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HomeMy WebLinkAbout2008 CON First 5 Commission of San Diego - Amendment Grants BookmobileNOTE TO FILE 03-24-10 IN THE MATTER OF: Resolution of the City Council of the City of National City authorizing the City Librarian to execute an Amendment to the Agreement for FY 2009/2010 in the amount of $128,265 between the City and the First 5 Commission of San Diego pertaining to funding for the National City Words on Wheels Bookmobile. Please note the following: A FULLY EXECUTED ORIGINAL AMENDMENT WAS NEVER FILED WITH THE OFFICE OF THE CITY CLERK ORIGINATING DEPARTMENT: _ CDC _ Housing & Grants City Attorney _ Human Resources _ City Manager _ MIS _ Community Svcs. _ Planning Engineering _ Police Finance Public Works Fire X Library NTF CONTRACT # 515385 FIRST 5 COMMISSION OF SAN DIEGO AMENDMENT TO CONTRACT AGREEMENT To: National City Public Library, Contractor. Pursuant to the Terms and Conditions, you are directed to make the changes described herein to the Contract or do the following described work not included in the previous agreed on Statement of Work. Title of Contract, Project, or Program: First 5 for Parents — WORDS ON WHEELS mobile (WOW Mobile) 1. Description of Contract Change(s) and/or Work To Be Done: ■ Amend the contract to exercise the Commission action on November 3, 2008 (Item 8) to add an option year for this Agreement; ■ Amend contract to exercise option to extend contract from August 1, 2006 to June 30, 2009 to August 1, 2006 to June 30, 2010; • Amend the contract to exercise Commission action on November 3, 2008 (Item 8) to allow project length budgeting [multiple year budgeting] for FY 2008-09 and FY 2009-10 for a total amount not to exceed $250,422.00 and revise the maximum compensation for the full contract term not to exceed $470,219.00; ■ Amend the contract to add $128,265.00 for FY 2009-10; ■ Revise the report submission schedule to match the extended term; ■ Revise Publicity Announcements and Materials language; ■ Add Equipment Retention language. 2. Remove and Replace with pages marked AMENDMENT #03 Changes (excluding corrected typographical, punctuation and spelling errors) are marked by bold italicized type. ❑ Pro Forma Agreement has the following revisions: • Section B: Recitals — Add Commission action language; ■ Section 13.7.1: Reports — Revise progress report submission schedule from August 1, 2006 to June 30, 2010; ■ Section 16.17: Publicity Announcement and Materials — Revise language for this section; • Section 16.22: Equipment Retention — Add `Equipment Retention" language; • Signature Page — Option to Extend — Revise the option period from two increments of one year each to June 30, 2009 to three increments of one year each to June 30, 2010; • Signature Page — Compensation: Revise language to pay Contractor up to $250,422.00 for the FY 2008- 09 and FY 2009-10 for an agreement amount not to exceed $470,219.00. All other Terms and Conditions remain in effect. National City Public Library Page 1 of 2 Amendment 03 CONTRACT # 515385 FIRST 5 COMMISSION OF SAN DIEGO AMENDMENT TO CONTRACT AGREEMENT (Continued) I, the undersigned Contractor, have given careful THIS AMENDMENT IS NOT EFFECTIVE UNTIL consideration to the change proposed and hereby agree, APPROVED BY THE EXECUTIVE DIRECTOR OF THE if this proposed change is approved, that we will provide FIRST 5 COMMISSION OF SAN DIEGO all equipment, furnish all materials, except as may otherwise be noted above, and perform all services necessary for the work specified. Contract term is adjusted as amended. Contract price is increased to: $470,219.00 FY 2006 — 07: $103,457.00 FY 2007 - 08: $116,340.00 FY 2008 - 09: $122,157.00 (estimated) FY 2009- 10: $128,265.00 (estimated) COMMISSION REVIEW AND RECOMMENDED APPROVAL: By: Minh Duong, City Librarian By: National City Public Library Laura S. Spiegel, Executive Director Date: Date: National City Public library Page 2 of 2 Amendment 03 FIRST 5 COMMISSION OF SAN DIEGO CONTRACT NUMBER: 515385 AGREEMENT WITH NATIONAL CITY PUBLIC LIBRARY "FIRST 5 FOR PARENTS" PROJECTS — WORDS on WHEELS mobile (WOWmobilc) This Agreement ("Agreement") is made and entered into on the date shown on the signature page ("Effective Date") by and between the First 5 Commission of San Diego, a political subdivision of the State of California ("Commission") and Contractor National City Public Library located 1401 National City Blvd., National City, CA 91950-4401 ("Contractor"), with reference to the following facts: RECITALS A. The Commission, by action on June 19, 2006, Item No. 11, authorized the Executive Director to award an Agreement to provide services addressing parent education, early literacy and/or healthy behaviors of children birth through age five. B. The Commission by action on November 3, 2008, Item 8, authorized the Commission to add funding to this project - length (multi -pear) contract; 1. Contractor is specially trained and possesses certain skills, experience, education, and competency to perform these services. 2. The Agreement shall consist of this pro forma Agreement, Exhibit A -Statement of Work, Exhibit A-1-RFP 534 Statement of Work, Exhibit B Insurance Requirements and Exhibit C, 3. In the event that any provision of the Pro Forma Agreement or its Exhibits, A, A-1, B or C, conflicts with any other terns or condition, precedence shall be: 3.1 First (1st) the Pro Forma; 3.2 Second (2nd) Exhibit B; 3.3 Third (3rd) Exhibit A; 3.4 Fourth (4th) Exhibit C; and 3.5 Fifth (5th) Exhibit A-1. NOW THEREFORE, for valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: ARTICLE 1 PERFORMANCE OF WORK 1.1 Standard of Performance. Contractor shall, in a good and workmanlike manner and in accordance with the highest professional standards, at its own cost and expense, furnish all of the labor, technical, administrative, professional and all other personnel, all supplies and materials, equipment, printing, transportation, facilities, and all other means whatsoever, except as herein otherwise expressly specified to be furnished by Commission, necessary or proper to perform and complete the work and provide the services required of Contractor by this Agreement. 1.2 Contractor's Representative. Contractor's duties under this Agreement shall be performed on behalf of the Contractor by the person identified on the signature page. ("Contractor's Representative"); Contractor represents and warrants that (1) Contractor's Representative has fulfilled all applicable requirements of the laws of the State of California to perform the services under this Agreement and (2) Contractor's Representative has full authority to act for Contractor hereunder. Contractor and Commission recognize that the services to be provided by Contractor's Representative pursuant to this Agreement are unique: accordingly, Contractor's Representative shall not be changed during the Term of the Agreement without Commission's written consent. Commission reserves the right to terminate this Agreement pursuant to Clause 7.1 "Termination for Default", if Contractor's Representative should leave Contractor's employ, or if in Commission's judgment, the work hereunder is not being performed by Contractor's Representative. 1.3 Contractor as Independent Contractor. Contractor is, for all purposes of this Agreement, an independent Contractor, and neither Contractor nor Contractor's employees or subcontractors shall be deemed to be employees of the Commission or the County of San Diego ("County"). Contractor shall perform its obligations under this Agreement according to the Contractor's own means and methods of work which shall be in the exclusive charge and under the control of the Contractor, and which shall not be subject to control or supervision by Commission or County except as to the results of the work. Neither Contractor nor Contractor's employees or subcontractors shall be entitled to any benefits to which Commission or County's employees are entitled, including without limitation, overtime, retirement benefits, workers' compensation benefits and injury leave. National City Public Library Amendment 03 Page 1 of 16 FIRST 5 COMMISSION OF SAN DIEGO CONTRACT NUMBER: 515385 AGREEMENT WITH NATIONAL CITY PUBLIC LIBRARY "FIRST 5 FOR PARENTS" PROJECTS — WORDS on WHEELS mobile (WOWmobile) 1.4 Contractor's Agents and Employees or Subcontractors. Contractor shall obtain, at Contractor's expense, all agents, employees and subcontractors required for Contractor to perform its duties under this Agreement, and all such services shall be performed by Contractor's Representative, or under Contractor's Representatives' supervision, by persons authorized by law to perform such services. Retention by Contractor of any agent, employee or subcontractor shall be at Contractor's sole cost and expense, and Commission shall have no obligation to pay Contractor's agents, employees or subcontractors; to support any such person's or entity's claim against the Contractor; or to defend Contractor against any such claim. Any subcontract, or a combination of subcontract to the same individual or firm for the Agreement period which is in excess of fifty thousand dollars ($50,000) or twenty five percent (25%) of the value of the Agreement, whichever is less must have prior concurrence of the Commission's Executive Director or his or her designee. If the Commission's Executive Director or his or her designee makes a request for copies of all other subcontracts relating to this Agreement, Contractor shall provide the Commission's Executive Director or his or her designee with copies of all other subcontracts relating to this Agreement entered into by Contractor within 30 days after the effective date of the subcontracts. Such subcontractors of Contractor shall be notified of Contractor's relationship to Commission. "Subcontractor" means any entity, other than Commission, that furnishes to Contractor services or supplies relevant to this Agreement other than standard commercial supplies, office space, and printing services. I A.1 Contractor Responsibility. In the event any subcontractor is utilized by Contractor for any portion of the project, Contractor retains the prime responsibility for carrying out all the terms of this Agreement, including the responsi- bility for performance and insuring the availability and retention of records of subcontractors in accordance with this Agreement. No subcontract utilizing funds from this Agreement shall be entered into which has a term extending beyond the ending date of this Agreement. 1.4.2 Mandated Clause. All subcontracts shall include the Standard Terms and Conditions required of Contractor herein. ARTICLE 2 SCOPE OF WORK 2.1 Statement of Work. Contractor shall perform the work described in the "Statement of Work" attached as Exhibit "A" and Exhibit "Al" to this Agreement, and by this reference incorporated herein, except for any work therein designated to be performed by Commission. 2.2 Right to Acquire Equipment and Services. Nothing in this Agreement shall prohibit the Commission from acquiring the same type or equivalent equipment and/or service from other sources, when deemed by the Commission to be in its best interest. ARTICLE 3 RESERVED ARTICLE 4 COMPENSATION 4.1 Fiscal Commission will pay Contractor the agreed upon price for the work specified in Exhibit A, Statement of Work. 4.2 Accounting System and Fiscal Monitoring. Contractor shall provide and maintain an accounting and financial support system to monitor and control costs to assure Agreement completion. 4.3 Invoices and Payment. 4.3.1 Invoices. Payment for the services performed under this Agreement shall be in accordance with Exhibit C, unless other payment methodologies are negotiated and agreed to by both Contractor and Commission. Contractor shall submit approved invoices monthly, due no later than the 31' of the following month, to the Commission's Executive Director or her designee for work performed in the monthly period, accordingly. Invoice format shall be provided by the Commission staff. 4.3.2 Payments. Commission agrees to pay Contractor, utilizing a Cost Reimbursement methodology, in arrears only after receipt and approval by the Commission's Executive Director or his or her designee of properly submitted, detailed and itemized original invoice referencing the Agreement number and additional written narrative detailing any variances and approval obtained from the approved budget pursuant to Exhibit C, documenting the total invoiced amount by Contractor. Each invoice so approved and paid shall constitute full and complete National City Public Library Amendment 03 Page 2 of 16 FIRST 5 COMMISSION OF SAN DIEGO CONTRACT NUMBER: 515385 AGREEMENT WITH NATIONAL CITY PUBLIC LIBRARY "FIRST 5 FOR PARENTS" PROJECTS — WORDS on WHEELS mobile (WOWmobile) compensation to Contractor for the work product submitted and for all work completed during the billing period pursuant to Exhibit A and Exhibit C. Payment shall be NET 30 days from receipt and approval of invoice unless otherwise stated. 4.3.3 Full Compensation. Pending any adjustments by the COTR, each invoice approved and paid shall constitute full and complete compensation to the Contractor for all work completed during the billing period pursuant to Exhibit A and Exhibit C. Contractor shall be entitled only to compensation, benefits, reimbursements or ancillary services specified in this Agreement. 4.3.4 Conditions Prerequisite to Payments. Commission may elect not to make a particular payment if any of the following exists: 4.3.4.1 Misrepresentation. Contractor, with or without knowledge, made any misrepresentation of substantial and material nature with respect to any information furnished to Commission. 4.3.4.2 Unauthorized Actions by Contractor. Contractor took any action pertaining to this Agreement, which required Commission approval, without having first received said Commission approval. 4.3.4.3 Default. Contractor was in default under any terms and conditions of this Agreement. 4.3.5 Withholding Of Payment. Commission may withhold payment until reports, data, audits or other information required for Agreement administration or to meet Commission or State reporting or auditing requirements are received and approved by the Commission's Executive Director or his or her designee or designee. The Commission may also withhold payment if, in the Commission's opinion, Contractor is in non-compliance with this Agreement. 4.3.6 Availability of Funding. The Commission's obligation for payment of any Agreement beyond the current fiscal year is contingent upon the availability of funding from which payment can be made. No legal liability on the part of the Commission shall arise for payment beyond June 30, 2007, of the calendar year unless funds are designated by the Commission and are made available for such performance. Commission shall, in its sole discretion, have the right to terminate or suspend Agreement or reduce compensation and service levels proportionately upon thirty (30) days' written notice to Contractor in the event that Federal, State or Commission funding for this Agreement ceases or is reduced prior to the ordinary expiration of the term of this Agreement. In the event of reduction of funding for the Agreement, Commission, and Contractor shall meet within ten (10) days of written notice to renegotiate this Agreement based upon the modified level of funding. In this case if no agreement is reached between Commission and Contractor within 10 days of the first meeting, either party shall have the right to terminate this Agreement within ten (10) days written notice of termination. In the event of termination of this Agreement in accordance with the terms of this Section, Contractor shall be entitled to retain all sums paid as of the effective date of such termination, subject to any payment offset to which Commission may be entitled, for damages or otherwise, under the terms of this Agreement. In the event of termination of this Agreement pursuant to this Section, in no event shall Contractor be entitled to any loss of profits on the portion of this Agreement so terminated, or to other compensation, benefits, reimbursements, or ancillary services other than as herein expressly provided. 4.3.7 Disallowance. In the event the Contractor receives payment for services under this Agreement which is later disallowed by the Commission, Contractor shall promptly refund the disallowed amount to Commission on request, or at its option, Commission may offset the amount disallowed from any payment due or to become due to Contractor under any Agreement with the Commission. 4.3.8 Maximum Price. During the performance period of this Agreement, the maximum price for the items and/or services shall not exceed the lowest price at which Contractor then offers the items and/or services to its most favored customer. 4.3.9 Budget Adjustments. The approved budget provides specific categories and line items within categories. 4.3.9.1 If Contractor desires to reallocate dollars from one line item to another line item in a category and the total dollars is less than 10% of the total budget, Contractor may reallocate the dollars and shall report the reallocation on the following monthly invoice. 4.3.9.2 If contractor desires to reallocate dollars from one budget category to another or move more than 10% of the total contract dollars within a category, a written request shall be made to the COTR (or designee) and approved prior to the budget adjustment. National City Public Library Amendment 03 Page 3 of 16 FIRST 5 COMMISSION OF SAN DIEGO CONTRACT NUMBER: 515385 AGREEMENT WITH NATIONAL CITY PUBLIC LIBRARY "FIRST 5 FOR PARENTS" PROJECTS — WORDS on WHEELS mobile (WOWmobile) 4.3.9.3 Contractor shall provide Commission a revised budget and budget narrative within 15 days of all budget adjustments. 4.4 Prompt Payment for Vendors and Subcontractors. 4.4.1 Unless otherwise set forth in this paragraph, Contractor shall promptly pay its vendors and subcontractors for satisfactory performance under its subcontractor(s) to this Agreement. Such prompt payment shall be no later than thirty (30) days after Contractor receives payment of such service from Commission and shall be paid out of such amounts as are paid to contractor under this Agreement. 4.4.2 Contractor shall include a payment clause conforming to the standards set forth in the above paragraph of this Agreement in each of its subcontracts, and shall require each of its subcontractors to include such a clause in their subcontracts with each lower -tier subcontractor or supplier. ARTICLE 5 AGREEMENT ADMINISTRATION 5.1 Commission's Agreement Administrator. The Commission's Executive Director or his or her designee is designated as the Contracting officer ("Contracting Officer") and is the only Commission official authorized to make any Changes to this Agreement. The Commission has designated the individual identified on the signature page as the Contracting Officer's Technical Representative ("COTR") 5.1.1 Commission's Executive Director or his or her designee will chair Contractor progress meetings and will coordinate Commission's Agreement administrative functions. The Commission's Executive Director or his or her designee is designated to receive and approve Contractor invoices for payment, audit and inspect records, inspect Contractor services, and provide other technical guidance as required. 5.2 Agreement Progress Meeting_ The Commission's Executive Director or his or her designee and other Commission personnel, as appropriate, will meet periodically with the Contractor to review the Agreement performance. At these meetings the Commission's Executive Director or his or her designee will apprise the Contractor of how the Commission views the Contractor's performance and the Contractor will apprise the Commission of problems, if any, being experienced. The Contractor shall also notify the Commission's Executive Director or his or her designee (in writing) of any work being performed, if any, that the Contractor considers being over and above the requirements of the Agreement. Appropriate action shall be taken to resolve outstanding issues. The minutes of these meetings will be reduced to writing and signed by the Commission's Executive Director or his or her designee and the Contractor. Should the Contractor not concur with the minutes, the Contractor shall set out in writing any area of disagreement. Appropriate action will be taken to resolve any areas of disagreement. ARTICLE 6 CHANGES 6.1 Commissions Executive Director or His or Her Designee. The Commission's Executive Director or his or her designee may at any time, by a written order, make changes ("Changes"), within the general scope of this Agreement, in the definition of services to be performed, and the time (i.e.) hours of the day, days of the week, etc.), and place of performance thereof If any such Change causes an increase or decrease in the cost of, or the time required for, the performance of any part of the work under this Agreement, whether changed or not changed by an such order, an equitable adjustment shall be made in the Agreement price or delivery schedule, or both, and the Agreement shall be modified in writing accordingly. 6.2 Claims. Contractor must assert any claim for adjustment under this clause within 30 days from the date of receipt by the Contractor of the notification of Change; provided, however, that the Commission's Executive Director or his or her designee, if he or she decides that the facts justify such action, may receive and act upon any such claim asserted at any time prior to final payment under this Agreement. Where the cost of property made obsolete or excess as a result of a change is included in the Contractor's claim for adjustment, the Commission's Executive Director or his or her designee shall have the right to prescribe the manner of disposition of such property. Failure to agree to any adjustment shall be a dispute concerning a question of fact within the meaning of the clause of this Agreement entitled "Disputes" (Article 15). However, nothing in this clause shall excuse the Contractor from proceeding with this Agreement as changed. National City Public Library Amendment 03 Page 4 of 16 FIRST 5 COMMISSION OF SAN DIEGO CONTRACT NUMBER: 515385 AGREEMENT WITH NATIONAL CITY PUBLIC LIBRARY "FIRST 5 FOR PARENTS" PROJECTS — WORDS on WHEELS mobile (WOWmobile) ARTICLE 7 TERMINATION 7.1 Termination for Default. Upon Contractor's breach of this Agreement, Commission shall have the right to terminate this Agreement, in whole or part. Prior to termination for default, Commission will send Contractor written notice specifying the cause. The notice will give Contractor 10 days from the date the notice is issued to cure the default or make progress satisfactory to Commission in curing the default, unless a different time is given in the notice. If Commission determines that the default contributes to the curtailment of an essential service or poses an immediate threat to life, health or property, Commission may terminate this Agreement immediately upon issuing oral or written notice to the Contractor without any prior notice or opportunity to cure. In the event of termination under this Article, all finished or unfinished documents, and other materials, prepared by Contractor under this Agreement shall become the sole and exclusive property of Commission. In the event of such termination, the Commission may purchase or obtain the supplies or services elsewhere, and Contractor shall be liable for the difference between the prices set forth in the terminated order and the actual cost thereof to the Commission. The prevailing market price shall be considered the fair repurchase price. Notwithstanding the above, Contractor shall not be relieved of liability to Commission for damages sustained by Commission by virtue of any breach of this Agreement by Contractor, and Commission may withhold any reimbursement to Contractor for the purpose of off -setting until such time as the exact amount of damages due Commission from Contractor is determined. 7.1.1 If, after notice of termination of this Agreement under the provisions of this clause, it is determined for any reason that the Contractor was not in default under the provisions of this clause, the rights and obligations of the parties shall, if this Agreement contains a clause providing for termination for convenience of the Commission, be the same as if the notice of termination had been issued pursuant to such clause. 7.2 Damages for Delay. If Contractor refuses or fails to prosecute the work, or any separable part thereof, with such diligence as shall ensure its completion within the time specified in this Agreement, or any extension thereof, or fails to complete said work within such time, Commission will be entitled to the resulting damages caused by the delay. Damages will be the cost to Commission incurred as a result of continuing the current level and type of service over that cost that would be incurred had the Agreement segments been completed by the time frame stipulated and any other damages suffered by Commission. 7.3 Commission Exemption from Liability. In the event there is a reduction of funds made available by Commission to Contractor under this or subsequent Agreements, the Commission and the County, their officers and employees shall incur no liability to Contractor and shall be held harmless from any and all claims, demands, losses, damages, injuries, or liabilities arising directly or from such action. 7.4 Termination for Convenience. The Commission may, by written notice stating the extent and effective date, terminate this Agreement for convenience in whole or in part, at any time. The Commission shall pay the Contractor as full compensation for performance until such termination: 7.4.1 The unit or pro rata price for any delivered and accepted portion of the work. 7.4.2 A reasonable amount, as costs of termination, not otherwise recoverable from other sources by the Contractor as approved by the Commission, with respect to the undelivered or unaccepted portion of the order, provided compensation hereunder shall in no event exceed the total price. 7.4.3 In no event shall the Commission be liable for any loss of profits on the resulting order or portion thereof so terminated. 7.5 Suspension Of Work. The Commission's Executive Director or his or her designee may order the Contractor, in writing, to suspend, delay, or interrupt all or any part of the work of this contract for the period of time that the Commission's Executive Director or his or her designee determines appropriate for the convenience of the Commission. 7.6 Remedies Not Exclusive. The rights and remedies of Commission provided in this article shall not be exclusive and are in addition to any other rights and remedies provided by law or under resulting order. 7.7 Full Cost Recovery Of Investigation And Audit Costs. Contractor shall reimburse the Commission for all direct and indirect expenditures incurred in conducting an audit/investigation when Contractor is found in violation (material breach) of the terms of the Agreement. Reimbursement for such costs shall be withheld from any amounts due to Contractor pursuant to the payment terms of the Agreement, or from any other amounts due to Contractor from Commission. National City Public Library Amendment 03 Page 5 of 16 FIRST 5 COMMISSION OF SAN DIEGO CONTRACT NUMBER: 515385 AGREEMENT WITH NATIONAL CITY PUBLIC LIBRARY "FIRST 5 FOR PARENTS" PROJECTS — WORDS on WHEELS mobile (WOWmobile) ARTICLE 8 COMPLIANCE WITH LAWS AND REGULATIONS 8.1 Conformance With Rules And Regulations. Contractor shall be in conformity with all applicable federal, State, Commission, and local laws, rules, and regulations, current and hereinafter enacted, including facility and professional licensing and/or certification laws and keep in effect any and all licenses, permits, notices and certificates as are required. Contractor shall further comply with all laws applicable to wages and hours of employment, occupational safety, and to fire safety, health and sanitation. 8.2 Contractor Permits and License. Contractor certifies that it possesses and shall continue to maintain or shall cause to be obtained and maintained, at no cost to the Commission, all approvals, permissions, permits, licenses, and other forms of documentation required for it and its employees to comply with all existing foreign or domestic statutes, ordinances, and regulations, or other laws, that may be applicable to performance of services hereunder. The Commission reserves the right to reasonably request and review all such applications, permits, and licenses prior to the commencement of any services hereunder. 8.3 Equal Opportunity. Contractor shall comply with the provisions of Title VII of the Civil Rights Act of 1964 in that it will not discriminate against any individual with respect to his or her compensation, terms, conditions, or privileges of employment nor shall Contractor discriminate in any way that would deprive or intend to deprive any individual of employment opportunities or otherwise adversely affect his or her status as an employee because of such individual's race, color, religion, sex, national origin, age, handicap, medical condition, sexual orientation or marital status. 8.4 Affirmative Action. Each Contractor of services and supplies employing fifteen (15) or more full-time permanent employees, shall comply with the Affirmative Action Program for Vendors as set forth in Article IIIk (commencing at Section 84) of the San Diego Commission Administrative Code, which program is incorporated herein by reference. A copy of this Affirmative Action Program will be furnished upon request by COTR or from the Commission of San Diego Internet web -site (www.co .san-diego.ca. us). 8.5 Non Discrimination. Contractor shall ensure that services and facilities are provided without regard to ethnic group identification, race, color, nation origin, creed, religion, age, sex, or physical, mental disability, political affiliation and marital status in accordance with Title IX of the Education Amendments of 1972; Title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000-d), the Age Discrimination of 1975 (42 U.S.C. 6101), Article 9.5, Chapter 1, Part 1, Division 2, Title 2 (Section 11135, et seq) of the California Government Code, Title 9, Chapter 4, Subchapter 6 (Section 10800, et seq.) of the CCR and California Dept of Social Services Manual of Policies and Procedures (CDSS MPP) Division 21. 8.6 AIDS Discrimination. Contractor shall not deny any person the full and equal enjoyment of, or impose less disadvantageous terms, or restrict the availability of, the use of any Commission facility or participation in any Commission funded or supported service or program on the grounds that such person has Acquired Immune deficiency Syndrome, AIDS -related complex (ARC), or AIDS -related status (ARS), as those terms are defined in Chapter 1, Section 32.1203, San Diego Commission Code of Regulatory Ordinances. 8.7 Americans With Disabilities Act (ADA) 1990. Contractor shall not discriminate against qualified people with disabilities in employment, public services, transportation, public accommodations and telecommunications services in compliance with the Americans with Disabilities Act (AI)A) and California Administrative Code Title 24. 8.8 Political Activities Prohibited. None of the funds, provided directly or indirectly, under this Agreement shall be used for any political activities or to further the election or defeat of any candidate for public office. Contractor shall not utilize or allow its name to be utilized in any endorsement of any candidate for elected office. Neither the Agreement nor any funds provided hereunder shall be utilized in support of any partisan political activities, or activities for or against the election of a candidate for an elected office. 8.9 Lobbying. Contractor agrees to comply with the lobbying ordinances of the County of San Diego and to assure that its officers and employees comply before any appearance before the Commission. None of the funds provided under this Agreement shall be used for publicity or propaganda purposes designed to support or defeat any legislation pending before State and Federal Legislatures or the Board of Supervisors of the County of San Diego. 8.10 Religious Activity Prohibited. There shall be no religious worship, instructions or proselytization as part of or in connec- tion with the performance of this Agreement. 8.11 Drug and Alcohol -Free Workplace. The Commission, in recognition of individual rights to work in a safe, healthful and productive work place, has adopted a requirement for a dnig and alcohol free work place. 8.11.1 As a material condition of this Agreement, the Contractor agrees that the Contractor and the Contractor employees, while performing service for the Commission, on Commission property, or while using Commission equipment: National City Public Library Amendment 03 Page 6 of 16 FIRST 5 COMMISSION OF SAN DIEGO CONTRACT NUMBER: 515385 AGREEMENT WITH NATIONAL CITY PUBLIC LIBRARY "FIRST 5 FOR PARENTS" PROJECTS — WORDS on WHEELS mobile (WOWmobile) 8.11.1.1 Shall not be in any way impaired because of being under the influence of alcohol or a drug. 8.11.1.2 Shall not possess an open container of alcohol or consume alcohol or possess or be under the influence of an illegal drug. 8.11.1.3 Shall not sell, offer, or provide alcohol or a drug to another person; provided, however, that the foregoing restriction shall not be applicable to a Contractor or Contractor employee who as part of the performance of normal job duties and responsibilities prescribes or administers medically prescribed drugs. 8.11.2 Contractor shall inform all employees who are performing service for the Commission on Commission property or using Commission equipment of the Commission objective of a safe, healthful and productive work place and the prohibition of drug or alcohol use or impairment from same while performing such service for the Commission. 8.11.3 The Commission may terminate for default or breach this Agreement, and any other Agreement the Contractor has with the Commission, if the Contractor, or Contractor employees are determined by the Commission's Executive Director or his or her designee not to be in compliance with the conditions listed herein. 8.12 Cartwright Act. Following receipt of final payment under the Agreement, Contractor assigns to the Commission all rights, title and interest in and to all causes of action it may have under Section 4 of the Clayton Act (15 U.S.C. Sec. 15) or under the Cartwright act (Chapter 1) (commencing with Section 16700) of Part 2 of Division 7 of the Business and Professions Code), arising from purchases of goods, materials, or services by the Contractor for sale to the Commission under this Agreement. 8.13 Zero Tolerance in Coaching Medi-Cal Or Welfare Clients (Including Undocumented Immgrants). The County of San Diego in recognition of its unique geographical location and the utilization of Welfare and Medi-Cal system by foreign nationals who are not legal residents of this county or country, has adopted a Zero Tolerance policy and shall aggressively prosecute employees and Contractors who coach Medi-Cal or Welfare clients (including undocumented immigrants), to obtain services for which they are not otherwise entitled. 8.13.1 As a material condition of this Agreement, Contractor agrees that the Contractor and Contractor's employees, while performing service for the County, on County property or while using County equipment shall not: 8.13.2 In any way coach, instruct, advise, or guide any Medi-Cal or Welfare clients or prospective clients who are undocumented immigrants on ways to obtain or qualify for Medi-Cal assistance, for which they are not otherwise entitled. 8.13.3 Support or provide funds to any organization engaged directly or indirectly in advising undocumented immigrants on ways to obtain or qualify for Medi-Cal assistance, for which they are not otherwise entitled. Contractor shall inform all employees that are performing service for the County on County property or using County equipment of County's Zero Tolerance Policy as referenced herein. County may terminate for default or breach this Agreement and any other Agreement Contractor has with County, if Contractor or Contractor employees are determined not to be in compliance with the conditions stated herein. 8.14 Hazardous Materials. Contractor shall comply with all Environmental Laws and all other laws, rules, regulations, and requirements regarding Hazardous Materials, health and safety, notices, and training. Contractor agrees that it will not store any Hazardous Materials at any Commission Facility for periods in excess of ninety (90) days or in violation of the applicable site storage limitations imposed by Environmental Law. Contractor agrees to take, at its expense, all actions necessary to protect third parties, including, without limitation, employees and agents of the Commission, from any exposure to Hazardous Materials generated or utilized in its performance under this Agreement. Contractor agrees to report to the appropriate governmental agencies all discharges, releases, and spills of Hazardous Materials that are required to be reported by any Environmental Law and to immediately notify the Commission of it. Contractor shall not be liable to the Commission for the Commission's failure to comply with, or violation of, any Environmental Law. As used in this section, the term "Environmental Laws" means any and all federal, state or local laws or ordinances, rules, decrees, orders, regulations or court decisions (including the so-called "common law"), including, but not limited to, the Resource Conservation and Recovery Act, relating to hazardous substances, hazardous materials, hazardous waste, toxic substances. environmental conditions or other similar substances or conditions. As used in this section the term "Hazardous Materials" means any chemical, compound, material, substance or other matter that: (a) is a flammable, explosive, asbestos, radioactive nuclear medicine, vaccine, bacteria, virus, hazardous waste, toxic, overtly injurious or potentially injurious material, whether injurious or potentially injurious by itself or in combination with other materials; (b) is controlled, referred to, designated in or governed by any Environmental Laws; (c) gives rise to any reporting, notice or publication National City Public Library Amendment 03 Page 7 of 16 FIRST 5 COMMISSION OF SAN DIEGO CONTRACT NUMBER: 515385 AGREEMENT WITH NATIONAL CITY PUBLIC LIBRARY "FIRST 5 FOR PARENTS" PROJECTS — WORDS on WHEELS mobile (WOWmobile) requirements under any Environmental Laws, or (d) is any other material or substance giving rise to any liability, responsibility or duty upon the Commission or Lessee with respect to any third person under any Environmental Laws. 8.15 Debarment and Suspension. As a sub -grantee of federal funds under this Agreement, Contractor certifies that it, its principals, its employees and its subcontractors: 8.15.1 Are not presently debarred, suspended, proposed for debarment, declared ineligible or voluntarily excluded from covered transactions by any Federal Department or agency. 8.15.2 Have not within a 3-year period preceding this Agreement been convicted of or had a civil judgment rendered against them for the commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (Federal, State, or local) transaction; violation of Federal or State anti-trust statutes or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property; 8.15.3 Are not presently indicted or otherwise criminally or civilly charged by a government entity (Federal, State, or local) with commission of any of the offenses enumerated in the paragraph above; and Have not within a 3-year period preceding this Agreement had one or more public transaction (Federal, State, or local) terminated for cause or default. 8.16 Staffing Requirements. Contractor's employees and volunteers, who work on this contract and work directly with minors, shall have the following clearances completed by the Contractor prior to employment. Contractor shall immediately remove an employee or volunteer with an unresolved negative clearance. 8.16.1 Trustline or Equivalent. Contractor's employees and volunteers shall successfully register with and receive an appropriate clearance by "Trustline," http://www.trustline.org/, or equivalent organization that conducts criminal background checks for persons who work with minors. 8.16.2 Drug Questionnaire. Contractor's employees and volunteers shall be tested for tuberculosis and shall not be infectious for tuberculosis. 8.16.3 References. Contractor's employees and volunteers shall provide personal and prior employment references, Contractor shall verify reference information, and employees and volunteers shall not have any unresolved negative references for working with minor. ARTICLE 9 CONFLICTS OF INTEREST; CONTRACTOR'S CONDUCT 9.1 Conflicts of Interest. Contractor presently has no interest, including but not limited to other projects or independent Agreements, and shall not acquire any such interest, direct or indirect, which would conflict in any manner or degree with the performance of services required to be performed under this Agreement. The Contractor shall not employ any person having any such interest in the performance of this Agreement. Contractor shall not hire Commission's employees to per- form any portion of the work or services provided for herein including secretarial, clerical and similar incidental services except upon the written approval of Commission. Without such written approval, performance of services under this Agreement by associates or employees of Commission shall not relieve Contractor from any responsibility under this Agreement. 9.2 Conduct of Contractor; Privileged Information. 9.2.1 Contractor shall infonn the Commission of all the Contractor's interests, if any, which are or which the Contractor believes to be incompatible with any interests of the Commission. 9.2.2 The Contractor shall not, under circumstances that might reasonably be interpreted as an attempt to influence the recipient in the conduct of his duties, accept any gratuity or special favor from individuals or organizations with whom the Contractor is doing business or proposing to do business, in accomplishing the work under this Agreement. 9.2.3 Contractor shall not use for personal gain or make other improper use of privileged information, which is acquired in connection with his employment. In this connection, the term "privileged information" includes, but is not limited to, unpublished information relating to technological and scientific development; medical, personnel, or security records of the individuals; anticipated materials requirements or pricing actions; and knowledge of selections of Contractors or subcontractors in advance of official announcement. National City Public Library Amendment 03 Page 8 of 16 FIRST 5 COMMISSION OF SAN DIEGO CONTRACT NUMBER: 515385 AGREEMENT WITH NATIONAL CITY PUBLIC LIBRARY "FIRST 5 FOR PARENTS" PROJECTS — WORDS on WHEELS mobile (WOWmobile) 9.2.4 The Contractor, or employees thereof, shall not offer directly or indirectly gifts, gratuity, favors, entertainment, or other items of monetary value to an employee or official of the Commission. 9.2.5 Referrals. Contractor further covenants that no referrals of clients through Contractor's intake or referral process shall be made to the private practice of any person(s) employed by the Contractor. 9.4 Limitation of Future Agreements Or Grants. It is agreed by the parties to the Agreement that Contractor shall be restricted in its future contracting with the Commission to the manner described below. Except as specifically provided in this clause, Contractor shall be free to compete for business on an equal basis with other companies. 9.4.1 If Contractor, under the terms of the Agreement, or through the performance of tasks pursuant to this Agreement, is required to develop specifications or statements of work and such specifications or statements of work are to be incorporated into a solicitation, Contractor shall be ineligible to perform the work described within that solicitation as a prime or subcontractor under an ensuing Commission Agreement. It is further agreed, however, that Commission will not, as additional work, unilaterally require Contractor to prepare such specifications or statements of work under this Agreement. 9.4.2 Contractor may not apply for nor accept additional payments for the same services contained in the Statement of Work. ARTICLE 10 INDEMNITY AND INSURANCE 10.1 Indemnity. Commission shall not be liable for, and Contractor shall defend and indemnify Commission and the County and their employees and agents of Commission (collectively "Commission Parties"), against any and all claims, demands, liability, judgments, awards, fines, mechanics' liens or other liens, labor disputes, losses, damages, expenses, charges or costs of any kind or character, including attorneys' fees and court costs (hereinafter collectively referred to as "Claims"), related to this Agreement and arising either directly or indirectly from any act, error, omission or negligence of Contractor or its Contractors, licensees, agents, servants or employees, including, without limitation, Claims caused by the concurrent negligent act, error or omission, whether active or passive, of Commission Parties. Contractor shall have no obligation, however, to defend or indemnify Commission Parties from a Claim if it is determined by a court of competent jurisdiction that such Claim was caused by the sole negligence or willful misconduct of Commission Parties. 10.2 Insurance. Prior to execution of this Agreement, Contractor must obtain at its own cost and expense, and keep in force and effect during the term of this Agreement, including all extensions, the insurance specified in Exhibit "B," "Insurance Requirements," attached hereto. ARTICLE 11 AUDIT AND INSPECTION OF RECORDS The Commission shall have the audit and inspection rights described in this section. 11.1 Audit and Inspection. Contractor agrees to maintain and/or make available within San Diego County accurate books and accounting records relative to all its activities under this Agreement. Authorized federal, State or Commission representa- tives shall have the right to monitor, assess, or evaluate Contractor's performance pursuant to this Agreement, said monitoring, assessments, or evaluations to include but not limited to audits, inspection of premises, reports, and interviews of project staff and participants. At any time during normal business hours and as often as Commission may deem necessary, Contractor shall make available to Commission, State or federal officials for examination all of its records with respect to all matters covered by this Agreement and will permit Commission, State or federal officials to audit, examine and make excerpts or transcripts from such records, and to make audits of all invoices, materials, payrolls, records of personnel, information regarding clients receiving services, and other data relating to all matters covered by this Agreement. If an audit is conducted, it will be done in accordance with generally accepted government auditing standards as described in "Government Auditing Standards," published for the United States General Accounting Office. If any services performed hereunder are not in conformity with the specifications and requirements of this Agreement, Commission shall have the right to require the Contractor to perform the services in conformity with said specifications and requirements at no additional increase in total Agreement amount. When the services to be performed are of such nature that the difference cannot be corrected, Commission shall have the right to (1) require Contractor immediately to take all necessary steps to ensure future performance of the services in conformity with requirements of the Agreement, and (2) reduce the Agreement price to reflect the reduced value of the services performed. En the event Contractor fails to perform National City Public Library Amendment 03 Page 9 of 16 FIRST 5 COMMISSION OF SAN DIEGO CONTRACT NUMBER: 515385 AGREEMENT WITH NATIONAL CITY PUBLIC LIBRARY "FIRST 5 FOR PARENTS" PROJECTS — WORDS on WHEELS mobile (WOWmohile) the services promptly or to take necessary steps to ensure future performance of the service in conformity with the specif- ications and requirements of the Agreement, Commission shall have the right to either (I) by Agreement or to otherwise have the services performed in conformity with the Agreement specifications and charge to Contractor any cost occasioned to Commission that is directly related to the performance of such services, or (2) terminate this Agreement for default as provided in the Termination clause. 11.2 Cost or Pricing Data. If the Contractor submitted cost or pricing data in connection with the pricing of this Agreement or any change or modification thereto, unless such pricing was based on adequate price competition, established catalog or market prices of commercial items sold in substantial quantities of the general public, or prices set by law or regulation, the Contracting Officer or his or her representatives who are employees of the Commission or its agent shall have the right to examine all books, records, documents and other data of the Contractor related to the negotiation pricing or performance of such Agreement, change or modification, for the purpose of evaluating the accuracy, completeness and currency of the cost or pricing data submitted. 11.3 Availability. The materials described above shall be made available at the office of the Contractor, at all reasonable times, for inspection, audit or reproduction, until the expiration of three (3) years from the date of final payment under this Agreement, or by section 11.3.1 and 11.3.2, below: 11.3.1 If this Agreement is completely or partially terminated, the records relating to the work terminated shall be made available for a period of three (3) years from the date of any resulting final settlement. 11.3.2 Record which relate to appeals under the "Disputes" clause of this Agreement, or litigation or the settlement of claims arising out of the performance of this Agreement, shall be made available until such appeals, litigation, or claims have been disposed of, or three years after Agreement completion, whichever is longer. 11.4 Subcontract. The Contractor shall insert a clause containing all the provisions of this Article 11 in all subcontract hereunder except altered as necessary for proper identification of the Contracting parties and the Commission's Executive Director or his or her designee under the Commission's prime Agreement. ARTICLE 12 INSPECTION OF SERVICE 12.1 Subject to Inspection. All performance (including services, materials, supplies and equipment furnished or utilized in the performance of this Agreement, and workmanship in the performance of services) shall be subject to inspection and test by the Commission at all times during the term of this Agreement. Contractor shall cooperate with any inspector assigned by the Commission to permit the inspector to determine whether Contractor's performance conforms to the requirements of this Agreement. Commission shall perform such inspection in a manner as not to unduly interfere with Contractor's performance. 12.2 Specification and Requirements. If any services performed by Contractor do not conform to the specifications and requirements of this Agreement, Commission may require Contractor to re -perform the services until they conform to said specifications and requirements, at no additional cost, and Commission may withhold payment for such services until Contractor correctly performs them. When the services to be performed are of such a nature that Contractor cannot correct its performance, the Commission shall have the right to (1) require the Contractor to immediately take all necessary steps to ensure future performance of services conforms to the requirements of this Agreement, and (2) reduce the Agreement price to reflect the reduced value of the services received by Commission. In the event Contractor fails to promptly re - perform the services or to take necessary steps to ensure that future performance of the service conforms to the specifications and requirements of this Agreement, the Commission shall have the right to either (1) without terminating this Agreement, have the services performed, by Agreement or otherwise, in conformance with the specifications of this Agreement, and charge Contractor, and/or withhold from payments due to Contractor, any costs incurred by Commission that are directly related to the performance of such services, or (2) terminate this Agreement for default. ARTICLE 13 USE OF DOCUMENTS AND REPORTS 13.1 Findings Confidential. Any reports, information, data, etc., given to or prepared or assembled by Contractor under this Agreement which the Commission requests to be kept as confidential shall not be made available to any individual or organization by the Contractor without the prior written approval of the Commission. 13.2 Ownership, Publication. Reproduction And Use Of Material. All reports, studies, information, data, statistics, forms, designs, plans, procedures, systems, and any other material or properties produced under this Agreement shall be the sole National City Public Library Amendment 03 Page 10 of 16 FIRST 5 COMMISSION OF SAN DIEGO CONTRACT NUMBER: 515385 AGREEMENT WITH NATIONAL CITY PUBLIC LIBRARY "FIRST 5 FOR PARENTS" PROJECTS — WORDS on WHEELS mobile (WOWmobile) and exclusive property of Commission. No such materials or properties produced in whole or in part under this Agreement shall be subject to private use, copyright or patent right by Contractor in the United States or in any other country without the express written consent of Commission. Commission shall have unrestricted authority to publish, disclose, distribute and otherwise use, copyright or patent, in whole or in part, any such reports, studies, data, statistics, forms or other materials or properties produced under this Agreement. 13.3 Confidentiality. Commission and Contractor agree to maintain confidentiality of any information regarding applicants, project participants or their immediate families which may be obtained through application forms, interviews, tests, reports, from public agencies or counselors or any other source. Without the written permission of the applicant or participant, such information shall be divulged only as necessary for purposes related to the audit and evaluation of the Agreement and then only to persons having responsibilities under the Agreement, including those furnishing services to Project under subcontract. Commission and Contractor agree that all information and records obtained in the course of providing services to project clients shall be subject to confidentiality and disclosure provisions of applicable Federal and State statutes and regulations adopted pursuant thereto. However, at Commission's request, Contractor shall permit Commission access to all records and information regarding the project and confidentiality shall not be a bar to Commission's access to all records and information. 13.4 Maintenance of Records. Contractor shall maintain and keep available all records within San Diego County for a minimum of three (3) years from the ending date of this Agreement unless Commission agrees in writing to an earlier disposition. 13.5 Custody of Records. Commission, at its option, may take custody of Contractor's client records upon Agreement termina- tion or at such other time, as Commission may deem necessary. Commission agrees that such custody will conform to applicable confidentiality provisions of State and federal law. Said records shall be kept by Commission in an accessible location within San Diego County and shall be available to Contractor for examination and inspection. 13.6 Audit Requirement. At the option of the Commission, upon Commission request, Contractor shall engage a Licensed Certified Public Accountant to conduct an annual audit of their agency's operations. Contractors that expend $500,000 or more of federal grant funds per year shall have an audit conducted in compliance with Government Auditing Standards, which includes Single Audit Act Amendments, Public Law 104-156, and OMB Circular A-133. Contractor shall include a clause in any Agreement or agreement Contractor enters into with an audit firm to provide access by the Commission, State, and Federal Government to the working papers of the independent auditor who prepare the audit for Contractor. Contractor shall submit two (2) copies of the annual report and the management letter to the Commission no later than fifteen (15) days after receipt from the independent Certified Public Accountant. 13.7 Reports. Contractor shall submit reports required in Exhibit A and additional reports as may be requested by the Commission's Executive Director or his or her designee and agreed to by the Contractor. Format for the content of such reports may be developed by Commission. The timely submission of these reports is a necessary and material term and condition of this Agreement, and Contractor agrees that failure to meet specified deadlines will be sufficient cause to withhold payment. 13.7.1 Contractor shall provide quarterly written progress reports detailing the status of all funded activities and/or services from the effective date of this Agreement, due on the following dates: • October 31, 2009 for Jul, Aug, Sept 2009 • January 31, 2010 for Oct, Nov, Dec 2009 • April30, 2010 for Jan, Feb, liar 2010 • July 31, 2010 for Apr, May, June 2010 13.7.2 Contractor shall also provide a final written report specifying a summary of activities and accomplishments for the contract period due no later than 30 calendar days from the end date of this Agreement. 13.8 Evaluation Studies. Contractor shall participate as requested by the Commission in research and/or evaluation studies designed to show the effectiveness and/or efficiency of contractor services or to provide information about Contractor's project. Contractor shall work with and coordinate program evaluation and measures with local and State Commissions to that Contractor's data collection and reports will be in compliance with local and State evaluation requirements. Contractor shall collect data, using the tools and protocols identified by the Commission. Contractor shall cooperate with Commission's Evaluation Coordinator, who will provide technical assistance to Contractor in their proposed evaluation, to ensure a meaningful connection to the Commission's Evaluation Framework, and to develop an evaluation implementation plan. Contractor shall abide by all evaluation expectations and requirements as noted elsewhere in this document. [Exhibit A-1, Section 8 - Evaluation] National City Public Library Amendment 03 Page 1•oC16 FIRST 5 COMMISSION OF SAN DIEGO CONTRACT NUMBER: 515385 AGREEMENT WITH NATIONAL CITY PUBLIC LIBRARY "FIRST 5 FOR PARENTS" PROJECTS — WORDS on WHEELS mobile (WOWmobile) 13.8.1 Data System. Contractor agrees to participate in a comprehensive, countywide, internet-based evaluation and management process as identified by the Commission. Contractor shall input the program, financial and outcome data specified by the Commission into its Contract Management and Evaluation Data System (CMEDS) at the intervals identified in this contract. (Reporting shall be, at minimum, performed on a quarterly basis for Commission contracts, but may be required more frequently.) 13.8.2 Reporting Schedule. Contractor shall submit complete an accurate data and reports within thirty (30) days after the end of each reporting period, in accordance with the schedule outlined in Section 13.7 of this Agreement. End of year reports shall be submitted no later than thirty (30) days after the end of the fiscal year. Commission may withhold payment if said data and reports are not received within forty-five (45) days following the end of the reporting period. 13.8.3 Informed Consent. Contractor shall obtain informed consent in accordance with the process and requirements defined by the Commission for this project. Contractor shall be required to retain a signed copy of the consent form or documentation of verbal consent in such manner that consent can be verified. [3.8.4 Confidentiality for Evaluation and Research. Contractor and Commission shall maintain the confidentiality of all records, including any hard copies, and/or electronic or computer based data, and/or audio and/or video recording. Records shall be handled and maintained in accordance with all applicable state and federal codes and regulations relating to privacy and confidentiality, as well as with the Commission's Guidelines for Protection of Human Subjects and Data Security for Research and Evaluation Activities. ARTICLE 14 RESERVED ARTICLE 15 DISPUTES Notwithstanding any provision of this Agreement to the contrary, the Commission's Executive Director or his or her designee shall decide any dispute concerning a question of fact arising out of this Agreement that is not otherwise disposed of by the parties within a reasonable period of time. The decision of the Commission's Executive Director or his or her designee shall be final and conclusive unless determined by a court of competent jurisdiction to have been fraudulent, capricious, arbitrary or so grossly erroneous as necessarily to imply bad faith. Contractor shall proceed diligently with its performance hereunder pending resolution by the Commission's Executive Director or his or her designee of any such dispute. Nothing herein shall be construed as granting the Commission's Executive Director or his or her designee or any other administrative official, representative or board authority to decide questions of law. ARTICLE 16 GENERAL PROVISIONS 16.1 Assignment and Subcontracting. Contractor shall not assign any interest in this Agreement, and shall not transfer any interest in the same (whether by assignment or novation), without the prior written consent of the Commission; Commission's consent shall not be unreasonably withheld. The Contractor shall make no Agreement with any party for furnishing any of the work or services herein contained without the prior written consent of the Commission's Executive Director or his or her designee, pursuant to Paragraph 1.4. 16.2 Entire Agreement. This Agreement, together with all Sections attached hereto and other agreements expressly referred to herein, constitute the entire agreement between the parties with respect to the subject matter contained herein. All prior or contemporaneous agreements, understandings, representations, warranties and statements, oral or written, including any proposals from Contractor and requests for proposals from Commission, are superseded. 16.3 Sections and Exhibits. All sections and exhibits referred to herein are attached hereto and incorporated by reference. 16.4 Further Assurances. Parties agree to perform such further acts and to execute and deliver such additional documents and instruments as may be reasonably required in order to carry out the provisions of this Agreement and the intentions of the parties. National City Public Library Amendment 03 Page 12 of 16 FIRST 5 COMMISSION OF SAN DIEGO CONTRACT NUMBER: 515385 AGREEMENT WITH NATIONAL CITY PUBLIC LIBRARY "FIRST 5 FOR PARENTS" PROJECTS — WORDS on WHEELS mobile (WOWmobile) 16.5 Governing Law. This Agreement shall be governed, interpreted, construed and enforced in accordance with the laws of the State of California. 16.6 Headings. The Article captions, Clause and Section headings used in this Agreement are inserted for convenience of reference only and are not intended to define, limit or affect the construction or interpretation of any term or provision hereof. 16.7 Modification Waiver. Except as otherwise provided in Article 6, "Changes," above, no modification, waiver, amendment or discharge of this Agreement shall be valid unless the same is in writing and signed by both parties. 16.8 Neither Party Considered Drafter. Despite the possibility that one party may have prepared the initial draft of this Agreement or played the greater role in the physical preparation of subsequent drafts, neither party shall be deemed the drafter of this Agreement and that, in construing this Agreement in case of any claim that any provision hereof may be ambiguous, no such provision shall be construed in favor of one party on the ground that such provision was drafted by the other. 16.9 No Other Inducement. The making, execution, and delivery of this Agreement by the parties hereto has been induced by no representations, statements, warranties or agreements other than those expressed herein. 16.10 Notices. Notice to either party shall be in writing and either personally delivered or sent by certified mail, postage prepaid, return receipt requested, addressed to the party to he notified at the address specified herein. Any such notice shall be deemed received on the date of personal delivery to the party (or such party's authorized representative) or three (3) business days after deposit in the U.S. Mail, as the case may be to the Commission's Executive Director or his or her designee and Contractor's Representative identified on the signature page. 16.11 Severability. If any term, provision, covenant, or condition of this Agreement is held to be invalid, void, or otherwise unenforceable, to any extent, by any court of competent jurisdiction, the remainder of this Agreement shall not be affected thereby, and each term, provision, covenant, or condition of this Agreement shall be valid and enforceable to the fullest extent permitted by law. 16.12 Successors. Subject to the limitations on assignment set forth in Clause 16.1 above, all terms of this Agreement shall be binding upon, inure to the benefit of, and be enforceable by the parties hereto and their respective heirs, legal representatives, successors, and assigns. 16.13 Time. Time is of the essence of each provision of this Agreement. 16.14 Time Period Computation. All periods of time referred to in this Agreement shall include all Saturdays, Sundays and state or national holidays, unless the period of time specifies business days, provided that if the date or last date to perform any act or give any notice or approval shall fall on a Saturday, Sunday or State or national holiday, such act or notice may be timely performed or given on the next succeeding day which is not a Saturday, Sunday or State or national holiday. 16.15 Waiver. The waiver by one party of the performance of any term, provision, covenant or condition shall not invalidate this Agreement, nor shall it be considered as a waiver by such party of any other term, provision, covenant or condition. Delay by any party in pursuing any remedy or in insisting upon full performance for any breach or failure of any term, provision, covenant or condition shall not prevent such party from later pursuing remedies or insisting upon full performance for the same or any similar breach or failure. 16.16 Third Party Beneficiaries Excluded. This agreement is intended solely for the benefit of the Commission and its Contractor. Any benefit to any third party is incidental and does not confer on any third party to this Agreement any rights whatsoever regarding the performance of this Agreement. Any attempt to enforce provisions of this Agreement by third parties is specifically prohibited. 16.17 Publicity Announcements and Materials. All public announcements, including those issued on Contractor letterhead, and materials distributed to the community shall identify the First 5 Commission of San Diego County or First 5 San Diego as the funding source for Contracted programs identified in this Agreement. All publicity materials shall comply with the standards provided in the Commission's Public Outreach Partners Program Graphics Reproductions Standards. Copies of all publicity materials related to Contracted programs identified in this Agreement shall he submitted to and approved by the Commission's Community Engagement section for approval before publication or release. Commission shall be advised at least 48 hours in advance of all locally generated press releases and media events regarding Contracted programs identified in this Agreement. National City Public Library Amendment 03 Page 13 of 16 FIRST 5 COMMISSION OF SAN DIEGO CONTRACT NUMBER: 515385 AGREEMENT WITH NATIONAL CITY PUBLIC LIBRARY "FIRST 5 FOR PARENTS" PROJECTS — WORDS on WHEELS mobile (WOWmobile) 16.18 Critical Incidents. Contractor shall have written plans or protocols and provide employee training for handling critical incidents involving instances of violence or threat of violence directed toward staff or clients, breach of confidentiality, fraud, unethical conduct, or instances of staff or client drug and/or alcohol use at the program. Contractor shall report all such incidents to the Commission's Executive Director or his or her designee within one work day of their occurrence, 16.19 Responsiveness to Community Concerns. Contractor shall notify, Commission within 48 hours of receipt of any complaints, submitted to Contractor verbally or in writing, regarding the operation of Contractor's program or facility. Contractor shall take appropriate steps to acknowledge receipt of said complaint(s) from individuals or organizations. Contractor shall take appropriate steps to utilize appropriate forums to address or resolve any such complaints received. Nothing in this provision shall be interpreted to preclude Contractor from engaging in any legally authorized use of its facility, property or business as approved, permitted or licensed by the applicable authority. 16.20 Notification of Key Personnel Chances. Contractor shall notify the COTR (or designee) within 72 hours in writing when there is a change of key personnel funded under this Agreement. Key personnel are defined to include personnel who provide direct services management oversight or any combination of these services. Contractor shall also notify COTR (or designee) within 72 hours in writing when a subcontractor is changes. COTR shall have the right to reject any change in key personnel or a new subcontractor upon reasonable cause (direct services or management staff), funded under this Agreement. 16.21 Coordinated Services. Contractor shall coordinate services with other First 5 funded programs and initiatives. 16.22 Equipment Retention. Contractor shall be entitled to retain ownership of any equipment or computers identified in the approved budget in Exhibit C at the end of the contract term under the condition that the equipment will continue to be used to serve children ages 0 — 5 and their families. Equipment must be in the budget and meet the definition of minor equipment — less than 55,000 for a single item. National City Public Library Amendment 03 Page 14 of 16 FIRST 5 COMMISSION OF SAN DIEGO CONTRACT NUMBER: 515385 AGREEMENT WITH NATIONAL CITY PUBLIC LIBRARY "FIRST 5 FOR PARENTS" PROJECTS — WORDS on WHEELS mobile (WOWmobile) SIGNATURE PAGE AGREEMENT TERM. This Agreement shall be effective this First day of August 2006 ("Effective Date") and end on June 30, 2007 ("Initial Term") for a total Agreement period of eleven months. OPTION TO EXTEND. The Commission's option to extend is for three (3) increments of one year(s) each for a total of three (3) years beyond the expiration of the Initial Term, not to exceed June 30, 2010, pursuant to Exhibit C. Unless Commission notifies Contractor in writing, not less than 30 days prior to the expiration date that they do not intend to renew the Agreement, the Agreement will be automatically renewed for another year. Options To Extend For One To Six Additional Months At End Of Agreement. Commission shall also have the option to extend the term of this Agreement in one or more increments for a total of no less than one (1) and no more than six (6) calendar months at the discretion of the Commission's Executive Director or his or her designee. Each extension shall be effected by written unilateral Agreement amendment delivered to Contractor no less than fifteen (15) calendar days prior to expiration of any Agreement term. The rates set forth in Article 4, Exhibit C, or other pricing section of this Agreement shall apply to any option exercised pursuant to this option clause unless provision for appropriate price adjustment has been made elsewhere in this Agreement or by Agreement amendment. All payments are subject to "Availability of Funds." COMPENSATION: Pursuant to Exhibit C, Commission agrees to pay Contractor an estimated amount of one hundred three thousand four hundred fifty-seven dollars ($103,457.00) for FY 2006-07; one hundred sixteen thousand three hundred forty dollars ($116,340.00) for FY 2007-08 (Option Year 1) and an estimated amount of two hundred fifty thousand four hundred twenty-two dollars ($250,422.00) for FY 2008-09 and FY 2009-10 (Option Year 2 and 3), for a maximum amount of four hundred seventy thousand two hundred nineteen dollars ($470,219.00) in accordance with the method of payment stipulated in Article 4. COTR. The Commission has designated the following individual as the COTR: Lauren Chin, Community Engagement and Planning Manager First 5 Commission of San Diego 1495 Pacific Highway, Suite 201 San Diego, CA 92101 Telephone: 619.230.6463; Fax: 619.230.6466 E-mail: lauren.chin@sdcounty.ca.gov CONTRACTOR'S REPRESENTATIVE. The Contractor has designated the following individual as the Contractor's Representative. Minh Duong, City Librarian National City Public Library 1401 National City Blvd. National City, CA 91950-4401 Telephone: 619-470-5882; Fax: 619-470-5880 E-mail: minh.duong natianalcitylibrary.org IN WITNESS WHEREOF, Commission and Contractor have executed this Agreement effective as of the date first set above FIRST 5 COMMISSION OF SAN DIEGO By: XXXXXXXXXXXXXXXXXXX Laura Spiegel, Executive Director Date: XXXXXXXXXXXXXXXXX NATIONAL CITY PUBLIC LIBRARY By: XXXXXXXXXXXXXXXXX Minh Duong, City Librarian Date: XXXXXXXXXXXXXXXXX forth National City Public Library Amendment 03 Page 15 of 16 FIRST 5 COMMISSION OF SAN DIEGO CONTRACT NUMBER: 515385 AGREEMENT WITH NATIONAL CITY PUBLIC LIBRARY "FIRST 5 FOR PARENTS" PROJECTS — WORDS on WHEELS mobile (WOWmobile) THIS PAGE INTENTIONALLY LEFT BLANK National City Public Library Page 16 of 16 Amendment 03 RESOLUTION NO. 2008 — 253 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY AUTHORIZING THE CITY LIBRARIAN TO EXECUTE AN AMENDMENT TO THE AGREEMENT FOR FY 2009/2010 IN THE AMOUNT OF $128,265 BETWEEN THE CITY AND THE FIRST 5 COMMISSION OF SAN DIEGO PERTAINING TO FUNDING FOR THE NATIONAL CITY WORDS ON WHEELS BOOKMOBILE WHEREAS, the City has entered into an Agreement (the "Agreement") with the First 5 Commission of San Diego (the "Commission") through which the City obtains grant funds to operate the National City bookmobile ("Words on Wheels"); and WHEREAS, in order to maintain continuity of services, it is necessary to amend the Agreement to extend its term to June 30, 2010, which will permit the Commission to implement its new strategic plan. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of National City hereby authorizes the City Librarian to execute an amendment to the Agreement for FY 2009/2010 in the amount of $128,265 between the City and the First 5 Commission of San Diego extending the term of the Agreement to June 30, 2010, in order to maintain continuity of services for the National City Words on Wheels bookmobile. Said Amendment to Agreement is on file in the office of the City Clerk. PASSED and ADOPTED this 2nd day of Decembej 2008. Ron Morrison, Mayor ATTEST: Mic eel R. Dalla City Clerk APPROVED AS TO FORM: / T /3 1 i',41r George H. Elser, III City Attorney Passed and adopted by the Council of the City of National City, California, on December 2, 2008 by the following vote, to -wit: Ayes: Councilmembers Morrison, Natividad, Parra, Sotelo-Solis, Zarate. Nays: None. Absent: None. Abstain: None. AUTHENTICATED BY: RON MORRISON Mayor of the City of National City, California City lerk of the City f National City, California By: Deputy I HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of RESOLUTION NO. 2008-253 of the City of National City, California, passed and adopted by the Council of said City on December 2, 2008. City Clerk of the City of National City, California By: Deputy City of National City, California COUNCIL AGENDA STATEMENT MEETING DATE December 2, 2008 14 AGENDA ITEM NO. ITEM TITLE Resolution approving the extension of the First 5 for Parents grant (Contract # 515385 - First 5 Commission of San Diego) in the amount of $128,265.00 for FY 2009-2010. PREPARED BY Minh Duongtt DEPARTMENT Library EXT.5882 EXPLANATION This grant funds for the Bookmobile to provide services to parents and children 0- 5 year old. Current contract ends June 30, 2009. The above actions allow for continuity of services while the Commission's new strategic plan, expected to be finalized by June 2009, is implemented. This contract amendment is an additional one-year extension to a 3-year grant from the First 5 Commission of San Diego previously accepted and approved by the Library Board of Trustees and being brought forward to the Council to be consistent with City Departments practice. Environmental Review N/A MIS Approval Financial Statement Approved By: Finance Director Account No. STAFF RECOMMENDATION Approve contract extension. BOARD I COMMISSION RECOMMENDATION ATTACHMENTS ( Listed Below) Resolution No. LContract Amendment. A-200 (Rev. 7/03)