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CHC Agreement_VAPING_FINAL.pdf
-1- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A G R E E M E N T THIS AGREEMENT is made and entered into this 16th day of June, 2020, by and between the COUNTY OF FRESNO, a Political Subdivision of the State of California, hereinafter referred to as "COUNTY", and California Health Collaborative, a California Non-Profit 501c3 Organization, whose address is 1680 West Shaw Avenue, Fresno, California, 93711, hereinafter referred to as "CONTRACTOR". W I T N E S S E T H: WHEREAS, COUNTY, through its Department of Public Health (Department), is in need of a qualified vendor to provide educational community meetings via webcast or in-person to discuss the harmful effects of vaping and marijuana use, health impacts and cessation resources; and WHEREAS, COUNTY, is in need of a qualified vendor to address the need for local tobacco control policy change efforts; and WHEREAS, CONTRACTOR, has the facilities, equipment, resources, and personnel skilled in the provision of such services; and WHEREAS, CONTRACTOR, is qualified and willing to provide such services, pursuant to the terms and conditions of this Agreement. NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions herein contained, the parties hereto agree as follows: 1. OBLIGATIONS OF THE CONTRACTOR CONTRACTOR shall perform all services and fulfill all responsibilities as identified in Exhibit A, Fresno County Vaping Prevention Program Scope of Work, attached hereto and by this reference incorporated herein. 2. TERM The term of this Agreement shall commence upon the 16th day of June 2020 through and including the 30th day of June 2021. 3. TERMINATION A. Non-Allocation of Funds - The terms of this Agreement, and the services to be -2- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 provided hereunder, are contingent on the approval of funds by the appropriating government agency. Should sufficient funds not be allocated, the services provided may be modified, or this Agreement terminated, at any time by giving the CONTRACTOR thirty (30) days advance written notice. Funding for these services is provided by the California Department of Public Health, through Proposition 56, The California Healthcare Research and Prevention Tobacco Tax Act of 2016 and Proposition 99, Tobacco Tax and Health Protection Act of 1988. B. Breach of Contract - The COUNTY may immediately suspend or terminate this Agreement in whole or in part, where in the determination of the COUNTY there is: 1) An illegal or improper use of funds; 2) A failure to comply with any term of this Agreement; 3) A substantially incorrect or incomplete report submitted to the COUNTY; 4) Improperly performed service. In no event shall any payment by the COUNTY constitute a waiver by the COUNTY of any breach of this Agreement or any default which may then exist on the part of the CONTRACTOR. Neither shall such payment impair or prejudice any remedy available to the COUNTY with respect to the breach or default. The COUNTY shall have the right to demand of the CONTRACTOR the repayment to the COUNTY of any funds disbursed to the CONTRACTOR under this Agreement, which in the judgment of the COUNTY were not expended in accordance with the terms of this Agreement. The CONTRACTOR shall promptly refund any such funds upon demand. C. Without Cause - Under circumstances other than those set forth above, this Agreement may be terminated by COUNTY upon the giving of thirty (30) days advance written notice of an intention to terminate to CONTRACTOR. 4. COMPENSATION: COUNTY agrees to pay CONTRACTOR and CONTRACTOR agrees to receive compensation as identified in Exhibit B, Budget, attached hereto and incorporated herein by this reference. In no event shall compensation paid for services performed under this Agreement exceed One Hundred Fifty Thousand and No/100 Dollars ($150,000.00) during the period of June 23, 2020 through and including June 30, 2021. It is understood that all expenses incidental to CONTRACTOR'S performance of services under this Agreement shall be borne by CONTRACTOR. -3- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A. COUNTY shall pay CONTRACTOR within forty-five (45) days of receipt and verification of an approved CONTRACTOR’s invoice by COUNTY’s Department of Public Health. If CONTRACTOR should fail to comply with any provision of this Agreement, COUNTY shall be relieved of its obligation for further compensation. B. COUNTY shall not be obligated to make any payments under this Agreement if the request for payment is received by the COUNTY more than forty-five (45) days after this Agreement has terminated or expired. C. CONTRACTOR shall be held financially liable for any and all future disallowances/audit exceptions due to CONTRACTOR’s deficiency discovered through the State audit process. At COUNTY’s selection, the disallowed amount will be remitted within forty-five (45) days to County upon notification or shall be withheld from subsequent payments to CONTRACTOR. 5. INVOICING: CONTRACTOR shall invoice COUNTY monthly, by the fifteenth (15th) day of each month for the prior month’s expenditures, addressed to the County of Fresno, Department of Public Health, Office of Health Policy and Wellness - TPP, P.O. Box 11867, Fresno, CA 93775, Attention: OHPW Staff Analyst and Health Educator. Invoices shall detail line items as specified in Exhibit B, including original budget amount(s), current month’s expenses, year-to-date expenses, and budget balances. In addition, invoices shall also include all relevant supporting documentation including but not limited to copies of original statements, program expense receipts, payroll records and mileage claims. 6. INDEPENDENT CONTRACTOR: In performance of the work, duties and obligations assumed by CONTRACTOR under this Agreement, it is mutually understood and agreed that CONTRACTOR, including any and all of the CONTRACTOR'S officers, agents, and employees will at all times be acting and performing as an independent contractor, and shall act in an independent capacity and not as an officer, agent, servant, employee, joint venture, partner, or associate of the COUNTY. Furthermore, COUNTY shall have no right to control or supervise or direct the manner or method by which CONTRACTOR shall perform its work and function. However, COUNTY shall retain the right to administer this Agreement so as to verify that CONTRACTOR is performing its obligations in accordance with the terms and conditions thereof. CONTRACTOR and COUNTY shall comply with all applicable provisions of law and the rules and -4- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 regulations, if any, of governmental authorities having jurisdiction over matters the subject thereof. Because of its status as an independent contractor, CONTRACTOR shall have absolutely no right to employment rights and benefits available to COUNTY employees. CONTRACTOR shall be solely liable and responsible for providing to, or on behalf of, its employees all legally-required employee benefits. In addition, CONTRACTOR shall be solely responsible and save COUNTY harmless from all matters relating to payment of CONTRACTOR'S employees, including compliance with Social Security withholding and all other regulations governing such matters. It is acknowledged that during the term of this Agreement, CONTRACTOR may be providing services to others unrelated to the COUNTY or to this Agreement. 7. MODIFICATION: Any matters of this Agreement may be modified from time to time by the written consent of all the parties without, in any way, affecting the remainder. Notwithstanding the above, changes to line items in the budget, attached hereto as Exhibit B, that do not exceed ten percent (10%) of the maximum compensation payable to the CONTRACTOR may be made with written approval of COUNTY’s Department of Public Health Director or designee. Said budget line item changes shall not result in any change to the maximum compensation amount payable to CONTRACTOR, as stated herein. 8. NON-ASSIGNMENT: Neither party shall assign, transfer or sub-contract this Agreement nor their rights or duties under this Agreement without the prior written consent of the other party. 9. HOLD HARMLESS: CONTRACTOR agrees to indemnify, save, hold harmless, and at COUNTY'S request, defend the COUNTY, its officers, agents, and employees from any and all costs and expenses (including attorney’s fees and costs), damages, liabilities, claims, and losses occurring or resulting to COUNTY in connection with the performance, or failure to perform, by CONTRACTOR, its officers, agents, or employees under this Agreement, and from any and all costs and expenses (including attorney’s fees and costs), damages, liabilities, claims, and losses occurring or resulting to any person, firm, or corporation who may be injured or damaged by the performance, or failure to perform, of CONTRACTOR, its officers, agents, or employees under this Agreement. 10. INSURANCE: Without limiting the COUNTY's right to obtain indemnification from CONTRACTOR or any third parties, CONTRACTOR, at its sole expense, shall maintain in full force and effect, the following insurance policies or a program of self-insurance, including but not limited to, an insurance pooling arrangement or Joint Powers Agreement (JPA) throughout the term of the Agreement: -5- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A. Commercial General Liability Commercial General Liability Insurance with limits of not less than Two Million Dollars ($2,000,000.00) per occurrence and an annual aggregate of Four Million Dollars ($4,000,000.00). This policy shall be issued on a per occurrence basis. COUNTY may require specific coverages including completed operations, products liability, contractual liability, Explosion-Collapse-Underground, fire legal liability or any other liability insurance deemed necessary because of the nature of this contract. B. Automobile Liability Comprehensive Automobile Liability Insurance with limits of not less than One Million Dollars ($1,000,000.00) per accident for bodily injury and for property damages. Coverage should include any auto used in connection with this Agreement. C. Professional Liability If CONTRACTOR employs licensed professional staff, (e.g., Ph.D., R.N., L.C.S.W., M.F.C.C.) in providing services, Professional Liability Insurance with limits of not less than One Million Dollars ($1,000,000.00) per occurrence, Three Million Dollars ($3,000,000.00) annual aggregate. D. Worker's Compensation A policy of Worker's Compensation insurance as may be required by the California Labor Code. E. Molestation Sexual abuse / molestation liability insurance with limits of not less than One Million Dollars ($1,000,000.00) per occurrence, Two Million Dollars ($2,000,000.00) annual aggregate. This policy shall be issued on a per occurrence basis. Additional Requirements Relating to Insurance CONTRACTOR shall obtain endorsements to the Commercial General Liability insurance naming the County of Fresno, its officers, agents, and employees, individually and collectively, as additional insured, but only insofar as the operations under this Agreement are concerned. Such coverage for additional insured shall apply as primary insurance and any other insurance, or self-insurance, maintained by COUNTY, its officers, agents and employees shall be excess only and not contributing with insurance provided under CONTRACTOR's policies herein. This insurance shall not be cancelled or changed without a minimum of thirty (30) days advance written notice given to COUNTY. CONTRACTOR hereby waives its right to recover from COUNTY, its officers, agents, and -6- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 employees any amounts paid by the policy of worker’s compensation insurance required by this Agreement. CONTRACTOR is solely responsible to obtain any endorsement to such policy that may be necessary to accomplish such waiver of subrogation, but CONTRACTOR’s waiver of subrogation under this paragraph is effective whether or not CONTRACTOR obtains such an endorsement. Within Thirty (30) days from the date CONTRACTOR signs and executes this Agreement, CONTRACTOR shall provide certificates of insurance and endorsement as stated above for all of the foregoing policies, as required herein, to the County of Fresno, Department of Public Health, P.O. Box 11867, Fresno, CA 93775, Attention: Contracts Section – 6th Floor, stating that such insurance coverage have been obtained and are in full force; that the County of Fresno, its officers, agents and employees will not be responsible for any premiums on the policies; that for such worker’s compensation insurance the CONTRACTOR has waived its right to recover from the COUNTY, its officers, agents and employees any amounts paid under the insurance policy and that waiver does not invalidate the insurance policy; that such Commercial General Liability insurance names the County of Fresno, its officers, agents and employees, individually and collectively, as additional insured, but only insofar as the operations under this Agreement are concerned; that such coverage for additional insured shall apply as primary insurance and any other insurance, or self-insurance, maintained by COUNTY, its officers, agents and employees, shall be excess only and not contributing with insurance provided under CONTRACTOR's policies herein; and that this insurance shall not be cancelled or changed without a minimum of thirty (30) days advance, written notice given to COUNTY. In the event CONTRACTOR fails to keep in effect at all times insurance coverage as herein provided, the COUNTY may, in addition to other remedies it may have, suspend or terminate this Agreement upon the occurrence of such event. All policies shall be issued by admitted insurers licensed to do business in the State of California, and such insurance shall be purchased from companies possessing a current A.M. Best, Inc. rating of A FSC VII or better. 11. AUDITS AND INSPECTIONS: The CONTRACTOR shall at any time during business hours, and as often as the COUNTY may deem necessary, make available to the COUNTY for examination all of its records and data with respect to the matters covered by this Agreement. The CONTRACTOR shall, -7- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 upon request by the COUNTY, permit the COUNTY to audit and inspect all of such records and data necessary to ensure CONTRACTOR'S compliance with the terms of this Agreement. If this Agreement exceeds ten thousand dollars ($10,000.00), CONTRACTOR shall be subject to the examination and audit of the Auditor General for a period of three (3) years after final payment under contract (Government Code Section 8546.7). 12. CONFIDENTIALITY: All services performed by CONTRACTOR under this Agreement shall be in strict conformance with all applicable Federal, State of California and/or local laws and regulations relating to confidentiality. 13. DATA SECURITY: For the purpose of preventing the potential loss, misappropriation or inadvertent access, viewing, use or disclosure of COUNTY data including sensitive or personal client information; abuse of COUNTY resources; and/or disruption to COUNTY operations, individuals and/or agencies that enter into a contractual relationship with the COUNTY for the purpose of providing services under this Agreement must employ adequate data security measures to protect the confidential information provided to CONTRACTOR by the COUNTY, including but not limited to the following: A. CONTRACTOR-Owned Mobile, Wireless, or Handheld Devices CONTRACTOR may not connect to COUNTY networks via personally- owned mobile, wireless or handheld devices, unless the following conditions are met: 1) CONTRACTOR has received authorization by COUNTY for telecommuting purposes; 2) Current virus protection software is in place; 3) Mobile device has the remote wipe feature enabled; and 4) A secure connection is used. B. CONTRACTOR-Owned Computers or Computer Peripherals CONTRACTOR may not bring CONTRACTOR-owned computers or computer peripherals into the COUNTY for use without prior authorization from the COUNTY’s Chief Information Officer, and/or designee(s), including but not limited to mobile storage devices. If data is approved to be transferred, data must be stored on a secure server approved by the COUNTY and transferred by means of -8- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 a Virtual Private Network (VPN) connection, or another type of secure connection. Said data must be encrypted. C. COUNTY-Owned Computer Equipment CONTRACTOR or anyone having an employment relationship with the COUNTY, may not use COUNTY computers or computer peripherals on non-COUNTY premises without prior authorization from the COUNTY’s Chief Information Officer, and/or designee(s). D. CONTRACTOR may not store COUNTY’s private, confidential or sensitive data on any hard-disk drive, portable storage device, or remote storage installation unless encrypted. E. CONTRACTOR shall be responsible to employ strict controls to ensure the integrity and security of COUNTY’s confidential information and to prevent unauthorized access, viewing, use or disclosure of data maintained in computer files, program documentation, data processing systems, data files and data processing equipment which stores or processes COUNTY data internally and externally. F. Confidential client information transmitted to one party by the other by means of electronic transmissions must be encrypted according to Advanced Encryption Standards (AES) of 128 BIT or higher. Additionally, a password or pass phrase must be utilized. G. CONTRACTOR is responsible to immediately notify COUNTY of any violations, breaches or potential breaches of security related to COUNTY’s confidential information, data maintained in computer files, program documentation, data processing systems, data files and data processing equipment which stores or processes COUNTY data internally or externally. H. COUNTY shall provide oversight to CONTRACTOR’s response to all incidents arising from a possible breach of security related to COUNTY’s confidential client information provided to CONTRACTOR. CONTRACTOR will be responsible to issue any notification to affected individuals as required by law or as deemed necessary by COUNTY in its sole discretion. CONTRACTOR will be responsible for all costs incurred as a result of providing the required notification. 14. NON-DISCRIMINATION: During the performance of this Agreement, CONTRACTOR shall not unlawfully discriminate against any employee or applicant for employment, or recipient of services, because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, -9- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 sexual orientation, military status or veteran status pursuant to all applicable State of California and Federal statutes and regulation. 15. COMPLIANCE WITH STATE REQUIREMENTS: CONTRACTOR recognizes that COUNTY operates its Tobacco Prevention Program with the use of state funds, and that the use of these funds imposes certain requirements on the COUNTY and its subcontractors. CONTRACTOR shall adhere to all applicable state requirements, including those identified in Exhibit C, General Terms and Conditions, and Exhibit D, Special Terms and Conditions, attached hereto and by this reference incorporated herein. 16. RECORDS: Financial and statistical data shall be kept, and reports made as required by the COUNTY’s Department of Public Health Director and the State. All such records shall be available for inspection by the designated Auditors of COUNTY or State at reasonable times during normal business hours. All such records shall be maintained through the end of this Agreement. All records shall be considered property of COUNTY and shall be retained by COUNTY at the termination or expiration of this Agreement. 17. REPORTS: CONTRACTOR shall submit to COUNTY within ten (10) calendar days all program reports for the preceding month, as identified in Exhibit A. CONTRACTOR shall also furnish to COUNTY such statements, records, reports, data, and other information as COUNTY may request pertaining to matters covered by this Agreement. In the event that CONTRACTOR fails to provide such reports or other information required hereunder, it shall be deemed sufficient cause for COUNTY to withhold monthly payments until there is compliance. 18. PROHIBITION OF PUBLICITY: None of the funds, materials, property or services provided directly or indirectly under this Agreement shall be used for CONTRACTOR’s advertising, fundraising or publicity (e.g., purchasing of tickets/tables, silent auction donations, media promotions) for the purpose of self-promotion. Notwithstanding the above, publicity of the services described in Section One (1) of this Agreement shall be allowed as necessary to raise public awareness about the availability of such specific services when approved in advance in writing by COUNTY’s Office of Health Policy and Wellness TPP Project Coordinator. Such items include but are not limited to written/printed materials, materials posted on the internet, or the use of media (e.g., radio, television, billboards, newspapers), and any related expense. -10- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Documents prepared by CONTRACTOR using funding under this Agreement for external release shall undergo appropriate review and approval prior to release. Review may take up to thirty (30) business days. Materials, whether newly developed or reprinted, shall include an appropriate acknowledgement/funding statement. 19. NOTICES: The persons and their addresses having authority to give and receive notices under this Agreement include the following: COUNTY CONTRACTOR Director, County of Fresno Steven Ramirez, CEO Department of Public Health California Health Collaborative P.O. Box 11867 1680 W. Shaw Avenue Fresno, California 93775 Fresno, California 93711 All notices between the COUNTY and CONTRACTOR provided for or permitted under this Agreement must be in writing and delivered either by personal service, by first-class United States mail, by an overnight commercial courier service, or by telephonic facsimile transmission. A notice delivered by personal service is effective upon service to the recipient. A notice delivered by first-class United States mail is effective three COUNTY business days after deposit in the United States mail, postage prepaid, addressed to the recipient. A notice delivered by an overnight commercial courier service is effective one COUNTY business day after deposit with the overnight commercial courier service, delivery fees prepaid, with delivery instructions given for next day delivery, addressed to the recipient. A notice delivered by telephonic facsimile is effective when transmission to the recipient is completed (but, if such transmission is completed outside of COUNTY business hours, then such delivery shall be deemed to be effective at the next beginning of a COUNTY business day), provided that the sender maintains a machine record of the completed transmission. For all claims arising out of or related to this Agreement, nothing in this section establishes, waives, or modifies any claims presentation requirements or procedures provided by law, including but not limited to the Government Claims Act (Division 3.6 of Title 1 of the Government Code, beginning with section 810). 20. PROPERTY OF COUNTY: All purchases over Five Thousand and No/100 Dollars ($5,000.00), and certain purchases under Five Thousand and No/100 Dollars ($5,000.00) made during the life of this Agreement shall be identified as fixed assets with an assigned County of Fresno Accounting -11- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Inventory Number. These fixed assets shall be retained by COUNTY, as COUNTY property, in the event this Agreement is terminated or upon expiration of this Agreement. CONTRACTOR agrees to participate in an annual inventory of all COUNTY fixed assets and shall be physically present when fixed assets are returned to COUNTY possession at the termination or expiration of this Agreement. 21. GOVERNING LAW: Venue for any action arising out of or related to this Agreement shall only be in Fresno County, California. The rights and obligations of the parties and all interpretation and performance of this Agreement shall be governed in all respects by the laws of the State of California. 22. DISCLOSURE OF SELF-DEALING TRANSACTIONS: This provision is only applicable if the CONTRACTOR is operating as a corporation (a for-profit or non-profit corporation) or if during the term of the agreement, the CONTRACTOR changes its status to operate as a corporation. Members of the CONTRACTOR’s Board of Directors shall disclose any self-dealing transactions that they are a party to while CONTRACTOR is providing goods or performing services under this agreement. A self-dealing transaction shall mean a transaction to which the CONTRACTOR is a party and in which one or more of its directors has a material financial interest. Members of the Board of Directors shall disclose any self-dealing transactions that they are a party to by completing and signing a Self-Dealing Transaction Disclosure Form, attached hereto as Exhibit E and incorporated herein by reference, and submitting it to the COUNTY prior to commencing with the self-dealing transaction or immediately thereafter. 23. SEVERABILITY: The provisions of this Agreement are severable. The invalidity or unenforceability of any one provision in the Agreement shall not affect the other provisions. 24. ENTIRE AGREEMENT: This Agreement, including all exhibits, constitutes the entire agreement between the CONTRACTOR and COUNTY with respect to the subject matter hereof and supersedes all previous Agreement negotiations, proposals, commitments, writings, advertisements, publications, and understanding of any nature whatsoever unless expressly included in this Agreement. /// /// /// /// EXHIBIT A - Scope of Work Fresno County Vaping Prevention Program Page 1 of 6 SCOPE OF WORK REQUIREMENTS TIMELINE DELIVERABLE Agency administrator sets up the budget to include funding for 1.5 FTE Project Coordinators, funding for operational expenses and support with the following specifics: Execution - 06/2021 Approved budget Hire and designate a Project Coordinator (1.0 FTE) and a Community Engagement Coordinator (0.5 FTE) with health education, community organizing, and systems change experience. Execution 06/2021 Approved budget Meet monthly or as deemed necessary with Tobacco Prevention Program staff to review progress on work plan and budget. Execution - 06/2021 Meeting notes Attend bi-monthly Tobacco-Free Coalition meetings to update the coalition on progress. Execution - 06/2021 Meeting minutes Invoice COUNTY monthly, by the fifteenth (15th) day of each month for the prior month’s expenditures, addressed to the County of Fresno, Department of Public Health, Office of Health Policy and Wellness - TPP, P.O. Box 11867, Fresno, CA 93775, Attention: OHPW Staff Analyst and Health Educator. Execution - 06/2021 Monthly invoices OVERVIEW OF SCOPE OF WORK Objective 1: By June 2021, establish a minimum of three Vaping Prevention Task Forces in communities such as Clovis, Coalinga, Fowler, Fresno, Caruthers, and Selma to support the planning of Vaping Town Halls throughout Fresno County. Execution - 6/2021 Vaping Task Force rosters, meeting minutes, sign in sheets Objective 2: By June 2021, develop 3 Vaping Educational Materials/Presentations that are tailored for each community, include information on tobacco and marijuana and are available in English, Spanish and Hmong. Execution - 06/2021 Educational materials tailored for each community in English, Spanish and Hmong Objective 3: By June 2021, lead a minimum of 6 community forums or town halls via webcast or in-person for youth and adults, approximately 60 minutes in length, with participation by 25 -35 individuals at each event from a minimum of the following communities of Clovis, Coalinga, Fowler, Fresno, Caruthers, and Selma. Execution- 6/2021 Community forum presentation, community forum agenda, roster of participants to forum Objective 4: By June 2021, conduct a debriefing meeting with each Vaping Prevention Task Force and discuss next steps to tackle vaping in the community to culminate into an Action Plan for each community. Execution - 6/2021 Debriefing meeting minutes, community action plan Objective 5: By June 2021, lead a minimum of 5 in-service trainings via webcast or in person for teachers and administrators in 4 communities, such as Clovis, Coalinga, Fowler, Fresno, Caruthers, and Selma. Execution- 6/2021 Resource Materials, Vaping Inservice Presentation, Pictures EXHIBIT A - Scope of Work Fresno County Vaping Prevention Program Page 2 of 6 Objective 1: By June 2021, establish a minimum of three Vaping Prevention Task Forces in communities such as Clovis, Coalinga, Fowler, Fresno, Caruthers, and Selma to support the planning of Vaping Town Halls throughout Fresno County. ACTIVITY TIMELINE DELIVERABLES Gather local data through sources such as the California Healthy Kids Survey Data, California Student Tobacco Survey, Monitoring the Future, Healthy Stores for Healthy Communities, local school data, etc. in order to determine the extent of e-cigarette/vape use among youth in the determined jurisdictions. 06/2020- 12/2020 Local data for each community to be served Recruit community members from various sectors, including police department, local schools, community organizations, youth serving organizations, health organizations, TUPE, or DOJ funded agencies, etc. to form part of a Vaping Prevention Task Force. Task Forces will be located in a target community and may include membership from several communities. Task Forces will lead the planning of Vaping Town Halls in communities throughout Fresno County. 06/2020- 12/2020 Roster of Vaping Task Force members, recruitment materials Host an initial Task Force Meeting to discuss local data related to e-cigarette use and solicit buy in from community members to host a Community Town Hall/Community Forum. 08/2020- 12/2020 Presentation from Initial meeting, agenda, meeting minutes, sign in sheet Administer a Pre and Post Survey that assesses the Vaping Task Force’s knowledge, skills, and comfort with addressing vaping in their community. 08/2020- 06/2021 Pre and post survey data Host bi-monthly or monthly meetings with the Vaping Prevention Task Force in each community to plan the Vaping Town Hall and provide further training/information during meetings that would support vaping efforts among their own organizations. 08/2020 – 06/30/21 Meeting agenda, meeting minutes, sign in sheets EXHIBIT A - Scope of Work Fresno County Vaping Prevention Program Page 3 of 6 Objective 2: By June 2021, develop 3 Vaping Educational Materials/Presentations that are tailored for each community, include information on tobacco and marijuana and are available in English, Spanish and Hmong. ACTIVITY TIMELINE DELIVERABLES Determine data, format, audience, and specific need for local vaping materials by asking TPP staff, consulting with the Vaping Taskforce, and asking local organizations, including schools. 06/2020- 08/2020 Log of contacts made in each community, collected data and information to be used in materials Consult with the California Smoker’s Helpline to determine information that can be included in the Town Hall/Forum presentation and information which can be included in each educational material to support quitting of e-cigarette/vape use by community residents, including youth. 06/2020- 07/2020 Log of contact with California Smoker’s Helpline, completed slides of CA Smoker’s Helpline information, information to be included in educational materials With input from the Vaping Taskforce and TPP staff, develop two Community Presentations to be used at the Community Forums/Town Halls. One presentation will be designed for parents and will include information on the health impacts of vaping nicotine and marijuana, tobacco industry marketing tactics, secondhand and thirdhand smoke and aerosol impacts, signs for parents to identify vaping among their children, how to talk to their children about tobacco/marijuana use and resources to quit vaping. The second presentation will be tailored for youth and include similar information but will feature an interactive format and include youth friendly cessation information from the Truth Initiative, as well as youth resources for staying tobacco and marijuana-free. 06/2020- 08/2020 Completed community presentations Develop 1 educational materials (i.e. brochures, leaflets, postcard, etc.) with support from the Vaping Task Force to be disseminated at local vaping Town Halls/Community Forums. Each material will be personalized for each community with local resources. 06/2020- 09/2020 Finalized educational materials Conduct two focus groups with the intended target audience (1 for adults and 1 for youth) for the educational material to gain their insight on the effectiveness and appropriateness of the material. 06/2020- 10/2020 Focus group results EXHIBIT A - Scope of Work Fresno County Vaping Prevention Program Page 4 of 6 Objective 3: By June 2021, lead a minimum of 6 community forums or town halls via webcast or in- person for youth and adults, approximately 60 minutes in length, with participation by 25 -35 individuals at each event from a minimum of the following communities of Clovis, Coalinga, Fowler, Fresno, Caruthers, and Selma. ACTIVITY TIMELINE DELIVERABLES Identify a date and location for the community forum/town halls in a minimum of the following communities: Clovis, Coalinga, Fowler, Fresno, Caruthers and Selma with the Vaping Task Force. 06/2020- 10/2020 Calendar of all Town Hall dates and locations Develop recruitment materials for the Community Vaping Forum/Town halls tailored for each community. Recruitment materials will include an Eventbrite Page, Flyers and Posters, and Facebook Event Pages. 06/2020- 10/2020 Finalized recruitment materials tailored for each jurisdiction Disseminate recruitment materials and recruit a minimum of 25-35 individuals per jurisdiction by participating in community events, school parent events, hosting booths at churches, requesting school auto dialers, passing out flyers/posters at local businesses, using social media and hosting an Eventbrite page that allows for follow up calls and emails leading up to the event. 08/2020 – 05/2021 Recruitment Log Purchase and identify incentive materials for raffle at Community Forums/Town Halls that will encourage participation by community residents. 06/2020 – 06/2021 Log of incentive materials, distribution log Implement 6 town halls designed to be at minimum 60 minutes in length in each community. Recruit town hall panel speakers, such as law enforcement, school administrators, health professionals, youth, former vape/e-cigarette users, and others as determined by the Vaping Taskforce from each community to participate in each jurisdiction’s town hall/community forum. 08/2020 – 05/2021 Finalized community forum/town hall event program with agenda and information on speakers, participant sign in sheets Develop and disseminate post-event participation surveys to identify an increase in knowledge, skills and a change in attitudes regarding Vaping Prevention among participants. 08/2020 – 05/2021 Post-Event participation survey EXHIBIT A - Scope of Work Fresno County Vaping Prevention Program Page 5 of 6 Objective 4: By June 2021, conduct a debriefing meeting with each Vaping Prevention Task Force and discuss next steps to tackle vaping in the community to culminate into an Action Plan for each community. ACTIVITY TIMELINE DELIVERABLES Host a debriefing meeting for each Vaping Prevention Task Force to discuss the results of the participant surveys and their satisfaction with the Vaping Town Hall/Community Forum. 10/2020- 05/2021 Debriefing meeting agenda and minutes, aggregated data from participant surveys for each community, debriefing meeting sign in sheet Provide each Vaping Task Force Member with an incentive and certificate for their participation. 12/2020- 06/2021 Incentive distribution log Host a mini-strategy session following the debriefing portion of the meeting to discuss next steps regarding Vaping Prevention following the Community Forum/Town Hall. This may include a review of data, a discussion on areas of concern related to vaping prevention, and plans for the future, such as conducting future Community Forums/Town Halls, education in schools, law enforcement plans, plans to increase cessation resources available to the community, etc. Invite Vaping Task Force Members to join the local LLA Fresno County Tobacco coalition. 10/2020- 06/2021 Mini –strategy session notes Finalize a 1-2 page action plan for the community with a debrief of the Town Hall and Next Steps discussed at the debriefing meeting to be used by community partners in moving forward with Vaping Prevention efforts. 01/2020- 06/2021 Finalized vaping prevention action plan for each jurisdiction EXHIBIT A - Scope of Work Fresno County Vaping Prevention Program Page 6 of 6 Objective 5: By June 2021, lead a minimum of 5 in-service trainings via webcast or in person for teachers and administrators in 4 communities, such as Clovis, Coalinga, Fowler, Fresno, Caruthers, and Selma. ACTIVITY TIMELINE DELIVERABLES Contact school districts to identify a minimum of 5 school sites who would like a Vaping Inservice Training for their teachers/administrators with an emphasis on the following communities: Clovis, Coalinga, Fowler, Fresno, Caruthers and Selma with the Vaping Task Force. 08/2020- 12/2020 Calendar of all Inservice Training Dates and Locations Develop and/or gather materials for teachers on how to integrate vaping lessons into their existing curriculum (i.e. Science Class, Health Class, ELA) and any programs who could support lessons in the classroom (i.e. TUPE, Substance Use Prevention Programs, etc.). 06/2020- 07/2020 Teacher Resource Materials Develop and/or gather school administrator resources for how to change school culture surrounding vaping on campus, including information on model school vaping policies, alternatives to suspension, and how to enforce vaping restrictions on campus. 06/2020 – 07/2020 School Administrator Resource Materials Purchase and identify incentive materials for distribution at Inservice trainings (i.e. pens, highlighters or gift cards for raffles). 08/2020 – 01/2021 Log of incentive materials, distribution log Implement a minimum of 5 in-service trainings, a minimum of 45 minutes in length, to 5 school sites in Fresno County. Distribute teacher and administrator resources during the event and host a table with vaping devices on display. 08/2020 – 06/2021 Vaping Inservice Training Presentation & Vaping Inservice Training Photos EXHIBIT B Personnel Salaries, Payroll Taxes & Employee Benefits - Line Items 0001- 0042 0001 Salary: $3541.66 X 5% FTE X 24PP= $4,249.99 Fringe: $4250 x 24% =$1,020.00 $5,269.99 Total Salary & Fringe: PD $5,269.99 0002 $11,118.03 Total Salary & Fringe: PC $57,443.15 0003 11616 $11,616.00 $12,902.40 $5,884.42CEC$30,402.82 TOTAL S & B Expenses $93,115.96 Fringe: $46325.12 x 24%= $11118.03 Fringe: Calculated at 24% of employee salaries, includes FICA/OASDI, State Unemployment - SUI, Medical/Health Benefits, Dental Benefits, Vision Benefits, Retirement Benefits, Worker's Compensation Total Salary & Fringe: $57443 Salary: $20.00 x 132 days x 8 hours per day x 55% FTE= Salary (5% increase): $21.00 per hour x 8 hours per day x 128 days x 60%= $12902.40 The Community Engagement Coordinator (CEC) is responsible for networking and building partnerships in each assigned community. The CEC assists the PC with coordinating the Vaping Task Forces, developing program materials, recruiting participants for the Vaping Town Halls, recruiting panel speakers, assisting the PC with the development of Community Action Plans and supporting evaluation activities, as directed by the PD Salary includes a 5% increase after a six month orientation period. Fringe: $24518.40 x 24%= $5884.42 Total Salary & Fringe: $30402.82 Fresno County Vaping Townhall Meetings California Health Collaborative June 16, 2020-June 31, 2021 The Project Director (PD) provides direct administration, supervision, and leadership to the program. Supervises the Program Coordinator, completes final program reports, supports evaluation activities, and assists with coordinating the activities of the project. Salary (5% increase): $21.79 per hour x 8 hours per day x 141 days= $24579.12 Salary: $20.75 per hour x 131 days x 8 hours per day x 100% FTE= $21746 PROGRAM EXPENSES NARRATIVE The Program Coordinator (PC) is the project liaison in the targeted Fresno County region. The PC works in conjunction with the PD on a daily basis and assists with coordinating the Vaping Task Forces, development of program materials, implement the Vaping Townhall, leads development of community action plans, supports program evaluation, and implementation of SOW activities. Salary includes a 5% increase after a six month orientation period. EXHIBIT B Facilities/Equipment Expenses – Line Items 1010-1011 1010 $8,370.00 1011 $5,566.00 Facilities/Equipment Expenses Total $13,936.00 Operating Expenses - Line Items 1060-1068 1060 $2,640.00 1061 $480.00 1062 $3,960.00 Printing/Coping: Expenses for printing of educational materials developed in approved Scope of Work activities. Includes in-house printing on a shared cost printer, as well as professional printing from an outside vendor if more cost effective for large quanties of printed materials. Estimated at $330 per month x 12 months= $3960 Rent: 150 sq ft x $3.00 sq ft x 1.55 FTE x 12 months= $8370 Postage: Expenses for project mailings such as daily correspondence, invoices, mailings of educational information and materials, if requested by the community, and dissemination of evaluation findings. Costs vary month to month but average $40 per month. $40 per month x 12 months= $480 New computers will be purchased for use by the PC and the CEC to perform activities, such creating of educational materials, creating of educational presentations, leading Vaping Taskforce Meetings, as well as presenting the Inservice training in schools. A monitor and docking station will also be purchased for the PC and CEC. This will allow the conversion of the two laptops into desktops when staff are in the office, while also having the portability of a laptop to complete work plan activities in the field. A projector will be purchased in order to complete work plan activities that require a program presentation. The PD will use computers already available at the California Health Collaborative. The following is a description and cost estimate of two new computers, docks, monitors, projector, accessories and software. (Dell Latitude E6540) Laptop= $1500 x 2 = $3000 (Model- Dell P2317H) 22 Inch Monitor-$220 x 2 = $440 (Model - Dell E-Port Replicator) Docking Station - $200 x 2= $400 (Model - Dell 1550) Projector $920 X 1=$920 Accessories: Laptop Bag- $45 x 2= $90 External USB -DVD Rom -$50 x 2= $100 Logitech Desktop Keyboard and Mouse Set - $30 x 2= $60 Software: Winzip Pro= $36 x 2 = $72 Microsoft Office Plus - $88 x 2=$176 Symantec Endpoint Encryption - $70 x 2 = $140 Symantec Endpoint Protection Software - $20 x 2= $40 Adobe Premiere Rush - $128 x 1= $128 TOTAL= $5566 Telephone and Computer Network: Communication expenses related to operating phones and internet to support Scope of Work activities. Average communication costs include $200 x 12= $2400; Zoom Conferencing Line- $20 per month x 12 months= $240; Total: $2640 EXHIBIT B 1063 $3,000.00 1064 $5,865.00 1065 $1,500.00 1066 $3,000.00 1067 $2,000.00 Educational Materials: Materials purchased to educate the community on the impact of Vaping at Town Halls, recruitment events, trainings for Task Force Members, etc. Materials can include brochures, educational displays, posters, interactive displays, table cloths, vaping prevention polos for staff, canopy for use at community events to promote the project, and other materials used in the education of the public. 700 x $2 per brochure= $1400; $200 x 2 educational/interactive displays= $400; Tobacco Products to be used as educational materials for vaping presentations - $20 per vaping device x 10 devices = $200; Total= $2000 Food: Food and Refreshments for Town Hall Meetings and Vaping Task Force Meetings. $50 per Task Force Member x approximately 40 members (4 Task Forces x approx. 10 Members per Task Force)= $2000 + $1000 for Food and Refreshments for refreshments or snacks to be purchased for Town Hall Meetings= $3000. Consumable incentives will not exceed $50 worth/value per person per year for a total estimated cost of $3,000 for the fiscal year. Staff Training and Registration: $1500 for 1-2 trainings x 1-2 staff (the PC and the CEC) to support an increase in knowledge on Vaping, E-Cigarettes, Marijuana and Tobacco Trainings. Other trainings may include local tobacco trainings that are approved by Fresno County Department of Public Health and will be in support of the scope of work. Includes travel costs, registration, and per diem expenses. Staff Transportation: Local travel calculated at $0.575 per mile for approximately 800 miles per month for travel to communities to conduct Vaping Task Force trainings, meetings with local residents or panel members, attend community events to recruit participants to townhalls, attend trainings, meet with TPP staff, provide updates at Fresno County Tobacco Coalition Meetings, etc. 850 miles per month x $0.575 x 12 months= $5865 Office Supplies: General office supplies used by staff in the completion of Scope of Work activities, this will include flip chart paper, pens, post it notes, clip boards for sign in sheets, notepads, and other materials for use with Vaping Taskforces, as well as all materials to be used by program staff as they organize, plan and complete Scope of Work activities, including padfolios, calendars, pens, label machines, labels, envelopes, manila folders, filing systems, rolling carts, certificate paper, etc. Estimated at $250 per month for general office supplies x 12 months= $3000; $3000 total EXHIBIT B 1068 $3,000.00 Operating Expense Total $25,445.00 Financial Services Expenses – Line Items 1080-1085 1080 $246.00 Financial Services Expense Total $246.00 DC subtotal $132,742.96 Indirect Cost Expense - Line Item 1090 1090 IC 17,257.04$ TOTAL PROGRAM EXPENSES: $150,000.00 External Audit: Estimated expenses for an external audit of the program Administrative expenses such as overhead accounting support and payroll services, utilities, building and equipment maintenance, janitorial services, and dues and subscriptions. Indirect rate is calculated at 13-18% of Total Direct Cost. $132742.96 Total Direct Cost x 13.000345% = $17257.04 Incentives: Incentives to be provided to the Vaping Task Force Members, encourage participation of community residents in the Vaping Townhalls, and incentivize teacher participation in the inservice trainings. Non-consumable incentives are provided to program participants to motivate and/or reinforce positive behavior, participation, and/or involvement in tobacco control activities and requires action on the part of the recipient to receive the incentive. The cost of the incentive may not exceed $50 in value, per person, per year and shall not include gift cards that can be used to purchase tobacco or alcohol products. 40 Vaping Task Force Committee Members x $50= $2000, $2.50 incentive (pen, notebook, etc.) x 240 participants of townhalls= $600, $2.50 incentive (pen, highlighter, etc.) x 160 participants of Inservice Trainings= $400; Total $3000 EXHIBIT B PERSONNEL SALARIES:Annual Salary % FTE1 FTE Annual Salary Benefit Rate2 Benefit Cost 0001 Project Director 84,999.84$ 5%4,249.99$ 24%1,020.00$ 0002 Project Coordinator 46,325.12$ 100 46,325.12$ 24%11,118.03$ 0003 Community Engagement Coordinator 42,624.00$ 55-60%24,518.40$ 24%5,884.42$ 0004 Title -$ -$ 0005 Title -$ -$ 75,093.51$ $18,022.44 93,115.95$ 1010 Rent/Lease Building Monthly $697.50 $8,370.00 1011 Equipment $5,566.00 $13,936.00 1060 Telephone and Computer Network $2,640.00 1061 Postage $480.00 1062 Printing/Copying $3,960.00 1063 Office Supplies $3,000.00 1064 Staff Transportation $5,865.00 1065 Staff Training/Registration $1,500.00 1066 Food $3,000.00 1067 Educational Materials $2,000.00 1068 Incentives $3,000.00 $25,445.00 1080 External Audit $246.00 $246.00 TOTAL DIRECT COSTS $132,742.95 INDIRECT COSTS 13.000345% of total direct costs $17,257.04 TOTAL PROGRAM EXPENSES $150,000.00 Fresno County Tobacco Prevention Program California Health Collaborative June 16, 2020 - June 30, 2021 FACILITIES/EQUIPMENT EXPENSES: OPERATING EXPENSES: FINANCIAL SERVICES EXPENSES: OPERATING EXPENSES TOTAL FACILITY/EQUIPMENT TOTAL SALARIES TOTAL FINANCIAL SERVICES TOTAL 2017-2021 Local Lead Agency Allocation Agreement Terms and Conditions Local Lead Agency Guidelines July 2017 California Tobacco Control Program California Department of Public Health Page 1 of 4 GTC 04/2017 EXHIBIT C GENERAL TERMS AND CONDITIONS 1. APPROVAL: This Agreement is of no force or effect until signed by both parties and approved by the Department of General Services, if required. Contractor may not commence performance until such approval has been obtained. 2. AMENDMENT: No amendment or variation of the terms of this Agreement shall be valid unless made in writing, signed by the parties and approved as required. No oral understanding or Agreement not incorporated in the Agreement is binding on any of the parties. 3. ASSIGNMENT: This Agreement is not assignable by the Contractor, either in whole or in part, without the consent of the State in the form of a formal written amendment. 4. AUDIT: Contractor agrees that the awarding department, the Department of General Services, the Bureau of State Audits, or their designated representative shall have the right to review and to copy any records and supporting documentation pertaining to the performance of this Agreement. Contractor agrees to maintain such records for possible audit for a minimum of three (3) years after final payment, unless a longer period of records retention is stipulated. Contractor agrees to allow the auditor(s) access to such records during normal business hours and to allow interviews of any employees who might reasonably have information related to such records. Further, Contractor agrees to include a similar right of the State to audit records and interview staff in any subcontract related to performance of this Agreement. (Gov. Code §8546.7, Pub. Contract Code §10115 et seq., CCR Title 2, Section 1896). 5. INDEMNIFICATION: Contractor agrees to indemnify, defend and save harmless the State, its officers, agents and employees from any and all claims and losses accruing or resulting to any and all contractors, subcontractors, suppliers, laborers, and any other person, firm or corporation furnishing or supplying work services, materials, or supplies in connection with the performance of this Agreement, and from any and all claims and losses accruing or resulting to any person, firm or corporation who may be injured or damaged by Contractor in the performance of this Agreement. 6. DISPUTES: Contractor shall continue with the responsibilities under this Agreement during any dispute. 7. TERMINATION FOR CAUSE: The State may terminate this Agreement and be relieved of any payments should the Contractor fail to perform the requirements of this Agreement at the time and in the manner herein provided. In the event of such termination the State may proceed with the work in any manner deemed proper by the State. All costs to the State shall be deducted from any sum due the Contractor under this Agreement and the balance, if any, shall be paid to the Contractor upon demand. 2017-2021 Local Lead Agency Allocation Agreement Terms and Conditions Local Lead Agency Guidelines July 2017 California Tobacco Control Program California Department of Public Health Page 2 of 4 8. INDEPENDENT CONTRACTOR: Contractor, and the agents and employees of Contractor, in the performance of this Agreement, shall act in an independent capacity and not as officers or employees or agents of the State. 9. RECYCLING CERTIFICATION: The Contractor shall certify in writing under penalty of perjury, the minimum, if not exact, percentage of post consumer material as defined in the Public Contract Code Section 12200, in products, materials, goods, or supplies offered or sold to the State regardless of whether the product meets the requirements of Public Contract Code Section 12209. With respect to printer or duplication cartridges that comply with the requirements of Section 12156(e), the certification required by this subdivision shall specify that the cartridges so comply (Pub. Contract Code §12205). 10. NON-DISCRIMINATION CLAUSE: During the performance of this Agreement, Contractor and its subcontractors shall not deny the contract’s benefits to any person on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, nor shall they discriminate unlawfully against any employee or applicant for employment because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status. Contractor shall insure that the evaluation and treatment of employees and applicants for employment are free of such discrimination. Contractor and subcontractors shall comply with the provisions of the Fair Employment and Housing Act (Gov. Code §12900 et seq.), the regulations promulgated thereunder (Cal. Code Regs., tit. 2, §11000 et seq.), the provisions of Article 9.5, Chapter 1, Part 1, Division 3, Title 2 of the Government Code (Gov. Code §§11135-11139.5), and the regulations or standards adopted by the awarding state agency to implement such article. Contractor shall permit access by representatives of the Department of Fair Employment and Housing and the awarding state agency upon reasonable notice at any time during the normal business hours, but in no case less than 24 hours’ notice, to such of its books, records, accounts, and all other sources of information and its facilities as said Department or Agency shall require to ascertain compliance with this clause. Contractor and its subcontractors shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other agreement. (See Cal. Code Regs., tit. 2, §11105.) Contractor shall include the nondiscrimination and compliance provisions of this clause in all subcontracts to perform work under the Agreement. 11. CERTIFICATION CLAUSES: The CONTRACTOR CERTIFICATION CLAUSES contained in the document CCC 04/2017 are hereby incorporated by reference and made a part of this Agreement by this reference as if attached hereto. 12. TIMELINESS: Time is of the essence in this Agreement. 13. COMPENSATION: The consideration to be paid Contractor, as provided herein, shall be in compensation for all of Contractor's expenses incurred in the performance hereof, including travel, per diem, and taxes, unless otherwise expressly so provided. 2017-2021 Local Lead Agency Allocation Agreement Terms and Conditions Local Lead Agency Guidelines July 2017 California Tobacco Control Program California Department of Public Health Page 3 of 4 14. GOVERNING LAW: This contract is governed by and shall be interpreted in accordance with the laws of the State of California. 15. ANTITRUST CLAIMS: The Contractor by signing this agreement hereby certifies that if these services or goods are obtained by means of a competitive bid, the Contractor shall comply with the requirements of the Government Codes Sections set out below. a. The Government Code Chapter on Antitrust claims contains the following definitions: 1) "Public purchase" means a purchase by means of competitive bids of goods, services, or materials by the State or any of its political subdivisions or public agencies on whose behalf the Attorney General may bring an action pursuant to subdivision (c) of Section 16750 of the Business and Professions Code. 2) "Public purchasing body" means the State or the subdivision or agency making a public purchase. Government Code Section 4550. b. In submitting a bid to a public purchasing body, the bidder offers and agrees that if the bid is accepted, it will assign to the purchasing body 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 2 (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 bidder for sale to the purchasing body pursuant to the bid. Such assignment shall be made and become effective at the time the purchasing body tenders final payment to the bidder. Government Code Section 4552. c. If an awarding body or public purchasing body receives, either through judgment or settlement, a monetary recovery for a cause of action assigned under this chapter, the assignor shall be entitled to receive reimbursement for actual legal costs incurred and may, upon demand, recover from the public body any portion of the recovery, including treble damages, attributable to overcharges that were paid by the assignor but were not paid by the public body as part of the bid price, less the expenses incurred in obtaining that portion of the recovery. Government Code Section 4553. d. Upon demand in writing by the assignor, the assignee shall, within one year from such demand, reassign the cause of action assigned under this part if the assignor has been or may have been injured by the violation of law for which the cause of action arose and (a) the assignee has not been injured thereby, or (b) the assignee declines to file a court action for the cause of action. See Government Code Section 4554. 16. CHILD SUPPORT COMPLIANCE ACT: For any Agreement in excess of $100,000, the contractor acknowledges in accordance with Public Contract Code 7110, that: a. The 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 section 5200) of Part 5 of Division 9 of the Family Code; and 2017-2021 Local Lead Agency Allocation Agreement Terms and Conditions Local Lead Agency Guidelines July 2017 California Tobacco Control Program California Department of Public Health Page 4 of 4 b. The 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 California Employment Development Department. 17. UNENFORCEABLE PROVISION: In the event that any provision of this Agreement is unenforceable or held to be unenforceable, then the parties agree that all other provisions of this Agreement have force and effect and shall not be affected thereby. 18. PRIORITY HIRING CONSIDERATIONS: If this Contract includes services in excess of $200,000, the Contractor shall give priority consideration in filling vacancies in positions funded by the Contract to qualified recipients of aid under Welfare and Institutions Code Section 11200 in accordance with Pub. Contract Code §10353. 19. SMALL BUSINESS PARTICIPATION AND DVBE PARTICIPATION REPORTING REQUIREMENTS: a. If for this Contract Contractor made a commitment to achieve small business participation, then Contractor must within 60 days of receiving final payment under this Contract (or within such other time period as may be specified elsewhere in this Contract) report to the awarding department the actual percentage of small business participation that was achieved. (Govt. Code § 14841.) b. If for this Contract Contractor made a commitment to achieve disabled veteran business enterprise (DVBE) participation, then Contractor must within 60 days of receiving final payment under this Contract (or within such other time period as may be specified elsewhere in this Contract) certify in a report to the awarding department: (1) the total amount the prime Contractor received under the Contract; (2) the name and address of the DVBE(s) that participated in the performance of the Contract; (3) the amount each DVBE received from the prime Contractor; (4) that all payments under the Contract have been made to the DVBE; and (5) the actual percentage of DVBE participation that was achieved. A person or entity that knowingly provides false information shall be subject to a civil penalty for each violation. (Mil. & Vets. Code § 999.5(d); Govt. Code § 14841.) 20. LOSS LEADER: If this contract involves the furnishing of equipment, materials, or supplies then the following statement is incorporated: It is unlawful for any person engaged in business within this state to sell or use any article or product as a “loss leader” as defined in Section 17030 of the Business and Professions Code. (PCC 10344(e).) 2017-2021 Local Lead Agency Allocation Agreement Terms and Conditions Exhibit D Special Terms and Conditions (For Subvention/Local Assistance Agreements) Local Lead Agency Guidelines July 2017 California Tobacco Control Program California Department of Public Health Page 1 of 18 The provisions herein apply to this Agreement unless the provisions are removed by reference, the provisions are superseded by an alternate provision appearing elsewhere in this Agreement, or the applicable conditions do not exist. Index of Special Terms and Conditions 1. Procurement Rules 2. Equipment Ownership / Inventory / Disposition 3. Subcontract Requirements 4. Income Restrictions 5. Site Inspection 6. Intellectual Property Rights 7. Prior Approval of Training Seminars, Workshops or Conferences 8. Confidentiality of Information 9. Documents, Publications, and Written Reports 10. Dispute Resolution Process 11. Officials Not to Benefit 12. Prohibited Use of State Funds for Software 13. Contract Uniformity (Fringe Benefit Allowability) 14. Cancellation 2017-2021 Local Lead Agency Allocation Agreement Terms and Conditions Exhibit D Special Terms and Conditions (For Subvention/Local Assistance Agreements) Local Lead Agency Guidelines July 2017 California Tobacco Control Program California Department of Public Health Page 2 of 18 1. Procurement Rules (Applicable to all agreements in which equipment, property, commodities and/or supplies are furnished by CDPH or expenses for said items are reimbursed with state or federal funds.) a. Equipment definitions Wherever the term equipment /property is used, the following definitions shall apply: a. Major equipment/property: A tangible or intangible item having a base unit cost of $5,000 or more with a life expectancy of one (1) year or more and is either furnished by CDPH or the cost is reimbursed through this Agreement. Software and videos are examples of intangible items that meet this definition. b. Minor equipment/property: A tangible item having a base unit cost of less than $5,000 with a life expectancy of one (1) year or more and is either furnished by CDPH or the cost is reimbursed through this Agreement. b. Government and public entities (including state colleges/universities and auxiliary organizations), whether acting as a contractor, may secure all commodities, supplies, equipment and services related to such purchases that are required in performance of this Agreement. Said procurements are subject to Paragraphs d through g of this provision. Paragraph c of this provision shall also apply, if equipment purchases are delegated to subcontractors that are nonprofit organizations or commercial businesses. c. Nonprofit organizations and commercial businesses, whether acting as a contractor and/or subcontractor, may secure commodities, supplies, equipment and services related to such purchases for performance under this Agreement. a. Equipment purchases shall not exceed $50,000 annually. To secure equipment above the annual maximum limit of $50,000, the Contractor shall make arrangements through the appropriate CDPH Program Contract Manager, to have all remaining equipment purchased through CDPH’s Purchasing Unit. The cost of equipment purchased by or through CDPH shall be deducted from the funds available in this Agreement. Contractor shall submit to the CDPH Program Contract Manager a list of equipment specifications for those items that the State must procure. The State may pay the vendor directly for such arranged equipment purchases and title to the equipment will remain with CDPH. The equipment will be delivered to the Contractor's address, as stated on the face of the Agreement, unless the Contractor notifies the CDPH Program Contract Manager, in writing, of an alternate delivery address. b. All equipment purchases are subject to paragraphs d through g of this provision. Paragraph b of this provision shall also apply, if equipment purchases are delegated to subcontractors that are either a government or public entity. 2017-2021 Local Lead Agency Allocation Agreement Terms and Conditions Exhibit D Special Terms and Conditions (For Subvention/Local Assistance Agreements) Local Lead Agency Guidelines July 2017 California Tobacco Control Program California Department of Public Health Page 3 of 18 c. Nonprofit organizations and commercial businesses, shall use a procurement system that meets the following standards: a) Maintain a code or standard of conduct that shall govern the performance of its officers, employees, or agents engaged in awarding procurement contracts. No employee, officer, or agent shall participate in the selection, award, or administration of a procurement, or bid contract in which, to his or her knowledge, he or she has a financial interest. b) Procurements shall be conducted in a manner that provides, to the maximum extent practical, open, and free competition. c) Procurements shall be conducted in a manner that provides for all of the following: [1] Avoid purchasing unnecessary or duplicate items. [2] Equipment solicitations shall be based upon a clear and accurate description of the technical requirements of the goods to be procured. [3] Take positive steps to utilize small and veteran owned businesses. d. Unless waived or otherwise stipulated in writing by CDPH, prior written authorization from the appropriate CDPH Program Contract Manager will be required before the Contractor will be reimbursed for any purchase exceeding $2,500 or more for commodities, supplies, equipment, and services related to such purchases. The Contractor must provide in its request for authorization all particulars necessary, as specified by CDPH, for evaluating the necessity or desirability of incurring such costs. The term "purchase" excludes the purchase of services from a subcontractor and public utility services at rates established for uniform applicability to the general public. e. In special circumstances, determined by CDPH (e.g., when CDPH has a need to monitor certain purchases, etc.), CDPH may require prior written authorization and/or the submission of paid vendor receipts for any purchase, regardless of dollar amount. CDPH reserves the right to either deny claims for reimbursement or to request repayment for any Contractor purchase that CDPH determines to be unnecessary in carrying out performance under this Agreement. f. The Contractor must maintain a copy or narrative description of the procurement system, guidelines, rules, or regulations that will be used to make purchases under this Agreement. The State reserves the right to request a copy of these documents and to inspect the purchasing practices of the Contractor at any time. g. For all purchases, the Contractor must maintain copies of all paid vendor invoices, documents, bids and other information used in vendor selection, for inspection or audit. Justifications supporting the absence of bidding (i.e., sole source purchases) shall also be 2017-2021 Local Lead Agency Allocation Agreement Terms and Conditions Exhibit D Special Terms and Conditions (For Subvention/Local Assistance Agreements) Local Lead Agency Guidelines July 2017 California Tobacco Control Program California Department of Public Health Page 4 of 18 maintained on file by the Contractor for inspection or audit. 2. Equipment Ownership / Inventory / Disposition (Applicable to agreements in which equipment and/or property is furnished by CDPH and/or when said items are purchased or reimbursed with state) a. Wherever the terms equipment and/or property are used in this provision, the definitions in provision 1, paragraph a., shall apply. Unless otherwise stipulated in this Agreement, all equipment and/or property that are purchased/reimbursed with agreement funds or furnished by CDPH under the terms of this Agreement shall be considered state equipment and the property of CDPH. (1) CDPH requires the reporting, tagging and annual inventorying of all equipment and/or property that is furnished by CDPH or purchased/reimbursed with funds provided through this Agreement. Upon receipt of equipment and/or property, the Contractor shall report the receipt to the CDPH Program Contract Manager. To report the receipt of said items and to receive property tags, Contractor shall use a form or format designated by CDPH’s Asset Management Unit. If the appropriate form (i.e., Contractor Equipment Purchased with CDPH Funds) does not accompany this Agreement, Contractor shall request a copy from the CDPH Program Contract Manager. (2) If the Contractor enters into an agreement with a term of more than twelve months, the Contractor shall submit an annual inventory of state equipment and/or property to the CDPH Program Contract Manager using a form or format designated by CDPH’s Asset Management Unit. If an inventory report form (i.e., Inventory/Disposition of CDPH-Funded Equipment) does not accompany this Agreement, Contractor shall request a copy from the CDPH Program Contract Manager. Contractor shall: a. Include in the inventory report, equipment and/or property in the Contractor's possession and/or in the possession of a subcontractor (including independent consultants). b. Submit the inventory report to CDPH according to the instructions appearing on the inventory form or issued by the CDPH Program Contract Manager. c. Contact the CDPH Program Contract Manager to learn how to remove, trade-in, sell, transfer or survey off, from the inventory report, expired equipment and/or property that is no longer wanted, usable or has passed its life expectancy. Instructions will be supplied by CDPH’s Asset Management Unit. d. Title to state equipment and/or property shall not be affected by its incorporation or attachment to any property not owned by the State. 2017-2021 Local Lead Agency Allocation Agreement Terms and Conditions Exhibit D Special Terms and Conditions (For Subvention/Local Assistance Agreements) Local Lead Agency Guidelines July 2017 California Tobacco Control Program California Department of Public Health Page 5 of 18 e. Unless otherwise stipulated, CDPH shall be under no obligation to pay the cost of restoration, or rehabilitation of the Contractor's and/or Subcontractor's facility which may be affected by the removal of any state equipment and/or property. f. The Contractor shall maintain and administer a sound business program for ensuring the proper use, maintenance, repair, protection, insurance and preservation of state equipment and/or property. a. In administering this provision, CDPH may require the Contractor to repair or replace, to CDPH’s satisfaction, any damaged, lost or stolen state equipment and/or property. Contractor shall immediately file a theft report with the appropriate police agency or the California Highway Patrol and Contractor shall promptly submit one copy of the theft report to the CDPH Program Contract Manager. g. Unless otherwise stipulated by the program funding this Agreement, equipment and/or property purchased/reimbursed with agreement funds or furnished by CDPH under the terms of this Agreement, shall only be used for performance of this Agreement or another CDPH agreement. h. Within sixty (60) calendar days prior to the termination or end of this Agreement, the Contractor shall provide a final inventory report of equipment and/or property to the CDPH Program Contract Manager and shall, at that time, query CDPH as to the requirements, including the manner and method, of returning state equipment and/or property to CDPH. Final disposition of equipment and/or property shall be at CDPH expense and according to CDPH instructions. Equipment and/or property disposition instructions shall be issued by CDPH immediately after receipt of the final inventory report. At the termination or conclusion of this Agreement, CDPH may at its discretion, authorize the continued use of state equipment and/or property for performance of work under a different CDPH agreement. i. Motor Vehicles (Applicable only if motor vehicles are purchased/reimbursed with agreement funds or furnished by CDPH under this Agreement.) a. If motor vehicles are purchased/reimbursed or furnished by CDPH under the terms of this Agreement, within thirty (30) calendar days prior to the termination or end of this Agreement, the Contractor shall return such vehicles to CDPH and shall deliver all necessary documents of title or registration to enable the proper transfer of a marketable title to CDPH. b. If motor vehicles are purchased/reimbursed or furnished by CDPH under the terms of this Agreement, the State of California shall be the legal owner of said motor vehicles and the Contractor shall be the registered owner. The Contractor shall 2017-2021 Local Lead Agency Allocation Agreement Terms and Conditions Exhibit D Special Terms and Conditions (For Subvention/Local Assistance Agreements) Local Lead Agency Guidelines July 2017 California Tobacco Control Program California Department of Public Health Page 6 of 18 only use said vehicles for the performance under the terms of this Agreement. c. The Contractor agree that all operators of motor vehicles, purchased/reimbursed or furnished by CDPH under the terms of this Agreement, shall hold a valid State of California driver's license. In the event that ten or more passengers are to be transported in any one vehicle, the operator shall also hold a State of California Class B driver's license. d. If any motor vehicle is purchased/reimbursed or furnished by CDPH under the terms of this Agreement, the Contractor, as applicable, shall provide, maintain, and certify that, at a minimum, the following type and amount of automobile liability insurance is in effect during the term of this Agreement or any extension period during which any vehicle remains in the Contractor's possession: Automobile Liability Insurance a) The Contractor, by signing this Agreement, hereby certifies that it possesses or will obtain automobile liability insurance in the amount of $1,000,000 per occurrence for bodily injury and property damage combined. Said insurance must be obtained and made effective upon the delivery date of any motor vehicle, purchased/reimbursed with agreement funds or furnished by CDPH under the terms of this Agreement, to the Contractor. b) The Contractor shall, as soon as practical, furnish a copy of the certificate of insurance to the CDPH Program Contract Manager. The certificate of insurance shall identify the CDPH contract or agreement number for which the insurance applies. c) The Contractor agree that bodily injury and property damage liability insurance, as required herein, shall remain in effect at all times during the term of this Agreement or until such time as the motor vehicle is returned to CDPH. d) The Contractor agree to provide, at least thirty (30) days prior to the expiration date of said insurance coverage, a copy of a new certificate of insurance evidencing continued coverage, as indicated herein, for not less than the remainder of the term of this Agreement, the term of any extension or continuation thereof, or for a period of not less than one (1) year. e) The Contractor, if not a self-insured government and/or public entity, must provide evidence, that any required certificates of insurance contain the following provisions: [1] The insurer will not cancel the insured's coverage without giving thirty (30) calendar days prior written notice to the State. [2] The State of California, its officers, agents, employees, and servants are included as additional insureds, but only with respect to work performed for the State under 2017-2021 Local Lead Agency Allocation Agreement Terms and Conditions Exhibit D Special Terms and Conditions (For Subvention/Local Assistance Agreements) Local Lead Agency Guidelines July 2017 California Tobacco Control Program California Department of Public Health Page 7 of 18 this Agreement and any extension or continuation of this Agreement. [3] The insurance carrier shall notify CDPH, in writing, of the Contractor's failure to pay premiums; its cancellation of such policies; or any other substantial change, including, but not limited to, the status, coverage, or scope of the required insurance. Such notices shall contain a reference to each agreement number for which the insurance was obtained. f) The Contractor is hereby advised that copies of certificates of insurance may be subject to review and approval by the Department of General Services (DGS), Office of Risk and Insurance Management. The Contractor shall be notified by CDPH, in writing, if this provision is applicable to this Agreement. If DGS approval of the certificate of insurance is required, the Contractor agrees that no work or services shall be performed prior to obtaining said approval. g) In the event the Contractor fails to keep insurance coverage, as required herein, in effect at all times during vehicle possession, CDPH may, in addition to any other remedies it may have, terminate this Agreement upon the occurrence of such event. 3. Subcontract Requirements (Applicable to agreements under which services are to be performed by subcontractors including independent consultants.) a. Prior written authorization will be required before the Contractor enters into or is reimbursed for any subcontract for services exceeding $2,500 for any articles, supplies, equipment, or services. The Contractor shall obtain at least three competive quatations which should be submitted or adequate justification provided for the absence of bidding. b. CDPH reserves the right to approve or disapprove the selection of subcontractors and with advance written notice, require the substitution of subcontractors and require the Contractor to terminate subcontracts entered into in support of this Agreement. [1] Upon receipt of a written notice from CDPH requiring the substitution and/or termination of a subcontract, the Contractor shall take steps to ensure the completion of any work in progress and select a replacement, if applicable, within 30 calendar days, unless a longer period is agreed to by CDPH. c. Actual subcontracts (i.e., written agreement between the Contractor and a subcontractor) exceeding $2,500 are subject to the prior review and written approval of CDPH. d. Contractor shall maintain a copy of each subcontract entered into in support of this Agreement and shall, upon request by CDPH, make copies available for approval, inspection, or audit. e. CDPH assumes no responsibility for the payment of subcontractors used in the performance of this 2017-2021 Local Lead Agency Allocation Agreement Terms and Conditions Exhibit D Special Terms and Conditions (For Subvention/Local Assistance Agreements) Local Lead Agency Guidelines July 2017 California Tobacco Control Program California Department of Public Health Page 8 of 18 Agreement. Contractor accepts sole responsibility for the payment of subcontractors used in the performance of this Agreement. f. The Contractor is responsible for all performance requirements under this Agreement even though performance may be carried out through a subcontract. g. The Contractor shall ensure that all subcontracts for services include provision(s) requiring compliance with applicable terms and conditions specified in this Agreement and shall be the subcontractor’s sole point of contact for all matters related to the performance and payment during the term of this Agreement. h. The Contractor agrees to include the following clause, relevant to record retention, in all subcontracts for services: "(Subcontractor Name) agrees to maintain and preserve, until three years after termination of (Agreement Number) and final payment from CDPH to the Contractor, to permit CDPH or any duly authorized representative, to have access to, examine or audit any pertinent books, documents, papers and records related to this subcontract and to allow interviews of any employees who might reasonably have information related to such records." 4. Income Restrictions Unless otherwise stipulated in this Agreement, the Contractor agrees that any refunds, rebates, credits, or other amounts (including any interest thereon) accruing to or received by the Contractor under this Agreement shall be paid by the Contractor to CDPH, to the extent that they are properly allocable to costs for which the Contractor has been reimbursed by CDPH under this Agreement. 5. Site Inspection The State, through any authorized representatives, has the right at all reasonable times to inspect or otherwise evaluate the work performed or being performed hereunder including subcontract supported activities and the premises in which it is being performed. If any inspection or evaluation is made of the premises of the Contractor or Subcontractor, the Contractor shall provide and shall require Subcontractors to provide all reasonable facilities and assistance for the safety and convenience of the authorized representatives in the performance of their duties. All inspections and evaluations shall be performed in such a manner as will not unduly delay the services performed. 6. Intellectual Property Rights a. Ownership (1) Except where CDPH has agreed in a signed writing to accept a license, CDPH shall be and remain, without additional compensation, the sole owner of any and all rights, title and interest in all Intellectual Property, from the moment of creation, whether or not jointly conceived, that are made, conceived, derived from, or reduced to practice by Contractor or CDPH and which 2017-2021 Local Lead Agency Allocation Agreement Terms and Conditions Exhibit D Special Terms and Conditions (For Subvention/Local Assistance Agreements) Local Lead Agency Guidelines July 2017 California Tobacco Control Program California Department of Public Health Page 9 of 18 result directly or indirectly from this Agreement. (2) 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, moral 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, good will and all other legal rights protecting intangible proprietary information as may exist now and/or here after 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. (a) For the purposes of the definition of Intellectual Property, “works” means all literary works, writings and printed 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 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 purposes of producing those final products. Works does not include articles submitted to peer review or reference journals or independent research projects. (3) In the performance of this Agreement, Contractor will 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 CDPH’s Intellectual Property in existence prior to the effective date of this Agreement. Except as otherwise set forth herein, Contractor shall not use any of CDPH’s Intellectual Property now existing or hereafter existing for any purposes without the prior written permission of CDPH. Except as otherwise set forth herein, neither the Contractor nor CDPH shall give any ownership interest in or 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 CDPH, Contractor agrees to abide by all license and confidentiality restrictions applicable to CDPH in the third-party’s license agreement. (a) Contractor agrees to cooperate with CDPH in establishing or maintaining CDPH’s exclusive rights in the Intellectual Property, and in assuring CDPH’s sole rights against third parties with respect to the Intellectual Property. If the Contractor enters into any agreements or subcontracts with other parties in order to perform this Agreement, Contractor shall require the terms of the Agreement(s) to include all Intellectual Property provisions. Such terms must include, but are not limited to, the subcontractor assigning and agreeing to assign to CDPH all rights, title and interest in Intellectual Property made, conceived, derived from, or reduced to practice by the subcontractor, Contractor or CDPH and which result directly or indirectly from this Agreement or any subcontract. 2017-2021 Local Lead Agency Allocation Agreement Terms and Conditions Exhibit D Special Terms and Conditions (For Subvention/Local Assistance Agreements) Local Lead Agency Guidelines July 2017 California Tobacco Control Program California Department of Public Health Page 10 of 18 (b) Contractor further agrees to assist and cooperate with CDPH in all reasonable respects, and execute all documents and, subject to reasonable availability, give testimony and take all further acts reasonably necessary to acquire, transfer, maintain, and enforce CDPH’s Intellectual Property rights and interests. b. Retained Rights / License Rights (1) Except for Intellectual Property made, conceived, derived from, or reduced to practice by Contractor or CDPH and which result directly or indirectly from this Agreement, Contractor shall retain title to all of its Intellectual Property to the extent such Intellectual Property is in existence prior to the effective date of this Agreement. Contractor hereby grants to CDPH, without additional compensation, a permanent, non-exclusive, royalty free, paid-up, worldwide, irrevocable, perpetual, non-terminable license to use, reproduce, manufacture, sell, offer to sell, import, export, modify, publicly and privately display/perform, distribute, and dispose Contractor’s Intellectual Property with the right to sublicense through multiple layers, for any purpose whatsoever, to the extent it is incorporated in the Intellectual Property resulting from this Agreement, unless Contractor assigns all rights, title and interest in the Intellectual Property as set forth herein. a. 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 CDPH or third party, or result in a breach or default of any provisions of this Exhibit or result in a breach of any provisions of law relating to confidentiality. c. Copyright (1) Contractor agrees that for purposes of copyright law, all works [as defined in Paragraph a, subparagraph (2)(a) of this provision of authorship made by or on behalf of Contractor in connection with Contractor’s performance of this Agreement shall be deemed “works made for hire”. Contractor further agrees that the work of each person utilized by Contractor in connection with the performance of this Agreement will be a “work made for hire,” whether that person is an employee of Contractor or that person has entered into an agreement with Contractor to perform the work. Contractor shall enter into a written agreement with any such person that: (i) all work performed for Contractor shall be deemed a “work made for hire” under the Copyright Act and (ii) that person shall assign all right, title, and interest to CDPH to any work product made, conceived, derived from, or reduced to practice by Contractor or CDPH and which result directly or indirectly from this Agreement. (2) All materials, including, but not limited to, visual works or text, reproduced or distributed pursuant to this Agreement that include Intellectual Property made, conceived, derived from, or reduced to practice by Contractor or CDPH and which result directly or indirectly from this Agreement, shall include CDPH’s notice of copyright, which shall read in 3mm or larger 2017-2021 Local Lead Agency Allocation Agreement Terms and Conditions Exhibit D Special Terms and Conditions (For Subvention/Local Assistance Agreements) Local Lead Agency Guidelines July 2017 California Tobacco Control Program California Department of Public Health Page 11 of 18 typeface: “© [Enter Current Year e.g., 2014, etc.], Department of Public Health. This material may not be reproduced or disseminated without prior written permission from the Department of Public Health.” This notice should be placed prominently on the materials and set apart from other matter on the page where it appears. Audio productions shall contain a similar audio notice of copyright. d. Patent Rights With respect to inventions made by Contractor in the performance of this Agreement, which did not result from research and development specifically included in the Agreement’s scope of work, Contractor hereby grants to CDPH a license as described under Section b of this provision for devices or material incorporating, or made through the use of such inventions. If such inventions result from research and development work specifically included within the Agreement’s scope of work, then Contractor agrees to assign to CDPH, without additional compensation, all its right, title and interest in and to such inventions and to assist CDPH in securing United States and foreign patents with respect thereto. e. Third-Party Intellectual Property Except as provided herein, Contractor agrees that its performance of this Agreement shall not be dependent upon or include any Intellectual Property of Contractor or third party without first: (i) obtaining CDPH’s prior written approval; and (ii) granting to or obtaining for CDPH, without additional compensation, a license, as described in Section b of this provision, for any of Contractor’s or third-party’s Intellectual Property in existence prior to the effective date of this Agreement. If such a license upon the these terms is unattainable, and CDPH determines that the Intellectual Property should be included in or is required for Contractor’s performance of this Agreement, Contractor shall obtain a license under terms acceptable to CDPH. f. Warranties (1) Contractor represents and warrants that: (a) It is free to enter into and fully perform this Agreement. (b) It has secured and will secure all rights and licenses necessary for its performance of this Agreement. (c) Neither Contractor’s performance of this Agreement, nor the exercise by either Party of the rights granted 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 CDPH 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. 2017-2021 Local Lead Agency Allocation Agreement Terms and Conditions Exhibit D Special Terms and Conditions (For Subvention/Local Assistance Agreements) Local Lead Agency Guidelines July 2017 California Tobacco Control Program California Department of Public Health Page 12 of 18 There is currently no actual or threatened claim by any such third party based on an alleged violation of any such right by Contractor. (d) 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. (e) 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, television and motion picture talent), owners of any interest in and to real estate, sites, locations, property or props that may be used or shown. (f) 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 granted to CDPH in this Agreement. (g) It has appropriate systems and controls in place to ensure that state 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. (h) 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. (2) CDPH 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. g. Intellectual Property Indemnity (1) Contractor shall indemnify, defend and hold harmless CDPH and its licensees and assignees, and its officers, directors, employees, agents, representatives, successors, and users of its products, (“Indemnitees”) from and against all claims, actions, damages, losses, liabilities (or actions or proceedings with respect to any thereof), whether or not rightful, arising from any and all actions or 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 Indemnitees 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 CDPH’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 CDPH and which result directly or indirectly from this Agreement. This indemnity obligation shall apply irrespective of 2017-2021 Local Lead Agency Allocation Agreement Terms and Conditions Exhibit D Special Terms and Conditions (For Subvention/Local Assistance Agreements) Local Lead Agency Guidelines July 2017 California Tobacco Control Program California Department of Public Health Page 13 of 18 whether the infringement claim is based on a patent, trademark or copyright registration that issued after the effective date of this Agreement. CDPH reserves the right to participate in and/or control, at Contractor’s expense, any such infringement action brought against CDPH. (2) Should any Intellectual Property licensed by the Contractor to CDPH under this Agreement become the subject of an Intellectual Property infringement claim, Contractor will exercise its authority reasonably and in good faith to preserve CDPH’s right to use the licensed Intellectual Property in accordance with this Agreement at no expense to CDPH. CDPH 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 CDPH to continue using the licensed 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, CDPH shall be entitled to a refund of all monies paid under this Agreement, without restriction or limitation of any other rights and remedies available at law or in equity. (3) Contractor agrees that damages alone would be inadequate to compensate CDPH for breach of any term of this Intellectual Property Exhibit by Contractor. Contractor acknowledges CDPH would suffer irreparable harm in the event of such breach and agrees CDPH shall be entitled to obtain equitable relief, including without limitation an injunction, from a court of competent jurisdiction, without restriction or limitation of any other rights and remedies available at law or in equity. h. Survival The provisions set forth herein shall survive any termination or expiration of this Agreement or any project schedule. 7. Prior Approval of Training Seminars, Workshops or Conferences Contractor shall obtain prior CDPH approval of the location, costs, dates, agenda, instructors, instructional materials, and attendees at any reimbursable training seminar, workshop, or conference conducted pursuant to this Agreement and of any reimbursable publicity or educational materials to be made available for distribution. The Contractor shall acknowledge the support of the State whenever publicizing the work under this Agreement in any media. This provision does not apply to necessary staff meetings or training sessions held for the staff of the Contractor in order to conduct routine business matters. 8. Confidentiality of Information The Contractor and its employees, agents, or subcontractors shall: a. Protect from unauthorized disclosure names and other identifying information concerning persons either receiving services pursuant to this Agreement or persons whose names or identifying 2017-2021 Local Lead Agency Allocation Agreement Terms and Conditions Exhibit D Special Terms and Conditions (For Subvention/Local Assistance Agreements) Local Lead Agency Guidelines July 2017 California Tobacco Control Program California Department of Public Health Page 14 of 18 information become available or are disclosed to the Contractor, its employees, agents, or subcontractors as a result of services performed under this Agreement, except for statistical information not identifying any such person. b. Not use such identifying information for any purpose other than carrying out the Contractor's obligations under this Agreement. c. Promptly transmit to the CDPH Contract Manager all requests for disclosure of such identifying information not emanating from the client or person. d. Not disclose, except as otherwise specifically permitted by this Agreement or authorized by the client, any such identifying information to anyone other than CDPH without prior written authorization from the CDPH Contract Manager, except if disclosure is required by State or Federal law. e. For purposes of this provision, identity shall include, but not be limited to name, identifying number, symbol, or other identifying particular assigned to the individual, such as finger or voice print or a photograph. f. As deemed applicable by CDPH, this provision may be supplemented by additional terms and conditions covering personal health information (PHI) or personal, sensitive, and/or confidential information (PSCI). Said terms and conditions will be outlined in one or more exhibits that will either be attached to this Agreement or incorporated into this Agreement by reference. 9. Documents, Publications and Written Reports (Applicable to agreements over $5,000 under which publications, written reports and documents are developed or produced. Government Code Section 7550.) Any document, publication or written report (excluding progress reports, financial reports and normal contractual communications) prepared as a requirement of this Agreement shall contain, in a separate section preceding the main body of the document, the number and dollar amounts of all contracts or agreements and subcontracts relating to the preparation of such document or report, if the total cost for work by nonemployees of the State exceeds $5,000. 10. Dispute Resolution Process a. A Contractor grievance exists whenever there is a dispute arising from CDPH’s action in the administration of an agreement. If there is a dispute or grievance between the Contractor and CDPH, the Contractor must seek resolution using the procedure outlined below. (1) The Contractor should first informally discuss the problem with the CDPH Program Contract Manager. If the problem cannot be resolved informally, the Contractor shall direct its grievance together with any evidence, in writing, to the program Branch Chief. The grievance shall state the issues in dispute, the legal authority or other basis for the Contractor's position and the 2017-2021 Local Lead Agency Allocation Agreement Terms and Conditions Exhibit D Special Terms and Conditions (For Subvention/Local Assistance Agreements) Local Lead Agency Guidelines July 2017 California Tobacco Control Program California Department of Public Health Page 15 of 18 remedy sought. The Branch Chief shall render a decision within ten (10) working days after receipt of the written grievance from the Contractor. The Branch Chief shall respond in writing to the Contractor indicating the decision and reasons therefore. If the Contractor disagrees with the Branch Chief’s decision, the Contractor may appeal to the second level. (2) When appealing to the second level, the Contractor must prepare an appeal indicating the reasons for disagreement with Branch Chief’s decision. The Contractor shall include with the appeal a copy of the Contractor's original statement of dispute along with any supporting evidence and a copy of the Branch Chief’s decision. The appeal shall be addressed to the Deputy Director of the division in which the branch is organized within ten (10) working days from receipt of the Branch Chief’s decision. The Deputy Director of the division in which the branch is organized or his/her designee shall meet with the Contractor to review the issues raised. A written decision signed by the Deputy Director of the division in which the branch is organized or his/her designee shall be directed to the Contractor within twenty (20) working days of receipt of the Contractor's second level appeal. b. If the Contractor wishes to appeal the decision of the Deputy Director of the division in which the branch is organized or his/her designee, the Contractor shall follow the procedures set forth in Division 25.1 (commencing with Section 38050) of the Health and Safety Code and the regulations adopted thereunder. (Title 1, Division 2, Chapter 2, Article 3 (commencing with Section 1140) of the California Code of Regulations). c. Disputes arising out of an audit, examination of an agreement or other action not covered by subdivision (a) of Section 20204, of Chapter 2.1, Title 22, of the California Code of Regulations, and for which no procedures for appeal are provided in statute, regulation or the Agreement, shall be handled in accordance with the procedures identified in Sections 51016 through 51047, Title 22, California Code of Regulations. d. Unless otherwise stipulated in writing by CDPH, all dispute, grievance and/or appeal correspondence shall be directed to the CDPH Contract Manager. e. There are organizational differences within CDPH’s funding programs and the management levels identified in this dispute resolution provision may not apply in every contractual situation. When a grievance is received and organizational differences exist, the Contractor shall be notified in writing by the CDPH Contract Manager of the level, name, and/or title of the appropriate management official that is responsible for issuing a decision at a given level. 11. Officials Not to Benefit No members of or delegate of Congress or the State Legislature shall be admitted to any share or part of this Agreement, or to any benefit that may arise therefrom. This provision shall not be construed to extend to this Agreement if made with a corporation for its general benefits. 2017-2021 Local Lead Agency Allocation Agreement Terms and Conditions Exhibit D Special Terms and Conditions (For Subvention/Local Assistance Agreements) Local Lead Agency Guidelines July 2017 California Tobacco Control Program California Department of Public Health Page 16 of 18 12. Prohibited Use of State Funds for Software Contractor certifies that it has appropriate systems and controls in place to ensure that state 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. 13. Contract Uniformity (Fringe Benefit Allowability) (Applicable only to nonprofit organizations.) Pursuant to the provisions of Article 7 (commencing with Section 100525) of Chapter 3 of Part 1 of Division 101 of the Health and Safety Code, CDPH sets forth the following policies, procedures, and guidelines regarding the reimbursement of fringe benefits. a. As used herein fringe benefits shall mean an employment benefit given by one’s employer to an employee in addition to one’s regular or normal wages or salary. b. As used herein, fringe benefits do not include: (1) Compensation for personal services paid currently or accrued by the Contractor for services of employees rendered during the term of this Agreement, which is identified as regular or normal salaries and wages, annual leave, vacation, sick leave, holidays, jury duty and/or military leave/training. (2) Director’s and executive committee member’s fees. (3) Incentive awards and/or bonus incentive pay. (4) Allowances for off-site pay. (5) Location allowances. (6) Hardship pay. (7) Cost-of-living differentials c. Specific allowable fringe benefits include: (1) Fringe benefits in the form of employer contributions for the employer's portion of payroll taxes (i.e., FICA, SUI, SDI), employee health plans (i.e., health, dental and vision), unemployment insurance, worker’s compensation insurance, and the employer’s share of pension/retirement plans, provided they are granted in accordance with established written organization policies and meet all legal and Internal Revenue Service requirements. d. To be an allowable fringe benefit, the cost must meet the following criteria: (1) Be necessary and reasonable for the performance of the Agreement. (2) Be determined in accordance with generally accepted accounting principles. (3) Be consistent with policies that apply uniformly to all activities of the Contractor. e. Contractor agrees that all fringe benefits shall be at actual cost. 2017-2021 Local Lead Agency Allocation Agreement Terms and Conditions Exhibit D Special Terms and Conditions (For Subvention/Local Assistance Agreements) Local Lead Agency Guidelines July 2017 California Tobacco Control Program California Department of Public Health Page 17 of 18 f. Earned/Accrued Compensation (1) Compensation for vacation, sick leave and holidays is limited to that amount earned/accrued within the agreement term. Unused vacation, sick leave and holidays earned from periods prior to the agreement term cannot be claimed as allowable costs. See section f (3)(a) below for an example. (2) For multiple year agreements, vacation and sick leave compensation, which is earned/accrued but not paid, due to employee(s) not taking time off may be carried over and claimed within the overall term of the multiple years of the Agreement. Holidays cannot be carried over from one agreement year to the next. See Provision f (3)(b) for an example. (3) For single year agreements, vacation, sick leave and holiday compensation that is earned/accrued but not paid, due to employee(s) not taking time off within the term of the Agreement, cannot be claimed as an allowable cost. See Provision f (3)(c) for an example. a) Example No. 1: If an employee, John Doe, earns/accrues three weeks of vacation and twelve days of sick leave each year, then that is the maximum amount that may be claimed during a one year agreement. If John Doe has five weeks of vacation and eighteen days of sick leave at the beginning of an agreement, the Contractor during a one-year budget period may only claim up to three weeks of vacation and twelve days of sick leave as actually used by the employee. Amounts earned/accrued in periods prior to the beginning of the Agreement are not an allowable cost. b) Example No. 2: If during a three-year (multiple year) agreement, John Doe does not use his three weeks of vacation in year one, or his three weeks in year two, but he does actually use nine weeks in year three; the Contractor would be allowed to claim all nine weeks paid for in year three. The total compensation over the three-year period cannot exceed 156 weeks (3 x 52 weeks). c) Example No. 3: If during a single year agreement, John Doe works fifty weeks and used one week of vacation and one week of sick leave and all fifty-two weeks have been billed to CDPH, the remaining unused two weeks of vacation and seven days of sick leave may not be claimed as an allowable cost. 14. Cancellation A. This agreement may be cancelled by CDPH without cause upon 30 calendar days advance written notice to the Contractor. 2017-2021 Local Lead Agency Allocation Agreement Terms and Conditions Exhibit D Special Terms and Conditions (For Subvention/Local Assistance Agreements) Local Lead Agency Guidelines July 2017 California Tobacco Control Program California Department of Public Health Page 18 of 18 B. CDPH reserves the right to cancel or terminate this agreement immediately for cause. The Contractor may submit a written request to terminate this agreement only if CDPH substantially fails to perform its responsibilities as provided herein. C. The term “for cause” shall mean that the Contractor fails to meet the terms, conditions, and/or responsibilities of this agreement. D. Agreement termination or cancellation shall be effective as of the date indicated in CDPH’s notification to the Contractor. The notice shall stipulate any final performance, invoicing or payment requirements. E. Upon receipt of a notice of termination or cancellation, the Contractor shall take immediate steps to stop performance and to cancel or reduce subsequent agreement costs. F. In the event of early termination or cancellation, the Contractor shall be entitled to compensation for services performed satisfactorily under this agreement and expenses incurred up to the date of cancellation and any non-cancelable obligations incurred in support of this agreement. Exhibit E SELF-DEALING TRANSACTION DISCLOSURE FORM In order to conduct business with the County of Fresno (hereinafter referred to as “County”), members of a contractor’s board of directors (hereinafter referred to as “County Contractor”), must disclose any self-dealing transactions that they are a party to while providing goods, performing services, or both for the County. A self-dealing transaction is defined below: “A self-dealing transaction means a transaction to which the corporation is a party and in which one or more of its directors has a material financial interest” The definition above will be utilized for purposes of completing this disclosure form. INSTRUCTIONS (1)Enter board member’s name, job title (if applicable), and date this disclosure is being made. (2)Enter the board member’s company/agency name and address. (3)Describe in detail the nature of the self-dealing transaction that is being disclosed to the County. At a minimum, include a description of the following: a.The name of the agency/company with which the corporation has the transaction; and b.The nature of the material financial interest in the Corporation’s transaction that the board member has. (4)Describe in detail why the self-dealing transaction is appropriate based on applicable provisions of the Corporations Code. (5)Form must be signed by the board member that is involved in the self-dealing transaction described in Sections (3) and (4). Exhibit E (1) Company Board Member Information: Name: Date: Job Title: (2) Company/Agency Name and Address: (3)Disclosure (Please describe the nature of the self-dealing transaction you are a party to): (4)Explain why this self-dealing transaction is consistent with the requirements of Corporations Code 5233 (a): (5) Authorized Signature Signature: Date: