Palm Springs City Council
September 26, 2023

Item 1P - Page 10
What Must I Disclose?
A. The names of all natural persons who are officers, directors, members, managers, trustees, and other fiduciaries serving trusts or other types of organizations (attorneys, accountants, etc.).

Note: (1) only trusts or other organizations that are not the fiduciaries, (2) if a second entity that is not a natural person serves the applicant entity (e.g., as a member of an applicant LLC), then all officers, directors , members, managers , trustees, etc., of the second entity must be disclosed).

B. The names of persons owning an interest with a value of two thousand dollars ($2,000) or more who have a material financial relationship with an elected or appointed City official who will vote on the applicant's application, or with the City Manager or City Attorney.

PENALTIES
Falsification of information or failure to report information required to be reported may subject you to administrative action by the City.
(Revised 09 13 18)

CITY OF PALM SPRINGS- PUBLIC INTEGRITY DISCLOSURE
(INSTRUCTION FOR APPLICANTS)

Item 1P - Page 11

1. Name of Entity

PUBLIC INTEGRITY DISCLOSURE

APPLICANT DISCLOSURE FORM
Wise Education Technology , Inc. OBA Oaksterdam University

2. Address of Entity (Principle Place of Business)
3630 High Street , Unit 19271 Oakland, CA 94619-2158

3. Local or California Address (if different than #2)

4. State where Entity is Registered with Secretary of State California
If other than California , is the Entitv also reqistered in California? n Yes n No

5. Type of Entity
~ Corporation D Limited Liability Company D Partnership D Trust D Other (please specify)

6. Officers, Directors, Members, Managers, Trustees, Other Fiduciaries (please specify) Note: If any response is not a natural person, please identify all officers, directors, members, managers and other fiduciaries for the member, manager, trust or other entity Dale Sky Jones
David Abernathy
Susan Trout
(Revised 09 13 18)
Ill Officer Ill Director D Member D Manager
[name]
D General Partner D Limited Partner
Ill Other President & CEO
Ill Officer Ill Director D Member D Manager
[name]
D General Partner D Limited Partner
Other
Ill Officer Ill Director D Member D Manager
[name]
D General Partner D Limited Partner
Other

CITY OF PALM SPRINGS- PUBLIC INTEGRITY DISCLOSURE

APPLICANT DISCLOSURE FORM

Item 1P - Page 12

7. Owners/Investors with a 5% beneficial interest in the Applicant Entity or a related entity

EXAMPLE
JANE DOE 50%, ABC COMPANY, Inc.
[name of owner/investor] [percentage of beneficial interest in entity and name of entity]
A.

Dale Sky Jones 100%, Wise Education Technology, Inc.
[name of owner/investor] [percentage of beneficial interest in entity
and name of entity]
B.
[name of owner/investor] [percentage of beneficial interest in entity
and name of entity]
C.
[name of owner/investor] [percentage of beneficial interest in entity
and name of entity]
D.
[name of owner/investor] [percentage of beneficial interest in entity
and name of entity]
E.
[name of owner/investor] [percentage of beneficial interest in entity and name of entity]

I DECLARE UNDER PENAL TY OF PERJURY UNDER THE LAWS OF THE STATE OF CALIFORNIA THAT THE FOREGOING 15 TRUE AND CORRECT.
~o/=rty, Printed Name, Title Date
09/19/2023
(Revised 09 13 18)

CITY OF PALM SPRINGS- PUBLIC INTEGRITY DISCLOSURE

APPLICANT DISCLOSURE FORM

Item 1P - Page 13
Business Disclosure Form FINAL 9.13.18
Palm Spings (2)
Final Audit Report
Created :

By:

Status:

Transaction ID:
2023-09-19
Lindsey Howey (lindsey@oaksterdamuniversity .com)
Signed
CBJCHBCAABAAXKeal9IkRgGoKQDvJAXOexKJVoGr JMgq
2023-09-19
"Business Disclosure Form FINAL 9.13.18 - Palm Spings (2)" Hi story
t'.:I Document created by Lindsey Howey ([email protected]) 2023-09-19 - 8:00:34 PM GMT
~ Document emailed to Dale Sky Jones ([email protected]) for signature 2023-09-19 - 8:00:41 PM GMT
t'.:I Email viewed by Dale Sky Jones (dale@oaksterdamuniversity .com) 2023-09-19- 8:21:21 PM GMT
0i, Document e-signed by Dale Sky Jones (dale@oaksterdamuniversity .com) Signature Date: 2023-09-19 - 8:22:06 PM GMT - Time Source: server 9 Agreement completed .
2023-09-19 - 8:22:06 PM GMT
Adobe Acrobat Sign

CITY COUNCIL STAFF REPORT
09/26/2023
SUBJECT:

ORDINANCE AMENDING CITY MUNICIPAL CODE TO ESTABLISH PERMANENT

LIMITATIONS ON THIRD-PARTY FOOD DELIVERY FEES
RECOMMENDATION:

Adopt Ordinance No. 2084 entitled, " AN ORDINANCE OF THE CITY OF PALM SPRINGS, CALIFORNIA, ADDING CHAPTER 5.89 TO THE PALM SPRINGS

MUNICIPAL CODE, REGARDING LIMITATIONS ON THIRD-PARTY FOOD DELIVERY FEES.”
Attachments
Item 1Q

CITY COUNCIL STAFF REPORT
D
ATE: S EPTEMBER 26, 2023 CONSENT CALENDAR
SU
BJECT: ORDINANCE AMENDING CITY MUNICIPAL CODE TO ESTABLISH

PERMANENT LIMITATIONS ON THIRD-PARTY FOOD DELIVERY FEES F
ROM: Scott C. Stiles, City Manager
BY:

Jeffrey S. Ballinger, City Attorney
SUMMARY:

The City Council will consider adopting an ordinance that creates and adds Chapter 5.89 to Title 5 of the Palm Springs Municipal Code, permanently extending limitations on the amount that a third-party food delivery service may impose as a fee. This draft ordinance is based on Urgency O rdinance No. 2033, which was passed and enacted by the City Council on October 8, 2020.

The proposed ordinance (Attachment 1) will continue to make it unlawful for a third-party food delivery service to charge a retail food service establishment a delivery fee that is more than 15 percent of the cost of the purchase price of an online order. The ordinance will also make it unlawful for a third -party food delivery service to charge a retail food service establishment more than 5 percent of the cost of the purchase price of an online food order for the total of all other fees charged. Lastly , the ordinance will continue to require a third-party food delivery service to disclose to the customer each fee that it charged a retail food service establishment and mandates that the dr ivers receive the entire gratuity paid by the customer.

A violation of th e proposed ordinance can be enforced through a private right of action after a third- party food delivery service has been given a period of 15 days to cure the violation. Enforcement of this ordinance, as with the previous temporary ordinance, is intended to be solely through a private cause of action. The City is not intended to be the primary enforcement party for this ordinance.

The City Council conducted a first reading (introduction) of this ordinance at its April 27, 2023 Council meeting. The ordinance, as introduced at that meeting, is back before the City Council for possible second reading (adoption). If adopted, the ordinance would take effect 30 days following the adoption.

RECOMMENDATION:

Adopt Ordinance No. ___, entitled: AN ORDINANCE OF THE CITY OF PALM SPRINGS, CALIFORNIA, ADDING CHAPTER 5.89 TO THE PALM SPRING S MUNICIPAL CODE, REGARDING LIMITATIONS ON THIRD-PARTY FOOD DELIVERY FEES.” Item 1Q - Page 1
City Council Staff Report
September 26, 2023 – Page 2
Third-Party Food Delivery Fee Limitation Ordinance

BACKGROUND:

On March 14, 2020, the City Manager acting as Director of Emergency Services issued a Proclamation of Local Emergency in response to the ongoing COVID-19 pandemic that was ratified by the City Council on March 19, 2020. Under the initial stay at home orders issued by the State in March of 2020, restaurants were prohibited from providing in- person dining, and were limited to drive through, pick-up or delivery. Although restaurants were subsequently authorized to provide in- person, indoor dining on May 12, 2020, that option was again removed by the State on July 1. After that date, restaurants within Palm Springs were only able to provide in-person dining outdoors. As a result of the limitations placed on restaurants being able to provide in-person dining, there had been a significant increase in the use of third-party food delivery services, and reports of high delivery fees, which had the effect of discouraging the use of third-party delivery services.

In response to this increase in demand of third- party food delivery services, on October 8, 2020, the City Council enacted Urgency Ordinance No. 2033, which temporarily placed a limit on the charges imposed by third- party delivery services on retail food establishments in an effort to promote the use of these delivery services and protect both City residents and local businesses from excessively high fees. At the time Urgency Ordinance No. 2033 was enacted, it was set to automatically sunset 90 days following the end of the locally declared emergency, unless extended by the City Council or Emergency Services Director.

During its regular meeting on February 21, 2023, the City Council declared an end to the locally declared emergency in res ponse to the COVID-19 pandemic, effective February 28, 2023. Consequently , Urgency Ordinance No. 2033 was set to automatically sunset and expire on May 28, 2023.

At its February 21, 2023 City Council meeting, the City Council considered several items regarding the then-pending termination of the State of Emergency, including whether or not to extend the temporary regulation of third-party food delivery fees. At that time, the City Council directed staff to bring back an ordinance permanently regulating these food delivery fees.

Permanently extending and codifying the limits on the charges imposed by third- party delivery services on retail food establishments in the City Municipal Code would continue to be beneficial to City residents, visitors, food delivery workers, and local businesses by protecting against the economic impacts associated with the imposition of excessive fees, while at the same time promoting the use of these third-party delivery services.

STAFF ANALYSIS
:

Restaurants are vital to the character and community fabric of Palm Springs. They reflect and nurture the cultural diversity of the City, while offering access to food, an essential foundation of human health and basis for social connection. Restaurants are also important engines of the local economy, providing jobs and serving as commercial anchors in neighborhoods across the City.

Item 1Q - Page 2
City Council Staff Report
September 26, 2023 – Page 3
Third-Party Food Delivery Fee Limitation Ordinance

The central place of restaurants in the City’s commercial districts is evident from City real estate statistics. Restaurants occupy a substantial percentage of ground floor space along the City’s commercial corridors.

In recent years, many restaurants within the City have struggled economically.

Restaurants have historically operated on thin margins. Increases in costs such as labor and raw goods have heightened this concern. The economic struggles of brick -and- mortar restaurants in the City over the past five years coincides with the rapid rise of third- party food delivery services, businesses that process food delivery and pickup orders through mobile apps and websites. A ccording to one consumer market outlook publication, revenue in the U.S. “platform -to-consumer delivery” market was $8.7 billion in 2019, a nearly 10% increase over the same segment’s valuation in 2018. Market research data from the first quarter of 2020 shows approximately 15.9% of all U.S. residents utilized third-party food delivery services at least once in the past year, many on a regular basis, and industry experts expect that percentage to continue to increase.

As of November 2019, just four third-party food delivery services controlled approximately 98% of the entire market.

The increasing market dominance of a small number of third-party food delivery services companies has resulted in increasingly difficult economic conditions for restaurants within the City, which must contract with these companies if they wish to access the growing share of customers who rely on delivery platforms to obtain meals.

The market dominance of a few third-party food delivery services companies gives these companies disproportionate leverage in contract negotiations with restaurants. These companies use this leverage to extract high fees from restaurants – typically totaling 30% of an order total – and thereby diminish restaurants’ already-narrow profit margins. Food delivery services companies also often impose contract terms that prohibit restaurants from charging a higher price for delivery orders than dine- in orders, eliminating a means by which restaurants could recoup the fees charged by delivery services.

Sample contracts used by leading third- party food delivery services companies reflect that these companies commonly charge restaurants a 10% per -order fee for “delivery services,” the most logistically demanding and resource-intensive service they provide to restaurants. These companies often impose additional fees totaling as much as 20% of the order cost for what are described as “marketing” or “logistics” services.

While money spent by consumers at local restaurants circulates within communities and bolsters the vitality of commercial areas , third -party food delivery services companies have amassed concentrated wealth without providing similar community benefits. And increasingly, these companies are using their market leverage to extract unfairly high payments from restaurants, hastening the closure of City restaurants and the resulting decline of City commercial areas.

The COVID-19 emergency worsened the economic picture for restaurants within the City.

Due to the bans on dine- in restaurant service caused by a concern with the spread of Item 1Q - Page 3
City Council Staff Report
September 26, 2023 – Page 4
Third-Party Food Delivery Fee Limitation Ordinance

COVID-19, third-party food delivery services have enjoyed unprecedented revenue, while many restaurants have become dependent on delivery and takeout orders, and increasingly vulnerable to unfair contract terms demanded by delivery services companies.

Capping the fees third-party food delivery services companies can charge restaurants is an important step to ensure that restaurants can thrive in Palm Springs and continue to nurture vibrant, distinctive commercial districts. The fact that leading third- party food delivery services companies currently charge a 10% per-order fee for the most resource- intensive aspect of their business – delivery services – and that these companies report high profit margins from all aspects of their business operations, indicates that a 15% fee cap on per-order fees charged to restaurants is a reasonable step to protect restaurants from financial collapse without unduly constraining third- party food delivery services’ businesses.

This proposed ordinance is based on the Urgency Ordinance No. 2033, originally adopted in October 2020. Specifically, this ordinance will impose the following regulations on third- party food delivery charges:

• Makes it unlawful for a third- party food delivery service to charge a retail food establishment a delivery fee that is more than fifteen (15) percent of the cost of the purchase price of an online order.
• Makes it unlawful for a third- party food delivery service to charge a retail food establishment any amount designated as a “delivery fee” for an online order that does not involve the delivery of food or beverages.
• Makes it unlawful for a third- party delivery service to charge a retail food establishment more than five (5) percent of the cost of the purchase price of an online food order for the total of all other fees charged. • Makes it unlawful for a third-party food delivery service to charge a retail food establishment any fee, commission, or cost, other than as permitted in the three bullet points, above.
• Makes it unlawful for a third- party food delivery service to charge a customer a purchase price that is higher than the price set by the retail food establishment on its menu.
• Requires that the food delivery drivers (not their delivery company) receive the entire gratuity paid by the customer.
• Requires a third-party delivery service to disclose to the customer each fee that it charged a retail food service establishment , as well as any tip that will be paid to the person delivering the food.

As with Urgency O rdinance No. 2033 , a violation of the proposed ordinance may be enforced through a private right of action after a third- party delivery service is provided with a period of 15 days to cure the violation. In order to enable such private enforcement, the ordinance provides that a prevailing plaintiff is entitled to be awarded their attorneys’ fees and costs.

Item 1Q - Page 4
City Council Staff Report
September 26, 2023 – Page 5
Third-Party Food Delivery Fee Limitation Ordinance

DoorDash Proposal (San Francisco Approach)

The City’s existing COVID- based ordinance, as well as the proposed permanent ordinance, both cap the amount that a food delivery company can charge to restaurants at 15% of the cost of the food purchase. In April of 2023, representatives of DoorDash met with the City, and explained a business model that has been introduced to the food delivery sector since the original COVID-based ordinance went into effect in 2020.

Namely, in 2021, DoorDash introduced a new plan whereby participating restaurants can choose from a smorgasbord of service options provided by DoorDash. Restaurants can choose a basic food delivery service plan for a commission equal to 15% of the purchase price. Or, restaurants can choose to sign up for enhanced services provided by DoorDash, designed to boost the restaurants’ sales. In exchange for these enhanced services, restaurants are charged higher commission rates of 25% or 30%. Apparently, another major food delivery company, Grubhub also provides a multiple commission rate structure to its participating restaurants. The enhanced services offered by companies such as DoorDash include marketing, order processing, customer support and technology and product development. According to DoorDash, the vast majority of restaurants who have opted into a plan have chosen a plan that includes these enhanced services, and therefore exceed the 15% cap. As such, representatives of DoorDash have requeste d that the City consider an exemption to this one aspect of the ordinance, for those restaurants that have chosen to sign up for the enhanced services.

Accompanying this report, as Attachment 2, is language that would accomplish what has been suggested by DoorDash, should the City Council wish to consider such a modification.

Notably, other protections of the proposed ordinance would remain intact. For instance, the ordinance would still contain the following regulations:

• Makes it unlawful for a third- party food delivery service to charge a customer a purchase price that is higher than the price set by the retail food establishment on its menu.
• Requires that the food delivery drivers (not their delivery company) receive the entire gratuity paid by the customer.
• Requires a third-party delivery service to disclose to the customer each fee that it charged a retail food service establishment, as well as any tip that will be paid to the person delivering the food.

Item 1Q - Page 5
City Council Staff Report
September 26, 2023 – Page 6
Third-Party Food Delivery Fee Limitation Ordinance

The City of San Francisco, which enacted a permanent delivery cap in 2021, has amended its ordinance along the lines recently suggested by DoorDash, following the resolution of a lawsuit that DoorDash and Grubhu b filed against that City. 1 Attached, as Attachment 3, is the language adopted by the City of San Francisco in 2022, providing for an exemption for restaurants that sign up for enhanced services.

Therefore, should the City Council wish to incorporate this sort of exemption, City staff and the City Attorney would recommend including language similar to that in the attached ordinances.

ENVIRONMENTAL ASSESSMENT:

The proposed ordinance is not anticipated to have any environmental impact. Therefore, no further environmental review is required under the California Environmental Quality Act (CEQA).

ALIGNMENT WITH STRATEGIC PLANNING:

This agenda item aligns with the City’s Strategic Plan’s principle of focusing on issues that most impact quality of life as well as social equity, but protecting the economic well - being of customers, restaurants and food deliver workers.

FISCAL IMPACT
:

Enforcement of the ordinance, as proposed, will not have any fiscal impact on the City since it is drafted to be enforced through private causes of action and not by City code enforcement. Should the City Council include a provision that provides for enforcement by the City, there would be additional costs of investigation and enforcement, the amount of which is unknown at this time.

By protecting local restaurants from unreasonably high service delivery fees, the proposed ordinance is expected to protect against restaurant closures, which would otherwise negatively affect the City’s revenues. Therefore, it is anticipated that the proposed ordinance would have a positive fiscal impact on the City.

1 DoorDash and Grubhub v. City and County of San Francisco, Case No. 3:21- CV-05502-EMC. This case was dismissed in September of 2022, following a settlement mutually agreed to by those parties. That settlement followed a motion to dismiss, filed by San Francisco, which was partially granted and partially denied by the trial court. A similar lawsuit has been filed against the City of New York, following that City’s adoption of a permanent ban. According to the court’s docket, that New York case is still pending. On September 19, 2023, the trial court rejected the City’s motion to dismiss the lawsuit. This means that the case against New York will proceed to trial, unless a settlement is reached.

Item 1Q - Page 6
City Council Staff Report
September 26, 2023 – Page 7
Third-Party Food Delivery Fee Limitation Ordinance

REVIEWED BY:

City Attorney: Jeffrey S. Ballinger
City Manager: Teresa Gallavan for Scott C. Stiles

ATTACHMENTS:

1. ORDINANCE NO. ___ . AN ORDINANCE OF THE CITY OF PALM SPRINGS, CALIFORNIA, ADDING CHAPTER 5.89 TO THE PALM SPRING MUNICIPAL

CODE, REGARDING LIMITATIONS ON THIRD-PARTY FOOD DELIVERY FEES

2. SAN FRANCISCO ORDINANCE EXEMPTION

Item 1Q - Page 7

ATTACHMENT 1

Item 1Q - Page 8
55575.18100\41444932.1

ORDINANCE NO. ____

AN ORDINANCE OF THE CITY OF PALM SPRINGS,
CALIFORNIA, ADDING CHAPTER 5.89 TO THE PALM

SPRING MUNICIPAL CODE, REGARDING LIMITATIONS

ON THIRD-PARTY FOOD DELIVERY FEES

City Attorney Summary
An ordinance adding Chapter 5.89 to Title 5 of the Palm Springs Municipal Code, which permanently extends the limit on the charges imposed by third- party delivery service s on retail food establishments . The Council finds that these provisions will continue to promote the use of third -party delivery services by maki ng them more affordable to City residents, and protect City residents , visitors, third party delivery workers and local businesses from the imposition of excessive fees.

WHEREAS, the City of Palm Springs is a charter city organized pursuant to Article XI, Section 5 of the California Constitution and pursuant to the authority so granted, the City has the power to make and enforce within its limits all ordinances and regulations with respect to municipal affairs not in conflict with its own charter.

WHEREAS, w ith that purpose and intent, on March 14, 2020, the City Manager acting as Director of Emergency Services issued a Proclamation of Local Emergency in response to the ongoing COVID-19 pandemic that was ratified by the City Council on March 19, 2020.

WHEREAS, under the initial stay at home orders issued by the State in March of 2020, restaurants were prohibited from providing in- person dining, and were limited to drive through, pick -up or delivery. Although restaurants were subsequently authorized to provide in-person, indoor dining on May 12, 2020, that option was again removed by the State on July 1. After that date, restaurants within Palm Springs were only able to provide in- person dining outdoors. As a result of the limitations placed on restaurants being able to provide in -person dining, there had been a significant increase in the use of third-party food delivery services, and reports of high delivery fees, which had the effect of discouraging the use of third party delivery services.

WHEREAS, in response to this increase in demand of third- party food delivery services, o n October 8, 2020, the City Council enacted Urgency Ordinance No. 2033, which temporarily placed a limit on the charges imposed by third-party delivery services on retail food establishments in an effort to promote the use of these delivery services and protect both City residents and local businesses from excessively high fees.

WHEREAS, when Urgency Ordinance No. 2033 was enacted, it was set to automatically sunset 90 days following the end of the locally declared emergency, unless extended by the City Council or Emergency Services Director.

Item 1Q - Page 9
55575.18100\41444932.1

Ordinance No. _____

WHEREAS, during its regular meeting on February 21, 2023, the City Council declared an end to the locally declared emergency in response to the COVID-19 pandemic, effective February 28, 2023.

WHEREAS, as a result o f the City Council ending the locally declared emergency, Urgency Ordinance No. 2033 is set to automatically sunset and expire on May 28, 2023.

WHEREAS, upon further review and consideration, the City Council has determined that permanently extending the limit on the charges imposed by third- party delivery services on retail food establishments would continue to be beneficial to both City residents , visitors , third party delivery workers and local businesses by protecting against the negative economic impacts associated with the imposition of excessive service delivery fees, as well as protecting the ability of those providing service deliveries to receive tips, while at the same time promoting the use of these third-party delivery services.

WHEREAS, these new regulations shall be codified in Chapter 5.89 and added to Title 5 of the Palm Springs Municipal Code.

THE CITY COUNCIL OF THE CITY OF PALM SPRINGS DOES ORDAIN AS FOLLOWS:

SECTION 1
. Incorporation of Recitals. That the findings and
determinations reflected above are true and correct and are incorporated by this reference herein as the cause and foundation for the action taken by and through this Ordinance. The City Council hereby finds that this Ordinance is necessary for the continued protection of City residents and local businesses from the economic impacts associated with the imposing of excessive fees by third-party food delivery services.

SECTION 2. Regulation of Third-Party Food Delivery Service Fees.

The Palm Springs Municipal Code shall be amended to add a new Chapter 5.89, to read as follows:

“Chapter 5.89 Regulation of Third-Party Food Delivery
Charges

5.89.010 Definitions

5.89.020 Regulations.

5.89.030 Disclosures.

5.89.040 Enforcement.

5.89.010 Definitions.

Item 1Q - Page 10
55575.18100\41444932.1

Ordinance No. _____

For purposes of this ordinance, the following definitions apply.

A. "City" means the City of Palm Springs.

B. "Delivery Fee" means a fee charged by a Third- party Food Delivery Service for providing a Retail Food Establishment with a service that delivers food and beverages from such establishment to customers. The term does not include any other fee or cost that may be charged by a Third-party Food Delivery Service to a Retail Food Establishment, such as fees for listing or advertising the Retail Food Establishment on the Third- party Food Delivery Service platform or fees related to processing the online order, including, but not limited to, service fees, fees for facilitating Online Orders for pick -up, and credit card processing fees.

C. "Online Order" means an order placed by a customer
through or with the assistance of a platform provided by a Third-Party Food Delivery Servic e, including a telephone order, for delivery or pick-up within the City.

D. "Purchase Price" means the price, as listed on the menu, for the items contained in an Online Order, minus any applicable coupon or promotional discount provided to the customer by the Retail Food Establishment through the Third- Party Food Delivery Service. This definition does not include taxes, gratuities, and any other fees or costs that may make up the total amount charged to the customer of an Online Order

E. “Retai l Food Establishment" means a restaurant,
delicatessen bakery, coffee shop, or other eat-in or carry-out service of processed or prepared and ready-to-eat food or beverages.

F. "Third-party Food Delivery Service" means any website, mobile application, or other internet service that offers or arranges for the sale of food and beverages prepared by, and the delivery or pick-up of food and beverages from, no fewer than 20 Retail Food Establishments located in the City that are each owned and operated by different persons.

5.89.020 Regulations.

A. It shall be unlawful for a Third-party Food Delivery Service to charge a Retail Food Establishment a Delivery Fee that totals more than fifteen (15) percent of the Purchase Price of each Online Order.

B. It shall be unlawful for a Third-party Food Delivery Service to Item 1Q - Page 11
55575.18100\41444932.1

Ordinance No. _____

charge a Retail Food Establishment any amount designated as a Delivery Fee for an Online Order that does not involve the delivery of food or beverages, or both.

C. It shall be unlawful for a Third -party Food Delivery Service to charge a Retail Food Establishment any combination of fees, commissions, or costs for the Retail Food Establishment's use of the Third-party Food Delivery Service that is greater than five (5) percent of the Purchase Price of each Online Order. Fees, commissions, or costs do not include Delivery Fee

D. It shall be unlawful for a Third-party Food Delivery Service to charge a Retail Food Establishment any fee, commission, or cost that is to be paid to the Third-party Food Delivery Service, other than as permitted in Subsections A through C, above.

E. It shall be unlawful for a Third-party Food Delivery Service to charge a customer any Purchase Price for a food or beverage item that is higher than the price set by the Retail Food Establishment on the Third- Party Food Delivery Service or, if no price is set by the Retail Food Establishment on the Third-Party Food Delivery Service, the price listed on the Retail Food Establishment's own menu.

F. It shall be unlawful for a T hird-party Food Delivery service to retain any portion of amounts designated as a tip or gratuity. Any tip or gratuity shall be paid by the Third- party Delivery Service, in its entirety, to the person delivering the food or beverages.

G. As an example, if a customer orders a meal that is advertised for $10.00 on the Third-party Food Delivery Service’s app., the Third- party Food Delivery Service cannot charge the customer more than $10.00 for the meal. Nor can the Third-party Food Delivery Service charge the restaurant more than $1.50 as a Delivery Fee. Nor can the Third- party Food Delivery Service charge the restaurant more than 50¢ as a fee or commission for the restaurant’s placement on the Third-party Food Delivery Service’s app. Finally, if the customer agrees to provide the delivery person a $2.00 tip, that tip must go to the delivery person; not the Third- party Food Delivery Service company.

5.89.030 Disclosures.

The Third-party Food Delivery Service shall disclose to the customer an accurate, clearly identified, and itemized cost breakdown of each transaction, including, but not limited to the following:

Item 1Q - Page 12
55575.18100\41444932.1

Ordinance No. _____

(a) the Purchase Price of the food and beverages at the cost listed on the Retail Food Establishment's menu;
(b) the Delivery Fee charged to the Retail Food
Establishment;
(c) each fee, commission, or cost, other than a Delivery Fee, charged to the Retail Food Establishment;
(d) each fee, commission, or cost, other than the Delivery Fee or the Purchase Price of the food, charged to the
customer by the Third- party Food Delivery Service;
and
(e) any tip or gratuity that will be paid to the person delivering the food or beverages.

5.89.040 Enforcement.

A violation of this ordinance shall subject the violator to the following:

A. A civil action in the Superior Court of the State of California to recover all actual damages resulting from a violation of this ordinance.

B. Reasonable attorneys' fees and costs awarded by a court to a plaintiff that prevails in an action against a Third- party Food Delivery Service. If plaintiff fails to prevail against a Third-party Food Delivery Service, a court may award reasonable attorneys' fees and costs to the Third-party Food Delivery Service upon a determination by the court that the plaintiff's action was frivolous.

C. A civil action alleging a violation of any provision of this ordinance shall commence only after the following requirements have been met:

1. Written notice is provided to the Third-party Food
Delivery Service of the provisions of the ordinance alleged to have been violated and the facts to support the alleged violation; and

2. The Third-party Food Delivery Service is provided 15 days from the date of the written notice to cure any alleged violation.

D. Notwithstanding any provision of this Code, or any other Item 1Q - Page 13
55575.18100\41444932.1

Ordinance No. _____

ordinance to the contrary, no criminal penalties shall attach for violation of this ordinance, nor shall it be enforced as a violation of a City ordinance. Enforcement of this ordinance shall be solely through a private cause of action. Neither the City nor its staff is responsible for enforcement of this ordinance.

SECTION 3. Severability. If any section or provision of this Ordinance is for any reason held to be invalid or unconstitutional by any court of competent jurisdiction, or contravened by reason of any preemptive legislation, the remaining sections and/or provisions of this Ordinance shall remain valid. The City Council hereby declares that it would have adopted this Ordinance, and each section or provision thereof, regardless of the fact that any one or more section(s) or provision(s) may be declared invalid or unconstitutional or contravened via legislation.

SECTION 4. CEQA. The City Council determines that the adoption of this Urgency Ordinance is exempt from environmental review under the California Environmental Quality Act (“CEQA”) pursuant to the following provisions of the CEQA Guidelines, 14 California C ode of Regulations, Chapter 3: th is Urgency Ordinance is exempt under CEQA Guidelines Section 15378(b)(5) in that it is not a “project” under CEQA and will not result in direct or indirect physical changes in the environment.

SECTION 5. Adoption, Certification, and Publication. The Mayor shall sign and the City Clerk shall certify to the passage and adoption of this Ordinance and shall cause the same, or the summary thereof, to be published and posted pursuant to the provisions of law and this Ordinance shall take effect thirty (30) days after passage.

PASSED, APPROVED, AND ADOPTED BY THE PALM SPRINGS CITY
COUNCIL this _____ day of ______________, 2023.

GRACE ELENA GARNER
MAYOR
ATTEST:

BRENDA PREE, MMC

CITY CLERK

Item 1Q - Page 14
55575.18100\41444932.1

Ordinance No. _____

CERTIFICATION

STATE OF CALIFORNIA )
COUNTY OF RIVERSIDE ) ss.

CITY OF PALM SPRINGS )

I, BRENDA PREE, City Clerk of the City of Palm Springs, California, do hereby certify that Ordinance No. ____ is a full, true, and correct copy, and was adopted without introduction at a regular meeting of the City Council held on _________________, 2023 by the following vote:

AYES:

NOES:

ABSENT:

ABSTAIN:

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City of Palm Springs, California, this ______ day of _________, 2023.

BRENDA PREE, MMC

CITY CLERK

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ATTACHMENT 2

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25 FILE NO. 211131

SUBSTITUTED
06/28/2022 ORDINANCE NO. 164-22
[Police Code - Third-Party Food Delivery Services]
Ordinance amending the Police Code to define core delivery service to mean a service that both lists a covered establishment on all of a third-party food delivery service's platforms, including websites and mobile applications, and facilitates and/or performs delivery of food and/or beverages from the establishment; to exempt from the 15% cap on per-order fees, starting January 31, 2023, third-party food delivery services that offer restaurants the option to obtain only core delivery service at a cost of no more than 15% of the purchase price of an on line order without requiring the purchase of additional services, and that notify all covered establishments with which the third­ party food delivery services have an existing contract of this option no later than December 1, 2022; and to require that contracts between a third-party food delivery service and a covered establishment clearly define the fees, commissions, or charges associated with contracted services.

NOTE: Unchanged Code text and uncodified text are in plain Arial font.

Additions to Codes are in single-underline italics Times New Roman font.

Deletions to Codes are in strike#wough #alies Times 1Vew Rem.an .fent.

Board amendment additions are in double-underlined Arial font.

Board amendment deletions are in strikethrough ,'\rial font.

Asterisks (* * * *) indicate the omission of unchanged Code subsections or parts of tables.

Be it ordained by the People of the City and County of San Francisco :

Section 1. The Police Code is hereby amended by revising Sections 5301 (adding a defined term to be placed in alphabetical sequence with other defined terms) and 5302, to read as follows :

Supervisors Peskin; Chan, Mandelman, Safai, Preston, Mar, Walton BOARD OF SUPERVISORS Page 1
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25 SEC. 5301. DEFINITIONS.
* * * *
"Core deliverv service" means a service that 0) lists a covered establis hment , and makes the covered estab lishment discoverable, on all moda lities or platforms offered by a third -party food delivery service. including but not limited to anv website, mobile application. or other intern et service where a third-party food deliv erv serv ice lists covered establishm ents, and (2) facilitates and/or performs the delive ,y (through employees or independent contractors o[the third-pa rtv food deliver v service and/or such establishments) offood and/or beverages from covere d establishments to customers. Core deliverv service does not include any other service that mav be provi ded bv a third­ partv food delivery service to a covered establis hment. including but not limited to advertising services. sea rch engine optim izatio n. business consulting. or credit card processing. * * * *
SEC. 5302. CAP ON PER-ORDER FEES; CLEA R DEFINI TION OF FEES REQUIRED.
(a) No third-party food delivery service may charge a cove red establishment a fee , commission, or charge per online order that totals more than 15% of the purchase price of the online order.
(b) No third-party food delivery service may charge a covered establishment a fee , commission, or charge that exceeds 15% of the purchase price of online orders to that covered establishment processed through the third-party food delivery service during the time period covered by the fee , commission , or charge.
(c) Beginning on Januarv 31. 2023 , the fee limits in subsections (a) and (b) o[Lhis Section 5302 shall not applv to a third -party food delivery service that does both of the follow ing:

Supervisors Peskin; Chan, Mandelman , Safai, Preston, Mar, Walton BOARD OF SUPERVISORS Page
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25 (1) offers all covered establishments the option to obtain core deliven 1 service for a total fee. commission. or charge not to exceed 15% o[the purchase price o(the online order. without requiri ng the purchase of additional services: and
(2) no later than December 1. 2022, notifies all covered establishments that have an existing contract with the third-partv delive,y service of the option described in subsection (c)(J ). (d) Contracts between a third-party food deliven 1 service and a covered establishment shall clearly define the fees, commissions , or charges associated with contracted services. For examp le, i(a covered establis hment enters into a contract with a third-partv food delivery service for core delive,y service onlv. that contract shall clearlv state a fee. comm ission. or charge of ] 5% o[the purchase price for core deliverv service.

Section 2. Effective Date . This ordinance shall become effective 30 days after enactment. Enactment occurs when the Mayor signs the ordinance, the Mayor returns the ordinance unsigned or does not sign the ordinance within ten days of receiving it, or the Board of Supervisors overrides the Mayor's veto of the ordinance.

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25 Section 3. Scope of Ordinance. In enacting this ordinance, the Board of Supervisors intends to amend only those words, phrases, paragraphs, subsections, sections, articles, numbers, punctuation marks, charts, diagrams, or any other constituent parts of the Municipal Code that are explicitly shown in this ordinance as additions, deletions, Board amendment additions, and Board amendment deletions in accordance with the "Note" that appears under the official title of the ordinance.

APPROVED AS TO FORM:

DAVID CHIU, City Attorney
By: ISi Sarah Crowley

SARAH CROWLEY
Deputy City Attorney
n:\legana\as2022\2000108\01610103.docx
Supervisors Peskin; Chan, Mandelman, Safai, Preston. Mar, Walton BOARD OF SUPERVISORS Page
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Tails
Ordinance
City Hall
I Dr. Carlton B. Goodlett Place
San Francisco, CA 94102-4689
File Number: 211131 Date Passed: July 26, 2022
Ordinance amending the Police Code to define core delivery service to mean a service that both lists a covered establishment on all of a third-party food delivery service's platforms, including websites and mobile applications, and facilitates and/or performs delivery of food and/or beverages from the establishment; to exempt from the 15% cap on per-order fees, starting January 31, 2023, third-party food delivery services that offer restaurants the option to obtain only core delivery service at a cost of no more than 15% of the purchase price of an online order without requiring the purchase of additional services, and that notify all covered establishments with which the third-party food delivery services have an existing contract of this option no later than December 1, 2022; and to require that contracts between a third-party food delivery service and a covered establishment clearly define the fees, commissions, or charges associated with contracted services.

July 11, 2022 Rules Committee - RECOMMENDED
July 19, 2022 Board of Supervisors - PASSED ON FIRST READING Ayes: 11 - Chan, Dorsey, Mandelman, Mar, Melgar, Peskin, Preston, Ronen, Safai, Stefani and Walton
July 26, 2022 Board of Supervisors - FINALLY PASSED
Ayes: 11 - Chan, Dorsey, Mandelman, Mar, Melgar, Peskin, Preston, Ronen, Safai , Stefani and Walton
File No. 211131
London N. Breed
Mayor
City and County of San Francisco Pagel
I hereby certify that the foregoing
Ordinance was FINALLY PASSED on
7/26/2022 by the Board of Supervisors of
the City and County of San Francisco.

Angela Calvillo
Clerk of the Board
Date Approved
Printed at 8:37 am <>n 7127122
Item 1Q - Page 21

CITY COUNCIL STAFF REPORT
09/26/2023
SUBJECT:

APPROVE AMENDMENT NO. 2 TO AGREEMENT NO. A8993 WITH IMPRENTA COMMUICATIONS GROUP, INC., FOR ON-CALL SPANISH LANGUAGE DIGITAL

MARKETING SERVICES
RECOMMENDATION:

Approve Amendment No. 2 to Agreement A8993 with Imprenta Communications Group, Inc., to provide on-call Spanish language digital marketing services in an additional amount of $20,000 for a total revised contract amount not to exceed $95,000, and extend the term through December 31, 2023.

1. Authorize the City Manager or designee to execute all necessary documents.2.

Attachments
Item 1R

CITY COUNCIL STAFF REPORT

DATE: SEPTEMBER 26, 2023 CONSENT CALENDAR

SUBJECT: APPROVE AMENDMENT NO. 2 TO AGREEMENT NO. A8993 WITH IMPRENTA COMMUICATIONS GROUP, INC., FOR ON-CALL SPANISH

LANGUAGE DIGITAL MARKETING SERVICES

FROM: Scott C. Stiles, City Manager

BY: Department of Communications

SUMMARY:

This action will approve Amendment No. 2 to Agreement No. A8993 with Imprenta Communications Group, Inc., in the amount of $20,000 for a revised contract amount not to exceed $95,000, and extend the term through December 31, 2023, for on-call Spanish language digital marketing services.

RECOMMENDATION:

1. Approve Amendment No. 2 to Agreement A8993 (Attachment A) with Imprenta Communications Group, Inc. , to provide on-call Spanish language digital marketing services in an additional amount of $20,000 for a total revised contract amount not to exceed $95,000, and extend the term through December 31, 2023;

2. Authorize the City Manager or designee to execute all necessary documents.

BUSINESS PRINCIPAL DISCLOSURE:

According to the Public Integrity Disclosure form ( Attachment B ), Imprenta Communications Group, Inc. (Imprenta), is a corporation registered in the State of California.

BACKGROUND:

The City requires the services of a n on- call Spanish language digital marketing professional to assist the City’s communications team and engage the community by assisting with the development of communications and public affairs planning, messaging, and strategy to highlight important City policies , initiatives and City events; Item 1R - Page 1
City Council Staff Report
September 26, 2023 -- Page 2
Amend On-Call Spanish Language Digital Marketing Services

the City’s social media platforms; and support City programs and initiatives by producing marketing plans, strategies and video and graphic design content.

A Request for Proposals (RFP 04- 22) was initiated by the City’s Procurement and Contracting Department on September 13, 2021, based on the Department of Communications specifications. Proposals were solicited directly via the City’s procurement vendor portal, PlanetBids. In addition, the RFP was advertised in The Desert Sun. Three proposals were received by the October 7 2021 deadline. A review panel found Imprenta to be the most responsive, responsible proposer.

Therefore, the City e ntered into a Contract Services Agreement with Imprenta on November 10, 2021, in an amount not to exceed $75,000 through November 9, 2022, to meet the Department of Communication’s immediate needs.

On December 1, 2022, the City entered into Amendment No. 1 with Imprenta to exercise the optional renewal term, extending the term an additional twelve (12) months through November 9, 2023 but not increasing the funding.

STAFF ANALYSIS:

Staff is requesting approval of Amendment No. 2 in the amount of $20,000 for a revised contract amount not to exceed $95,000, and extending the term 52 days through December 31, 2023, for Spanish language digital marketing services.

This Contract Services Agreement operates as an on-call service, for requested specific services. The department estimates the additional necessary on- call services to be $20,000. Therefore, increasing the contract to a not to exceed amount of $95,000 allows for current and future Spanish language digital marketing service needs to be met.

Extending the contract term through December 31, 2023, will provide sufficient time to reprocure these services and secure competitive proposals.

ENVIRONMENTAL ASSESSMENT
:

The requested City Council action is not a “Project” as defined by the California Environmental Quality Act (CEQA). Pursuant to Section 15378(a), a “Project” means the whole of an action, which has a potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment. The requested action is to approve contracts for the above- mentioned services, and is exempt from CEQA pursuant to Section 15378(b), in that a “Project” does not include: (5) Organizational or administrative activities of governments that will not result in direct or indirect physical changes in the environment.

Item 1R - Page 2
City Council Staff Report
September 26, 2023 -- Page 3
Amend On-Call Spanish Language Digital Marketing Services

ALIGNMENT WITH STRATEGIC PLANNING:

Approval of this action supports the City Council principle of forward-thinking governance.

FISCAL IMPACT:

Sufficient funds are budgeted and available in the Fiscal Year 2 3-24 Communications Account 1001050-40105.

REVIEWED BY:

Director of Communications: Amy Blaisdell
Procurement and Contracting Director: Kim Baker
Assistant City Manager: Teresa Gallavan
City Manager: Scott Stiles

ATTACHMENTS:

A. Amendment No. 2
B. Public Integrity Disclosure

Item 1R - Page 3

ATTACHMENT A

Item 1R - Page 4
AMENDMENT #2 TO CONTRACT SERVICES AGREEMENT NO. A8993
WITH IMPRENTA COMMUNICATIONS GROUP, INC.

FOR SPANISH LANGUAGE DIGITAL MARKETING SERVICES

This Amendment No. 2 to the Contract Services Agreement ( A8993), (“Amendment No. 2”), is made and entered into this _____ day of _____________, 2023 , by and between the City of Palm Springs, a California charter city and municipal corporation (“City”), and Imprenta Communications Group, Inc. , a California Corporation (“Contractor”). City and Contractor are individually referred to as “Party” and are collectively referred to as the “Parties”.

RECITALS

A. City requires the services of a Spanish language digital marketing firm for Spanish language digital marketing services, (“Project”).

B. Contractor submitted and City accepted a proposal to provide Spanish language digital marketing services.

C. On November 10, 2021, the City Manager approved a Contract Services Agreement (A8993) with Contractor to provide Spanish language digital marketing services, for the total amount of Compensation not to exceed $75,000.

D. On December 1, 2022, the Parties entered into Amendment No. 1 exercising the optional renewal term and extending the contract term an additional twelve (12) months through November 9, 2023.

E. City and Contractor desire to add an additional $ 20,000 for as-needed Spanish language digital marketing services for the total amount of Compensation not to exceed $95,000; and extend the Term through December 31, 2023.

In consideration of these promises and mutual obligations, covenants, and conditions, the Parties agree as follows:

AGREEMENT

SECTION 1. The true and correct recitals above are incorporated by this reference herein as the basis for this Third Amendment.

Item 1R - Page 5
SECTION 2. 3.1 Term. Is hereby replaced in entirety as follows:

“3.1 Compensation of Contractor. Contractor shall be compensated and reimbursed for the services rendered under this Agreement in accordance with the schedule of fees set forth in Exhibit “A”. The total amount of Compensation shall not exceed $95,000.”

SECTION 3. 4.4 Term. Is hereby replaced in its entirety as follows:

“4.4 Term. Unless earlier terminated in accordance with Section 4.5 of this Agreement, this Agreement shall continue in full force and effect for a period of two ( 2) years and fifty-two (5 2) days thr ough December 31, 2023, unless extended by written mut ual consent of the Parties.”

SECTION 4. Full Force and Effect. All terms, conditions, and provisions of the Contract Services Agreement A8993, unless specifically modified herein, shall continue in full force and effect. In the event of any conflict or inconsistency between the provisions of this Amendment No. 2 and any provisions of the Contract Services Agreement A8993, the provisions of this Amendment No. 2 shall in all respects govern and control.

SECTION 5. The persons executing this Amendment No. 2 on behalf of the Parties hereto warrant that (I) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Amendment No. 2 on behalf of said party, (iii) by so executing this Amendment No. 2 , such party is formally bound to the provisions of this Amendment No. 2, and (iv) the entering into this Amendment No. 2 does not violate any provision of any other agreement to which said Party is bound.

Except as specifically amended by this Amendment No. 2, all terms and provisions of Agreement No. A8993 remain in full force and effect.

[SIGNATURES ON FOLLOWING PAGE]

Item 1R - Page 6
SIGNATURE PAGE TO AMENDMENT NO. 2 (A8993) BY AND BETWEEN THE CITY OF PALM SPRINGS AND IMPRENTA COMMUNICATIONS GROUP, INC.

IN WITNESS WHEREOF, the Parties have executed this Amendment as of the dates stated below.

CONTRACTOR:

By:___________________________ By:______________________________ Signature Signature
(2nd signature required for Corporations)

Date: Date:

CITY OF PALM SPRINGS:

APPROVED BY CITY COUNCIL:

Date: _______ Item No.

APPROVED AS TO FORM: ATTEST:

By: ___________________________ By: _____________________________ City Attorney City Clerk

APPROVED:

By: _______________________________ Date:

City Manager – over $50,000
Deputy/Assistant City Manager – up to $50,000
Director – up to $25,000
Manager – up to $5,000
Item 1R - Page 7

ATTACHMENT B
Item 1R - Page 8
Item 1R - Page 9

1. 2.

3. 4.

5. PUBLIC INTEGRITY DISCLOSURE

APPLICANT DISCLOSURE FORM
Name of Entity
/ ty\pr~to.. U) VV1 W] VV1 j C..~ Tt.OY\ S {zyov p
Address of Entity (Principle Place of Business)
31~~ W ,·15~ ire 6/1n( ){i ' /1,/V, U)J Avi5(t fe5 f C4 local or California Address (if different than #2)
State where Entity is Registered with Secretary of State ct'\ ( j forvi1' 0..
70010
If other than California , is the Entity also registered in California? n Yes n No Type of Entity ~orp oration D limited liability Company D Partnership D Trust D Other (please specify)

6. Officers, Directors, Members, Managers, Trustees, Other Fiduciaries (please specify) Note: If any response is not a natural person, please identify all officers, directors, members, managers and other fiduciaries for the member, manager, trust or other entity {Zo Y\O\ \ J\ \JJ. VVOY\j
~Officer D Director D Member D Manager [name]
O General Partner D limited Partner
Other
G\\J\~f£e 2~~0
~cer D Director D Member D Manager
[name]
D General Partner D limited Partner
Other
~v.. tY-WY\~ SC\.ljC\G\O
[name]
@Officer D Director D Member D Manager
D General Partner D limited Partner
Other

CITY OF PALM SPRINGS- PUBLIC INTEGRITY DISCLOSURE

APPLICANT DISCLOSURE FORM

(Revised 09 13 18)
Item 1R - Page 10

7. Owners/Investors with a 5% beneficial interest in the Applicant Entity or a related entity

EXAMPLE
JANE DOE 50%, ABC COMPANY, Inc.
[name of owner/investor] [percentage of beneficial interest in entity and name of entity]
A.

H"V\Q(ft{ 1/\j. vJ uY\_~ 7 l o/o
[name of owner/investor] [percentage of beneficial interest in entity and name of entity]
B.
~ivs~t~ ?°'-50 l 1 °/o
[name of owner/investor] [percentage of benefici al interest in entity and name of entity]
C.

ICo. tv~°' s~ 1 s~~ l 0%
[name of owner/investor] [percentage of beneficial interest in entity and name of entity]
D.
[name of owner/investor] [percentage of beneficial interest in entity and name of entity]
E.
[name of owner/investor] [percentage of beneficial interes t in entity and name of entity]

I DECLARE UNDER PENALTY OF PERJURY UNDER THE LAWS OF THE STATE OF CALIFORNIA THAT THE FOREGOING IS TRUE AND CORRECT.
(Revised 09 13.18)
Date

CITY OF PALM SPRINGS- PUBLIC INTEGRITY DISCLOSURE FORM

APPLICANT DISCLOSURE FORM

CITY COUNCIL STAFF REPORT
09/26/2023
SUBJECT:

APPROVE CONTRACT SERVICES AGREEMENT NO. 23B166 WITH LILYPAD EV LLC FOR THE PURCHASE AND DELIVERY OF 80 ELECTRIC VEHICLE

CHARGING STATIONS FOR PALM SPRINGS INTERNATIONAL AIRPORT RECOMMENDATION:

Approve Contract Services Agreement No. 23B166 with LilyPad EV LLC to provide the purchase and delivery of 80 electric vehicle charging stations, warranty, and 5-years of operation and maintenance services at the Palm Springs International Airport in an amount not to exceed $499,102.92 for the initial five-year term beginning September 26, 2023 through September 25, 2028, with one five-year extension option at the City’s sole discretion.

1. Appropriate $199,102.92 from the Airport Special Capital Projects Fund Balance for this purchase.

2. Authorize the City Manager or designee to execute all necessary documents.3.

Attachments
Item 1S

CITY COUNCIL STAFF REPORT

DATE: SEPTEMBER 26, 2023 CONSENT CALENDAR

SUBJECT: A PPROVE CONTRACT SERVICES AGREEMENT NO. 23B166 WITH LILYPAD EV LLC FOR THE PURCHASE AND DELIVERY OF 80

ELECTRIC VEHICLE CHARGING STATIONS FOR PALM SPRINGS

INTERNATIONAL AIRPORT

FROM: Scott C. Stiles, City Manager

BY: Department of Aviation

SUMMARY:

This action will approve Agreement No. 23B 166 with LilyPad EV LLC, in an amount not to exceed $ 499,102.92 for the purchase and delivery of 80 electric vehicle charging stations, warranty and 5-years of operation and maintenance services at the Palm Springs International Airport.

RECOMMENDATION:

1. Approve Contract Services Agreement No. 23B166 (Attachment A) with LilyPad EV LLC to provide the purchase and delivery of 80 electric vehicle charging stations, warranty and 5-years of operation and maintenance services at the Palm Springs International Airport in an amount not to exceed $499,102.92 for the initial five-year term beginning September 26, 2023 through September 25, 2028, with one five-year extension option at the City’s sole discretion.

2. Appropriate $199,102.92 from Airport Special Capital Projects Fund Balance for this purchase.

3. Authorize the City Manager or designee to execute all necessary documents.

BUSINESS PRINCIPAL DISCLOSURE:

According to the Public Integrity Disclosure form ( Attachment B) submitted on August 30, 2023, LilyPad EV LLC is a California Limited Liability Company.

Item 1S - Page 1
City Council Staff Report
September 26, 2023 -- Page 2
Award EV Charging Stations and O&M Services Contract

BACKGROUND:

The Airport has a total of approximately 1,933 parking spaces, including holiday economy.

Of the total Airport parking spaces, there are three existing Level II charging stations with two ports each within the public parking lots B and C. The existing charging stations are available free to users who park in the Airport public parking.

Executive Order N -79-20 issued by Governor Newsom on September 23, 2020, mandates that 100 percent of new car sales in California are zero- emission vehicles (ZEVs) by 2035. In an effort to support this initiative, staff applied for the Southern California Edison (SCE) Charge Ready Program to provide Level II electric vehicle charging infrastructure at no cost to the Airport; however, the Airport must procure, install, and maintain the Level II chargers. Staff intends to solicit for a contractor separately to install the infrastructure.

The expansion would be an asset to passengers, with the costs of the infrastructure being a one-time purchase. The operation and maintenance would be an ongoing operational expense.

STAFF ANALYSIS:

An Invitation for Bids (IFB 23-41) was initiated by the City’s Procurement and Contracting Department on August 10, 2023, based on the Department of Aviation specifications. Bids were solicited directly via the City’s procurement vendor portal, PlanetBids. In addition, the IFB was advertised in The Desert Sun. Eighteen bids were received by the August 31, 2023, deadline. Twelve bids were deemed non-responsive due to not meeting the scope requirements. Below are the six responsive bids:

Vendor Bid
LilyPad EV LLC, Martinez, CA $499,102.92
Fluoresco Services, LLC, Pomona, CA $583,799.23
National Car Charging, Denver, CO $598,638.00
Casco Contractors, Irvine, CA $654,583.33
Smart Energy Systems Inc dba Smart Energy Water, Irvine, CA $805,160.00 AMTEK Construction, Orange, CA $1,153,177.00

The contract is for five years with one five-year option to renew. The unit pricing is fixed for the initial five -year term and subject to CPI increase in the following years. Staff recommends approval of Contract Services Agreement No. 23B166 with LilyPad EV LLC for the initial five-year term in the amount not to exceed $499,102.92, which includes five years of operation and maintenance services at an annual amount of $40,679, effective September 26, 2023 through September 25, 20 28, subject to one five- year optional renewal at the sole discretion of the City.

Item 1S - Page 2
City Council Staff Report
September 26, 2023 -- Page 3
Award EV Charging Stations and O&M Services Contract

ENVIRONMENTAL ASSESSMENT:

The project is exempt under Class 11 Categorical Exemption (14 CCR §15311) Accessory Structures. The project calls for placement of minor accessory structures (EV charging stations) to an existing parking area which will not result in a significant environmental impact.

ALIGNMENT WITH STRATEGIC PLANNING:

Approval of this action supports City Council priority 2 - Community Infrastructure - 2A - Improve City Facilities.

FISCAL IMPACT:

Staff originally budgeted for $300,000 in Fiscal Year 2023- 24; however, the bids exceeded the budget and staff is requesting to appropriate an additional $199,102.92 from the Airport Special Capital Fund Balance Account 4167065.80000. SCE will provide an estimated rebate, in the amount of $232,000.

REVIEWED BY:

Assistant Director: Jeremy Keating
Procurement and Contracting Director: Kim Baker
Finance Director: Kristopher Mooney
City Attorney: Geremy Holm
City Manager: Scott Stiles

ATTACHMENTS:

A. Contract Services Agreement No. 23B166
B. Public Integrity Disclosure Form
Item 1S - Page 3

ATTACHMENT A
AGREEMENT NO. 23B166

WITH LILYPAD EV LLC
Item 1S - Page 4

Revised 4.13.23 Page 1 of 110

CONTRACT SERVICES AGREEMENT 23B166

ELECTRIC VEHICLE CHARGING STATIONS FOR PALM SPRINGS

INTERNATIONAL AIRPORT

THIS AGREEMENT FOR CONTRACT SERVICES (“Agreement”) is made and entered into on September 26, 2023, by and between the City of Palm Springs , a California charter city and municipal corpora tion (“City”), and LILYPAD EV LLC , a California limited liability company, (“Contractor”). City and Contractor are individually referred to as “Party” and are collectively referred to as the “Parties”.

RECITALS

A. City requires the services of a licensed and qualified firm to provide the City with 80 electric vehicle (EV) charging stations at the Palm Springs Inter national Airport with warranty and 5 years of operation and maintenance services, (“Project”).

B. Contractor has submitted to City a proposal to provide 80 electric vehicle (EV) charging stations at the Palm Springs International Airport with warranty and 5 years of operation and maintenance services, to City under the terms of this Agreement.

C. Based on its experience, education, training, and reputation, Contractor is qualified and desires to provide the necessary services to City for the Project.

D. City desires to retain the services of Contractor for the Project.

NOW, THEREFORE, in consideration of the promises and mutual obligations, covenants, and conditions contained herein, and other valuable consider ation, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

AGREEMENT

1. CONTRACTOR SERVICES

1.1 Scope of Servic es. In compliance with all terms and conditions of this Agreement, Contractor shall provide services to City as described in the Scope of Services/Work attached to this Agreement as Exhibit “A” and incorporated herein by reference (the “Services ” or “Work”). Exhibit "A" includes the agreed upon schedule of performance and the schedule of fees. Contractor warrants that the S ervices shall be performed in a competent, professional, and satisfactory manner consistent with the level of care and skill ordinarily exercised by high quality, experienced, and well qualified members of the profession currently pra cticing under similar conditions. In the event of any inconsistency between the terms contained in the Scope of Services/Work and the terms set forth in this Agreement, the terms set forth in this Agreement shall govern.

1.2 Compliance with Law . Contra ctor sha ll comply with all applicable federal, state, and local laws, statutes and ordinances and all lawful orders, rules, and regulations when Item 1S - Page 5

Revised 4.13.23 Page 2 of 110

performing the Services. Contractor shall be liable for all violations of such laws and regulations in connection with the Services and this Agreement.

1.3 Licenses and Permits . Contractor shall obtain at its sole cost and expense such licenses, permits, and approvals as may be required by law for the performance of the S ervices required by this Agreement.

1.4 Familiarity with Work. By executing this Agreement, Contractor warrants that it has carefully considered how the Work should be performed and fully understands the facilities, difficulties, and restrictions attending performance of the Work under this Agreement.

2. TIME FOR COMPLETION
The time for completion of the Services to be performed by Contractor is an essential condition of this Agreement. Contractor shall prosecute regularly and diligently the work of this Agreement according to the agreed upon s chedule of performance set forth in Ex hibit “A .” Neither Party shall be accountable for delays in performance caused by any condition beyond the reasonable control and without the fault or negligence of the non -performing Party. Delays shall not entitle Co ntractor to any additional compensation regardless of the P arty responsible for the delay.

3. COMPENSATION OF CONTRACTOR

3.1 Compensation of Contractor. Contractor shall be compensated and reimbursed for the services rendered under this Agreement in accor dance with the schedule of fees set forth in Exhibit “A”. The total amount of Compensation shall not exceed $499,102.92.

3.2 Method of Payment . In any month in which Contractor wishes to receive payment, Contractor shall submit to City an invoice for Services rendered prior to the date of the invoice, no later than the first working day of such month, in the form approved by City’s finance director. Payme nts shall be based on the hourly rates set forth in Exhibit “A” for authorized services performed . City shall pay Contractor for all expenses stated in the invoice that are approved by City and consistent with this Agreement, within thirty (30) days of re ceipt of Contractor’s invoice.

3.3 Changes . In the event any change or changes in the Services is reque sted by City, Parties shall execute a written amendment to this Agreement, specifying all proposed amendments, including, but not limited to, any addit ional fees. An amendment may be entered into:

A. To provide for revisions or modifications to docu ments, work product, or Work, when required by the enactment or revision of any subsequent law; or B. To provide for additional services not included in this Agreement or not customarily furnished in accordance with generally accepted practice in Contractor’s profession.

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Revised 4.13.23 Page 3 of 110

3.4 Appropriations. This Agreement is subject to, and contingent upon, funds being appropriated by the City Council of City for each fiscal year . If such appropriations are not made, this Agreement shall automatically terminate without penalty to City.

4. PERFORMANCE SCHEDULE

4.1 Time of Essence. Time is of the essence in the performance of this Agreement.

4.2 Schedule of Performance. All Services rendered under this Agreement shall be performed under the agreed upon schedule of perform ance set forth in Exhibit “A .” Any time period extension must be approved in writing by the Contract Officer.

4.3 Force Majeure. The time for performance of Services to be rendered under this Agreement may be extended because of any delays due to a For ce Majeure Event, if Contractor notifies the Contract Officer within ten (10) days of the commencement of the Force Majeure Event. A Force Majeure Event shall mean an event that materially affects the Contractor’s performance and is one or more of the fol lowing: (1) Acts of God or other nat ural disasters occurring at the project site; (2) terrorism or other acts of a public enemy; (3) orders of governmental authorities (including, without limitation, unreasonable and unforeseeable delay in the issuance of permits or approvals by governmental authorities that are required for the Work); and (4) pandemics, epidemics or quarantine restrictions. For purposes of this section, “orders of governmental authorities,” includes ordinances, emergency proclamations and orders, rules to protect the public health, welfare and safety, and other actions of the City in its capacity as a municipal authority. After Contractor notification, the Contract Officer shall investigate the facts and the extent of any necessary delay and extend the time for performing th e Services for the period of the enforced delay when and if , in the Contract Officer’s judgment, such delay is justified. The Contract Officer’s determination shall be final and conclusive upon the P arties to this Agreement. The Contractor will not receive an adjustment to the contract price or any other compensation. Notwithstanding the foregoing, the City may still terminate this Agreement in accordance with the termination provisions of this Agreement.

4.4 Term. Unless earlier terminated in accordance with Section 4.5 of this Agreement, this Agreement s hall continue in full force and effect for a period of five years , commencing on September 26, 2023, and ending on September 25, 2028, unless e xtended by mutual written agreement of the P arties. In addition, the term may be extended at the sole discretion of the City upon written notice to the Contractor, for one (1) add itional five (5) year term.

4.5 Termination Prior to Expiration of Term . City may terminate this Agreement at any time, with or without cause, upon thirty (30) days written notice to Contractor . W here termination is due to the fau lt of Contractor and con stitutes an immediate danger to health, safety, and general welfare, the period of notice shall be such shorter time as may be determined by the City. Upon receipt of the notice of terminati on, Contractor shall immediately cease al l Services except such as may be specifically approved by the Contract Officer. Contractor shall be entitled to compensation for all S ervices rendered prior to receipt of the notice of termination and for any Services authorized by the Contract Officer after such notice. City shall not be liable for any costs other than the charges or portions thereof which are specified herein. Contractor Item 1S - Page 7

Revised 4.13.23 Page 4 of 110

shall not be entitled to payment for unperformed S ervices and shall not be entitled to damages or compensation for t ermination of Work. If the termination is for cause, the City shall have the right to take whatever steps it deems necessary to correct Contractor's deficiencies and charge the cost thereof to Contractor , who shall be liable for the full cost of the City' s corrective action.

Contractor may not terminate this Agreement except for cause, upon thirty (30) days written notice to City.

5. COORDINATION OF WORK

5.1 Representative of Contractor. The following principal of Contractor is designated as being the pri ncipal and representative of Contractor authorized to act and make all decisions in its behalf with respect to the specified Services: Noel Di Paola, Account Manager .

It is expressly understood that the experience, knowledge, education, capability, and reputation of the fo regoing principal is a substantial inducement for City to enter into this Agreement.

Therefore, the foregoing principal shall be responsible during the term of this Agreement for directing all activities of Contractor and devoting sufficient time to perso nally s upervise the Services under this Agreement. The foregoing principal may not be changed by Contractor without prior written approval of the Contract Officer.

5.2 Contract Officer. The Contract Officer shall be the City M anager or his/her designee ("Contract Officer"). Contractor shall be responsible for keeping the Contract Officer fully informed of the progress of the performance of the S ervices. Contractor shall refer any decisions that must be made by City to the Contract Officer. Unless otherw ise specified, any approval of City shall mean the approval of the Contract Officer.

5.3 Prohibition Against Subcontracting or Assignment . The experience, knowledge, education, capability, and reputation of Contractor, its pr incipals and employees, were a substa ntial inducement for City to enter into this Agreement. Contractor shall not contract with any other individual or entity to perform any S ervices required under this Agreement without the City's express written approval. In addition, neither this Agreem ent nor any interest may be assigned or transferred, voluntarily or by operation of law, without the prior written approval of City. Subcontracts, if any, shall contain a provision making them subject to all provis ions sti pulated in this Agreement in cluding without limitation the insurance and indemnification requirements. If Contractor is permitted to subcontract any part of this Agreement by City, Contractor shall be responsible to City for the acts and omissions of i ts subcontractor(s) in the same manner as it is for persons directly employed. Nothing contained in this Agreement shall create any contractual relationships between any subcontractor and City.

5.4 Independent Contractor. Neither City nor any of its employees shall have any control over the manner, mode, or means by which Contractor , its agents or employees, perform the Services required, except as otherwise specified . Contractor shall perform all required Services as an independent contractor of Ci ty and shall not be an employee of C ity and shall remain at all times as to City a wholly independent contractor with only such obligations as are consistent with that role; however, City shall have the right to review Contractor ’s work product, result, and advice. Contractor shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of City. Contractor shall pay all wages, salaries, and other amounts due personnel in connection with their performance under this Agreement and Item 1S - Page 8

Revised 4.13.23 Page 5 of 110

as requir ed by l aw. Contractor shall be responsible for all reports and obligations respecting such personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, and workers’ comp ensation insurance. Contractor shall no t have any authority to bind City in any manner.

5.5 Personnel. Contractor agrees to assign the following individuals to perform the services in this Agreement. Contractor shall not alter the assignment of the followi ng personnel without the prior written approval of the Contract Officer. Acting through the City Manager, the City shall have the unrestricted right to order the removal of any personnel assigned by Contractor by providing written notice to Contractor.

N ame: Title:

Noel DiPaola Account Manager

5.6 California Labor Code Requirements.

A. Contractor is aware of the requirements of California Labor Code Sections 1720 et seq. and 1770 et seq., which require the payment of prevailing wage rates and the performance of other requir ements on c ertain “public works” and “maintenance” projects (“Prevailing Wage Laws”). If the S ervices are being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and if the total compensation is $15,000 or more for maintenance or $25,000 or more for construction, alteration, demolition, installation, or repair, Contractor agrees to fully comply with such Prevailing Wage Laws. Contractor shall defend, inde mnify and hold the City, its officia ls, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. It shall be mandator y upo n t he Contractor and all subcontractors to comply with all California Labor Code provisions, which include but are not limited to prevailing wages (Labor Code Sections 1771, 1774 and 1775), employment of apprentices (Labor Code Section 1777.5), certified p ayroll records (Labor Code Sect ions 1771.4 and 1776), hours of labor (Labor Code Sections 1813 and 1815) and debarment of contractors and subcontractors (Labor Code Section 1777.1).

B. If the Services are being performed as part of an applicable “public works” or “maintenance” project and if the total compensation is $15,000 or more for maintenance or $25,000 or more for construction, alteration, demolition, installation, or repair, then pursuant to Labor Code Sections 1725.5 and 1771.1, the Contracto r and all subcontractors performing such Services must be registered with the Department of Industrial Relations. Contractor shall maintain registration for the duration of the Project and require the same of any subcontractors , as applicable. This Agreement may also be subject to complian ce monitoring and enforcement by the Department of Industrial Relations. It shall be Contractor ’s sole responsibility to comply with all applicable registration and labor compliance requirements.

6. INSURANCE
Contrac tor shall procure and maintain, at i ts sole cost and expense, policies of insurance as set forth in the attached Exhibit "B", incorporated herein by reference.

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7. INDEMNIFICATION.

7.1 Indemnification. To the fullest extent permitted by law, Contractor s hall defend (at Contractor’s sole co st and expense), indemnify, protect, and hold harmless City, its elected officials, officers , employees, agents, and volunteers (collectively the “Indemnified Parties”), from and against any and all liabilities, actions, suits, claims, demands, losses, cos ts, judgments, arbitration awards, settlements, damages, demands, orders, penalties, and expenses including legal costs and attorney fees (collectively “Claims”), including but not limited to Claims arising from injur ies to or d eath of persons (Contractor’ s employees included) , for damage to property, including property owned by City, for any violation of any federal, state, or local law or ordinance or in any manner arising out of, pertaining to, or incident to any acts, errors or omissions , or willful mis conduct committed by Contractor, its officers, employees , representatives, and agents, that arise out of or relate to Contractor’s performance of Services or this Agreement. This indemnification clause excludes Claims arising from the sole negligence or willful mis conduct of the Indemnified Parties . Under no circumstances shall the insurance requirements and limits set forth in this Agreement be construed to limit Contractor ’s indemnification obligation or other liability under this Agreement. Contractor’s indemnification obligation shall survive the expiration or earlier termination of this Agreement until all actions against the Indemnified Parties for such matters indemnified are fully and finally barred by the applicable statute of limitations or, if an action is timely filed, until such action is final.

7.2 Design Professional Services Indemnification and Reimbursement. If Contractor’s obligation to defend, indemnify, and/or hold harmless arises out of Contract or’s performance as a “design professional” (as that term is defined under Civil Code section 2782.8), then, and only to the extent required by Civil Code section 2782.8, which is fully incorporated herein, Contractor’s indemnification obligation shall be lim ited to the extent which the C laims arise o ut of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Contractor in the performance of the Services or this Agreement , and, upon Contractor obtaining a final adjudication by a court of competent jurisdiction, Contractor’ s liability for such claim, including the cost to defend, shall not exceed the Contractor’s proportionate percentage of fault.

8. RECORDS AND REPORTS

8.1 Reports. Contractor shall periodically prepare and submit to the Contract Officer reports concerni ng the performance of the S ervices required by this Agreement, or as the Contract Officer shall require.

8.2 Records. Contractor shall keep complete, accurate, and detailed accounts of all time, costs, expense s, and expenditures pertaining in any way to t his Agreement. Contractor shall keep such books and records as shall be necessary to properly perform the S ervices required by this Agreement and enable the Contract Officer to evaluate the performance of such Services. The Contract Officer sha ll have fu ll and free access to such books and records at all reasonable times, including the right to inspect, copy, audit , and make records and transcripts from such records.

8.3 Ownership of Documents . All drawings, specifi cations, reports, records, documents, a nd other materials prepared by Contractor in the performance of this Agreement Item 1S - Page 10

Revised 4.13.23 Page 7 of 110

shall be the property of City. Contractor shall deliver all above-referenced documents to City upon request of the Contract Officer or upon the termination of this Agreement. Contractor shall have no claim for further employment or additional compensation as a result of the exercise by City of its full rights or ownership of the documents and materials. Contractor may retain copies of such documents for Contractor's own use. Contractor shall have an unrestricted right to use the concepts embodied in such documents.

8.4 Release of Documents . All drawings, specifications, reports, records, documents, and other materials prepared by Contractor in the performance of Services under this Agreement shall not be released publicly without the prior written approval of the Contract Officer.

8.5 Audit and Inspection of Records . After receipt of reasonable notice and during the regular busin ess hours of City, Contractor shall provide Ci ty, or other agents of City, such access to Contractor’s books, records, payroll documents, and facilities as City deems necessary to examine, copy, audit, and inspect all accounting books, records, work data, docum ents, and activities directly r elated to C ontractor’s performance under this Agreement. Contractor shall maintain such books, records, data, and documents in accordance with generally accepted accounting principles and shall clearly identify and make such items readily accessible to su ch parties during the term of this Agreement and for a period of three (3) years from the date of final payment by City hereunder.

9. ENFORCEMENT OF AGREEMENT

9.1 California Law. This Agreement shall be construed and inte rpreted both as to validity and to performance of the parties in accordance with the laws of the State of California.

Legal actions concerning any dispute, claim , or matter arising out of or in relation to this Agreement shall be instituted in the Super ior Cour t of the County of Riverside , State of California, or any other appropriate court in such county, and Contractor covenants and agrees to submit to the personal jurisdiction of such court in the event of such action.

9.2 Interpretation. This Agreem ent shall be construed as a whole according to its fair language and common meaning to achieve the objectives and purposes of the Parties. The terms of this Agreement are contractual and the result of negotiation between the Parties.

Accordingly, any rule of construction of contracts (including, without limitation, California Civil Code Section 1654) that ambiguities are to be construed against the drafting party, shall not be employed in the interpretation of this Agreement. The caption headings of the var ious sections and paragraphs of this Agreement are for convenience and identification purposes only and shall not be deemed to limit, expand, or define the contents of the respective sections or paragraphs.

9.3 Waiver . No delay or omission in the exerc ise of a ny right or remedy of a non- defaulting Party on any default shall impair such right or remedy or be construed as a waiver.

No consent or approval of City shall be deemed to waive or render unnecessary City’s consent to or approval of any subsequent act of Contractor. Any waiver by either Party of any default must be in writing. No such waiver shall be a waiver of any other default concerning the same or any other provision of this Agreement.

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9.4 Rights and Remedies are Cumulative . Except with re spect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative . The exercise by either P arty of one or more of such rights or remedies shall not preclude the exercise by it, at the s ame or d ifferent times, of any other rights or remedies for the same default or any other default by the other Party.

9.5 Legal Action. In addition to any other rights or remedies, either P arty may take legal action, in law or in equity, to cure, correct , or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain injunctive relief, a declaratory judgment, or any other remedy consistent with the purposes of this Agreement.

9.6 Attorney Fees. In th e event any dispute between the Part ies with r espect to this Agreement results in litigation or any non- judicial proceeding, the prevailing Party shall be entitled, in addition to such other relief as may be granted, to recover from the non-prevailing Party all reasonable costs and expenses. These include but are not limited to reasonable attorney fees, expert contractor fees, court costs and all fees, costs, and expenses incurred in any appeal or in collection of any judgment entered in such proceeding.

10. CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION

10.1 Non-Liability of City Officers and Employees . No officer or employee of City shall be personally liable to the Contractor , or any successor -in-interest, in the event of any default or breach by Cit y or for any amount which may become due to the Contractor or its successor, or for breach of any obligation of the terms of this Agreement.

10.2 Conflict of Interest. Contractor acknowledges that no officer or employee of the City has or shall have any dir ect or indirect financial interest in this Agreement, nor shall Contractor enter into any agreement of any kind with any such officer or employee during the term of this Agreement and for one (1) year thereafter. Contractor warrants that Contractor has not paid or given, and will not pay or give, any third party any money or other consideration in exchange for obtaining this Agreement.

10.3 Covenant Against Discrimination . In connection with its performance under this Agreement, Contractor shall not dis criminate against any employee or applicant f or employment because of actual or perceived race, religion, color, sex, age, marital status, ancestry, national origin ( i.e., place of origin, immigration status, cultural or linguistic characteristics, or et hnicity), sexual orientation, gender identity, gender expression, physical or mental disability, or medical condition (each a “prohibited basis”). Contractor shall ensure that applicants are employed, and that employees are treated during their employment, without regard to any prohibited ba sis. As a condition precedent to City’s lawful capacity to enter this Agreement, and in executing this Agreement, Contractor certifies that its actions and omissions hereunder shall not incorporate any discrimination arising from or related to any prohibited basis in any Contractor activity, including but not limited to the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship; and further, that Contractor is in full compliance with the provisions of Palm Springs Municipal Code Item 1S - Page 12

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Section 7.09.040, including without limitation the provision of benefits, relating to non- discrimination in city contracting.

11. MI SCELLANEOUS PROVISIONS

11.1 Notice. Any notice, demand, request, consent, approval, or communication that either Party desires, or is required to give to the other Party or any other person shall be in writing and either served personally or sent by pre -paid, first-class mail to the address set forth below. Notice shall be deemed communicated seventy- two (72) hours from the time of mailing if mailed as provided in this Section. Either Party may change its address by notifying the other Party of the change of address in writing.

To City: City of Palm Springs
Attention: City Manager/ City Clerk
3200 E. Tahquitz Canyon Way
Palm Springs, California 92262

To Contractor: LilyPad EV LLC
Attention: Noel DiPaola
4591 Pacheco Blvd.

Martinez, CA 94553

11.2 Integrated Agreement. This Agreement constitutes the entire understanding between the Parties and supersedes and cancels all prior negotiations, arrangements, agreements, representations, and understandings, if any, made by or among the Parties with respe ct to th e subject matter in this Agreement.

11.3 Amendment. No amendments or other modifications of this Agreement shall be binding unless through written agreement signed by all Parties.

11.4 Severability. Whenever possible, each provision of this Ag reement shal l b e interpreted in such a manner as to be effective and valid under applicable law . In the event that any one or more of the phrases, sentences, clauses, paragraphs, or sections contained in this Agreement shall be declared invalid or unenfor ceable by valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Agreement, which shall be interpreted to carry out the intent of the Parties.

11.5 Successors in Interest . This Agreement shall be binding upon and inure to the benefit of the Parties’ successors and assignees.

11.6 Third Party Beneficiary . Except as may be expressly provided for in this Agreement, nothing contained in this Agreement is inte nded to confer, nor shall this Agreement be construed as conferring, any rights, including, without limitation, any rights as a third-party beneficiary or otherwise, upon any entity or person not a party to this Agreement.

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11.7 Recitals. The above -referenced Recitals are hereby incorporated into the Agreement as though fully set forth in this Agreement and each Party acknowledges and agrees that such Party is bound, for purposes of this Agreement, by the same.

11.8 Authority. T he persons executing this Agreement on behalf of the P arties warrant that they are duly authorized to execute this Agreement on behalf of Parties and that by so executing this Agreement the Parties are formally bound to the provisions of this Agreement.

11.9 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original.

12. COMPLIANCE WITH ECONOMIC SANCTIONS IN RESPONSE TO RUSSIA'S ACTIONS IN UKRAINE.

When funding for the services is provided, in whole or in part, by an agency controlled of the State of California, Consultant shall fully and adequately comply with California Executive Order N-6-22 (“Russian Sanctions Program”). As part of this compliance process, Consultant shall also certify complia nce wi th the Russian Sanctions Program by completing the form located in Exhibit “C” (Russian Sanctions Certification), attached hereto and incorporated herein by reference. Consultant shall also require any subconsultants to comply with the Russian Sanctions Program and certify compliance pursuant to this Section.

13. F EDERAL PROVISIONS
Since funding for the Services is provided, in whole or in part, by the Federal Aviation Administration, Supplier shall also fully and adequately comply with the provis ions included in Exhibit “D” attached heret o and incorporated herein by reference (“Federal Provisions”). With respect to any conflict between such Federal Provisions and the terms of this Agreement and/or the provisions of state law, the more stringent requirement shall control.

[SIGNATURES ON NEXT PAGE]
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Revised 4.13.23 Page 11 of 110

SIGNATURE PAGE TO AGREEMENT BY AND BETWEEN THE CITY OF PALM

SPRINGS AND LILYPAD EV LLC

IN WITNESS WHEREOF, t he Parties have executed this Agreement as of the dates stated below.

CONTRACTOR:

By: _______________________________________ By: _________________________________________ Signature Signature
(2nd signature required for Corporations)

Date: Date:

CITY OF PALM SPRINGS:

APPROVED BY CITY COUNCIL:

Date: ____________________ Item No. ____________________

APPROVED AS TO FORM: ATTEST:

By: ___________________________ By: _______________________________ City Attorney City Clerk

APPROVED:

By: _______________________________ Date:

City Manager – over $50,000
Deputy/Assistant City Manager – up to $50,000
Director – up to $25,000
Manager – up to $5,000

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EXHIBIT “A”

CONTRACTOR’S

SCOPE OF SERVICES/WORK

Including,

Schedule of Fees

And

Schedule of Performance

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1.1 Scope:

The scope of the work i s to expand and update the EV charging network and to provide related maintenance, repair, parts and supplies, and w arranties. The Contractor will provide 80 EV charging sta tions. Installation will be handled via a separate procurement process and is not part of this agreement. The installed chargers will be part of a networked, cloud-based service that will facilitate c harge monitoring, reporting services, billing services and provide access to related so ftware and/o r techn ology. The exact scope of services includes, but is not limited to the following:

1. Electric Vehicle Supply Equipment (EVSE): The Contractor will provide 80 Level II EV Charging Stations. All charging stations will be:

A. Capable of accepting and processing point of sale transaction payment s of all major credit cards and ATM cards through a secure system.

B. Accessible to all members of the public, with no m embership to a specific network required for access.

C. ADA compliant.

D. Compliant with National Electrical Code and FCC regulations for safe ty and operation requirements.

E. Conform to ISO 15118 Standard as set forward by the CPUC.

F. Must have an operational temperature range of -20C (-4F) to +50C (+122F) or higher.

G. Equipped with a cord management system.

H. Fully networked to allow for the mana gement of charging operations including access, pricing, power distribution, and charging notifications. All networking communications must be through cellular communication.

I. Equipped to provide location and real -time a vailability to users on the web through sites such as plugshare.com and the Alternative Fuels Data Center.

J. Equipped with pedestals for the mounting of the charging stations. 39 pedestals must support 2 of the charging ports each. An additional 2 pedestals must support 1 charging port each. This will total 41 pedestals.

K. Shall provide adequate signage for all 41 pedestal locations. 80 signs shall be included as equipment for this purchase. Adequate signage is (1) sign per charging port (identifying the space as EV only).

L. Shall provide all materials, equipment, required for installation process.

2. Ownership: The City shall have ownership of the charging equipment.

3. Maintenance and Communications: The Contractor shall provide operation and maintenance services for a period of five years. Maintenance of the EV charger stations should be performed by service providers who have the capability and capacity to respond to calls for maintenance/service within 24 hours.

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4. Service Provider(s)/Data Capture: The EVSE must handle, transfer, a nd backup data. The net work communica tions shall, at a minimum, provide the following information for each charging transaction, at each char ging location, and must comply with all state and federal regulations:

A. Charging data - date and time of usage (st art and stop time) and ut ilization rates.

B. Total kWh and Total kW draw.

C. Total dollar amount charged to the user.

D. Station status and health in real time.

E. Malfunction or operating error.

5. Product Safety: The EVSE shall have the ability to stop flow of power when not in use. The system shall have over-current protection to prevent vehicles from drawing too much power.

6. Warranty: The Contractor shall provide a manufacturer’s warranty on all purchased EVSE, hardware, and software for a minimum of one year from the date of acceptance by the City. The warranty must include all materials, equipment, parts, tools, la bor and incidentals, as well as all Contractor or manufacturer recommended upgrades. Warranty shall cover complete repair s or replacements, and site visits, as necessary. If t here is a failure of the EV charger during the warranty period, the hardware provider shall agree to replace such components or parts within 72 hours of notification.

7. Carbon Credits: The Airport shal l be the sole recipient of the credits available through the California Air Resources Board (CARB) Cap and Trade Program.

8. Conformance w ith MSRC and SCIP Grant Requirements: All software, equipment, parts , maintenance, and warranty agreements, and related E VSE services shall be executed / provided in conforma nce with MSRC AB2766 Discretionary Fund grants and the Southern California Incentive Program grant.

1.2 Delivery:

Delivery of the EVSE must be prior to 12/1/2023.

1.3 Compensation:

Work will be compensated on a lumpsum basis. Contract pricing includes purchase and delivery of 80 EV charging stations, 5-year operation and maintenance services, and warranty as outlined in the contract scope. No additional compensation will be due by the City unless the contract is modified for additional work requested by the City.

1.4 Pricing:

Prices ar e fixed for the initial 5 year term of the contract. Contractor ma y request an increase for optional extension term to correspond with the most recent annual change to the Consumer Price Index for All Urban Consumers as published by th e U.S. Bureaus of Labor Statistics for the Riverside-San Bernardino-Ontario Areas.

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Item 1S - Page 19

ATTACHMENT G

BIDFDRM
INVITATION FOR BIDS (IFB 23-41)

ELECTRIC VEHICLE CHARGING STATIONS FOR PSP
Responding to this IFB ror 80 electric vehicle charging stations for Palm Springs Interna tional Airport (PSP), the undersigned bidder proposes and agrees to provide the services and work in accordance wtth the s pecifications. Bidder proposes and agrees to furnish all labor. equipment. materials, supervis ion, and service necessary to complete said Work in accorda nce with the Specificatio ns of the City of Palm Springs and will accept as full payment therefore, the rollowing una cost amounts. The City of Palm Springs will not accept any additional charges, fees. etc. that are not already included or incorporated in the below unit costs.

ITEM DESCRIPTION UNIT QUANTITY UNIT PRICE SUBTOTA L
1 Purchase and Delivery of 80
Electric Vehicle Charging
Stations oer soecifications
L..Umpsum I $295,707.92 S295,707.92
2 Operation and maintenance Annually 5 $40,679 $203,395 services (5 years) 3 Warranty Lumpsurr I Included in Ops & Maint
TOTAL (Enlo r this amou nt in PlanetBlds) $499.102.92
Attach Electric Vehicle Charging Stations specification sheets / details to this form.

Firm Name: LilyPa d EV LLC
Signature of Authorized Person: _\..,,X.A-flj""-'j'\:_c-')...,1,/J'l.,_f.,(';.,.&..,,,_,o._,..= ~-- - - Printed Name: __ N__:,oe::..l..:D:_iP_a_o_la _________ ________ _ Trtte: Account Manager
Date: 8/30/2023
Please Note: The yearly cost lor Operations and Maintenance is based on uprront purchase of 5- years or network and warranty. The above pricing is valid upon acceptance of hardware delivery by 1/15/2024 and purchase or 5-years or network and warranty.

Electric Vehicle Charging Stations for Palm
Springs International Airport IFB 23-41
CP6000 Tech Specs
PREPARED FOR:

Item 1S - Page 20

Page i

4.2 Scope Technical Response to 4.2 Scope

1. Electric Vehicle Supply Equipment (EVSE): The
Contractor will provide 80 Level II EV Charging
Stations. All charging stations will be:

The following response apply to the proposed
ChargePoint CP6000 charging solution managed
by the ChargePoint charger management system.

A. Capable of accepting and processing point
of sale transaction payments of all major
credit cards and ATM cards through a secure
system.

Comply. ChargePoint is PCI Certified as both a Service
Provider and Merchant and audited annually by a 3rd
party QSA. The current Attestation of Compliance is
available upon request.

B. Accessible to all members of the public, with
no membership to a specific network
required for access.

Comply
C. ADA compliant. Comply
D. Compliant with National Electrical Code and
FCC regulations for safety and operation
requirements.

Comply
E. All chargers must conform to ISO 15118
Standard as set forward by the CPUC.

Comply. CP6000 hardware is capable of ISO 15118
capabilities but no auto OEM has implemented these
capabilities on AC Level 2 charging. Once ISO 15118
functionality is deemed desirable or autos have
enabled it, PSP can upgrade the cloud software plan
to enable 15118 features. For this bid, we have
included ChargePoint’s Commercial Cloud plan.

F. Must have an operational temperature
range of -20C (-4F) to +50C (+122F) or higher.

Comply
G. Equipped with a cord management system. Comply. Charging connectors are attached to our cable management system to keep cords cleanly off
the ground to increase workplace safety and protect
the equipment.

H. Fully networked to allow for the
management of charging operations
including access, pricing, power distribution,
and charging notifications. All networking
communications must be through cellular
communication.

Comply. ChargePoint cloud services provide station
operators the ability to view real-time network and
station status of their charging portfolio, control
access/pricing policies, configure driver waitlists and enable power management. All ChargePoint stations
are 4G enabled.

I. Equipped to provide location and real-time
availability to users on the web through
sites such as plugshare.com and the
Alternative Fuels Data Center.

Comply
J. Labeled with customer support information
available to users 24/7.

Comply

2. The City shall have ownership of the charging
equipment. Proposals must reflect a business model
where the Airport owns the EVSE, and the
Contractor operates/maintains the EVSE.

Read, understood, and comply.

3. Maintenance and Communications: The
Contractor shall provide operation and
maintenance services for a period of at least five
years. Maintenance of the EV charger stations
should be performed by service providers who
have the capability and capacity to respond to
calls for maintenance/service within 24 hours.

Read, understood, and comply with the proposed
ChargePoint Assure. Please note that with
Assure, ChargePoint will acknowledge/respond
to issues within one business day. If the issue
cannot be resolved remotely, ChargePoint will
dispatch qualified technicians to the site within
one business day of parts available locally.

Item 1S - Page 21
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Page ii
Please see the attached ChargePoint Assure
Terms and Conditions for governing terms.

4. Service Provider(s)/Data Capture: The EVSE
must have capabilities to handle, transfer, and
backup data. The network communications
shall, at a minimum, provide the following
information for each charging transaction, at
each charging location, and must comply with
all state and federal regulations:

Comply with the proposed ChargePoint charger
management software and cloud plan.

A. Charging data - date and time of usage (start
and stop time) and utilization rates.

Comply
B. Total kWh and Total kW draw. Comply
C. Total dollar amount charged to the user. Comply. ChargePoint stations are CTEP listed and comply with all required reporting requirements.

D. Station status and health in real time. Comply
E. Malfunction or operating error. Comply

5. Product Safety: The EV charging stations shall
have the ability to stop flow of power when not
in use. The system shall have over -current
protection to prevent vehicles from drawing too
much power.

Comply

6. Warranty: The Contractor shall provide a
manufacturer's warranty on all purchased EV
charger equipment, hardware, and software for
a minimum of one year from the date of
acceptance by the City. The warranty must
include all materials, equipment, parts, tools,
labor and incidentals, as well as all Contractor or
manufacturer recommended upgrades.

Warranty shall cover complete repairs or
replacements, and site visits, as necessary. If
there is a failure of the EV charger during the
warranty period, the hardware provider shall
agree to replace such components or parts
within 72 hours of notification.

ChargePoint’s standard hardware warranty is
one-year, parts-only for commercial stations. To
provide greater peace of mind, we are
proposing ChargePoint’s Assure service for
ChargePoint manufactured commercial charging
stations.

With Assure, ChargePoint takes responsibility
for fixing hardware issues by providing parts,
labor, and orchestration of repairs by expert
support specialists. Proactive monitoring,
regular reports and unlimited changes to station
policies are included with Assure, as well as one
business day response to requests and a 98%
annual uptime guarantee. You can also get
professional guidance when configuring your
stations to make the most of EV charging.

Summary of Assure features:
+ 24x7 proactive station health
monitoring
+ Dispatch of repair technicians when
required
+ Next business-day, on-site response
after parts are delivered
+ Unlimited software configuration
changes
Item 1S - Page 22
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Page iii
+ 98% annual uptime guarantee with
financial penalties for non-
performance
+ Monthly reports and detailed quarterly
reports of your station’s performance
metrics
+ Coverage of labor for repairs typically
not covered under standard warranty
such as vandalism, abuse, and
accidents
We understand that PSP is targeting parts
replacement by vendor within 72 hours of
notification. ChargePoint dispatches
technicians within one business day of parts
arriving locally and will make their best
effort to meet the 72-hour target however it
is not guaranteed. With Assure, we do
guarantee an annual station uptime of at
least 98%.

7. Carbon Credits: The Airport shall be the sole
recipient of the credits available through the
California Air Resources Board (CARB) Cap and
Trade Program.

Please refer to the attached MSSA, Section 11.5,
Notice Regarding Claims to Regulatory
Compliance Mechanisms. Excerpt included at the
bottom of this page.

8. Conformance with MSRC and SCIP Grant
Requirements: All software, equipment, parts,
maintenance, and warranty agreements, and
related EVSE services shall be executed /
provided in conformance with MSRC AB2766
Discretionary Fund grants and the Southern
California Incentive Program grant. Contractor
shall show a clear understanding and
acceptance of these grant requirements.

Read, understood, and comply.

4.3 Delivery of the EVSE must be prior to 12/1/23 Comply MSSA, Section 11.5 NOTICE REGARDING CLAIMS TO REGULATORY COMPLIANCE MECHANISMS The use of certain ChargePoint Charging Stations may be eligible to generate clean fuels credits, low carbon fuel standard credits, renewable fuels credits, emissions reduction units, carbon offsets, allowances, r enewable fuel and/or obligation certificates, or similar regulatory compliance instruments, collectively (“Regulatory Compliance Mechanisms”), used to comply with applicable federal, state, provincial, international or regional emissions, low - carbon fuel, and/or renewable fuel compliance programs. CPI and Subscriber may be eligible to claim title to Regulatory Compliance Mechanisms, however, only one Party can claim title. Should Subscriber choose to claim regulatory title, assuming Subscriber may be eligible to do so, Subscriber must opt-in to the applicable program and fulfill all ongoing administrative and reporting obligations required of program participants, including recurring verification and/or auditing requirements. CPI intends to claim title to applicable Regulatory Compliance Mechanisms, assuming CPI may be eligible to do so; however, CPI will not claim title to specific Regulatory Compliance Mechanisms that Subscriber has opted to claim. Subscriber agrees that it will provide CPI with written not ice of its intent to claim specific Regulatory Compliance Mechanisms within ten (10) days of the Effective Date. If Subscriber does not currently intend to claim regulatory title, but desires to do so at any time in the future, Subscriber may, by providing written Item 1S - Page 23
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Page iv
notice to CPI, elect to claim title to Regulatory Compliance Mechanisms resulting from the use of ChargePoint Charging Stations thirty (30) days or more after the date of such notice. Subscriber represents and warrants to CPI that, in the absence of providing written notice, Subscriber will not claim any Regulatory Compliance Mechanisms and hereby designates that right to CPI. All notices shall be provided by email to CPI at [email protected].

Item 1S - Page 24
-chargepoi n+.

ChargePoint ® AC Commercial Station
Specifications and Ordering Information
Dual port, pedestal mount, 18 ft cable
Item 1S - Page 25
-;:hargepoin+.

CP6000 AC Commercial Station Specifications
ChargePoint, Inc. | Copyright © 2023 2 of 11
Ordering Information
The order codes below represent specific product configurations. Please contact ChargePoint Sales for additional information. Specify model number followed by the applicable code(s).

The order code sequence is Model-Options. Software, Services and Other are ordered as separate line items.

Please note that charging stations without EMV-CHIP readers in California may not be publicly visible or discoverable on the ChargePoint map. Please see below for applicable dates. • Level 2 (AC) stations without EMV-Chip readers: installed/activated on/after July 1, 2023. • Direct Current Fast Charging (DCFC) stations without EMV-Chip readers: installed/activated on/after January 1, 2022.
(Reference: 13 CCR § 2360.2. Payment Method Requirements for Electric Vehicle Supply Equipment) Hardware
Description Order Code
Model
80A Dual port, pedestal mount, 18 ft cable CP6021B-80A-L5.5 80A Single port, pedestal mount, 18 ft cable CP6011B-80A-L5.5 80A Dual port, pedestal mount, 18 ft cable, EMV
chip reader CP6021B-80A-L5.5-CHIP
80A Single port, pedestal mount, 18 ft cable, EMV
chip reader CP6011B-80A-L5.5-CHIP
50A Dual port, pedestal mount, 18 ft cable CP6021B-50A-L5.5 50A Single port, pedestal mount, 18 ft cable CP6011B-50A-L5.5 50A Dual port, pedestal mount, 18 ft cable, EMV
chip reader CP6021B-50A-L5.5-CHIP
50A Single port, pedestal mount, 18 ft cable, EMV
chip reader CP6011B-50A-L5.5-CHIP
80A Dual port, wall mount, 18 ft cable CP6023B-80A-L5.5 80A Single port, wall mount, 18 ft cable CP6013B-80A-L5.5 80A Dual port, wall mount, 18 ft cable, EMV chip
reader CP6023B-80A-L5.5-CHIP
80A Single port, wall mount, 18 ft cable, EMV chip
reader CP6013B-80A-L5.5-CHIP
50A Dual port, wall mount, 18 ft cable CP6023B-50A-L5.5 50A Single port, wall mount, 18 ft cable CP6013B-50A-L5.5 50A Dual port, wall mount, 18 ft cable, EMV chip
reader CP6023B-50A-L5.5-CHIP
50A Single port, wall mount, 18 ft cable, EMV chip
reader CP6013B-50A-L5.5-CHIP
80A Dual port, pedestal mount, 23 ft cable CP6021B-80A-L7 80A Single port, pedestal mount, 23 ft cable CP6011B-80A-L7 Item 1S - Page 26
CP6000 AC Commercial Station Specifications
ChargePoint, Inc. | Copyright © 2023 3 of 11
80A Dual port, pedestal mount, 23 ft cable, EMV
chip reader CP6021B-80A-L7-CHIP
80A Single port, pedestal mount, 23 ft cable, EMV
chip reader CP6011B-80A-L7-CHIP
50A Dual port, pedestal mount, 23 ft cable CP6021B-50A-L7 50A Single port, pedestal mount, 23 ft cable CP6011B-50A-L7 50A Dual port, pedestal mount, 23 ft cable, EMV
chip reader CP6021B-50A-L7-CHIP
50A Single port, pedestal mount, 23 ft cable, EMV
chip reader CP6011B-50A-L7-CHIP
80A Dual port, wall mount, 23 ft cable CP6023B-80A-L7
80A Single port, wall mount, 23 ft cable CP6013B-80A-L7 80A Dual port, wall mount, 23 ft cable, EMV chip
reader CP6023B-80A-L7-CHIP
80A Single port, wall mount, 23 ft cable, EMV chip
reader CP6013B-80A-L7-CHIP
50A Dual port, wall mount, 23 ft cable CP6023B-50A-L7
50A Single port, wall mount, 23 ft cable CP6013B-50A-L7 50A Dual port, wall mount, 23 ft cable, EMV chip
reader CP6023B-50A-L7-CHIP
50A Single port, wall mount, 23 ft cable, EMV chip
reader CP6013B-50A-L7-CHIP
Other Bollard Concrete Mounting Kit CP6K-CMT-NA
Software and Services
Description Order Code
ChargePoint Enterprise Plan CPCLD-ENTERPRISE-n*
ChargePoint Fleet Commercial CPCLD-COMMERCIAL-n*
ChargePoint Assure CP6000-ASSURE-n*
Station Activation and Configuration CPSUPPORT-ACTIVE
ChargePoint Site Validation CPSUPPORT-SITEVALID
ChargePoint Installation and Validation CP6000-INSTALLVALID Note: All CP6000 stations require a network service plan per port. *Substitute n for desired years (1, 2, 3, 4 or 5 years) Item 1S - Page 27
CP6000 AC Commercial Station Specifications
ChargePoint, Inc. | Copyright © 2023 4 of 11
Architectural Drawings and Dimensions
Pedestal Mount
Item 1S - Page 28
.--------
1817mm
tn V2 in)
1437 mm
(So 9/16 in)
1 •

1. , I
283mm
(11 VS in)
354mm
r
245mm
(9 5/8 in)
283mm
l--+- <.:..11.:..1/:.;8.:..in;;:>_
476mm
(183/4 in)
CP6000 AC Commercial Station Specifications
ChargePoint, Inc. | Copyright © 2023 6 of 11
General Specifications
Electrical Input
The CP6000 AC Commercial Station supports flexible electrical input/output settings up to 80A to fit your fueling needs, whether for a workplace, multi-family dwelling, or other application.

Power Select allows stations to be installed and configured for current lower than the maximum 80A. Power Select current options include 16A, 24A, 32A, 40A, 48A, 50A, 56A, 64A, and 72A.

Power Share allows a dual-port station to share power from a single circuit across two ports, adjusting power depending on whether one or both are charging. Standard wiring uses an independent circuit for each port. Power Share can be used in combination with Power Select.

Statio
n
Electric
al Input
Single Port
(AC Voltage 208 / 240V
AC)
Dual Port
(AC Voltage 208 / 240V AC)
Input
Current
Input
Power
Connection
Required
Service
Panel
Breaker
Input
Current
Input Power
Connection
Required
Service
Panel
Breaker
80A
Maximum
80A
(Standard)
80A
One 100A
branch
circuit
100A
dual pole
(non-
GFCI)
80A x 2
Two
independent
100A branch
circuits
100A
dual pole
(non
GFCI) x
2 Maximum
80A
(Power
Share*)
N/A N/A N/A 80A
One 100A
branch
circuit
100A
dual pole
(non
GFCI)
Power
Select**
16A - 72A
(Standard)
16A -
72A
One
branch
circuit rated
125% of
input
current
(20A - 90A)
Dual
pole
(non-
GFCI)
rated
125% of
input
current
(20A -
90A)
16A -
72A x 2
Two
independent
branch
circuits rated
125% of
input current
(20A - 90A)
Dual
pole
(non-
GFCI)
rated
125% of
input
current
(20A -
90A) x 2
Power
Select 16A
- 72A
(Power
Share)
N/A N/A N/A 16A -
72A
One branch
circuit rated
125% of
input current
(20A - 90A)
Dual
pole
(non-
GFCI)
rated
125% of
input
Item 1S - Page 29
CP6000 AC Commercial Station Specifications
ChargePoint, Inc. | Copyright © 2023 7 of 11
current
(20A -
90A)
50A
Maximum
50A
(Standard)
50A
One 70A
branch
circuit
70A dual
pole
(non-
GFCI)
50A x 2
Two
independent
70A branch
circuits
70A dual
pole (non
GFCI) x
2 Maximum
50A
(Power
Share*)
N/A N/A N/A 80A
One 70A
branch
circuit
70A dual
pole (non
GFCI)
Power
Select**
16A - 48A
(Standard)
16A -
48A
One
branch
circuit rated
125% of
input
current
(20A - 60A)
Dual
pole
(non-
GFCI)
rated
125% of
input
current
(20A-
60A)
16A -
48A x 2
Two
independent
branch
circuits rated
125% of
input current
(20A - 60A)
Dual
pole
(non-
GFCI)
rated
125% of
input
current
(20A -
60A) x 2
Power
Select 16A
- 48A
(Power
Share)
N/A N/A N/A 16A -
48A
One branch
circuit rated
125% of
input current
(20A - 60A)
Dual
pole
(non-
GFCI)
rated
125% of
input
current
(20A -
60A)
Service
Panel/Breaker GFCI
Do not provide external GFCI as it may conflict with internal GFCI (CCID)
Wiring – Standard 3-wire (L1, L2, Earth)
No neutral 5-wire (L1, L1, L2, L2, Earth)
Wiring – Power
Share N/A 3-wire (L1, L2, Earth)
Station Power 8 W typical (standby), 15 W maximum (operation) Line to Ground
Voltage 120V +/- 10%
Electrical Output for 80A Station
Electrical Output
Single Port
(AC Voltage 208 / 240V
AC)
Dual Port
(AC Voltage 208 / 240V
AC)
Maximum 80A (Standard) 19.2 kW (240V AC @ 80A) 19.2 kW (240V AC @ 80A) Maximum 80A (Power
Share)
N/A 19.2 kW (240V AC @ 80A) x 1
or

9.6 kW (240V AC @ 40A) x 2
Power Select 16A - 72A
(Standard)

3.8 kW - 17.3 kW (240V AC @
16A - 72A)

3.8 kW - 17.3 kW (240V AC @
16A - 72A) x 2
Item 1S - Page 30
CP6000 AC Commercial Station Specifications
ChargePoint, Inc. | Copyright © 2023 8 of 11
Power Select 16A - 72A
(Power Share)
N/A 3.8 kW - 17.3 kW (240V AC @
16A - 72A) x 1
or

1.9 kW - 8.6 kW (240V AC @ 8A
- 36A) x 2
Electrical Output for 50A Station
Electrical Output
Single Port
(AC Voltage 208 / 240V
AC)
Dual Port
(AC Voltage 208 / 240V
AC)
Maximum 50A (Standard) 12.0 kW (240V AC @ 50A) 12.0 kW (240V AC @ 50A) Maximum 50A (Power
Share)
N/A 12.0 kW (240V AC @ 50A) x 1
or

6.0 kW (240V AC @ 25A) x 2
Power Select 16A - 48A
(Standard)

3.8 kW - 11.5 kW (240V AC @
16A - 48A)

3.8 kW - 11.5 kW (240V AC @
16A - 48A) x 2
Power Select 16A - 48A
(Power Share)
N/A 3.8 kW - 11.5 kW (240V AC @
16A - 48A) x 1
or

1.9 kW - 5.8 kW (240V AC @ 8A
- 24A) x 2
Item 1S - Page 31
CP6000 AC Commercial Station Specifications
ChargePoint, Inc. | Copyright © 2023 9 of 11
Mounting and Functional Interfaces
Connector Type SAE J1772TM
Number of Ports Single, dual
Mounting Pedestal, wall
Cable Length 18 ft (5.5 m), 23 ft (7m)
Cable Management Yes
Authentication and
Payment
RFID: ISO 15693, ISO 14443, NEMA EVSE 1.2-2015 (UR)
NFC (Tap to Charge)
Remote: mobile and in vehicle (if supported by vehicle) Contactless credit card
EMV chip credit card (for -CHIP models only)
Locking Holster Yes
ISO 15118 Protocol Supported by hardware
Display Full color 8-inch interactive display with full motion video, UV protection, gesture touch controls, and multi-language support Safety and Connectivity Features
Ground Fault Detection 20 mA CCID with auto retry
Open Safety Ground
Detection
Continuously monitors presence of safety (green wire) ground connection
Plug-Out Detection Power terminated per SAE J1772TM specifications Energy Measurement
Meter accuracy 1%
Accuracy class 2.0
Acceptance tolerance 1.0%
Power Report/Store
Interval
15-minute interval aligned to hour. Responsive to load management signals.

Local Area Network Wi-Fi 2.4 GHz and 5GHz (802.11 a/n/b/g) Wide Area Network LTE Category 4
Network Communication
Protocol OCPP 2.0.1
Ethernet connection Capable with accessory
Safety and Operational Ratings
Station Enclosure Rating Type 3R per UL 50E
Safety and Compliance UL and cUL listed; complies with UL 2594, UL 2231-1, UL 2231-2, and NEC Article 625
Energy Star (Dual Port Only)
CTEP
Item 1S - Page 32
CP6000 AC Commercial Station Specifications
ChargePoint, Inc. | Copyright © 2023 10 of 11
Station Surge Protection
6 kV @ 3,000A. In geographic areas subject to frequent
thunderstorms, supplemental surge protection at the service panel is recommended.

EMC Compliance FCC Part 15 Class B
Operating Temperature -40°C to 50°C (-40°F to 122°F)
Non-Operating
Temperature -40°C to 60°C (-40°F to 140°F)
Terminal Block
Temperature Rating 105°C (221°F)
Operating Humidity Up to 85% @ 50°C (122°F) non-condensing Non-Operating Humidity Up to 95% @ 50°C (122°F) non-condensing ChargePoint, Inc. reserves the right to alter product offerings and specifications at any time without notice and is not responsible for typographical or graphical errors that may appear in this document .

Item 1S - Page 33
CP6000 AC Commercial Station Specifications
ChargePoint, Inc. | Copyright © 2023 11 of 11
ChargePoint, Inc.
240 East Hacienda Avenue
Campbell, CA 95008-6617 USA
Contact Us
Visit chargepoint.com
ChargePoint, Inc. (“ChargePoint”) reserves the right to alter product offerings and specifications at any time witho ut notice.

ChargePoint is not responsible, and disclaims any and all liability, for typographical or graphical errors, inaccuracies, or incompleteness that may appear in this document. This document does not expand or otherwise modify ChargePoint’s terms and conditions of purchase, including but not limited to the warranty expressed therein.

Copyright © 2023 ChargePoint, Inc. All rights reserved. CHARGEPOINT is a U.S. registered trademark/service mark, and an EU registered logo mark of ChargePoint, Inc. ASSURE and CHARGEPOINT AS A SERVICE are U.S. registered trademarks of ChargePoint Inc. All other products or services mentioned are the trade marks, service marks, registered trademarks or registered service marks of their respective owners. May 2023 Item 1S - Page 34
-chargepoiM:

ChargePoint Assure
Industry-leading support, maintenance and warranty deliver peace of mind.

ChargePoint® Assure™ is the most comprehensive EV station maintenance and management program. Assure covers
everything needed to keep ChargePoint electric vehicle (EV) charging stations up and running. With Assure, ChargePoint takes responsibility for fixing hardware issues by providing parts, labor and orchestration of repairs by expert support specialists. Proactive monitoring, regular reports and unlimited changes to station policies are included with Assure, as well as one business day response to requests and a 98% annual uptime guarantee. You can also get professional guidance when configuring your stations to make the most of EV charging.

ChargePoint EV charging stations are the most advanced
and reliable in the world, but site conditions can change, wear and tear occurs, and accidents or equipment failures can happen. High-quality service and support start with high-quality products, site preparation and installation, but these elements alone aren’t enough. Assure is so much more than a warranty. It is the most comprehensive EV station maintenance and management program. With Assure, you
don’t have to spend time figuring out how to fix or maintain your station. It’s always ready to charge so you get a good return on your investment.

What Does Assure Include?
Stay on Top of Operations with Proactive Monitoring
+ Find out about problems befor e your drivers do with
remote monitoring
+ Ge t 98% annual sta
tion uptime with a non-performance penalty
for outages caused by station hardware or software failures + K eep your s
tations up and running with proactive
troubleshooting and dispatch services
+ Fix pr oblems with on-site labor tha
t ChargePoint dispatches
and manages
+ C all us during business hour
s (5 AM – 6 PM Pacific) for
expert support
Count On a Fast Fix with One-Business-Day
Response Time
+ We respond to all issues within one business day
+ Char gePoin
t certified technicians will be onsite to repair your
station within one business day of receiving any required parts + U .S.–based support specialists c
oordinate all repairs
Rest Easy with the Industry’s Leading Parts and
Labor Warranty
+ We offer the EV charging industry’s first and most
compr
ehensive warranty for parts and on-site labor
+ W e co
ver labor to repair issues that often aren’t covered
under warranty, such as vandalism, auto accidents and
excessive wear and tear
Optimize with Expert Advice and Unlimited Changes
+ U.S.–based EV charging experts advise you on best practices for s
tation configuration and management in your region
and industry
+ Our t eam makes unlimit
ed station configuration and policy
changes for you, so you can control access to your station, set charging rates and make adjustments based on driver behavior Get a Glimpse into Driver Behavior with
Robust Reporting
+ See how your stations are being used in an easy-to-read forma
t with monthly summaries
+ Pr ov
e success and make improvements with quarterly
reports on station utilization, performance, energy usage and environmental impact
+ C
ompare y
our station use with organizations like yours
What Does Assure Require?
Because installation quality affects the long-term reliability and availability of EV charging stations, ChargePoint requires that all stations covered by Assure are validated to ensure they meet installation specifications. Validation is performed on-site and includes inspection of power availability, panel, breaker and wiring; confirmation of cellular and local network coverage (through WiFi) and verification that all ChargePoint installation requirements are met. Choose one of the following ways to validate stations and activate Assure:

1. Authorized ChargePoint operations & maintenance (O&M) partners who perform site preparation and station installation will automatically validate the stations and enable Assure.

2. Authorized ChargePoint reseller partners certified to perform self-validation may validate station installations and enable Assure.

3. When independent or in-house installers are used, validation may be purchased from either of the partners above. After the partner successfully validates site preparation and station installation, Assure is enabled.

Item 1S - Page 35
-chargepoirtt:

ChargePoint Assure
ChargePoint, Inc.
240 East Hacienda Avenue
Campbell, CA 95008-6617 USA
+1.408.841.4500 or
+1.877.370.3802 US and Canada toll-free
chargepoint.com
Contact Us
Visit chargepoin t.com
Call +1.408.705.1992
Email [email protected]
Station Maintenance Options
Maintenance Option Parts Only Warranty Assure
Availability One year included for free on all stations installed by a ChargePoint certified installer*
Available for purchase for up to five years. Stations
must be installed and validated by a ChargePoint
certified installer.

Parts Covered Defective parts are exchanged Included and coordinated by a ChargePoint support specialist
Certified On-Site Labor Not included: station owner must find a ChargePoint certified installer to perform any repairs
Included and coordinated by a ChargePoint support
specialist
Monthly Station Summary Report Included
Detailed Quarterly Reports Included
Uptime Guarantee 98% with non-performance penalty
Proactive Monitoring Included
Service Level Agreement 1 business day response time
1 business day from parts arrival for on-site labor
Labor Coverage Included for damage caused by accidents, vandalism and excessive wear and tear
Unlimited Station Configuration Included
* Installations not performed by a ChargePoint certified installer are not covered under warranty.

Ordering Information
Description Order Code
Assure for CT4000 Family CT4000-ASSUREn1
Assure for CPF25 CPF25-ASSUREn1
Assure for Express 100 CPE100-ASSUREn 2
Assure for Express 200 CPE200-ASSUREn 2
Assure for Express 250 EXPRESS-ASSUREn1
Assure for Express Plus EXPRESS-ASSUREn1
Companion Services
Description Order Code
Station Activation and Configuration CPSUPPORT-ACTIVE
Station Installation and Validation CT4000-INSTALLVALID Validation CPSUPPORT-SITEVALID
1 Substitute n for desired years of service (1, 2, 3, 4 or 5 years). 2 Substitute n for years of service desired (1, 2 or 3 years).

Copyright © 2019 ChargePoint, Inc. All rights reserved. CHARGEPOINT is a U.S. registered trademark/service mark, and an EU registered logo mark of ChargePoint, Inc. All other products or services mentioned are the trademarks, service marks, registered trademarks or registered service marks of their respective owners. DS-Assure-04. November 2019. PN 73-001094-01-5.

Item 1S - Page 36
-chargepoiM:

Revised 5.01.2022
ChargePoint, Inc. | 254 East Hacienda Ave | Campbell, CA 95008-6901 USA 408.841.4500 or toll-free 877.370.3802 | [email protected] | www.chargepoint.com Copyright © 2018 ChargePoint, Inc. – All rights reserved.

CHARGEPOINT is a U.S. registered trademark/service mark. All other products or services mentioned are the trademarks, service marks, registered trademarks or registered service marks of their respective owners.

CHARGEPOINT ASSURE TERMS AND

CONDITIONS OF SERVICE
ChargePoint Assure (“Assure”) is a full service and support program designed specifically for your electric vehicle charging station (“Charging Station”) purchased from the ChargePoint entity as defined in Section 1 5 below (“ChargePoint”) (“ChargePoint”) or its representatives. With your Assure coverage, ChargePoint O&M Partners (defined below) will provide parts, labor, and other services indicated in these Assure Terms and Conditions of Service (“Agreement”). Published specifications for the Charging Stations are available via your ChargePoint account or upon request of ChargePoint or its representatives.

1. WHAT IS COVERED: With Assure, ChargePoint agrees to do each of the following, for so long as you purchase and maintain an Assure subscription. For further information please visit https://chargepoint.com/products/service. a. Parts:
• Ensure all parts are provided, as necessary, to correct any defect in the materials or workmanship of a Charging Station in a prompt and professional matter. • Each Charging Station shall be corrected so that the Charging Station functions in line with that Charging Station’s published specifications. For avoidance of doubt, such correction shall be limited to the Charging Station itself and not any issue related to installation or electrical infrastructure.
b. Service and Labor:
• Except as otherwise provided, ensure that all labor is performed, on -site if necessary, to correct any defect in the materials or workmanship of the Charging Station in a prompt and professional manner.
• Ensure that labor is performed for repairs caused by vandalism or auto accidents that affect the Charging Stations functionality. For avoidance of doubt, labor is only covered for repairs required to enable the Charging Station to function. Parts are not covered for repairs required due to vandalism or auto accidents.
• Provide remot e, automated monitoring of your Charging Station and perform triage with respect to any Charging Station that may be defective.
• Coordinate all repairs necessary to have your Charging Station back up and running. • Ensure that you are provided a response no l ater than one business day from the date ChargePoint becomes aware of an issue.
• Ensure onsite repairs begin within one business day from the delivery of any parts required to fix your Charging Station.
• Provide a standard monthly summary and quarterly detailed station usage and performance metrics.
• Provide administration of your cloud service at no additional cost upon your request to ChargePoint Support. For purposes of Assure, “ administration” means that ChargePoint Support will act on your behalf to upda te or otherwise modify configuration in your cloud services, including but not limited to pricing, access controls, and reporting. c. Charging Station Uptime Commitment:

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ChargePoint, Inc. | 254 East Hacienda Ave | Campbell, CA 95008-6901 USA 408.841.4500 or toll-free 877.370.3802 | [email protected] | www.chargepoint.com Copyright © 2018 ChargePoint, Inc. – All rights reserved.

CHARGEPOINT is a U.S. registered trademark/service mark. All other products or services mentioned are the trademarks, service marks, registered trademarks or registered service marks of their respective owners.
• A 98% annual station uptime guarantee , meaning that the Charging Stations can dispense energy, with a prorated refund of up to the annual station Assure maintenance fee for outages caused by station hardware failures in excess of 2% annually.

2. WHAT IS NOT COVERED: ChargePoint undertakes no responsibility with respect to repairing, replacing, monitoring or servicing anything other than your Charging Stations. This means, for example, that ChargePoint is not responsible for the physical mounting and electrical wiring of your Charging Stations or for the performance of any cellular or Wi- Fi repeaters or other devices installed in connection with your Charging Stations. Additionally, Assure is not available for testing Charging Stations on non -commercially available vehicles. Assure labor is provided on an as available basis, per the requirements of Section 1 above.

3. FURTHER COSTS: If ChargePoint finds that the unit was not functioning, and is not otherwise covered by Assure subscription, than ChargePoint has the right to bill back for all costs incurred related to the warranty service (“Bill Back Costs”). For avoidance of doubt Bill B ack Costs can include costs for investigation, equipment rental, engineering, travel and other reasonable expenses that ChargePoint is required to spend to address a claim under Assure.

4. CUSTOMER RESPONSIBILITIES: In order to perform its obligations under Assure, ChargePoint needs your cooperation. Specifically, you agree to:
a. Provide reasonable access to ChargePoint or its designee as necessary for the performance of ChargePoint’s obligations.
b. Permit ChargePoint to access the Charging Stations remotely by maintaining a separately purchased Cloud Services subscription necessary for remote access.
c. Maintain your premises in accordance with all applicable laws, rules and regulations. d. Keep the areas in which Charging Stations are located in a clean, safe and orderly condition, to at least the same standard as you customarily use to maintain the remainder of your premises. e. Promptly notify ChargePoint of any suspected defect with a Charging Station. ChargePoint must have reasonable access to the Charging Station, including access to your requisite personnel, to address the service required.

5. WHO IS ELIGIBLE FOR CHARGEPOINT ASSURE?: ChargePoint Assure is only available to purchasers of Charging Stations, manufactured by ChargePoint, who purchase ChargePoint Assure and either: 1) use a ChargePoint Operations and Maintenance Partner (“O&M Partner”) to install their Charging Stations or 2) successfully complete a site validation or commissioning as described below.
a. ChargePoint O&M Partner Installation. For information on how to contact a ChargePoint O&M Partner, please contact your ChargePoint sales representative or authorized ChargePoint reseller for more details. b. Site Validation or Commissioning: If you do not use an O&M Partner to install your Charging Station, you still will be eligible for ChargePoint Assure after your installation has been validated by ChargePoint or an authorized third party (“Site Validation”) . ChargePoint may require you to purchase its full c ommissioning service (“Commissioning”) in lieu of Site Validation depending on what Charging Station product is you purchased. The purpose of Site Validation or Commissioning is to ensure that your Charging Stations were installed correctly, in accordance with ChargePoint’s recommended specifications and operational requirements. Site Validations or Commissioning require the payment of ChargePoint’s then current fee, charged on a “per station” basis.

6. EXCLUSIONS FROM COVERAGE: ChargePoint’s obligations under ChargePoint Assure shall not apply to defects or service repairs resulting from the following:
a. Cosmetic damage such as scratches and dents.
b. Normal aging or fading of colors due to exposure to the elements. c. Except as provided in 1(j) above, abuse, vandalism, damage or other problems caused by accidents or Item 1S - Page 38
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ChargePoint, Inc. | 254 East Hacienda Ave | Campbell, CA 95008-6901 USA 408.841.4500 or toll-free 877.370.3802 | [email protected] | www.chargepoint.com Copyright © 2018 ChargePoint, Inc. – All rights reserved.

CHARGEPOINT is a U.S. registered trademark/service mark. All other products or services mentioned are the trademarks, service marks, registered trademarks or registered service marks of their respective owners.
negligence (including but not limited to physical damage from being struck by a vehicle), or use of the Charging Station in a way other than as specified in the applicable Charge Point documentation. d. Installation, alteration, modification or relocation of the Charging Station that was not approved in writing by ChargePoint, performed by an O&M Partner or validated in the manner described above. e. Use of the Charging Station with software, interfacing, parts or supplies not supplied by ChargePoint. f. Vehicle to Charging Station interoperability or communication issues. g. Damage resulting from extreme power surge, extreme electromagnetic field or any other acts of nature. h. Force majeure or unforeseeable circumstances beyond ChargePoint’s reasonable control that prevent ChargePoint from performing its obligations under Assure.

In addition, ChargePoint’s obligations under ChargePoint Assure shall not apply to any Charging Station that was not installed by a ChargePoint O&M Partner or a ChargePoint certified installer pursuant to the provisions of Section 5 of this Agreement.

7. CONTACT INFORMATION: If at any time turning the term of your coverage of ChargePoint Assure you believe you have defective Charging Equipment, contact Customer Service at the Customer Service number provided to you by your Account Executive, and follow any mutually agreed upon issue reporting procedures.

8. SERVICE TERM: Each Assure subscription that you purchase for a Charging Station will commence ninety (90) days from the invoice date and will last for the subscription length selected in an applicable order (the “Service Term”). For greater certainty, to the extent an applicable Charging Station is delivered, installed, and activated before the Service Term commences as described above, your Charging Stations will nevertheless have coverage under Assure and the Service Term will start at the expiration of the ninety (90) day period referenced above.

9. RENEWAL: Upon expiration of your initial Service Term, your Assure coverage will renew automatically for successive one-year terms at the list price of the original Service Term, subject to increases and your right to terminate below (each a “Renewal Term”). Should the Renewal Term be cancelled and subsequently requested to be reinstated, reinstatement will be subject to the payment of fees for any lapse period, plus reasonable reinstatement fees. If, however, you wish to terminate your Assure coverage under a Renewal Term, you may do so by providing thirty (30) days’ written notice of cancellation and ChargePoint will issue a pro-rata refund of any funds paid from the effective date of cancellation to the end of the applicable Renewal Ter m. Renewal Terms will commence on the date of the expiration of the original Service Term.

10. PAYMENTS: ChargePoint will send you an invoice for your Assure coverage on or after the date the applicable Charging Stations are shipped to you. Payment is due within thirty (30) days of the invoice date. If you have purchased extended Assure coverage and have chosen the annual payment option, ChargePoint will invoice each annual payment on the anniversary date of your Assure coverage. All payments shall be made in U.S. Dollars (or if you are located in Canada, Canadian dollars) and may be made by check, wire transfer, ACH payment system or other means approved by ChargePoint. You may not offset any amounts due to ChargePoint hereunder against amounts due to you under this Agreement or any other agreement. Fees payable to ChargePoint do not include any Taxes, and you are responsible for any and all such Taxes. All payment obligations under this Agreement are non -cancelable and non-refundable. Late payments shall be subject to a charge equal to the lesser of (i) one and one-half percent (1.5%) per month or (ii) the maximum rate permitted by law. You will reimburse ChargePoint for attorneys’ fees and other expenses reasonably incurred by ChargePoint in the collection of any late payments. If any amount owing by you under this Agreement is more than thirty (30) days overdue, ChargePoint may, without otherwise limiting ChargePoint’s rights or remedies, (a) terminate this Agreement and (b) refuse to provide Assure covera ge until ChargePoint has received payment in full.

11. TERMINATION: You may terminate your Assure coverage without prejudice to any other remedy at law or equity: (i) if ChargePoint is in material breach of any of its obligations under Assure and has not cured such breach within thirty Item 1S - Page 39
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ChargePoint, Inc. | 254 East Hacienda Ave | Campbell, CA 95008-6901 USA 408.841.4500 or toll-free 877.370.3802 | [email protected] | www.chargepoint.com Copyright © 2018 ChargePoint, Inc. – All rights reserved.

CHARGEPOINT is a U.S. registered trademark/service mark. All other products or services mentioned are the trademarks, service marks, registered trademarks or registered service marks of their respective owners.
(30) days of the date of its receipt of written notice thereof or (ii) upon providing thirty (30) days prior written notice.

Upon termination for cause pursuant to this Section 11(i), ChargePoint will refund a pro-rata portion of the fees you paid for Assure. Upon any termination for any other reason, you will not be entitled to any refund of any fees paid.

12. TRANSFERS: Your Assure coverage applies only to the Charging Stations and installation site for which it was purchased. Subject to Section 20 of this Agreement, if you sell or otherwise transfer your Charging Stations with an active Assure subscription to a third -party, and those Charging Stations are moved or otherwise transferred away from the original installation site, your Assure coverage may not be transferred without ChargePoint’s prior written consent.

13. REPLACEMENT PARTS AND STATIONS: Replacement parts or Charging Stations that have been replaced (collectively “Replacement Parts”) that are provided by ChargePoint pursuant to your Assure coverage may be remanufactured or reconditioned parts or Charging Stations or, if the exact Charging Station is no longer manufactured by ChargePoint, a Charging Station with substantially similar functionality. Any Replacement Parts provided under your Assure coverage will become your property and all returned parts or returned Charging Stations , whether under warranty or not, will become the property of ChargePoint. Any Replacement Parts will be covered by Assure for the remainder of your Assure coverage or ninety (90) days from the date of delivery of such Replacement Parts, whichever is later.

14. LIMITS ON LIABILITY: This section limits ChargePoint’s liability under Assure. Please read it carefully. a. CHARGEPOINT IS NOT LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR

CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, LOST BUSINESS,

LOST DATA, LOSS OF USE, OR COST OF COVER INCURRED BY YOU ARISING OUT OF OR RELATED

TO YOUR PURCHASE OR USE OF, OR INABILITY TO USE, THE CHARGING STATION, UNDER ANY

THEORY OF LIABILITY, WHETHER IN AN ACTION IN CONTRACT, STRICT LIABILITY, TORT (INCLUDING NEGLIGENCE) OR OTHE R LEGAL OR EQUITABLE THEORY, EVEN IF CHARGEPOINT KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, THE

CUMULATIVE LIABILITY OF CHARGEPOINT FOR ALL CLAIMS WHATSOEVER RELATED TO

PERFORMANCE BY CHARGEPOINT OF ITS OBLIGATIONS UNDER CH ARGEPOINT ASSURE WILL NOT EXCEED THE PRICE YOU PAID FOR ASSURE. THE LIMITATIONS SET FORTH HEREIN ARE

INTENDED TO LIMIT THE LIABILITY OF CHARGEPOINT AND SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
b. Some states or jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you.

15. GOVERNING LAW, JURISDICTION AND DISPUTE RESOLUTION. The ChargePoint entity entering into this Agreement, the address to which you should direct notices under this Agreement, the governing law, and place of jurisdiction, shall be determined according to you are domiciled:

If you are
domiciled in:

The ChargePoint
Entity entering
into this
Agreement is:

Notices should
be addressed to:

Governing law
is:

Place of
jurisdiction:

Forum:

The United States
of America
ChargePoint, Inc.,
a Delaware
corporation
Attn: Legal
Department
ChargePoint, Inc.
254 E Hacienda
Ave
California and
controlling United
States federal law
Santa Clara,
California, U.S.A.

Judicial Arbitration
and Mediation
Services, Inc.
(JAMS)
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ChargePoint, Inc. | 254 East Hacienda Ave | Campbell, CA 95008-6901 USA 408.841.4500 or toll-free 877.370.3802 | [email protected] | www.chargepoint.com Copyright © 2018 ChargePoint, Inc. – All rights reserved.

CHARGEPOINT is a U.S. registered trademark/service mark. All other products or services mentioned are the trademarks, service marks, registered trademarks or registered service marks of their respective owners.

Campbell, CA
95008
Canada ChargePoint
Canada, Inc., a
British Columbia
corporation
TBD British Columbia
and controlling
Canadian federal
law
Vancouver, British
Columbia, Canada
ADR Institute of
Canada
This Agreement, and any disputes related to this Agreement, will be governed by the applicable Governing Laws above, without regard to conflicts of laws rules or the United Nations Convention on the International Sale of Goods.

Except with respect to any matter relating to your violation of the intellectual property rights of ChargePoint, any disputes, actions, claims or causes of action arising out of or in connection with this Agreement shall be submitted to and finally settled by arbitration using the English language in accordance with the Arbitration Rules and Procedures of the applicable Forum above then in effect, by one or more commerc ial arbitrator(s) with substantial experience in the industry and in resolving complex commercial contract disputes. Judgment upon the award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial acc eptance of any award and an order of enforcement, as the case may be. All claims shall be brought in the parties’ individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. With respect to any matter relating to the intellectual property rights of ChargePoint, such claim may be litigated in a court of competent jurisdiction. The prevailing party in any dispute arising out of this Agreement shall be entitled to reasonable attorneys’ fees and costs. Notwithstanding the foregoing, each party shall have the right to institute an action in any court of proper jurisdiction for injunctive relief.

16. AMENDMENT OR MODIFICATION: This Agreement may not be amended or modified except pursuant to a writing executed by each of the parties.

17. WAIVER: The failure of either Party at any time to enforce any provision of this Agreement shall not be construed to be a waiver of the right of such Party to thereafter enforce that provision or any other provision or right.

18. FORCE MAJEURE: ChargePoint will not be liable for failure to perform any of its obligations hereunder due to causes beyond its reasonable control and occurring without its fault or negligence, including but not limited to fire, flood, earthquake or other natural disaster (irrespective of ChargePoint’s condition of any preparedness therefore); war, embargo; riot; strike; labor action; any lawful order, decree, or other directive of any government authority that prohibits ChargePoint from performing its obligations under this Agreement; material shortages; shortage of transport; and failures of suppliers to deliver material or components in accordance with the terms of their contracts.

19. SEVERABILITY. Except as otherwise specifically provided herein, if any term or condition of this Agreement or the application thereof to either Party will to any extent be determined jointly by the Parties or by any judicial, governmental or similar authority, to be invalid or unenforceable, the remainder of this Agreement, or the application of such term or provision to this Agreement, the Parties or circumstances other than those as to which it is determined to be invalid or unenforceable, will not be affected thereby.

20. ASSIGNMENT. Except as otherwise provided under this Agreement, you may not assign any of your rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of ChargePoint.

Notwithstanding, you may assign your rights and obligations under this Agreement upon notice to ChargePoint if you sell the property where the Charging Stations were installed, provided that any such purchasing entity assumes all rights and obligations under this Agreement; provided further that, the purchasing entity will not move or otherwise transfer the Charging Stations from original installation site. To the extent the purchasing entity desires to move or otherwise transfer the Charging Stations from the original installation site, Section 12 of this Agreement will apply. In the event of any purported assignment in breach of this Section 20, ChargePoint shall be entitled, at its sole discretion, to terminate this Agreement by providing written notice to you. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns. ChargePoint may assign its rights and obligations under this Agreement.

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ChargePoint, Inc. | 254 East Hacienda Ave | Campbell, CA 95008-6901 USA 408.841.4500 or toll-free 877.370.3802 | [email protected] | www.chargepoint.com Copyright © 2018 ChargePoint, Inc. – All rights reserved.

CHARGEPOINT is a U.S. registered trademark/service mark. All other products or services mentioned are the trademarks, service marks, registered trademarks or registered service marks of their respective owners.

21. ENTIRE AGREEMENT. This Agreement contains the entir e agreement between the parties with respect to the subject matter hereof and supersedes and cancels all previous and contemporaneous agreements, negotiations, commitments, understandings, representations and writings. To the extent of any conflict or inconsistency between this Agreement and any purchase order, this Agreement shall prevail.

22. COUNTERPARTS. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which, taken together, shall constitute but one and the same document.

23. ENGLISH LANGUAGE AGREEMENT GOVERNS. Where ChargePoint has provided you with a translation of the English language version of this Agreement, You agree that the translation is provided for your convenience only and that the English language version of this Agreement governs your relationship with ChargePoint. If there is any conflict between the English language version of this Agreement. It is the express wish of the Parties that this Agreement and all related documents, including notices and other communications, be drawn up in the English language only. Il est la volonté expresse des parties que cette convention et tous les documents s’y rattachant, y compris les avis et les autres communications, soient rédigés et signés en anglais seulement.

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CHARGEPOINT®

MASTER SERVICES AND SUBSCRIPTION AGREEMENT

IMPORTANT: THIS MASTER SERVICES AND SUBSCRIPTION AGREEMENT IS A LEGAL AGREEMENT

BETWEEN YOU OR THE CORPORATION, PARTNERSHIP OR OTHER LEGAL ENTITY YOU REPRESENT (“SUBSCRIBER”) AND THE APPLICABLE CHARGEPOINT ENTITY OR ENTITIES (“ CPI”) WHICH CAN BE FOUND IN SECTION 11.4 BELOW. PLEASE READ IT CAREFULLY. BY USING ANY OF THE CHARGEPOINT SERVICES, YOU INDICATE YOUR ACCEPTANCE OF THIS AGREEMENT. IF YOU DO NOT AGREE WITH ANY OF THESE TERMS AND CONDITIONS, DO NOT USE ANY CHARGEPOINT SERVICES.

IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A CORPORATION, PARTNERSHIP OR

OTHER LEGAL ENTITY, THAT ENTITY REPRESENTS THAT YOU HAVE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY TO BIND SUCH ENTITY TO

THESE TERMS AND CONDITIONS, YOU MAY NOT ENTER INTO THIS AGREEMENT AND SUCH ENTITY MAY NOT USE THE CHARGEPOINT SERVICES.

1. AGREEMENT.

1.1 SCOPE OF AGREEMENT. This Agreement governs the following activities:
(a) Provisioning of Subscriber’s Charging Station(s), if any, on ChargePoint; (b) Activation and use of the ChargePoint Services on Subscriber’s Charging Station(s), if any;
(c) Subscriber’s use of the APIs as part of the ChargePoint Services; (d) Each grant of Rights by Subscriber; and
(e) Each grant of Rights by a third party to Subscriber.

1.2 EXHIBITS AND PRIVACY POLICY . This Agreement includes the CPI Privacy Policy , as amended from time to time, and the following Exhibits, which are made a part of, and are hereby incorporated into, this Agreement by reference.

Exhibit 1: Flex Billing Terms
Exhibit 2: API Terms
Exhibit 3: Terms Regarding Granting and Receipt of Rights

In the event of any conflict between the terms of this Agreement on the one hand, and the Privacy Policy or any Exhibit on the other hand, this Agreement shall govern. Capitalized terms not otherwise defined in any Exhibit or the Privacy Policy shall have the same meaning as in this Agreement.

2. DEFINITIONS. The following terms shall have the definition s set forth below when used in this Agreement:

2.1 “Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control”, for purposes of this definition, means direct or indirect ownership or control of fifty percent (50%) or more of the voting interests of the subject entity.

2.2 "APIs" means, individually or collectively, the application programming interfaces which are made available to Subscriber from time to time, as and when updated by CPI.

2.3 “ChargePoint Connections” shall have the meaning ascribed to it in the applicable data sheet. The term ChargePoint Connections shall also mean any successor service provided by CPI.

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2.4 “ChargePoint®” means the open -platform network of electric vehicle charging stations and the vehicle charging applications the network delivers, that is operated and maintained by CPI (as defined below) in order to provide various services to, among others, Subscriber and its employees.

2.5 “ChargePoint Services” means, collectively, the various cloud services offerings (including, without limitation, APIs and application Cloud Plans) made available for subscription by CPI.

2.6 “ChargePoint Application” means any of the applications established and maintained by CPI which will allow Subscriber to access ChargePoint Services.

2.7 “Charging Station ” means the electric vehicle charging station(s) purchased by Subscriber, whether manufactured by CPI or by a CPI authorized entity, which are registered and activated on ChargePoint.

2.8 "Content" means all data collected or maintained by CPI in connection with the operation of ChargePoint.

2.9 “CPI Marks” means the various trademarks, service marks, trade names, logos, domain names, and other distinctive brand features and designations used in connection with ChargePoint and/or CPI manufactured Charging Stations, including without limitation, ChargePoint.

2.10 “CPI Property” means (i) ChargePoint, (ii) the ChargePoint Services (including all Content), (iii) all data generated or collected by CPI in connection with the operation of ChargePoint and ChargePoint Services, (iv) the CPI Marks, (v) the ChargePoint Cards, and (vi) all other CPI-supplied material developed or provided by CPI for Subscriber use in connection with the ChargePoint Services.

2.11 “Documentation” means written information (whether contained in user or technical manuals, product materials, specifications or otherwise) pertaining to ChargePoint Services and/or ChargePoint and made available from time to time by CPI to Subscriber in any manner (including on-line).

2.12 “Effective Date” means the earliest of (a) the effective date of Subscriber’s initial quote for the ChargePoint Station and/or ChargePoint Services associated with this Agreement; (b) the date that Subscriber electronically accepts this Agreement, or ( c) the date of Subscriber’s first use of the ChargePoint Services.

2.13 “Intellectual Property Rights ” means all intellectual property rights, including, without limitation, patents, patent applications, patent rights, trademarks, trademark applications, trade names, service marks, service mark application s, copyrights, copyright applications, franchises, licenses, inventories, know-how, trade secrets, Subscriber lists, proprietary processes and formulae, all source and object code, algorithms, architecture, structure, display screens, layouts, inventions, development tools and all documentation and media constituting, describing or relating to the above, including, without limitation, manuals, memoranda and records.

2.14 “Malicious Code” means viruses, worms, time bombs, Trojan horses and all other forms of malicious code, including without limitation, malware, spyware, files, scripts, agents or programs.

2.15 “Party” means each of CPI and Subscriber.

2.16 “PII” means personally identifiable information regarding Subscriber or a User (e.g., name, address, email address, phone number or credit card number) that can be used to uniquely identify, contact or locate Subscriber or such User.

2.17 “Provisioning” means activat ing Charging Stations, warrantees and Cloud Plans on ChargePoint.

2.18 “Rights” means the rights, authorizations, privileges, actions, information and settings within the ChargePoint Services which a Rights Grantor grants to an Rights Grantee, to enable such Rights Item 1S - Page 44

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Grantee to access, obtain and use certain portions of the ChargePoint Services and certain information available therein in the course of providing services to or on behalf of such Rights Grantor in connection with one or more of the Rights Grantor’s Charging Stations. A Rights Grantor shall be deemed to have granted Rights to the entity that will be responsible for creating Subscriber’s account and Provisioning Subscriber’s Charging Stations. Such deemed grant may be terminated by Subscriber at any time.

2.19 “Cloud Plan(s)” means subscription plans to the ChargePoint Services which are offered and sold by CPI from time to time, which vary according to their features, privileges and pricing. Each Cloud Plan may be referred to as a “Subscription”.

2.20 “Subscriber Content and Services” means any content and/or services that a Subscriber provides or makes available to Users and/or the general public in connection with the ChargePoint Services, other than Content, ChargePoint Services and CPI Property.

2.21 “Subscriber Marks” means the various trademarks, service marks, trade names, logos, domain names, and other distinctive brand features and designations used by Subscriber in connection with its business and/or Charging Stations.

2.22 “Subscription Fees” means the fees payable by Subscriber for subscribing to any ChargePoint Services.

2.23 “Taxes” shall mean all present and future taxes, imposts, levies, assessments, duties or charges of whatsoever nature including without limitation any withholding taxes, sales taxes, u se taxes, service taxes, value added or similar taxes at the rate applicable for the time being imposed by any national or local government, taxing authority, regulatory agency or other entity together with any penalty payable in connection with any failur e to pay or any delay in paying any of the same and any interest thereon.

2.24 “User” means any person using a Charging Station.

3. AVAILABLE CHARGEPOINT SERVICES & CLOUD PLANS . A description of the various ChargePoint Services and Cloud Plans currently available for subscription is located on the CPI website. CPI may make other ChargePoint Services and/or Cloud Plans available from time to time, and may amend the features or benefits offered with respect to any ChargePoint Service or Cloud Plan at any time and fro m time to time. Subscription Fees are based on Subscriber’s choice of Cloud Plan and not on actual usage of the Subscription.

4. CPI’S RESPONSIBILITIES AND AGREEMENTS.

4.1 OPERATION OF CHARGEPOINT. CPI agrees to provide and shall be solely responsible for:
(i) provisioning and operating, maintaining, administering and supporting ChargePoint and related infrastructure (other than Subscriber’s Charging Stations and infrastructure for transmitting data from Charging Stations to any ChargePoint operations center); ( ii) provisioning and operating, maintaining, administering and supporting the ChargePoint Applications; and (iii) operating ChargePoint in compliance with all applicable laws. CPI will protect the confidentiality and security of PII in accordance with all applicable laws and regulations and the CPI Privacy Policy and acknowledges that it is responsible for the security of “cardholder data” (as that term is defined for purposes of the Payment Card Industry – Data Security Standards), if any, that CPI pos sesses, otherwise stores, processes or transmits on behalf of Subscriber or for any impact, if any, on the security of Subscriber’s cardholder data environment.

4.2 LIMITATIONS ON RESPONSIBILITY. CPI shall not be responsible for, and makes no representation or warranty with respect to the following: (i) specific location(s) or number of Charging Stations now, or in the future, owned, operated and/or installed by persons other than Subscriber, or the total number of Charging Stations that comprise ChargePoint; ( ii) continuous availability of electrical service to any of Subscriber’s Charging Stations; (iii) continuous availability of any wireless or cellular Item 1S - Page 45

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communications network or Internet service provider network necessary for the continued operation by CPI of ChargePoint; (iv) availability of or interruption of the ChargePoint Network attributable to unauthorized intrusions; and/or (v) charging stations that are not registered wit h and activated on the ChargePoint Network.

5. SUBSCRIBER’S RESPONSIBILITIES AND AGREEMENTS.

5.1 GENERAL.
(a) All use of ChargePoint and ChargePoint Services by Subscriber, its employees and agents and its grantees of Rights shall comply with this Agreement and all of the rules, limitations and policies of CPI set forth in the Documentation. All ChargePoint Services account details, passwords, keys, etc. are granted to Subscriber solely for Subscriber’s own use (and the use of its grantees of Rights), and Subscriber shall keep all such items secure and confidential. Subscriber shall prevent, and shall be fully liable to CPI for, any unauthorized access to or use of ChargePoint or ChargePoint Services via Subscriber’s Charging Stations, ChargePoint Services account(s) or other equipment. Subscriber shall immediately notify CPI upon becoming aware of any such unauthorized use. (b) Subscriber shall be solely responsible for: (i) Provisioning of its Charging Stations, if any; (ii) keeping Subscriber’s contact information, email address for the receipt of notices hereunder, and billing address for invoices both accurate and up to date; (iii) updating on the applicable ChargePoint Application, within five (5) business days, the location to which any of Subscriber’s Charging Stat ions are moved; (iv) the maintenance, service, repair and/or replacement of Subscriber’s Charging Stations as needed, including informing CPI of the existence of any Charging Stations that are non -operational and not intended to be replaced or repaired by Subscriber; and (v) compliance with all applicable laws. (c) Subscriber shall deliver in full all benefits promised to Users by Subscriber in exchange for such Users connecting with Subscriber using ChargePoint Connections.

5.2 REPRESENTATIONS AND WARRANTIES OF SUBSCRIBER. Subscriber represents and warrants to CPI that: (i) it has the power and authority to enter into and be bound by this Agreement and shall have the power and authority to install the Charging Stations and any other electrical vehicle charging products which are registered and activated on the ChargePoint Network); (ii) the electrical usage to be consumed by Subscriber’s Charging Stations will not violate or otherwise conflict with the terms and conditions of an y applicable electrical purchase or other agreement including, without limitation, any lease, to which Subscriber is a party; and (iii) it has not installed or attached and will not install or attach Charging Stations on or to infrastructure not owned by S ubscriber without proper authority, or in a manner that will block any easement or right of way.

5.3 CHARGEPOINT CARDS. Subscriber may be permitted by CPI, in CPI's sole discretion, to obtain CPI -provisioned radio -frequency identification cards ("ChargePoint C ards") which enable the individual card recipients to access and use ChargePoint. Subscriber may distribute such ChargePoint Cards to individuals, and each individual ChargePoint Card recipient is responsible for activating his or her ChargePoint Card on ChargePoint directly with CPI on the CPI web site. In no event will Subscriber create any separate ChargePoint accounts for any ChargePoint Card recipients or other third parties, nor will Subscriber create anonymous ChargePoint accounts associated with any ChargePoint Card.

5.4 USE RESTRICTIONS AND LIMITATIONS. Subscriber shall not:
(a) sell, resell, license, rent, lease or otherwise transfer the ChargePoint Services or any Content therein to any third party;
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(b) interfere with or disrupt the ChargePoint Services, servers, or networks connected to the ChargePoint Services, or disobey any requirements, procedures, policies, or regulations of networks connected to the ChargePoint Services;
(c) restrict or inhibit any other user from using and enjoyin g the ChargePoint Services or any other CPI services;
(d) attempt to gain unauthorized access to the ChargePoint Network or the ChargePoint Services or related systems or networks or any data contained therein, or access or use ChargePoint or ChargePoint Services through any technology or means other than those provided or expressly authorized by CPI;
(e) create any ChargePoint Services user account by automated means or under false or fraudulent pretenses, or impersonate another person or entity on ChargePoint, or obtain or attempt to obtain multiple keys for the same URL;
(f) reverse engineer, decompile or otherwise attempt to extract the source code of the ChargePoint Services or any part thereof, or any Charging Station, except to the extent expressly permitted or required by applicable law;
(g) create derivative works based on any CPI Property;
(h) remove, conceal or cover the CPI Marks or any other markings, labels, legends, trademarks, or trade names installed or placed on the Charging Stations or any peripheral equipment for use in connection with Subscriber’s Charging Stations;
(i) use or permit use, by an act or omission, ChargePoint’s trademarks or other intellectual property in any manner that degrades, disparages or reflects adversely on ChargePoint or its business or reputation or that would be detrimental to the ChargePoint trademarks or their associated goodwill; (j) except as otherwise expressly permitted by this Agreement or in any applicable data sheet relating to a ChargePoint Service, copy, frame or mirror any part of the ChargePoint Services or ChargePoint Content, other than copying or framing on Subscriber’s own intranets or otherwise solely for Subscriber’s own internal business use and purposes;
(k) access ChargePoint, any ChargePoint Application or the ChargePoint Services for the purpose of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purpose, or for any improper purpose whatsoever, includ ing, without limitation, in order to build a competitive product or service or copy any features, functions, interface, graphics or “look and feel;”
(l) use any robot, spider, site search/retrieval application, or other device to retrieve or index any portion of the ChargePoint Services or Content or collect information about ChargePoint users for any unauthorized purpose;
(m) upload, transmit or introduce any Malicious Code to ChargePoint or ChargePoint Services;
(n) use any of the ChargePoint Services if Subscriber is a person barred from such use under the laws of the United States, Canada, or of any other jurisdiction; or (o) use the ChargePoint Services to upload, post, display, transmit or otherwise make available (A) any inappropriate, defamatory, obscene, or unlawful content; (B) any content that infringes any patent, trademark, copyright, trade secret or other proprietary right of any party; (C) any messages, communication or other content that promotes pyramid schemes, chain letters, constitutes disruptive commercial messages or advertisements, or is prohibited by applicable law, the Agreement or the Documentation.

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5.5 CONTENT.
(a) ChargePoint Content (including but not limited to Charging Station data and status) is provided for planning purposes only. Subscriber may find that various events may mean actual Charging Station conditions (such as availability or pricing) differ from what is set forth in the Content. In addition, certain Charging Station-related Content, including Charging Station name and u se restrictions, is set by the Charging Station owner and is not verified by CPI. Subscriber should exercise judgment in Subscriber’s use of the Content.

(b) Certain Content may be provided under license from third parties and is subject to copyright and other intellectual property rights of such third parties. Subscriber may be held liable for any unauthorized copying or disclosure of such third party-supplied Content. Subscriber’s use of such Content may be subject to additional restrictions set forth in the Documentation. (c) Subscriber shall not copy, modify, alter, translate, amend, or publicly display any of the Content except as expressly permitted by the Documentation. Subscriber shall not present any portion of the Content in any manner, that would (i) make such Content false, inaccurate or misleading, (ii) falsify or delete any author attributions or labels of the origin or source of Content, or (iii) indicate or suggest that the Charging Station locations provided as part of the Content are anythin g other than ChargePoint® Network Charging Stations.

(d) Subscriber shall not remove, obscure, or alter in any manner any proprietary rights notices (including copyright and trademark notices), warnings, links or other notifications that appear in the ChargePoint Service.

6. SUBSCRIPTION FEES AND PAYMENT TERMS.

6.1 SUBSCRIPTION FEES. If Subscriber is invoiced for the Services, Subscriber shall pay all Subscription Fees within thirty (30) days of its receipt of CPI’s invoice. All payments shall be made in U.S.

Dollars (or, if Subscriber is located in Canada, Canadian Dollars) by check, wire transfer, ACH payment system or other means approved by CPI or if applicable, as described in CPI’s credit card policy. Customer may not offset any amounts due to CPI hereunder against amounts due to Customer under this Agreement or any other agreement. Subscription fees payable to CPI do not include any Taxes imposed thereon, and Subscriber is responsible for any and all such Taxes. All such Taxes shall be set forth on the invoice provided by CPI to Subscriber; provided that, CPI’s failure to include any such Tax on an invoice shall not relieve Subscriber’s liability therefor. Except as otherwise set forth in this Agreeme nt, all payment obligations under this Agreement are non- cancelable and non-refundable.

6.2 LATE PAYMENTS. Late payments shall be subject to a charge equal to the lesser of (i) one and one -half percent (1.5%) per month or (ii) the maximum rate permitted by la w. Subscriber will reimburse CPI for attorneys’ fees and other expenses reasonably incurred by CPI in the collection of any late payments. If any amount owing by Subscriber under this Agreement is more than thirty (30) days overdue, CPI may, without otherwise limiting CPI’s rights or remedies, (a) terminate this Agreement, (b) suspend the use by Subscriber of the ChargePoint Services until such amounts are paid in full, and/or (c) condition future ChargePoint Service renewals and other Subscriber purchases on payment terms other than those set forth herein; provided that CPI shall not exercise any such rights if Subscriber has reasonably disputed such charges and is cooperating diligently in good faith to resolve the dispute.

7. INTELLECTUAL PROPERTY RIGHTS AND LICENSES.

7.1 CPI PROPERTY. As between CPI and Subscriber, CPI retains and reserves all right, title and interest (including all related Intellectual Property Rights) in and to the CPI Property and any Item 1S - Page 48

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improvements thereto. No rights are granted to Subscriber in the CPI Property hereunder except as expressly set forth in this Agreement.

7.2 SUBSCRIBER PROPERTY. As between CPI and Subscriber, Subscriber retains and reserves all right, title and interest (including all related Intellectual Prope rty Rights) in and to (i) all Subscriber Marks and (ii) all Subscriber Content and Services (collectively, the “Subscriber Property”). No rights are granted to CPI in the Subscriber Property hereunder except as expressly set forth in this Agreement.

7.3 LIMITED LICENSE TO SUBSCRIBER. CPI hereby grants to Subscriber a royalty -free, non- assignable, non-transferable, and non-exclusive license to use the CPI Property solely in accordance with the terms of this Agreement (including without limitation all limitation s and restrictions on such use) to the extent necessary for Subscriber to access, use and receive the ChargePoint Services as permitted herein.

7.4 LIMITED LICENSE TO CPI. Subscriber hereby grants to CPI a non -assignable, non - transferable, and non-exclusive license to use the Subscriber Property solely in accordance with the terms of this Agreement (including without limitation all limitations and restrictions on such use) to the extent necessary for CPI to provide the ChargePoint Services. CPI may utilize the Subscriber Marks to advertise that Subscriber is using the ChargePoint Services. The foregoing license includes a perpetual and irrevocable right of CPI to reproduce, adapt, modify, translate, publicly perform, publicly display and distribute all Subscrib er Content and Services submitted, posted or displayed by Subscriber in the ChargePoint Services, solely for the purpose of enabling CPI to operate, market and promote the ChargePoint Services, and to index and serve such Subscriber Content and Services as search results through ChargePoint Services. CPI shall have a royalty -free, worldwide, transferable, sublicensable, irrevocable perpetual license to use or incorporate in the ChargePoint Services any suggestions, enhancement requests, recommendations or other feedback provided by Subscriber or Subscriber Rights Grantees relating to the ChargePoint Services.

7.5 ADDITIONAL TERMS REGARDING CPI MARKS.
(a) USE LIMITATIONS . Subscriber shall display the CPI Marks in connection with Subscriber Charging Stations as required in this Agreement during the term of Subscriber’s Cloud Plan.

Subscriber shall not use any of the CPI Marks for or with any products other than its Charging Stations.

From time to time, CPI may provide updated CPI Mark usage guidelines on the ChargePoint Application or elsewhere in the Documentation, and Subscriber shall thereafter comply with such updated guidelines. For any use of the CPI Mark not authorized by such guidelines, or if no such guidelines are provided, then for each initial use of the CPI Mark, Subscriber must obtain CPI’s prior written consent, which shall not be unreasonably withheld or delayed, and after such consent is obtained, Subscriber may use the CPI Mark in the approved manner. All use by Subscriber of CPI's Marks (including any goodwill associated therewith) will inure to the benefit of CPI.
(b) PROHIBITIONS. Subscriber shall not use or display any CPI Mark (or any likeness of a CPI Mark):
(i) as a part of the name under which Subscriber’s business is conducted or in connection with the name of a business of Subscriber or its Affiliates; (ii) in any manner that (x) implies a relationship or affiliation with CPI other than as described under the Agreement, (y) implies any sponsorship or endorsement by CPI, or (z) can be reasonably interpreted to suggest that any Subscriber Content and Services has been authored by, or represents the views or opinions of CPI or CPI personnel; Item 1S - Page 49

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(iii) in any manner intended to disparage CPI, ChargePoint, or the ChargePoint Services, or in a manner that is misleading, defamatory, infringing, libelous, disparaging, obscene or otherwise objectionable to CPI;
(iv) in any manner that violates any law or regulation; or

(v) that is distorted or altered in any way (including squeezing, stretching, inverting, discoloring, etc.) from the original form provided by CPI; or

(vi) on any Charging Station that, after ten (10) days’ written notice from ChargePoint, continues to malfunction or is otherwise improperly maintained in a manner that ChargePoint reasonably determines reflects poorly on ChargePoint or is likely to cause harm to ChargePoint’s brand, reputation or business. If any Charging Station continues to malfunction or is otherwise improperly maintained as such, in addition to any other remedies available to it under this Agreement or under applicable law , ChargePoint shall have the right to have the Charging Station not discoverable or visible by the general public, including but not limited to ChargePoint account holders, on any interface (e.g., mobile application) that accesses the ChargePoint Network.

(c) NO REGISTRATION OF CPI MARKS. Subscriber shall not, directly or indirectly, register or apply for, or cause to be registered or applied for, any CPI Marks or any patent, trademark, service mark, copyright, trade name, domain name or registered design that is substantially or confusingly similar to a CPI Mark, patent, trademark, service mark, copyright, trade name, domain name or registered design of CPI, or that is licensed to, connected with or derived from confidential, material or proprietary information imparted to or licensed to Subscriber by CPI. At no time will Subscriber challenge or assist others to challenge the CPI Marks (except to the extent such restrict ion is prohibited by law) or the registration thereof by CPI.
(d) REMOVAL OF CPI MARKS FROM SUBSCRIBER CHARGING STATIONS. If at any time Subscriber fails to comply with any of the prohibitions set forth in Section 7.5(b) or any restrictions set forth in Section 5.4, ChargePoint shall have the right, in addition to any other remedies available to it under this Agreement or under applicable law, upon five (5) days’ written notice to Subscriber, to itself or through a third-party representative, without notice to or additional permission from Subscriber, enter Subscriber’s premises for the purpose of removing or covering any or all CPI Marks, which may include covering the Subscriber Charging Station in its entirety.

(e) TERMINATION AND CESSATION OF USE OF CPI MARKS. Upon termination of this Agreement, Subscriber will immediately discontinue all use and display of all CPI Marks.

8. LIMITATIONS OF LIABILITY.

8.1 DISCLAIMER OF WARRANTIES. CHARGEPOINT AND THE CHARGEPOINT SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” FO R SUBSCRIBER’S USE, WITHOUT WARRANTIES OF ANY KIND,

EITHER EXPRESS OR IMPLIED, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT. WITHOUT LIMITING THE FOREGOING, CPI DOES NOT WARRANT THAT (A) SUBSCRIBER’S USE OF THE CHARGEPOINT SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, FREE FROM ERROR, OR MEET SUBSCRIBER’S REQUIREMENTS; (B) ALL CONTENT AND

OTHER INFORMATION OBTAINED BY SUBSCRIBER FROM OR IN CONNECTION WITH THE CH ARGEPOINT SERVICES WILL BE ACCURATE AND RELIABLE; (C) ALL DEFECTS IN THE OPERATION OR FUNCTIONALITY OF THE CHARGEPOINT SERVICES WILL BE CORRECTED. ALL CONTENT OBTAINED THROUGH THE CHARGEPOINT SERVICES IS OBTAINED AT SUBSCRIBER’S OWN DISCRETION AND RISK, AN D SUBSCRIBER Item 1S - Page 50

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WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO SUBSCRIBER’S COMPUTER SYSTEM OR OTHER

DEVICE, LOSS OF DATA, OR ANY OTHER DAMAGE OR INJURY THAT RESULTS FROM THE DOWNLOAD OR USE OF ANY SUCH CONTENT.

8.2 EXCLUSION OF CONSEQUENTIAL AND RELATED DAMAGES . REGARDLESS OF WHETHER

ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE, IN NO EVENT WILL

CPI BE LIABLE FOR ANY LOST REVENUE OR PROFIT, LOST OR DAMAGED DATA, BUSINESS INTERRUPTION,

LOSS OF CAPITAL, OR FOR SPECIAL, INDIRECT, CONSEQUENTI AL, INCIDENTAL OR PUNITIVE DAMAGES,

HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY OR WHETHER ARISING OUT OF THE

USE OF OR INABILITY TO USE THE CHARGEPOINT NETWORK, ANY CHARGEPOINT SERVICES, THIS

AGREEMENT, A GRANT OR RECEIPT OF RIGHTS OR OTHERWI SE OR BASED ON ANY EXPRESSED, IMPLIED OR CLAIMED WARRANTIES BY SUBSCRIBER NOT SPECIFICALLY SET FORTH IN THIS AGREEMENT.

8.3 ELECTRICAL, CELLULAR AND INTERNET SERVICE INTERRUPTIONS. Neither CPI nor Subscriber shall have any liability whatsoever to the other with respect to damages caused by: (i) electrical outages, power surges, brown -outs, utility load management or any other similar electrical service interruptions, whatever the cause; (ii) interruptions in wireless or cellular service linking Charging Stations to ChargePoint; (iii) interruptions attributable to unauthorized ChargePoint Network intrusions; (iv) interruptions in services provided by any Internet service provider not affiliated with CPI; or (v) the inability of a Charging Station to access ChargePoint as a result of any change in product offerings (including, without limitation, the any network upgrade or introduction of any “next generation” services) by any wireless or cellular carrier. This includes the loss of data resulting from such electrical, wireless, cellular or Internet service interruptions.

8.4 LIMITATION OF LIABILITY. CPI’s aggregate liability under this Agreement shall not exceed aggregate Subscription Fees paid by Subscriber to CPI in the twelve (12) calendar months prior t o the event giving rise to the liability.

8.5 CELLULAR CARRIER LIABILITY. IN ORDER TO DELIVER THE CHARGEPONT SERVICES, CPI

HAS ENTERED INTO CONTRACTS WITH ONE OR MORE UNDERLYING WIRELESS SERVICE CARRIERS (THE “UNDERLYING CARRIER”). SUBSCRIBER HAS NO CONTRACTUA L RELATIONSHIP WITH THE UNDERLYING

CARRIER AND SUBSCRIBER IS NOT A THIRD PARTY BENEFICIARY OF ANY AGREEMENT BETWEEN CPI AND THE UNDERLYING CARRIER. SUBSCRIBER UNDERSTANDS AND AGREES THAT THE UNDERLYING CARRIER

HAS NO LIABILITY OF ANY KIND TO SUBSCRIBER, WH ETHER FOR BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE. SUBSCRIBER AGREES TO INDEMNIFY AND HOLD

HARMLESS THE UNDERLYING CARRIER AND ITS OFFICERS, EMPLOYEES, AND AGENTS AGAINST ANY AND

ALL CLAIMS, INCLUDING WITHOUT LIMITAT ION CLAIMS FOR LIBEL, SLANDER, OR ANY PROPERTY

DAMAGE, PERSONAL INJURY OR DEATH, ARISING IN ANY WAY, DIRECTLY OR INDIRECTLY, IN CONNECTION

WITH USE, FAILURE TO USE, OR INABILITY TO USE THE WIRELESS SERVICES EXCEPT WHERE THE CLAIMS RESULT FROM THE UNDERLYIN G CARRIER’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. THIS INDEMNITY WILL SURVIVE THE TERMINATION OF THE AGREEMENT. SUBSCRIBER HAS NO PROPERTY

RIGHT IN ANY NUMBER ASSIGNED TO IT, AND UNDERSTANDS THAT ANY SUCH NUMBER CAN BE CHANGED. SUBSCRIBER UNDERSTANDS THAT CPI AND THE UNDERLYING CARRIER CANNOT GUARANTEE

THE SECURITY OF WIRELESS TRANSMISSIONS, AND WILL NOT BE LIABLE FOR ANY LACK OF SECURITY RELATING TO THE USE OF THE CHARGEPOINT SERVICES.

8.6 ADDITIONAL RIGHTS. BECAUSE SOME STATES OR JURISDICITONS DO NOT ALLOW THE

LIMITATION OR EXCLUSION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES AND/OR THE DISCLAIMER OF IMPLIED WARRANTIES AS SET FORTH IN THIS SECTION 8, ONE OR MORE OF THE ABOVE LIMITATIONS MAY NOT APPLY; PROVIDED THAT, IN SUCH INSTANCES, CPI’S LIABILTY AND/OR IMPLIED WARRANTIES Item 1S - Page 51

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GRANTED IN SUCH CASES SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

9. TERM, RENEWAL AND TERMINATION.

9.1 TERM OF AGREEMENT. This Agreement shall become effective on the Effective Date and shall continue until the expiration of all of Subscriber’s Cloud Plans.

9.2 CLOUD PLAN TERM. Each Cloud Plan acquired by Subscriber shall commence as follows:

Each Cloud Plan acquired for use with a new Charging Station will commence on ninety (90) days from the date the subscription plan is invoiced. Upon expiration of the original term, this Agreement will renew automatically for the successive term originally purchased at the list price applicable thereto, subject to increases and Subscriber’s right to terminate below. Should the renewal be cancelled and subsequently be requested to be reinstated by Subscriber, reinstatement will be subject to the payment of Subscription Fees for any lapse period plus reasonable reinstatement fee. If, however, at any time after the original term Subscriber wishes to terminate a Cloud Plan that has been automatically renewed, Subscriber may do so by providing CPI thirty (30) days’ written notice of cancellation and CPI will issue Subscriber a pro-rata refund of any funds paid for periods from the effective date of cancellation to the end of the auto-renewed term. Notwithstanding the foregoing, there shall no pro-rata refunds allowed on automatic renewals for plans of multiple year s. Renewals of Cloud Plans will commence on the date of the expiration of the Subscription being renewed. Each Subscriber Cloud Plan shall continue for the applicable duration thereof, unless this Agreement is terminated earlier in accordance with its ter ms. If Subscriber has elected or is required, as the case may be, to pay by credit card as provided in this Agreement or if applicable, as described in CPI’s credit card policy, the renewal will be charged to Subscriber’s payment method (credit card) on file, which may include any payment method automatically updated by Subscriber’s issuing bank.

If Subscriber’s credit card is declined, invalid, or payment is not made by the issuer of Subscriber’s credit card on Subscriber’s Subscription Date, without furth er notice CPI reserves the right to automatically recharge the payment method until payment is received, the payment method is updated, or the Service is discontinued for nonpayment.

9.3 TERMINATION BY CPI.
(a) This Agreement may be immediately terminated by CPI: (i) if Subscriber is in material breach of any of its obligations under this Agreement, and has not cured such breach within thirty (30) days (or within five (5) days in the case of any payment default) of Subscriber’s receipt of written notice thereof; (ii) Subscriber becomes the subject of a petition in bankruptcy or any other proceeding related to insolvency, receivership, liquidation or an assignment for the benefit of creditors; (iii) upon the determination by any regulatory body that the subject matt er of this Agreement is subject to any governmental regulatory authorization or review that imposes additional costs of doing business upon CPI; or (iv) as otherwise explicitly provided in this Agreement. Regardless of whether Subscriber is then in breach, CPI may, in its reasonable discretion, determine that it will not accept any renewal by Subscriber of its subscription to ChargePoint Services. In such case, this Agreement shall terminate upon the later of the expiration of all of Subscriber’s subscriptions to ChargePoint Services. (b) CPI may in its discretion suspend Subscriber’s continuing access to the ChargePoint Services or any portion thereof if (A) Subscriber has breached any provision of this Agreement, or has acted in manner t hat indicates that Subscriber does not intend to, or is unable to, comply with any provision of this Agreement; (B) such suspension is required by law (for example, due to a change to the law governing the provision of the ChargePoint Services); or (c) pro viding the ChargePoint Services to Subscriber could create a security risk or material technical burden as reasonably determined by CPI.

9.4 TERMINATION BY SUBSCRIBER.

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This Agreement may be immediately terminated by Subscriber without prejudice to any other remedy of Subscriber at law or equity: (i) if CPI is in material breach of any of its obligations under this Agreement, and has not cured such breach within thirty (30) days of the date of its receipt of written notice thereof, (ii) CPI becomes the subject of a petition in bankruptcy or any other proceeding related to insolvency, receivership, liquidation or an assignment for the benefit of creditors, or (iii) upon providing thirty (30) days prior written notice.

9.5 REFUND OR PAYMENT UPON TERMINATION. Upon any termination of this Agreement for cause by Subscriber pursuant to Section 9.4(i)or by CPI pursuant to Section 9.3(a)(iii), CPI shall refund to Subscriber a pro-rata portion of any pre-paid Subscription Fees based upon the remaining Cloud Plan term. Upon any termination for any other reason, Subscriber shall not be entitled to any refund of any Subscription Fees as a result of such termination. Except as otherwise set forth in this Agreement, in no event shall any termination relieve Subscriber of any unpaid Subscription Fees due CPI for the Cloud Plan term in which the termination occurs or any prior Cloud Plan term.

9.6 SURVIVAL. Those provisions dealing with the Intellectual Property Rights of CPI, limitations of liability and disclaimers, restrictions of warranty, Applicable Law and those other provisions which by their nature or terms are intended to survive the termination of this Agreement will remain in full force and effect as between the Parties hereto regardless of the termination of this Agreement.

10. INDEMNIFICATION. Subscriber hereby agrees to indemnify, defend and hold CPI, its officers, directors, agents, affiliates, distribution partners, licensors and suppliers harmless from and against a ny and all claims, actions, proceedings, costs, liabilities, losses and expenses (including, but not limited to, reasonable attorneys’ fees) (collectively, “Claims”) suffered or incurred by such indemnified parties resulting from or arising out of Subscriber’s actual or alleged use (directly, or through a grantee of Rights by Subscriber) of the ChargePoint Services, ChargePoint or Subscriber Content and Services. Subscriber will cooperate as fully as reasonably required in the defense of any claim. CPI reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by Subscriber.

11. GENERAL.

11.1 AMENDMENT OR MODIFICATION. CPI reserves the right to modify this Agreement from time to time. CPI will provide notice of each such modification to Subscriber. Subscriber’s continued use of the ChargePoint Services following such notice will constitute an acceptance of the modified Agreement.

11.2 WAIVER. The failure of either Party at any time to enforce any provision of this Agreement shall not be construed to be a waiver of the right of such Party to thereafter enforce that provision or any other provision or right.

11.3 FORCE MAJEURE. Except with respect to payment obligations, neither CPI nor Subscriber will be liable for failure to perform any of its obligations hereunder due to causes beyond such party’s reasonable control and occurring without its fault or negligence, including but not limited to fire, flood, earthquake or other natural disa ster (irrespective of such Party’s condition of any preparedness therefore); war, embargo; riot; strike; labor action; any lawful order, decree, or other directive of any government authority that prohibits a Party from performing its obligations under thi s Agreement; material shortages; shortage of transport; and failures of suppliers to deliver material or components in accordance with the terms of their contracts.

11.4 GOVERNING LAW, JURISDICTION AND DISPUTE RESOLUTION. The ChargePoint entity entering into this Agreement, the address to which Subscriber should direct notices under this Agreement, Item 1S - Page 53

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the governing law, and place of jurisdiction, shall be determined according to where the Subscriber is domiciled:

If Subscriber is
domiciled in:

The CPI Entity
entering into
this Agreement
is:

Notices should
be addressed to:

Governing law
is:

Place of
jurisdiction:

Forum:

The United
States of
America
ChargePoint,
Inc., a Delaware
corporation
Attn: Legal
Department
ChargePoint, Inc.
254 E Hacienda
Ave
Campbell, CA
95008
California and
controlling
United States
federal law
Santa Clara,
California, U.S.A.

Judicial
Arbitration and
Mediation
Services, Inc.
(JAMS)
Canada ChargePoint
Canada, Inc., a
British Columbia
corporation
Attn: Legal
Department
ChargePoint, Inc.
254 E Hacienda
Ave
Campbell, CA
95008
British Columbia
and controlling
Canadian federal
law
Vancouver,
British Columbia,
Canada
ADR Institute of
Canada

This Agreement, and any disputes related to this Agreement, will be governed by the applicable Governing Laws above, without regard to conflicts of laws rules or the United Nations Convention on the International Sale of Goods.

Except with respect to any matter relating to Subscriber’s violation of the intellectual property rights of CPI, any disputes, actions, claims or causes of action arising out of or in connection with this Agreement shall be submitted to and finally settled by arbitration using the English language in accordance with the Arbitration Rules and Procedures of the applicable Forum above then in effect, by one or more commercial arbitrator(s) with substantial experience in the industry and in resolving complex commercial contract disputes. Judgment upon the award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. All claims shall be brought in the parties’ individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. With respect to any matter relating to the intellectual property rights of CPI, such claim may be litigated in a court of competent jurisdiction. The prevailing party in any dispute arising out of this Agreement shall be entitled to reasonable attorneys’ fees and costs.

Notwithstanding the foregoing, each party shall have the right to institute an action in any court of proper jurisdiction for injunctive relief.

11.5 NOTICE REGARDING CLAIMS TO REGULATORY COMPLIANCE MECHANISMS. The use of certain ChargePoint Charging Stations may be eligible to generate clean fuels credits, low -carbon fuel standard credits, renewable fuels credits, emissions reduction units, carbon offsets, allowances, Item 1S - Page 54

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renewable fuel and/or obligation certificates, or simil ar regulatory compliance instruments, collectively (“Regulatory Compliance Mechanisms”), used to comply with applicable federal, state, provincial, international or regional emissions, low-carbon fuel, and/or renewable fuel compliance programs. CPI and Subscriber may be eligible to claim title to Regulatory Compliance Mechanisms, however, only one Party can claim title. Should Subscriber choose to claim regulatory title, assuming Subscriber may be eligible to do so, Subscriber must opt-in to the applicable program and fulfill all ongoing administrative and reporting obligations required of program participants, including recurring verification and/or auditing requirements. CPI intends to claim title to applicable Regulatory Compliance Mechanisms, assuming CPI may be eligible to do so; however, CPI will not claim title to specific Regulatory Compliance Mechanisms that Subscriber has opted to claim. Subscriber agrees that it will provide CPI with written notice of its intent to claim specific Regulatory Compl iance Mechanisms within ten (10) days of the Effective Date. If Subscriber does not currently intend to claim regulatory title, but desires to do so at any time in the future, Subscriber may, by providing written notice to CPI, elect to claim title to Regu latory Compliance Mechanisms resulting from the use of ChargePoint Charging Stations thirty (30) days or more after the date of such notice. Subscriber represents and warrants to CPI that, in the absence of providing written notice, Subscriber will not claim any Regulatory Compliance Mechanisms and hereby designates that right to CPI. All notices shall be provided by email to CPI at [email protected].

11.6 NOTICE REGARDING RIN DATA. For Subscriber’s located in the United States, CPI will participate in an application to the U.S. Environmental Protection Agency (“EPA”) to permit vehicle charging data (“Charging Data”) collected by CPI from centrally networked charging stations to be utilized in a process to generate Renewable Identification Numbers (“RIN)” under the Renewable Fuel Standard.

CPI must establish its exclusive right to utilize the Charging Data and the associated environmental attributes underlying the charging events represented by the Charging Data (Charging Data and such environmental attributes referred to collectively as, the “RIN Data”) for the purposes of RIN generation.

Subscriber confirms that it will not pursue utilizing RIN Data for the purposes of RIN generation and that, as between Subscriber and CPI, CPI has the exclusive right to use the RIN Data for the purpose of RIN generation.

11.7 NOTICES. Other than the notices required in Sections 11.5 and 11.6, any notice required or permitted by this Agreement shall be sent (a) if by CPI, via electronic mail to the address indicated by Subscriber in Subscriber’s ChargePoint Services account; or (b) if by Subscriber, via electronic mail to [email protected].

11.8 INJUNCTIVE RELIEF. Subscriber acknowledges that damages for improper use of the ChargePoint Services may be irreparable; therefore, CPI is entitled to seek equitable relief, including but not limited to preliminary injunction and injunction, in addition to all other remedies.

11.9 SEVERABILITY. Except as otherwise specifically provided herein, if any term or condition of this Agreement or the application thereof to either Party will to any extent be determined jointly by the Parties or by any judicial, governmental or similar authority, to be invalid or unenforceable, the remainder of this Agreement, or the application of such term or provision to this Agreement, the Parties or circumstances other than those as to which it is determined to be invalid or unenforceable, will not be affected thereby.

11.10 ASSIGNMENT. Subscriber may not assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of CPI (not to be unreasonably withheld). In the event of any purported assignment in breach of this Section, CPI shall be entitled, at its sole discretion, to terminate this Agreement upon written notice given to Subscriber.

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successors and permitted assigns. CPI may assign its rights and obligations under this Agreement.

11.11 NO AGENCY OR PARTNERSHIP. CPI, in the performance of this Agreement, is an independent contractor. In performing its obligations under this Agreement, CPI shall maintain complete control over its employees, its subcontractors and its operations. No partnership, joint venture or agency relationship is intended by CPI and Subscriber to be created by this Agreement. Neither Party has any right or authority to assume or create any obligations of any kind or to make any representation or warranty on behalf of the other Party, whether express or implied, or to bind the other Party in any respect whatsoever.

11.12 ENTIRE AGREEMENT. This Agreement (including the attached Exhibits) contains the entire agreement between the Parties with respect to the subject matter hereof and supersedes and cancels all previous and contemporaneous agreements, negotiations, commitments, understandings, representations and writings. All purchase orders issued by Subscriber shall state that such purchase orders are subject to all of the terms and conditions of this Agreement, and contain no other term other than the type of Cloud Plan, the number of Charging Stations for which such Cloud Plan is ordered, the term of such Cloud Plans and applicable Subscription Fees. To the extent of any conflict or inconsistency between the terms and conditions of this Agreement and any purchase order, the Agreement shall prevail.

Notwithstanding any language to the contrary therein, no terms or conditions stated in any other documentation shall be incorporated into or form any part of this Agreement, and all such purported terms and conditions shall be null and void.

11.13 COPYRIGHT POLICIES. It is CPI's policy to respond to notices of alleged copyright infringement that comply with applicable international intellectual property law (including, in the United States, the Digital Millennium Copyright Act) and to terminate the accounts of repeat infringers.

11.14 THIRD PARTY RESOURCES . The ChargePoint Services may include hyperlinks to other websites or resources. CPI has no control over any web sites or resources that are provided by companies or persons other than CPI. Subscriber acknowledges and agrees that CPI is not responsible for the availability of any such web sites or resources, CPI does not endorse any advertising, products or other materials on or available from such web sites or resources, and CPI is not liable for any loss or damage that may be incurred by Subscriber as a result of any reliance placed by Subscriber on the completeness, accuracy or existence of any advertising, products, or other materials on, or available from, such websites or resources.

11.15 COUNTERPARTS. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which, taken together, shall constitute but one and the same document.

11.16 ENGLISH LANGUAGE AGREEMENT GOVERNS. Where CPI has provided Subscriber with a translation of the English language version of this Agreement, Subscriber agrees that the translation is provided for Subscriber’s convenience only and that the English language v ersion of this Agreement governs Subscriber’s relationship with CPI. If there is any conflict between the English language version of this Agreement. It is the express wish of the Parties that this Agreement and all related documents, including notices and other communications, be drawn up in the English language only. Il est la volonté expresse des parties que cette convention et tous les documents s’y rattachant, y compris les avis et les autres communications, soient rédigés et signés en anglais seulement.

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EXHIBIT 1

FLEX BILLING TERMS

This Exhibit sets forth certain additional terms and conditions (“Flex Billing Terms”) pursuant to which Subscriber may charge Users fees for the use of Subscriber’s Charging Stations. In order to charge such fees, Subscriber must subscribe to a Cloud Plan that includes CPI’s management, collection and/or processing services related to such fees (“Flex Billing”).

1. DEFINITIONS. The following additional defined terms shall apply to these Flex Billing Terms:

1.1 “CPI Fees” means a fee, currently equal to ten percent (10%) of Session Fees, charged for a particular Session. CPI Fees are charged by CPI in exchange for its collection and processing of Session Fees on behalf of Subscriber. CPI will provide Subscriber with thirty (30) days prior written notice (whic h may include, without limitation, notice provided by CPI through its regular newsletter to Subscriber) of any increase in CPI Fees.

1.2 “Net Session Fees” means the total amount of Session Fees collected on behalf of the Subscriber by CPI, less CPI Fees and Taxes, if any, required by law to be collected by CPI from Users in connection with the use of Charging Stations. Except as required by law, Subscriber shall be responsible for the payment of all Taxes incurred in connection with use of Subscriber’s Charging Stations.

1.3 “Session” or “Charging Session” means the period of time during which a User uses Subscriber’s Charging Station to charge his or her electric vehicle for a continuous period of time not less than two (2) minutes commencing when a User has accessed such Charging Station and ending when such User has terminated such access.

1.4 “Session Fees” means the fees set by the Subscriber for a Charging Session, inclusive of any applicable Taxes.

2. FLEX-BILLING SERVICE FOR CHARGING STATIONS.

2.1. SESSION FEES. Subscriber shall have sole authority to determine and set Session Fees.

Subscriber shall be solely responsible for determining and charging Session Fees in compliance with all applicable laws and regulations (including without limitation any restriction on Subscriber’s use of per - kWh pricing). Subscriber acknowledges that CPI is not responsible for informing Subscriber of applicable laws or changes thereto, and CPI will not be liable to Subscriber or any third party for any alleged or actual failure of Subscriber to comply with such applicable laws and regulations.

2.2 DEDUCTIONS FROM SESSION FEES. In exchange for CPI collecting Session Fees on behalf of the Subscriber, the Subscriber hereby authorizes CPI to deduct from all Session Fees col lected: (i) CPI Fees and (ii) to the extent required by Section 3, applicable Taxes.

2.3 PAYMENT TO SUBSCRIBER OF NET SESSION FEES. CPI will remit Net Session Fees to Subscriber, not less than monthly , provided that the amount due to Subscriber hereunder is at least fifty U.S. dollars (50) (or, if Subscriber is located in Canada fifty Canadian dollars). Notwithstanding, the foregoing, CPI shall remit any unpaid Net Session Fees, regardless of the amount, to Subscriber at least annually and within thirty (30) days of the expiration or termination Item 1S - Page 57

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of this Agreement. All payments shall be made by electronic payment. In order to facilitate such payments, Subscriber agrees to maintain Subscriber’s current bank information , into Subscriber’s ChargePoint Services (customer facing portal), to enable electronic remittance of the Net Session Fees. If the Subscriber requests payment in a manner other than electronic payment (e.g., check or wire transfer), Subscriber agrees to bear the reasonable costs related to such request.

3. TAXES. If applicable, Subscriber is responsible for setting pricing on a Tax -inclusive basis. CPI is not responsible for remittance of any Taxes on behalf of Subscriber and Subscriber shall be responsible to report and remit any and all applicable Taxes assessable based on Charging Sessions whether state, federal, provincial or otherwise; provided that CPI is solely responsible for all Taxes assessable based on CPI’s income, property and employees. Where CPI is required by law to collect and/or remit the Taxes for which Subscriber is responsible, the appropriate amount shall be invoiced to Subscriber and deducted by CPI from Session Fees, unless Subscriber has otherwise provided CPI with a valid tax or regulatory exemption certificate or authorization from the appropriate taxing or regulatory authority.

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EXHIBIT 2

API TERMS

This Exhibit sets forth certain additional terms and conditions (“API Terms”) governing Subscriber’s use of the APIs in connection with Subscriber’s use of the ChargePoint Services. The API Terms are part of the Agreement, and all such use of the APIs remains subject to the Agreement terms.

1. ADDITIONAL DEFINITIONS. The following additional definitions shall apply to the API Terms.

1.1 "API Implementation" means a Subscriber software application or website that uses any of the APIs to obtain and display Content in conjunction with Subscriber Content and Services.

1.2 “API Documentation” means all Documentation containing instructions, restrictions or guidelines regarding the APIs or the use thereof, as amended and/or supplemented by CPI from time to time.

1.3 “CPI Site Terms” means the Terms and Conditions displayed on CPI’s website, governing use of CPI’s website and the ChargePoint Services by visitors who are not Cloud Plan subscribers.

2. API USE. Subscriber may use the APIs as and to the extent permitted by Subscriber’s Cloud Plan and the API Documentation, subject to the terms and conditions of the Agreement.

2.1 AVAILABLE APIs AND FUNCTION CALLS. The APIs give Subscriber access to information through a set of function calls. The particular APIs and API function calls made available by CPI from time to time (and the Content available through such APIs and function calls) will be limited by Subscriber’s Cloud Plan, and Subscriber’s particular Cloud Plan may not include all APIs and function calls then available from CPI.

2.2 USE AND DISPLAY OF CONTENT. Subscriber is permitted to access, use and publicly display the Content with Subscriber Content and Services in Subscriber’s API Implementation, subject to the following requirements and limitations.
(a) All Charging Station locations provided to Subscriber as part of the Content shall be clearly identified by Subscriber in Subscriber’s API Implementation as ChargePoint ® Network Charging Stations and shall contain the Brand Identifiers required by the API Documentation. In no event shall Subscriber’s API Implementation identify or imply tha t any Charging Station is a part of any network of charging stations other than ChargePoint.

(b) Subscriber shall keep the Content used by Subscriber’s API Implementation current with Content obtained with the APIs to within every forty eight (48) hours.

(c) Content provided to Subscriber through the APIs may contain the trade names, trademarks, service marks, logos, domain names, and other distinctive brand features of CPI’s business partners and/or other third party rights holders of Content indexed by CPI, whi ch may not be deleted or altered in any manner.

(d) Subscriber shall not:

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(i) pre-fetch, cache, or store any Content, except that Subscriber may store limited amounts of Content for the purpose of improving the performance of Subscriber’s API Implementation if Subscriber does so temporarily, securely, and in a manner that does not permit use of the Content outside of the ChargePoint Service;

(ii) hide or mask from CPI the identity of Subscriber’s service utilizing the APIs, including by failing to follow the identification conventions listed in the API Documentation; or

(iii) defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others.

2.3 REQUIRED INFORMATION. Subscriber must:

(a) display to all viewers and users of Subscriber’s API Implementation the link to the CPI Site Terms and Conditions as presented through the ChargePoint Services or described in the Documentation;

(b) explicitly state in the use terms governing Subscriber’s API Implementation that, by using Subscriber’s API Implementation, such viewers and users are agreeing to be bound by the CPI Site Terms; and

(c) include in Subscriber’s API Implementation, and abide by, a privacy policy complying will all applicable laws; and

(d) comply with all applicable laws designed to protect the privacy and legal rights of users of Subscriber’s API Implementation.

2.4 REPORTING. Subscriber must implement reporting mechanisms, if any, that CPI requires in the API Documentation.

3. CPI BRANDING REQUIREMENTS AND RESTRICTIONS.

3.1 MANDATORY CPI BRANDING. Subject to Section 3.2 below and the restrictions on use of CPI Marks set forth in the Agreement, Subscriber agrees that each page comprising Subscriber’s API Implementation will include a Ch argePoint logo and will state that Subscriber’s application or website is provided, in part, through the ChargePoint Services.

3.2 RESTRICTIONS. Subscriber shall not:

(a) display any CPI Mark as the most prominent element on any page in Subscriber’s API Implementation or Subscriber’s website (except as used in connection with the display of Charging Stations); or

(b) display any CPI Mark anywhere in Subscriber’s API Implementation or on Subscriber’s website if Subscriber’s API Implementation or website conta ins or displays adult content or promotes illegal activities, gambling, or the sale of tobacco or alcohol to persons under twenty -one (21) years of age.

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EXHIBIT 3

TERMS REGARDING GRANTING OF RIGHTS

This Exhibit sets forth certain additional terms and conditions applicable to Rights Grantors and Rights Grantees regarding the granting of Rights (“Rights Terms”). The Rights Terms are part of the Agreement, and all use of the ChargePoint Services permitted pursuant to the Rights Terms remains sub ject to the Agreement.

1. ADDITIONAL DEFINITIONS. The following additional definitions shall apply.

1.1 “Rights Grantor” means Subscriber.

1.2 “Rights Grantee” means any person to whom Subscriber has granted Rights. For purposes of this Agreement, a Subscriber shall be deemed to have granted Rights to the entity assisting Subscriber with creating its account and initiating Subscriber’s access to Services.

2. TERMS. This Section governs Subscriber’s granting of Rights as a Rights Grantor.

2.1 LIMITED RIGHTS. A Rights Grantee’s right to access and use the ChargePoint Services for and on behalf of a Rights Grantor is limited to the specific Rights granted by such Rights Grantor to such Rights Grantee. Such Rights may be limited according to the Cloud Plan(s) subscribed to by Subscriber. Subscriber may revoke Rights, or any portion thereof, it has granted to a Rights Grantee at will and such Rights will thereafter by terminated with respect to such Rights Grantee. In no event may Subscriber grant Rights in excess of those provided to it through the Cloud Plan(s) to which it has subscribed.

2.2 RESPONSIBILITY FOR AUTHORIZED USER. All use of the ChargePoint Services by a Rights Grantee exercising Rights granted by Subscriber shall be subject to the terms and conditions of the Agreement (including without limitation Subscriber’s indemnification obligation pursuant to Section 10 thereof).

Subscriber shall be responsible for the actions, omissions, or performance of such Rights Grantee while exercising any such R ights, as if such action, omission or performance had been committed by Subscriber directly.

2.3 NO AGREEMENT. Subscriber acknowledges and agrees that the ChargePoint Services merely enable a Rights Grantor to extend Rights to Rights Grantees. The mere extens ion of such Rights by a Rights Grantor to a Rights Grantee does not constitute an agreement between Rights Grantor and the Rights Grantee with respect to the granted Rights or the exercise of such Rights by the Rights Grantee. CPI does not, either through the terms of the Agreement or the provision of ChargePoint Services undertake to provide any such agreement. It is the responsibility of the Rights Grantor and the Rights Grantee to enter into such an agreement on terms mutually acceptable to each. CPI expressly undertakes no liability with respect to such an agreement and Rights Grantor fully and unconditionally releases CPI from any liability arising out of such an agreement.

Further Rights Grantor agrees to indemnify and hold CPI, its officers, directors, agents, affiliates, distribution partners, licensors and suppliers harmless from and against any and all claims, actions, proceedings, costs, liabilities, losses and expenses (including, but not limited to, reasonable attorneys’ fees) (collectively, “Claims”) suffered or incurred by such indemnified parties resulting from or arising out of such agreement.

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EXHIBIT “B”

INSURANCE PROVISIONS

Including

Verification of Coverage,

Sufficiency of Insurers,

Errors and Omissions Coverage,

Minimum Scope of Insurance,

Deductibles and Self-Insured Retentions, and

Severability of Interests (Separation of Insureds)
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INSURANCE

1. Procurement and Maintenance of Insurance. Contractor shall procure and maintain public liability and property damage insurance against all claims for inju ries agains t persons or damages to property resulting from Contractor’s performance under th is Agreement.

Contractor shall procure and maintain all insurance at its sole cost and expense, in a form and content satisfactory to the City, and submit concurre ntly with its execution of this Agreement .

Contractor shall also carry workers’ compensatio n i nsurance in accordance with California workers’ compensation l aws. Such insurance shall be kept in full force and effect during the term of this Agreement , incl uding any extensions. Such insurance shall not be ca ncelable without thirty (30) days advance written notice to City of any proposed cancellation. Certificates of insurance evidencin g the foregoing and designating the City, its elected officials, officer s, employees, agents, and volunteers as additional named insureds by original endorsement shall be delivered to and approved by City prior to commencem ent of services. The procuring of such insurance and the delivery of policies, certificates, and endorse ments evidencing the same shall not be construed as a limitation of Contractor’s obligation to indemnify City, its elected officials, officers, agents, employees, and volunteers.

2. M inimum Scope of Insurance . The minimum amount of insurance requir ed under this Agreement shall be as follows:

1. Comprehensive general liability and personal inj ury with limits of at least one million dollars ($1,000,000.00) c ombined single limit covera ge per occurrence and two million dollars ($2,000,000) general aggregate;

2. Automobile liability insurance with limits of at least one million dollars ($1,000,000.00) per occurrence;

3. Professional liability (errors and omissions) insurance with limits of at least one million dollars ($1,000,000.00) per occurrence and two million dollars ($2,000,000) annual aggregate is:
_________ required
___X_____ is not required;

4. Workers’ Compensation insurance in the statutory amount as required by the State of California and Employer’s Liability Insurance with limits of at least one mil lion dollars $1 million per occurrence. If Contractor has no employees, Contractor shall complete the City’s Request for Waiver of Workers’ Compensation Insurance Requirement form.

3. Primary Insurance. For any claims related to this Agreement, Contr actor’s insurance coverage shall be primar y with respect to the City and its respective elected officials, officers, employees, agents, and volunteers. Any insurance or self-insurance maintained by City and its respective elected officials, officers, empl oyees, agents, and volunteers shall be in excess of Contractor’s insurance and shall not contri bute with it. For Workers’ Compensation and Employer’s Liability Insurance only, the insurer shall waive all rights of subrogation and Item 1S - Page 63

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contribution it may have again st City, its elected officials, offic ers, employees, agents, and volunteers.

4. Errors and Omissions Coverage. If Errors & Omissions Insurance is required, and if Contractor provides claims made profes sional liability insurance, Contractor shall also agree in writing either (1) to purchase tail insurance in the amount required by this Agreement to cover claims made within three years of the comp letion of Contractor ’s services unde r this Agreement, or (2) to maintain professional liability insurance coverag e with the same carrier in the amount required by this Agreement for at least three years after completion of Contractor’ s services under this Agr eement. Contractor shall also be required to provide evidence to City of the purchase of the required tail insurance or continuation of the professional liability policy.

5. Sufficiency of Insurers. Insurance required in this Agreement shall be provi ded by authorized insurers in good standing with the State of California. Coverage shall be provided by insurers admitted in the State of California with an A.M . Best’s Key Rating of B++, Class VII, or better, unless otherwise acceptable to the City.

6. V erification of Coverage. Contractor shall furnish City with both certificates of insurance and endorsements, inc luding additional insured endorsement s, affecting all of the coverages required by this Agreement. The certificates and endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. All proof of insurance is to be received and approved by the City before work commences. City reserves the right to requir e Contractor’s insurers to provide complete, certified c opies of all required insurance policies at any time. Additional insured endorsements are not required f or Errors a nd Omissions and Workers’ Compensation policies.

Verification of Insurance covera ge may be provided by: (1) an approved General and/or Auto Liability Endorsement Form for the City of Palm Springs or (2) an acceptable Certificate of Liability Ins urance Coverage with an approved Additional Insured Endorsement with the following endorsements stated on the certificate:

A. "The City of Palm Sprin gs, its officials, employees, and agents are named as an additional insured…” ("as respects City of Palm Springs Contract No.___" or "for any and all work performed with the City" may be included in this statement).

B. " This insurance is primary and non-contributory over any insurance or self- insurance the City may have..." ("as respects City of Palm Springs Contract No.___" or "for any and all work performed with the City" may be included in this statement).

C. " Should any of the above- described polic ies be c anceled before the expiratio n date thereof, the issuing company will mail 30 days written notice to the C ertificate Holder named." Language such as, “end eavor to” mail and "but failure to mail such notice shall impose no obligation or liability of any kind upon the company, its agent s or representative" is not acceptable and must be crossed out.

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D. Both the Workers’ Compensation and Employers' Liability policies shall contain the insurer's wai ver of subrogation in favor of City, its elected officia ls, officers, employees, agents, and volunteers.

In addition to the endorsements listed above, the City of Palm Springs shall be named the certificate holder on the policies.

All certificates of ins urance and endorsements are to be received and approved by the C ity before work commences. All certificates of insurance must be authorized by a person with authority to bind coverage, whether that is the authorized agent/broker or insurance underwriter.

Failure to obtain the required documents prior to the c ommencement of work shall not waive the Contractor’s obligation to provide them.

7. Deductibles and Self -Insured Retentions. Any deductibles or self -insured retentions must be declared to and approved by the City prior to commencing any work or services under this Agreement. At the option of the City, either (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions with respect to the City, its elected officials, officers, employees, agents, and volunteers; or (2) Contractor s hall procure a bond guaranteeing payment of losses and related investigations, claim administration, and def ense expenses.

Certificates of Insurance m ust include evidence of the amount of any deductible or self-insured retention under the policy. Contract or guarantees payment of all deducti bles and self -insured retentions.

8. Severability of Interests (Separat ion of Insu reds). This insurance applies separately to each insured against whom claim is m ade or suit is brought except with respect to the limits of the insurer’s liability.

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Exhibit C

EXECUTIVE ORDER N-6-22 CERTIFICATION

Executive Order N-6-22 issued by Governor Gavin Newsom on March 4, 2022, directs all agencies and departments that are subject to the Governor’s authority to (a) terminate any contract s with any individuals or entities that are determined to be a target of economic sanctions against Russia and Russian entities and individuals; and (b) refrain from entering into any new contracts with such individuals or entities while the aforementioned sanctions are in effect.

Executive Order N-6-22 also requires that any contractor that: (1) currently has a contract with the City of Palm Springs funded through grant funds provided by the State of California; and/or (2) submits a bid or proposal or otherwise proposes to or enter into or renew a contract with the City of Palm Springs with State of California grant funds, certify that the person is not the target o f any economic sanctions against Russia and Russian entities and individuals.

The contractor hereby certifies, SUBJECT TO PENALTY FOR PERJURY, that a) the contractor is not a target of any economic sanctions against Russian and Russian entities and individuals as discussed in Executive Order N-6-22 and b) the person signing below is duly authorized to legally bind the Contractor.

This certification is made under the laws of the State of California.

Signature:

Printed Name:

Title:

Firm Name:

Date:

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Exhibit D

FEDERAL AVIATION ADMINISTRATION

FEDERAL PROVISIONS

Provision
Reference Provision Description
Page
No.

FAA - 01 Access to Records and Reports 2
FAA - 02 Affirmative Action Requirement * 3
FAA – 03 Breach of Contract Terms 5
FAA – 04 Buy American Preference * 6
FAA – 05 Civil Rights General 7
FAA – 06 Civil Rights – Title VI Assurances * 8
FAA – 07 Clean Air and Water Pollution Control 11
FAA – 08 Contract Work Hours and Safety Standards Act Requirements 12 FAA – 09 Copeland Anti-Kickback Act 14
FAA – 10 Davis Bacon Requirements 15
FAA – 11 Debarment and Suspension * 22
FAA – 12 Disadvantaged Business Enterprise * 23
FAA – 13 Distracted Driving 25
FAA – 14 Prohibition on Certain Telecommunications and Video Surveillance Services or Equipment
26 FAA – 15 Drug Free Workplace Requirements (not applicable to Contractors)
27 FAA – 16 Equal Employment Opportunity 28
FAA – 17 Federal Fair Labor Standards Act * 36
FAA – 18 Lobbying and Influencing Federal Employees 37
FAA – 19 Prohibition of Segregated Facilities 38
FAA – 20 Occupational Safety and Health Act of 1970 39
FAA – 21 Procurement of Recovered Materials * 40
FAA – 22 Right to Inventions 41
FAA – 23 Seismic Safety 42
FAA – 24 Tax Delinquency and Felony Convictions* 43
FAA – 25 Termination of Contract 44
FAA – 26 Trade Restriction Certification (Foreign) * 45 FAA – 27 Veteran’s Preference 47
FAA – 28 Domestic Preferences for Procurements * 48

*Solicitation Clause also
Updated 2.8.2023
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FAA - 01 Access to Records and Reports
APPLICABILITY – pertains to all contracts.

The Contractor must maintain an acceptable cost accounting system. The Contractor agrees to provide the City, the Federal Aviation Administration and the Comptroller General of the United States or any of their duly authorized representatives access to any books, documents, papers and records of the Contractor which are directly pertinent to the specific contract for the purpose of making audit, examination, excerpts and transcriptions. The Contractor agrees to maintain all books, records and reports required under this contract for a period o f not less than three years after final payment is made and all pending matters are closed.

Reference: 2 CFR § 200.334, 2 CFR § 200.337, FAA Order 5100.38 Item 1S - Page 68

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FAA - 02 Affirmative Action Requirement

NOTICE OF REQUIREMENT FOR AFFIRMATIVE ACTION TO

ENSURE EQUAL EMPLOYMENT OPPORTUNITY
APPLICABILITY – pertains to all contracts over $10,000 as follows:

Construction – AIP funded construction work contracts and subcontracts that exceed $10,000.

Construction work means construction, rehabilitation, alteration, c onversion, extension, demolition or repair of buildings, highways or other changes or improvements to real property, including facilities providing utility services. The term also includes the supervision, inspection and other onsite functions incidental to the actual construction.

Equipment – any equipment project exceeding $10,000 that involves installation of equipment onsite (e.g., electrical vault equipment). This provision does not apply to equipment acquisition projects where the manufacture of the equipment takes place offsite at a manufacturer’s plant (e.g., firefighting and snow removal vehicles).

Professional Services – any professional service agreement if the professional services agreement includes tasks that meet the definition of construction w ork [as defined by the U.S.

Department of Labor (DOL)] and exceeds $10,000. Examples include installation of monitoring systems (e.g., noise, environmental, etc.).

Property/Land – any agreement associated with land acquisition if the agreement includes construction work (defined above) that exceeds $10,000. Examples include demolition of structures or installation of boundary fencing.

REQUIREMENTS -

1. The Contractor’s attention is called to the “Equal Opportunity Clause” and the “Standard Federal Equal Employment Opportunity Construction Contract Specifications” set forth herein.

2. The goals and timetables for minority and female participation, expressed in percentage terms for the Contractor’s aggregate workforce in each trade on all construction work in the covered area, are as follows:

Timetables
Goals for minority participation for each trade: [the City must insert established goal] Goals for female participation in each trade: 6.9%
These goals are applicable to all of the Contractor’s construction wor k (whether or not it is Federal or federally assisted) performed in the covered area. If the C ontractor performs construction work in a geographical area located outside of the covered area, it shall apply the goals established for such geographic al area where the work is actually performed. With regard to t his second area, the C ontractor also is subject to the goals for both its federally involved and nonfederally involved construction.

The Contractor’s compliance with the Executive Order and the regulations in 41 CFR Part 60-4 shall be based on its implementation of the Equal Opportunity Clause, specific affirmative action obligations required by the specifications s et forth in 41 CFR 60-4.3(a) and its efforts to meet the goals. The hours of minorit y and female employment and training must be Item 1S - Page 69

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substantially uniform throughout the length of the contract, and in each trade, and the Contractor shall make a good faith effort to employ minorities and women evenly on each of its projects. The transfer of minority or female employees or trainees from Contractor to Contractor or from project to project for the sole purpose of meeting the C ontractor’s goals shall be a violation of the contract, the Executive Order and the regulations in 41 CFR Part 60-

4. Compliance with the goals will be measured against the total work hours performed.

3. The Contractor shall provide written notification to the Director of the Office of Federal Contract Compliance Programs (OFCCP) within 10 working days of award of any const ruction subcontract in excess of $10,000 at any tier for construction work under the contract resulting from this solicitation. The notification shall list the name, address, and telephone number of the subcontractor; employer identification number of the su bcontractor; estimated dollar amount of the subcontract; estimated starting and completion dates of the subcontract; and the geographical area in which the subcontract is to be performed.

4. As used in this notice and in the contract resulting from this solicitation, the “covered area” is California, Riverside County, Palm Springs.

Reference: 41 CFR Part 60-4
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FAA – 03 Breach of Contract
APPLICABILITY – required for all c ontracts that exceed the simplified acquisition threshol d as stated in 2 C FR Part 200, Appendix II (A). This threshold is occasionally adjusted for inflation and is $250,000.

REQUIREMENT -
See Section 4.5 of the Agreement.

Reference: 2 CFR § 200 Appendix II(A)
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FAA – 04 Buy American Preferences
APPLICABILITY – required for contracts defined as follows:
• Construction Projects involving the replacement, rehabilitation, reconstruction of airfield surfaces such as on runways, taxiways, taxilanes, aprons, roadw ays, parking lots, etc. – I nsert the Certificate of compliance to FAA Buy Ameri can Preference based on Construction Projects.
• Equipment and B uildings Projects involving and including the acquisition of equipment such as snow removal equipment, navigational aids, wind cones, and the construction of buildings such as hangars, terminal development, lighting vaults, aircr aft rescue & firefighting buildings, etc. - Insert the Certificate of Compliance with FAA Buy American Preference Based on Equipment/Building Projects.

REQUIREMENT -
The Contractor certifies that all constructions mater ials, defined to mean an article, ma terial, or supply other than an item of primarily iron or steel; a manufactured product; cement and cementitious materials; aggregates such as stone, sand, or gravel; or aggregate binding agents or additives that are or consist p rimarily of: non -ferrous me tals; plastic and polymer -based products (including polyvinylchloride, composite building materials, and polymers used in fiber optic cables) ; glass (including optic glass); lumber; or drywall used in the project are manufactured in the U.S.

Reference: Title 49 USC § 50101
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FAA – 05 Civil Rights General
APPLICABILITY – required for all contracts regardless of funding source.

REQUIREMENT -
In all its activities within the scope of its airport program, the Contractor agrees to comply with pertinent statutes, Executive Orders, and such rules as identified in Title VI List of Pertinent Nondiscrimination Acts and Authorities to ensure that no per son shall, on the grounds of race, color, national origin (including limited English proficiency), creed, sex (including sexual orientation and gender identity), age, or disability be excluded from participating in any activity conducted with or benefiting from Federal assistance. The above provision binds the Contractor and subcontractors from the bid solicitation period through the completion of the contract.

This provision is in addition to that required by Title VI of the Civil Rights Act of 1964.

Reference: 49 USC § 47123
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FAA – 06 Civil Rights – Title VI Assurances
APPLICABILITY – required for all contracts.

REQUIREMENT -
Title VI List of Pertinent Nondiscrimination Acts and Authorities During the performance of this contract, the Contractor, for its elf, its assignees, and successors in interest (hereinafter referred to as the “C ontractor”) agrees to comply with the following non- discrimination statutes and authorities; including but not limited to:
• Title VI of the Civil Rights Act of 1964 (42 USC § 2 000d et seq., 78 stat. 252) (prohibits discrimination on the basis of race, color, national origin); • 49 CFR part 21 (Non -discrimination in Federally -Assisted progra ms of the Department of Transportation—Effectuation of Title VI of the Civil Rights Act of 1964); • The Uniform Relocation Assistance and Real Property Acquisition Policies Ac t of 1970, (42 USC § 4601) (prohibits unfair treatment of persons displaced or whose property has been acquired because of Federal or Federal-aid programs and projects); • Section 504 of the Rehabilitation Act of 1973 (29 USC § 794 et seq.), as am ended (prohibits discrimination on the basis of disability); and 49 CFR part 27 (Nondiscrimination on the Basis of Disability in Programs or Activities Receiving Federal Financial Assistance); • The Age Discrimination Act of 1975, as amended (42 USC § 6101 et seq.) (prohibits discrimination on the basis of age);
• Airport and Airway Improvement Act of 1982 (49 USC § 47123), as amended (prohibits discrimination based on race, creed, color, national origin, or sex); • The Civil Right s Restoration Act of 1987 (PL 100-259) (broadened the scope, coverage and applicability of Title VI of the Civil Rights Act of 1964, the Age Discrimination Act of 1975 and Section 504 of the Rehabilit ation Act of 1973, by expanding the definition of the terms “programs or activities” to include all of the programs or activities of the Federal- aid recipients, sub-recipients and contractors, whether such programs or activities are Federally funded or not);
• Titles II and III of the Americans with Disabilitie s Act of 1990 (42 USC § 12101, et seq) (prohibit discrimination on the basis of disability in the operation of public entities, public and private transportation systems, places of public accommodation, and certain testing entities) as implemented by U.S. Department of Transportation regulations at 49 CFR parts 37 and 38; • The Federal Aviation Administration’s Nondiscrimination statute (49 USC § 47123) (prohibits discrimination on the basis of race, color, national origin, and sex); • Executive Order 12898, Federal Actions to Addr ess Environmental Justice in Minorit y Populations and Low- Income Populations (ensures nondiscrimination against minority populations by discouraging programs, policies, and ac tivities with disp roportionately high and adverse human health or environmental effects on minority and low-income populations); Item 1S - Page 74

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• Executive Order 13166, Improving Acces s to Services for Persons with Limited English Proficiency, and resulting agency guidance, national origin discrimination includes discrimination because of limited English proficiency (LEP). To ensure compliance with Title VI, you must take reasonable steps to ensure that LEP persons have meaningful access to your programs [70 Fed. Reg. 74087 (2005)];
• Title IX of the Education Amendments of 1972, as amended, which pr ohibits you from discriminating because of sex in education programs or activities (20 USC § 1681, et seq).

Compliance with Nondiscrimination Requirements:

During the performance of this contract, the Contractor, for itself, its assignees, and successors in interest (hereinafter referred to as the “Contractor”), agrees as follows:

1. Compliance with Regulations: The Contractor (hereinafter includes consultants) wi ll comply with the Title VI List of Pertinent Nondiscrimination Acts and Authorities, as they may be amended from time to time, which are herein incorporated by reference and made a part of this contract.

2. Nondiscrimination: The Contractor, with regard to the work p erformed by it during the contract, will not discriminate on the grounds of race, color, national origin (including limited English proficiency), creed, sex (including sexual orientation and gender identity), age, or disability in the selection and retenti on of subcontractors, including procurements of materials and leases of equipment . The Contractor will not participate directly or indirectly in the discrimination prohibited by the Nondiscrimination Acts and Authorities, including employment practices when the contract covers any activity, project, or program set forth in Appendix B of 49 CFR part 21.

3. Solicitations for Subcontracts, including Procurements of Materia ls and Equipment:

In all solicitations, either by competitive bidding or negotiation m ade by the Contractor for work to be performed under a subcontract, including procurement s of materials, or leases of equipment, each potential subcontractor or supplier will be notified by the Contractor of the Contractor’s obligations under this contract a nd the Nondiscrimination Acts and Authorities on the grounds of race, color, or national origin.

4. Information and Reports: The Contractor will provide all information and reports required by the Acts, the Regulations, and directives issued pursuant th ereto and will permit access to its books, records, accounts, other sources of inf ormation, and its facilities as m ay be determined by the City or the Federal Aviation Administration to be pertinent to ascertain compliance with such Nondiscrimination Ac ts and Authorities and instructions. Where any information required of a C ontractor is in the exclusive possession of another who fails or refuses to furnish the information, the Contractor will so certify to the City or the Federal Aviation Administration, as appropriate, and will set forth what efforts it has made to obtain the information.

5. Sanctions for Noncompliance: I n the event of a Contractor’s noncompliance with the non-discrimination provisions of this contract, the City w ill impose such contr act sanctions as it or the Federal Aviation Administration may determine to be app ropriate, including, but not limited to:

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a. Withholding payments to the Contractor under the contract until the Contractor complies; and/or
b. Cancelling, terminating, or suspending a contract, in whole or in part.

6. Incorporation of Provisions: The Cont ractor w ill include the provisions of paragraphs one through six in every subcontract, including procurements of materials and leases of equipment, unless exempt by the Acts, the Regulations, and directives issued pursuant thereto. The Contractor will take action with respect to any subcontract or procurement as the City or the Federal Aviation Administration may direct as a means of enforcing such provisions including sanctions for noncompliance. Provided, that if the Contractor becomes involved in, or i s threatened with litigation by a subcontractor, or supplier because of such direction, the Contractor may request the City to enter into any litigation to protect the interests of the City. In addition, the Contractor may request the United States to ent er into the litigation to protect the interests of the United States.

Reference: 49 USC § 47123, FAA Order 1400.11
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FAA – 07 Clean Air/Water Pollution Control
APPLICABILITY – This provision is required for all contracts and lower tier contracts that exceed $150,000.

REQUIREMENT -
If the Agreement exceeds $150,000, Contractor agrees to comply with all applicable standards, orders, and regulations issued pursuant to the Clean Air Act (42 USC § 740 1-7671q) and the Federal Water Pollution Control Act as amended (33 USC § 1251-1387). The Contractor agrees to report any violation to the City immediately upon discovery. The City assumes responsibility for notifying the Environment al Protection Agency (EPA) and the Federal Aviation Administration.

Contractor must include this requirement in all subcontracts that exceeds $150,000.

Reference: 2 CFR § 200, Appendix II(G); 42 USC § 7401; 33 USC § 1251

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FAA – 08 Contract Work Hours and Safety Standards
APPLICABILITY – This provision is required for contracts as follows:

Contract Work H ours and Safet y Standards Act Requirements ( CWHSSA) (40 USC §§ 3702 & 3704) requires contractors and subcontractors on covered contracts to pay laborers and mechanics employed in the performance of the cont racts not less than one and one- half times their basic rate of pay for all hours worked over 40 in a workweek.

CWHSSA prohibits unsanitary, hazardous, or dangerous working conditions on federally - assisted projects. The Wage and Hour Division (WHD) within the U.S. Department of Labor (DOL) e nforces the compensation requi rements of this Act, while DOL’ s Occupational Safety and Health Administration (OSHA) enforces the safety and health requirements.

Contract Types –
Construction – This provision applies to all contracts and lower tier contracts that exceed $100,000, and employ laborers, mechanics, watchmen, and guards.

Equipment – This provision applies to any equipment project exceeding $100,000 that involves installation of equipment onsite (e.g., electrical vault equipment). This provision does not apply to equipment acquisition projects where the manufacture of the equipment takes place offsite at the vendor plant (e.g., ARFF and SRE vehicles).

Professional Services – This provision applies to professional service agreements that exceed $100,000 and employs laborers, mechanics, watchmen, and guards . This includes members of survey crews and exploratory drilling operations.

Property – While m ost land t ransactions do not involve employment of laborers, mechanics, watchmen, and guards, under certain circumstances, a property acquisition project could require such employment. Examples include the installation of property fencing or testing for environmental contamination

CONTRACT WORKHOURS AND SAFETY STANDARDS ACT REQUIREMENTS

1. Overtime Requirements.

No contractor or subcontractor contracting for any part of the contrac t work which may require or involve the employment of laborers or mechanics shall requi re or permit any such laborer or mechanic, including watchmen and guards, in any workweek in which he or she is employed on such work to work in excess of forty hours in such workweek unless such laborer or mechanic receives compensation at a rate not les s than one and one-half times the basic rate of pay for all hours worked in excess of forty hours in such workweek.

2. Violation; Liability for Unpaid Wages; Liquidated Damages.

In the event of any violation of the clause set forth in paragraph (1) of thi s clause, the Contractor and any subcontractor responsible therefor shall be liable f or the unpaid wages. In addition, such contractor and subcontractor shall be liable to the United States (in the case of work done under contract for the District of Colum bia or a territory, to such District or to such territory), for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic, including watchmen and guards, employed in violation of the clause set forth in paragraph (1) of this clause, in the sum of $29 for each calendar day on which su ch in dividual was required or permitted to work in excess of the sta ndard workweek of forty hours without payment of the overtime wages required by the clause set forth in paragraph (1) of this clause.

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3. Withholding for Unpaid Wages and Liquidated Damages.

The Federal Aviation Administration (FAA) or the City shall upon its own action or upon written request of an authorized representative of the Department of Labor withhol d or cause to be withheld, from any moneys payable on account of work performed by t he Contractor or subcontractor under any such contract or any other Federal contract with the same prime C ontractor, or any other federally -assisted contract subject to the Contract Work Hours and Safety Standards Act, which is held by the same prime Contractor, such sums as may be determined to be necessary to satisfy any liabilities of such Contractor or subcontractor for unpaid wages and liquidated damages as provided in the clause set forth in paragraph (2) of this clause.

4. Subcontractors.

The Contractor or subcontractor shall insert in any subcontracts the clauses set forth in paragraphs (1) through (4) and also a clause requiring the subcontractor to include these clauses in any lower tier subcontracts. The prime contractor shall be responsible for compliance by any subcontractor or lower tier subcontractor with t he clauses set forth in paragraphs (1) through (4) of this clause.

Reference: 2 CFR Part 200, Appendix I I(E); 2 CFR § 5.5(b); 40 USC § 3702; 40 USC § 3704
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F AA – 09 Copeland Anti-Kickback

APPLICABILITY -
The Copeland (Anti-Kickback) Act (18 USC § 874 and 40 USC § 3145) makes it unlawful to induce by force, intimidation, threat of dismissal from employment , or by any other manner, any person employed in the construction or repair of public buildings or public works, financed in whole or in part by the United States, to give up any part of the compensation to which that person is entitled under a contract of employment. The Copeland Act also requires each contr actor and subcontractor to furnish weekly a statement of compliance with respect to the wages paid each employee during the preceding week.

Contract Types –
Construction – This provision applies to al l construction contracts and subcontracts financed under the AIP that exceed $2,000.

Equipment – This provision applies to all equipment installation projects ( e.g., electrical vault improvements) financed under the AIP that exceed $2,000. This provision does not apply to equipment acquisitions where the equipment is manufactured at the vendor’s plant (e.g., SRE and ARFF vehicles).

Professional Services –The emergence of different project delivery methods has created situations where Professional S ervice Agreements (PSAs) include tasks that meet the definiti on of construction, alteration, or repair as defined in 29 CFR Part 5 . If such tasks result in work that qualifies as construction, alteration, or repair and it exceeds $2,000, the PSA must incorporate the Copeland Anti-kickback provision.

Property –Ordinarily, land acquisition projects would not involve employment of laborers or mechanics and thus the Copeland Anti-Kickback provision would not apply. However, land projects that involve installation of b oundary fencing and demolition of structures would involve laborers and mechanics. The City must include this provision if the land acquisition project involves employment of laborers or mechanics for a contract exceeding $2,000.

REQUIREMENT -
Contractor must comply with the requirements of the Copeland “Anti-Kickback” Act (18 USC 874 and 40 USC 3145), as supplemented by Department of Labor regulation 29 CFR part 3. Contractor and subcontractors are prohibited from inducing, by any means, any person e mployed on the project to give up any part of the compe nsation to which the employee is entitled. The Contractor and each Subcontractor must submit to the City , a weekly statement on the wages paid to each employee performing on covered work during the pr ior week. City must report any violations of the Act t o the Federal Aviation Administration.

Reference: 2 CFR Part 200, Appendix II(D); 29 CFR Parts 3 and 5 Item 1S - Page 80

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FAA – 10 Davis Bacon Requirements

APPLICABILITY -
The Davis -Bacon Act (40 USC §§ 3141- 3144, 3146, and 3147) ensures that laborers and mechanics employed under the contract receive pay no less than the locally prevailing wages and fringe benefits as determined by the Department of Labor.

Contract Types –
Construction – all construction contracts and subc ontracts that exceed $2,000 and include funding from the AIP.

Equipment – This provision applies to all equipment installation projects (e.g., electrical vault improvements) financed under the AIP that exceed $ 2,000. This provision does not apply to equipment acquisitions where the equipment is manufact ured at the vendor’s plant (e.g., SRE and ARFF vehicles)
Professional Services – The emergence of different project delivery methods has created situations where Professional Service Agreements (PSAs) i ncludes tasks that meet the definition of construction, alteration, or repair as defined in 29 CFR Part 5. If such tasks result in work that qualifies as construction, alteration, or repair and it exceeds $2,000, the PSA must incorporate this clause.

Property – Ordinarily, land acquisition projects would not i nvolve employment of laborers or mechanics and thus the provision would not apply. However, land projects that involve installation of boundary fencing and demolition of structures would involve labor ers and mechanics. The City must include this provision if the land acquisition project involves employment of laborers or mechanics for a contract exceeding $2,000.

Fencing Projects – Fencing projects that exceed $2,000 must include this provision.

DAVIS-BACON REQUIREMENTS

1. Minimum Wages.
(i) All labor ers and mechanics employed or working upon the site of the work will be paid unconditionally and not less often than once a week, and without subsequent deduction or rebate on any account (except such payroll deductions as are permitted by the Secretary of Labor under the Copeland Act (29 CFR Part 3)), the full amount of wages and bona fide fringe benefits (or cash equivalent thereof) due at time of payment computed at rates not less t han those contained in the wage determination of the Secretary of Labor w hich is attached hereto and made a part hereof, regardless of any contractual relationship which may be alleged to exist between the Contractor and such laborers and mechanics.

Contributions made or costs rea sonably anticipated for bona fide fringe benefi ts under section 1(b)(2) of the Davis-Bacon Act on behalf of laborers or mechanics are considered wages paid to such laborers or mechanics, subject to the provisions of paragraph (1)(iv) of this section; also, regular contributions made or costs incurred f or more than a weekly period (but not less often than quarterly) under plans, funds, or programs which cover the particular weekly period, are deemed to be constructively made or incurred during such weekly period. Such laborers and mechanics shall be paid the appropriate wage rate and fringe benefits on the wage Item 1S - Page 81

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determination for the classification of work actually performed, without regard to skill, except as provided in 29 CFR § 5.5(a)(4). Laborers or mechanics performing work in more than one classification may be compensated at the rate specified for each classification for the time actually worked therein: Provided, that the employer’s payroll records accurately set forth the time spent in each classification in which work is performed. The wage determ ination (including any additional classification and wage rates conformed under (1)(ii) of this section) and the Davis-Bacon poster (WH -1321) shall be posted at all times by the Contractor and its subcontractors at the site of the work in a prominent and accessible place where it can easily be seen by the workers.
(ii)(A) The contracting officer shall require that any class of laborers or mechanics, including helpers, which is not listed in the wage determinati on and which is to be employed under the contract shall be classified in conformance with the wage determination. The contracting officer shall approve an additional classification and wage rate and fringe benefits therefore only when the following criteria have been met:
(1) The work to be performed by the classification requested is not performed by a classification in the wage determination;
(2) The classification is utilized in the area by the construction industry; and (3) The proposed wage rat e, incl uding any bona fide fringe benefits, bears a reasonable relationship to the wage rates contained in the wage determination. (B) If the Contractor and the laborers and mechanics to be employed in the classification (if known), or their representatives, and the contracting officer agree on the classification and wage rate (including the amount designated for fringe benefits where appropriate), a report of the action taken shall be sent by the contracting officer to the Administrator of the Wage and Hour Division, U.S. Department of Labor, Washington, DC 20210. The Administrator, or an authorized representative, will approve, modify, or disapprove every additional classification action within 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30-day period that additional time is necessary. (C) In the event the Contractor, the laborers, or mechanics to be employed in the classification, or their representatives, and the contracting officer do not agree on the proposed classification and wage rate (including the amount designated for fringe benefits, where appropriate), the contracting officer shall refer the questions, including the views of all interested parties and the recommendation of the contracting o fficer, to the Administrator for determination. The Administrator, or an authorized representative, will issue a determination within 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30-day period that additional time is necessary.
(D) The wage rate (including fringe benefits where appropriate) determined pursuant to subparagraphs (1)(ii) (B) or (C) of this paragraph, shall be paid to all workers performing work in the classification under this cont ract from the first day on which work is perfor med in the classification.
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shall either pay the benefit as stated in the wage determination or shall pay another bona fide fringe benefit or an hourly cash equivalent thereof.
(iv) If the Contractor does not make payments to a trustee or other third person, the Contractor may consider as part of the wages of any laborer or mec hanic the amount of any costs reasonably anticipated in providing bona fide fringe benefits under a plan or program, Provided, that the Secretary of Labor has found, upon the written request of the Cont ractor, that the applicable standards of the Davis -Bacon A ct have been met. The Secretary of Labor may require the Contractor to set aside in a separate account assets for the meeting of obligations under the plan or program.

2. Withholding. The Federal Aviation Administration or the CIty shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld from the Contractor under this contract or any other Federal contract with t he same prime contractor, or any other federally -assisted contract subject to Davis -Bacon prevailing wage requirements, which is held by the same prime contractor, so much of the accrued payments or advances as may be considered necessary to pay laborers and mechani cs, including apprentices, trainees, and hel pers, employed by the Contractor or any subcontractor the full amount of wages required by the contract. In the event of failure to pay any laborer or mechanic, including any apprentice, trainee, or helper, employed or working on the site of the work, all or part of the wages required by the contract, the Federal Aviation Administration may, after written notice to the Contractor, City, Applicant, or Owner, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds until such violations have ceased.

3. Payrolls and Basic Records.
(i) Payrolls and basic records relating thereto shall be maintained by the Contractor during the course of the work and preserved for a period of three years thereafter for all laborers and mechanics working at the site of the work. Such records shall contain the name, address, and social security number of each such worker; his or her correct classification; hourly rates of wages paid (including rates of contributions or costs anticipated for bona fide fringe benefits or cash equivalents thereof of the types described in 1(b)(2)(B) of the Davis -Bacon Act); daily and weekly number of hours worked; deductions made; and actual wages paid. Whenever the Secretary of Labor has found under 29 CFR 5.5(a)(1)(iv) that the wages of any laborer or mechanic include the amount of any costs reasonably anticipated in providing benefits under a plan or program described in section 1(b)(2)(B) of the Dav is-Bacon Act, the Contractor shall maintain records that show that the commitment to provide such benefits is enforceable, that the plan or program is financially responsible, and that the plan or program has been communicated in writing to the laborers or mechanics affected, and records which show the costs anticipated or the actual costs incurred in providing such benefits. Contractors employing apprentices or trainees under approved programs shall maintain written evidence of the registration o f apprenticeship programs and certification of trainee programs, the registration of the apprentices and trainees, and the ratios and wage rates prescribed in the applicable programs. (ii)(A) The Contractor shall submit weekly for each week in which any contract work is performed a copy of all payrolls to the Federal Aviation Administration if the agency is a party to the contract, but if the agency is not such a party, the Contractor will submit the payrolls to the applicant, the City , or Owner, as the case may be, for transmission to the Federal Aviation Item 1S - Page 83

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Administration. The payrolls submitted shall set out accurately and completely all of the information required to be maintained under 29 CFR § 5.5(a)(3)(i), except that full social security numbers and home addresses shall not be included on weekly transmittals. Instead the payrolls shall only need to include an individually identifying number for each employee (e.g., the last four digits of the employee’s social security number). The required weekly payroll informa tion may be submitted in any form desired. Optional Form WH–347 is available for this purpose from the Wage and Hour Division Web site at http://www.dol.gov/esa/whd/forms/wh347instr.htm or its successor site. The prime contractor is responsible for the submission of copies of payrolls by all subcontractors. Contractors and subcontractors shall maintain the full social security number and current address of each covered worker and shall provide them upon request to the Federal Aviation Administration if the agency is a party to the contract, but if the agency is not such a party, the Contractor will submit them to the applicant, the City, or Owner, as the case may be, for transmission to the Federal Aviation Administration, the Contractor, or the Wage and Hour Division of the Department of Labor for purposes of an investigation or audit of compliance with prevailing wage requirements. It is not a violation of this section for a prime contractor to require a subcontractor to provide addresses and social security numbers to the prime contractor for its own records, without weekly submission to the sponsoring government agency (or the applicant, City, or Owner).
(B) Each payroll submitted shall be accompanied by a "Statement of Compliance," signed by the Contractor or subcontractor or his or her agent who pay s or supervises the payment of the persons employed under the contract and shall certify the following:
(1) That the payroll for the payroll period contains the information required to be provided under 29 CFR § 5.5(a)(3)(ii), the appropriate information is being maintained under 29 CFR § 5.5 (a)(3)(i), and that such information is correct and complete; (2) That each laborer and mechanic (including each helper, apprentice, and trainee) employed on the contract d uring the payroll period has been paid the ful l weekly wages earned, without rebate, either directly or indirectly, and that no deductions have been made either directly or indirectly from the full wages earned, other than permissible deductions as set for th in Regulations, 29 CFR Part 3;
(3) That ea ch laborer or mechanic has been paid not less than the applicable wage rates and fringe benefits or cash equivalents for the classification of work performed, as specified in the applicable wage determination incorporated into the contract. (C) The weekly submission of a properly executed certification set forth on the reverse side of Optional Form WH -347 shall satisfy the requirement for submission of the “Statement of Compliance” required by paragraph (3)(ii)(B) of this section. (D) The falsification of any of the above certifications may subject the Contractor or subcontractor to civil or criminal prosecution under Section 1001 of Title 18 and Section 231 of Title 31 of the United States Code.
(iii) The Contractor or subcontractor shall make the records r equired under paragraph (3)(i) of this section available for inspection, copying, or transcription by authorized representatives of the City, the Federal Aviation Administration, or the Department of Labor and shall permit such representatives to interview employees during working hours on the job. If the Contractor or subcontractor fails to submit the required records or to make them available, the Federal agency Item 1S - Page 84

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may, after written notice to the Contractor, the City, applicant, or Owner, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds. Furthermore, failure to submit the required records upon request or to make such records available may be grounds for debarment action pursuant to 29 CFR § 5.12.

4. Apprentices and Trainees.
(i) Apprentices. Apprentices will be permitted to work at less than the predetermined rate for the work they performed when they are employed pursuant to and individually registered in a bona fide apprenticeship program registered with the U.S. Department of Labor, Employment and Training Administration, Office of Apprenticeship Training, Employer and Labor Services, or with a State Apprenticeship Agency recognized by the Office, or if a person is employed in his or her first 90 days of probationary employment as an apprentice in such an apprenticeship program, who is not individually registered in the program, but who has been certified by the Office of Apprenticeship Training, Employer and Labor Services or a State Appr enticeship Agency (where appropriate) to be eligible for probationary employment as an apprentice. The allowable ratio of apprentices to journeymen on the job site in any craft classification shall not be greater than the ratio permitted to the contractor as to the entire work force under the registered program. Any worker listed on a payroll at an apprentice wage rate, who is not registered or otherwise employed as stated above, shall be paid not less than the applicable wage rate on the wage determination for the classification of work actually performed. In addition, any apprentice performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. Where a contractor is performing construction on a project in a locality other than that in which its program is registered, the ratios and wage rates (expressed in percentages of the journeyman’s hourly rate) specified in the Contractor’s or subcontractor’s registered program shall be observed. Every apprentice must be paid at not less than the rate specified in the registered program for the apprentice’s level of p rogress, expressed as a percentage of the journeymen hourly rate spec ified in the applicable wage determination.

Apprentices shall be paid fringe benefits in accordance with the provisions of the apprenticeship program. If the apprenticeship program does not speci fy fringe benefits, apprentices must be paid the full amount of fringe benefits listed on the wage determination for the applicable classification. If the Administrator determines that a different practice prevails for the applicable apprentice classificat ion, fring es shall be paid in accordance with that det ermination. In the event the Office of Apprenticeship Training, Employer and Labor Services, or a State Apprenticeship Agency recognized by the Office, withdraws approval of an apprenticeship program, the Contractor will no longer be permitted to utilize apprentices at less than the applicable predetermined rate for the work performed until an acceptable program is approved. (ii) Trainees. Except as provided in 29 CFR § 5.16, trainees will not be permitted to work at less than the predetermined rate for the work performed unless they are employed pursuant to and individually registered in a program which has received prior approval, evidenced by formal certification by the U.S. Department of Labor , Employ ment and Training Administration. The ratio of trainees to journeymen on the job site shall not be greater than permitted under the plan approved by the Employment and Training Administration. Every trainee must be paid at not less than the rate sp ecified in the approved program for the trainee’s level of progress, expressed as a percentage of the journeyman hourly rate specified in the applicable wage determination. Trainees shall be paid fringe benefits in accordance with the provisions of the Item 1S - Page 85

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trainee program. If t he trainee program does not mention fringe benefits , trainees shall be paid the full amount of fringe benefits listed on the wage determination unless the Administrator of the Wage and Hour Division determines that there is an apprenticeship program associated with the corresponding journeyman wage rate on the wage determination that provides for less than full fringe benefits for apprentices. Any employee listed on the payroll at a trainee rate that is not registered and participating in a train ing plan approved by the Employment and Training Administration shall be paid not less than the applicable wage rate on the wage determination for the classification of work actually performed. In addition, any trainee performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. In the event the Employment and Training Administration withdraws approval of a training program, the Contractor will no longer be permitted to ut ilize trainees at less than the applicable predetermined rate for the work performed until an acceptable program is approved. (iii) Equal Employment Opportunity. The utilization of appr entices, trainees, and journeymen under this part shall be in conform ity with the equal employment opportunity requirements of Executive Order 11246, as amended, and 29 CFR Part 30.

5. Compliance with Copeland Act Requirements.

The Contractor shall comply with the requirements of 29 CFR Part 3, which are incorporated by reference in this contract.

6. Subcontracts.

The Contractor or subcontractor shall insert in any subcontracts the clauses contained in 29 CFR §§ 5.5(a)(1) through (10) and such other clauses as the Federal Aviation Administration may by appropriate ins tructions require, and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The prime contractor shall be responsible for the compliance by any subcontractor or lower tier subcontractor with all the contract clauses in 29 CFR § 5.5.

7. Contract Termination: Debarment.

A breach of the contract clauses in paragraph 1 through 10 of this section may be grounds for termination of the contract, and for debarment as a contractor and a subcontractor as provided in 29 CFR § 5.12.

8. Compliance with Davis-Bacon and Related Act Requirements.

All rulings and interpretations of the Davis -Bacon and Related Acts contained in 29 CFR Parts 1, 3, and 5 are herein incorporated by reference in this contract.

9. Disputes Concerning Labor Standards.

Disputes arising out of the labor standards provisions of this contract shall not be subject to the general disputes clause of this contract. Such disputes shall be resolved in accordance with the procedures of the Department of Labor set forth in 29 CFR Parts 5, 6, and 7. Disputes within the meaning of this clause include disputes between the Contractor (or any of its subcontractors) and the contracting agency, the U.S. Department of Labor, or the employees or their representatives.

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10. Certification of Eligibility.
(i) By entering into this contract, the Contractor certifies that neither it (nor he or she) nor any person or firm who has an interest in the Contractor’s firm is a person or firm ineligible to be awarded Government contrac ts by v irtue of section 3(a) of the Davis -Bacon Act or 29 CFR §

5.12(a)(1).
(ii) No part of this contract shall be subcontracted to any person or firm ineligible for award of a Government contract by virtue of section 3(a) of the Davis-Bacon Act or 29 CFR § 5.12(a)(1). (iii) The penalty for making false statements is prescribed in the U.S. Criminal Code, 18 USC § 1001.

Reference: 2 CFR Part 200, Appendix II(D) ; 29 CFR Part 5; 49 USC § 47112(b) ; 40 USC §§ 3141-3144, 3146, and 3147
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FAA – 11 Debarment and Suspension
APPLICABILITY - This requirement applies to covered transactions, which are defined in 2 CFR part 180 (Subpart B). AIP funded contracts are non- procurement transactions, as defined by 2 CFR § 180.970. Covered transactions include any AIP -funded contract, regardless of tier, that is awarded by a contractor, subcontractor, supplier, consultant, or its agent or representative in any transaction, if the amount of the contract is expected to equal o r exceed $25,000. This includes contracts associated with land acquisition projects.

REQUIREMENT -
A11.3.1 Bidder or Offeror Certification
By submitting a bid/proposal under the solicitation for this contract, the Contractor must have certified that neit her it nor its principals are presently debarred or suspended by any Federal department or agency from participation in this transaction.

A11.3.2 Lower Tier Contract Certification

CERTIFICATION OF LOWER TIER CONTRACTORS REGARDING DEBARMENT The Contractor, by administering each lower tier subcontract that exce eds $25,000 as a “covered transaction”, must verify each lower tier participant of a “covered transaction” under the project is not presently debarred or otherwise disqualified from participation in thi s federally assisted project. The Contractor will accomplish this by:

1. Checking the System for Award Management at website: http://www.sam.gov.

2. Collecting a certification statement similar to the Certification of Offerer /Bidder Regarding Debarment, above.

3. Inserting a clause or condition in the covered transaction with the lower tier contract.

If the Federal Aviation Administration later determines that a lower tier participant failed to disclose to a higher tier participant that it was excluded or disqualified at the time it entered the covered tr ansaction, the FAA may pursue any available remedies, including suspension and debarment of the non-compliant participant.

Reference: 2 CFR part 180 (Subpart B), 2 CFR part 200 Appendix II(H), 2 CFR Part 1200, DOT Order 4200.5; Executive Orders 12549 and 12689
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FAA – 12 Disadvantaged Business Enterprise
APPLICABILITY – all contracts with Airports that have a DBE program on file with the FAA.

Contract Assurance (§ 26.13) –
The Contractor or subcontractor s hall not discriminate on the basis of race, color, nat ional origin, or sex in the performance of this contract. The Contractor shall carry out applicable requirements of 49 CFR part 26 in the award and administration of Department of Transportation-assisted contracts. Failure by the Contractor to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy as the City deems appropriate, which may include, but is not limited to:
1) Withholding monthly progress payments;
2) Assessin g sanctions;
3) Liquidated damages; and/or
4) Disqualifying the Contractor from future bidding as non-responsible.

Prompt Payment (§26.29) – The prime contractor agrees to pay each subcontractor under t his prime contract for satisfactory performance of its contract no later than [10 days] days from the receipt of each payment the prime contractor receives from [the City]. The prime contracto r agrees further to return retainage payments to each subcontrac tor within [30 days] days after the subcon tractor’s wo rk is satisfactorily completed. Any delay or postponement of payment from the above referenced time frame may occur only for good cause following written approval of the [City]. This clause applies to both DBE and non-DBE subcontractors.

Termination of DBE Subcontracts (49 CFR § 26.53(f)) –
The prime C ontractor must not terminate a DBE subcontractor listed in response to the solicitation (or an approved substitute DBE firm) without prior written consent of the City. This includes, but is not limited to, i nstances in which the prime contractor seeks to perform work originally designated for a DBE subcontractor with its own forces or those of an affiliate, a non - DBE firm, or with another DBE firm.

The prime Contractor shall utilize the specific DBEs listed t o perform the work and supply the materials for which each is listed unless the C ontractor obtains written consent of the City.

Unless City consent is provided, the prime Contractor shall not be entitled to any pa yment for work or material unless it is performed or supplied by the listed DBE.

The City may provide such written consent only if the City agrees, for reasons stated in the concurrence document, that the prime Contractor has good cause to terminate the DB E firm.

For purposes of this paragraph, good cause includes the circumstances listed in 49 CFR §26.53.

Before transmitting to the City its request to terminate and/or substitute a DBE subcontractor, the prime C ontractor must give notice in writing to the D BE subcontractor, with a copy to the City, of its intent to request to terminate and/or substitute, and the reason for the request.

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termination of its subcontract and why the City should not approve the prime C ontractor's action. If required in a particular case as a matter of public necessity (e.g., safety), the City may provide a response period shorter than five days.

In addition to post-award terminations, the provisions of this section apply to preaward deletions of or substitutions for DBE firms put forward by offerors in negotiated procurements.

Reference: 49 CFR part 26
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FAA – 13 Distracted Driving
APPLICABILITY - contracts that exceed the micro-purchase threshold of 2 CFR § 200.320 (currently set at $10,000).

REQUIREMENT -

TEXTING WHEN DRIVING
In accordance with Executive Order 13513, “Federal Leadership on Reducing Text Messaging While Driving”, (10/1/2009) and DOT Order 3902.10, “Text Messaging While Driving”, (12/30/2009), the Federal Aviation Administration encourages recipients of Federal g rant funds to adopt and enforce safety policies that decrease crashes by distracted drivers, including policies to ban text messaging while driving when performing work related to a gran t or subgrant.

In support of this initiative, the City encourages the Contractor to promote policies and initiatives for its employees and other work personnel that decrease crashes by distract ed drivers, including policies that ban text messaging while driving motor vehicles while performing work activities associated with the project. The Contractor must include the substance of thi s clause in all sub-tier contracts exceeding $10,000 that involve driving a motor vehicle in performance of work activities associated with the project.

Reference: Executive Order 13513, DOT Order 3902.10
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FAA – 14 Prohibition on Certain Telecommunications and Video Surveillance Services and Equipment
APPLICABILITY - all AIP funded contracts and lower-tier contracts.

REQUIREMENT -
Contractor and Subcontractor agree to comply with mandatory standards and policies relating to use and procurement of certain telecommunications and video surveillance services or equipment in compliance with the National Defense Authorization Act [Public Law 115- 232 § 889(f)(1)].

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FAA – 15 Drug Free Workplace Requirements
APPLICABILITY - This provision applies to all AIP funded proje cts, but not to the contracts between the City and a contractor, subcontractors, suppliers, or subgrantees.

The Drug -Free Work place Act of 1988 requires some Federal contractors and all Federal grantees to agree that they will provide drug -free work places as a condition of receiving a contract or grant from a Federal agency. The Act does not apply to contractors, subcontractors, or subgrantees, although the Federal grantees workplace may be where the contractors, subcontractors, or subgrantees are working.

Reference: 49 CFR part 32, Drug-Free Workplace Act of 1988 (41 U.S.C. 701 et seq., as amended)

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FAA – 16 Equal Employment Opportunity
APPLICABILITY – The purpose of this provision is to provide equal opportunity for all persons, without regard to r ace, co lor, religion, sex, or national origin who are employed or seeking employment with contractors performing under a federally-assisted construction contract. There are two provisions ― a construction clause and a specification clause.

The equal opportunity contract clause applies to any contract or subcontract when the amount exceeds $10,000. Once the equal opportunity clause is determined to be applicable, the contract or subcontract must include the clause for the remainder of the year, regardless of the amount or the contract.

Contract Types –
Construction – all construction contracts and subcontracts as required above.

Equipment – all equipment contracts as required above that involves installation of equipment onsite (e.g., electrical vault equipment). This provision does not apply to equipment acquisition projects where the manufacture of the equipment takes place offsite at the vendor plant (e.g., ARFF and SRE vehicles).

Professional Services – all professional service agreements as required above.

Property – all land acquisition projects that include work that qualifies as construction work as defined by 41 CFR part 60 as required above. An example is installation of boundary fencing.

REQUIREMENT -
A16.3.1 EEO Contract Clause
During the performance of this contract, the Contractor agrees as follows:
(1) The Contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, sexual orientation, gender identity, or national origin.

The Contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex, sexual orientation, gender identify, or national origin. Such action shall include, but not be limited to, the following: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff, or termination; rates of pay or other forms of compensation; and s election f or training, including apprenticeship. The Contract or agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided setting forth the provisions of this nondiscrimination clause. (2) The Contractor will, in all solicitations or advertisements for employees placed by or on behalf of the Contractor, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin.
(3) The contractor will not discharge or in any other manner discriminate against any employee or applicant for employment because such employee or applicant has inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant. This provision shall not apply to instances in which an employee who has Item 1S - Page 94

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access to the compensation information of other employees or applicants as a part of such employee's essential job functions discloses t he compensation of such other employees or applicants to individuals who do not otherwise have access to such information, unless such disclosure is in response to a formal complaint or charge, in furtherance of an investigation, proceeding, hearing, or ac tion, including an investigation conducted by the employer, or is consistent with the contractor's legal duty to furnish information. (4) The Contractor will send to each labor union or representative of workers with which it has a collective bargaining agreement or other contract or understanding, a notice to be provided by the agency contracting officer, advising the labor union or workers’ representative of the Contractor’s commitments under this section 202 of Executive Order 11246 of September 24, 1965, and shall post copies of the notice in conspicuous places available to employees and applicants for employment.
(5) The Contractor will comply with all provisions of Executive Order 11246 of September 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor. (6) The Contractor will furnish all inf ormation and reports required by Executive Order 11246 of September 24, 1965, and by the rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to his books, records, and accounts by the contracting agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders.
(7) In the event of the Contractor’s noncompliance w ith the nondiscrimination clauses of this contract or with any such rules, regulations, or orders, this contract may be canceled, terminated, or suspended in whole or in part and the Contractor may be declared ineligible for further Government contracts in accordance with procedures authorized in Executive Order 11246 of September 24, 1965, and such other sanctions may be imposed and remedies invoked as provided in Executive Order 11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law. (8) The Contractor will include the provisions of paragraphs (1) through (8) in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to section 204 of Executive Order 11246 of September 24, 1965, so that such provisions will be binding upon each subcontractor or vendor. The Contractor will take such action with respect to any subcontract or purchase order as may be directed by the Secretary of Labor as a means of enforcing such provisions, including sanctions for noncompliance: Provided, however, that in the event the contractor becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction, the Contractor may request the United States to enter into such litigation to protect the interests of the United States.

A16.3.2 EEO Specification

STANDARD FEDERAL EQUAL EMPLOYMENT OPPORTUNITY

CONSTRUCTION CONTRACT SPECIFICATIONS
a. “Covered area” means the geographical area described in the solicitation from which this contract resulted;
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b. “Director” means Director, Office of Federal Contract Compliance Programs (OFCCP), U.S.

Department of Labor, or any person to whom the Director delegates authority; c. “Em ployer identification number” means the Federal social security number used on the Employer’s Quarterly Federal Tax Return, U.S. Treasury Department Form 941; d. “Minority” includes:
(1) Black (all persons having origins in any of the Black African racial groups not of Hispanic origin);
(2) Hispanic (all persons of Mexican, Puerto Rican, Cuban, Central or South American, or other Spanish culture or origin, regardless of race);
(3) Asian and Pacific Islander (all persons having origins in any of the ori ginal peoples of the Far East, Southeast Asia, the Indian Subcontinent, or the Pacific Islands); and (4) American Indian or Alaskan native (all persons having origins in any of the original peoples of North America and maintaining identifiable tribal affiliations through membership and participation or community identification).

2. Whenever the Contractor, or any subcontractor at any tier, subcontracts a portion of the work involving any construction trade, it shall physically include in each subcontract in excess of $10,000 the provisions of these specifications and the Notice which contains the applicable goals for minority and female participation and which is set forth in the solicitations from which this contract resulted.

3. If the Contrac tor is participating (pursuant to 41 CFR part 60 -4.5) in a Hometown Plan approved by the U.S. Department of Labor in the covered area either individually or through an association, its affirmative action obligations on all work in the Plan area (including goals and timetables) shall be in accordance with that Plan f or those trades which have unions participating in the Plan. Contractors must be able to demonstrate their participation in and compliance with the provisions of any such Hometown Plan. Each contractor or subcontractor participating in an approved plan is individually required to comply with its obligations under the EEO clause and to make a good faith effort to achieve each goal under the Plan in each trade in which it has employees. The overall good fai th performance by other contractors or subcontractors toward a goal in an approved Plan does not excuse any covered contractor’s or subcontractor’s failure to take good faith efforts to achieve the Plan goals and timetables.

4. T he Contractor shall implem ent the specific affirmative action standards provided in paragraphs 7a through 7p of these specifications. The goals set forth in the solicitation from which this contract resulted are expressed as percentages of the total hours of employment and training of minority and female utilization the Contractor should reasonably be able to achieve in each construction trade in which it has employees in the covered area. Covered construction contractors performing construction work in a geographical areas where they do not have a Federal or federally assisted construction contract shall apply the minority and female goals established for the geographical area where the work is being performed. Goals are published periodically in the Fede ral Register in notice for m, and such notices may be obtained from any Office of Federal Contract Compliance Programs office or from Federal procurement contracting officers.

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The Contractor is expected to make substantially uniform progress in meeting its goals in each craft during the period specified.

5. Neither the provisions of any collective bargaining agreement, nor the failure by a union with whom the Contractor has a collective bargaining agreement, to refer either minorities or women shall excuse the Contractor’s obligations under these specifications, Executive Order 11246, or the regulations promulgated pursuant thereto.

6. In order for the nonworking training hours of apprentices and trainees to be counted in meeting the goals, such apprentices and trainees m ust be emp loyed by the Contractor during the training period, and the Contractor must have made a commitment to employ the apprentices and trainees at the completion of their training, subject to the availability of employment opportunities. Trainees must be trained pursuant to training programs approved by the U.S. Department of Labor.

7. The Contractor shall take specific affirmative actions to ensure equal employment opportunity. The evaluation of the Contractor’s compliance with these specifications shall be based upon its effort to achieve maximum results from its actions. The Contractor shall document these efforts fully, and shall implement affirmative action steps at least as extensive as the following:
a. Ensure and maintain a working environment free of harassment, intimidation, and coercion at all sit es, and in all facilities at which the Contractor’s employees are assigned to work. The Contractor, where possible, will assign two or more women to each construction project. The Contractor shall specifically ensure that all foremen, superintendents, and other onsite supervisory personnel are aware of and carry out the Contractor’s obligation to maintain such a working environment, with specific attention to minority or female individuals working at such sites or in such facilities. b. Establish and maintain a current list of minority and female recruitment sources, provide written notification to minority and female recruitment sources and to community organizations when the Contract or or its u nions have employment opportunities available, and maintain a record of the organizations’ responses. c. Maintain a current file of the names, addresses, and telephone numbers of each minority and female off -the-street applicant and minority or female ref erral from a union, a recruitment source, or community organization and of what action was taken with respect to each such individual. If such individual was sent to the union hiring hall for referral and was not referred back to the Contractor by the uni on or, if referred, not employed by the Contractor, this shall be documented in the file with the reason therefor, along with whatever additional actions the Contractor may have taken. d. Provide immediate written notification to the Director when the uni on or unions with which the Contractor has a collective bargaining agreement has not referred to the Contractor a minority person or woman sent by the Contractor, or when the Contractor has other information that the union referral process has impeded the Contractor ’s efforts to meet its obligations.
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and apprenticeship and trainee progr ams relevant to the Contractor’s employment needs, especially those programs funded or approved by the Department of Labor.

The Contractor shall provide notice of these programs to the sources compiled under 7b above.
f. Disseminate the Contractor’s EEO policy by providing notice of the policy to unions and training programs and requesting their cooperation in assisting the Contractor in meeting its EEO obligations; by including it in any policy manual and collective bargaining agreement; by publicizing it in the company newspaper, annual report, etc.; by specific review of the policy with all management personnel and with all minority and female employees at least once a year; and by posting the company EEO policy on bulletin boards accessible to all emp loyees at each location where construction work is performed.
g. Review, at least annually, the company’s EEO policy and affirmative action obligations under these specifications with all employees having any responsibility for hiring, assignment, l ayoff, termination, or other employment decisions including specifi c review of these items with onsite supervisory personnel such superintendents, general foremen, etc., prior to the initiation of construction work at any job site. A written record shall be made and maintained identifying the time and place of these meet ings, persons attending, subject matter discussed, and disposition of the subject matter. h. Disseminate the Contractor’s EEO policy externally by including it in any advertising in the news media, specif ically including minority and female news media, and providing written notification to and discussing the Contractor’s EEO policy with other contractors and subcontractors with whom the Contractor does or anticipates doing business. i. Direct its recruitment efforts, both oral and written, to minority, female, and community organizations, to schools with minority and female students and to minority and female recruitment and training organizations serving the Contractor’s recruitment area and employment needs. Not later than one month prior to the date for the acceptance of applications for apprenticeship or other training by any recruitment source, the Contractor shall send written notification to organizations such as the above, describing the openings, screening procedures, and tests to be used in the s election process.
j. E ncourage present minority and female employees to recruit other minority persons and women and, where reasonable, provide after school, summer, and vacation employment to m inority and female youth both on the site and in other areas of a contractor’s work force.
k. Validate all tests and other selection requirements where there is an obligation to do so under 41 CFR part 60-3.
l. Conduct, at least annually, an inventory an d evaluation at least of all minority and female personnel, f or promotional opportunities and encourage these employees to seek or to prepare for, through appropriate training, etc., such opportunities. m. Ensure that seniority practices, job classifications, work assignments, and other personnel practices do not have a discriminatory effect by continually monitoring all Item 1S - Page 98

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personnel and employment related activities to ensure that the EEO policy and the Contractor’s obligations under these specifications are being carried out. n. Ensure that all facilities and company activities are nonsegregated except that separate or single- user toilet and necessary changing facilities shall be provided to assure privacy between the sexes.
o. Document and maintain a record of all solicitations of offers for subcontracts from minority and female construction contractors and suppliers, including circulation of solicitations to minority and female contractor associations and other business associations.
p. Conduct a review, a t least annually, of all supervisor’s adherence to and per formance under the Contractor’s EEO policies and affirmative action obligations.

8. Contractors are encouraged to participate in voluntary associations, which assist in fulfilling one or more of their aff irmative action obligations (7a through 7p). The efforts of a contractor association, joint contractor-union, contractor-community, or other similar group of which the Contractor is a member and participant may be asserted as fulfilling any one or m ore of its obligations under 7a through 7p of these speci fications provided that the Contractor actively participates in the group, makes every effort to assure that the group has a positive impact on the employment of minorities and women in the indus try, ensures that the concrete benefits of the program are reflected in the Contract or’s minority and female workforce participation, makes a good faith effort to meet its individual goals and timetables, and can provide access to documentation which demonstra tes th e effectiveness of actions taken on behalf of the Contractor. The obligation to comply, however, is the Contractor’s and failure of such a group to fulfill an obligation shall not be a defense for the Contractor’s noncompliance.

9. A single goal fo r minorities and a separate single goal for women have been established.

The Contractor, however, is required to provide equal employment opportunity and to take affirmative action for all minority groups, both male and female, and all women, both minority and non- minority. Consequently, the Contractor may be in violation of the Executive Order if a particular group is employed in a substantially disparate manner (for example, even though the Contractor has achieved its goals for women generally, the Contractor may be in violation of the Executive Order if a specific minority group of women is underutilized).

10. The Contractor shall not use the goals and timetables or affirmative action standards to discriminate against any person because of race, col or, religion, sex, sexual orientation, gender identity, or national origin.

11. The Contractor shall not enter into any subcontract with any person or firm debarred from Government contracts pursuant to Executive Order 11246.

12. The Contractor shall carr y o ut such sanctions and penalties for violation of these specifications and of the Equal Opportunity Clause, including suspension, termination, and cancellation of existing subcontracts as may be imposed or ordered pursuant to Executive Order 11246, as am ended, and its implementing regulations, by the Office of Federal Contract Compliance Programs. Any contractor who fails to carry out such sanctions and Item 1S - Page 99

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penalties shall be in violation of these specifications and Executive Order 11246, as amended.

13. The Contractor, in fulfilling its obligations under these specifications, shall implement specific affirmative action steps, at least as extensive as those standards prescribed in paragraph 7 of these specifications, so as to achieve maximum results from its effo rts to ensure equal employment opportunity. If the Contractor fails to comply wi th the requirements of the Executive Order, the implementing regulations, or these specifications, the Director shall proceed in accordance with 41 CFR part 60-4.8.

14. The Contractor shall designate a responsible official to monitor all employment related activity to ensure that the company EEO policy is being carried out, to submit reports relating to the provisions hereof as may be required by the Government, and to keep records. Records shall at least include for each employee, the name, address, telephone numbers, construction trade, union affiliation if any, employee identification number when assigned, social security number, race, sex, status (e.g., mechanic, apprent ice, trainee, helper, or laborer), dates of changes in status, hours worked per week in the indicated trade, rate of pay, and locations at which the work was performed. Records shall be maintained in an easily understandable and retrievable form; however, to the degree that existing records satisfy this requirement, contractors shall not be required to maintain separate records.

15. Nothing herein provided shall be construed as a limitation upon the application of other laws which establish different standard s of c ompliance or upon the application of requirements for the hiring of local or other area residents (e.g. those under the Public Works Employment Act of 1977 and the Community Development Block Grant Program).

Reference: 2 CFR 200, Appendix II(C), 41 CFR § 60-1.4, 41 CFR § 60- 4.3, Executive Order 11246

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FAA – 17 Federal Fair Labor Standards Act
APPLICABILITY – Contract Types – Per the Department of Labor, all employees of certain enterprises having workers engaged in interstate commerce; producing goods for interstate commerce; or handling, selling, or otherwise working on goods or materials that have been moved in or produced for such commerce by any person are covered by the FLSA.

All consultants, sub-consultants, contractors, and subcontractors employed under this federally assisted project must comply with the FLSA.

Professional Services – 29 CFR § 213 exempts employees in a bona fide executive, administrative or professional capacity. Because professional firms employ individuals that are not covered by this exemption, the agreement with a professional services firm must include the FLSA provision.

REQUIREMENT -
The provisions of 29 CFR part 201, the Federal Fair Labor Standards Act (FLSA), are incorporated by reference with the same force and effect as if given in full text. The FLSA sets minimum wage, overtime pay, recordkeeping, and child labor standards for full and part -time workers.

The Contractor has full responsibility to monitor compliance to the referenced statute or regulation. The Contractor must address any claims or disputes that arise from this requirement directly with the U.S. Department of Labor – Wage and Hour Division.

Reference: 29 USC § 201, et seq; 2 CFR § 200.430
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FAA – 18 Lobbying and Influencing Federal Employees
APPLICABILITY- all contracts exceeding $100,000.

REQUIREMENT -
Consultants and contractors that apply or bid for an award of $100,000 or more must have certified that it will not and has not used Federal appropriated funds to p ay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant, or another award covered by 31 USC § 1352. Each tier must also disclose any lobbying with non -Federal funds t hat takes place in connection with obtaining any Federal award.

For an award over $100,00, the bidder or offeror certifies by signing and submitting this bid or proposal, to the best of his or her knowledge and belief, that:
• No Federal appropriated funds have been paid or will be paid, by or on behalf of the bidder or offeror, to any person for influencing or attempting to influence an off icer or employee of an agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the en tering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement. • If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or coope rative agreement, the undersigned shall complete and submit Standard Form-LLL, “Disclosure Form to Report Lobbying,” in accordance with its instructions.
• The undersigned shall require that the language of this certification be included in the award documents for all sub-awards at all tiers ( including subcontracts, sub-grants, and contracts under grants, loans, and cooperative agreements) and that all sub- recipients shall certify and disclose accordingly.

This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of t his certification is a prerequisite for making or entering into this transaction imposed by section 1352, title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.

Reference: 31 USC § 1352 – Byrd Anti-Lobbying Amendment, 2 CFR part 200, Appendix II( I), 49 CFR part 20, Appendix A
Item 1S - Page 102

Revised 4.13.23 Page 100 of 110

FAA – 19 Prohibition of Segregated Facilities
APPLICABILITY - The Contractor must comply with the requirements of the EEO clause by ensuring that facilities they provide for employees are free of segregation on the basis of race, color, religion, sex, sexual orientation, gender identity, or national origin. This clause must be included in all contracts that include the equal opportunity clause, regardless of the amount of the contract.

Contract Types – any contract containing the Equal Employment Opportunity clause of 41 CFR § 60-1.4. This obligation flows down to subcontract and sub- tier purchase orders containing the Equal Employment Opportunity clause.

Construction – Construction work means construction, rehabilitation, alteration, conversion, extension, demolition or repair of buildings, highways, or other changes or improvements to real property, including facilities providing utility services. The term also includes the supervision, inspection, and other onsite functions incidental to the actual construction.

Equipment – On site installation of equipment such as airfield lighting control equipment meets the definition of construction and thus this provision would apply. This provision does not apply to equipment projects involving manufacture of the item at a vendor’s manufacturing plant. An example would be the manufacture of a SRE or ARFF vehicle.

Professional Services – Professional services that include tasks that qualify as construction work as defined by 41 CFR part 60 -1. Examples include the installation of noise monitoring equipment.

Property/Land – Land acquisition contracts that include tas ks that qualify as cons truction work as defined by 41 CFR part 60- 1. Examples include demolition of structures or installation of boundary fencing.

REQUIREMENT -
(a) The Contractor agrees that it does not and will not maintain or provide for its employees any segregated facilities at any of its establishments, and that it does not and will not permit its employees to perform their services at any location under its control where segregated facilities are maintained. The Contractor agrees that a breach of this clause is a violation of the Equal Employment Opportunity clause in this contract. (b) “Segregated facilities,” as used in this clause, means any waiting rooms, work areas, rest rooms and wash roo ms, restaurants and other eating areas, time clocks, locker rooms and other storage or dressing areas, parking lots, drinking fountains, recreation or entertainment areas, transportation, and housing facilities provided for employees that are segregated by explicit directive or are in fact segregated on the basis of race, color, religion, sex, sexual orientation, gender identity, or national origin because of written or oral policies or employee custom. The term does not include separate or single-user rest rooms or necessary dressing or sleeping areas provided to assure privacy between the sexes. (c) The Contractor shall include this clause in every subcontract and purchase order that is subject to the Equal Employment Opportunity clause of this contract.

Reference: 2 CFR Part 200, Appendix II (C); 41 CFR Part 60-1 Item 1S - Page 103

Revised 4.13.23 Page 101 of 110

FAA – 20 Occupational Safety and Health Act
APPLICABILITY – Contract Types – All contracts and subcontracts must comply with the Occupational Safety and Health Act of 1970 (OSH). The U.S. Department of Labor Occupational Safety and Health Administration (OSHA) o versees the workplace health and safety standards wage provisions from OSH.

REQUIREMENT -
All contracts and subcontracts that result from this solicitation incorporate by r eference the requirements of 29 CFR Part 1910 with the same force and effect as if given in full text. The employer must provide a work environment that is free from recognized hazards that may cause death or serious physical harm to the employee. The employer retains full res ponsibility to monitor its compliance and their subcontractor’s compliance with the applicable requirements of the Occupational Safety and Health Act of 1970 (29 CFR Part 1910). The employer must address any claims or disputes that pertain to a referenced requirement directly with the U.S.

Department of Labor – Occupational Safety and Health Administration.

Reference: 29 CFR part 1910
Item 1S - Page 104

Revised 4.13.23 Page 102 of 110

FAA – 21 Procurement of Recovered Materials
APPLICABILITY – Contract Types – This provision applies to any contracts that include procurement of products designated in subpart B of 40 CFR part 247 where the purchase price of the item exceeds $10,000 or the value of the quantity acquired by the preceding fiscal year exceeded $10,000.

Construction and Equipment – all construction and equipment projects.

Professional Services and Property – if the agreement includes procurement of a product that exceeds $10,000.

REQUIREMENT -
Contractor and subcontractor agree to comply with Section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act, and the regulatory provisions of 40 CFR Part 247. In the performance of this contract and to the extent practicable, the Contractor and subcontractors are to use products containing the highest percentage of recovered materials for items designated by the Environmental Protection Agency (EPA) under 40 CFR Part 247 whenever:
1) The contract requires procurement of $10,000 or more of a designated item during the fiscal year; or
2) The contractor has procured $10,000 or more of a designated item using Federal funding during the previous fiscal year.

The list of EPA -designated items is available at www.epa.gov/smm/comprehensive - procurement-guidelines-construction-products.

Section 6002(c) establishes exceptions to the pr eference for recovery of EPA- designated products if the contractor can demonstrate the item is:
a) Not reasonably available within a timeframe providing f or compliance w ith the contract performance schedule;
b) Fails to meet reasonable contract performance requirements; or c) Is only available at an unreasonable price.

Reference: 2 CFR § 200.323, 2 CFR Part 200, Appendix II (J); 40 CFR part 247, 42 USC § 6901, et seq (Resource Conservation and Recovery Act)
Item 1S - Page 105

Revised 4.13.23 Page 103 of 110

FAA – 22 Rights to Inventions
APPLICABILITY – Contract Types – This provision applies to all contracts and subcontracts with small business firms or nonprofit organizations that include performance of exper imental, developmental, or research work. This clause is not applicable to construction, equipment, or professional service contracts unless the contract includes experimental, developmental, or research work.

REQUIREMENT -
Contracts or agreements that include the performance of experimental, developmental, or research work must provide for the rights of the Federal Government and the City in any resulting invention as established by 37 CFR part 401, Rights to Inventions Made by Non-profit Organizations and Small Business Firms under Government Grants, Contracts, and Cooperative Agreements. This contract incorporates by reference the patent and inventions rights as specified within 37 CFR §401.14. Contractor must include this requirement in all sub- tier contracts involving experimental, developmental, or research work.

Reference: 2 CFR § 200, Appendix II(F), 37 CFR 401

Item 1S - Page 106

Revised 4.13.23 Page 104 of 110

FAA - 23 Seismic Safety
APPLICABILITY – Contract Types – This provision applies to construction of new buildings and additions to existing buildings financed in whole or in part through the Airport Improvement Program.

Professional Services– any contract involved in the construction of new buildings or structural addition to existing buildings.

Construction – any contract involved in the construction of new buildings or structural addition to existing buildings.

Equipment – if the project involves construction or structural addition to a building such as an electrical vault project to accommodate or install equipment.

Land – This provision will not typically apply to a property/land project.

REQUIREMENT -
A23.3.1 Professional Service Agreements for Design

SEISMIC SAFETY
In the performance of design services, the Consultant agrees to furnish a building design and associated construction specification that conform to a building code standard that provides a level of seismi c safety substantially equivalent to standards as established by the National Earthquake Hazards Reduction Program (NEHRP). Local building codes that model their building code after the current version of the International Building Code (IBC) meet the NEHRP equivalency level for seismic safety. At the conclusion of the design services, the Consultant agrees to furnish the Owner a “certification of compliance” that attests conformance of the building design and the construction specifications with the seismic standards of NEHRP or an equivalent building code.

A23.3.2 Construction Contracts

SEISMIC SAFETY
The Contractor agrees to ensure that all work performed under this contract, including work performed by subcontractors, conforms to a building code standard that provides a level of seismic safety substantially equivalent to standards established by the National Earthquake Hazards Reduction Program (NEHRP). Local building codes that model their code after the current version of the International Building Code (IBC) meet the NEHRP equivalency level for seismic safety.

Reference: 49 CFR Part 41
Item 1S - Page 107

Revised 4.13.23 Page 105 of 110

FAA – 24 Tax Delinquency and Felony Conviction
APPLICABILITY – This provision applies to all contracts funded in whole or part with AIP.

REQUIREMENT -
The Contractor must have certified under the procurement process that resulted in the award of this contract that:
• Contractor has not been convicted of a Federal felony within the last 24 months; or • Contractor does not have any outstanding tax liability for which all judicial and administrative remedies have lapsed or been exhausted.

Reference: Sections 8113 of the Consolidated Appropriations Act, 2022 (Public Law 117-103), and similar provisions in subsequent appropriations acts.

DOT Order 4200.6 – Appropriations Act Requirements for Procurement and Non-Procurement Regarding Tax Delinquency and Felony Convictions

Item 1S - Page 108

Revised 4.13.23 Page 106 of 110

FAA – 25 Termination of Contract
APPLICABILITY – All contracts and subcontracts in excess of $10,000.

REQUIREMENT -
See Section 4.5 of the Agreement.

Reference: 2 CFR § 200 Appendix II(B), FAA Advisory Circular 150/5370-10, Section 80-09 Item 1S - Page 109

Revised 4.13.23 Page 107 of 110

FAA – 26 Foreign Trade Restriction
APPLICABILITY – all AIP funded projects.

REQUIREMENT -

TRADE RESTRICTION CERTIFICATION
By accepting this contract the Contractor certifies the following statements are true – 1) is not owned or controlled by one or more citizens of a foreign country included in the list of countries that discriminate against U. S. firms as published by the Office of the United States Trade Representative (USTR);
2) has not knowingly entered into any contrac t or subcontract for this project with a person that is a citizen or national of a foreign country included on the list of countries that discriminate against U.S. firms as published by the USTR; and 3) h as not entered into any subcontract for any product to be used on the Federal project that is produced in a foreign country included on the list of countries that discriminate against U.S. firms published by the USTR.

This certification concerns a matter w ithin the jurisdiction of an agency of the United States of America and the making of a false, fic titious, or fraudulent certification may render the maker subject to prosecution under Title 18 USC Section 1001.

The Contractor must provide immediate written notice to the City if the Contractor learns that its certification or that of a subcontractor was erroneous when submitted or has become erroneous by reason of changed circumstances. The Contractor must require subcontractors provide immediate written n otice to the Contractor if at any time it learns th at its certification wa s erroneous by reason of changed circumstances.

Unless the restrictions of this clause are waived by the Secretary of Transportation in accordance with 49 CFR 30.17, no contract shall be awarded to an Offeror or subcontractor:
1) who is owned or controlled by one or more citizens or nationals of a foreign country included on the list of countries that discriminate against U.S. firms published by the USTR or
2) whose subcontractors a re owned or controlled by one or more citizens or nationals of a foreign country on such USTR list or
3) who incorporates in the public works project any product of a foreign country on such USTR list.

Nothing contained in the foregoing shall be construed to require establishment of a system of records in order to render, in good faith, the certification required by this provision. The knowledge and information of a contractor is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings.

The Contractor agrees it will incorporate this provision for certification without modification in all lower tier subcontracts. The Contractor may rely on the certification of a prospective subcontractor that it is not a firm from a foreign country included on the list of countries that Item 1S - Page 110

Revised 4.13.23 Page 108 of 110

discriminate against U.S. firms as published by USTR, unless the Contractor has knowledge that the certification is erroneous.

This certification is a material represent ation of f act upon which reliance was placed when making an award. If it is later d etermined that the Contractor or subcont ractor knowingly rendered an erroneous certification, the Federal Aviation Administration (FAA) may direct through the City cancellation of the contract or subcontract for default at no cost to the City or the FAA.

Reference: 49 USC § 50104, 49 CFR part 30

Item 1S - Page 111

Revised 4.13.23 Page 109 of 110

FAA – 27 Veteran’s Preference
APPLICABILITY – This provision applies to all AIP funded projects that involve labor to carry out the project. This preference, which excludes executive, administrative, and supervis ory positions, applies to covered veterans [as defined under § 47112(c)] only when they are readily available and qualified to accomplish the work required by the project.

REQUIREMENT -
In the employment of labor (excluding execut ive, administrative, and supervisory positions), the Contractor and all sub- tier contractors must give preference to covered veterans as defined within Title 49 United States Code Section 47112. Covered veterans include Vietnam -era veterans, Persian Gulf veterans, Afghanistan -Iraq war veterans, disabled veterans, and small business concerns (as defined by 15 USC 632) owned and controlled by disabled veterans.

This preference only applies when there are covered veterans readily available and qualified to perform the work to which the employment relates.

Reference: 49 USC § 47112(c)
Item 1S - Page 112

Revised 4.13.23 Page 110 of 110

FAA – 28 Domestic Preferences for Procurements
APPLICABILITY – all contracts and Purchase orders for work or products under the grant.

REQUIREMENT -
The Contractor certifies by signing and submitting its bid or proposal that, to the greatest extent practicable, the Contractor has provided a preference for the purchase, acquisition, or use of goods, products, or materials produced in the United States (including, but not limited to, iron, aluminum, steel, cement, and other manufactured products) in compliance with 2 CFR § 200.322.

Reference: 2 CFR § 200.322; 2 CFR Part 200, Appendix II(L)

Item 1S - Page 113

ATTACHMENT B

PUBLIC INTEGRITY BUSINESS DISCLOSURE
Item 1S - Page 114
Item 1S - Page 115

1. 2.

3. 4.

5. Name of Entity

PUBLIC INTEGRITY DISCLOSURE

APPLICANT DISCLOSURE FORM
LilyPad EV LLC
Address of Entity (Principal Place of Business)
4591 Pacheco Blvd Martinez , CA 94553
Local or California Address (if different than #2)
4591 Pacheco Blvd Martinez CA 94553
State where Entity is Registered with Secretary of State California
If other than California, is the Entity also registered in California? D Yes D No Type of Entity
D Corporation ~ Limited Liability Company D Partnership D Trust D Other (please specify)

6. Officers , Directors, Members, Managers , Trustees, Other Fiduciaries (please specify) Note: If any response is not a natural person, please identify all officers , directors, members, managers and other fiduciaries for the member, manager, trust , or other entity
Niazi Alzouhbi ~ Officer D Director D Member D Manager
[name] D General Partner O Limited Partner
Other
Greg Brown ~ Officer D Director D Member D Manager
[name] D General Partner D Limited Partner
D Other
D Officer D Director D Membe r D Manager
[name] D General Partner D Limited Partner
D Other
Item 1S - Page 116

7. Owners/Investors with a 5% beneficial interest in the Applicant Entity or a related entity

EXAMPLE
JANE DOE 50%, ABC COMPANY , Inc.
[name of owner/investor] [percentage of beneficial interest in entity and name of entity]
A.

Shields, Harper & Co 100%, Shields , Harper & Co.
[name of owner/investor] [percentage of beneficial interest in entity and name of entity]
B.
[name of owner/investor] [percentage of beneficial interest in entity and name of entity]
C.
[name of owner/investor] [percentage of beneficial interest in entity and name of entity]
D.
[name of owner/investor] [percentage of beneficial interest in entity and name of entity]
E.
[name of owner/investor] (percentage of beneficial
and name of entity]
interest in entity
1 DECLARE UNDER PENALTY OF PERJURY UNDER THE LAWS OF THE STATE OF CALIFORNIA THAT THE FOREGOING IS TRUE AND CORRECT.

Date
8/30/2023
••shields Harper and LilyPad EV is an ESOP corporation and no one individual has a 5% stake in the company.

CITY COUNCIL STAFF REPORT
09/26/2023
SUBJECT:

APPROVE CONTRACT SERVICES AGREEMENT NO. 23B205 WITH MCCLOSKEY MECHANICAL CONTRACTORS, INC. FOR ON-CALL HEATING, VENTILATION

AND AIR CONDITIONING MAINTENANCE REPAIR SERVICES FOR PALM

SPRINGS INTERNATIONAL AIRPORT
RECOMMENDATION:

Approve Contract Services Agreement 23B205 with McCloskey Mechanical Contractors, Inc. to provide on-call HVAC maintenance repair services for the Palm Springs International Airport in an amount not to exceed $900,000 for the initial three-year term beginning October 1, 2023 through September 30, 2026, with two one-year extension options at the City’s sole discretion.

1. Authorize the City Manager or designee to execute all necessary documents.2.

Attachments
Item 1T

CITY COUNCIL STAFF REPORT
DATE: SEPT
EMBER 26, 2023 CONSENT CALENDAR
SUBJECT: A PPROVE CONTRACT SERVICES AGREEMENT NO. 23B205 WITH MCCLOSKEY MECHANICAL CONTRACTORS, INC. FOR ON-CALL

HEATING, VENTILATION AND AIR CONDITIONING MAINTENANCE

REPAIR SERVICES FOR PALM SPRINGS INTERNATIONAL AIRPORT
FROM: Scott C. Stiles, City Manager
BY: D epart
ment of Aviation
SUMMARY:

This
action will approve Contract Services Agreement No. 23B 205 with McCloskey Mechanical Contractors, Inc., in an amount not to exceed $9 00,000 for on-call heating, ventilation and air conditioning (HVAC) maintenance repair services for the Palm Springs International Airport (Airport).

RECOMMENDATION:

1. Approv
e Contract Services Agreement 23B205 (Attachment A) with McCloskey Mechanical Contractors, Inc. to provide on-call HVAC maintenance repair services for the Palm Springs International Airport in an amount not to exceed $900,000 for the initial three-year term beginning October 1, 2023 through September 30, 2026, with two one-year extension options at the City’s sole discretion; and

2. A uth
orize the City Manager or designee to execute all necessary documents.

BUSINESS PRINCIPAL DISCLOSURE:

Acc
ording to the Public Integrity Disclosure form ( Attachment B) submitted on August 29, 2023, McCloskey Mechanical Contractors, Inc. is a New Jersey Corporation registered to do business in California.

BACKGROUND:

The Ai
rport’s main terminal building has fourteen large capacity air handling units and thirty-nine smaller fan coil units for Heating, Ventilating and Air Conditioning (HVAC), and all are several decades old. Many of the units, if not all, require some level of repair, Item 1T - Page 1
City Council Staff Report
September 26, 2023 -- Page 2
Award On-Call HVAC Repair Services Contract

testing, replacement, and maintenance in order to continue reliably and efficiently supplying cooled and heated forced air throughout the complex. The units require routine maintenance and occasional repair services to ensure consistent functionality. Given the fluctuating climate conditions and extreme heat temperatures in Palm Springs, the Airport tends to fluctuate widely on load demands, and with flights arriving and departing in banks for the hub and spoke airline network it is important that the ventilation be in optimum operating condition to meet the demand loads.

Providing these essential maintenance and repair services will help to prevent potential future issues, therefore preserving the performance and efficiency of the Airport’s HVAC units. With a significant influence on the comfort and well -being of both Airport passengers, tenants, and staff, it is necessary that the HVAC systems remain maintained to protect the lifespan of the units.

STAFF ANALYSIS:

The contract with McCloskey Mechanical Contractors, Inc. is an on-call, as-needed type contract. The bids were used to determine the lowest, responsive, responsible bidder and to set the unit rates for the contract; however, the actual amount of the contract is based on the budgeted amount set by the Department and will therefore not match the bid amounts.

An Invitation for Bids (IFB 23-37) was initiated by the City’s Procurement and Contracting Department on August 3, 2023, based on the Department of Aviation specifications. Bids were solicited directly via the City’s procurement vendor portal, PlanetBids. In addition, the IFB was advertised in The Desert Sun. Five bids were received by the August 29 , 2023, deadline as follows:

Vendor Bid
McCloskey Mechanical Contractors, Inc., Headquarters: New Jersey, Local Office: Los Angeles, CA
$51,920.00
Allison Mechanical, Inc., Redlands, CA $60,800.00
Pacific West Industries Inc., Anaheim, CA $62,630.00
Mesa Energy Systems, Irvine, CA $69,887.50
F.M. Thomas Air Conditioning, Brea, CA $82,750.00

The contract is for three years with two one-year options to renew. The unit pricing is fixed for the first year and subject to CPI increase s in the following years. Staff r ecommends approval of a Contract Services Agreement No. 23B 205 with McCloskey Mechanical Contractors, Inc. for the initial three- year term in the amount not to exceed $9 00,000 effective October 1, 2023 through September 30, 2026, subject to two one-year optional renewals at the sole discretion of the City.

The on-call contract will cover parts, labor, equipment rental, and subcontractors . Staff Item 1T - Page 2
City Council Staff Report
September 26, 2023 -- Page 3
Award On-Call HVAC Repair Services Contract

has budgeted $300,000 for Fiscal Year 2023-24, and $300,000 will be budgeted for Fiscal Years 2024- 25 and 2025- 26 to ensure that funding is available for any unforeseen maintenance and repair services.

ENVIRONMENTAL ASSESSMENT:

The requested City Council action is not a “Project” as defined by the California Environmental Quality Act (CEQA). Pursuant to Section 15378(a), a “Project” means the whole of an action, which has a potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment. The requested action is to approve contracts for the above- mentioned services, and is exempt from CEQA pursuant to Section 15378(b), in that a “Project” does not include: (5) Organizational or administrative activities of governments that will not result in direct or indirect physical changes in the environment.

ALIGNMENT WITH STRATEGIC PLANNING:

Approval of this action supports City Council priority 2A, Improve City Facilities.

FISCAL IMPACT:

Funding of $300,000 is budgeted in the Department of Aviation, Terminal Building Operations Account 4157050- 40105 in Fiscal Year 2023-24 . T he remaining annual amounts will be budgeted in future fiscal years.

REVIEWED BY:

Assistant Director: Jeremy Keating
Procurement and Contracting Director: Kim Baker
City Attorney: Geremy Holm
City Manager: Scott Stiles

ATTACHMENTS:

A. Contract Services Agreement No. 23B205
B. Public Integrity Disclosure Form
Item 1T - Page 3

ATTACHMENT A
AGREEMENT NO. 23B205 WITH
MCCLOSKEY MECHANICAL CONTRACTORS, INC.

Item 1T - Page 4

Revised 4.13.23 Page 1 of 69

CONTRACT SERVICES AGREEMENT 23B205

ON-CALL HVAC REPAIR SERVICES

FOR PALM SPRINGS INTERNATIONAL AIRPORT

THIS AGREEMENT FOR CONTRACT SERVICES (“Agreement”) is made and entered into on October 1, 2023, by and between the City of Palm Springs , a California charter city and municipal corporation (“City”), and MCCLOSKEY MECHANICAL CONTRACTORS, INC. , a New J ersey corporation, (“Contractor”). City and Contractor are individually referred to as “Party” and are collectively referred to as the “Parties”.

RECITALS

A. City requires the services of a licensed and qualified firm to provide on- call Heating, Ventilation, and Air Conditioning (HVAC) maintenance and repair services for Palm Springs International Airport, (“Project”).

B. Contractor has submitted to City a proposal to provide on-call Heating, Ventilation, and Air Conditioning (HVAC) maintenance and repair services for Palm Springs International Airport, to City under the terms of this Agreement.

C. Based on its experience, education, training, and reputation, Contractor is qualified and desires to provide the necessary services to City for the Project.

D. City desires to retain the services of Contractor for the Project.

NOW, THEREFORE, in consideration of the promises and mutual obligations, covenants, and conditions contained herein, and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

AGREEMENT

1. CONTRACTOR SERVICES

1.1 Scope of Services . In compliance with all terms and conditions of this Agreement, Contractor shall provide services to City as described in the Scope of Services/Work attached to this Agreement as Exhibit “A” and incorporated herein by reference (the “Services ” or “Work”). Exhibit "A" includes the agreed upon schedule of performance and the schedule of fees. Contractor warrants that the S ervices shall be performed in a competent, professional, and satisfactory manner consistent with the level of care and skill ordinarily exercised by high quality, experienced, and well qualified members of the profession currently practicing under similar conditions. In the event of any inconsistency between the terms contained in the Scope of Services/Work and the terms set forth in this Agreement, the terms set forth in this Agreement shall govern.

1.2 Compliance with Law . Contractor shall comply with all applicable federal, state, and local laws, statutes and ordinances and all lawful orders, rules, and regulations when Item 1T - Page 5

Revised 4.13.23 Page 2 of 69

performing the Services. Contractor shall be liable for all violations of such laws and regulations in connection with the Services and this Agreement.

1.3 Licenses and Permits . Contractor shall obtain at its sole cost and expense such licenses, permits, and approvals as may be required by law for the per formance of the S ervices required by this Agreement.

1.4 Familiarity with Work . By executing this Agreement, Contractor warrants that it has carefully considered how the Work should be performed and fully understands the facilities, difficulties, and restrictions attending performance of the Work under this Agreement.

2. TIME FOR COMPLETION
The time for completion of the Services to be performed by Contractor is an essential condition of this Agreement. Contractor shall prosecute regularly and diligently the work of this Agreement according to the agreed upon s chedule of performance set forth in Exhibit “A .” Neither Party shall be accountable for delays in performance caused by any condition beyond the reasonable control and without the fault or negligence of the non -performing Party. Delays shall not entitle Contractor to any additional compensation regardless of the P arty responsible for the delay.

3. COMPENSATION OF CONTRACTOR

3.1 Compensation of Contractor. Contractor shall be compensated and reimbursed for the services rendered under this Agreement in accordance with the schedule of fees set forth in Exhibit “A”. The total amount of Compensation shall not exceed $900,000.00.

3.2 Method of Payment . In any month in which Contractor wishes to receive payment, Contractor shall submit to City an invoice for Services rendered prior to the date of the invoice, no later than the first working day of such month, in the form approved by City’s finance director. Payments shall be based on the hourly rates set forth in Exhibit “A” for authorized services performed. City shall pay Contractor for all expenses stated in the invoice that are approved by City and consistent with this Agreement, within thirty (30) days of receipt of Contractor’s invoice.

3.3 Changes . In the event any change or changes in the Services is requested by City, Parties shall execute a written amendment to this Agreement, specifying all proposed amendments, including, but not limited to, any additional fees. An amendment may be entered into:

A. To provide for revisions or modifications to documents , work product, or Work, when required by the enactment or revision of any subsequent law; or B. To provide for additional services not included in this Agreement or not customarily furnished in accordance with generally accepted practice in Contractor’s profession.

Item 1T - Page 6

Revised 4.13.23 Page 3 of 69

3.4 Appropriations. This Agreement is subject to, and contingent upon, funds being appropriated by the City Council of City for each fiscal year. If such appropriations are not made, this Agreement shall automatically terminate without penalty to City.

4. PERFORMANCE SCHEDULE

4.1 Time of Essence. Time is of the essence in the performance of this Agreement.

4.2 Schedule of Performance. All Services rendered under this Agreement shall be performed under the agreed upon schedule of performance set forth in Exhibit “A .” Any time period extension must be approved in writing by the Contract Officer.

4.3 Force Majeure. The time for performance of S ervices to be rendered under this Agreement may be extended because of any delays due to a Force Majeure Event , if Contractor notifies the Contract Officer within ten (10) days of the commencement of the Force Majeure Event. A Force Majeure Event shall mean an event that materially affects the Contractor’s performance and is one or more of the following: (1) Acts of God or other natural disasters occurring at the project site; (2) terrorism or other acts of a public enemy; (3) orders of governmental authorities (including, without limitation, unreasonable and unfor eseeable delay in the issuance of permits or approvals by governmental authorities that are required for the W ork); and (4) pandemics, epidemics or quarantine restrictions. For purposes of this section, “orders of governmental authorities,” includes ordinances, emergency proclamations and orders, rules to protect the public health, welfare and safety, and other actions of the City in its capacity as a municipal authority. After Contractor notification, the Contract Officer shall investigate the facts and the extent of any necessary delay and extend the time for performing the S ervices for the period of the enforced delay when and if , in the Contract Officer’s judgment, such delay is justified. The Contract Officer’s determination shall be final and conclusive upon the P arties to this Agreement. The Contractor will not receive an adjustment to the contract price or any other compensation. Notwithstanding the foregoing, the City may still terminate this Agreement in accordance with the termination provisions of this Agreement.

4.4 Term. Unless earlier terminated in accordance with Section 4.5 of this Agreement, this Agreement s hall continue in full force and effect for a period of three years , commencing on October 1, 2023, and ending on September 30, 2026, unless extended by mutual written agreement of the P arties. In addition, the term may be extended at the sole discretion of the City upon written notice to the Contractor, for two (2) additional one (1) year terms.

4.5 Termination Prior to Expiration of Term . City may terminate this Agreement at any time, with or without cause, upon thirty (30) days written notice to Contractor . W here termination is due to the fault of Contractor and constitutes an immediate danger to health, safety, and general welfare, the period of notice shall be such shorter time as may be determined by the City. Upon receipt of the notice of terminati on, Contractor shall immediately cease all Services except such as may be specifically approved by the Contract Officer. Contractor shall be entitled to compensation for all S ervices rendered prior to receipt of the notice of termination and for any Services authorized by the Contract Officer after such notice. City shall not be liable for any costs other than the charges or portions thereof which are specified herein. Contractor shall not be entitled to payment for unperformed Services and shall not be entitled to damages or Item 1T - Page 7

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compensation for termination of Work. If the termination is for cause, the City shall have the right to take whatever steps it deems necessary to correct Contractor's deficiencies and charge the cost thereof to Contractor , who shall be liable for the full cost of the City's corrective action .

Contractor may not terminate this Agreeme nt except for cause, upon thirty (30) days written notice to City.

5. COORDINATION OF WORK

5.1 Representative of Contractor. The following principal of Contractor is designated as being the principal and representative of Contractor authorized to act and make all decisions in its behalf with respect to the specified Services: Robert L. Reeves , National Public Accounts Director . It is expressly understood that the experience, knowledge, education, capability, and reputation of the foregoing principal is a substantial inducement for City to enter into this Agreement. Therefore, the foregoing principal shall be responsible during the term of this Agreement for directing all activities of Contractor and devoting sufficient time to personally supervise the S ervices under this Agreement. The foregoing principal may not be changed by Contractor without prior written approval of the Contract Officer.

5.2 Contract Officer. The Contract Officer shall be the City Manager or his/her designee ("Contract Officer"). Contractor shall be responsible for keeping the Contract Officer fully informed of the progress of the performance of the S ervices. Contractor shall refer any decisions that must be made by City to the Contract Officer. Unless otherwise specified, any approval of City shall mean the approval of the Contract Officer.

5.3 Prohibition Against Subcontracting or Assignment . The experience, knowledge, education, capability, and reputation of Contracto r, its principals and employees, were a substantial inducement for City to enter into this Agreement. Contractor shall not contract with any other individual or entity to perform any S ervices required under this Agreement without the City's express written approval. In addition, neither this Agreement nor any interest may be assigned or transferred, voluntarily or by operation of law, without the prior written approval of City. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement including without limitation the insurance and indemnification requirements. If Contractor is permitted to subcontract any part of this Agreement by City, Contractor shall be responsible to City for the acts and omissions of its subcontractor(s) in the same manner as it is for persons directly employed. Nothing contained in this Agreement shall create any contractual relationships between any subcontractor and City.

5.4 Independent Contractor. Neither City nor any of its employees shall have any control over the manner, mode , or means by which Contractor , its agents or employees, perform the Services required, except as otherwise specified . Contractor shall perform all required Services as an independent contractor of City and shall not be an employee of City and shall remain at all times as to City a wholly independent contractor with only such obligations as are consistent with that role; however, City shall have the right to review Contractor ’s work product, result, and advice. Contractor shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of City. Contractor shall pay all wages, salaries, and other amounts due personnel in connection with their performance under this Agreement and as required by law. Contractor shall be responsible for all reports and obligations respecting Item 1T - Page 8

Revised 4.13.23 Page 5 of 69

such personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, and workers’ compensation insurance. Contractor shall not have any authority to bind City in any manner.

5.5 Personnel. Contractor agrees to assign the following individuals to perform the services in this Agreement. Contractor shall not alter the assignment of the following personnel without the prior written approval of the Contract Officer. Acting through the City Manager, the City shall have the unrestricted right to order the removal of any personnel assigned by Contractor by providing written notice to Contractor.

Name: Title:

Robert L. Reeves National Public Accounts Director

5.6 California Labor Code Requirements.

A. Contractor is aware of the requirements of California Labor Code Sections 1720 et seq. and 1770 et seq., which require the payment of prevailing wage rates and the performance of other requirements on certain “public works” and “maintenance” projects (“Prevailing Wage Laws”). If the S ervices are being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and if the total compensation is $15,000 or more for maintenance or $25,000 or more for construction, alteration, demolition, installation, or repair, Contractor agrees to fully comply with such Prevailing Wage Laws. Contractor shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penal ties or interest arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. It shall be mandatory upon the Contractor and all subcontractors to comply with all California Labor Code provisions, which include but are not limited to prevailing wages (Labor Code Sections 1771, 1774 and 1775), employment of apprentices (Labor Code Section 1777.5), certified payroll records (Labor Code Sections 1771.4 and 1776), hours of labor (Labor Code Sections 1813 and 1815) and debarment of contractors and subcontractors (Labor Code Section 1777.1).

B. If the Services are being performed as part of an applicable “public works” or “maintenance” project and if the total compensation is $15,000 or more for maintenance or $25,000 or more for construction, alteration, demolition, installation, or repair, then pursuant to Labor Code Sections 1725.5 and 1771.1, the Contractor and all subcontractors performing such Services must be registered with the Department of Industrial Relations. Contractor shall maintain registration for the duration of the Project and require the same of any subcontractors , as applicable. This Agreement may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Contracto r’s sole responsibility to comply with all applicable registration and labor compliance requirements.

6. INSURANCE
Contractor shall procure and maintain, at its sole cost and expense, policies of insurance as set forth in the attached Exhibit "B", incorporated herein by reference.

7. INDEMNIFICATION.

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7.1 Indemnification. To the fullest extent permitted by law, Contractor shall defend (at Contractor’s sole cost and expense), indemnify, protect, and hold harmless City, its elected officials, officers , employees, agents, and volunteers (collectively the “Indemnified Parties”), from and against any and all liabilities, actions, suits, claims, demands, losses, costs, judgments, arbitration awards, settlements, damages, demands, orders, penalties, and expenses including legal costs and attorney fees (collectively “Claims”), including but not limited to Claims arising f rom injuries to or death of persons (Contractor ’s employees included) , for damage to property, including property owned by City, for any violation of any federal, state, or local law or ordinance or in any manner arising out of, pertaining to, or incident to any acts, errors or omissions , or willful misconduct committed by Contractor, its officers, employees , representatives, and agents, that arise out of or relate to Contractor’s performance of Services or this Agreement. This indemnification clause excludes Claims arising from the sole negligence or willful misconduct of the Indemnified Parties . Under no circumstances shall the insurance requirements and limits set forth in this Agreement be construed to limit Contractor ’s indemnification obligation or other liability under this Agreement. Contractor’s indemnification obligation shall survive the expiration or earlier termination of this Agreement until all actions against the Indemnified Parties for such matters indemnified a re fully and finally barred by the applicable statute of limitations or, if an action is timely filed, until such action is final.

7.2 Design Professional Services Indemnification and Reimbursement. If Contractor’s obligation to defend, indemnify, and/or hold harmless arises out of Contractor ’s performance as a “design professional” (as that term is defined under Civil Code section 2782.8), then, and only to the extent required by Civil Code section 2782.8, which is fully incorporated herein, Contractor’s indemnification obligation shall be limited to the extent which the C laims arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Contractor in the performance of the Services or this Agreement, and, upon Contractor obtaining a final adjudication by a court of competent jurisdiction, Contractor ’s liability for such claim, including the cost to defend, shall not exceed the Contractor’s proportionate percentage of fault.

8. RECORDS AND REPORTS

8.1 Reports. Contractor shall periodically prepare and submit to the Contract Officer reports concerning the performance of the S ervices required by this Agreement, or as the Contract Officer shall require.

8.2 Records. Contractor shall keep complete, accurate, and detailed accounts of all time, costs, expenses, and expenditures pertaining in any way to this Agreement. Contractor shall keep such books and records as shall be necessary to properly perform the S ervices required by this Agreement and enable the Contract Officer to evaluate the performance of such Services. The Contract Officer shall have full and free access to such books and records at all reasonable ti mes, including the right to inspect, copy, audit , and make records and transcripts from such records.

8.3 Ownership of Documents . All drawings, specifications, reports, records, documents, and other materials prepared by Contractor in the performance of this Agreement shall be the property of City. Contractor shall deliver all above-referenced documents to City upon request of the Contract Officer or upon the termination of this Agreement. Contractor shall Item 1T - Page 10

Revised 4.13.23 Page 7 of 69

have no claim for further employment or additional compensation as a result of the exercise by City of its full rights or ownership of the documents and materials. Contractor may retain copies of such documents for Contractor's own use. Contractor shall have an unrestricted right to use the concepts embodied in such documents.

8.4 Release of Documents . All drawings, specifications, reports, records, documents, and other materials prepared by Contractor in the performance of Services under this Agreement shall not be released publicly without the prior written approval of the Contract Officer.

8.5 Audit and Inspection of Records . After receipt of reasonable notice and during the regular business hours of City, Contractor shall provide City, or other agents of City, such access to Contractor’s books, records, payroll documents, and facilities as City deems necessary to examine, copy, audit, and inspect all accounting books, records, work data, documents, and activities directly related to Contractor’s performance under this Agreement. Contractor shall maintain such books, records, data, and documents in accordance with generally accepted accounting principles and shall clearly identify and make such items readily accessible to such parties during the term of this Agreement and for a period of three (3) years from the date of final payment by City hereunder.

9. ENFORCEMENT OF AGREEMENT

9.1 California Law . This Agreement shall be construed and interpreted both as to validity and to performance of the parties in accordance with the laws of the State of California.

Legal actions concerning any dispute, claim , or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Riverside , State of California, or any other appropriate court in such county, and Contractor covenants and agrees to submit to the personal jurisdiction of such court in the event of such action.

9.2 Interpretation. This Agreement shall be construed as a whole according to its fair language and common meaning to achieve the objectives and purposes of the Parties. The terms of this Agreement are contractual and the result of negotiation between the Parties.

Accordingly, any rule of construction of contracts (including, without limitation, California Civil Code Section 1654) that ambiguities are to be construed against the drafting party, shall not be employed in the interpretation of this Agreement. The caption headings of the various sections and paragraphs of this Agreement are for convenience and identification purposes only and shall not be deemed to limit, expand, or define the contents of the respective sections or paragraphs.

9.3 Waiver . No delay or omission in the exercise of any right or remedy of a non- defaulting Party on any default shall impair such right or remedy or be construed as a waiver.

No consent or approval of City shall be deemed to waive or render unnecessary City’s consent to or approval of any subsequent act of Contractor . Any waiver by either Party of any default must be in writing. No such waiver shall be a waiver of any other default concerning the same or any other provision of this Agreement.

9.4 Rights and Remedies are Cumulative . Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the Item 1T - Page 11

Revised 4.13.23 Page 8 of 69

parties are cumulative . The exercise by either P arty of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other Party.

9.5 Legal Action. In addition to any other rights or remedies, either P arty may take legal action, in law or in equity, to cure, correct , or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain injunctive relief, a declaratory judgment, or any other remedy consistent with the purposes of this Agreement.

9.6 Attorney Fees. In the event any dispute between the Parties with respect to this Agreement results in litigation or any non- judicial proceeding, the prevailing Party shall be entitled, in addition to such other relief as may be granted, to recover from the non-prevailing Party all reasonable costs and expenses. These include but are not limited to reasonable attorney fees, expert contractor fees, court costs and all fees, costs, and expenses incurred in any appeal or in collection of any judgment entered in such proceeding.

10. CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION

10.1 Non-Liability of City Officers and Employees . No officer or employee of City shall be personally liable to the Contractor , or any successor -in-interest, in the event of any default or breach by City or for any amount which may become due to the Contractor or its successor, or for breach of any obligation of the terms of this Agreement.

10.2 Conflict of Interest. Contractor acknowledges that no officer or employee of the City has or shall have any direct or indirect financial interest in this Agreement, nor shall Contractor enter into any agreement of any kind with any such officer or employee during the term of this Agreement and for one (1) year thereafter. Contractor warrants that Contractor has not paid or given, and will not pay or give, any third party any money or other consideration in exchange for obtaining this Agreement.

10.3 Covenant Against Discrimination . In connection with its performance under this Agreement, Contractor shall not discriminate against any employee or applicant for employment because of actual or perceived race, religion, color, sex, age, marital status, ancestry, national origin ( i.e., place of origin, immigration status, cultural or linguistic characteristics, or ethnicity), sexual orientation, gender identity, gender expression, physical or mental disability, o r medical condition (each a “prohibited basis”). Contractor shall ensure that applicants are employed, and that employees are treated during their employment, without regard to any prohibited basis. As a condition precedent to City’s lawful capacity to ent er this Agreement, and in executing this Agreement, Contractor certifies that its actions and omissions hereunder shall not incorporate any discrimination arising from or related to any prohibited basis in any Contractor activity, including but not limited to the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship; and further, that Contractor is in full compliance with the provisions of Palm Springs Municipal Code Section 7.09.040, including without limitation the provision of benefits, relating to non- discrimination in city contracting.

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11. MISCELLANEOUS PROVISIONS

11.1 Notice. Any notice, demand, request, consent, approval, or communication that either Party desires, or is required to give to the other Party or any other person shall be in writing and either served personally or sent by pre -paid, first-class mail to the address set forth below. Notice shall be deemed communicated seventy- two (72) hours from the time of mailing if mailed as provided in this S ection. Either Party may change its address by notifying the other Party of the change of address in writing.

To City: City of Palm Springs
Attention: City Manager/ City Clerk
3200 E. Tahquitz Canyon Way
Palm Springs, California 92262

To Contractor: McCloskey Mechanical Contractors, Inc.

Attention: Robert L. Reeves
1025 West 190
th Street, Suite 215
Los Angeles, CA 90248

11.2 Integrated Agreement . This Agreement constitutes the entire understanding between the Parties and supersedes and cancels all prior negotiations, arrangements, agreements, representations, and understandings, if any, made by or among the Parties with respect to the subject matter in this Agreement.

11.3 Amendment. No amendments or other modifications of this Agreement shall be binding unless through written agreement signed by all Parties.

11.4 Severability. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law. In the event that any one or more of the phrases, sentences, clauses, paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable by valid j udgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Agreement, which shall be interpreted to carry out the intent of the Parties.

11.5 Successors in Interest . This Agreement shall be binding upon and inure to the benefit of the Parties’ successors and assignees.

11.6 Third Party Beneficiary . Except as may be expressly provided for in this Agreement, nothing contained in this Agreement is intended to confer, nor shall this Agreement be construed as conferring, any rights, including, without limitation, any rights as a third-party beneficiary or otherwise, upon any entity or person not a party to this Agreement.

11.7 Recitals. The above -referenced Recitals are hereby incorporated into the Agreement as though fully set forth in this Agreement and each Party acknowledges and agrees that such Party is bound, for purposes of this Agreement, by the same.

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Revised 4.13.23 Page 10 of 69

11.8 Authority. The persons executing this Agreement on behalf of the P arties warrant that they are duly authorized to execute this Agreement on behalf of Parties and that by so executing this Agreement the Parties are formally bound to the provisions of this Agreement.

11.9 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original.

12. COMPLIANCE WITH ECONOMIC SANCTIONS IN RESPONSE TO RUSSIA'S ACTIONS IN UKRAINE.

When funding for the services is provided, in whole or in part, by an agency controlled of the State of California, Consultant shall fully and adequately comply with California Executive Order N-6-22 (“Russian Sanctions Program”). As part of this compliance process, Consultant shall also certify compliance with the Russian Sanctions Program by completing the form located in Exhibit “C” (Russian Sanctions Certification), attached hereto and incorporated herein by reference. Consultant shall also require any subconsultants to comply with the Russian Sanctions Program and certify compliance pursuant to this Section.

13. FEDERAL PROVISIONS
Since funding for the Services is provided, in whole or in part, by the Federal Aviation Administration, Supplier shall also fully and adequately comply with the provisions included in Exhibit “D” attached hereto and incorporated herein by reference (“Federal Provisions”). With respect to any conflict between such Federal Provisions and the terms of this Agreement and/or the provisions of state law, the more stringent requirement shall control.

[SIGNATURES ON NEXT PAGE]
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SIGNATURE PAGE TO AGREEMENT BY AND BETWEEN THE CITY OF PALM SPRINGS AND MCCLOSKEY MECHANICAL CONTRACTORS, INC.

IN WITNESS WHEREOF, the Parties have executed this Agreement as of the dates stated below.

CONTRACTOR:

By: _______________________________________ By: _________________________________________ Signature Signature
(2nd signature required for Corporations)

Date: Date:

CITY OF PALM SPRINGS:

APPROVED BY CITY COUNCIL:

Date: ____________________ Item No. ____________________

APPROVED AS TO FORM: ATTEST:

By: ___________________________ By: _______________________________ City Attorney City Clerk

APPROVED:

By: _______________________________ Date:

City Manager – over $50,000
Deputy/Assistant City Manager – up to $50,000
Director – up to $25,000
Manager – up to $5,000

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EXHIBIT “A”

CONTRACTOR’S

SCOPE OF SERVICES/WORK

Including,

Schedule of Fees

And

Schedule of Performance

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Revised 4.13.23 Page 13 of 69

1.1 Scope:

A. Contractor shall furnish labor, materials, equipment, and supervision to perform HVAC maintenance and installation (Work) on an as -requested basis at the Palm Springs International Airport (PSP) . The scope of Work shall include, but is not limited to repairs, troubleshooting, testing, inspecting, training, replace ment, installation, and maintenance of a wide range of heating, cooling, ventilation, ductwork, and mechanical systems. This may include project estimation and budgeting of work.

B. All work shall be performed by and billed to the lowest applicable job class level. The majority of the Work requested under this contract is to be performed by one (1) trade person per job. All service shall be performed by personnel who are journeyman level (or equivalent according to industry norms) as described by industry standards. The Contractor must receive prior written approval from the Airport(PSP) before assigning more than one (1) trade person per job. On jobs requiring more than three (3) trade persons, the Contractor shall be required to designate one (1) employee to perform the duties and responsibilities of Foreman and that person shall receive compensation as such.

C. Response time: The Contractor shall respond to emergency calls for service or repair within twenty -four (24) hours. Emergency responses to include weekends, after - hours, and holidays.

D. Correction of work de ficiencies: The Contractor shall correct wo rk rejected by the Airport(PSP) as failing to conform to the requirements in the project documents within thirty days. The Contractor shall bear the cost of c orrecting such rejected work, including the costs of un covering, replacement, and additional testing. If the Contractor fails to commence correction of nonconforming work within a seven- day period after written notice, the city may correct the deficiencies by other means. In such case, the Airport(PSP) may exe rcise rights and remedies as provided in se ction

9.4 of agreement. In addition to the Contractor’s other obligations, the contract shall, for a period of one year after substantial completion, correct work not conforming to the requirements of the work.

E. Compliance with regulations and permits: Contractor shall comply with or exceed all relevant statutes, codes, rules, and regulations as may be applicable to this contract and shall be responsible for securing any and all permits as required by the governing authority. The Airport(PSP) shall reimburse the Contractor for only the actual cost of said permits, excluding Security Access permits and badges required for operations at the Airport(PSP).

F. Equipment and supplies: Contractor is to provide, at no additional cost to the Airport(PSP), all necessary equipment, hand, and power tools and supplies typically used by the job classification and/or assigned trade person. Mechanical or other equipment used for Work must be of a type that is approved by the industry and shall be operated in such a manner as not to cause danger of any nature to employees or other persons or damage to the building structure, fixtures, furnishings, etc.

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Revised 4.13.23 Page 14 of 69

tools, or materials it determines is not typical of that job classification. Contractor must not store equipment and/or supplies on any Airport(PSP) property.

G. General safety requirements: The Contractor shall be responsible for all safety precautions req uired in connection with their work, including regulations of the Occupational Safety and Health Administration (OSHA) and other governing agencies. The Airport(PSP) reserves the right to oversee all service work from a safety standpoint and require the C ontractor to take appropriate action to ensure safety and code compliance.

H. Damages: Necessary precautions shall be taken at all times to protect persons, property and equipment from injury or damage. Any damage shall be reported, reviewed, and discussed with the facility manager.

I. Security: The Contractor is responsible for Security Access Badging for all staff necessary to conduct work at the Airport. The Contractor is responsible for the Signatory Authority for all SIDA area badges issued to their employees. Addit ional information regarding secure access to the Airport can be found here:

Badging &
AOA Permits - Palm Springs International A irport (PSP) - Palm Springs, California (flypsp.com).

J. Disposal and salvage of waste material: Contractor must dispose of or salvage all waste material generated by its service operations under the contract in an off -site location, in compliance with all applicable laws and regulations. The Airport(PSP) encourages Contractor to salvage material in an environmentally friendly manner if possible. The Airport(PSP) retains the right to retain materials or have another party salvage material, at the discretion and direction of the facility manager.

K. Uniforms and face coverings: The Contractor shall be required to properly uniform its service personnel and they shall present a clean and neat appearance at all times. Day service personnel shall have color-coordinated shirts with company name and/or logo provided by the Contractor. Contractor vehicles must display company logo and name. Contractor must abide by the Airport(PSP) s requirements for visiting Airport(PSP) buildings, including wearing required face coverings.

L. Contractor’s employees must act in a professional manner at all times and abide by all local, state and federal laws. Contractor’s employees deemed noncompliant by the Airport(PSP) will be removed immediately and replaced within twenty -four (24) hours. Contractor’s employees must submit to weapons sc reening as directed.

Contractor’s employees must be able to understand, read and communicate in English under the performance of this Contract. Contractor must observe and comply with all of the Airport(PSP)’s present and future rules and regulations regar ding conduct on the premises.

1.2 Pricing:

1. The pricing included in this Contract shall be firm for the first year.

2. The unit prices may be adjusted (decreased or increased) once a year to correspond with the most recent annual change to the Consumer Price Index for All Urban Consumers as published by the U.S. Bureaus of Labor Statistics for the Riverside-San Bernardino-Ontario Areas.

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Revised 4.13.23 Page 15 of 69

3. The City will only pay for the items listed on the bid form, and permit an d disposal fees. This does not include access to public utilities. Contractor must incorporate all of its costs in its unit bid prices, including but not limited to labor, supervision, project management, overhead, profit, onboarding training, travel, mile age, truck charges, fuel charges, service call charges, parking, delivery, portal-to-portal charges, environmental fees, shop supplies and consum able incidental materials. The City will not pay for subcontractors, rental of equipment/tools, and purchase of materials/supplies unless the City authorized payment of the applicable items.

1.3 Payment:

The resulting contract for these services is an on- call as needed contract. No specific amount of work is guaranteed. The contract value is an estimated value only. All work authorized under the contract will be compensated on a tim e and material basis as outlined in the Invoicing Section.

1.4 Invoicing:

Contractor will submit an itemized invoice monthly. Billings must reference a purchase order number and shall indicate the unit (contract) price. Contractor will be paid for th e actual hours worked at the rates shown in the contract. Parts, materials, equipment, and subcontractor costs will be compensated at actual cost with receipts required with allowable markup as outline in the contract. Contractor shall break out the line i tems on the invoice in accordance with the line items on the bid form. Contractor must provide back-up documentation for materials, subcontractor, rented equipment, permits, disposal and recycling fees. Invoices that are submitted with incorrect prices may be returned for correction before any payments to the contractor are authorized. It shall be the contractor’s responsibility to submit a correct invoice. The City shall not be responsible for payment until a correct invoice is received. The invoice shall be accompanied by receipts, dated, and signed by a City Employee, verifying the work was done. Invoices and receipts will be submitted to the Contract Officer for approval.

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Item 1T - Page 20

ATTACHMENT G

BID FORM
INVITATION FOR BIDS (IFB 23-37)

ON-CALL HVAC REPAIR SERVICES FOR PALM SPRINGS INTERNATIONAL AIRPORT Responding lo lhis IFB for on-call HVAC repair services for lhe Palm s,ri ngs lnlernalional Airport (PSP), the undersigned bidder proposes and agrees lo provide the services and work in ot,;i;ou.lc:mt;t1 with lhtt sµticiri(.;olium;. Bid<.h::11 µwµ,o::;tt!:i 011<.l c:1yrt1t1s lo ru111ish c:1II lc11Jor, ttquiµrmml, materials, supervision, and seNice necessary to complete said Wolk in accordance wilh lhe Specifications of the Cily of Palm Springs and will accepl as full payment therefore, lhe following unit cost amoun ls. The City of Palm Springs will not accept any additional charges, fees, etc. that are not already included or incorporated in the below unil costs.

ITEM DESCRIPTION UNIT ESTIMATED UNIT PRICE SUBTOTAL QUANTITY 1 Foreman Regular Billing Rate HR 50 $145.00 $7,250.00 (7:00AM - 5:00PM) 2 Foreman Overtime Billing Rate HR 5 $210.00 $1,050.00 (5:00PM - 7:00AM) 3 Foreman Holiday Billing Rate HR 5 $280 .00 $1,400 .00 (Saturdal/Sunday/Holiday) 4 HVAC Technician Regular Billing HR 100 $137.00 $13,700.00 Rate (7:COAM - 5:00PM) 5 HVAC Technician Overtime Billing HR 5 $199.00 $995.00 Rate (5:COPM - 7:00AM) 6 HVAC Technician Holiday Billing HR 5 $266.00 $1 ,330.00 Rate (Salurday/Sunday/Holiday)
7 Journeyman Pipefitter Regular HR 25 $145.00 $3,625.00 Billing Rate (7:00AM - 5:00PM)
8 Journeyman Pipefitter Overtime HR 5 $210.00 $1,050.00 Billing Rate (5:00PM - 7:00AM) Journeyman Pipefotter Holiday
9 Billing Rate HR 5 $280.00 $1,400 .00
ISaturda•t/Sundav/Holi dav\
10 Welder Eegular Billing Rate HR 25 $145 .00 $3,625.00 (7:00AM - 5:00PM)
11 Welder Overtime Billing Rate HR 5 $210.00 $1,050.00
(5:00PM - 7:00AM)
12 Welder t-oliday l:!illing Kate HR 5 $2-30.00 $1,400.00 (Saturday/Sunday/Hol iday)

Revised 4.13.23 Page 17 of 69

Item 1T - Page 21
Journeyman Sheetmetal Worker
13 Regular Billing Rate HR 25 $145.00 $3,625.00
17:00AM - 5:00PMl
Journeyman Sheetmetal Worker
14 Overtime Billing Rate HR 5 $210.00 $1,050.00
15:00PM - 7:00AM\
Journeyman Sheetmetal Worker
$280.00 15 Holiday Billing Rate HR 5 $1,400.00
/Saturdav/Sundav/Holida vl
16 Apprentice Regular Billing Rate HR 25 $ 110.00 $2,750.00 (7:00AM - 5:00PM) 17 Apprentice Overtime Billing Rate HR 5 $ 160.00 $800.00 (5:00PM - 7:00AM) 18 Apprentice Holiday Billing Rate HR 5 $214.00 $1,070.00 (Saturday/Sunday/Holiday) 19 Parts and Materials (Enter your% % $1,000 15% $1,150.00 mark-up for parts & materials) 20 Equipment Rental (Enter your % % $1,000 10% $1,100.00 mark-up for equipment rentals) 21 Subcontractor (Enter your % mark % $1,000 10% $1,100.00 up for subcontractors) TOTAL (Enter this amount in Plane tBi ds) $51,920 .00
' Note: This bid form is to determine the lowest bidder and will be used to establish the contract unit prices. The contract value will be set at the City budget amount.

Firm Name: McCloskey M echanica l Contractors , Inc
DIR Number: PW-LR-1000813 108
Signature of Authorized Person : tf2 --"{5(. ~
Printed Name: Robert L. Reeves
Tille: National Public Accoun ts Director
Date: August 29, 2023

Revised 4.13.23 Page 18 of 69

EXHIBIT “B”

INSURANCE PROVISIONS

Including

Verification of Coverage,

Sufficiency of Insurers,

Errors and Omissions Coverage,

Minimum Scope of Insurance,

Deductibles and Self-Insured Retentions, and

Severability of Interests (Separation of Insureds)
Item 1T - Page 22

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INSURANCE

1. Procurement and Maintenance of Insurance. Contractor shall procure and maintain public liability and property damage insurance against all claims for injuries against persons or damages to property resulting from Contractor’ s performance under this Agreement.

Contractor shall procure and maintain all insurance at its sole cost and expense, in a form and content satisfactory to the City, and submit concurrently with its execution of this Agree ment.

Contractor shall also carry workers’ compensation insurance in accordance with California workers’ compensation laws. Such insurance shall be kept in full force and effect during the term of this Agreement , including any extensions. Such insurance shall not be cancelable without thirty (30) days advance written notice to City of any proposed cancellation. Certificates of insurance evidencing the foregoing and designating the City, its elected officials, officers, employees, agents, and volunteers as additional named insureds by original endorsement shall be delivered to and approved by City prior to commencement of services. The procuring of such insurance and the delivery of policies, certificates, and endorsements evidencing the same sh all not be construed as a limitation of Contractor’s obligation to indemnify City, its elected officials, officers, agents, employees, and volunteers.

2. M inimum Scope of Insurance . The minimum amount of insurance requir ed under this Agreement shall be as follows:

1. Comprehensive general liability and personal injury with limits of at least one million dollars ($1,000,000.00) combined single limit coverage per occurrence and two million dollars ($2,000,000) general aggregate;

2. Automobile liability insurance with limits of at least one million dollars ($1,000,000.00) per occurrence;

3. Professional liability (errors and omissions) insurance with limits of at least one million dollars ($1,000,000.00) per occurrence and two million dollars ($2,000,000) annual aggregate is:
_________ required
____X____ is not required;

4. Workers’ Compensation insurance in the statutory amount as required by the State of California and Employer’s Liability Insurance with limits of at least one million dollars $1 million per occurrence. If Contractor has no employees, Contractor shall complete the City’s Request for Waiver of Workers’ Compensation Insurance Requirement form.

3. Primary Insurance. For any claims related to this Agreement, Contractor ’s insurance coverage shall be primary with respect to the City and its respective elected officials, officers, employees, agents, and volunteers. Any insurance or self -insurance maintained by City and its respective elected officials, officers, employees, agents, and volunteers shall be in excess of Contractor’s insurance and shall not contribute with it. For Workers’ Compensation and Employer’s Liability Insurance only, the insurer shall waive all rights of subrogation and Item 1T - Page 23

Revised 4.13.23 Page 20 of 69

contribution it may have against City, its ele cted officials, officers, employees, agents, and volunteers.

4. Errors and Omissions Coverage . If Errors & Omissions Insurance is required, and if Contractor provides claims made profes sional liability insurance, Contractor shall also agree in writing either (1) to purchase tail insurance in the amount required by this Agreement to cover claims made within three years of the completion of Contractor ’s services under this Agreement, or (2) to maintain professional liability insurance coverage with the same carrier in the amount required by this Agreement for at least three years after completion of Contractor’ s services under this Agreement. Contractor shall also be required to provide evidence to City of the purchase of the required tail insurance or continuation of the professional liability policy.

5. Sufficiency of Insurers. Insurance required in this Agreement shall be provided by authorized insurers in good standing with the State of California. Coverage shall be provided by insurers admitted in the State of California with an A.M. Best’s Key Rating of B++, Class VII, or better, unless otherwise acceptable to the City.

6. Verification of Coverage. Contractor shall furnish City with both certificates of insurance and endorsements, including additional insured endorsements, affecting all of the coverages required by this Agreement. The certificates and endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. All proof of insurance is to be received and approved by the City before work commences. City reserves the right to require Contractor’s insurers to provide complete, certified copies of all required insurance policies at any time. Additional insured endorsements are not required for Errors and Omissions and Workers’ Compensation policies.

Verification of Insurance coverage may be provided by: (1) an approved General and/or Auto Liability Endorsement Form for the City of Palm Springs or (2) an acceptable Certificate of Liability Insurance Coverage with an approved Additional Insured Endorsement with the following endorsements stated on the certificate:

A. "The City of Palm Springs, its officials, employees, and agents are named as an additional insured…” ("as respects City of Palm Springs Contract No.___" or "for any and all work performed with the City" may be included in this statement).

B. " This insurance is primary and non- contributory over any insurance or self- insurance the City may have..." ("as respects City of Palm Springs Contract No.___" or " for any and all work performed with the City" may be included in this statement).

C. " Should any of the above- described policies be canceled before the expiration date thereof, the issuing company will mail 30 days written notice to the Certificate Holder named." Language such as, “endeavor to” mail and "but failure to mail such notice shall impose no obligation or liability of any kind upon the company, its agents or representative" is not acceptable and must be crossed out.

Item 1T - Page 24

Revised 4.13.23 Page 21 of 69

D. Both the Workers’ Compensation and Employers' Liability policies shall contain the insurer's waiver of subrogation in favor of City, its elected officials, officers, employees, agents, and volunteers.

In addition to the endorsements listed above, the City of Palm Springs shall be named the certificate holder on the policies.

All certificates of insurance and endorsements are to be received and approved by the City before work commences. All certificates of insurance must be authorized by a person with authority to bind coverage, whether that is the authorized agent/broker or insurance underwriter.

Failure to obtain the required documents prior to the commencement of work shall not waive the Contractor’s obligation to provide them.

7. Deductibles and Self -Insured Retentions . Any deductibles or self -insured retentions must be declared to and approved by the City prior to commencing any work or services under this Agreement. At the option of the City, either (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions with respect to the City, its elected officials, officers, employees, agents, and volunteers; or (2) Contractor shall procure a bond guaranteeing payment of losses and related investigations, claim administration, and defense expenses.

Certificates of Insurance must include evidence of the amount of any deductible or self -insured retention under the policy. Contractor guarantees payment of all deductibles and self -insured retentions.

8. Severability of Interests (Separation of Insureds) . This insurance applies separately to each insured against whom claim is made or suit is brought except with respect to the limits of the insurer’s liability.

Item 1T - Page 25

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Exhibit C

EXECUTIVE ORDER N-6-22 CERTIFICATION

Executive Order N-6-22 issued by Governor Gavin Newsom on March 4, 2022, directs all agencies and departments that are subject to the Governor’s authority to (a) terminate any contracts with any individuals or entities that are determined to be a target of economic sanctions against Russia and Russian entities and individuals; and (b) refrain from ent ering into any new contracts with such individuals or entities while the aforementioned sanctions are in effect.

Executive Order N-6-22 also requires that any contractor that: (1) currently has a contract with the City of Palm Springs funded through grant funds provided by the State of California; and/or (2) submits a bid or proposal or otherwise proposes to or enter into or renew a contract with the City of Palm Springs with State of California grant funds, certify that the person is not the target of any economic sanctions against Russia and Russian entities and individuals.

The contractor hereby certifies, SUBJECT TO PENALTY FOR PERJURY, that a) the contractor is not a target of any economic sanctions against Russian and Russian entities and individuals as discussed in Executive Order N-6-22 and b) the person signing below is duly authorized to legally bind the Contractor.

This certification is made under the laws of the State of California.

Signature:

Printed Name:

Title:

Firm Name:

Date:

Item 1T - Page 26

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Exhibit D

FEDERAL AVIATION ADMINISTRATION

FEDERAL PROVISIONS

Provision
Reference Provision Description
Page
No.

FAA - 01 Access to Records and Reports 2
FAA - 02 Affirmative Action Requirement * 3
FAA – 03 Breach of Contract Terms 5
FAA – 04 Buy American Preference * 6
FAA – 05 Civil Rights General 7
FAA – 06 Civil Rights – Title VI Assurances * 8
FAA – 07 Clean Air and Water Pollution Control 11
FAA – 08 Contract Work Hours and Safety Standards Act Requirements 12 FAA – 09 Copeland Anti-Kickback Act 14
FAA – 10 Davis Bacon Requirements 15
FAA – 11 Debarment and Suspension * 22
FAA – 12 Disadvantaged Business Enterprise * 23
FAA – 13 Distracted Driving 25
FAA – 14 Prohibition on Certain Telecommunications and Video Surveillance Services or Equipment
26 FAA – 15 Drug Free Workplace Requirements (not applicable to Contractors)
27 FAA – 16 Equal Employment Opportunity 28
FAA – 17 Federal Fair Labor Standards Act * 36
FAA – 18 Lobbying and Influencing Federal Employees 37
FAA – 19 Prohibition of Segregated Facilities 38
FAA – 20 Occupational Safety and Health Act of 1970 39
FAA – 21 Procurement of Recovered Materials * 40
FAA – 22 Right to Inventions 41
FAA – 23 Seismic Safety 42
FAA – 24 Tax Delinquency and Felony Convictions* 43
FAA – 25 Termination of Contract 44
FAA – 26 Trade Restriction Certification (Foreign) * 45 FAA – 27 Veteran’s Preference 47
FAA – 28 Domestic Preferences for Procurements * 48

*Solicitation Clause also
Updated 2.8.2023
Item 1T - Page 27

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FAA - 01 Access to Records and Reports
APPLICABILITY – pertains to all contracts.

The Contractor must maintain an acceptable cost accounting system. The Contractor agrees to provide the City, the Federal Aviation Administration and the Comptroller General of the United States or any of their duly authorized representatives access to any books, documents, papers and records of the Contractor which are directly pertinent to the specific contract for the purpose of making audit, examination, excerpts and transcriptions. The Contractor agrees to maintain all books, records and reports required under this contract for a period of not less than three years after final payment is made and all pending matters are closed.

Reference: 2 CFR § 200.334, 2 CFR § 200.337, FAA Order 5100.38 Item 1T - Page 28

Revised 4.13.23 Page 25 of 69

FAA - 02 Affirmative Action Requirement

NOTICE OF REQUIREMENT FOR AFFIRMATIVE ACTION TO

ENSURE EQUAL EMPLOYMENT OPPORTUNITY
APPLICABILITY – pertains to all contracts over $10,000 as follows:

Construction – AIP funded construction work contracts and subcontracts that exceed $10,000.

Construction work means construction, rehabilitation, alteration, conversion, extension, demolition or repair of buildings, highways or other changes or improvements to real property, including facilities providing utility services. The term also includes the supervision, inspection and other onsite functions incidental to the actual construction.

Equipment – any equipment project exceeding $10,000 that involves installation of equipment onsite (e.g., electrical vault equipment). This provision does not apply to equipment acquisition projects where the manufacture of the equipment takes place offsite at a manufacturer’s plant (e.g., firefighting and snow removal vehicles).

Professional Services – any professional service agreement if the professional services agreement includes tasks that meet the definition of construction work [as defined by the U.S.

Department of Labor (DOL)] and exceeds $10,000. Examples include installation of monitoring systems (e.g., noise, environmental, etc.).

Property/Land – any agreement associated with land acquisition if the agreement includes construction work (defined above) that exceeds $10,000. Examples include demolition of structures or installation of boundary fencing.

REQUIREMENTS -

1. The Contractor’s attention is called to the “Equal Opportunity Clause” and the “Standard Federal Equal Employment Opportunity Construction Contract Specifications” set forth herein.

2. The goals and timetables for minority and female participation, expressed in percentage terms for the Contractor’s aggregate workforce in each trade on all construction work in the covered area, are as follows:

Timetables
Goals for minority participation for each trade: [N/A]
Goals for female participation in each trade: [N/A]
These goals are applicable to all of the Contractor’s construction work (whether or not it is Federal or federally assisted) performed in the covered area. If the Contractor performs construction work in a geographical area located outside of the covered area, it shall apply the goals established for such geographical area where the work is actually performed. With regard to this second area, the Contractor also is subject to the goals for both its federally involved and nonfederally involved construction.

The Contractor’s compliance with the Executive Order and the regulations in 41 CFR Part 60-4 shall be based on its implementation of the Equal Opportunity Clause, specific affirmative action obligations required by the specifications set forth in 41 CFR 60- 4.3(a) and its efforts to meet the goals. The hours of minority and female employment and training must be Item 1T - Page 29

Revised 4.13.23 Page 26 of 69

substantially uniform throughout the length of the contract, and in each trade, and the Contractor shall make a good faith effort to employ minorities and women evenly on each of its projects. The transfer of minority or female employees or trainees from Contractor to Contractor or from project to project for the sole purpose of meeting the Contractor’s goals shall be a violation of the contract, the Executive Order and the regulations in 41 CFR Part 60-

4. Compliance with the goals will be measured against the total work hours performed.

3. The Contractor shall provide written notification to the Director of the Office of Federal Contract Compliance Programs (OFCCP) within 10 working days of award of any construction subcontract in excess of $10,000 at any tier for construction work under the contract resulting from this solicitation. The notification shall list the name, address, and telephone number of the subcontractor; employer identification number of the subcontractor; estimated dollar amount of the subcontract; estimated starting and completion dates of the subcontract; and the geographical area in which the subcontract is to be performed.

4. As used in this notice and in the contract resulting from this solicitation, the “covered area” is California, Riverside County, Palm Springs.

Reference: 41 CFR Part 60-4
Item 1T - Page 30

Revised 4.13.23 Page 27 of 69

FAA – 03 Breach of Contract
APPLICABILITY – required for all contracts that exceed the simplified acquisition threshold as stated in 2 CFR Part 200, Appendix II (A). This threshold is occasionally adj usted for inflation and is $250,000.

REQUIREMENT -
See Section 4.5 of the Agreement.

Reference: 2 CFR § 200 Appendix II(A)
Item 1T - Page 31

Revised 4.13.23 Page 28 of 69

FAA – 04 Buy American Preferences
APPLICABILITY – required for contracts defined as follows:
• Construction Projects involving the replacement, rehabilitation, reconstruction of airfield surfaces such as on runways, taxiways, taxilanes, aprons, roadways, parking lots, etc. – Insert the Certificate of compliance to FAA Buy American Preference based on Construction Projects.
• Equipment and Buildings Projects involving and including the acquisition of equipment such as snow removal equipment, navigational aids, wind cones, and the construction of buildings such as hangars, terminal development, lighting vaults, aircraft rescue & firefighting buildings, etc. - Insert the Certificate of Compliance with FAA Buy American Preference Based on Equipment/Building Projects.

REQUIREMENT -
The Contractor certifies that all constructions materials, defined to mean an article, material, or supply other than an item of primarily iron or steel; a manufactured product; cement and cementitious materials; aggregates such as stone, sand, or gravel; or aggregate binding agents or additives that are or consist primarily of: non- ferrous metals; plastic and polymer -based products (including polyvinylchloride, composite building materials, and polymers used in fiber optic cables); glass (including optic glass); lumber; or drywall used in the project are manufactured in the U.S.

Reference: Title 49 USC § 50101
Item 1T - Page 32

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FAA – 05 Civil Rights General
APPLICABILITY – required for all contracts regardless of funding source.

REQUIREMENT -
In all its activities within the scope of its airport program, the Contractor agrees to comply with pertinent statutes, Executive Orders, and such rules as identified in Title VI List of Pertinent Nondiscrimination Acts and Authorities to ensure that no person shall, on the grounds of race, color, national origin (including limited English proficiency), creed, sex (including se xual orientation and gender identity), age, or disability be excluded from participating in any activity conducted with or benefiting from Federal assistance. The above provision binds the Contractor and subcontractors from the bid solicitation period through the completion of the contract.

This provision is in addition to that required by Title VI of the Civil Rights Act of 1964.

Reference: 49 USC § 47123
Item 1T - Page 33

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FAA – 06 Civil Rights – Title VI Assurances
APPLICABILITY – required for all contracts.

REQUIREMENT -
Title VI List of Pertinent Nondiscrimination Acts and Authorities During the performance of this contract, the Contractor, for itself, its assignees, and successors in interest (hereinafter referred to as the “Contractor”) agrees to comply with the following non- discrimination statutes and authorities; including but not limited to:
• Title VI of the Civil Rights Act of 1964 (42 USC § 2000d et seq., 78 stat. 252) (prohibits discrimination on the basis of race, color, national origin); • 49 CFR part 21 (N on-discrimination in Federally -Assisted programs of the Department of Transportation—Effectuation of Title VI of the Civil Rights Act of 1964); • The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, (42 USC § 4601) (prohibits unfair treatment of persons displaced or whose property has been acquired because of Federal or Federal-aid programs and projects); • Section 504 of the Rehabilitation Act of 1973 (29 USC § 794 et seq.), as amended (prohibits discrimination on the basis of disability); and 49 CFR part 27 (Nondiscrimination on the Basis of Disability in Programs or Activities Receiving Federal Financial Assistance); • The Age Discrimination Act of 1975, as amended (42 USC § 6101 et seq.) (prohibits discrimination on the basis of age);
• Airport and Airway Improvement Act of 1982 (49 USC § 47123), as amended (prohibits discrimination based on race, creed, color, national origin, or sex); • The Civil Rights Restoration Act of 1987 (PL 100- 259) (broadened the scope, coverage and applicability of Title VI of the Civil Rights Act of 1964, the Age Discrimination Act of 1975 and Section 504 of the Rehabilitation Act of 1973, by expanding the definition of the terms “programs or activities” to include all of the programs or activities of the Federal -aid recipients, sub-recipients and contractors, whether such programs or activities are Federally funded or not);
• Titles II and III of the Americans with Disabilities Act of 1990 (42 USC § 12101, et seq) (prohibit discrimination on the basis of disability in the operation of public entities, public and private transportation systems, places of public accommodation, and certain testing entities) as implemented by U.S. Department of Transportation regulations at 49 CFR parts 37 and 38; • The Federal Aviation Administration’s Nondiscrimination statute (49 USC § 47123) (prohibits discrimination on the basis of race, color, national origin, and sex); • Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low- Income Populations (ensures nondiscrimination against minority populations by discouraging programs, policies, and activities with disproportionately high and adverse human health or environmental effects on minority and low-income populations); Item 1T - Page 34

Revised 4.13.23 Page 31 of 69

• Executive Order 13166, Improving Access to Services for Persons with Limited English Proficiency, and resulting agency guidance, national origin discrimination includes discrimination because of limited English proficiency (LEP). To ensure compliance with Title VI, you must take reasonable steps to ensure that LEP persons have meaningful access to your programs [70 Fed. Reg. 74087 (2005)];
• Title IX of the Education Amendments of 1972, as amended, which prohibits you from discriminating because of sex in education programs or activities (20 USC § 1681, et seq).

Compliance with Nondiscrimination Requirements:

During the performance of this contract, the Contractor, for itself, its assignees, and successors in interest (hereinafter referred to as the “Contractor”), agrees as follows:

1. Compliance with Regulations: The Contractor (hereinafter includes consultants) will comply with the Title VI List of Pertinent Nondiscrimination Acts and Authorities, as they may be amended from time to time, which are herein incorporated by reference and made a part of this contract.

2. Nondiscrimination: The Contractor, with regard to the work performed by it during the contract, will not discriminate on the grounds of race, color, national origin (including limited English proficiency), creed, sex (including sexual orientation and gender identity), age, or disability in the selection and retention of subcontractors, including procurements of materials and leases of equipment. The Contractor will not participate directly or indirectly in the discrimination prohibited by the Nondiscrimination Acts and Authorities, including employment practices when the contract covers any activity, project, or program set forth in Appendix B of 49 CFR part 21.

3. Solicitations for Subcontracts, including Procurements of Materials and Equipment:

In all solicitations, either by competitive bidding or negotiation made by the Contractor for work to be performed under a subcontract, including procurements of materials, or leases of equipment, each potential subcontractor or supplier will be notified by the Contractor of the Contractor’s obligations under this contract and the Nondiscrimination Acts and Authorities on the grounds of race, color, or national origin.

4. Information and Reports: The Contractor will provide all information and reports required by the Acts, the Regulations, and directives issued pursuant thereto and will permit access to its books, records, accounts, other sources of information, and its facilities as may be determined by the City or the Federal Aviation Administration to be pertinent to ascertain compliance with such Nondiscrimination Acts and Authorities and instructions. Where any information required of a Contractor is in the exclusive possession of another who fails or refuses to furnish the information, the Contractor will so certify to the City or the Federal Aviation Administration, as appropriate, and will set forth what efforts it has made to obtain the information.

5. Sanctions for Noncompliance: In the event of a Contractor’s noncompliance with the non-discrimination provisions of this contract, the City will impose such contract sanctions as it or the Federal Aviation Administration may determine to be appropriate, including, but not limited to:

Item 1T - Page 35

Revised 4.13.23 Page 32 of 69

a. Withholding payments to the Contractor under the contract until the Contractor complies; and/or
b. Cancelling, terminating, or suspending a contract, in whole or in part.

6. Incorporation of Provisions: The Contractor will include the provisions of paragraphs one through six in every subcontract, including procurements of materials and leases of equipment, unless exempt by the Acts, the Regulations, and directives issued pursuant thereto. The Contractor will take action with respect to any subcontract or procurement as the City or the Federal Aviation Administration may direct as a means of enforcing such provisions including sanctions for noncompliance. Provided, that if the Contractor becomes involved in, or is threatened with litigation by a subcontractor, or supplier because of such direction, the Contractor may request the City to enter into any litigation to protect the interests of the City. In addition, the Contractor may request the United States to enter into the litigation to protect the interests of the United States.

Reference: 49 USC § 47123, FAA Order 1400.11
Item 1T - Page 36

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FAA – 07 Clean Air/Water Pollution Control
APPLICABILITY – This provision is required for all contracts and lower tier contracts that exceed $150,000.

REQUIREMENT -
If the Agreement exceeds $150,000, Contractor agrees to comply with all applicable standards, orders, and regulations issued pursuant to the Clean Air Act (42 USC § 7401- 7671q) and the Federal Water Pollution Control Act as amended (33 USC § 1251-1387). The Contractor agrees to report any violation to the City immediately upon discovery. The City assumes responsibility for notifying the Environmental Protection Agency (EPA) and the Federal Aviation Administration.

Contractor must include this requirement in all subcontracts that exceeds $150,000.

Reference: 2 CFR § 200, Appendix II(G); 42 USC § 7401; 33 USC § 1251

Item 1T - Page 37

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FAA – 08 Contract Work Hours and Safety Standards
APPLICABILITY – This provision is required for contracts as follows:

Contract Work Hours and Safety Standards Act Requirements (CWHSSA) (40 USC §§ 3702 & 3704) requires contractors and subcontractors on covered contracts to pay laborers and mechanics employed in the performance of the contracts not less than one and one- half times their basic rate of pay for all hours worked over 40 in a workweek.

CWHSSA prohibits unsanitary, hazardous, or dangerous working conditions on federally - assisted projects. The Wage and Hour Division (WHD) within the U.S. Department of Labor (DOL) enforces the compensation requirements of this Act, while DOL’s Occupational Safety and Health Administration (OSHA) enforces the safety and health requirements.

Contract Types –
Construction – This provision applies to all contracts and lower tier contracts that exceed $100,000, and employ laborers, mechanics, watchmen, and guards.

Equipment – This provision applies to any equipment project exceeding $100,000 that involves installation of equipment onsite (e.g., electrical vault equipment). This provision does not apply to equipment acquisition projects where the manufacture of the equipment takes place offsite at the vendor plant (e.g., ARFF and SRE vehicles).

Professional Services – This provision applies to professional service agreements that exceed $100,000 and employs laborers, mechanics, watchmen, and guards. This includes members of survey crews and exploratory drilling operations.

Property – While most land transactions do not involve employment of laborers, mechanics, watchmen, and guards, under certain circumstances, a property acquisition project could require such employment. Examples include the installation of property fencing or testing for environmental contamination

CONTRACT WORKHOURS AND SAFETY STANDARDS ACT REQUIREMENTS

1. Overtime Requirements.

No contractor or subcontractor contracting for any part of the contract work which may require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic, including watchmen and guards, in any workweek in which he or she is employed on such work to work in excess of forty hours in such workweek unless such laborer or mechanic receives compensation at a rate not less than one and one-half times the basic rate of pay for all hours worked in excess of forty hours in such workweek.

2. Violation; Liability for Unpaid Wages; Liquidated Damages.

In the event of any violation of the clause set forth in paragraph (1) of this clause, the Contractor and any subcontractor responsible therefor shall be liable for the unpaid wages. In addition, such contractor and subcontractor shall be liable to the United States (in the case of work done under contract for the District of Columbia or a territory, to such District or to such territory), for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic, including watchmen and guards, employed in violation of the clause set forth in paragraph (1) of this clause, in the sum of $29 for each calendar day on which such individual was required o r permitted to work in excess of the standard workweek of forty hours without payment of the overtime wages required by the clause set forth in paragraph (1) of this clause.

Item 1T - Page 38

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3. Withholding for Unpaid Wages and Liquidated Damages.

The Federal Aviation Administration (FAA) or the City shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld, from any moneys payable on account of work performed by the Contractor or subcontractor under any such contract or any other Federal contract with the same prime Contractor, or any other federally -assisted contract subject to the Contract Work Hours and Safety Standards Act, which is held by the same prime Contractor, such sums as may be determined to be necessary to satisfy any liabilities of such Contractor or subcontractor for unpaid wages and liquidated damages as provided in the clause set forth in paragraph (2) of this clause.

4. Subcontractors.

The Contractor or subcontractor shall insert in any subcontracts the clauses set forth in paragraphs (1) through (4) and also a clause requiring the subcontractor to include these clauses in any lower tier subcontracts. The prime contractor shall be responsible for compliance by any subcontractor or lower tier subcontractor with the clauses set forth in paragraphs (1) through (4) of this clause.

Reference: 2 CFR Part 200, Appendix II(E); 2 CFR § 5.5(b); 40 USC § 3702; 40 USC § 3704
Item 1T - Page 39

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FAA – 09 Copeland Anti-Kickback

APPLICABILITY -
The Copeland (Anti-Kickback) Act (18 USC § 874 and 40 USC § 3145) makes it unlawful to induce by force, intimidation, threat of dismissal from employment, or by any other manner, any person employed in the construction or repair of public buildings or public works, financed in whole or in part by the United States, to give up any part of the compensation to which that person is entitled under a contract of employment. The Copeland Act also requires each contractor and subcontractor to furnish weekly a statement of compliance with respect to the wages paid each employee during the preceding week.

Contract Types –
Construction – This provision applies to all construction contracts and subcontracts financed under the AIP that exceed $2,000.

Equipment – This provision applies to all equipment installation projects (e.g., electrical vault improvements) financed under the AIP that exceed $2,000. This provision does not apply to equipment acquisitions where the equipment is manufactured at the vendor’s plant (e.g., SRE and ARFF vehicles).

Professional Services –The emergence of different project delivery methods has created situations where Professional Service Agreements (PSAs) include tasks that meet the definition of construction, alteration, or repair as defined in 29 CFR Part 5. If such tasks result in work that qualifies as construction, alteration, or repair and it exceeds $2,000, the PSA must incorporate the Copeland Anti-kickback provision.

Property –Ordinarily, land acquisition projects would not involve employment of laborers or mechanics and thus the Copeland Anti-Kickback provision would not apply. However, land projects that involve installation of boundary fencing and demolition of structures would involve laborers and mechanics. The City must include this provision if the land acquisition project involves employment of laborers or mechanics for a contract exceeding $2,000.

REQUIREMENT -
Contractor must comply with the requirements of the Copeland “Anti -Kickback” Act (18 USC 874 and 40 USC 3145), as supplemented by Department of Labor regulation 29 CFR part 3. Contractor and subcontractors are prohibited from inducing, by any means, any person employed on the project to give up any part of the compensation to which the employee is entitled. The Contractor and each Subcontractor must submit to the City, a weekly statement on the wages paid to each employee performing on covered work during the prior week. City must report any violations of the Act to the Federal Aviation Administration.

Reference: 2 CFR Part 200, Appendix II(D); 29 CFR Parts 3 and 5 Item 1T - Page 40

Revised 4.13.23 Page 37 of 69

FAA – 10 Davis Bacon Requirements

APPLICABILITY -
The Davis -Bacon Act (40 USC §§ 3141- 3144, 3146, and 3147) ensures that laborers and mechanics employed under the contract receive pay no less than the locally prevailing wages and fringe benefits as determined by the Department of Labor.

Contract Types –
Construction – all construction contracts and subcontracts that exceed $2,000 and include funding from the AIP.

Equipment – This provision applies to all equipment installation projects (e.g., electrical vault improvements) financed under the AIP that exceed $ 2,000. This provision does not apply to equipment acquisitions where the equipment is manufactured at the vendor’s plant (e.g., SRE and ARFF vehicles)
Professional Services – The emergence of different project delivery methods has created situations where Professional Service Agreements (PSAs) includes tasks that meet the definition of construction, alteration, or repair as defined in 29 CFR Part 5. If such tasks result in work that qualifies as construction, alteration, or repair and it exceeds $2,000, the PSA must incorporate this clause.

Property – Ordinarily, land acquisition projects would not involve employment of laborers or mechanics and thus the provision would not apply. However, land projects that involve installation of boundary fencing and demolition of structures would involve laborers and mechanics. The City must include this provision if the land acquisition project involves employment of laborers or mechanics for a contract exceeding $2,000.

Fencing Projects – Fencing projects that exceed $2,000 must include this provision.

DAVIS-BACON REQUIREMENTS

1. Minimum Wages.
(i) All laborers and mechanics employed or working upon the site of the work will be paid unconditionally and not less often than once a week, and without subsequent deduction or rebate on any account (except such payroll deductions as are permitted by the Secretary of Labor under the Copeland Act (29 CFR Part 3)), the full amount of wages and bona fide fringe benefits (or cash equivalent thereof) due at time of payment computed at rates not less than those contained in the wage determination of the Secretary of Labor which is attached hereto and made a part hereof, regardless of any contractual relationship which may be alleged to exist between the Contractor and such laborers and mechanics.

Contributions made or costs reasonably anticipated for bona fide fringe benefits under section 1(b)(2) of the Davis-Bacon Act on behalf of laborers or mechanics are considered wages paid to such laborers or mechanics, subject to the provisions of paragraph (1)(iv) of this section; also, regular contributions made or costs incurred for more than a weekly period (but not less often than quarterly) under plans, funds, or programs which cover the particular weekly period, are deemed to be constructively made or incurred during such weekly period. Such laborers and mechanics shall be paid the appropriate wage rate and fringe benefits on the wage Item 1T - Page 41

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determination for the classification of work actually performed, without regard to skill, except as provided in 29 CFR § 5.5(a)(4). Laborers or mechanics performing work in more than one classification may be compensated at the rate specified for each classification for the time actually worked therein: Provided, that the employer’s payroll records accurately set forth the time spent in each classification in which work is performed. The wage determination (including any additional classification and wage rates conformed under (1)(ii) of this section) and the Davis-Bacon poster (WH -1321) shall be posted at all times by the Contractor and its subcontractors at the site of the work in a prominent and accessible place where it can easily be seen by the workers.
(ii)(A) The contracting officer shall require that any class of laborers or mechanics, including helpers, which is not listed in the wage determination and which is to be employed under the contract shall be classified in conformance with the wage determination. The contracting officer shall approve an additional classification and wage rate and fringe benefits therefore only when the following criteria have been met:
(1) The work to be performed by the classification requested is not performed by a classification in the wage determination;
(2) The classification is utilized in the area by the construction industry; and (3) The proposed wage rate, including any bona fide fringe benefits, bears a reasonable relationship to the wage rates contained in the wage determination. (B) If the Contractor and the laborers and mechanics to be employed in the classification (if known), or their representatives, and the contracting officer agree on the classification and wage rate (including the amount designated for fringe benefits where appropriate), a report of the action taken shall be sent by the contracting officer to the Administrator of the Wage and Hour Division, U.S. Department of Labor, Washington, DC 20210. The Administrator, or an authorized representative, will approve, modify, or disapprove every additional classification action within 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30-day period that additional time is necessary. (C) In the event the Contractor, the laborers, or mechanics to be employed in the classification, or their representatives, and the contracting officer do not agree on the proposed classification and wage rate (including the amount designated for fringe benefits, where appropriate), the contracting officer shall refer the questions, including the views of all interested parties and the recommendation of the contracting officer, to the Administrator for determination. The Administrator, or an authorized representative, will issue a determination within 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30-day period that additional time is necessary.
(D) The wage rate (including fringe benefits where appropriate) determined pursuant to subparagraphs (1)(ii) (B) or (C) of this paragraph, shall be paid to all workers performing work in the classification under this contract from the first day on which work is performed in the classification.
(iii) Whenever the minimum wage rate prescribed in the contract for a class of laborers or mechanics includes a fringe benefit which is not expressed as an hourly rate, the contractor Item 1T - Page 42

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shall either pay the benefit as stated in the wage determination or shall pay another bona fide fringe benefit or an hourly cash equivalent thereof.
(iv) If the Contractor does not make payments to a trustee or other third person, the Contractor may consider as part of the wages of any laborer or mechanic the amount of any costs reasonably anticipated in providing bona fide fringe benefits under a plan or program, Provided, that the Secretary of Labor has found, upon the written request of the Contractor, that the applicable standards of the Davis -Bacon Act have been met. The Secretary of Labor may require the Contractor to set aside in a separate account assets for the meeting of obligations under the plan or program.

2. Withholding. The Federal Aviation Administration or the CIty shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld from the Contractor under this contract or any other Federal contract with the same prime contractor, or any other federally -assisted contract subject to Davis -Bacon prevailing wage requirements, which is held by the same prime contractor, so much of the accrued payments or advances as may be considered necessary to pay laborers and mechanics, including apprentices, trainees, and helpers, employed by the Contractor or any subcontractor the full amount of wages required by the contract. In the event of failure to pay any laborer or mechanic, including any apprentice, trainee, or helper, employed or working on the site of the work, all or part of the wages required by the contract, the Federal Aviation Administration may, after written notice to the Contractor, City, Applicant, or Owner, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds until such violations have ceased.

3. Payrolls and Basic Records.
(i) Payrolls and basic records relating thereto shall be maintained by the Contractor during the course of the work and preserved for a period of three years thereafter for all laborers and mechanics working at the site of the work. Such records shall contain the name, address, and social security number of each such worker; his or her correct classification; hourly rates of wages paid (including rates of contributions or costs anticipated for bona fide fringe benefits or cash equivalents thereof of the types described in 1(b)(2)(B) of the Davis -Bacon Act); daily and weekly number of hours worked; deductions made; and actual wages paid. Whenever the Secretary of Labor has found under 29 CFR 5.5(a)(1)(iv) that the wages of any laborer or mechanic include the amount of any costs reasonably anticipated in providing benefits under a plan or program described in section 1(b)(2)(B) of the Davis -Bacon Act, the Contractor shall maintain records that show that the commitment to provide such benefits is enforceable, that the plan or program is financially responsible, and that the plan or program has been communicated in writing to the laborers or mechanics affected, and records which show the costs anticipated or the actual costs incurred in providing such benefits. Contractors employing apprentices or trainees under approved programs shall maintain written evidence of the registration of apprenticeship programs and certification of trainee programs, the registration of the apprentices and trainees, and the ratios and wage rates prescribed in the applicable programs. (ii)(A) The Contractor shall submit weekly for each week in which any contract work is performed a copy of all payrolls to the Federal Aviation Administration if the agency is a party to the contract, but if the agency is not such a party, the Contractor will submit the payrolls to the applicant, the City, or Owner, as the case may be, for transmission to the Federal Aviation Item 1T - Page 43

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Administration. The payrolls submitted shall set out accurately and completely all of the information required to be maintained under 29 CFR § 5.5(a)(3)(i), except that full social security numbers and home addresses shall not be included on weekly transmittals. Instead the payrolls shall only need to include an individually identifying number for each employee (e.g., the last four digits of the employee’s social security number). The required weekly payroll information may be submitted in any form desired. Optional Form WH–347 is available for this purpose from the Wage and Hour Division Web site at http://www.dol.gov/esa/whd/forms/wh347instr.htm or its successor site. The prime contractor is responsible for the submission of copies of payrolls by all subcontractors. Contractors and subcontractors shall maintain the full social security number and current address of each covered worker and shall provide them upon request to the Federal Aviation Administration if the agency is a party to the contract, but if the agency is not such a party, the Contractor will submit them to the applicant, the City, or Owner, as the case may be, for transmission to the Federal Aviation Administration, the Contractor, or the Wage and Hour Division of the Department of Labor for purposes of an investigation or audit of compliance with prevailing wage requirements. It is not a violation of this section for a prime contractor to require a subcontractor to provide addresses and social security numbers to the prime contractor for its own records, without weekly submission to the sponsoring government agency (or the applicant, City, or Owner).
(B) Each payroll submitted shall be accompanied by a "Statement of Compliance," signed by the Contractor or subcontractor or his or her agent who pays or supervises the payment of the persons employed under the contract and shall certify the following:
(1) That the payroll for the payroll period contains the information required to be provided under 29 CFR § 5.5(a)(3)(ii), the appropriate information is being maintained under 29 CFR § 5.5 (a)(3)(i), and that such information is correct and complete; (2) That each laborer and mechanic (including each helper, apprentice, and trainee) employed on the contract during the payroll period has been paid the full weekly wages earned, without rebate, either directly or indirectly, and that no deductions have been made either directly or indirectly from the full wages earned, other than permissible deductions as set forth in Regulations, 29 CFR Part 3;
(3) That each laborer or mechanic has been paid not less than the applicable wage rates and fringe benefits or cash equivalents for the classification of work performed, as specified in the applicable wage determination incorporated into the contract. (C) The weekly submission of a properly executed certification set forth on the reverse side of Optional Form WH -347 shall satisfy the requirement for submission of the “Statement of Compliance” required by paragraph (3)(ii)(B) of this section. (D) The falsification of any of the above certifications may subject the Contractor or subcontractor to civil or criminal prosecution under Section 1001 of Title 18 and Section 231 of Title 31 of the United States Code.
(iii) The Contractor or subcontractor shall make the records required under paragraph (3)(i) of this section available for inspection, copying, or transcription by authorized representatives of the City, the Federal Aviation Administration, or the Department of Labor and shall permit such representatives to interview employees during working hours on the job. If the Contractor or subcontractor fails to submit the required records or to make them available, the Federal agency Item 1T - Page 44

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may, after writte n notice to the Contractor, the City, applicant, or Owner, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds. Furthermore, failure to submit the required records upon request or to make such records available may be grounds for debarment action pursuant to 29 CFR § 5.12.

4. Apprentices and Trainees.
(i) Apprentices. Apprentices will be permitted to work at less than the predetermined rate for the work they performed when they are employed pursuant to and individually registered in a bona fide apprenticeship program registered with the U.S. Department of Labor, Employment and Training Administration, Office of Apprenticeship Training, Employer and Labor Services, or with a State Apprenticeship Agency recognized by the Office, or if a person is employed in his or her first 90 days of probationary employment as an apprentice in such an apprenticeship program, who is not individually registered in the program, but who has been certified by the Off ice of Apprenticeship Training, Employer and Labor Services or a State Apprenticeship Agency (where appropriate) to be eligible for probationary employment as an apprentice. The allowable ratio of apprentices to journeymen on the job site in any craft classification shall not be greater than the ratio permitted to the contractor as to the entire work force under the registered program. Any worker listed on a payroll at an apprentice wage rate, who is not registered or otherwise employed as stated above, shall be paid not less than the applicable wage rate on the wage determination for the classification of work actually performed. In addition, any apprentice performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. Where a contractor is performing construction on a project in a locality other than that in which its program is registered, the ratios and wage rates (expressed in percentages of the journeyman’s hourly rate) specified in the Contractor’s or subcontractor’s registered program shall be observed. Every apprentice must be paid at not less than the rate specified in the registered program for the apprentice’s level of progress, expressed as a percentage of the journeymen hourly rate specified in the applicable wage determination.

Apprentices shall be paid fringe benefits in accordance with the provisions of the apprenticeship program. If the apprenticeship program does not specify fringe benefits, apprentices must be paid the full amount of fringe benefits listed on the wage determination for the applicable classification. If the Administrator determines that a different practice prevails for the applicable apprentice classification, fringes shall be paid in accordance with that determination. In the event the Office of Apprenticeship Training, Employer and Labor Services, or a State Apprenticeship Agency recognized by the Office, withdraws approval of an appr enticeship program, the Contractor will no longer be permitted to utilize apprentices at less than the applicable predetermined rate for the work performed until an acceptable program is approved. (ii) Trainees. Except as provided in 29 CFR § 5.16, trainees will not be permitted to work at less than the predetermined rate for the work performed unless they are employed pursuant to and individually registered in a program which has received prior approval, evidenced by formal certification by the U.S. Department of Labor, Employment and Training Administration. The ratio of trainees to journeymen on the job site shall not be greater than permitted under the plan approved by the Employment and Training Administration. Every trainee must be paid at not less than the rate specified in the approved program for the trainee’s level of progress, expressed as a percentage of the journeyman hourly rate specified in the applicable wage determination. Trainees shall be paid fringe benefits in accordance with the provisions of the Item 1T - Page 45

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trainee program. If the trainee program does not mention fringe benefits, trainees shall be paid the full amount of fringe benefits listed on the wage determination unless the Administrator of the Wage and Hour Division determines that there is an apprenticeship program associated with the corresponding journeyman wage rate on the wage determination that provides for less than full fringe benefits for apprentices. Any employee listed on the payroll at a trainee rate that is not registered and participating in a training plan approved by the Employment and Training Administration shall be paid not less than the applicable wage rate on the wage determination for the classification of work actually performed. In addition, any trainee performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. In the event the Employment and Training Administration withdraws approval of a training program, the Contractor will no longer be permitted to utilize trainees at less than the applicable predetermined rate for the work performed until an acceptable program is approved. (iii) Equal Employment Opportunity. The utilization of apprentices, trainees, and journeymen under this part shall be in conformity with the equal employment opportunity requirements of Executive Order 11246, as amended, and 29 CFR Part 30.

5. Compliance with Copeland Act Requirements.

The Contractor shall comply with the requirements of 29 CFR Part 3, which are incorporated by reference in this contract.

6. Subcontracts.

The Contractor or subcontractor shall insert in any subcontracts the clauses contained in 29 CFR §§ 5.5(a)(1) through (10) and such other clauses as the Federal Aviation Administration may by appropriate instructions require, and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The prime contractor shall be responsible for the compliance by any subcontractor or lower tier subcontractor with all the contract clauses in 29 CFR § 5.5.

7. Contract Termination: Debarment.

A breach of the contract clauses in paragraph 1 through 10 of this section may be grounds for termination of the contract, and for debarment as a contractor and a subcontractor as provided in 29 CFR § 5.12.

8. Compliance with Davis-Bacon and Related Act Requirements.

All rulings and interpretations of the Davis -Bacon and Related Acts contained in 29 CFR Parts 1, 3, and 5 are herein incorporated by reference in this contract.

9. Disputes Concerning Labor Standards.

Disputes arising out of the labor standards provisions of this contract shall not be subject to the general disputes clause of this contract. Such disputes shall be resolved in accordance with the procedures of the Department of Labor set forth in 29 CFR Parts 5, 6, and 7. Disputes within the meaning of this clause include disputes between the Contractor (or any of its subcontractors) and the contracting agency, the U.S. Department of Labor, or the employees or their representatives.

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10. Certification of Eligibility.
(i) By entering into this contract, the Contractor certifies that neither it (nor he or she) nor any person or firm who has an interest in the Contractor’s firm is a person or firm ineligible to be awarded Government contracts by virtue of section 3(a) of the Davis -Bacon Act or 29 CFR §

5.12(a)(1).
(ii) No part of this contract shall be subcontracted to any person or firm ineligible for award of a Government contract by virtue of section 3(a) of the Davis-Bacon Act or 29 CFR § 5.12(a)(1). (iii) The penalty for making false statements is prescribed in the U.S. Criminal Code, 18 USC § 1001.

Reference: 2 CFR Part 200, Appendix II(D); 29 CFR Part 5; 49 USC § 47112(b); 40 USC §§ 3141-3144, 3146, and 3147
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FAA – 11 Debarment and Suspension
APPLICABILITY - This requirement applies to covered transactions, which are defined in 2 CFR part 180 (Subpart B). AIP funded contracts are non- procurement transactions, as defined by 2 CFR § 180.970. Covered transactions include any AIP -funded contract, regardless of tier, that is awarded by a contractor, subcontractor, supplier, consultant, or its agent or representative in any transaction, if the amount of the contract is expected to equal or exceed $25,000. This includes contracts associated with land acquisition projects.

REQUIREMENT -
A11.3.1 Bidder or Offeror Certification
By submitting a bid/proposal under the solicitation for this contract, the Contractor mus t have certified that neither it nor its principals are presently debarred or suspended by any Federal department or agency from participation in this transaction.

A11.3.2 Lower Tier Contract Certification

CERTIFICATION OF LOWER TIER CONTRACTORS REGARDING DEBARMENT The Contractor, by administering each lower tier subcontract that exceeds $25,000 as a “covered transaction”, must verify each lower tier participant of a “covered transaction” under the project is not presently debarred or otherwise disqualified from participation in this federally assisted project. The Contractor will accomplish this by:

1. Checking the System for Award Management at website: http://www.sam.gov.

2. Collecting a certification statement similar to the Certification of Offerer /Bidder Regarding Debarment, above.

3. Inserting a clause or condition in the covered transaction with the lower tier contract.

If the Federal Aviation Administration later determines that a lower tier participant failed to disclose to a higher tier participant that it was excluded or disqualified at the time it entered the covered transaction, the FAA may pursue any available remedies, including suspension and debarment of the non-compliant participant.

Reference: 2 CFR part 180 (Subpart B), 2 CFR part 200 Appendix II(H), 2 CFR Part 1200, DOT Order 4200.5; Executive Orders 12549 and 12689
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FAA – 12 Disadvantaged Business Enterprise
APPLICABILITY – all contracts with Airports that have a DBE program on file with the FAA.

Contract Assurance (§ 26.13) –
The Contractor or subcontractor shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. The Contractor shall carry out applicable requirements of 49 CFR part 26 in the award and administration of Department of Transportation-assisted contracts. Failure by the Contractor to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy as the City deems appropriate, which may include, but is not limited to:
1) Withholding monthly progress payments;
2) Assessing sanctions;
3) Liquidated damages; and/or
4) Disqualifying the Contractor from future bidding as non-responsible.

Prompt Payment (§26.29) – The prime contractor agrees to pay each subcontractor under this prime contract for satisfactory performance of its contract no later than [10 days] days from the receipt of each payment the prime contractor receives from [the City]. The prime contractor agrees further to return r etainage payments to each subcontractor within [30 days] days after the subcontractor’s work is satisfactorily completed. Any delay or postponement of payment from the above referenced time frame may occur only for good cause following written approval of the [City]. This clause applies to both DBE and non-DBE subcontractors.

Termination of DBE Subcontracts (49 CFR § 26.53(f)) –
The prime Contractor must not terminate a DBE subcontractor listed in response to the solicitation (or an approved substitute DBE firm) without prior written consent of the City. This includes, but is not limited to, instances in which the prime contractor seeks to perform work originally designated for a DBE subcontractor with its own forces or those of an affiliate, a non - DBE firm, or with another DBE firm.

The prime Contractor shall utilize the specific DBEs listed to perform the work and supply the materials for which each is listed unless the Contractor obtains written consent of the City.

Unless City consent is pr ovided, the prime Contractor shall not be entitled to any payment for work or material unless it is performed or supplied by the listed DBE.

The City may provide such written consent only if the City agrees, for reasons stated in the concurrence document, that the prime Contractor has good cause to terminate the DBE firm.

For purposes of this paragraph, good cause includes the circumstances listed in 49 CFR §26.53.

Before transmitting to the City its request to terminate and/or substitute a DBE subcontracto r, the prime Contractor must give notice in writing to the DBE subcontractor, with a copy to the City, of its intent to request to terminate and/or substitute, and the reason for the request.

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termination of its subcontract and why the City should not approve the prime Contractor's action. If required in a particular case as a matter of public necessity (e.g., safety), the City may provide a response period shorter than five days.

In addition to post-award terminations, the provisions of this section apply to preaward deletions of or substitutions for DBE firms put forward by offerors in negotiated procurements.

Reference: 49 CFR part 26
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FAA – 13 Distracted Driving
APPLICABILITY - contracts that exceed the micro-purchase threshold of 2 CFR § 200.320 (currently set at $10,000).

REQUIREMENT -

TEXTING WHEN DRIVING
In accordance with Executive Order 13513, “Federal Leadership on Reducing Text Messaging While Driving”, (10/1/2009) and DOT Order 3902.10, “Text Messaging While Driving”, (12/30/2009), the Federal Aviation Administration encourages recipients of Federal grant funds to adopt and enforce safety policies that decrease crashes by distracted drivers, including policies to ban text messaging while driving when performing work related to a grant or subgrant.

In support of this initiative, the City encourages the Contractor to promote policies and initiatives for its employees and other work personnel that decrease crashes by distracted drivers, including policies that ban text messaging while driving motor vehicles while performing work activities associated with the project. The Contractor must include the substance of this clause in all sub-tier contracts exceeding $10,000 that involve driving a motor vehicle in performance of work activities associated with the project.

Reference: Executive Order 13513, DOT Order 3902.10
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FAA – 14 Prohibition on Certain Telecommunications and Video Surveillance Services and Equipment
APPLICABILITY - all AIP funded contracts and lower-tier contracts.

REQUIREMENT -
Contractor and Subcontractor agree to comply with mandatory standards and policies relating to use and procurement of certain telecommunications and video surveillance services or equipment in compliance with the National Defense Authorization Act [Public Law 115- 232 § 889(f)(1)].

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FAA – 15 Drug Free Workplace Requirements
APPLICABILITY - This provision applies to all AIP funded projects, but not to the contracts between the City and a contractor, subcontractors, suppliers, or subgrantees.

The Drug -Free Workplace Act of 1988 requires some Federal contractors and all Federal grantees to agree that they will provide drug -free workplaces as a condition of receiving a contract or grant from a Federal agency. The Act does not apply to contractors, subcontractors, or subgrantees, although the Federal grantees workplace may be where the contractors, subcontractors, or subgrantees are working.

Reference: 49 CFR part 32, Drug-Free Workplace Act of 1988 (41 U.S.C. 701 et seq., as amended)

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FAA – 16 Equal Employment Opportunity
APPLICABILITY – The purpose of this provision is to provide equal opportunity for all persons, without regard to race, color, religion, sex, or national origin who are employed or seeking employment with contractors performing under a federally-assisted construction contract. There are two provisions ― a construction clause and a specification clause.

The equal opportunity contract clause applies to any contract or subcontract when the amount exceeds $10,000. Once the equal opportunity clause is determined to be applicable, the contract or subcontract must include the clause for the remainder of the year, regardless of the amount or the contract.

Contract Types –
Construction – all construction contracts and subcontracts as required above.

Equipment – all equipment contracts as required above that involves installation of equipment onsite (e.g., electrical vault equipment). This provision does not apply to equipment acquisiti on projects where the manufacture of the equipment takes place offsite at the vendor plant (e.g., ARFF and SRE vehicles).

Professional Services – all professional service agreements as required above.

Property – all land acquisition projects that include work that qualifies as construction work as defined by 41 CFR part 60 as required above. An example is installation of boundary fencing.

REQUIREMENT -
A16.3.1 EEO Contract Clause
During the performance of this contract, the Contractor agrees as follows:
(1) The Contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, sexual orientation, gender identity, or national origin.

The Contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex, sexual orientation, gender identify, or national origin. Such action shall include, but not be limited to, the following: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff, or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided setting forth the provisions of this nondiscrimination clause. (2) The Contractor will, in all solicitations or advertisements for employees placed by or on behalf of the Contractor, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin.
(3) The contractor will not discharge or in any other manner discriminate against any employee or applicant for employment because such employee or applicant has inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant. This provision shall not apply to instances in which an employee who has Item 1T - Page 54

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access to the compensation information of other employees or applicants as a part of such employee's essential job functions discloses the compensation of such other employees or applicants to individuals who do not otherwise have access to such information, unless such disclosure is in response to a formal complaint or charge, in furtherance of an investigation, proceeding, hearing, or action, including an investigation conducted by the employer, or is consistent with the contractor's legal duty to furnish information. (4) The Contractor will send to each labor union or representative of workers with which it has a collective bargaining agreement or other contract or understanding, a notice to be provided by the agency contracting officer, advising the labor union or workers’ representative of the Contractor’s commitments under this section 202 of Executive Order 11246 of September 24, 1965, and shall post copies of the notice in conspicuous places available to employees and applicants for employment.
(5) The Contractor will comply with all provisions of Executive Order 11246 of September 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor. (6) The Contractor will furnish all information and reports required by Executive Order 11246 of September 24, 1965, and by the rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to his books, records, and accounts by the contracting agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders.
(7) In the event of the Contractor’s noncompliance with the nondiscrimination clauses of this contract or with any such rules, regulations, or orders, this contract may be canceled, terminated, or suspended in whole or in part and the Contractor may be declared ineligible for further Government contracts in accordance with procedures authorized in Executive Order 11246 of September 24, 1965, and such other sanctions may be imposed and remedies invoked as provided in Executive Order 11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law. (8) The Contractor will include the provisions of paragraphs (1) through (8) in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to section 204 of Executive Order 11246 of September 24, 1965, so that such provisions will be binding upon each subcontractor or vendor. The Contractor will take such action with respect to any subcontract or purchase order as may be directed by the Secretary of Labor as a means of enforcing such provisions, including sanctions for noncompliance: Provided, however, that in the event the contractor becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction, the Contractor may request the United States to enter into such litigation to protect the interests of the United States.

A16.3.2 EEO Specification

STANDARD FEDERAL EQUAL EMPLOYMENT OPPORTUNITY

CONSTRUCTION CONTRACT SPECIFICATIONS
a. “Covered area” means the geographical area described in the solicitation from which this contract resulted;
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b. “Director” means Director, Office of Federal Contract Compliance Programs (OFCCP), U.S.

Department of Labor, or any person to whom the Director delegates authority; c. “Employer identification number” means the Federal social security number used on the Employer’s Quarterly Federal Tax Return, U.S. Treasury Department Form 941; d. “Minority” includes:
(1) Black (all persons having origins in any of the Black African racial groups not of Hispanic origin);
(2) Hispanic (all persons of Mexican, Puerto Rican, Cuban, Central or South American, or other Spanish culture or origin, regardless of race);
(3) Asian and Pacific Islander (all persons having origins in any of the original peoples of the Far East, Southeast Asia, the Indian Subcontinent, or the Pacific Islands); and (4) American Indian or Alaskan native (all persons having origins in any of the original peoples of North America and maintaining identifiable tribal affiliations through membership and participation or community identification).

2. Whenever the Contractor, or any subcontractor at any tier, subcontracts a portion of the work involving any construction trade, it shall physically include in each subcontract in excess of $10,000 the provisions of these specifications and the Notice which contains the applicable goals for minority and female participation and which is set forth in the solicitations from which this contract resulted.

3. If the Contractor is participating (pursuant to 41 CFR part 60 -4.5) in a Hometown Plan approved by the U.S. Department of Labor in the covered area either individually or through an association, its affirmative action obligations on all work in the Plan area (including goals and timetables) shall be in accordance with that Plan for those trades which have unions participating in the Plan. Contractors must be able to demonstrate their participation in and compliance with the provisions of any such Hometown Plan. Each contractor or subcontractor participating in an approved plan is individually required to comply with its obligations under the EEO clause and to make a good faith effort to achieve each goal under the Plan in each trade in which it has employees. The overall good faith performance by other contractors or subcontractors toward a goal in an approved Plan does not excuse any covered contractor’s or subcontractor’s failure to take good faith efforts to achieve the Plan goals and timetables.

4. The Contractor shall implement the specific affirmative action standards provided in paragraphs 7a through 7p of these specifications. The goals set forth in the solicitation from which this contract resulted are expressed as percentages of the total hours of employment and training of minority and female utilization the Contractor should reasonably be able to achieve in each construction trade in which it has employees in the covered area. Covered construction contractors performing construction work in a geographical areas where they do not have a Federal or federally assisted construction contract shall apply the minority and female goals established for the geographical area where the work is being performed. Goals are published periodically in the Federal Register in notice form, and such notices may be obtained from any Office of Federal Contract Compliance Programs office or from Federal procurement contracting officers.

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The Contractor is expected to make substantially uniform progress in meeting its goals in each craft during the period specified.

5. Neither the provisions of any collective bargaining agreement, nor the failure by a union with whom the Contractor has a collective bargaining agreement, to refer either minorities or women shall excuse the Contractor’s obligations under these specifications, Executive Order 11246, or the regulations promulgated pursuant thereto.

6. In order for the nonworking training hours of apprentices and trainees to be counted in meeting the goals, such apprentices and trainees must be employed by the Contractor during the training period, and the Contractor must have made a commitment to employ the apprentices and trainees at the completion of their training, subject to the availability of employment opportunities. Trainees must be trained pursuant to training programs approved by the U.S. Department of Labor.

7. The Contractor shall take specific affirmative actions to ensure equal employment opportunity. The evaluation of the Contractor’s compliance with these specifications shall be based upon its effort to achieve maximum results from its actions. The Contractor shall document these efforts fully, and shall implement affirmative action steps at least as extensive as the following:
a. Ensure and maintain a working environment free of harassment, intimidation, and coercion at all sites, and in all facilities at which the Contractor’s employees are assigned to work. The Contractor, where possible, will assign two or more women to each construction project. The Contractor shall specifically ensure that all foremen, superintendents, and other onsite supervisory personnel are aware of and carry out the Contractor’s obligation to maintain such a working environment, with specific attention to minority or female individuals working at such sites or in such facilities. b. Establish and maintain a current list of minority and female recruitment sources, provide written notification to minority and female recruitment sources and to community organizations when the Contractor or its unions have employment opportunities available, and maintain a record of the organizations’ responses. c. Maintain a current file of the names, addresses, and telephone numbers of each minority and female off -the-street applicant and minority or female referral from a union, a recruitment source, or community organization and of what action was taken with respect to each such individual. If such individual was sent to the union hiring hall for referral and was not referred back to the Contractor by the union or, if referred, not employed by the Contractor, this shall be documented in the file with the reason therefor, along with whatever additional actions the Contractor may have taken. d. Provide immediate written notification to the Director when the union or unions with which the Contractor has a collective bargaining agreement has not referred to the Contractor a minority person or woman sent by the Contractor, or when the Contractor has other information that the union referral process has impeded the Contractor’s efforts to meet its obligations.
e. Develop on-the-job training opportunities and/or participate in training programs for the area which expressly include minorities and women, including upgrading programs Item 1T - Page 57

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and apprenticeship and trainee programs relevant to the Contractor’s employment needs, especially those programs funded or approved by the Department of Labor.

The Contractor shall provide notice of these programs to the sources compiled under 7b above.
f. Disseminate the Contractor’s EEO policy by providing notice of the policy to unions and training programs and requesting their cooperation in assisting the Contractor in meeting its EEO obligations; by including it in any policy manual and collective bargaining agreement; by publicizing it in the company newspaper, annual report, etc.; by specific review of the policy with all management personnel and with all minority and female employees at least once a year; and by posting the company EEO policy on bulletin boards accessible to all employees at each location where construction work is performed.
g. Review, at least annually, the company’s EEO policy and affirmative action obligations under these specifications with all employees having any responsibility for hiring, assignment, layoff, termination, or other employment decisions including specific review of these items with onsite supervisory personnel such superintendents, general foremen, etc., prior to the initiation of construction work at any job site. A written record shall be made and maintained identifying the time and place of these meetings, persons attending, subject matter discussed, and disposition of the subject matter. h. Disseminate the Contractor’s EEO policy externally by including it in any advertising in the news media, specifically including minority and female news media, and providing written notification to and discussing the Contractor’s EEO policy with other contractors and subcontractors with whom the Contractor does or anticipates doing business. i. Direct its recruitment efforts, both oral and written, to minority, female, and community organizations, to schools with minority and female students and to minority and female recruitment and training organizations serving the Contractor’s recruitment area and employment needs. Not later than one month prior to the date for the acceptance of applications for apprenticeship or other training by any recruitment source, the Contractor shall send written notification to organizations such as the above, describing the openings, screening procedures, and tests to be used in the selection process.
j. Encourage present min ority and female employees to recruit other minority persons and women and, where reasonable, provide after school, summer, and vacation employment to minority and female youth both on the site and in other areas of a contractor’s work force.
k. Validate all tests and other selection requirements where there is an obligation to do so under 41 CFR part 60-3.
l. Conduct, at least annually, an inventory and evaluation at least of all minority and female personnel, for promotional opportunities and encourage these employees to seek or to prepare for, through appropriate training, etc., such opportunities. m. Ensure that seniority practices, job classifications, work assignments, and other personnel practices do not have a discriminatory effect by continually monitoring all Item 1T - Page 58

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personnel and employment related activities to ensure that the EEO policy and the Contractor’s obligations under these specifications are being carried out. n. Ensure that all facilities and company activities are nonsegregated exc ept that separate or single- user toilet and necessary changing facilities shall be provided to assure privacy between the sexes.
o. Document and maintain a record of all solicitations of offers for subcontracts from minority and female construction contractors and suppliers, including circulation of solicitations to minority and female contractor associations and other business associations.
p. Conduct a review, at least annually, of all supervisor’s adherence to and performance under the Contractor’s EEO policies and affirmative action obligations.

8. Contractors are encouraged to participate in voluntary associations, which assist in fulfilling one or more of their affirmative action obligations (7a through 7p). The efforts of a contractor association, joint contractor -union, contractor-community, or other similar group of which the Contractor is a member and participant may be asserted as fulfilling any one or more of its obligations under 7a through 7p of these specifications provided that the Contractor actively participates in the group, makes every effort to assure that the group has a positive impact on the employment of minorities and women in the industry, ensures that the concrete benefits of the program are reflected in the Contractor’s minority and female workforce participation, makes a good faith effort to meet its individual goals and timetables, and can provide access to documentation which demonstrates the effectiveness of actions taken on behalf of the Contractor. The obligation to comply, however, is the Contractor’s and failure of such a group to fulfill an obligation shall not be a defense for the Contractor’s noncompliance.

9. A single goal for minorities and a separate single goal for women have been established.

The Contractor, however, is required to provide equal employment opportunity and to take affirmative action for all minority groups, both male and female, and all women, both minority and non- minority. Consequently, the Contractor may be in violation of the Executive Order if a particular group is employed in a substantially disparate manner (for example, even though the Contractor has achieved its goals for women generally, the Contractor may be in violation of the Executive Order if a specific minority group of women is underutilized).

10. The Contractor shall not use the goals and timetables or affirmative action standards to discriminate against any person because of race, color, religion, sex, sexual orientation, gender identity, or national origin.

11. The Contractor shall not enter into any subcontract with any person or firm debarred from Government contracts pursuant to Executive Order 11246.

12. The Contractor shall carry out such sanctions and penalties for violation of these specifications and of the Equal Opportunity Clause, including suspension, termination, and cancellation of existing subcontracts as may be imposed or ordered pursuant to Executive Order 11246, as amended, and its implementing regulations, by the Office of Federal Contract Compliance Programs. Any contractor who fails to carry out such sanctions and Item 1T - Page 59

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penalties shall be in violation of these specifications and Executive Order 11246, as amended.

13. The Contractor, in fulfilling its obligations under these specifications, shall implement specific affirmative action steps, at least as extensive as those standards prescribed in paragraph 7 of these specifications, so as to achieve maximum results from its efforts to ensure equal employment opportunity. If the Contractor fails to comply with the requirements of the Executive Order, the implementing regulations, or these specifications, the Director shall proceed in accordance with 41 CFR part 60-4.8.

14. The Contractor shall designate a responsible official to monitor all employment related activity t o ensure that the company EEO policy is being carried out, to submit reports relating to the provisions hereof as may be required by the Government, and to keep records. Records shall at least include for each employee, the name, address, telephone numbers, construction trade, union affiliation if any, employee identification number when assigned, social security number, race, sex, status (e.g., mechanic, apprentice, trainee, helper, or laborer), dates of changes in status, hours worked per week in the indicated trade, rate of pay, and locations at which the work was performed. Records shall be maintained in an easily understandable and retrievable form; however, to the degree that existing records satisfy this requirement, contractors shall not be required to maintain separate records.

15. Nothing herein provided shall be construed as a limitation upon the application of other laws which establish different standards of compliance or upon the application of requirements for the hiring of local or other area residents (e.g. those under the Public Works Employment Act of 1977 and the Community Development Block Grant Program).

Reference: 2 CFR 200, Appendix II(C), 41 CFR § 60- 1.4, 41 CFR § 60- 4.3, Executive Order 11246

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FAA – 17 Federal Fair Labor Standards Act
APPLICABILITY – Contract Types – Per the Department of Labor, all employees of certain enterprises having workers engaged in interstate commerce; producing goods for interstate commerce; or handling, selling, or otherwise working on goods or materials that have been moved in or produced for such commerce by any person are covered by the FLSA.

All consultants, sub-consultants, contractors, and subcontractors employed under this federally assisted project must comply with the FLSA.

Professional Services – 29 CFR § 213 exempts employees in a bona fide executive, administrative or professional capacity. Because professional firms employ individuals that are not covered by this exemption, the agreement with a professional services firm must include the FLSA provision.

REQUIREMENT -
The provisions of 29 CFR part 201, the Federal Fair Labor Standards Act (FLSA), are incorporated by reference with the same force and effect as if given in full text. The FLSA sets minimum wage, overtime pay, recordkeeping, and child labor standards for full and part -time workers.

The Contractor has full responsibility to monitor compliance to the referenced statute or regulation. The Contractor must address any claims or disputes that arise from this requirement directly with the U.S. Department of Labor – Wage and Hour Division.

Reference: 29 USC § 201, et seq; 2 CFR § 200.430
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FAA – 18 Lobbying and Influencing Federal Employees
APPLICABILITY- all contracts exceeding $100,000.

REQUIREMENT -
Consultants and contractors that apply or bid for an award of $100,000 or more must have certified that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency , a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant, or another award covered by 31 USC §1352. Each tier must also disclose any lobbying with non -Federal funds that takes place in connection with obtaining any Federal award.

For an award over $100,00, the bidder or offeror certifies by signing and submitting this bid or proposal, to the best of his or her knowledge and belief, that:
• No Federal appropriated funds have been paid or will be paid, by or on behalf of the bidder or offeror, to any person for influencing or attempting to influence an officer or employee of an agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement. • If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form -LLL, “Disclosure Form to Report Lobbying,” in accordance with its instructions.
• The undersigned shall require that the language of this certification be included in the award documents for all sub- awards at all tiers (including subcontracts, sub -grants, and contracts under grants, loans, and cooperative agreements) and that all sub- recipients shall certify and disclose accordingly.

This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by section 1352, title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.

Reference: 31 USC § 1352 – Byrd Anti-Lobbying Amendment, 2 CFR part 200, Appendix II(I), 49 CFR part 20, Appendix A
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FAA – 19 Prohibition of Segregated Facilities
APPLICABILITY - The Contractor must comply with the requirements of the EEO clause by ensuring that facilities they provide for employees are free of segregation on the basis of race, color, religion, sex, sexual orientation, gender identity, or national origin. This clause must be included in all contracts that include the equal opportunity clause, regardless of the amount of the contract.

Contract Types – any contract containing the Equal Employment Opportunity clause of 41 CFR § 60-1.4. This obligation flows down to s ubcontract and sub-tier purchase orders containing the Equal Employment Opportunity clause.

Construction – Construction work means construction, rehabilitation, alteration, conversion, extension, demolition or repair of buildings, highways, or other changes or improvements to real property, including facilities providing utility services. The term also includes the supervision, inspection, and other onsite functions incidental to the actual construction.

Equipment – On site installation of equipment such as airfield lighting control equipment meets the definition of construction and thus this provision would apply. This provision does not apply to equipment projects involving manufacture of the item at a vendor’s manufacturing plant. An example would be the manufacture of a SRE or ARFF vehicle.

Professional Services – Professional services that include tasks that qualify as construction work as defined by 41 CFR part 60 -1. Examples include the installation of nois e monitoring equipment.

Property/Land – Land acquisition contracts that include tasks that qualify as construction work as defined by 41 CFR part 60- 1. Examples include demolition of structures or installation of boundary fencing.

REQUIREMENT -
(a) The Contractor agrees that it does not and will not maintain or provide for its employees any segregated facilities at any of its establishments, and that it does not and will not permit its employees to perform their services at any location under its control where segregated facilities are maintained. The Contractor agrees that a breach of this clause is a violation of the Equal Employment Opportunity clause in this contract. (b) “Segregated facilities,” as used in this clause, means any waiting rooms, work areas, res t rooms and wash rooms, restaurants and other eating areas, time clocks, locker rooms and other storage or dressing areas, parking lots, drinking fountains, recreation or entertainment areas, transportation, and housing facilities provided for employees that are segregated by explicit directive or are in fact segregated on the basis of race, color, religion, sex, sexual orientation, gender identity, or national origin because of written or oral policies or employee custom. The term does not include separate or single-user rest rooms or necessary dressing or sleeping areas provided to assure privacy between the sexes. (c) The Contractor shall include this clause in every subcontract and purchase order that is subject to the Equal Employment Opportunity clause of this contract.

Reference: 2 CFR Part 200, Appendix II (C); 41 CFR Part 60-1 Item 1T - Page 63

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FAA – 20 Occupational Safety and Health Act
APPLICABILITY – Contract Types – All contracts and subcontracts must comply with the Occupational Safety and Health Act of 1970 (OSH). The U.S. Department of Labor Occupational Safety and Health Administration (OSHA) oversees the workplace health and safety standards wage provisions from OSH.

REQUIREMENT -
All contracts and subcontracts that result from this solicitation incorporate by r eference the requirements of 29 CFR Part 1910 with the same force and effect as if given in full text. The employer must provide a work environment that is free from recognized hazards that may cause death or serious physical harm to the employee. The employer retains full responsibility to monitor its compliance and their subcontractor’s compliance with the applicable requirements of the Occupational Safety and Health Act of 1970 (29 CFR Part 1910). The employer must address any claims or disputes that pertain to a referenced requirement directly with the U.S.

Department of Labor – Occupational Safety and Health Administration.

Reference: 29 CFR part 1910
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FAA – 21 Procurement of Recovered Materials
APPLICABILITY – Contract Types – This provision applies to any contracts that include procurement of products designated in subpart B of 40 CFR part 247 where the purchase price of the item exceeds $10,000 or the value of the quantity acquired by the preceding fiscal year exceeded $10,000.

Construction and Equipment – all construction and equipment projects.

Professional Services and Property – if the agreement includes procurement of a product that exceeds $10,000.

REQUIREMENT -
Contractor and subcontractor agree to comply with Section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act, and the regulatory provisions of 40 CFR Part 247. In the performance of this contract and to the extent practicable, the Contractor and subcontractors are to use products containing the highest percentage of recovered materials for items designated by the Environmental Protection Agency (EPA) under 40 CFR Part 247 whenever:
1) The contract requires procurement of $10,000 or more of a designated item during the fiscal year; or
2) The contractor has procured $10,000 or more of a designated item using Federal funding during the previous fiscal year.

The list of EPA -designated items is available at www.epa.gov/smm/comprehensive - procurement-guidelines-construction-products.

Section 6002(c) establishes exceptions to the preference for recovery of EPA -designated products if the contractor can demonstrate the item is:
a) Not reasonably available within a timeframe providing for compliance with the contract performance schedule;
b) Fails to meet reasonable contract performance requirements; or c) Is only available at an unreasonable price.

Reference: 2 CFR § 200.323, 2 CFR Part 200, Appendix II (J); 40 CFR part 247, 42 USC § 6901, et seq (Resource Conservation and Recovery Act)
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FAA – 22 Rights to Inventions
APPLICABILITY – Contract Types – This provision applies to all contracts and subcontracts with small business firms or nonprofit organizations that include performance of experimental, developmental, or research work. This clause is not applicable to construction, equipment, or professional service contracts unless the contract includes experimental, developmental, or research work.

REQUIREMENT -
Contracts or agreements that include the performance of experimental, developmental, or research work must provide for the rights of the Federal Government and the City in any resulting invention as established by 37 CFR part 401, Rights to Inventions Made by Non- profit Organizations and Small Business Firms under Government Grants, Contracts, and Cooperative Agreements. This contract incorporates by reference the patent and inventions rights as specified within 37 CFR §401.14. Contractor must include this requirement in all sub- tier contracts involving experimental, developmental, or research work.

Reference: 2 CFR § 200, Appendix II(F), 37 CFR 401

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FAA - 23 Seismic Safety
APPLICABILITY – Contract Types – This provision applies to construction of new bui ldings and additions to existing buildings financed in whole or in part through the Airport Improvement Program.

Professional Services– any contract involved in the construction of new buildings or structural addition to existing buildings.

Construction – any contract involved in the construction of new buildings or structural addition to existing buildings.

Equipment – if the project involves construction or structural addition to a building such as an electrical vault project to accommodate or install equipment.

Land – This provision will not typically apply to a property/land project.

REQUIREMENT -
A23.3.1 Professional Service Agreements for Design

SEISMIC SAFETY
In the performance of design services, the Consultant agrees to furnish a building design and associated construction specification that conform to a building code standard that provides a level of seismic safety substantially equivalent to standards as established by the National Earthquake Hazards Reduction Program (NEHRP). Local building codes that model their building code after the current version of the International Building Code (IBC) meet the NEHRP equivalency level for seismic safety. At the conclusion of the design services, the Consultant agrees to furnish the Owner a “certification of compliance” that attests conformance of the building design and the construction specifications with the seismic standards of NEHRP or an equivalent building code.

A23.3.2 Construction Contracts

SEISMIC SAFETY
The Contractor agrees to ensure that all work performed under this contract, including work performed by subcontractors, conforms to a building code standard that provides a level of seismic safety substantially equivalent to standards established by the National Earthquake Hazards Reduction Program (NEHRP). Local building codes that model their code after the current version of the International Building Code (IBC) meet the NEHRP equivalency level for seismic safety.

Reference: 49 CFR Part 41
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FAA – 24 Tax Delinquency and Felony Conviction
APPLICABILITY – This provision applies to all contracts funded in whole or part with AIP.

REQUIREMENT -
The Contractor must have certified under the procurement process that resulted in the award of this contract that:
• Contractor has not been convicted of a Federal felony within the last 24 months; or • Contractor does not have any outstanding tax liability for which all judicial and administrative remedies have lapsed or been exhausted.

Reference: Sections 8113 of the Consolidated Appropriations Act, 2022 (Public Law 117-103), and similar provisions in subsequent appropriations acts.

DOT Order 4200.6 – Appropriations Act Requirements for Procurement and Non-Procurement Regarding Tax Delinquency and Felony Convictions

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FAA – 25 Termination of Contract
APPLICABILITY – All contracts and subcontracts in excess of $10,000.

REQUIREMENT -
See Section 4.5 of the Agreement.

Reference: 2 CFR § 200 Appendix II(B), FAA Advisory Circular 150/5370-10, Section 80-09 Item 1T - Page 69

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FAA – 26 Foreign Trade Restriction
APPLICABILITY – all AIP funded projects.

REQUIREMENT -

TRADE RESTRICTION CERTIFICATION
By accepting this contract the Contractor certifies the following statements are true – 1) is not owned or controlled by one or more citizens of a foreign country included in the list of countries that discriminate against U.S. firms as published by the Office of the United States Trade Representative (USTR);
2) has not knowingly entered into any contract or subcontract for this project with a person that is a citizen or national of a foreign country included on the list of countries that discriminate against U.S. firms as published by the USTR; and 3) has not entered into any subcontract for any product to be used on the Federal project that is produced in a foreign country included on the list of countries that discriminate against U.S. firms published by the USTR.

This certification concerns a matter within the jurisdiction of an agency of the United States of America and the making of a false, fictitious, or fraudulent certification may render the maker subject to prosecution under Title 18 USC Section 1001.

The Contractor must provide immediate written notice to the City if the Contractor learns that its certification or that of a subcontractor was erroneous when submitted or has become erroneous by reason of changed circumstances. The Contractor must require subcontractors provide immediate written notice to the Contractor if at any time it learns that its certification was erroneous by reason of changed circumstances.

Unless the restrictions of this clause are waived by the Secretary of Transportation in accordance with 49 CFR 30.17, no contract shall be awarded to an Offeror or subcontractor:
1) who is owned or controlled by one or more citizens or nationals of a foreign country included on the list of countries that discriminate against U.S. firms published by the USTR or
2) whose subcontractors are owned or controlled by one or more citizens or nationals of a foreign country on such USTR list or
3) who incorporates in the public works project any product of a foreign country on such USTR list.

Nothing contained in the foregoing shall be construed to require establishment of a system of records in order to render, in good faith, the certification required by this provision. The knowledge and information of a contractor is not required to exceed that which i s normally possessed by a prudent person in the ordinary course of business dealings.

The Contractor agrees it will incorporate this provision for certification without modification in all lower tier subcontracts. The Contractor may rely on the certification of a prospective subcontractor that it is not a firm from a foreign country included on the list of countries that Item 1T - Page 70

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discriminate against U.S. firms as published by USTR, unless the Contractor has knowledge that the certification is erroneous.

This certification is a material representation of fact upon which reliance was placed when making an award. If it is later determined that the Contractor or subcontractor knowingly rendered an erroneous certification, the Federal Aviation Administration (FAA) may direct through the City cancellation of the contract or subcontract for default at no cost to the City or the FAA.

Reference: 49 USC § 50104, 49 CFR part 30

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FAA – 27 Veteran’s Preference
APPLICABILITY – This provision applies to all AIP funded projects that involve labor to carry out the project. This preference, which excludes executive, administrative, and supervisory positions, applies to covered veterans [as defined under § 47112(c)] only when they are readily available and qualified to accomplish the work required by the project.

REQUIREMENT -
In the employment of labor (excluding executive, administrative, and supervisory positions), the Contractor and all sub- tier contractors must give preference to covered veterans as defined within Title 49 United States Code Section 47112. Covered veterans include Vietnam -era veterans, Persian Gulf veterans, Afghanistan -Iraq war veterans, disabled veterans, and small business concerns (as defined by 15 USC 632) owned and controlled by disabled veterans .

This preference only applies when there are covered veterans readily available and qualified to perform the work to which the employment relates.

Reference: 49 USC § 47112(c)
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FAA – 28 Domestic Preferences for Procurements
APPLICABILITY – all contracts and Purchase orders for work or products under the grant.

REQUIREMENT -
The Contractor certifies by signing and submitting its bid or proposal that, to the greatest extent practicable, the Contractor has provided a preference for the purchase, acquisition, or use of goods, products, or materials produced in the United States (including, but not limited to, iron, aluminum, steel, cement, and other manufactured products) in compliance with 2 CFR § 200.322.

Reference: 2 CFR § 200.322; 2 CFR Part 200, Appendix II(L)

Item 1T - Page 73

ATTACHMENT B

PUBLIC INTEGRITY BUSINESS DISCLOSURE
Item 1T - Page 74
Item 1T - Page 75

1. Name of Entity

PUBLIC INTEGRITY DISCLOSURE

APPLICANT DISCLOSURE FORM
McCloskey Mechanical Contractors, Inc.

2. Address of Entity (Principal Place of Business)
445 Lower Landing Road, Blackwood, NJ 08012

3. Local or California Address (if different than #2)
1025 West 190th Street, Suite 215, Los Angeles, CA 90248

4. State where Entity is Registered with Secretary of State New Jersey
If other than California, is the Entity also registered in California? /;21 Yes D No

5. Type of Entity
~ Corporation D Limited Liability Company D Partnership D Trust D Other (please specify)

6. Officers, Directors, Members, Managers, Trustees, Other Fiduciaries (please specify) Note: If any response is not a natural person, please identify all officers, directors, members, managers and other fiduciaries for the member, manager, trust, or other entity
David J. McCloskey D Officer D Director D Member D Manager [name] D General Partner D Limited Partner
QIOther Owner
DJ Mccloskey D Officer D Director D Member D Manager
[name] D General Partner D Limited Partner
el Other President
Colin Campana D Officer D Director D Member D Manager
[name] D General Partner D Limited Partner
QI Other Vice President
Item 1T - Page 76

7. Owners/Investors with a 5% beneficial interest in the Applicant Entity or a related entity

EXAMPLE
JANE DOE 50%, ABC COMPANY, Inc.
[name of owner/investor] [percentage of beneficial interest in entity and name of entity]
A.

David J. McCloske1'. 51 % McCloskey Mechanical Contractors, Inc. [name of owner/investor] [percentage of beneficial interest in entity and name of entity]
B.

DJ McClosket 49% McCloskey Mechanical Contractors, Inc. [name of owner/investor] [percentage of beneficial interest in entity and name of entity]
C.
[name of owner/investor] [percentage of beneficial interest in entity and name of entity]
D.
[name of owner/investor] [percentage of beneficial interest in entity and name of entity]
E.
[name of owner/investor] [percentage of beneficial interest in entity and name of entity]

I DECLARE UNDER PENALTY OF PERJURY UNDER THE LAWS OF THE STATE OF CALIFORNIA THAT THE FOREGOING IS TRUE AND CORRECT.

SigtLf~is~g O~ Name, Title
Robert L. Reeves -National Public
Service Accounts Director
Date
08/29/2023

CITY COUNCIL STAFF REPORT
09/26/2023
SUBJECT:

APPROVE CONTRACT SERVICES AGREEMENT NO. 23B204 WITH RED HAWK SERVICES, INC. FOR ON-CALL FENCE REPAIR AND INSTALLATION SERVICES

FOR THE PALM SPRINGS INTERNATIONAL AIRPORT
RECOMMENDATION:

Approve Contract Services Agreement 23B204 with Red Hawk Services, Inc. to provide on-call fence repair and installation services for the Palm Springs International Airport in an amount not to exceed $600,000 for the initial three-year term beginning October 1, 2023, through September 30, 2026, with two one-year extension options at the City’s sole discretion.

1. Authorize the City Manager or his designee to execute all necessary documents.2.

Attachments
Item 1U

CITY COUNCIL STAFF REPORT

DATE: SEPTEMBER 26, 2023 CONSENT CALENDAR

SUBJECT: APPROVE CONTRACT SERVICES AGREEMENT NO. 23B204 WITH RED HAWK SERVICES, INC. FOR ON-CALL FENCE REPAIR AND

INSTALLATION SERVICES FOR THE PALM SPRINGS INTERNATIONAL

AIRPORT

FROM: Scott C. Stiles, City Manager

BY: Department of Aviation

SUMMARY:

This action will approve Contract Services Agreement No. 23B 204 with Red Hawk Services, Inc. , in an amount not to exceed $6 00,000 for on- call fence repair and installation services for the Palm Springs International Airport (Airport).

RECOMMENDATION:

1. Approve Contract Services Agreement 23B204 (Attachment A) with Red Hawk Services, Inc. to provide on-call fence repair and installation services for the Palm Springs International Airport in an amount not to exceed $ 600,000 for the initial three-year term beginning October 1, 2023 through September 30, 2026, with two one-year extension options at the City’s sole discretion.

2. Authorize the City Manager or his designee to execute all necessary documents.

BUSINESS PRINCIPAL DISCLOSURE:

According to the Public Integrity Disclosure form ( Attachment B) submitted on August 22, 2023, Red Hawk Services, Inc. is registered in the State of California.

BACKGROUND:

Over the years, the Airport’s perimeter fence has undergone a variety of maintenance and repair actions. For instance, i n 2012, portions of the Airport’s perimeter fence underwent a complete replacement. The maintenance of the Airport’s perimeter fence is an ongoing need for operation of the Airport.

Item 1U - Page 1
City Council Staff Report
September 26, 2023 -- Page 2
Award On-Call Fence Repair/Installation Services Contract The Airport’s fencing serves as a critical component in safeguarding the security and integrity of an airport facility to meet compliance with Transportation Security Administration and Federal Aviation Administration airfield requirements . The Airport’s perimeter fence is the first line of defense against unauthorized access and potential threats to the runway, taxiways, aircraft ramps and aircraft parking. Airport perimeters are vast, and maintaining a secure and controlled environment within these boundaries is essential for the safety of passengers, staff , aircraft s, and valuable airport assets.

Because the A irport's perimeter fencing is a critical component of its security infrastructure, the fencing requires timely maintenance and occasional repairs to ensure the Airport's safety and security standards are upheld.

STAFF ANALYSIS:

The c
ontract with Red Hawk Services, Inc. is an on- call, as-needed type contract. The bids were used to determine the lowest, responsive, responsible bidder and to set the unit rates for the contract; however, the actual amount of the contract is based on the budgeted amount set by the Department and will therefore not match the bid amounts.

A
n Invitation for Bids (IFB 23-35) was initiated by the City’s Procurement and Contracting Department on August 3, 2023, based on the Department of Aviation specifications. Bids were solicited directly via the City’s procurement vendor portal, PlanetBids. In addition, the IFB was advertised in The Desert Sun. One bid was received by the August 29, 2023, deadline as follows:

Vendor Bid
Red Hawk Services, Inc., Perris, CA $123,998.00
S
ince only one bid was received, the pricing was analyzed by the Aviation Department and compared to prices paid in the past and was found to be fair and reasonable for the City. The contract is for three years with two one- year options to renew. The unit pricing is fixed for the first year and subject to CPI increase in the following years. Staff recommends approval of Contract Services Agreement No. 23B 204 with Red Hawk Services, Inc. for the initial three-year term in the amount not to exceed $600,000 effective October 1, 2023 through September 30, 2026, subject to two one-year optional renewals at the sole discretion of the City.

T
he on-call contract will cover parts, labor, and fence rental. Staff has budgeted $200,000 for Fiscal Year 2023- 24, and $200,000 will be budgeted for Fiscal Years 2024- 25 and 2025-26 respectively to ensure that funding is available for any unforeseen maintenance and repair services.

E
NVIRONMENTAL ASSESSMENT:

T
he requested City Council action is not a “Project” as defined by the California Environmental Quality Act (CEQA). Pursuant to Section 15378(a), a “Project” means the Item 1U - Page 2
City Council Staff Report
September 26, 2023 -- Page 3
Award On-Call Fence Repair/Installation Services Contract

whole of an action, which has a potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment. The requested action is to approve contracts for the above- mentioned services, and is exempt from CEQA pursuant to Section 15378(b), in that a “Project” does not include: (5) Organizational or administrative activities of governments that will not result in direct or indirect physical changes in the environment.

ALIGNMENT WITH STRATEGIC PLANNING:

Approval of this action supports City Council priority 2A , Community Infrastructure – Improve City Facilities.

FISCAL IMPACT:

$200,000 is budgeted in the Department of Aviation, Security Account 4157026-40105 in Fiscal Year 2023-24 . The remaining annual amounts will be budgeted in future fiscal years.

REVIEWED BY:

Assistant Director: Jeremy Keating
Procurement and Contracting Director: Kim Baker
City Attorney: Geremy Holm
City Manager: Scott Stiles

ATTACHMENTS:

A. Contract Services Agreement No. 23B204
B. Public Integrity Disclosure Form
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ATTACHMENT A
AGREEMENT NO. 23B204
WITH RED HAWK SERVICES, INC.

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CONTRACT SERVICES AGREEMENT 23B204

ON-CALL FENCE REPAIR AND INSTALLATION SERVICES

FOR PALM SPRINGS INTERNATIONAL AIRPORT

THIS AGREEMENT FOR CONTRACT SERVICES (“Agreement”) is made and entered into on October 1, 2023, by and between the City of Palm Springs , a California charter city and municipal corporation (“City”), and RED HAWK SERVICES, INC. , a California corporation, (“Contractor”). City and Contractor are individually referred to as “Party” and are collectively referred to as the “Parties”.

RECITALS

A. City requires the services of a licensed and qualified firm to provide on- call fence repair and installation services for the Palm Springs International Airport, (“Project”).

B. Contractor has submitted to City a proposal to provide on-call fence repair and installation services for the Palm Springs International Airport, to City under the terms of this Agreement.

C. Based on its experience, education, training, and reputation, Contractor is qualified and desires to provide the necessary services to City for the Project.

D. City desires to retain the services of Contractor for the Project.

NOW, THEREFORE, in consideration of the promises and mutual obligations, covenants, and conditions contained herein, and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

AGREEMENT

1. CONTRACTOR SERVICES

1.1 Scope of Services . In compliance with all terms and conditions of this Agreement, Contractor shall provide services to City as described in the Scope of Services/Work attached to this Agreement as Exhibit “A” and incorporated herein by reference (the “Services ” or “Work”). Exhibit "A" includes the agreed upon schedule of performance and the schedule of fees. Contractor warrants that the S ervices shall be performed in a competent, professional, and satisfactory manner consistent with the level of care and skill ordinarily exercised by high quality, experienced, and well qualified members of the profession currently practicing under similar conditions. In the event of any inconsistency between the terms contained in the Scope of Services/Work and the terms set forth in this Agreement, the terms set forth in this Agreement shall govern.

1.2 Compliance with Law . Contractor shall comply with all applicable federal, state, and local laws, statutes and ordinances and all lawful orders, rules, and regulations when performing the Services. Contractor shall be liable for all violations of such laws and regulations in connection with the Services and this Agreement.

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1.3 Licenses and Permits . Contractor shall obtain at its sole cost and expense such licenses, permits, and approvals as may be required by law for the per formance of the S ervices required by this Agreement.

1.4 Familiarity with Work . By executing this Agreement, Contractor warrants that it has carefully considered how the Work should be performed and fully understands the facilities, difficulties, and restrictions attending performance of the Work under this Agreement.

2. TIME FOR COMPLETION
The time for completion of the Services to be performed by Contractor is an essential condition of this Agreement. Contractor shall prosecute regularly and diligently the work of this Agreement according to the agreed upon s chedule of performance set forth in Exhibit “A .” Neither Party shall be accountable for delays in performance caused by any condition beyond the reasonable control and without the fault or negligence of the non -performing Party. Delays shall not entitle Contractor to any additional compensation regardless of the P arty responsible for the delay.

3. COMPENSATION OF CONTRACTOR

3.1 Compensation of Contractor. Contractor shall be compensated and reimbursed for the services rendered under this Agreement in accordance with the schedule of fees set forth in Exhibit “A”. The total amount of Compensation shall not exceed $600,000.00.

3.2 Method of Payment . In any month in which Contractor wishes to receive payment, Contractor shall submit to City an invoice for Services rendered prior to the date of the invoice, no later than the first working day of such month, in the form approved by City’s finance director. Payments shall be based on the hourly rates set forth in Exhibit “A” for authorized services performed. City shall pay Contractor for all expenses stated in the invoice that are approved by City and consistent with this Agreement, within thirty (30) days of receipt of Contractor’s invoice.

3.3 Changes . In the event any change or changes in the Services is requested by City, Parties shall execute a written amendment to this Agreement, specifying all proposed amendments, including, but not limited to, any additional fees. An amendment may be entered into:

A. To provide for revisions or modifications to documents , work product, or Work, when required by the enactment or revision of any subsequent law; or B. To provide for additional services not included in this Agreement or not customarily furnished in accordance with generally accepted practice in Contractor’s profession.

3.4 Appropriations. This Agreement is subject to, and contingent upon, funds being appropriated by the City Council of City for each fiscal year. If such appropriations are not made, this Agreement shall automatically terminate without penalty to City.

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4. PERFORMANCE SCHEDULE

4.1 Time of Essence. Time is of the essence in the performance of this Agreement.

4.2 Schedule of Performance. All Services rendered under this Agreement shall be performed under the agreed upon schedule of performance set forth in Exhibit “A .” Any time period extension must be approved in writing by the Contract Officer.

4.3 Force Majeure. The time for performance of S ervices to be rendered under this Agreement may be extended because of any delays due to a Force Majeure Event , if Contractor notifies the Contract Officer within ten (10) days of the commencement of the Force Majeure Event. A Force Majeure Event shall mean an event that materially affects the Contractor’s performance and is one or more of the following: (1) Acts of God or other natural disasters occurring at the project site; (2) terrorism or other acts of a public enemy; (3) orders of governmental authorities (including, without limitation, unreasonable and unfor eseeable delay in the issuance of permits or approvals by governmental authorities that are required for the W ork); and (4) pandemics, epidemics or quarantine restrictions. For purposes of this section, “orders of governmental authorities,” includes ordinances, emergency proclamations and orders, rules to protect the public health, welfare and safety, and other actions of the City in its capacity as a municipal authority. After Contractor notification, the Contract Officer shall investigate the facts and the extent of any necessary delay and extend the time for performing the S ervices for the period of the enforced delay when and if , in the Contract Officer’s judgment, such delay is justified. The Contract Officer’s determination shall be final and conclusive upon the P arties to this Agreement. The Contractor will not receive an adjustment to the contract price or any other compensation. Notwithstanding the foregoing, the City may still terminate this Agreement in accordance with the termination provisions of this Agreement.

4.4 Term. Unless earlier terminated in accordance with Section 4.5 of this Agreement, this Agreement s hall continue in full force and effect for a period of three years , commencing on October 1, 2023, and ending on September 30, 2026, unless extended by mutual written agreement of the P arties. In addition, the term may be extended at the sole discretion of the City upon written notice to the Contractor, for two (2) additional one (1) year terms.

4.5 Termination Prior to Expiration of Term . City may terminate this Agreement at any time, with or without cause, upon thirty (30) days written notice to Contractor . W here termination is due to the fault of Contractor and constitutes an immediate danger to health, safety, and general welfare, the period of notice shall be such shorter time as may be determined by the City. Upon receipt of the notice of terminati on, Contractor shall immediately cease all Services except such as may be specifically approved by the Contract Officer. Contractor shall be entitled to compensation for all S ervices rendered prior to receipt of the notice of termination and for any Services authorized by the Contract Officer after such notice. City shall not be liable for any costs other than the charges or portions thereof which are specified herein. Contractor shall not be entitled to payment for unperformed Services and shall not be entitled to damages or compensation for termination of Work. If the termination is for cause, the City shall have the right to take whatever steps it deems necessary to correct Contractor's deficiencies and charge the cost thereof to Contractor , who shall be liable for the full cost of the City's corrective action .

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Contractor may not terminate this Agreeme nt except for cause, upon thirty (30) days written notice to City.

5. COORDINATION OF WORK

5.1 Representative of Contractor. The following principal of Contractor is designated as being the principal and representative of Contractor authorized to act and make all decisions i n its behalf with respect to the specified Services: Scot t Moore , President. It is expressly understood that the experience, knowledge, education, capability, and reputation of the foregoing principal is a substantial inducement for City to enter into this Agreement. Therefore, the foregoing principal shall be responsible during the term of this Agreement for directing all activities of Contractor and devoting sufficient time to personally supervise the S ervices under this Agreement . The foregoing principal may not be changed by Contractor without prior written approval of the Contract Officer.

5.2 Contract Officer. The Contract Officer shall be the City Manager or his/her designee ("Contract Officer"). Contractor shall be responsible for keeping the Contract Officer fully informed of the progress of the performance of the S ervices. Contractor shall refer any decisions that must be made by City to the Contract Officer. Unless otherwise specified, any approval of City shall mean the approval of the Contract Officer.

5.3 Prohibition Against Subcontracting or Assignment . The experience, knowledge, education, capability, and reputation of Contracto r, its principals and employees, were a substantial inducement for City to enter into this Agreement. Contractor shall not contract with any other individual or entity to perform any S ervices required under this Agreement without the City's express written approval. In addition, neither this Agreement nor any interest may be assigned or transferred, voluntarily or by operation of law, without the prior written approval of City. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement including without limitation the insurance and indemnification requirements. If Contractor is permitted to subcontract any part of this Agreement by City, Contractor shall be responsible to City for the acts and omissions of its subcontractor(s) in the same manner as it is for persons directly employed. Nothing contained in this Agreement shall create any contractual relationships between any subcontractor and City.

5.4 Independent Contractor. Neither City nor any of its employees shall have any control over the manner, mode , or means by which Contractor , its agents or employees, perform the Services required, except as otherwise specified . Contractor shall perform all required Services as an independent contractor of City and shall not be an employee of City and shall remain at all times as to City a wholly independent contractor with only such obligations as are consistent with that role; however, City shall have the right to review Contractor ’s work product, result, and advice. Contractor shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of City. Contractor shall pay all wages, salaries, and other amounts due personnel in connection with their performance under this Agreement and as required by law. Contractor shall be responsible for all reports and obligations respecting such personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, and workers’ compensation insurance. Contractor shall not have any authority to bind City in any manner.

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5.5 Personnel. Contractor agrees to assign the following individuals to perform the services in this Agreement. Contractor shall not alter the assignment of the following personnel without the prior written approval of the Contract Officer. Acting through the City Manager, the City shall have the unrestricted right to order the removal of any personnel assigned by Contractor by providing written notice to Contractor.

Name: Title:

Scott Moore President

5.6 California Labor Code Requirements.

A. Contractor is aware of the requirements of California Labor Code Sections 1720 et seq. and 1770 et seq., which require the payment of prevailing wage rates and the performance of other requirements on certain “public works” and “maintenance” projects (“Prevailing Wage Laws”). If the S ervices are being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and if the total compensation is $15,000 or more for maintenance or $25,000 or more for construction, alteration, demolition, installation, or repair, Contractor agrees to fully comply with such Prevailing Wage Laws. Contractor shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penal ties or interest arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. It shall be mandatory upon the Contractor and all subcontractors to comply with all California Labor Code provisions, which include but are not limited to prevailing wages (Labor Code Sections 1771, 1774 and 1775), employment of apprentices (Labor Code Section 1777.5), certified payroll records (Labor Code Sections 1771.4 and 1776), hours of labor (Labor Code Sections 1813 and 1815) and debarment of contractors and subcontractors (Labor Code Section 1777.1).

B. If the Services are being performed as part of an applicable “public works” or “maintenance” project and if the total compensation is $15,000 or more for maintenance or $25,000 or more for construction, alteration, demolition, installation, or repair, then pursuant to Labor Code Sections 1725.5 and 1771.1, the Contractor and all subcontractors performing such Services must be registered with the Department of Industrial Relations. Contractor shall maintain registration for the duration of the Project and require the same of any subcontractors , as applicable. This Agreement may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Contracto r’s sole responsibility to comply with all applicable registration and labor compliance requirements.

6. INSURANCE
Contractor shall procure and maintain, at its sole cost and expense, policies of insurance as set forth in the attached Exhibit "B", incorporated herein by reference.

7. INDEMNIFICATION.

7.1 Indemnification. To the fullest extent permitted by law, Contractor shall defend (at Contractor’s sole cost and expense), indemnify, protect, and hold harmless City, its elected officials, officers , employees, agents, and volunteers (collectively the “Indemnified Item 1U - Page 9

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Parties”), from and against any and all liabilities, actions, suits, claims, demands, losses, costs, judgments, arbitration awards, settlements, damages, demands, orders, penalties, and expenses including legal costs and attorney fees (collectively “Claims”), including but not limited to Claims arising f rom injuries to or death of persons (Contractor ’s employees included) , for damage to property, including property owned by City, for any violation of any federal, state, or local law or ordinance or in any manner arising out of, pertaining to, or incident to any acts, errors or omissions , or willful misconduct committed by Contractor, its officers, employees , representatives, and agents, that arise out of or relate to Contractor’s performance of Services or this Agreement. This indemnification clause excludes Claims arising from the sole negligence or willful misconduct of the Indemnified Parties . Under no circumstances shall the insurance requirements and limits set forth in this Agreement be construed to limit Contractor ’s indemnification obligation or other liability under this Agreement. Contractor’s indemnification obligation shall survive the expiration or earlier termination of this Agreement until all actions against the Indemnified Parties for such matters indemnified a re fully and finally barred by the applicable statute of limitations or, if an action is timely filed, until such action is final.

7.2 Design Professional Services Indemnification and Reimbursement. If Contractor’s obligation to defend, indemnify, and/or hold harmless arises out of Contractor ’s performance as a “design professional” (as that term is defined under Civil Code section 2782.8), then, and only to the extent required by Civil Code section 2782.8, which is fully incorporated herein, Contractor’s indemnification obligation shall be limited to the extent which the C laims arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Contractor in the performance of the Services or this Agreement, and, upon Contractor obtaining a final adjudication by a court of competent jurisdiction, Contractor ’s liability for such claim, including the cost to defend, shall not exceed the Contractor’s proportionate percentage of fault.

8. RECORDS AND REPORTS

8.1 Reports. Contractor shall periodically prepare and submit to the Contract Officer reports concerning the performance of the S ervices required by this Agreement, or as the Contract Officer shall require.

8.2 Records. Contractor shall keep complete, accurate, and detailed accounts of all time, costs, expenses, and expenditures pertaining in any way to this Agreement. Contractor shall keep such books and records as shall be necessary to properly perform the S ervices required by this Agreement and enable the Contract Officer to evaluate the performance of such Services. The Contract Officer shall have full and free access to such books and records at all reasonable ti mes, including the right to inspect, copy, audit , and make records and transcripts from such records.

8.3 Ownership of Documents . All drawings, specifications, reports, records, documents, and other materials prepared by Contractor in the performance of this Agreement shall be the property of City. Contractor shall deliver all above-referenced documents to City upon request of the Contract Officer or upon the termination of this Agreement. Contractor shall have no claim for further employment or additional compensation as a result of the exercise by City of its full rights or ownership of the documents and materials. Contractor may retain copies Item 1U - Page 10

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of such documents for Contractor's own use. Contractor shall have an unrestricted right to use the concepts embodied in such documents.

8.4 Release of Documents . All drawings, specifications, reports, records, documents, and other materials prepared by Contractor in the performance of Services under this Agreement shall not be released publicly without the prior written approval of the Contract Officer.

8.5 Audit and Inspection of Records . After receipt of reasonable notice and during the regular business hours of City, Contractor shall provide City, or other agents of City, such access to Contractor’s books, records, payroll documents, and facilities as City deems necessary to examine, copy, audit, and inspect all accounting books, records, work data, documents, and activities directly related to Contractor’s performance under this Agreement. Contractor shall maintain such books, records, data, and documents in accordance with generally accepted accounting principles and shall clearly identify and make such items readily accessible to such parties during the term of this Agreement and for a period of three (3) years from the date of final payment by City hereunder.

9. ENFORCEMENT OF AGREEMENT

9.1 California Law . This Agreement shall be construed and interpreted both as to validity and to performance of the parties in accordance with the laws of the State of California.

Legal actions concerning any dispute, claim , or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Riverside , State of California, or any other appropriate court in such county, and Contractor covenants and agrees to submit to the personal jurisdiction of such court in the event of such action.

9.2 Interpretation. This Agreement shall be construed as a whole according to its fair language and common meaning to achieve the objectives and purposes of the Parties. The terms of this Agreement are contractual and the result of negotiation between the Parties.

Accordingly, any rule of construction of contracts (including, without limitation, California Civil Code Section 1654) that ambiguities are to be construed against the drafting party, shall not be employed in the interpretation of this Agreement. The caption headings of the various sections and paragraphs of this Agreement are for convenience and identification purposes only and shall not be deemed to limit, expand, or define the contents of the respective sections or paragraphs.

9.3 Waiver . No delay or omission in the exercise of any right or remedy of a non- defaulting Party on any default shall impair such right or remedy or be construed as a waiver.

No consent or approval of City shall be deemed to waive or render unnecessary City’s consent to or approval of any subsequent act of Contractor . Any waiver by either Party of any default must be in writing. No such waiver shall be a waiver of any other default concerning the same or any other provision of this Agreement.

9.4 Rights and Remedies are Cumulative . Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative . The exercise by either P arty of one or more of such rights or remedies Item 1U - Page 11

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shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other Party.

9.5 Legal Action. In addition to any other rights or remedies, either P arty may take legal action, in law or in equity, to cure, correct , or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain injunctive relief, a declaratory judgment, or any other remedy consistent with the purposes of this Agreement.

9.6 Attorney Fees. In the event any dispute between the Parties with respect to this Agreement results in litigation or any non- judicial proceeding, the prevailing Party shall be entitled, in addition to such other relief as may be granted, to recover from the non-prevailing Party all reasonable costs and expenses. These include but are not limited to reasonable attorney fees, expert contractor fees, court costs and all fees, costs, and expenses incurred in any appeal or in collection of any judgment entered in such proceeding.

10. CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION

10.1 Non-Liability of City Officers and Employees . No officer or employee of City shall be personally liable to the Contractor , or any successor -in-interest, in the event of any default or breach by City or for any amount which may become due to the Contractor or its successor, or for breach of any obligation of the terms of this Agreement.

10.2 Conflict of Interest. Contractor acknowledges that no officer or employee of the City has or shall have any direct or indirect financial interest in this Agreement, nor shall Contractor enter into any agreement of any kind with any such officer or employee during the term of this Agreement and for one (1) year thereafter. Contractor warrants that Contractor has not paid or given, and will not pay or give, any third party any money or other consideration in exchange for obtaining this Agreement.

10.3 Covenant Against Discrimination . In connection with its performance under this Agreement, Contractor shall not discriminate against any employee or applicant for employment because of actual or perceived race, religion, color, sex, age, marital status, ancestry, national origin ( i.e., place of origin, immigration status, cultural or linguistic characteristics, or ethnicity), sexual orientation, gender identity, gender expression, physical or mental disability, o r medical condition (each a “prohibited basis”). Contractor shall ensure that applicants are employed, and that employees are treated during their employment, without regard to any prohibited basis. As a condition precedent to City’s lawful capacity to ent er this Agreement, and in executing this Agreement, Contractor certifies that its actions and omissions hereunder shall not incorporate any discrimination arising from or related to any prohibited basis in any Contractor activity, including but not limited to the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship; and further, that Contractor is in full compliance with the provisions of Palm Springs Municipal Code Section 7.09.040, including without limitation the provision of benefits, relating to non- discrimination in city contracting.

11. MISCELLANEOUS PROVISIONS
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11.1 Notice. Any notice, demand, request, consent, approval, or communication that either Party desires, or is required to give to the other Party or any other person shall be in writing and either served personally or sent by pre -paid, first-class mail to the address set forth below. Notice shall be deemed communicated seventy- two (72) hours from the time of mailing if mailed as provided in this S ection. Either Party may change its address by notifying the other Party of the change of address in writing.

To City: City of Palm Springs
Attention: City Manager/ City Clerk
3200 E. Tahquitz Canyon Way
Palm Springs, California 92262

To Contractor: Red Hawk Services, Inc.

Attention: Scott Moore
262 E. 1
st Street
Perris, CA 92570

11.2 Integrated Agreement . This Agreement constitutes the entire understanding between the Parties and supersedes and cancels all prior negotiations, arrangements, agreements, representations, and understandings, if any, made by or among the Parties with respect to the subject matter in this Agreement.

11.3 Amendment. No amendments or other modifications of this Agreement shall be binding unless through written agreement signed by all Parties.

11.4 Severability. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law. In the event that any one or more of the phrases, sentences, clauses, paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable by valid j udgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Agreement, which shall be interpreted to carry out the intent of the Parties.

11.5 Successors in Interest . This Agreement shall be binding upon and inure to the benefit of the Parties’ successors and assignees.

11.6 Third Party Beneficiary . Except as may be expressly provided for in this Agreement, nothing contained in this Agreement is intended to confer, nor shall this Agreement be construed as conferring, any rights, including, without limitation, any rights as a third-party beneficiary or otherwise, upon any entity or person not a party to this Agreement.

11.7 Recitals. The above -referenced Recitals are hereby incorporated into the Agreement as though fully set forth in this Agreement and each Party acknowledges and agrees that such Party is bound, for purposes of this Agreement, by the same.

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11.8 Authority. The persons executing this Agreement on behalf of the P arties warrant that they are duly authorized to execute this Agreement on behalf of Parties and that by so executing this Agreement the Parties are formally bound to the provisions of this Agreement.

11.9 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original.

12. COMPLIANCE WITH ECONOMIC SANCTIONS IN RESPONSE TO RUSSIA'S ACTIONS IN UKRAINE.

When funding for the services is provided, in whole or in part, by an agency controlled of the State of California, Consultant shall fully and adequately comply with California Executive Order N-6-22 (“Russian Sanctions Program”). As part of this compliance process, Consultant shall also certify compliance with the Russian Sanctions Program by completing the form located in Exhibit “C” (Russian Sanctions Certification), attached hereto and incorporated herein by reference. Consultant shall also require any subconsultants to comply with the Russian Sanctions Program and certify compliance pursuant to this Section.

13. FEDERAL PROVISIONS
Since funding for the Services is provided, in whole or in part, by the Federal Aviation Administration, Supplier shall also fully and adequately comply with the provisions included in Exhibit “D” attached hereto and incorporated herein by reference (“Federal Provisions”). With respect to any conflict between such Federal Provisions and the terms of this Agreement and/or the provisions of state law, the more stringent requirement shall control.

[SIGNATURES ON NEXT PAGE]
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SIGNATURE PAGE TO AGREEMENT BY AND BETWEEN THE CITY OF PALM SPRINGS AND RED HAWK SERVICES, INC.

IN WITNESS WHEREOF, the Parties have executed this Agreement as of the dates stated below.

CONTRACTOR:

By: _______________________________________ By: _________________________________________ Signature Signature
(2nd signature required for Corporations)

Date: Date:

CITY OF PALM SPRINGS:

APPROVED BY CITY COUNCIL:

Date: ____________________ Item No. ____________________

APPROVED AS TO FORM: ATTEST:

By: ___________________________ By: _______________________________ City Attorney City Clerk

APPROVED:

By: _______________________________ Date:

City Manager – over $50,000
Deputy/Assistant City Manager – up to $50,000
Director – up to $25,000
Manager – up to $5,000

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EXHIBIT “A”

CONTRACTOR’S

SCOPE OF SERVICES/WORK

Including,

Schedule of Fees

And

Schedule of Performance

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1.1 Scope:

A. Contractor shall provide on-call fence repair and installation services at the Palm Springs International Airport (Work) on an as-requested basis. The scope of Work shall include, but is not limited to repair, maintenance, installation, rental, reset, remove and replace (new or temporary) fencing when requested by the Airport (PSP). When replacing fencing, unless otherwise specified by the City, the Contractor shall replace the existing fe nce with a fence made of new materials placed in the same location.

B. Contractor shall provide and install various types of fencing as requested by PSP to secure various structures and/or properties.

C. Contractor may be requested to provide such services at any time (24 hours a day, seven days a week).

D. Response times: Contractor must adhere to the following response tim es unless a separate schedule is agreed upon.
a. Repairs must be made within 72 hours of notification by PSP b. Emergency repairs must be made within 24 hours of notification by PSP.

E. Contractor shall work expeditiously and continuously on the project until all work is completed. Thereafter, the work will be inspected an d approved by PSP personnel.

F. The Contractor will be responsible for SIDA access badging and Signatory authority for all badged staff members. The Contractor must provide at least 2 badged individuals and 1 Authorized Signatory.

G. The Contractor must adhere to ITEM F-162 AIRPORT CHAIN-LINK FENCES FAA Standard Specification detailed below, at all times, unless otherwise directed by PSP management.

ITEM F -162 AIPORT CHAIN -LINK FENCES FAA Standard, Ch ange 11 (Modified for PSP AIP -28) DESCRIPTION 162 -1.1 This it em shall consist of furnishing and erecting a chain- link fence and security signs in accordance with these specifications and the details shown on the plans and in confo rmity with the lines and grades shown on the plans or established by the Engineer. This item shall also consist of the removal of existing chain link fence, posts, wire, and fence appurtenances connected therewith at the locations as shown on the drawings or as may be further estab lished by the Engineer. The Contractor shall salvage, neatly bundle, and deliver to the Owner all fence fabric and barbed wire.

All other fence materials shall b ecome the property of the Contractor and shall be completely removed from the airport site by the Contractor. The removal of the existing fencing materials shall include the removal of all excess fencing materials, including wire, wire ties, wire clippings , posts, concrete, fence stays, etc. from the airport property. Wire ties and wire clipping shall not be left on site but shall be kept picked up and dispos ed off site. Additionally, the existing security signs shall be removed, salvaged, bundled and delivered to the Owner.

MATERIALS 162-2.1 FABRIC. The fabric shall be 6 feet in height woven with a Item 1U - Page 17

Revised 4.13.23 Page 14 of 70

9-gauge galvanized steel wire in a 2 -inch (50 mm) mesh and shall meet the requirements of ASTM A 392, Class 2. 162- 2.2 BARBED WIRE. Barbed wire shall be 2 -strand 12-1/2- gauge zinc -coated wire with 4 -point barbs and shall conform to the requirements of ASTM A 121, Class 3. Barbered wire shall include 3 lines of wire adhered to post brackets on a 45 degree angled outward to public side of property. 162- 2.3 POSTS, RAILS AND BRACES. Posts, rails, and braces furnished for use in conjunc tion with zinc -coated steel fabric shall be of zinc-coated steel framework, or composite posts. Those furnished for use in conjunction with aluminum alloy fabric shall be aluminum alloy. Line posts, rails, and braces shall be galvanized steel pipe conformi ng to the requirements of ASTM F 1083. The dimensions of the posts, rails, and braces shall be in accordance with Tables I through VI of Fed. Spec. RR -F-191/3, except where noted differently on the plans. 162- 2.4 GATES. Gate frames shall consist of galvanized steel pipe and shall conform to the specifications for the same material under paragraph 162-2.3. The fabric shall be of the same type of material as used in the fence. 162- 2.5 WIRE T IES AND TENSION WIRES. Wire ties for use in conjunction with a given type of fabric shall be of the same material and coating weight identified with the fab ric type. Tension wire shall be 7- gauge marcelled steel wire with the same coating as the fabric typ e and shall conform to ASTM A 824. Wire fabric ties shall be hog rings, aluminum wire, or galva nized steel wire not less than 9 gauge. All material shall conform to Fed. Spec. RR-F-191/4. 162-6 MISCELLANEOUS FITTINGS AND HARDWARE. Miscellaneous steel fittings and hardware for use with zinc -coated steel fabric shall be of commercial grade steel or better quality, wrought or cast F162 -2 as appropriate to the ar ticle, and sufficient in strength to provide a balanced design when used in conjunction with fabric posts, and wires of the quality specified herein. All steel fittings and hardware shall be prot ected with a zinc coating applied in conformance with ASTM A 153. Miscellaneous aluminum fittings for use with aluminum alloy fabric shall be wrought or cast aluminum alloy. Barbed wire support arms shall withstand a load of 250 pounds (113 kg) applied vertically to the outermost end of the arm. 162 -2.7 CONCRETE. Concrete shall be of a commercial grade with a minimum 28-day compressive strength of 3,750 psi, and s hall conform to item P - 610. 162-2.8 MARKING. Each roll of fabric shall carry a tag showing the kind of base metal (steel, aluminum, or aluminum alloy number ), kind of coating, the gauge of the wire, the length of fencing in the roll, and the name of the manufacturer. Posts, wire, and other fittings shall be identified as to manufacturer, kind of bas e metal (steel, aluminum, or aluminum alloy number), and kind of coating. CONSTRUCTION METHODS 162 -3.1 CLEARING FENCE LINE. All trees, brush, stumps, logs, and other debris which would interfere with the proper construction of the fence in the required location shall be removed a minimum width of 2 feet (61 cm) on each side of the fence centerline before starting fencing operations. The cost of removing and disposing of the material shall not constitute a pay item and shall be cons idered incidental to fence construction. Upon completion of the fence installation all disturbed areas shall be graded and treated with dust palliative in accordance with the project specifications. The cost of grading and dust palliative installation shal l not constitute a pay ite m and shall be Item 1U - Page 18

Revised 4.13.23 Page 15 of 70

considered incidental to fence construction. 162- 3.2 INSTALLING POSTS. All posts shall be set in concrete at the required dimension and depth and at the spacing shown on the plans. The fence posts shall be installed uniformly with the tops holding constant grade from grade break to grade break. Grade breaks shall not occur at intervals less than 500- feet. The concrete shall be thoroughly compacted around the posts by tamping or vibrating and shall have a smooth finish slightly higher than the ground and sloped to drain away from the posts. All posts shall be set plumb and to the required grade and alignment. No materials shall be installed on the posts, nor shall the posts be disturbed in any manner within 7 days after the individual post footing is completed. Should rock be encountered at a depth less than the planned footing depth, a hole 2 inches (50 mm) larger than the greatest dimension of the posts shall be drilled to a depth of 12 inches (300 mm). After the posts are set, the remainder of the drilled hole shall be filled with grout, composed of one part Portland cement and two parts mortar sand. Any remaining space above the rock shall be filled with concrete in the manner described above. In lieu of drilling, t he rock may be excavated t o the required footing depth. No extra compensation shall be made for rock excavation. 162-3.4 INSTALLING BRACES. Horizontal brace rails, with diagonal truss rods and turnbuckles, shall be installed at all terminal posts. 162-3.5 INSTALLING FABRIC. The wir e fabric shall be firmly attached to the posts and braced in the manner shown on the plans. All wire shall be stretched taut and shall be installed to the required F162-3 elevations. The fence shall generally follow the contour of the ground, with the bottom of the fence fabric no less than 1 inch (25 mm) or more th an 4 inches (100 mm) from the ground surface. Grading shall be performed where necessary to provide a neat appearance. At locations of small natural swales or drainage d itches and where it is not practical to have the fence conform to the general contour of the ground surface, longer posts may be used and multiple strands of barbed wire stretched thereon to span the opening below the fence. The vertical clearance between strands of barbed wire sha ll be 6 inches (150 mm) or less. 162-3.6 ELECTRICAL GROUNDS. Electrical grounds shall be constructed at 500- foot (150 m) intervals. The ground shall be installed directly below the point of crossing. The ground shall be accomplished with a copper clad rod 8 feet (240 cm) long and a minimum of 5/8 inch (15 mm) in dia meter driven vertically until the top is 6 inches (150 mm) below the ground surface. A No. 6 solid copper conductor shall be clamped to the rod and to the fence in such a manner that each element of the fence is grounded. Installation of ground rods shall not constitute a pay item and shall be considered incidental to fence construction. METHOD OF MEASUR EMENT 162 -4.1 Chain- link fence with Dog Fence Section and/or chain-link fence removal will be measured for payment by the linear foot . Measurement will be along the top of the fence from center to center of end posts, excluding the length occupied by gate openings. Security signs and bollards are considered to be incidental to the cost of the fence . No separate measurement will be made for these items. Gates will be measured as complete units.

H. MATERIAL REQUIREMENTS:
a. ASTM A 121 Zinc-Coated (Galvanized) Steel Barbed Wire Item 1U - Page 19

Revised 4.13.23 Page 16 of 70

b. ASTM A 123 Zinc (Hot Galvanized) Coatings on Product s Fabricated from Rolled, Pressed, and Forged Steel Shapes, Plates, Bars, and Strip ASTM A 153 Zinc Coating (Hot-Dip) on Iron and Steel Hardware c. ASTM A 392 Zinc -Coated Steel Chain -Link Fence Fabric ASTM A 446 Specification for Steel Sheet, Zinc- Coated (Galvanized) by the Hot -Dip Process, Structural (Physical) Quality ASTM A 491 Aluminum -Coated Steel Chain -Link Fence Fabric ASTM A 569 Steel, Carbon (0.15 Maximum, Percent), Hot Rolled Sheet and Strip Commercial Quality ASTM A 570 Hot -Rolled Carbon Steel Shee t and Strip Structural Qua lity F162-4 ASTM A 572 High- Strength Low -Alloy Columbium -Vanadium Steels of Structural Quality ASTM A 585 Aluminum- Coated Steel Barbed Wire ASTM A 824 Metallic-Coated Steel Marcelled Tension Wire for Use with Chain Link Fence ASTM B 117 Standard Test Method of Salt Spray (Fog) Testing ASTM B 221 Aluminum -Alloy Extruded Bars, Rods, Wire Shapes and Tubes ASTM F 668 Poly(vinyl Chloride)(PVC)- Coated Steel Chain-Link Fence ASTM F 1043 Strength and Protective Coatings on Metal Industrial Chain Link Fence Framewor k ASTM F 1083 Pipe, Steel, Hot-Dipped Zinc -coated (galvanized) Welded, for Fence Structures ASTM F 1183 Aluminum Alloy Chain Link Fence Fabric ASTM F 1234 Protective Coatings on Steel Framework for Fences ASTM G 23 Operating Light -Exposure Apparatus (Carbon- Arc Type) With and Without Water for Exposure of Nonmetalli c Materials ASTM G 26 Operating Light -Exposure Apparatus (Xenon- Arc Type) With and Without Water for Exposure of Nonmetallic Materials ASTM G 53 Operating Light - and Wat er-Exposure Apparatus (Fluorescent UV - Condensation Type) for Exposure of Nonmetallic Ma terials Fed. Spec.

Fencing, Wire and Post, Metal (Chain- Link F ence Posts, Top Rails and Braces) RR -F-191/3 Fed. Spec. Fencing, Wire and Post, Metal (Chain- Link Fence Accessories) RR-F-191/

1.2 Pricing:

1. The pricing included in this Contract shall be firm for the first year.

2. The unit prices may be adjusted (decreased or increased) once a year to correspond with the most recent annual change to the Consumer Price Index for All U rban Consumers as published by the U.S. Bureaus of Labor Statistics for the Riverside-San Bernardino-Ontario Areas.

3. The City will only pay for the items listed on the bid form, and permit and disposal fees. This does not include acces s to public utilities. Contractor must incorpora te all of its costs in its unit bid prices, including but not limited to labor, supervision, project management, overhead, profit, onboarding training, travel, mileage, truck charges, fuel charges, service call charges, parking, delivery, portal -to-portal charges, environmental fees, shop supplies and consumable inc idental materials. The City will not pay for subcontractors, rental of equipment/tools, and purchase of materials/supplies unless the City authorized payment of the applicable items.

1.3 Payment:

Item 1U - Page 20

Revised 4.13.23 Page 17 of 70

The resulting contract for these services is an on- call as needed contract. No specific amount of work is guaranteed. The contract value is an estimated value only. All work authorized under the contract will be compensated on a time and material basis as outlined in the Invoicing Section.

1.4 Invoicing:

Contractor will submit an itemized invoice monthly. Billings must reference a purchase order number and shall indicate the unit (contract) price. Contractor will be paid for the actual hours worked at the rates sh own in the contract. Parts, materials, equipment, and subcontractor costs will be compensated at actual cost with receipts required with allowable markup as outline in the contract. Contractor shall break out the line items on the invoice in accord ance with the line items on the bid form. Contractor must provide back-up documentation for materials, subcontractor, rented equipment, permits, disposal and recycling fees. Invoices that are submitted with incorrect prices may be returned for correction before an y payments to the contractor are authorized. It shall be the contractor’s responsibility to submit a correct invoice. The City shall not be responsible for payment until a correct invoice is received. The invoice shall be accompanied by receipts, dated, an d signed by a City Employee, verifying the work was done. Invoices and receipts will be submitted to the Contract Officer for approval.

Item 1U - Page 21

Revised 4.13.23 Page 18 of 70

ATTACHMENT G

BID FORM
INVITAT ION FOR BIDS (IFS 23-35)

O N-CALL FENCE REPAIR AND INSTALLATION SERV ICES FOR PSP Responding to lhis IFS f or on-call fence repair and Installation services for tile Palm Springs International Airport, lhe undersigned bidder proposes aAd agrees to provide lhe seivices and >york m accorda nce wi1h the specifi cations. Bidder proposes and agrees to furnish all labor. equ rprnent, materials, supeMsio n, and service necessary lo complete said Work In accord.ance with lhe Spec[ficallons of the City of Palm Springs and will accept as ft,11 payme nt therefore. U,e toilowin9, un~ cost amoun ts. The City of Palm Springs will not accept any addit ion.ii charges . fees, etc that are not already ind ud<id or incorporated in tile below unit costs.

ITEM DESCRIPT ION. UNIT ESTIMA TED UNIT PRIC)E :SUBTOTA(. QUANTITY' 1 Laborer Regular Billing Rate HR (7:00A M - 5:00PMI 300 1 64 . 44 $46 , 332 . 00 2 Labc.rer o vertime Billing Rate HR 100 223 .06 $22 , 306 . 00 (5:00PM - 7:00AM) 3 Temoora rv Montfil\i Fenc:e Rental MO 36 1. 00 ,,., fl $36 . 00 P•• t Parts an<I Materi als (Enter your %
mark-up for parts & materials)
4 Example fo.r 10% enter·1:10; for % 50,000 1. 10 55 , 000 . 00 20% enter 1.20; for 25% enter

1.25)
TOTAL (En ter this a mount in PlanetBids ) 1 2 3, 998 . 00 ' Note: This bli:l form is to determine the lowest bidder and will be used to estab lish tne contract unit prices. The contract value will be set at the 'City budget amoun t.

Firm Name: RED HAWK SERVICES INC .

DIR Number: 10 00405318
Printed Name: SCOTT MOORE
iitle· PBESIPENT
Date: 0&1221 23