Agreement No. 001-292-24 Page 1 of 30
Original to: Western Digital NOVA AGREEMENT BETWEEN CITY OF SUNNYVALE AND WESTERN DIGITAL FOR WORKFORCE DEVELOPMENT SERVICES This Agreement is made on by and between the City of Sunnyvale, a California chartered municipal corporation (hereinafter referred to as "City"), on behalf of the NOVA Workforce Board (hereinafter referred to as "NOVA"), and Western Digital, a data infrastructure and semiconductor company, hereinafter referred to as “Contractor.” Whereas, City has been granted funds from the State of California for Rapid Response activities under the Workforce Innovation and Opportunity Act ("WIOA") Title I, that include layoff aversion workforce development services; and Whereas, under this Agreement, Contractor is participating in the operation of such 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 provide employment and training services and to comply with other requirements in accordance with the following: (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; (e) Insurance Requirements – Exhibit E; and Agreement No. 001-292-24 Page 2 of 30
(f) State of California and Department of Labor guidelines, as they now exist or are hereinafter amended. The above-referenced Attachments and Exhibits are incorporated by reference as though fully set forth herein. 2. Term of Agreement: September 11, 2023 through September 10, 2024. 3. Funding Limit: up to $475,000. 4. Agreement Number: 001-292-24. 5. State of California Subgrant Number: AA311021. 6. Assistance Listing Number (formerly known as CFDA #): 17.278. 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 WESTERN DIGITAL BY: BY: NAME: Teri Silva NAME: Cynthia Lock Tregillis TITLE: Assistant City Manager TITLE: SVP & Deputy General Counsel APPROVED AS TO FORM: By: City Attorney Exhibit A Agreement No. 001-292-24 Page 3 of 30
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. The semiconductor industry faces unique challenges in recruiting and retaining qualified workers for different levels in the industry. The constricted pipeline presents barriers for the industry to grow and thrive locally. The importance of expanding semiconductor manufacturing in this country has been identified through the new federal CHIPS and Science Act of 2022 initiative as pivotal to the country's economic competitiveness and survival. Workforce development has been recognized as a critical driver to the success of this effort. In addition, increasing diverse access to employment opportunities offered by the high-wage semiconductor industry will improve business operations and a future pipeline of talented workers. Founded in 1970, Contractor is a United States-based data infrastructure and semiconductor company headquartered in San Jose, California, with approximately 8,000 employees nationwide, 7,000 in California. It is the only provider in the world of both hard-drive disk heads and tape heads, a key source of job growth opportunities. Nearly 40% of the world's data resides on the Contractor's device. NOVA Workforce Services, a department of the City of Sunnyvale, is partnering with Contractor to attract, develop, engage, and retain diverse talent in the semiconductor industry, including underrepresented groups in the Science, Technology, Engineering and Math (STEM) fields, and military veterans, U.S. National Reservists, and the families of military and National Guard reservists. Contractor will design and implement an employment and training pilot program for veterans and incumbent workers in the head wafer fabrication facilities (fab) at its San Jose and Fremont chip manufacturing fabs. The program will target training cohorts of both incoming employees and incumbent employees, thereby increasing opportunities for current employees to retain employment and advance within the company that will create new openings for entry level workers. This contract will provide one year foundational seed funding for a three-year pilot program. The goal is to train approximately 300 employees over three years. B. SCOPE OF SERVICES Under the direction of the City, Contractor is responsible for providing the following services: (1) Implement Program Design and Provide Training for Head Wafer Fabrication Facilities ($180,000): Contractor will implement the program design of the pilot program. Program design will entail providing support for early-career and mid-career military veterans and their families through full-time employment and training in Contractor's head wafer fabs in San Jose and Fremont. Additionally, this program will increase training programs available to existing head wafer fab employees to advance in their next career ladder role within the company. Trainings will include:
Exhibit A Agreement No. 001-292-24 Page 4 of 30
• Advance Process Control Metrology training for the Wafer Engineering and Operations area ($10,000). • Wafer Factory Systems training through Udemy and Coursera corporate licenses ($50,000 for approximately 165 licenses). • Six sessions of vendor training for Maintenance Techs and EE Engineers for the Equipment Engineering and Maintenance area ($120,000). Trainings will be delivered either online, at the Contractor site, or at vendor facilities and take place during employee onboarding and on a quarterly cadence. Upon completion of these programs, employees will receive certifications and gain a deeper technical skillset in wafer operations and systems, equipment engineering and maintenance, and/or process engineering in the Contractor's advanced manufacturing facilities. Extensive outreach and recruitment will be conducted to reach underrepresented groups in the STEM fields and military veterans and their families which will include, but not be limited to veteran organizations and networks, talent source organizations, community colleges and four-year universities, NOVA Workforce Services and SEMI Foundation networks described below, among others. Also, as part of the U.S. Department of Defense-designated SkillBridge program, Contractor will collaborate with the SUNY Polytechnic Institute S.T.E.P. (Semiconductor Training & Experience Program) to disseminate information about career opportunities in the semiconductor industry and with Contractor. (2) Implement Learning Management System (LMS) to Track and Report Training Metrics ($50,000): Contractor will develop a Learning Management System software to track worker progress on the online Udemy and Coursera platforms, identify and document metrics, and meet all training reporting requirements. (3) Subcontract with SEMI Foundation on Veteran Outreach Services ($95,000): Contractor will subcontract with the SEMI Foundation, a 501(c)(3) arm of SEMI, for Package Three services to market the program and outreach to and recruit participants through the K-12 school districts, community colleges, four-year universities, armed services and talent source programs and organizations, and veteran-focused job fairs, among other strategies. SEMI Foundation will also provide diversity, equity, and inclusion resources, trainings, and support. SEMI is a global semiconductor membership organization of 2,600 members. (4) Program Support: Hire One Human Resources Veterans Talent Program Specialist ($150,000 for one year): With this funding, Contractor will hire one human resource (HR) professional with expertise in recruiting, training, and retaining military veterans and their families in the private sector. This individual will serve as the program's designated person and drive Contractor's internal day-to-day processes such as talent acquisition, onboarding, and HR business partner. They will also work with managers to develop, track, and report SMART goals for the veteran workforce and programmatic reporting. In addition, they will be responsible as a point of contact with NOVA Workforce Services and the SEMI Foundation. They will serve as liaison with military veterans and their families, veteran's organizations, and head wafer fab to ensure a smooth transition to the private sector.
Exhibit A Agreement No. 001-292-24 Page 5 of 30
II. 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, Executive Director NOVA Workforce Services 456 West Olive Avenue Sunnyvale, CA 94088 Telephone: 408-730-7837 Email: [email protected] Contractor: Cynthia Lock Tregillis Senior Vice President & Deputy General Counsel Western Digital 5601 Great Oaks Parkway San Jose, CA 95119 Telephone: 1-408-717-6000 Email: [email protected] 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.
Exhibit B Agreement No. 001-292-24 Page 6 of 30
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 thirty (30) 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. 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 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 third party that an employer-employee relationship exists by reason of this Agreement. It is Exhibit B Agreement No. 001-292-24 Page 7 of 30
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 this 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 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 obligations under this Agreement. S7 PERSONNEL 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.
Exhibit B Agreement No. 001-292-24 Page 8 of 30
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, the intellectual property rights, title, and ownership which result directly or indirectly from the Agreement will be subject to 37 C.F.R part 401.14. However, pursuant to 2 C.F.R. part 200 et seq. and 2 C.F.R. part 2900 et seq., 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. Contractor shall own all intellectual property invented solely by the Contractor employees, consultants, agents, or affiliates ("Contractor Inventions"). City shall own all intellectual property invented solely by City officers, officials, employees, agents, representatives, and volunteers ("City Inventions"). 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, sound 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 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 Exhibit B Agreement No. 001-292-24 Page 9 of 30
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 the 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. 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 of 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 Copyright Title to all original works of authorship created in performance of the Agreement and in which copyright may be claimed shall vest initially in the author, subject to the policies of the Contractor or City that employs the author. 8.5 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, 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.
Exhibit B Agreement No. 001-292-24 Page 10 of 30
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. 8.6 Intellectual Property Indemnity a. Contractor shall indemnify, defend and hold harmless City and its licensees and assignees, and its offers, 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 result directly or indirectly from this Agreement, but only in proportion to and to the extent such liability, loss, expense, attorney's fees, or claims for injury or damages are caused by or result from negligent or intentional acts or omissions of Contractor, its officers, agents, or employees. 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 of this Agreement. City reserves the right to participate in, at Contractor’s expense, any such infringement action brought against City. b. Should any intellectual property license by the 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 expense) in any such claim or action. 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.
Exhibit B Agreement No. 001-292-24 Page 11 of 30
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. 8.7 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. Subrecipient shall perform oversight of such third-party subcontractors to ensure compliance with Workforce Innovation and Opportunity Act ("WIOA") regulations, including requirements related to confidentiality, records retention, allowable costs, and other requirements applicable to this program. S10 COMPLAINTS/GRIEVANCES Contractor shall follow the City’s policies and procedures for resolving any complaints and/or grievances arising in connection with an alleged violation of the grant or work performed pursuant to this Agreement. S11 PUBLIC ACCESS TO RECORDS As a condition of receiving WIOA 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 the 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 Exhibit B Agreement No. 001-292-24 Page 12 of 30
12.1 City requires CONTRACTOR to maintain insurance requirements on the Pacific Insurance Network System (PINS). CONTRACTOR shall procure and maintain, at its own expense during the life of this Agreement, policies of insurance as specified in Exhibit E attached and incorporated herein by reference and shall provide all certificates and endorsements as specified in Exhibit E through PINS for approval by the City Risk Manager prior to CONTRACTOR (or subcontractor) commencing any work under this Agreement. 12.2 Fidelity Bonds If cash advances are part of the contract, 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 contract. S13 FISCAL AND RECORDKEEPING RESPONSIBILITIES 13.1 Contractor shall comply with the Office of Management and Budget Guidance for Grants and Agreement, 2 C.F.R. part 200 et seq., and the Department of Labor’s (DOL) exceptions at 2 C.F.R. part 2900 et seq., and as hereafter amended relating to the utilization of funds, the operation of programs, and maintenance of records, books, accounts, and other documents subject to these federal regulations. 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 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 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 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 Under this Agreement 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.
Exhibit B Agreement No. 001-292-24 Page 13 of 30
13.8 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 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. S14 RIGHT TO REALLOCATE FUNDS 14.1 City will monitor Contractor’s expenditures monthly under this Agreement and may reallocate funds in the event Contractor is not making adequate progress toward budget goals, per Exhibit D of this Agreement. 14.2 City will provide Contractor with no less than thirty (30) days written notification of its intent to reallocate funds. Contractor shall have opportunity to respond and offer any views and recommendations within the 30-day notification period. City is not bound to accept Contractor’s views and/or recommendations with respect to the intended reallocation. S15 REPORTS 15.1 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. S16 TERMINATION OF AGREEMENT This Agreement may be terminated in whole or in part under the following circumstances: 16.1 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 30 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 up to the point of termination. 16.2 Termination for Cause 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 Exhibit B Agreement No. 001-292-24 Page 14 of 30
this Agreement. City will notify the 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. 16.3 Insufficient Funding Under conditions of reduced funding, the City reserves the right to immediately terminate this Agreement. S17 SUSPENSION OF FUNDS City may suspend payments to Contractors under the following circumstances: 17.1 Failure to comply in any respect with either the terms and/or conditions of this Agreement. 17.2 Submittal by Contractor of reports which are incorrect or incomplete in any substantial and material respect. 17.3 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. S18 WITHHOLDING OF PAYMENTS/REIMBURSEMENTS Notwithstanding any other provision of this Agreement, City may elect not to make a particular payment under this Agreement if: 18.1 Contractor, with or without knowledge, shall have made any misrepresentation of a substantial and material nature with respect to any information furnished to City; or 18.2 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; or 18.3 Contractor is in default under any provision of this Agreement. S19 DISPUTES 19.1 The 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. 19.2 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 Exhibit B Agreement No. 001-292-24 Page 15 of 30
Manager. A written decision will be mailed or otherwise furnished to Contractor, in accordance with City’s procedures. 19.3 Contractor shall have access to the City’s Grievance Procedures for the resolution of any complaints or issues not resolved informally. S20 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. S21 PAYMENT TO CONTRACTOR 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. S22 PROGRAM AGENT POLICIES AND PROCEDURES 22.1 Contractor shall comply with City’s policies and procedures, and any directive or other bulletin issued which clarify or modify City policies and procedures. S23 AUDIT REQUIREMENTS 23.1 Non-Federal contractors that expend $750,000 or more in a year in Federal awards shall have a single audit conducted in accordance with 2 C.F.R. 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 part 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. S24 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.
Exhibit B Agreement No. 001-292-24 Page 16 of 30
S25 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. S26 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. S27 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 Business Operations Manager, or in his absence, 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. S28 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 January 2021), 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 2 C.F.R. part 200 et seq. and 2 C.F.R. part 2900 et seq. The incurrence of costs and receiving reimbursement for these costs under this award certifies that your organization has read the above special condition and is in compliance. REMAINDER OF PAGE IS INTENTIONALLY BLANK.
Exhibit C Agreement No. 001-292-24 Page 17 of 30
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 C.F.R. part 200 et seq.; and the Department of Labor’s (DOL) exceptions at 2 C.F.R. part 2900 et seq.; 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. • Title IX of the Education Amendments of 1972, as amended, which prohibits discrimination on the basis of sex in educational programs.
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• Contractor shall also comply with Uniform Guidance 2 C.F.R. part 200 et seq., and 2 C.F.R. part 2900 et seq., and all other regulations implementing the laws listed above. 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 assures that, as a recipient of WIOA Title I financial assistance, it will comply with 29 C.F.R. 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 are confidential when they define an individual or an employing unit. Confidential information requires special precautions to protect it from unauthorized use, access, disclosure, modification, and destruction. The sources of 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 information that is exchanged between them in the strictest confidence and make such information available to their own employees only on a “need-to-know” basis. 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 information from reasonable unanticipated threats to the security or confidentiality of the information. c. Contractor agrees that 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 data in aggregated or Exhibit C Agreement No. 001-292-24 Page 19 of 30
statistical summary form only. “Aggregated” refers to a data output that does not allow identification of an individual or employer unit. 2) Publication: Prior to publication, Contractor shall carefully analyze aggregated data outputs to ensure the identity of individuals and/or employer units cannot be inferred pursuant to California Unemployment Insurance Code section 1094. 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, 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 or attempted information security incidents 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 information assets. Contractor shall cooperate with City in any investigation of security incidents. The system or device affected by an incident and containing confidential data 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 data obtained under this Agreement, then Contractor must provide notification to individuals pursuant to California 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 an information asset. 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 information assets (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 data 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 provide its employees with access to confidential information with written instructions fully disclosing and explaining the penalties for unauthorized use or disclosure found in section 1798.55 of the California Civil Code, section 502 of the California Penal Code, section 2111 of the California Unemployment Insurance Code, section 10850 of the California Welfare and Institutions Code and other applicable local, state and federal laws.
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i. Each party shall (where appropriate) store and process information in electronic format in such a way that unauthorized persons cannot reasonably retrieve the information by means of a computer. j. All Contractor staff, its authorized representatives 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. k. 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. l. 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. m. 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 the Contractor: Milissa Bedell, Director, Global Community Relations, 408-717-6000 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, it certifies it is registered with the Secretary of State of the State of California. Contractor declares that it is not an expatriate corporation or subsidiary of an expatriate corporation within the meaning of California Public Contract Code section 10286.1. 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 (5 U.S.C. § 1501 et seq.), which limits the political activity of certain State and local government employees, including the requirement that no program under the Act involve political activities.
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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 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 (Gov. Code, § 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 persons' or organizations' 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.) Exhibit C Agreement No. 001-292-24 Page 22 of 30
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 section 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 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 U.S.C. § 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 section 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 section 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 C.F.R. 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 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.
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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. part 200.450, 29 C.F.R. part 93 and in the Byrd Anti-Lobbying Amendment (31 U.S.C. § 1352). 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 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 of title 31 of the United States 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 of the United States Code, and it shall consult with the appropriate apprenticeship agency concerning any training activities in apprenticeship occupations. t. It possesses legal authority to apply for the subaward; that a resolution, motion, or similar action has been duly adopted or passed as an official act of Contractor's governing body, authorizing the filing of the application, including all understandings and assurances contained therein, and directing and authorizing the person identified as the official representative of the applicant to act in connection with the application and to provide such additional information as may be required. Documentary proof of the action authorizing Contractor to apply for the subaward shall be provided to the City upon demand.
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u. Appropriate standards for health and safety in work and training situations will be maintained. v. If appropriate, 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. w. 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. x. 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. y. 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. z. 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 workforce with the intention of filling the vacancy so created by hiring a participant whose wages are subsidized under this grant. aa. No jobs shall be created in a promotional line that will infringe in any way upon the promotional opportunities of currently employed individuals. bb. No participant who is engaged in this program may be charged a fee for placement or referral services. cc. 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. dd. Contractor shall comply with section 6002 of the Solid Waste Disposal Ac (42 U.S.C. § 3251 et seq.), 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 C.F.R. 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. ee. Requirement to Provide Certain Information in Public Communications (Steven's Amendment): Pursuant to Public Law 116-260, Division H, Title V, Section 505, when Exhibit C Agreement No. 001-292-24 Page 25 of 30
issuing statements, press releases, requests for proposals, bid solicitations and other documents describing projects or programs funded in whole or in part with Federal money, all non-Federal entities receiving Federal funds shall clearly state: 1. The percentage of the total costs of the program or project which will be financed with Federal money; 2. The dollar amount of Federal funds for the project or program; and 3. The percentage and dollar amount of the total costs of the project or program that will be financed by non-governmental sources. ff. National Labor Relations Board certification: Contractor certifies that no more than one (1) final unappealable finding of contempt of court by a Federal court has been issued against Contractor within the immediately preceding two-year period because of Contractor's failure to comply with an order of a Federal court which orders Contractor to comply with an order of the National Labor Relations Board. (Pub. Cont. Code, § 10296.) REMAINDER OF PAGE IS INTENTIONALLY BLANK Exhibit D Agreement No. 001-292-24 Page 26 of 30
BUDGET The Contractor will be reimbursed for program costs and activities conducted within the scope of this Agreement. The budget under this Agreement shall not exceed a total of $475,000 for the term of this Agreement in accordance with the following line items: Activity Budget 1 Implement Program Design and Provide Training for Head Wafer Fabrication Facilities • Wafer Engineering and Operations: Advance Process Control Metrology • Wafer Factory Systems: Udemy and Coursera corporate licenses for virtual training (approximately 165 licenses) • Equipment Engineering and Maintenance: Six sessions vendor training for Maintenance Techs and EE Engineers $180,000 total $10,000 $50,000 $120,000 2 Implement Learning Management System (LMS) to Track and Report Training Metrics • Develop LMS software to track worker progress on online Udemy and Coursera training platforms, identify and document metrics, and meet all training reporting requirements $50,000 3 Subcontract with SEMI Foundation on Veteran Outreach Services • Subcontract with SEMI Foundation for Package Three services to market program and outreach and recruit participants through K-12 school districts, community colleges, four-year universities, armed services and talent source programs and organizations, and veteran-focused jobs fairs, among other strategies • Provide diversity, equity, and inclusion resources, trainings, and support $95,000
4 Program Support: Hire Human Resources Veterans Talent Program Specialist • Specialist will serve as the program's designated person and drive Contractor's internal day-to-day processes such as talent acquisition, onboarding, and HR business partner • Work with managers to develop, track, and report SMART goals for the veteran workforce and programmatic reporting • Point of contact with NOVA Workforce Services and SEMI Foundation • Liaison with military veterans and their families, veteran's organizations, and head wafer fab to ensure smooth transition to the private sector $150,000
Total $475,000 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 (not yet paid) must be reported monthly on the Request for Payment.
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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. This submission must also consist of an itemized description of work performed to support amounts claimed on the Request for Payment form. Description of work performed should relate to tasks described in the scope of services of Exhibit A and the Budget of Exhibit D. Failure to submit required documentation and forms my cause a delay in payment. REMAINDER OF PAGE IS INTENTIONALLY BLANK Exhibit E Agreement No. 001-292-24 Page 28 of 30
INSURANCE REQUIREMENTS Contractor shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work by the Contractor, their agents, representatives, or employees. Minimum Scope and Limits of Insurance. Contractor shall maintain limits not less than: 1. Commercial General Liability: coverage written on an occurrence basis with limits not less than $1,000,000 per occurrence and $2,000,000 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 contract 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. Industry Specific Coverages. If checked below, the following insurance is also required: ☐ Liquor Liability coverage written on an occurrence basis with limits not less than $1,000,000 per occurrence. ☐ Crime coverage with limits not less than $500,000 to include third party premises endorsement. ☐ If working directly 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. ☐ Garage Liability coverage written on an occurrence basis with limits not less than $1,000,000 per occurrence. ☐ Garage Keepers Liability coverage with limits not less than $100,000 per location. ☐ On-Hook coverage with limits not less than $100,000 per vehicle. Deductibles, Self-Insured Retentions and Other Coverages: Any deductibles or self-insured retentions must be declared and approved by the City of Sunnyvale, Risk Manager. The Contractor shall guarantee payment of any losses and related investigations, claim administration and defense expenses within the deductible or self-insured retention.
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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. Other Insurance Provisions: 1. During the term of the contract, the City of Sunnyvale, its officers, officials, employees, agents, and volunteers are to be covered as an additional insured in the Contractor’s commercial general liability policy (and if industry specific coverage is checked above, liquor liability, and molestation and sexual abuse policies) with respect to liability arising out of activities performed by or on behalf of the Contractor; products and completed operations of the Contractor; premises owned, occupied or used by the 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. Additional Insured Endorsement for ongoing operations at least as broad as ISO CG 20 10 Scheduled, or automatic CG 20 38. 2. During the term of the contract, the 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, the 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 the 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. The 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 be endorsed to state that coverage shall not be suspended, voided, cancelled by either party, 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 exhausted and before the City’s own Insurance or self-insurance shall be called upon to contribute to a loss.
Exhibit E Agreement No. 001-292-24 Page 30 of 30
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 the 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. 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. Verification of Coverage: The City of Sunnyvale utilizes PINSAdvantge.com (PINS) to track and verify all insurance related documents. The City is no longer accepting Certificates of Insurance by mail and requires the use of PINS. The City will email the Contractor requesting proof of insurance for this Contract 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, 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. Contractor shall submit insurance certificates reflecting the policy renewals through PINS. The City reserves the right to require complete, certified copies of all required insurance policies, at any time.