) to be produced and edited from the Roadtrip footage. 1. Project Description of Roadtrip. Traveling throughout the Silicon Valley and San Mateo County on a five-day Roadtrip, three individuals (“roadtrippers”) will interview leaders from all walks of life, including information technology, hospitality, healthcare, manufacturing, biotech, and other growing industries who have defined their own roads in life. Alongside RTN, the roadtrippers will be tasked with researching prospective leaders they admire and will make the final decision in determining who to interview. RTN will work with the selected team of roadtrippers to help plan their route and train them in driving the RTN Green RV and other factors necessary for conducting the trip. RTN will cover all RV expenses and provide a per diem to cover the cost of the roadtrippers’ meals and travel-related expenses during the trip. In addition, a two-person RTN camera crew will be along for the ride to mentor the roadtrippers, facilitate the experience, and capture video footage in HD. (This item is scheduled to be completed by a date to be determined.) 2. Digital Application. RTN will create and share with NOVAworks a digital application link to promote via NOVAworks’ channels. The application questions will be designed to convey why applicants are interested in going on the Roadtrip, including a simple video response to provide more in-depth information about applicants’ personal stories and backgrounds. RTN will review all applicants and identify favorable candidates based on team dynamics, diversity of backgrounds, personal stories, and each applicant’s need for an experience like this. RTN will make the final selection of roadtrippers from the group of finalists. The NOVAworks logo will be featured on the application. (This item is scheduled to be completed by a date to be determined.) 3. Roadtrip Hub. A dynamic landing page to house all things related to the Roadtrip including, but not limited to, the Roadtrip route and featured interviews, as well as the Roadtrip trailer and final documentary content. NOVAworks’s linkable logo will be featured on each page of the site. (This item is scheduled to be completed by a date to be determined.) 4. Video Content. As part of this project, RTN will produce a variety of video content from the Roadtrip made available for distribution through the channels specified herein. The video content will include: a. Special. A one-hour or episodic Special to be produced and edited from the Roadtrip footage, which will be completed by a date to be determined.
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b. Trailer. A trailer of the Special to be distributed and promoted through RTN’s and NOVAworks’s digital channels by a date to be determined. NOVAworks’s logo will be featured at the end of the trailer. c. Documentary Clips. Two edited excerpts from the documentary content, which NOVAworks may share on its social media channels. NOVAworks’s logo will be featured at the end of each video. (This item is scheduled to be completed by a date to be determined.) d. Roadtrippers’ Backstory Videos. RTN will film and edit a backstory video for each selected roadtripper, highlighting the roadtrippers’ upbringings, experiences and interests. These videos will be included on the Roadtrip Hub. This content does not contain logos. (This item is scheduled to be completed by a date to be determined.) e. Interview Archive Full-Length Interview Videos. Interviews from the Roadtrip will also be produced and edited into individual profile videos, roughly three (3) to five (5) minutes in length, to be housed in the RTN Interview Archive, which serves as the foundation and gateway to RTN’s other tools and resources. RTN will make a good faith effort to ensure that this content is appropriately represented in the archive in a meaningful way to students, at RTN’s discretion. This content does not contain logos. (This item is scheduled to be completed by a date to be determined.) f. Leader Interview Highlights. Edited excerpts from the Roadtrip content, roughly 60 seconds in length, and integrated within the RTN Interview Archive. This content does not contain logos. (This item is scheduled to be completed by a date to be determined.) g. Leader Web Exclusives. Additional bonus content not captured within the Highlight or Full-Length Interview will be created for the RTN Interview Archive. This content does not contain logos. (This item is scheduled to be completed by a date to be determined.) h. Leader Excerpts. Short clips from within the larger Full-Length Interviews will be created for the RTN Interview Archive. This content does not contain logos. (This item is scheduled to be completed by a date to be determined.) 5. NOVAworks may provide RTN with feedback and comments regarding the application format, specifically logo placement, referenced above in Section I.B.3.a.2, before they are made available to applicants; the landing page referenced above in Section I.B.3.a.3, before the landing page goes live; and the video content containing the NOVAworks logo referenced above in Section I.B.3.a.4, before the distribution of such video content. NOVAworks understands and agrees that its right to approve the above shall be limited to purported factual misrepresentations, slanderous statements, and any statements or representations that in NOVAworks’ reasonable opinion at the time of review would disparage or otherwise impair the reputation of the City. Notwithstanding the forgoing, RTN will in good faith consider NOVAworks’ suggestions of any other nature; however, both parties understand and agree that RTN retains final creative control of the material created pursuant to the terms of this plan.
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b. Cancellation and Reinstatement of Roadtrip. The parties acknowledge that while the delay, suspension or termination of the Roadtrip is extremely unlikely, RTN must nevertheless reserve the right to do so in order to ensure the safety and well-being of the Roadtrip crew, the RTN staff, and the integrity of RTN and its contributors (including NOVAworks). RTN will do everything in its power to ensure the successful completion the Roadtrip, and will not delay, suspend or terminate until it determines that all options for preserving the Roadtrip and/or completing the Special have been exhausted and the issues affecting the Roadtrip (death, severe injury, act of God, for example) cannot be resolved during the timeframe of the Roadtrip. If the Roadtrip is delayed, suspended or terminated, RTN will work with NOVAworks on timing and other logistics, and reinstate the Roadtrip or institute an alternative plan for completing the Special (and other Obligations, if applicable), as soon as reasonably practicable. In the event Roadtrip is cancelled, NOVAworks shall thereafter have no further obligations under this Agreement, including no further obligations to make additional payments to RTN. c. License of Special and Other Video Content. RTN grants to NOVAworks a non-exclusive, non-transferrable, royalty-free right to exhibit the Special, Trailer, Documentary Clips, Roadtrippers’ Backstory Videos, Leader Web Exclusives, Leader Excerpts, and Leader Interview Highlights (as such terms are defined herein, and collectively, the “Licensed Content”) for Non-Commercial, non-public broadcast purposes for a period of five (5) years commencing as of the first broadcast date of the Special (the “Special License Term”). The licenses to each of the Licensed Content will automatically renew upon the expiration of the Special License Term, and will continue for successive periods of one year each under the same terms and conditions stated in this Section, unless either party gives at least 60 days’ written notice to the other party that the License is to terminate at the end of the initial period of five years or at the end of any successive period of one year. For the purposes of this Agreement, “Non-Commercial” shall mean that NOVAworks may not exploit the Licensed Content for any kind of remuneration; however, nothing shall prevent NOVAworks from using the Licensed Content for marketing or promotional purposes as otherwise permitted in the Agreement or the Plan. NOVAworks may not edit or alter the Licensed Content, which must be presented as originally delivered. Any other proposed use of the Licensed Content must be approved by RTN. Any changes to the Special License Term or successive periods described herein must be made in writing and signed by both NOVAworks and RTN. In addition to the license rights granted herein, NOVAworks shall have the right to link to all other content created by RTN and delivered to NOVAworks pursuant to the Plan. d. Distribution of Special and Other Video Content. 1. Channels. The Licensed Content shall be distributed through the following channels: public television, RTN education network. 1. The following applies to distribution through public television: a. Underwriting Credit. Before and after each broadcast on public television, NOVAworks will receive an on-air underwriting credit. Specific content must meet American Public Television (“APT”) Guidelines and will be produced by RTN in cooperation with Exhibit A Agreement No. 001-301-24 Page 10 of 38
NOVAworks. (This item is scheduled to be completed by a date to be determined.) b. Public Television Guidelines. RTN is always open to exploring additional ways for NOVAworks to be involved. However, with respect to the Roadtrip and the Special, RTN must adhere to APT Funding Guidelines, which restrict a funder’s influence in the design, implementation, and editing of content aired on public television to stay true to the vision of independent public media. Additionally, the Special must comply with APT Credit Guidelines and/or National Educational Telecommunications Association (NETA) Underwriting Credit Guidelines, as applicable, which ensure that RTN will have sole creative and editorial control of the documentary. Copies of the APT Funding Guidelines, APT Credit Guidelines, and NETA Underwriting Credit Guidelines are incorporated herein by reference. Some of the ways these APT guidelines pertain to the Special are outlined, below: i. Funders may not review applications or influence the selection of the roadtripper team. ii. Funders may not dictate interviewees, interview questions, or the route of the Roadtrip. iii. Funders may not require product placement or brand mention in documentary. iv. Funders may not influence the creative direction of the documentary or review any cuts of footage. v. Funders may not restrict licensing of the documentary. vi. Funders may not suggest a title for the documentary. c. Alternate Distribution. RTN shall take reasonable steps to ensure public television distribution for the Special; however, in the extremely unlikely event that the Special is rejected for public television distribution, RTN shall use its best efforts to secure alternative distribution for the Special. 4) Screening Event RTN and NOVAworks will cooperate on hosting a screening event to mark the launch of the Roadtrip broadcast, to celebrate the roadtrippers’ experience, and to showcase the produced content. (This item is scheduled to be completed by a date to be determined.) Event ideas include, but are not limited to: a. Coordination with existing event(s) or conferences that a Party is attending or sponsoring. b. Panel discussions to facilitate conversation around the theme of the Roadtrip and bring together thought leaders in the space. c. Invitation to local media to attend events and raise public awareness. 5) Publicity Contractor shall provide to NOVAworks specific messaging regarding the program to be shared with the public by NOVAworks. All social media posts, media releases, public announcements, and marketing materials related to the program must be approved by Contractor prior to release. With the exception of Contractor-approved messaging and any other pre-approved information provided by a party pursuant to the program, neither Exhibit A Agreement No. 001-301-24 Page 11 of 38
Contractor nor NOVAworks may use or refer to the name of the other party in any public disclosure without the prior written consent of the other party. All public communications shall comply with the Stevens Amendment for federally funded programs, projects, or activities. II. PROGRAM COORDINATION 1. NOVA Workforce Services Department Director Marléna Sessions, or her authorized designee, shall be the Program Manager for the City and shall render overall supervision of the progress and performance of this Agreement by City. All services agreed to be performed by City shall be under the overall direction of the Program Manager. 2. Contractor shall assign a Coordinator who shall have overall responsibility for the progress and execution of this Agreement. Should circumstances or conditions subsequent to the execution of this Agreement require a substitute Coordinator, Contractor shall notify City immediately of such occurrence. Contractor Coordinator and staff will fully cooperate with City relating to this Agreement. 3. All dates in this Agreement are subject to change for actions beyond the control of Contractor, including, but not limited to, delays in responses from City or potential interviewee scheduling conflicts. III. NOTICES All notices or correspondence required or contemplated by this Agreement shall be sent to the respective parties at the following addresses: City: Marléna Sessions, Director NOVA Workforce Services Department 456 West Olive Avenue Sunnyvale, CA 94086 Telephone: (408) 730-7837 Email: [email protected] Contractor: Kelsey Cox, Sr. Vice President, Program Management Roadtrip Nation 1626 Placentia Avenue Costa Mesa, CA 92627 Telephone: 949-300-3559 Email: [email protected] (copy to Strada Collaborative, Inc. Attn: General Counsel, 10 W. Market Street, Suite 1100, Indianapolis, Indiana 46204, Email: [email protected]) Exhibit A Agreement No. 001-301-24 Page 12 of 38
Nothing contained herein shall be construed to prohibit the parties from communicating by the most expedient method available, whether by commercial courier, facsimile, or by electronic means. However, for purposes of providing official notification and/or documentation as required in this Agreement, the sending party assumes full responsibility and the burden of proof for the completed transmission if the documents or notification are sent by means other than certified, first-class mail through the United States Postal Service.
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SPECIAL PROVISIONS S1 INSUFFICIENT FUNDING In the event that the U.S. Department of Labor or the Governor of the State of California fails to provide sufficient funding for implementation of the entire services as set forth herein, the amount set forth in this Agreement shall be reduced and the program shall be reduced proportionately. City shall endeavor to provide a minimum of ninety (90) days’ notice in the event of reduced funding. S2 ENTIRE AGREEMENT This Agreement, its exhibits, attachments, and references cited herein fully express all understandings of the parties concerning the matters covered herein. No addition to or alteration of the terms of this Agreement, and no other Agreements of the parties or their officers, agents, or employees, shall be valid unless made in the form of a written amendment to this Agreement duly approved and executed by the parties’ authorized representative(s). S3 PROCEDURE TO MODIFY THE AGREEMENT Contractor shall submit its request for changes in writing to the City’s Program Manager as identified in Exhibit A. Such modification requests must include a summary of the proposed revisions and justification for each. Modifications must be signed by both Contractor and City to effect modification. S4 INDEMNIFICATION To the fullest extent permitted by law, Contractor shall hold harmless, defend at its own expense, and indemnify the City and its officers, officials, employees, agents, and volunteers, against any and all liability, claims, losses, damages, or expenses, including reasonable attorney’s fees, arising from all negligent acts or omissions of Contractor or its officers, agents, or employees in rendering services under this Agreement; excluding, however, such liability, claims, losses, damages, or expenses arising from the City’s sole negligence or willful acts. The defense and indemnification obligations of this agreement are undertaken in addition to, and shall not in any way be limited by, the insurance obligations contained in this agreement. Contractor’s responsibility for such defense and indemnity obligations shall survive the termination or completion of this agreement. S5 LEGAL RELATIONSHIP 5.1 It is understood and agreed that Contractor is an independent contractor and that no relationship of employer-employee exists between the parties hereto; that Contractor shall not be entitled to any benefits available to employees of City; that City is not required to make any deductions from the compensation payable to Contractor under the provisions of this Agreement; that as an independent contractor, Contractor thereby holds City harmless from any and all claims that may be made against City based upon any contention by any Exhibit B Agreement No. 001-301-24 Page 14 of 38
third party that an employer-employee relationship exists by reason of this Agreement. It is further understood and agreed that Contractor has no authority to act for or on behalf of City other than acting as Contractor in carrying out and performing the terms of the Agreement. 5.2 The Federal Government and the State of California are not parties hereto and no legal liability on the part of the federal or state government is implied under the terms and conditions of this Agreement; any liabilities, legal actions or disputes as may arise under this Agreement are between the City and Contractor. 5.3 All powers not explicitly vested in Contractor by the Agreement remain with City. 5.4 Contractor, without additional expense to City, shall be responsible for obtaining any necessary licenses and permits, and for complying with any applicable federal, (including OSHA) state and municipal laws, codes and regulations. Contractor shall be similarly responsible for all damages to persons or property that occur as a result of Contractor fault or negligence. Contractor shall take adequate precautions to protect the work, the workers, the public, and the property of others. Failure to do so shall place Contractor in default of the terms of this Agreement. 5.5 If any provision of this Agreement is held invalid, the remainder of this Agreement shall not be affected thereby, if such remainder would then continue to conform to the terms and requirements of applicable law. 5.6 In no event shall any payment by City hereunder constitute or be construed to be a waiver by City of any breach of covenants or conditions of this Agreement or any default which may then exist on the part of Contractor. The making of any such payment shall not prejudice any right or remedy available to City with respect to such breach or default. 5.7 In no event shall a waiver by City of any of the provisions herein invalidate the remainder of the Agreement. S6 CONFLICT OF INTEREST Contractor shall maintain a written code of conflict of interest standards, shall comply with all applicable laws related to conflicts of interest, and will ensure that no actual or apparent conflict of interest under applicable law shall occur relative to the performance of this Agreement. Contractor agrees to immediately notify City of any facts that may give rise to a conflict of interest. Contractor is aware of the prohibition that no public officer or public employee shall have any interest, direct or indirect, in this Agreement or in the proceeds thereof. During the term of this Agreement, Contractor shall not accept employment or an obligation which is inconsistent or incompatible with Contractor’s conflict of interest obligations under this provision of this Agreement. Nothing in this provision shall be construed to prohibit Contractor from performing similar tasks for other government or private entities. S7 PERSONNEL Exhibit B Agreement No. 001-301-24 Page 15 of 38
7.1 Contractor represents that it has, or will secure at its own expense, all personnel required in performing the services under this Agreement. Such personnel shall not be employees of or be deemed thereby to have any contractual relationship with City. 7.2 All of the services hereunder will be performed by Contractor or under its supervision, and all personnel engaged in the work shall be fully qualified and shall be authorized under State and local law to perform such services. S8 INTELLECTUAL PROPERTY 8.1 Federal Funding If this Agreement is funded in whole or in part by the federal government, then City may acquire and maintain the intellectual property rights, title, and ownership which result directly or indirectly from the Agreement, except as provided in 37 CFR Part 401.14. However, pursuant to Uniform Guidance 2 CFR Part 200 and DOL Exceptions 2 CFR Part 2900, the federal government shall have a royalty-free, non-exclusive, irrevocable, paid-up license throughout the world to use, duplicate, or dispose of such intellectual property in any manner for governmental purposes and to permit others to do so. 8.2 Ownership a. Except where Contractor has agreed in a signed writing to accept a license, or as specified in Exhibit A, Section I. B. Scope of Services, Contractor shall be and remain without additional compensation, the sole owner of any and all rights, title and interest in all intellectual property, from the moment of creation, whether or not jointly conceived, that are made, conceived, derived from, or reduced to practice by Contractor or City and which result directly or indirectly from this Agreement. b. For the purposes of this Agreement, intellectual property means recognized protectable rights and interest such as: patents (whether or not issued), copyrights, trademarks, service marks, applications for any of the foregoing, inventions, trade secrets, trade dress, logos, insignia, color combinations, slogans, oral rights, right of publicity, author’s rights, contract and licensing rights, works, mask works, industrial design rights, rights of priority, know how, design flows, methodologies, devices, business processes, developments, innovations, goodwill, any data or information maintained, collected or stored in the ordinary course of business by City, and all other legal rights protecting intangible proprietary information as may exist now and/or hereafter come into existence, and all renewals and extensions, regardless of whether those rights arise under the laws of the United States, or any other state, country or jurisdiction. (1) For the purposes of the definition of intellectual property, “works” means all literary works, writings and printer matter including the medium by which they are recorded or reproduced, photographs, art work, pictorial and graphic representations and works of a similar nature, film, motion pictures, digital images, animation cells, and other audiovisual works including positives and negatives thereof, sounds recordings, tapes, educational materials, interactive videos, computer software and any other materials or products created, produced, conceptualized and fixed in a tangible medium of expression. It includes preliminary and final products and any Exhibit B Agreement No. 001-301-24 Page 16 of 38
materials and information developed for the purpose of producing those final products. “Works” does not include article submitted to peer review or reference journals or independent research projects. c. In the performance of this Agreement, Contractor may exercise and utilize certain of its intellectual property in existence prior to the effective date of this Agreement. In addition, under this Agreement, Contractor may access and utilize certain of City’s intellectual property in existence prior to the effective date of this Agreement. Except as otherwise set forth herein, Contractor shall not use any of City’s intellectual property now existing or hereafter existing for any purposes without the prior written permission of City. Except as otherwise set forth herein, neither Contractor nor City shall give any ownership interest in nor rights to its intellectual property to the other party. If, during the term of this Agreement, Contractor accesses any third-party intellectual property that is licensed to City, Contractor agrees to abide by all license and confidentiality restrictions applicable to City in the third party’s license agreement. 8.3 Retained Rights/License Rights a. Except for intellectual property made, conceived, derived from, or reduced to practice by Contractor or City and which result directly or indirectly from this Agreement, Contractor shall retain title to all of its intellectual property to the extent such intellectual property is in existence prior to the effective date of this Agreement. b. Nothing in this provision shall restrict, limit, or otherwise prevent Contractor from using any ideas, concepts, know-how, methodology or techniques related to its performance under this Agreement, provided that Contractor’s use does not infringe the patent, copyright, trademark rights, license or other intellectual property rights of City or third party, or result in a breach or default of any provisions of this section of Agreement or result in a breach of any provisions of law relating to confidentiality. 8.4 Intentionally Omitted 8.5 Intentionally Omitted 8.6 Third-Party Intellectual Property Except as provided herein, Contractor agrees that its performance of this Agreement shall not be dependent upon or include any intellectual property of Contractor or third party without first: 1) obtaining City’s prior written approval; and 2) granting or obtaining for City, without additional compensation, a license of any of Contractor’s or third-party’s intellectual property in existence prior to the effective date of this Agreement to the extent necessary for City to exercise its rights under this Agreement. 8.7 Warranties a. Contractor represents and warrants that: (1) It has secured and will secure all rights and licenses necessary for its performance of this Agreement. (2) Neither Contractor’s performance of this Agreement, nor the exercise by either party of the rights grant in this Agreement, nor any use, reproduction, manufacture, sale, Exhibit B Agreement No. 001-301-24 Page 17 of 38
offer to sell, import, export, modification, public and private display/performance, distribution, and disposition of the intellectual property made, conceived, derived from, or reduced to practice by Contractor or City and which result directly or indirectly from this Agreement will infringe upon or violate any intellectual property right, non-disclosure obligation, or other proprietary right or interest of any third-party or entity now existing under the laws of, or hereafter existing or issued by any state, the United States, or any foreign country. (3) Neither Contractor’s performance nor any part of its performance will violate the right of privacy of, or constitute a libel or slander against any person or entity. (4) It has secured and will secure all rights and licenses necessary for intellectual property including but not limited to consents, waivers or releases from all authors of music or performances used, and talent (radio, televisions and motion picture talent), owners of any interest in and to real estate, site locations, property or props that may be used or shown. (5) It has not granted and shall not grant to any person or entity any right that would or might derogate, encumber, or interfere with any of the rights grant to City in this Agreement. (6) It has appropriate systems and controls in place to ensure that state and federal funds will not be used in the performance of this Agreement for the acquisition, operation or maintenance of computer software in violation of copyright laws. (7) It has no knowledge of any outstanding claims, licenses or other charges, liens, or encumbrances of any kind or nature whatsoever that could affect in any way Contractor’s performance of this Agreement. b. City makes no warranty that the intellectual property resulting from this Agreement does not infringe upon any patent, trademark, copyright or the like now existing or subsequently issued. 8.8 Intellectual Property Indemnity a. Contractor shall indemnify, defend and hold harmless City and its licensees and assignees, and its officials, officers, directors, employees, agents, representatives, successors, and users of its products (“indemnities”) from and against all claims, actions, damages, losses, liabilities (or actions or proceedings with to any thereof), whether or not rightful, arising from any and all actions of claims by any third party or expenses related thereto (including but not limited to all legal expenses, court costs, and attorney’s fees incurred in investigating, preparing, serving as a witness in, or defending against, any such claim action or proceeding commenced or threatened) to which any of the Indemnities may be subject, whether or not Contractor is a party to any pending or threatened litigation, which arise out of or are related to (i) the incorrectness or breach of any of the representations, warranties, covenants or agreements of Contractor pertaining to intellectual property; or (ii) any intellectual property infringement, or any other type of actual or alleged infringement claim, arising out of City’s use, reproduction, manufacture, sale, offer to sell, distribution, import, export, modification, public and private performance/display, license, and disposition of the intellectual property made, conceived, derived from, or reduced to practice by Contractor or City and which would result directly or indirectly from this Agreement. This indemnity obligation shall apply irrespective of whether the infringement claim is based on a patent, trademark or copyright registration that was issued after the effective date Exhibit B Agreement No. 001-301-24 Page 18 of 38
of this Agreement. City reserves the right to participate in and/or control, at Contractor’s expense any such infringement action brought against City. If Contractor proposes to compromise any intellectual property rights of City as part of any settlement, such settlement shall proceed only with the written consent of City. For clarity, Contractor shall not have any indemnification obligations related to City’s use of any intellectual property in a manner that is not explicitly stated pursuant to the terms of this Agreement. b. Should any intellectual property license by Contractor to City under this Agreement become the subject of an intellectual property infringement claim, Contractor will exercise its authority reasonably and in good faith to preserve City’s right to use the licensed intellectual property in accordance with this Agreement at no expense to City. City shall have the right to monitor and appear through its own counsel at Contractor’s reasonable expense in any such claim or action. City's counsel shall be subject to Contractor's and Contractor's insurer's prior approval and such approval shall not be unreasonably withheld. In the defense or settlement of the claim, Contractor may obtain the right for City to continue using the license intellectual property or replace or modify the licensed intellectual property so that the replaced or modified intellectual property becomes non-infringing provided that such replacement or modification is functionally equivalent to the original licensed intellectual property. If such remedies are not reasonably available, City may be entitled to a refund of all monies paid under this Agreement, without restriction or limitation or any other rights and remedies available at law or in equity. c. Contractor agrees that damages alone would be inadequate to compensate City for breach of any term of these intellectual property provisions of this Section by Contractor. Contractor acknowledges City would suffer irreparable harm in the event of such breach and agrees City shall be entitled to obtain equitable relief, including without limitation an injunction, from a court of competent jurisdiction, without restriction or imitation of any other rights and remedies available at law or in equity. 8.9 Survival The provisions set forth herein shall survive any termination or expiration of this Agreement or any project schedule. S9 SUBCONTRACTING/ASSIGNMENT 9.1 Contractor’s duties under this Agreement shall not be delegated by Contractor nor shall any of the work or services to be performed hereunder be subcontracted out to third parties without the prior, written consent of the City. Third-party subcontractors identified in this Agreement shall be deemed to have been approved by City. Contractor shall perform oversight of such third-party subcontractors to ensure compliance with WIOA regulations, including requirements related to confidentiality, records retention, allowable costs, and other requirements applicable to this program. S10 COMPLAINTS/GRIEVANCES Contractor shall maintain a policy and procedure for resolving any complaints and/or grievances arising in connection with an alleged violation of the grant, or other Agreements Exhibit B Agreement No. 001-301-24 Page 19 of 38
that complies with the requirements of WIOA Section 181(c), or shall follow the requirements of City’s policy for handling such complaints and grievances. S11 PUBLIC ACCESS TO RECORDS As a condition of receiving WIOA (Workforce Innovation and Opportunity Act) funds, the independent auditor or monitor of the City, the State of California Employment Development Department auditors, investigators, and monitors, and the Department of Labor, Comptroller General of the United States or their duly authorized representatives shall at all times during the Agreement term and for a period of three years thereafter have the right of access to any books, documents, papers, financial statements and records (including computer records) of Contractor which are directly pertinent to charges under this Agreement to assure compliance with the terms of the Agreement and the WIOA statutes, regulations, and directives, and to make excerpts, transcripts, and photocopies. This right also includes timely and reasonable access to Contractor’s personnel with knowledge of the records and financial statements for the purpose of interviews and discussions related to documents and services provided under this Agreement. S12 INSURANCE AND BONDS Contractor shall procure and maintain insurance, at its own expense, for the duration of the Agreement against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work by Contractor, its agents, representatives, or employees. 12.1 Minimum Scope and Limits of Insurance Contractor shall maintain limits no less than: 1. Commercial General Liability: coverage written on an occurrence basis with limits not less than $2,000,000 per occurrence and $4,000,000 aggregate for bodily injury, personal injury and property damage. ISO Occurrence Form shall be at least as broad as CG 0001. 2. Automobile Liability: coverage with a combined single limit of not less than $1,000,000 per occurrence applying to all owned, non-owned, or hired vehicles used in conjunction with this Agreement for bodily injury and property damage. ISO Form shall be at least as broad as CA 0001. 3. Workers’ Compensation Statutory Limits and Employer’s Liability: $1,000,000 per accident for bodily injury or disease. 4. If working directly in-person with minors, the Certificate of Insurance must include coverage for molestation and sexual abuse with limits not less than $1,000,000 per occurrence and $2,000,000 aggregate. 12.2 Deductibles and Self-Insured Retentions Exhibit B Agreement No. 001-301-24 Page 20 of 38
Any deductibles or self-insured retentions must be declared and approved by the City of Sunnyvale’s Risk Manager. Contractor shall guarantee payment of any losses and related investigations, claim administration and defense expenses within the deductible or self-insured retention. The aforementioned insurance requirements can be met through any combination of self-insured, primary and excess/umbrella policies that fulfill the stipulated coverage as cited above. 12.3 Other Insurance Provisions 1. During the term of the Agreement, The City of Sunnyvale, its officers, officials, employees, agents and volunteers are to be covered as an additional insured in Contractor’s commercial general liability with respect to liability arising out of activities performed by or on behalf of Contractor; products and completed operations of Contractor; premises owned, occupied or used by Contractor. The coverage shall contain no special limitations on the scope of protection afforded to the City of Sunnyvale, its officers, officials, employees, agents or volunteers. 2. During the term of the Agreement, Contractor’s Workers’ Compensation policy shall be endorsed with a waiver of subrogation in favor of the City of Sunnyvale. 3. For any claims related to this project, Contractor’s insurance shall be primary. Any insurance or self-insurance maintained by the City of Sunnyvale, its officers, officials, employees, agents and volunteers shall be excess of Contractor’s insurance and shall not contribute with it and shall be at least as broad as ISO CG 20 01 04 13. 4. Any failure to comply with reporting or other provisions of the policies including breaches of warranties shall not affect coverage provided to the City of Sunnyvale, its officers, officials, employees, agents or volunteers. 5. Contractor’s insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer’s liability. 6. Each insurance policy required by this clause shall not be suspended, voided, or cancelled by either party, or reduced in coverage or in limits except after thirty (30) days’ prior written notice by certified mail, return receipt requested, has been given to the City of Sunnyvale. 7. Any umbrella or excess insurance liability policies shall be true “following form” of the underlying policy coverage, terms, conditions, and provisions and shall meet all of the insurance requirements stated in this document, including the additional insured, SIR, and primary and non-contributory insurance requirements for the benefit of City (if agreed to in a written contract or agreement) until all coverage carried by or available to the Contractor’s primary and excess liability policies are Exhibit B Agreement No. 001-301-24 Page 21 of 38
exhausted and before the City’s own Insurance or self-insurance shall be called upon to a loss. 8. The policy limits of coverage shall be made available to the full limits of the policy. The minimum limits stated above shall not serve to reduce Contractor’s policy limits of coverage. Therefore, the requirements for coverage and limits shall be (1) the minimum coverage and limits specified in this agreement, or (2) the broader coverage and maximum limits of coverage of any insurance policy or proceeds available to the named insured, whichever is greater. 12.4 Acceptability of Insurers Insurance is to be placed with insurers with a current A.M. Best’s rating of no less than A:VII, and who are admitted and authorized to do business and in good standing in California unless otherwise acceptable to the City of Sunnyvale’s Risk Manager. 12.5 Verification of Coverage The City of Sunnyvale utilizes PINSAdvantage.com (PINS) to track and verify all insurance related documents. The City is no longer accepting Certificates of Insurance or related insurance documents by mail and requires the use of PINS. The City will email the Contractor requesting proof of insurance for this Agreement through the PINS platform ([email protected]), which include instructions on how to upload insurance documents electronically. Contractor shall furnish the City of Sunnyvale with an original Certificate of Insurance effecting the coverage required. The certificates are to be signed by a person authorized by that insurer to bind coverage on its behalf. All certificates are to be received and approved by the City of Sunnyvale’s Risk Manager prior to commencement of work. The Contractor shall provide certificate(s) evidencing renewals of all insurance required herein prior to the expiration date of any such insurance. The City reserves the right to require complete, certified copies of all required insurance policies, at any time. For all insurance policy renewals during the term of this Agreement, Contractor shall submit insurance certificates reflecting the policy renewals through PINS. 12.6 Fidelity Bonds If cash advances are part of the Agreement, a fidelity bond is required in an amount of $100,000 or the highest estimated monthly expenditure, whichever is lower, covering any and all of City’s officers and employees involved in the performance of the Agreement. S13 FISCAL AND RECORDKEEPING RESPONSIBILITIES 13.1 To the extent Contractor is a subrecipient under any WIOA or DOL grant, Contractor shall comply with OMB CFR Chapter II, Part 200, et al., Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards: Final Rule and the Exhibit B Agreement No. 001-301-24 Page 22 of 38
Department of Labor’s (DOL) exceptions at 2 CFR Chapter II, Part 2900 et al. and as hereafter amended relating to the utilization of funds, the operation of programs, and maintenance of records, books, accounts, and other documents under the Act. 13.2 Contractor shall maintain adequate administrative and accounting controls, personnel standards, evaluation procedures and other policies to promote the safe and effective use of funds provided by this Agreement. 13.3 To the extent Contractor is a subrecipient under any WIOA or DOL grant, Contractor shall submit reports of fiscal data in accordance with City’s policies and procedures. For cost reimbursement Agreements, fiscal accounts shall be maintained in a manner sufficient to permit preparation of expense reports on an accrual basis as required by both City and DOL. Such financial information reported must be taken directly or linked by worksheet to books of original entry and traceable to source documents. Contractor shall maintain a cost allocation plan for distribution of shared costs. Fiscal records must provide a clear audit trail. 13.4 To the extent Contractor is a subrecipient under any WIOA or DOL grant, Contractor shall separately account for WIOA funds on deposit. All funding under this agreement will be made by check or wire transfer for deposit in Contractor’s bank account. 13.5 To the extent Contractor is a subrecipient under any WIOA or DOL grant, Contractor shall use funds allocated exclusively for costs related to employment and training services as defined in Exhibit A, Program Design and Standards. 13.6 Contractor shall not be allowed to recover costs incurred before and after the term of this Agreement. 13.7 All records pertaining to this Agreement shall be retained for three (3) years from the date of Contractor’s final expenditure report except when audit has not been completed or audit findings have not been resolved. In such cases, the pertinent records must be maintained until audit is completed and audit findings resolved. Records for nonexpendable property acquired with federal funds shall be retained for three (3) years after its final disposition. 13.8 To the extent Contractor is a subrecipient under any WIOA or DOL grant, for any Agreement in which unexpended funds resulting from cash advances remain upon completion or termination of this Agreement, Contractor shall return such funds to the City within sixty (60) days of the termination of Agreement. 13.9 To the extent Contractor is a subrecipient under any WIOA or DOL grant, Contractor shall account for any income received deemed as Program Income and utilize said income in accordance with that same section. For public or private non-profit agencies, this shall include any revenues in excess of costs. These funds may be retained by Contractor to underwrite additional training or training related services pursuant to the Agreement and/or grant which generated them as approved by City; or the funds shall be returned to City. Fiscal records must provide a clear audit trail for expenditures incurred and costs relative to additional training or services to be provided by appropriate cost category.
Exhibit B Agreement No. 001-301-24 Page 23 of 38
S14 PROPERTY MANAGEMENT 14.1 Contractor must obtain City’s approval prior to charging this Agreement for any portion of the cost of the following: • The purchase of property with a per-unit single cost totaling $5,000 or more. • The purchase, rent, licensing, maintenance fee, or subscription of information-technology applications/software/services with a per-unit single or cumulative cost totaling $5,000 or more within a twelve-month period. Contractor shall consult with the City prior to disposing of equipment purchased with WIOA funds. 14.2 In applicable, Contractor shall allow the City to make on-site verification that authorized non-expendable property has been purchased and is being used for the purposes of this Agreement. Contractor must maintain accurate inventory records of all equipment purchased with federal funds. 14.3 Contractor shall maintain an audit trail showing the acquisition and disposition of all non-expendable property. Such records shall be retained for a period of three (3) years after the final disposition of the property. 14.4 Funds provided under the Agreement shall not be used for the purchase of real property or options to purchase. S15 [INTENTIONALLY OMITTED.] S16 REPORTS Contractor shall prepare and submit all required documents and reports as specified by the City. In addition, special reports necessary for program operation and evaluation may be required. S17 TERMINATION OF AGREEMENT This Agreement may be terminated in whole or in part under the following circumstances: 17.1 Termination for Convenience In the event that either Contractor or the City determines that continuation of this Contract would not be in its best interests, this Agreement may be terminated in whole or in part by either party. Termination shall be effected by delivery to Contractor or City of a Notice of Termination. Such notice shall be delivered a minimum of ninety (90) days prior to the effective date of termination, which shall be specified in the notice. Contractor shall be compensated pursuant to the terms of this Agreement for all funds earned, expenses incurred, and services performed up to the point of termination. 17.2 Termination for Cause Exhibit B Agreement No. 001-301-24 Page 24 of 38
City may terminate this Agreement when it has determined that Contractor has failed to provide any of the services specified or to comply with any of the provisions contained in this Agreement upon thirty (30) days’ written notice and opportunity to cure. City will notify Contractor of such unsatisfactory performance in writing. Contractor will correct the deficiencies within the timeframe provided by City or the Agreement terminates. In the event of such termination, City shall be liable for payment only for such services as were satisfactorily rendered prior to the effective date of the termination. 17.3 Insufficient Funding Under conditions of reduced funding, the City reserves the right to terminate this Agreement upon written notice to Contractor and City shall endeavor to provide ninety (90) days’ written notice. Contractor shall be compensated pursuant to the terms of this Agreement for all funds earned, expenses incurred, and services performed up to the point of termination. S18 SUSPENSION OF FUNDS City may suspend payments to Contractor under the following circumstances: 18.1 Failure to comply in any respect with either the terms and/or conditions of this Agreement. 18.2 Submittal by Contractor of reports which are incorrect or incomplete in any substantial and material respect. 18.3 Failure of Contractor to accept any additional conditions that may be required by law, by executive order, by regulation, or by other policy announced by DOL or the State at any time. S19 WITHHOLDING OF PAYMENTS/REIMBURSEMENTS Notwithstanding any other provision of this Agreement, City may elect not to make a particular payment under this Agreement if: 19.1 Contractor, with or without knowledge, shall have made any misrepresentation of a substantial and material nature with respect to any information furnished to City; 19.2 There is pending litigation with respect to the performance by Contractor of any of its duties or obligations hereunder which may jeopardize or adversely affect carrying out the project, including any court action or proceeding involving the Federal Bankruptcy Act or assignment for benefit of creditors; 19.3 Contractor is in default under any provision of this Agreement.
Exhibit B Agreement No. 001-301-24 Page 25 of 38
S20 DISPUTES 20.1 Contractor agrees to use best efforts to resolve disputes arising from this Agreement by administrative processes and negotiations in lieu of litigation. Contractor agrees to continue performance unless impasse declared. 20.2 Any dispute concerning a question of fact or the resolution of costs arising under this Agreement which is not settled by informal means shall be decided by the City’s Program Manager. A written decision will be mailed or otherwise furnished to Contractor, in accordance with City’s procedures. 20.3 Contractor shall have access to the City’s Grievance Procedures for the resolution of any complaints or issues not resolved informally. S21 DISALLOWED COSTS Except to the extent that the City determines it will assume liability, Contractor will be liable for and will repay to City, or deduct from a future Request for Payment, any amounts expended under this Agreement found not to be in accordance with WIOA including, but not limited to, disallowed costs. Such repayment will be from funds (non-federal) other than those received under WIOA. Any such sum shall be deemed delinquent which remains unpaid thirty (30) days following written demand by City for payment. S22 PAYMENT TO SUBCONTRACTOR City will pay Contractor for the performance of its services and duties as specified in the Agreement. Payment shall be for allowable costs actually incurred by Contractor pursuant to the Agreement during its period of performance. S23 PROGRAM AGENT POLICIES AND PROCEDURES 23.1 Contractor shall comply with City’s policies and procedures, and any directive or other bulletin issued which clarify or modify City policies and procedures. S24 AUDIT REQUIREMENTS 24.1 Non-Federal subrecipients that expend $750,000 or more in a year in Federal awards shall have a single audit conducted in accordance with 2 CFR Part 200.514, except when they elect to have a program-specific audit. When an auditee expends Federal awards under only one Federal program (excluding R&D) and the Federal program’s laws, regulations, or grant Agreements do not require a financial statement audit of the auditee, the auditee may elect to have a program-specific audit conducted in accordance with 200.507. Contractor shall submit a copy of its audit report to the City within 30 days of receipt of the audit report or within nine months of the end of the audit period, whichever is earlier. If this Agreement is for goods or services provided as a contractor, Contractor is not subject to these audit requirements.
Exhibit B Agreement No. 001-301-24 Page 26 of 38
S25 RECEIPT OF ADDITIONAL FUNDS Contractor shall report any additional or unexpected funds received in conjunction with the services provided under the terms of this Agreement to the City upon receipt of such funds or notification of award of such funds. By execution of this Agreement, Contractor reports and City acknowledges that Strada Education Network, Inc. may provide additional funding in conjunction with the services provided under this Agreement. S26 ATTORNEY’S FEES AND COSTS If any action at law or in equity, including an action for declaratory relief, is brought to enforce or interpret the provisions of this Agreement, the prevailing party shall be entitled to recover all legal costs and reasonable attorney’s fees incurred in bringing such as action, whether such action is resolved by adjudication, arbitration or settlement. S27 GOVERNING LAW, JURISDICTION AND VENUE This Agreement shall be governed by and construed in accordance with the laws of the State of California, excluding its conflict of law principles. Proper venue for legal actions will be exclusively vested in a state court in the County of Santa Clara. The parties agree that subject matter and personal jurisdiction are proper in state court in the County of Santa Clara, and waive all venue objections. S28 INCIDENT REPORTING Contractor shall establish appropriate internal procedures to prevent and detect fraud, abuse, and other criminal activity relative to WIOA-funded activities and services. Any such incidents detected shall immediately be reported to City’s Director of NOVA Workforce Services. Internal procedures must be in writing and include the designation of a person on Contractor’s staff who will be responsible for such notifications. S29 SALARY AND BONUS LIMITATIONS In compliance with Public Law 109-234, none of the funds appropriated in Public Law 109-149 or prior Acts under the heading “Employment and Training” that are available for expenditure on or after June 15, 2006 shall be used by a recipient or contractor of such funds to pay the salary and bonuses of an individual, either as direct costs or indirect costs, at a rate in excess of Executive Level II (note: $199,300 as of 1/21), except as provided for under Section 101 of Public Law 109-149. This limitation shall not apply to contractors providing goods and services as defined in Uniform Guidance 2 CFR Part 200 and Part 2900. The incurrence of costs and receiving reimbursement for these costs under this award certifies that Contractor has read the above special condition and is in compliance. S30 LIMITATION OF LIABILITY Exhibit B Agreement No. 001-301-24 Page 27 of 38
Neither party's total cumulative liability arising from or related to this Agreement, or the services provided hereunder, whether in contract or tort or otherwise, will exceed the greater of: (a) three (3) times the amount of fees actually paid by City to Contractor under this Agreement; or (b) the actual amount of the liable party's responsive insurance.
Exhibit C Agreement No. 001-301-24 Page 28 of 38
ASSURANCES AND CERTIFICATIONS 1. Contractor assures and certifies that it will in performing its responsibilities as a contractor under this Agreement hereby fully comply with the provisions of: • The Workforce Innovation and Opportunity Act of 2014 (WIOA); • The Office of Management and Budget (OMB) Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards: Final Rule, at 2 Code of Federal Regulations (CFR) Chapter II, Part 200, et al; and the Department of Labor’s (DOL) exceptions at 2 CFR Chapter II, Part 2900 et al; and • All regulations, legislation, directives, policies, procedures and amendments issued pursuant hereto. Other Requirements: • All State legislation and regulations to the extent permitted by federal law and all policies, directives, and/or procedures which implement the WIOA. • The provisions of Public Law 107-288, Jobs for Veterans Act, as the law applies to DOL job training programs. • Contractor will perform appropriate and diligent monitoring of all aspects of programs and activities under this Agreement and take prompt corrective action against known violations of WIOA. 2. NONDISCRIMINATION Contractor assures and certifies it will comply with the nondiscrimination and equal opportunity provisions of the following laws: • Section 188 of the Workforce Innovation and Opportunity Act of 2014 (WIOA), which states that no individual in the United States may, on the ground of race, color, religion, sex, national origin, age, disability, political affiliation or belief, and for beneficiaries only, citizenship or participation in any WIOA Title I—financially assisted program or activity, be excluded from participation in, denied the benefits of, subjected to discrimination under, or denied employment in the administration of or in connection with any WIOA Title I—funded program or activity. • Title VI of the Civil Rights Act of 1964, as amended, which prohibits discrimination on the basis of race, color, and national origin. • Section 504 of the Rehabilitation Act of 1973, as amended, which prohibits discrimination against qualified individuals with disabilities. • The Age Discrimination Act of 1975, as amended, which prohibits discrimination on the basis of age; and • Title IX of the Education Amendments of 1972, as amended, which prohibits discrimination on the basis of sex in educational programs. • Contractor shall also comply with Uniform Guidance 2 CFR Part 200 and Part 2900 and all other regulations implementing the laws listed above.
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Americans with Disabilities Act (ADA): Contractor assures that it complies with the ADA of 1990, which prohibits discrimination on the basis of disability, as well as all applicable regulations and guidelines issued pursuant to the ADA. (42 U.S.C. § 12101 et seq.) Contractor also ensures that, as a recipient of WIOA Title I financial assistance, it will comply with 29 CFR part 38 and all other regulations implementing the laws listed above. This assurance applies to Contractor’s operation of the WIOA Title I-financially assisted program or activity, and to all agreements Contractor makes to carry out the WIOA Title I-financially assisted program or activity. Contractor understands that the United States has the right to seek judicial enforcement of this assurance. Contractor shall include the nondiscrimination and compliance provisions of this Section in all subcontracts to perform work under this Agreement. 3. CONFIDENTIALITY The City, State of California, and Contractor will exchange various kinds of information pursuant to this Agreement. That information will include data, applications, program files, and databases. These data and information that are exchanged between the parties are confidential when they define an individual (“Confidential Information”). Confidential Information requires special precautions to protect it from unauthorized use, access, disclosure, modification, and destruction. The sources of Confidential Information may include, but are not limited to, the Employment Development Department, the California Department of Social Services, the California Department of Education, the California Department of Corrections and Rehabilitation, the County Welfare Department(s), the County IV-D Directors Office of Child Support, the Office of the District Attorney, the California Department of Mental Health, the California Office of Community Colleges, and the Department of Alcohol and Drug Programs. City and Contractor agree that: a. Each party shall keep all Confidential Information in the strictest confidence and make such Confidential Information available to their own employees only on a need-to-know basis or to third parties with the disclosing party’s prior written consent. b. Each party shall provide security sufficient to ensure protection of Confidential Information from improper use and disclosures, including sufficient administrative, physical, and technical safeguards to protect this Confidential Information from reasonable unanticipated threats to the security or confidentiality of the Confidential Information. c. Contractor agrees that Confidential Information obtained under this Agreement will not be reproduced, published, sold or released in original or in any other form for any purpose other than those specifically identified in this Agreement. 1) Aggregate Summaries: All reports and/or publications developed by Contractor based on data obtained under this Agreement shall contain Confidential Information in aggregated or statistical summary form only. “Aggregated” refers to a data output that does not allow identification of an individual or employer unit.
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2) Publication: Prior to publication, Contractor shall carefully analyze aggregated data outputs based on Confidential Information to ensure the identity of individuals and/or employer units cannot be inferred pursuant to Unemployment Insurance Code Section 1094(c). Personal identifiers must be removed. Geographic identifiers should be specified only in large areas and as needed, and variable should be recorded in order to protect confidentiality. 3) Minimum Data Cell Size: The minimum data cell size or derivation thereof shall be three participants for any data table released to outside parties or to the public. d. Each party agrees that no disaggregate data constituting Confidential Information, identifying individuals or employers, shall be released to outside parties or the public. e. Contractor shall notify City’s designated data security representative (see below) by telephone of any actual information security incidents regarding Confidential Information within 24 hours of initial detection. Information security incidents include but are not limited to any event (intentional or unintentional) that causes the loss, damage, or destruction, or unauthorized access, use, modification, or disclosure of Confidential Information. Contractor shall cooperate with City in any investigation of security incidents. The system or device affected by an incident and containing Confidential Information obtained in the administration of this program shall be immediately removed from operation upon confidential data exposure or a known security breach. It shall remain removed from operation until correction and mitigation measures are applied. If Contractor learns of a breach in the security of the system which contains Confidential Information obtained under this Agreement, then Contractor must provide notification to individuals pursuant to Civil Code Section 1798.82. Contractor shall be responsible for all costs incurred by the City due to a security incident resulting from Contractor’s failure to perform or Contractor’s negligent acts that result in an unauthorized disclosure, release, access, review or destruction; or loss, theft or misuse of Confidential Information. These costs include, but are not limited to, staff time, materials costs, postage, media announcements, and all other identifiable costs associated with the breach or loss of data. f. Contractor shall provide for the management and control of physical access to Confidential Information (including personal computer systems, computer terminals, mobile computing devices, and various electronic storage media) used in performance of this Agreement. This shall include but is not limited to security measures to physically protect data, systems, and workstations from unauthorized access and malicious activity; the prevention, detection, and suppression of files; and the prevention, detection, and minimization of water damage. g. At no time will Confidential Information obtained pursuant to this agreement be placed on a mobile computing device, or on any form of removable electronic storage media of any kind unless the data are full encrypted. h. Each party shall (where appropriate) store and process Confidential Information in electronic format in such a way that unauthorized persons cannot reasonably retrieve the Confidential Information by means of a computer. i. All Contractor staff and subcontractors that are provided access to any data systems of the State, excluding CalJOBS, are required to complete, sign and comply with the terms of an Employee Confidentiality Statement (DE 7410). Failure to comply with such terms shall be considered a breach of this Agreement.
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j. Each party shall promptly return to the other party Confidential Information when its use ends or destroy the Confidential Information utilizing an approved method of destroying Confidential Information by shredding, burning, or certified or witnessed destruction. Magnetic media are to be degaussed or returned to the other party. k. If Contractor enters into an Agreement with a third party to provide services, Contractor agrees to include these data and security and confidentiality requirements in the Agreement with the third party. In no event shall Confidential Information be disclosed to any individual outside of that third party’s authorized staff, subcontractor(s), service providers, or employees. l. Each party shall designate an employee who shall be responsible for overall security and confidentiality of its data and information systems and each party shall notify the other of any changes in that designation. As of this date, the following are those individuals: For the City: Giang Pham, Business Operations Manager, (408) 730-7812 Email: [email protected] For Contractor: Chris Leake, Vice President, Technology (949) 764-9121 Email: [email protected] 4. Contractor makes the following further assurances and certifications: a. Neither Contractor nor its principals are listed on the government-wide Excluded Parties List System in the System for Award Management (SAM). The list in SAM contains the names of parties debarred, suspended, or otherwise excluded by agencies, as well as parties declared ineligible under statutory or regulatory authority. b. If Contractor is a corporation, certifies it is registered with the Secretary of State of the State of California. c. It will comply with the requirements of the provisions of the Uniform Relocation Assistance and Real Property Acquisition Act of 1970 (P.L. 91-646), which provides for fair and equitable treatment of persons displaced as a result of Federal and Federally assisted programs. d. It will comply with the provisions of the Hatch Act, which limits the political activity of certain State and local government employees, including the requirement that no program under the Act involve political activities. e. It will establish safeguards to prohibit employees from using their positions for private gain for themselves or others, particularly those with whom they have family, business, or other ties. f. Sectarian Activities: Contractor certifies that this Agreement does not provide for the advancement or aid to any religious sect, church or creed, or sectarian purpose nor does it help to support or sustain any school, college, university, hospital or other institution controlled by any religious creed, church, or sectarian denomination whatsoever, as specified by Article XVI, Section 5, of the California State Constitution, regarding separation of church and state. Participants in the program will not be employed on the Exhibit C Agreement No. 001-301-24 Page 32 of 38
construction, operation, or maintenance of that part of any facility which is used for religious instruction or worship. In addition, the employment or training of participants in sectarian activities is prohibited. g. Funds provided through this Agreement shall only be used for activities that are in addition to those which would otherwise be available in the area in the absence of such funds. h. Federal Funding Accountability and Transparency Act (FFATA): By signing this Agreement, Contractor hereby assures and certifies to comply with the provisions of FFATA, which includes requirements on executive compensation, and requirements implementing FFATA at 2 C.F.R. part 25 and 2. C.F.R. part 170. i. Prior Findings: Contractor, by signing this Agreement, does swear under penalty of perjury that it has not failed to satisfy any major condition in a current or previous agreement with the Department of Labor, State of California, or City and has not failed to satisfy conditions relating to the resolution of a final finding and determination, including repayment of debts. j. Drug Free Workplace requirement: Contractor will comply with the requirements of the Drug-Free Workplace Act of 1990 (Government Code Section 8355) and will provide a drug-free workplace by taking the following actions: 1. Publish a statement notifying employees that unlawful manufacture, distribution, dispensation, possession or use of a controlled substance is prohibited and specifying actions to be taken against employees for violations. 2. Establish a Drug-Free Awareness Program to inform employees about: i. the dangers of drug abuse in the workplace; ii. the person’s or organization’s policy of maintaining a drug-free workplace; iii. any available counseling, rehabilitation, and employee assistance programs; and, iv. penalties that may be imposed upon employees for drug abuse violations. 3. Every employee who works on the proposed Agreement will: i. receive a copy of Contractor’s drug-free workplace policy statement; and, ii. agree to abide by the terms of Contractor’s statement as a condition of employment on the Agreement. 4. Failure to comply with these requirements may result in suspension of payments under this Agreement or termination of the Agreement or both and Contractor may be ineligible for award of any future agreements if the City determines that any of the following has occurred: Contractor has made false certification; or violated the certification by failing to carry out the requirements as noted above. (Gov. Code § 8350 et seq.) k. This Agreement is of no force and effect until signed by both of the parties hereto. Contractor will not commence performance prior to the beginning of this Agreement. l. Child Support Compliance: If the amount of the Agreement exceeds of $100,000, Contractor acknowledges in accordance with Public Contract Code § 7110, that: 1. Contractor recognizes the importance of child and family support obligations and shall fully comply with all applicable state and federal laws relating to child and family support enforcement, including, but not limited to, disclosure of information and compliance with earnings assignment orders, as provided in Chapter 8 (commencing with § 5200) of Part 5 of Division 9 of the Family Code; and Exhibit C Agreement No. 001-301-24 Page 33 of 38
2. Contractor, to the best of its knowledge is fully complying with the earnings assignment orders of all employees and is providing the names of all new employees to the New Hire Registry maintained by the State. m. Contractor shall comply with mandatory standards and policies relating to energy efficiency which are contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act (42 USC 6201). n. Air/Water Pollution: If the amount of the Agreement exceeds $150,000, Contractor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act (42 U.S.C. §§ 7401-7671q) and the Federal Water Pollution Control Act as amended (33 U.S.C. §§ 1251-1387). Under State laws, Contractor shall not be: 1. In violation of any order or resolution not subject to review promulgated by the State Air Resources Board or an air pollution control district; 2. Subject to cease and desist order not subject to review issued pursuant to § 13301 of the Water Code for violation of waste discharge requirements or discharge prohibitions, or 3. Finally determined to be in violation of provisions of federal law relating to air or water pollution. o. Domestic Partners: For agreements over $100,000 executed or amended after January 1, 2007, Contractor certifies that it is in compliance with Public Contract Code § 10295.3. p. Debarment and Suspension Certification: By signing this Agreement, Contractor hereby certifies under penalty of perjury under the laws of the State of California that Contractor will comply with regulations implementing Executive Orders 12549 and 12689, Debarment and Suspension and OMB Guidance 2 CFR Part 180, that the prospective participant (i.e., Contractor), to the best of its knowledge and belief, that it and its principals: 1. Are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from covered transactions by any federal department or agency. 2. Have not within a three-year period preceding this subgrant agreement been convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (federal, state or local) transaction or contract under a public transaction, violation of federal or state antitrust statutes, or commission of embezzlement, theft, forgery, bribery, falsification, or destruction of records, making false statements, or receiving stolen property. 3. Are not presently indicted for or otherwise criminally or civilly charged by a government entity (federal, state or local) with commission of any of the offenses enumerated in Section 2 of this certification. 4. Have not within a three-year period preceding this agreement had one or more public transactions (federal, state or local) terminated for cause of default. Where Contractor is unable to certify to any of the statements in this certification, such prospective participant shall attach an explanation to this agreement. q. Lobbying Restrictions: If the amount of the Agreement exceeds $100,000, Contractor hereby assures and certifies to the lobbying restrictions in 2 C.F.R. §200.450, 29 CFR Part 93 and in the Byrd Anti-Lobbying Amendment (31 U.S.C. §1352).
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1. No federal appropriated funds have been paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of an agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress, in connection with this federal contract, grant loan, or cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any federal contract, grant, loan, or cooperative agreement. 2. If any funds other than federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, and officer or employee of Congress, or an employee of a Member of Congress, in connection with this subgrant agreement, the undersigned shall complete and submit Standard Form-LLL, Disclosure Form to Report Lobbying in accordance with its instructions. 3. This certification is a material representation of fact upon which reliance is placed when this transaction is executed. Submission of the Lobbying Certification is a prerequisite for making or entering into this transaction imposed by Section 1352, Title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each failure. r. It shall take appropriate steps to provide for increased participation of qualified special disabled and Vietnam-era veterans with special emphasis on qualified veterans who served in the Indo-China theatre on or after August 5, 1964, and on or before May 7, 1975, assuring adequate training and employment opportunities for such veterans in its programs. s. It shall to the maximum extent feasible coordinate services with the appropriate Veterans Administration Facilities in utilizing the apprenticeship and other on-the-job training activities available under Section 1787 of Title 38 U.S. Code, and it shall consult with the appropriate apprenticeship agency concerning any training activities in apprenticeship occupations. t. Appropriate standards for health and safety in work and training situations will be maintained. u. It will provide workers compensation protection to participants in on-the-job training or work experience, including medical, accident and income maintenance insurance, at the same level and to the same extent as others similarly employed who are covered by a workers compensation statute or system. Where coverage of similarly employed, employees is provided through a self-insurance system, coverage of any participants shall also be provided through that system. Where participants are employed or engaged in any program where others are similarly employed and not covered by an applicable workers compensation statute, participants shall be provided with medical and accident insurance coverage provided under the applicable State workers compensation statute. v. Institutional skill training and training on-the-job shall only be for occupations in which the City has determined there is reasonable expectation for employment. w. Standards and procedures with respect to the awarding of academic credit and certifying educational attainment in programs conducted under said title shall be consistent with the requirements of applicable State and local law and regulation.
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x. No program shall impair existing contracts for services or collective bargaining agreements, unless the employer and the labor organization concur in writing with respect to any elements of the proposed activities which affect such Agreement, or either such party fails to respond to written notification requesting its concurrence within 30 days of receipt of notification. In addition, no funds awarded under this Agreement shall be used to assist, promote, or deter union organizing. y. No participant shall be employed or job opening filled (A) when any other individual is on layoff from the same or any substantially equivalent job, or (B) when the employer has terminated the employment of any regular employee or otherwise reduced its work force with the intention of filling the vacancy so created by hiring a participant whose wages are subsidized under this grant. z. No jobs shall be created in a promotional line that will infringe in any way upon the promotional opportunities of currently employed individuals. aa. No participant who is engaged in this program may be charged a fee for placement or referral services. bb. No funds awarded under this Agreement shall be used to encourage or induce the relocation of an establishment or part thereof, which results in a loss of employment for any employee at the original location. cc. Contractor shall comply with Section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act. The requirements of Section 6002 include procuring only items designated in guidelines of the Environmental Protection Agency (EPA) at 40 CFR part 247 that contain the highest percentage of recovered materials practicable, consistent with maintaining a satisfactory level of competition, where the purchase price of the item exceeds $10,000 or the value of the quantity acquired by the preceding fiscal year exceeded $10,000; procuring solid waste management services in a manner that maximizes energy and resource recovery; and establishing an affirmative procurement program for procurement of recovered materials identified in the EPA guidelines.
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BUDGET Contractor will be reimbursed for youth services program costs and activities conducted within the scope of this Agreement. The budget under this Agreement shall not exceed a total of $755,000 for the term of this Agreement as detailed in Exhibit D. Attachment 1. The parties acknowledge that funding for the services shall be provided by both City and other strategic funders and that City’s funding commitment set forth in Exhibit D, Attachment 1 constitutes a portion of the total funding required for the services. Any changes requested for the budget shall be submitted by written request to the City and are subject to City’s written approval. Accrued expenditures (incurred but not yet paid) must be reported monthly on the Request for Payment. METHOD OF PAYMENT This Agreement is a cost reimbursement Agreement. Reimbursement for 100% of program costs and activities can be invoiced as completed on a monthly basis using the Request for Payment form that will be provided following approval of the contract. Requests shall be submitted by the 15th of the month following the month for which reimbursement is being requested. Documentation of all expenditures consisting of general ledger printouts and supporting documentation of cost allocation must be submitted with each payment request. Failure to submit required documentation and forms may cause a delay in payment.
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Exhibit D. Attachment 1 BUDGET SUMMARY PLAN Milestone Description Completion Dates Amount Launch of Landing Page $200,000 Creative direction established and assets gathered (links, logos, URL name, etc.) To be determined $75,000 Launch first version of Landing Page (Phase 1) To be determined $50,000 Launch fully integrated version of Landing Page (Phase 2) To be determined $75,000 Delivery of 8 virtual interviews producing 30+ videos $105,000 Identify and select leaders to be interviewed and students to conduct interviews To be determined $25,000 Film 8 virtual interviews To be determined $40,000 Post-production, editing and integration of videos into Landing Page and Roadtrip Nation Interview Archive To be determined $40,000 Execution and Distribution of Roadtrip & Special $450,000 Roadtrip Pre-Production: Application launch and promotion; selection and training of roadtrippers To be determined $90,000 Roadtrip Production: Roadtrip launch and promotion To be determined $135,000 Roadtrip Post-Production: Editing, post-production, delivery of content To be determined $135,000 Roadtrip Distribution: Broadcast of video content, hosted screening event To be determined $90,000 TOTAL $755,000 Exhibit E Agreement No. 001-301-24 Page 38 of 38
EXHIBIT E This exhibit constitutes authorization by [LEGAL NAME OF TRADEMARK OWNER] (“Entity”) for Strada Collaborative, Inc. d/b/a Roadtrip Nation (“RTN”) to use certain intellectual property belonging to Entity subject to and in accordance with the following terms and conditions: 1. Pre-Existing Intellectual Property. Each of RTN and Entity will retain ownership of their respective confidential and proprietary Information and pre-existing intellectual property, including copyrights, trademarks and logos. Each party grants to the other the right to use its name, logo(s) and pre-approved information about such party, including any logo provided by Entity to RTN (the “Mark[s]”), on or in connection with the marketing and promotion of the Landing Page (as defined in the Agreement between RTN and City (the “Agreement”)). Except as specifically stated herein, neither party may otherwise use the intellectual property of the other party without the prior written consent of such party. 2. Ownership of Work Product. With the exception of any of Entity’s confidential and proprietary Information or pre-existing intellectual property, the parties acknowledge that RTN shall solely and exclusively own all intellectual property rights it develops, whether alone or jointly with others, in connection with RTN’s performance under this Agreement along with all derivative works thereof and promotional materials related thereto (the “Work Product”), except as may otherwise be specifically provided in the Agreement. With regard to the Mark[s] and to the extent Entity grants RTN the right to use any other pre-existing Entity-owned intellectual property or content in the Work Product, Entity grants to RTN a non-exclusive, worldwide, royalty free, perpetual license for use of such intellectual property and/or content in the Work Product. Notwithstanding the foregoing, any right of RTN to use Entity’s intellectual property or content shall terminate immediately upon RTN’s breach of this Agreement. 3. Restrictions on Use. Except as specifically stated herein, neither party may copy, modify, publish, transmit, distribute, publicly perform, publicly display, reverse engineer, create derivative works of, sell, or otherwise exploit any intellectual property belonging to the other party. 4. Infringement Remedy. If any information contributed by Entity to the Work Product is found to be infringing or if use of the Work Product or any component thereof is enjoined, threatened to be enjoined, or otherwise the subject of an infringement claim as a result of information contributed by Entity to the Work Product, RTN may modify or replace the materials that infringe or are alleged to infringe (“Allegedly Infringing Materials”) to make the Work Product and all of its components non-infringing or remove such Allegedly Infringing Materials from the Work Product. 5. This Agreement shall be governed and construed in all respects in accordance with the laws of the State of California, without regard to its principles of conflicts of laws. 6. This letter constitutes the entire agreement of the parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings and agreements, whether written or oral, with respect to such subject matter. This letter may not be modified except in a written instrument signed by both parties. Agreed and Accepted: [TRADEMARK OWNER] By:__________________________________ Name: [NAME] Title: [TITLE]